Karnataka High Court
Umesh vs State Of Karnataka on 20 February, 2023
Author: B. Veerappa
Bench: B. Veerappa
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CRL.A No. 728 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE B. VEERAPPA
AND
THE HON'BLE MR JUSTICE RAJESH RAI K.
CRIMINAL APPEAL NO.728 OF 2020
BETWEEN:
1. UMESH
AGED ABOUT 38 YEARS,
S/O SRI SHIVANNA,
RESIDENT OF KALLAHALLI VILLAGE,
KASABA HOBLI,
KANAKAPURA TALUK-562 117.
2. KUMARA ALIAS DOWNRY KUMAR
AGED ABOUT 33 YEARS,
S/O CHELUVAIAH,
RESIDENT OF KALLAHALLI VILLAGE,
KASABA HOBLI,
KANAKAPURA TALUK-562 117.
Digitally signed by
VIJAYALAKSHMI
BN 3. PARTHA
Location: HIGH AGED ABOUT 36 YEARS,
COURT OF
KARNATAKA S/O PUTTASWAMY,
RESIDENT OF KALLAHALLI VILLAGE,
KASABA HOBLI,
KANAKAPURA TALUK-562 117.
4. RAGHU
AGED ABOUT 29 YEARS,
S/O SHANKARAPPA,
RESIDENT OF KALLAHALLI VILLAGE,
KASABA HOBLI,
KANAKAPURA TALUK-562 117. .. APPELLANTS
(BY SRI C.V. NAGESH, SENIOR COUNSEL, FOR
SRI AJAY KADKOL T., ADVOCATE)
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CRL.A No. 728 of 2020
AND:
STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER,
KANAKAPURA RURAL POLICE STATION,
KANAKAPURA,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU 560001.
...RESPONDENT
(BY SRI ABHIJITH K.S., H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 27.01.2020 PASSED
BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
RAMANAGARA, SITTING AT KANAKAPURA, IN S.C. NO.5032/2014
CLUBBED WITH S.C. NO.5065/2014, CONVICTING APPELLANT NOS.1
TO 4 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 120B,
302 R/W SECTION 149 OF IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR FINAL HEARING,
THIS DAY, B. VEERAPPA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This criminal appeal is filed by the appellants-accused Nos.1 to 4 against the judgment of conviction and order on sentence dated 27.01.2020, passed in Sessions Case No.5032/2014, clubbed with Sessions Case No.5065/2014, on the file of the learned II Additional District and Sessions Judge, Ramanagara, sitting at Kanakapura, convicting and sentencing them to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 143 read with Section 149 of the Indian Penal Code, 1860 (for short, 'IPC') -3- CRL.A No. 728 of 2020 and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- each for both the offences punishable under Section 120B and Section 302 read with Section 149 of IPC and in default of payment of fine amount, to undergo further rigorous imprisonment for a period of one year by accused Nos.1 to 4.
2. For the sake of convenience, the parties herein shall be referred to in terms of their status before the Sessions Court.
I - The factual matrix of the case
3. It is the case of the prosecution that, the complainant has alleged in his complaint at Ex.P-1 that there were quarrel between accused No.1-Umesh and the deceased-K.P.Chandra in respect of collection of vehicle parking charges at the fair (Jatra) of Sri Venkataramanaswamy Temple at Kallahalli village between 14.02.2014 to 16.02.2014 and thereby, ill-will crept between them and in view of the said ill-will, accused Nos.1 to 4 colluded with accused Nos.5 to 7 for the purpose of committing murder of said K.P.Chandra and made criminal conspiracy between 01.03.2014 and 05.03.2014 at Balaji Lodge of Kanakapura and also at the newly constructing house of -4- CRL.A No. 728 of 2020 accused No.5 at Kallahalli village and hatched a plan by discussing among themselves and accused Nos.5 to 7 had made follow-up about the movements of said K.P.Chandra. On 05.03.2014, in the morning, when K.P.Chandra went to toilet near pipeline road of Kallahalli village, accused Nos.1 to 4 have got the information and at about 8.15 a.m., the deceased K.P.Chandra after completion of toilet process going on his motorbike bearing registration No.KA-51-H-8372 towards Kallahalli, near Coconut garden land of one Srinivas, at that time, accused No.4 being driver of the car bearing registration No.KA-02-D-1332 and accused Nos.1 to 3 being inmates of the car, followed the motorbike of the deceased K.P.Chandra from hind side and with an intention to murder him, accused No.4 caused accident at back side of the motorbike, due to which, K.P.Chandra fell down at the road with his motorbike and at that time, accused Nos.1 to 3 alighted from the car and among them, accused No.1 stabbed over right side chest, right elbow and stomach of the deceased Chandra with knife (Baku), accused No.2 with long has beaten the head of the deceased and accused No.3 has beaten on right portion of the waist for two to three times and caused severe blood injuries with an intention to murder him and the said K.P.Chandra succumbed -5- CRL.A No. 728 of 2020 to the injury. Accordingly, a complaint came to be lodged as at Ex.P-1 on 05.03.2014 at about 10.15 a.m. by two persons viz., Puttaraju, K.P.Prakash and written by one Sri K.C.Krishna (K.C.Kirshna was not examined). The jurisdictional Police registered the case at about 10.30 a.m. in Crime No.46/2014 for the offences punishable under Sections 302, 114 read with Section 34 of IPC. Later the respondent-police investigated the matter and laid charge sheet against the accused persons.
4. During the course of proceedings before the committal Court, after complying the provisions of Section 209 of Code of Criminal Procedure, 1973 (for short `Cr.P.C.'), initially the case against accused Nos.1 to 4 in C.C.No.562/2014, was committed before the sessions Court. Accused Nos.1 to 4 were in judicial custody. Accordingly, learned Sessions Judge has registered the same in S.C.No.5032/2014. As the accused Nos.5 to 7 were not secured, a split up case was registered in C.C.No.672/2014. Subsequently, the learned Sessions Judge secured the presence of accused Nos.1 to 4 and framed charges for the offences punishable under Sections 120B and 143, 302 read with Section 149 of the IPC. When the charges were read over and explained to the accused in the language known to them, they pleaded not guilty and claimed to be tried. -6- CRL.A No. 728 of 2020
5. In order to prove the case of the prosecution, the prosecution examined in all 25 witnesses from PW-1 to PW-25, got marked documents from Exs.P-1 to P-37 and produced material objects from MO-1 to MO-17. After completion of the evidence of the prosecution witnesses, the statements of the accused as contemplated under Section 313 of Cr.P.C. were recorded, wherein the accused have denied all incriminating circumstances made against them. The defence has not led any evidence, but marked the photographs from Exs.D-1 to D-7, a portion of the statement of PW-1 recorded under Section 161 of Cr.P.C. at Ex.D-8 and Ex.D-8(a) and a portion of the statement of PW-5 recorded under Section 161 of Cr.P.C. at Ex.D-9.
6. Based on the aforesaid pleadings, learned Sessions Judge framed four points for consideration, which reads as under:
i. Whether the prosecution proves the homicidal death of deceased K.P.Chandra as contended in the charge sheet?
ii. Whether the prosecution further proves that on 5.3.2014 at 8.15 a.m. the A-1 to 4 have on the basis of information received from the A-5 to 7 regarding movements of the -7- CRL.A No. 728 of 2020 deceased K.P.Chandra accordingly being the members of the unlawful assembly by holding dangerous articles of knife, long with common object to murder K.P.Chandra near the land of one Srinivas at Kallahalli road and thereby committed the offence punishable u/s 143 r/w/s 149 of I.P.C.?
iii. Whether the prosecution proves that in view of quarrel between the A-1 and the deceased K.P.Chandra regarding collection of vehicle parking fees in Kallahalli village Venkataramanaswamy Fair (Jatra) held between 14.2.2014 and 16.2.2014 there was ill will against the deceased K.P.Chandra and thereby the A-1 to 4 colluded with the A-5 to
7 and made criminal conspiracy between 1.3.2014 to 5.3.2014 at Balaji Lodge Kanakapura and also at newly constructing building of the A-2 at Kallahalli with their common object of committing the murder of said K.P.Chandra and thereby made follow up regarding movements of the K.P.Chandra to commit the offence of murder and thereby committed the offence punishable u/s 120B r/w/s 149 of I.P.C.?
iv. Whether the prosecution proves that on the above date, time and place the A-1 to 4 have in view of the criminal conspiracy made along -8- CRL.A No. 728 of 2020 with A-5 to 7 with an intention to commit murder of the deceased K.P.Chandra, followed him in Indica Car No.KA-02-D-1332 when he was going on motorbike No.KA-51- H-8372 towards Kallahalli near the land of one Srinivas and dashed the car at hind side due to which the K.P.Chandra fell down with bike and at that time the A-1 stabbed knife (Baku) over his right side chest, right elbow and stomach, A-2 has beaten on his head with long, A-3 has beaten on his waist for 2-3 times knowing fully well that he would have suffered death and with dangerous weapons and with intention assaulted and murdered him and thereby committed the offence punishable U/s 302 r/w 149 of I.P.C.?
II - The findings recorded by the learned Sessions Judge
7. Considering both the oral and documentary evidence on record, the learned Sessions Judge answered point No.1 in the affirmative holding that the prosecution has proved its case beyond reasonable doubt that the death of deceased - K.P. Chandra is homicidal one. The learned Sessions Judge answered point Nos.2 to 4 in the affirmative against Accused Nos.1 to 4 and negative against Accused Nos.5 to 7 and recorded a finding that the prosecution proved beyond -9- CRL.A No. 728 of 2020 reasonable doubt that on 5.3.2014 at 8.15 a.m., Accused Nos.1 to 4 on the basis of the information received regarding movements of the deceased K.P. Chandra, being the members of the unlawful assembly by holding dangerous articles like knife, longs, with the common object to murder K.P. Chandra, came near the land of one Srinivas at Kallahalli and thereby committed the offence punishable under Section 143 read with Section 149 of IPC. The learned Sessions Judge further held that the prosecution proved beyond reasonable doubt that Accused Nos.1 to 4 colluded and made criminal conspiracy with the common object of committing the murder of the deceased K.P.Chandra, thereby committed an offence punishable under Section 120B read with Section 149 of IPC. The learned Sessions Judge further recorded a finding that Accused Nos.1 to 4 in view of criminal conspiracy made with an intention to commit murder of the deceased - K.P. Chandra followed him in a Indica car bearing Registration No.KA-02-D-1332 when he was going on motorbike bearing No.KA-51-H-8372 towards Kallahalli near the land of one Srinivasa and dashed the car at hind side, due to which K.P. Chandra fell down from the bike and at that time, Accused No.1 stabbed with knife (baku) over his right side chest, right elbow and stomach, Accused No.2
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CRL.A No. 728 of 2020has beaten on his head with long, Accused No.3 has beaten on his waist for 2-3 times knowing fully well that he would have suffered death and with dangerous weapons and with intention assaulted and murdered him, thereby committed the offence punishable under Section 302 read with Section 149 of IPC. Accordingly, the learned Sessions Judge by the impugned judgment of conviction and order of sentence dated 27.1.2020 convicted Accused Nos.1 to 4 for the offences punishable under Sections 143, 120B and 302 read with Section 149 of IPC and acquitted Accused Nos.5 to 7 for the aforesaid offences. Hence, the present criminal appeal is filed by Accused Nos.1 to
4.
8. The State has not filed any appeal insofar as acquitting Accused Nos.5 to 7 for the offences punishable under Sections 143, 120B and 302 read with Section 149 of IPC.
9. We have heard the learned counsel for the parties to the lis.
III-Arguments advanced by the learned senior counsel for appellant Nos.1 to 4/accused Nos.1 to 4
10. Sri C.V. Nagesh, learned senior counsel for Accused Nos.1 to 4, would contend that the impugned judgment of conviction and order of sentence insofar as convicting the
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CRL.A No. 728 of 2020Accused Nos.1 to 4 for the offences punishable under Sections 143, 120B and 302 read with Section 149 of IPC is erroneous, contrary to the material on record and cannot be sustained, which has resulted in serious miscarriage of justice and liable to be set aside. He would further contend that the alleged conspiracy from the evidence of PWs.14 and 22 not proved as they turned hostile. He would further contend that the recovery of MOs.1 to 3/two longs and one dragon and Mos.8 to 13/ blue colour jeans pant, blue colour T-shirt, Jeans pant, T-shirt, Shirt and pant under Ex.P10/seizure mahazar not proved by the evidence of PWs.10, 18, 21 and 24. He further contended that the recovery was made on 22.3.2014 i.e., 18 days after the incident. He would further contend that according to PW.24/Investigating Officer, he appointed PW.21 on 23.3.2014, but PW.21 stated that on 22.3.2014 itself at about 6.30 p.m. he had arrested the accused persons and no explanation was made to that effect. He would further contend that as per Ex.P10/panchanama conducted on 22.3.2014, the Investigating Officer/PW.24 arrested the accused persons between 12.45 a.m. and 1.45 a.m. and seized Indica car, but PW.21 does not depose about seizure of the car. He would further contend that the evidence of Investigating
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CRL.A No. 728 of 2020Officer/PW.24, panch witnesses/PWs.14, 15 and 16 does not inspire confidence and the prosecution failed to prove the case. The blood stained clothes of the accused persons were recovered under Ex.P10 after eighteen days. In the entire evidence of the prosecution witnesses, there is no clarity as to whether after the incident for a period of eighteen days, the accused persons moved along with the blood stained clothes in and around and as to how the blood stained clothes of accused/MOs.8 to 13 were recovered, is also not forthcoming. He would further contend that under Ex.P18/seizure mahazar dated 22.3.2014, Indica car was seized. The evidence of the Investigating Officer/PW.24 is fabricated. PW.10, who is the witness to Ex.P10 deposed about seizure of Indica car, but not stated anything about the recovery of blood stained clothes of accused/MOs.8 to 13. PW.18, who is the witness to Ex.P10 has turned hostile, thereby recovery of MOs.8 to 13/blood stained clothes of the accused, is not proved. He would further contend that recovery of Mos.1 to 3 is based on the voluntary statement recorded by the Investigating Officer on 23.3.2014 under Ex.P24 to Ex.P27. He would further contend that the voluntary statement of Accused No.1 was recorded as per Ex.P24 on 22.3.2014 at 6.45 a.m.; voluntary statement of
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CRL.A No. 728 of 2020Accused No.2 was recorded on 20.3.2014 at 10.15 a.m. as per Ex.P25; the voluntary statement of Accused No.3 was recorded as per Ex.P26 on 22.3.2014 between 9.10 and 10.00 a.m.; and the voluntary statement of Accused No.4 was recorded on 22.3.2014 as per Ex.P27 between 8.00 and 9.00 a.m. Thereby, the voluntary statements of the accused were not recorded in accordance with Section 27 of the Indian Evidence Act. The learned senior counsel would further contend that for recovery of MOs.1 to 3 under Ex.P12, PWs.12 and 13 supported, but in the cross-examination, they admitted that no blood stained clothes of the accused were recovered. PWs.12 and 13 together went to the Police Station, thereby recovery of Mos.1 to 3 not proved. Learned senior counsel would further contend that PW.13 went to the Police Station on 22.3.2014 in two jeeps between 10.00 a.m. and 10.30 a.m. However, Ex.P12 depicts 9.15 to 10.45 a.m. In the cross-examination, PW.13 has stated that he was called on the previous day to the Police Station i.e., on 21.3.2014 itself and recovery of MOs.1 and 2 i.e. four longs was made. Learned senior counsel would further contend that PW.13 has stated in the examination-in- chief as well as in the cross-examination that it is the Police people who took the witnesses and the accused persons,
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CRL.A No. 728 of 2020thereby the recovery of MOs.1 and 2 is also not proved. He would further contend that Dr. Shaileshkumar/PW.15 has stated in Ex.P14/post-mortem report that there is possibility of death on the basis of MOs.1 and 2/longs, but it is not elicited in the cross-examination of PW.15 with regard to the possibility of death from MOs.1 and 2. PW.25/FSL Officer only deposed that it is human blood of 'O' group. In the cross-examination, he admitted that in 'O' group, there are positive and negative blood groups and he has not analyzed whether it was 'O' positive or 'O' negative.
11. Learned senior counsel would further contend that with regard to motive, PWs.5, 7, 18 and 21 have been examined. PW.5 deposed with regard to the collection of car parking fee. PW.7, who is the father of the deceased, has deposed that he received information about the death of the deceased at 7.30 a.m. If that is so, the homicidal death of the deceased should have taken place prior to 7.30 a.m. As per Ex.P1/complaint, the incident has happened at 8.15 a.m. In the cross-examination, he has admitted that his son had lot of business rivals and they might have killed his son, thereby he has given total gobye in the cross-examination and has not stated anything about the accused. PW.5 admitted in the
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CRL.A No. 728 of 2020cross-examination that accused has no role in the homicidal death of the deceased. PW.18 deposed that one Sandeep, who was collecting parking fee has not been examined. PW.2 has stated that the deceased has not participated in the bid.
12. Learned senior counsel would further contend that even according to the prosecution the eyewitness are PWs.1 and 2. PW.1 is the complainant under Ex.P1. PWs.7, 23 and 24 deposed that PWs.1 and 2 were not there on the date of the incident i.e., 5.3.2014 at 8.15 a.m. PW.7 deposed that on 5.3.2014 at about 7.30 a.m. while he was at home, he got the information about the murder of his son/Chandra and that thereafter, he went to the place of offence along with his another son/Prakash (PW.2). Ex.P1 is the complaint and Ex.P22 is FIR, wherein Ex.P1 averments extracted and PW.1 lodged the complaint at 10.15 a.m. and the same was registered at 10.30 a.m. PWs.24 and 23 deposed that on 5.3.2014 at 8.15 a.m., they received information from the public and they went to the spot at 8.30 a.m. and after 10.15 a.m., PW.1 lodged the complaint. PW.23 has stated that in the FIR seven accused persons names are mentioned and the names in the complaint do not tally with the names in the FIR. In the cross-examination, PW.23 admitted that at 8.30
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CRL.A No. 728 of 2020a.m., he went to the spot and before he went to the spot, there were 2-3 Police personnel at the spot and he was waiting till 10.00 a.m. and he does not know who is the accused and waiting for the witnesses to the incident till 10.00 a.m. Ex.P1 written by one K.C. Krishna, who is neither the charge sheeted witness nor examined. Ex.P1 signed by PW.1/Muniraju and one Prakash K.P., but FIR Ex.P22 discloses at item No.5 only the name of Muniraju though the joint complaint was lodged as admitted by PW.23. PW.2 deposed that from 8.30 a.m. to 12.30 p.m., he was there along with his father PW.7 which is contrary to the evidence of PW.23. PW.1/Muniraju along with 10-15 villagers came to the spot, thereby PW.1 was not at all available at 8.15 a.m.
13. Learned senior counsel further contended that PW.2 stated in the cross-examination that Sumantha, Rockraju and Chandra have no connection with the case. PW.2 stated in the cross-examination that on the date of the incident, he has not disclosed the names of Accused No.2/Kumara, Accused No.3/Partha and Accused No.1/Umesha before anybody and the Police have not enquired about the clothes worn by the accused etc., On the date of the incident, he has not given statement to the Police as to who assaulted his brother - K.P. Chandra
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CRL.A No. 728 of 2020and also admitted that he has not made an attempt to save his brother on the date of the incident. He further admitted that the deceased has not participated in the bid collection of parking fee at Kallahalli Venkataramanaswamy temple and he is no way concerned to the said parking bid. PW.2 deposed that Accused No.4/Raghu was sitting in the driver seat in the car. PW.1 deposed that he knows the accused from the childhood days. PW.1 further admitted that he has not written Ex.P1 and he does not know its contents and the same is contrary to the complaint. PW.1 admitted that he does not know Krishna and he is not aware who wrote Ex.P1. In the circumstances, the prosecution has not proved any of the circumstances with regard to the involvement of Accused Nos.1 to 4 in the homicidal death of the deceased. He would further contend that the entire case of the prosecution is inconsistent and the learned Sessions Judge proceeded to convict the accused based on the assumptions and presumptions without any basis, thereby he sought to allow the appeal. IV - Arguments advanced by the learned High Court Government Pleader for the State
14. Per contra, Sri Abhijith K.S., learned High Court Government Pleader, while justifying the impugned judgment
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CRL.A No. 728 of 2020of conviction and order of sentence would contend that motive was proved by the evidence of PWs.1, 2, 5, 18 and 20. He would further contend that the unfortunate incident occurred in presence of the eye witnesses PWs.1 and 2, who supported the case of the prosecution. The recovery of MOs.8 to 13 under Ex.P10 is proved. The recovery of MOs.1 to 3 under Ex.P12 is supported by PWs.12 and 13. The FSL report/Ex.P25 clearly depicts the involvement of accused in the homicidal death of the deceased. Taking into consideration overall facts and circumstances of the case and the material on record, the learned Sessions Judge rightly convicted accused Nos.1 to 4 for the offences punishable under Sections 143, 120B and 302 read with Section 149 of IPC. Therefore, he sought to dismiss the appeal.
15. In support of his contentions, the learned High Court Government Pleader relied upon the following judgments:
1. Mallikarjun v. State of Karnataka reported in (2019) 8 SCC 359 (paragraph nos.11 to
16) with regard to discrepancies;
2. Balvir Singh v. State of Madhya Pradesh reported in (2019)15 SCC 599 with regard to
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inconsistencies between oral and medical evidence;
3. Stalin v. State, rep. by Inspector of Police reported in (2020)9 SCC 524 with regard to motive, and
4. State, through the Inspector of Police v.
Laly @ Manikandan and another reported in 2022 LiveLaw (SC) 851 with regard to eye witnesses.
V - Points for determination
16. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the point that would arise for our consideration in the present criminal appeal is:
"Whether the appellants/Accused Nos.1 to 4 have made out a case to interfere with the impugned judgment of conviction and order of sentence convicting them for the offences punishable under Sections 143, 120B and 302 read with Section 149 of IPC in the peculiar facts and circumstances of the case?"
VI- Witnesses examined on behalf of the Prosecution
17. This Court being the appellate Court in order to re- appreciate the entire material on record, it is relevant to
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CRL.A No. 728 of 2020consider the evidence of the prosecution witnesses and the documents relied upon:
a. PW.1/Muniraju, who is the complainant while reiterating the averments made in the complaint with regard to the previous ill-will of the Accused No.1 with the deceased K.P. Chandra, has deposed that the deceased was assaulted by Accused Nos.1 to 3 and they have taken Accused No.4 in their car and Accused No.4 was in the driver seat. He has identified his signature in the complaint as per Ex.P1(a) and identified the photograph of two wheeler and the car seized in the case as per Ex.P2 & Ex.P3 and further identified the photograph of the deceased/K.P. Chandra at the spot of incident as per Ex.P4 to 7. He further identified two longs and one dragon as per Mos.1 to 3 respectively. He supported the case of the prosecution.
b. PW.2/Prakash K.P., who is brother of the deceased/K.P. Chandra deposed that on 5.3.3014 at 8.00 a.m. when he went in his autorickshaw to leave the school children at Mother Theressa school and
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after that while returning from Kanakapura Main Road, he saw one car parked facing towards the land of one Seenanna and he has stopped his autorickshaw behind the said car and found one Raghu (Accused No.4) sitting on the driver seat of the car and at left side of the car, the body of a person suffering with injuries had fell down and at that time one Partha, Umesha and Downdri Kumara had de-boarded from the said car and assaulted the person who had fell down. Downdri Kumara and Partha had assaulted the said person with longs and another one Umesha assaulted him with dragon and thereafter went away in the said car and at that time Muniraju in Tata Ace vehicle came and went in front of the person suffered death due to the said assault. He also went there and then identified the said person as his brother and discovered motorbike No.KA-51-H-8372. He further deposed about ill-will between Accused No.1 and the deceased/K.P. Chandra in respect of dispute regarding the collection of vehicle parking fees in Venkataramanaswamy Fair of Kallahalli and stated about their plan to commit
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CRL.A No. 728 of 2020the murder of K.P. Chandra. He identified his brothers' blood stained T.shirt, Nicker, underwear, Banian seized in the present case and the same were marked as per Mos.4 to 7 respectively and he further identified the two longs and one dragon/Mos.1 to 3 and further identified the photograph of motorbike and the car as per Ex.P3 and 4. In the cross- examination, he denied that he did not go near pipeline road to reach the Chatra gate petrol bunk to get fill the diesel to his autorickshaw though he was suggested in the cross-examination that if coming from Mother Theressa school side, there is no necessity to go towards the Chatra gate side when there was another petrol bunk near the rice mill but denied the same. He denied that he did not go near the spot where K.P.Chandra had died and further denied the suggestion that himself and Muniraju had not went to the spot. He denied in the cross- examination that for the first time, he has stated before the Court regarding visiting the said spot though no such statement was given before the Police. In the cross-examination, PW.2 has stated
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CRL.A No. 728 of 2020that on the next date of incident the Police have taken his statement. He denied that as deceased K.P. Chandra was working with one Purushottam, false complaint has been created against the accused persons at the instigation of said Purushottam. He supported the case of the prosecution.
c. PW-3/Venkatagiri, who is the hearsay witness deposed with regard to the alleged murder of deceased K.P.Chandra and he allegedly having seen Accused No.6/Maheshbabu who was taking in mobile phone at Kallahalli Panchayat office between 7.30 and 7.45 a.m, and thereafter he heard about the murder of K.P.Chandra by Accused Nos.1 to 3. He stated about the seizing of blood stained mud and one mobile phone at the spot by the police by conducting spot mahazar as per Ex.P-8 and further the police had seized the motorbike of the deceased. He has identified the blood stained mud seized in plastic tin as per M.O.8. In the cross examination, he has admitted that on the date of incident, after 10 a.m he inquired Muniraju and Prakasha about the incident and police have inquired him in the case and
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CRL.A No. 728 of 2020taken his 8-10 signatures regarding seizure of the blood stained mud and unstained mud. Nothing worth is elicited in his evidence to connected his evidence with the evidence of PWs.1 and 2.
d. PW.4/Chandra deposed that he is a witness to the spot panchanama/Ex.P8 and his signature is at Ex.P8(b) and no articles were seized from the spot in his presence. He turned hostile to the case of the prosecution.
e. PW.5/Ravi has deposed that on 5.3.2014
when he was near the shop of Nagegowda at
Kallahalli at 7.00 a.m, at that time
Maheshbabu/Accused No.6 was there and thereafter he heard about the murder of K.P.Chandra by one Umeshkumar, Partha and Raghu by coming in a car and by use of longs and knife. He further deposed about previous ill-will between the deceased and Accused No.1 regarding collection of vehicle parking fees and since then the ill-will continued. In the cross examination he admitted that he did not state before PWs-1 & 2 regarding the presence of Accused No-6
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CRL.A No. 728 of 2020Maheshbabu near the shop of one Nagegowda of Kallahalli in the morning on the date of incident. He further admitted that he has not stated statement as per Ex.D9 regarding the involvement of the Kurupete residents namely Rockraju, Lokesh, Sumantha and Chandra in committing the murder of K.P.Chandra.
f. PW.6/Srinivasa, who is the inquest panch has stated about seeing of blooded wound over the head of deceased K.P.Chandra between 8 a.m, and 8.30 a.m, but partly turned hostile by saying that he does not know to which place the body of the deceased was shifted thereafter. In the cross- examination, he denied having seen 11 wounds over the deceased and the blood stained clothes of the deceased. He turned hostile to the case of the prosecution.
g. PW-7/Puttaswamaiah, who is the father of deceased K.P. Chandra deposed about visiting the spot where his son was assaulted by inflicting cut injuries over his body, stomach, head, hands and legs and his Nicker, Banian were blood stained and
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CRL.A No. 728 of 2020there were 10-15 wounds and the deceased was taken to hospital for postmortem examination. In the cross examination he denied that his son Chandra had drinking habit, but admits that he was engaged in real estate business. He does not know that there was quarrel in the real estate business. He admits that there were enemies in real estate business but does not know with regard to the complaints registered at police station. He admitted that the enemies in the real estate and granite business might have killed his son. In the cross examination, he has stated that he does not remember the name of the person who told him about the murder of his son.
h. PW.8/Mudahanumaiah has deposed that inquest panchanama drawn when he saw the body of deceased K.P.Chandra at the hospital and found 4-6 blooded wounds caused with the longs over the body and head and the police have conducted inquest panchanama and the Nicker and other clothes over the body were blood stained. In the cross- examination, he has stated that the Police have
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CRL.A No. 728 of 2020taken his signature on Ex.P9 in the Police Station and has not read its contents.
j. PW.9/Shivakumar deposed that he had been to the spot where the deceased was murdered by use of dangerous articles. He turned hostile by saying that his signature was not taken by the police over the spot panchanama.
k. PW.10/Jagadeesh is a witness to seizure panchanama of Indica car No.KA-02-D-1332 conducted at Kanakapura town police station and his signature is as per Ex.P-10(a) and identified the said car as appearing in Ex.P3/ photograph. In the cross examination PW-10 has reiterated the fact that the car was seized in his presence, though he does not know about from which place the said vehicle was brought by the police.
l. PW.11/Nagaraju has deposed that Accused Nos.1 to 4 had carried him and the police to the moulded house of the accused by name Kumara regarding the spot of conspiracy to commit the murder of K.P.Chandra and the police have
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CRL.A No. 728 of 2020conducted Ex.P-11/spot mahazar and his signature is taken as per Ex.P-11(a) between 12.30 p.m, and 1.30 p.m. He has identified Accused Nos.1 to 4. In the cross examination, PW-11 has stated that he does not know what the Police had written in Ex.P14/panchanama.
m. PW.12/Chandra has deposed that on 23.03.2014, the Police called him for conducting seizure panchanama in connection with the murder of the deceased. At that time, when he reached near Paduvanagere Cross along with the Police, accused No.1 showed the blooded knife and accused Nos.2 and 3 showed two blooded longs (one each). The Police after conducting seizure panchanama, obtained his signature and the same is marked as per Ex.P12(a). He has identified the said articles as M.Os.1 to 3 before the Court. In the cross- examination, he has denied the suggestion that he was taken to Paduvanagere Cross one day prior to 23.03.2014. He further denied the suggestion that previous day itself, the Police poured the blood over
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CRL.A No. 728 of 2020M.Os.1 to 3 in his presence and obtained his signature and others at the Police Station.
n. PW.13/Ramadasa is another seizure pancha. He has deposed on par with PW.12.
o. PW.14/Narayanappa has deposed that he does not know anything about the offence committed by the accused and he has not given any statement against the accused before the Police.
p. PW.15/Dr. Shailesh Kumar, who conducted Post-Mortem examination as per Ex.P14 and gave opinion as per Ex.P15.
q. PW.16/Shivalingaiah, Assistant Executive Engineer, PWD, Kanakapura, prepared the sketch of the place of the incident as per Ex.P16.
r. PW.17/Lingaraju, Police Constable, who carried six sealed articles on 17.3.2014 and also carried nine sealed articles on 3.4.2014 and brought acknowledgment and thereafter on 3.5.2014 in view of FSL reports, brought the final opinion of the Doctor on the basis of the FSL report regarding the
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CRL.A No. 728 of 2020wounds and cause of death of the deceased. In the cross-examination, he has stated that he does not know when the said articles were sealed.
s. PW.18/Ravi has deposed that he knows the deceased. He has deposed regarding assault made by Sandeep to him in the year 2014 with regard to collecting vehicle parking fees in Venkataramanaswamy temple fare of Kallahalli when he had objected not to ask parking fees for the residents of Kallahalli and at that time, the deceased was in his favour and against Sandeep. He has further deposed that subsequently, the deceased died near pipeline road and for the said purpose, the Police called him and at that time, the accused persons, namely Partha and Kumar produced there jeans pant and T-shirts and the Police have seized the same and he has identified the said clothes as per M.Os.8 to 10 respectively. In the cross- examination, he admits that in the year 2014, accused No.1 had engaged one Raja to collect the vehicle parking fees. He further admits that when he asked to pay the parking fees, the deceased came in
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CRL.A No. 728 of 2020favour of him and at that time, there was quarrel between the deceased and accused No.1. He has further deposed that blue colour jeans pant and blue stripes full shirt were seized. In the cross- examination, he denied the suggestion that the clothes of accused No.1 were sealed in two white bags and taken his signatures on the slip affixed on the bag. Further, he admits his signatures on Exs.P10 and 18 regarding the seizing of clothes and Indica car respectively. He has further stated that he has affixed his signature as per the instructions by the Police. He has further stated that accused No.1- Umesh did not participate in the vehicle parking fees collection.
t. PW.19/N.S. Raviprakash, Senior Motor Vehicle Inspector, deposed that on 25.03.2014, he conducted the inspection of Indica car No.KA-02-D- 1332 and Motor Cycle No.KA-51-H-8372 and found motor cycle saree guard, back wheel mud guard and back side number plate were damaged and the car number plate was damaged and accordingly gave Ex.P19 report containing his signature as Ex.P19(a).
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CRL.A No. 728 of 2020He further stated that such damages may be occurred, if accident happened between the car and the motor cycle. In the cross-examination, he admits that Ex.P19-motor vehicle inspection report is not in the prescribed format and the model of the vehicle is not mentioned in it. He denies that said report has been created by hearing words of the Police.
u. PW.20/Venkatesh, Assistant Sub-Inspector of Police, Kanakapura Rural Police Station, has deposed regarding earlier quarrel between the deceased and accused No.1. A complaint was given by accused No.1 on 15.02.2014 against the deceased and his friends in connection with regard to collection of vehicle parking fees at Kallahalli Venkataramanaswamy Temple fare and at that time NCR No.73/2014 was registered as per Ex.P20 and the quarrel was pacified and instructed to maintain peace and accordingly, the complaint was closed. In the cross-examination, he has denied that NCR has been created one.
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CRL.A No. 728 of 2020
v. PW.21/Vishwanath, Head Constable, Harohalli Police Station, has deposed with regard to arrest of accused Nos.1 to 4 by him and other staff near Ramanagara KSRTC Bus Depot and produced before the Circle Inspector of Police. In the cross-examination, he denies the suggestion that no arrest of the accused persons made at Ramanagara KSRTC Bus Depot.
w. PW.22/Lakshmisha, Kanakapura Balaji Lodge owner, has turned hostile and denied Ex.P21 statement in connection with regard to conspiracy made by the accused persons in the said lodge.
x. PW.23/Ganesh J.H., Sub-Inspector of Police, Kanakapura Rural Police Station, has deposed that he got the information of murder of one K.P.Chandra near pipeline road of Kallahalli near the garden land of one Srinivas at 8.15 a.m. on 05.03.2014 with deadly weapons by unknown persons and accordingly, he went to the spot at 8.30 a.m. and intimated the matter to the higher officers and at 10.15 a.m., he received the written complaint by one
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CRL.A No. 728 of 2020Muniraju at the spot and registered the same in Crime No.46/2014 for the offences punishable under Sections 302 and 114 read with Section 34 of IPC. His signature in the complaint is marked as per Ex.P1(b) and the FIR is marked as per Ex.P22. In the cross-examination, he admits that the complaint was written by one K.C.Krishna who accordingly signed on it, but denies that the signatures of the complainant Muniraju and another person, namely Prakash have been created. He further admits that there were 52 to 60 people on the spot, but denies their gathering since 7.00 a.m as there was intimation that the incident had happened at 6.45 a.m. and as intimated by the police official who reached the spot prior to him. He further admits that till 10.00 a.m., FIR was not registered as nobody had filed the complaint. He denies that though the complaint was taken at 11.30 a.m, but by adjusting the time shown it as 10.30 a.m. He admits that he did not enquire anybody at the spot. He admits that there is no information in the FIR regarding the person by name Prakash whose
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CRL.A No. 728 of 2020signature also appearing on the complaint. He denies that the complaint has been forcefully taken from the complainant Muniraju.
y. PW.24/Siddegowda is the Investigating Officer. He has taken the case records from CW.23. He has conducted Ex.P8 spot Panchanama containing his signature Ex.P8(c) and seized blood mixed mud, sample mud, a pair of slippers of the deceased, Samsung company mobile phone of the deceased, damaged motor cycle number KA-51-H-8372 of the deceased and the same are marked as M.Os.14, 15, 16 and 17 respectively. He has identified the seized motor bike as per Ex.P2 and the photograph of the deceased taken at the spot as per Ex.P23. He has conducted the inquest panchanama as per Ex.P9 containing his signature as per Ex.P9(c) and taken the statements of the inquest panchas and furnished the form No.146(i) and (ii) and sent the body for Post-Mortem examination and received said report as per Ex.P14 and at that time, he has received the deceased's yellow colour half arm shirt, white banian, blue colour long brown colour nicker and identified
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CRL.A No. 728 of 2020the same as per M.Os.4 to 7 and he has sent the M.Os.4 to 7, 14 and 15 for FSL report. Accused Nos.1 to 4 along with the car produced before him by the officials and recorded their voluntary statements as per Ex.Ps.24 to 27 containing their signatures as per Exs.P.24(a), 25(a), 26(a) and 27(a) respectively regarding showing of place of offence, place of conspiracy made and the place where the weapons have been hidden. He has further seized the car by drawing seizer panchanama as per Ex.P10 and containing his signature as per Ex.P10(c) and he identified the said car as per Ex.P3/photograph. On the same day, in the presence of panchas CWs.14, 15 and 16, he has seized the blooded jeans pant, blue and white stripes full arm shirt of accused No.1 at his office and the same are marked as per M.Os.12 and 13. He has seized the blooded light yellow colour full collar shirt and black colour jeans pant of accused No.2 as per M.Os.10 and 11 and also seized the blooded black colour full arm shirt and blooded blue colour jeans pant of accused No.3 and the same are marked as per M.Os.8 and 9. He has
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CRL.A No. 728 of 2020further deposed about attendance records of accused No.2 from the KSRTC Depot Manager for the period from 01.03.2014 to 22.03.2014. He has seized a blooded knife from accused No.1, blooded lounge and one more blooded lounge at the instance of accused Nos.1 to 3 respectively near the drainage of Paduvanagere Road by conducting seizure panchanama as per Ex.P12. He has identified the same as M.Os.1 to 3. He further conducted spot panchanama as per Ex.P30 as shown by the said accused persons and photograph of the spot is marked as per Ex.P31 He has further conducted Ex.P11 criminal conspiracy spot panchanama on the newly constructed house mould of accused No.2 in the presence of panchas and its photograph is marked as Ex.P32. He has further conducted another criminal conspiracy spot panchanama at Room No.8, 3rd floor, Balaji Deluxe Lodge of Kanakapura Town as per Ex.P33 in the presence of panchas. He has further deposed about Car No. KA-02-D-1332 and Motorcycle No.KA-51-H-8372 with regard to motor vehicle inspection report as per Ex.P19 containing his
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CRL.A No. 728 of 2020signature Ex.P19(b) and the said report showing damages of vehicles. He has further got prepared the incidents spot map Ex.P16. He has taken the final opinion of the Doctor as per Ex.P15 by producing one knife and two lounges before the Doctor and his signature is as per Ex.P15(b). In the cross- examination, he has stated that when he went to the place of offence between 9 a.m. and 9.15 a.m., at that time, 50 to 60 persons had gathered and there was eyewitnesses, who is the complainant and the deceased brother K.P.Prakash at the spot and they were inquired, but he has not recorded their statements as it was not necessary to get reduce into writing their statements. Though he states that up to 10:00 a.m., the complaint was not registered by saying the names of accused Nos.2 and 3, but he informed the Sub-Inspector of Police to take the complaint. He further admits that measurement of the Knife (Baku) was not told by anybody, but he has written about M.O.3-knife in the case diary. He further admits that nobody had furnished the particulars of the weapons used for the offence and
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CRL.A No. 728 of 2020who had assaulted by which of the weapons and on what parts and denies the complicity of the accused persons in committing the alleged offence. Further, he denies that accused Nos.1 to 4 have not furnished their voluntary statements as per Exs.P.24 to 27 admitting their guilt. He denies that PWs.1 and 2 have not stated in their statements regarding witnessing the incident. He denies that statement of PWs.1 and 2 have been subsequently created and submitted with the charge-sheet and deny that no car is seized at the instance of accused Nos.1 to 4.
z. PW.25/Fathima, In-charge Assistant Director of FSL, Bengaluru, deposed that she received six sealed articles and on scientific analysis of the same, item Nos.1 and 3 to 6 contained human 'O' group blood and on item No.2, no blood stain found and issued report as per Ex.P34.
VII - Consideration
18. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge convicted accused Nos.1 to 4.
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CRL.A No. 728 of 2020
19. Though as per Ex.P1/complaint from P.W1/Muniraju, the incident occurred on 05.03.2014 at 8.15 a.m. and the accused persons were arrested on 23.03.2014, i.e. after lapse of eighteen days. It is the case of prosecution that till then accused persons were wearing the same blood stained clothes and police recovered the same after their arrest. If really the accused persons were involved in the homicidal death of the deceased, they would not have worn the bloodstained clothes for more than eighteen days. The main case of the prosecution is about the conspiracy spoken by P.Ws.14 and 22.
20. PW.14-Narayanappa deposed that he does not know anything about the offence committed by the accused and has not given any statement against the accused before the Police and thereby, he turned hostile. In the cross-examination, a specific question was posed to him that there was quarrel between the deceased and the accused and stated that he is not aware and he has not given any statement before the Police.
21. PW.22-Lakshmisha deposed that he is doing granite business and he is not aware of the accused persons. He does not know about the incident, or regarding the death of the
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CRL.A No. 728 of 2020deceased and he has not made any statement and thereby, he has been treated as hostile.
22. It is relevant to state, at this stage, that a common charge was made against accused Nos.1 to 7 on 28-7-2014. Admittedly, offence against accused Nos.5 to 7 is not proved under the provisions of Sections 140, 143 and 302 of the IPC and thereby, they have been acquitted and the State has not filed any appeal against them though common charge is made against accused Nos.1 to 7.
23 As per Ex.P10, recovery was made after eighteen days, i.e. on 23.03.2014. PWs.10, 18, 21 and 24 are examined for recovery of MOs.1 to 3 and 8 to 13.
24. PW.10-Jagadeesh has deposed that the deceased was his friend. On 21.03.2014 between 11.30 a.m. and 12 noon, he went to Kanakapura Rural Police Station on the direction issued by the Circle Inspector of Police along with Ravi and Lokesh. He has deposed that Ex.P10/seizure panchanama of Indica car was conducted at the Police Station and his signature is as per Ex.P10(a) and identified the car as appearing in Ex.P3/photograph. In the cross-examination, he admits that the car was seized in his presence, though he does not know
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CRL.A No. 728 of 2020about from which place the said vehicle was brought by the Police and he does not know from what time to what time the mahazar was drawn. Thereby, nothing has been elicited from his evidence about the recovery of MOs.1 to 3 and 8 to 13.
25. PW.18/Ravi has deposed that he knows the deceased, who died five years back. He has deposed that there is a Venkataramanaswamy Temple in his village and during fare of the temple, the bidder of the temple will collect parking charges. In the year 2014, one Sandeep used to collect parking charges for the residents of Kallahalli village and when he questioned the same, Sandeep assaulted him and the deceased was in favour of him and against Sandeep. He further stated that subsequently the deceased died near pipeline road and for the said purpose, he was called by the Police and at that time, the accused persons, namely Partha and Kumara had produced their jeans pant and T-shirts and the Police have seized the same and he has identified the said clothes as per MOs.8 to 10 respectively. He has further stated that accused persons, namely Umesha and Raghu also produced their shirt and pant and at that time, his signatures on the slips and signatures are marked as MOs.12, 12(a) and 13, 13(a). He further stated regarding seizing of Indica car and he has put his signature as
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CRL.A No. 728 of 2020per Ex.P18(a) and identified the said car as per Ex.P3/photograph. In the cross-examination, he admitted that in the year 2014, accused No.1 had engaged one person by name Raja to collect the vehicle parking fees. He further admits that when he was asked to pay the parking fees and when the deceased came in favour of him, at that time, there was quarrel between the deceased and accused No.1. Further, he admits his signatures on Ex.P10 and 18 regarding the seizing of clothes and Indica car respectively. He has specially stated that accused No.1 has not participated in the bid and he has not collected the vehicle parking fees.
26. PW.21/Vishwanath, Head Constable, has deposed that he has been working from 2012 to 2014 at Sathanuru Police Station. As per the oral directions issued by the Circle Inspector, Crime No.46/2014 has been registered and teams were appointed to search the accused persons. Accordingly, they started the process on 19.03.2014. They went to Beluru, Hassan, Mysuru, and got the information from informant and on 22.03.2014 at about 5.30 a.m., they apprehended the accused persons, namely Umesha, Kumara, Partha and Raghu near Ramanagara KSRTC Bus Stand and they were produced at
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CRL.A No. 728 of 2020about 6.30 a.m. before Kanakapura Circle Inspector of Police and thereby, he identified the said persons. Though the material on record clearly depicts that the accused persons arrested on 23.03.2014, but PW.21 has deposed that the accused were arrested on 22.03.2014 itself.
27. PW.24/Siddegowda, Inspector of Police, deposed that he has been working from 27.09.2013 to 28.07.2017 at Kallahalli, within the jurisdiction of Kanakapura Rural Circle and he received the file on 05.03.2014 at about 9.15 a.m. from PW.23/Ganesh who informed about the death of the deceased near pipeline road. He went to the spot where PW.1/Muniraju was there and the Sub-Inspector of Police received the complaint at about 10.45 a.m. and accordingly, in the presence of panchas PWs.4 and 9, at about 11.00 to 12.00., spot mahazar was conducted as per Ex.P8 and also collected the bloodstained mud, sample mud, one chappal and Samsung mobile phone of the deceased and the motorcycle of the deceased. He further deposed that on 23.03.2014, he appointed Sub-Inspector of Police and staff and at about 5.30 a.m. near Ramanagar KSRTC Bus Depot, the accused persons were arrested and produced before him and after enquiry, he recorded the statements of the accused persons.
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CRL.A No. 728 of 2020In the voluntary statements, the accused persons have admitted that they have involved in the homicidal death of the deceased. Thereafter, along with panchas PWs.14 to 16, they went to the spot. He further deposed that he identified Ex.P3/photo of the car. In so far as accused No.1 is concerned, one shirt and the bloodstained jeans pant were recovered as per MOs.12 and 13. In so far as accused No.2 is concerned, shirt and pant were recovered as per MOs.10 and 11 and from accused No.3, bloodstained jeans pant and shirt as per MOs.8 and 9 were recovered and same was sent to the concerned Department. As per the evidence of PW.24, he appointed PW.21 on 23.03.2014, but PW.21 deposed that on 22.03.2014 itself, the accused persons were apprehended at about 6.30 a.m. and thereby, there is a doubt about the recovery of MOs.1 to 3 and 8 to 13 in view of inconsistent statements of PWs.10, 18, 21 and 24. It is also relevant to state, at this stage, that Ex.P10-seizure panchanama conducted on 22.03.2014. PW.24/Investigating Officer arrested the accused persons at 12.45-1.00 a.m. along with Indica car, but PW.21 does not whisper anything about the car and even regarding bloodstained clothes as stated by PW.24. If really the accused persons were involved in the homicidal death of the deceased,
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CRL.A No. 728 of 2020they would not have worn the bloodstained clothes for more than eighteen days and it is not possible at all. The said aspect of the matter has not been considered by the learned Sessions Judge while convicting the accused persons. PW.24 further deposed that he has conducted Ex.P10/seizure panchanama in the presence of PWs.14 to 16. According to him, Indica car and blood stained clothes of the accused persons were seized. Ex.P18/seizure mahazar clearly depicts that on 22.03.2014, Indica car was standing in front of Police Station, signatures of panchas were affixed. Ex.P1/complaint clearly depicts that two persons lodged a complaint namely PW.1/Muniraju and another K.P.Prakash and it is written by one K.C.Krishna, who has not been examined. In the F.I.R., it is stated that in order to eliminate the deceased of Kallahalli Village, Umesha, Kumara, Chandra and Raghu instigated by Lokesh, Nagaraju and Sumantha, but admittedly, no charge-sheet is filed against Lokesh, Nagaraju and Sumantha and even against Chandra. Their names were left out in the F.I.R. and were not found in the complaint. PW.1 admitted that he is not aware who are these persons and thereby, again doubt arose the involvement of accused Nos.1 to 7.
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CRL.A No. 728 of 2020
28. PW.10/Jagadeesh, who is the witness to Exs.P10 and P.18. He deposed in cross-examination that he is not aware about the contents of the mahazar, the Police asked him to sign and accordingly, he signed. He does not know how many pages mahazar and before he went there, the mahazar had already drawn and he was directed to sign and hence, he was not aware of the vehicle belonged to whom and when the vehicle was brought to the Police Station and he has not seen the vehicle before.
29. PW.18/Ravi has specifically stated that there was no incident happened in the year 2014 in their village and one Sandeep had taken bid for that year and used to collect the parking charges and he is not aware whether there was any ill will between the deceased and the accused persons and thereby, the evidence of PWs.10, 18, 21 and 24 do not help to prove the recovery of MOs.8 to 13 and thereby, there is inconsistency and there are improvements. Once the prosecution not able to prove beyond reasonable doubt recovery of MOs.8 to 13, the alleged FSL report relied upon by the learned High Court Government Pleader has no consequences and cannot be believed.
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CRL.A No. 728 of 2020
30. PW.12/Chandra and PW.13/Ramadasa are the witnesses under Ex.P12/mahazar. Though PW.12 deposed that he knows the deceased and the accused persons and the deceased and himself belonged to same community. When the Police arrested the accused persons, he was summoned to the Police Station only once on 23-3-2014. Accordingly, he has given his name and address. In the cross-examination, he has admitted that he does not know the contents of Ex.P12/mahazar.
31. PW.13/Ramdasa deposed that he knows all the accused persons including the deceased, who died five years back. On 22.03.2014, the Police called him with regard to the death of the deceased to the Police Station between 9.30 and 10.00 a.m., he went to the Police Station along with Chandra, Babu and other villagers, the Police shown the accused namely Umesha, Kumara, Partha and Raghu and stated these accused persons have used the weapons for committing the murder of the deceased and asked them to become panchas. Further, he deposed that in one jeep, the accused persons and in another jeep, panchas along with the Police went near Padavanagere Cross and then seized the weapons and they wrapped in a bag and taken it. In the cross-examination, he has admitted that
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CRL.A No. 728 of 2020he has not seen what are written in the mahazar and he does not know the contents as the incident happened five years back and he has given his name and address to the Police and along with him, fifteen villagers went to the Police Station. In the cross-examination, he has further admitted that one day prior to 22.03.2014, i.e. on 21.03.2014, the Police called him and he went to the Police Station on the information that they have already arrested the accused persons. He further admitted that the Police have not given any notice previous day and only informed regarding the involvement of the persons in the homicidal death of the deceased and asked him to come to the Police Station. As per Ex.P12/mahazar was already drawn at 9.15 a.m., and he went to Police Station between 10.30 and 11.00 a.m. and thereby, the mahazar drawn by the Police is doubtful with regard to recovery of MOs.1 to 3.
32. By careful perusal of the evidence of PWs.12 and 13, mahazar witnesses as per Ex.P12, recovery of MOs.1 to 3 is also doubtful and in the F.I.R., MO.3-draggen is not specified and they have specified only regarding four long. As already stated supra, according to PW.24, PW.21 was appointed on 23.03.2014 to apprehend the accused persons, but PW.21 stated on oath that on 22.03.2014 itself at 6.30 a.m., he and
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CRL.A No. 728 of 2020his staff apprehended the accused persons and produced before the Investigating Officer, which is doubtful and thereby, the very arrest of the accused persons itself is doubtful.
33. PW.23/Ganesh, Sub-Inspector of Police, deposed that on 05.03.2014 at about 8.15 a.m., he received information from the public about the homicidal death of the deceased by some unknown person near pipeline road. He went to the spot at about 8.30 a.m. and the same was informed to the higher officers and at about 10.15 a.m., PW.1/Muniraju, who was at the incident spot, lodged a complaint at about 10.30 a.m. Accordingly, he registered a case in Crime No.46/2014 and marked Ex.P1/complaint and Ex.P22/F.I.R.
34. A perusal of Ex.P1/complaint, it was received at 10.15 a.m. and was registered at 10.30 a.m. The complaint was lodged by two persons, namely Muniraju and K.P. Prakash and written by K.C.Krishna. A plain look at Ex.P1 indicates the signatures of PW.1 as well PW.2, but P.W.23/Ganesh deposed that he does not know anything about PW.2, who has subscribed his signature at Ex.P1. Further, he has no knowledge as to when, where and why PW.2 subscribed his signature to Ex.P1. If really Ex.P1 has come into existence on that day over the spot of incident, PW.23 could have spoken
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CRL.A No. 728 of 2020more about the signature of PW2 found in Ex.P1. Therefore, Ex.P1 is a truncated and concocted document.
35. On careful reading of evidence of PWs.1, 2, 7, 21 and 24, two views are possible.
36. PW.1 deposed on oath that he is the complainant and he is not aware who is Krishna, who has written the complaint. When he was sitting near the spot, the Police obtained his signature and he does not know who has written the complaint, it contents, but the Police received his signature and he is not aware about the weapons holding by accused Nos.1, 2, 3 and 4 and what are their participation, their role in the commission of the crime. In the cross-examination, PW.1 has admitted that he knows the accused persons from childhood and they are engaged in agricultural activities. Even though PW.1 admitted that he knows the accused persons from the childhood, but failed to identify their involvement in the commission of offence. He has disclosed some names in the complaint and some names in the F.I.R. and some of the names shown in the F.I.R. have not been charge-sheeted.
37. PW.2 is the brother of the deceased. He deposed that while returning after dropping the children to School in
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CRL.A No. 728 of 2020Auto alone, at about 8.00 pm, Raghu was sitting in the driver's seat and a person had fallen down on the left side of the car, at that time, Partha, Umesha, Doundri Kumar stepped down from the car and were assaulting the person who had fallen down. In the cross-examination, he has admitted that with regard to collection of the parking charges in Venkataramanaswamy temple fare, there was quarrel between Umesha and the deceased (his brother) and the same was closed on the intervention by the Police. He has further admitted that along with PW.1/Munuraju, there were other ten to fifteen persons and he noticed the same at about 80 to 100 meters and he could not identify the persons who came along with PW.1 as he was in frightened mood and thereby, the evidence of PW.2 and the presence of PW.1 has been extinguished. It is further stated that the deceased had not participated in the bid of Venkatanarayanaswamy temple parking charges and he has no connection with that.
38. PW.7/Puttaswamaiah, father of the deceased, who deposed that on 05.03.2014, he received the information at about 7:30 a.m. regarding the death of his son at pipeline road, near rice-mill. Immediately, he went to the spot and found the injuries on the body and he has not seen his son
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CRL.A No. 728 of 2020when he was alive as they were residing separately. He has admitted that he is residing along with PW.2/Prakash. He has deposed that he is not aware what the deceased used to do for his day-to-day needs. He has deposed that the deceased was involved in real estate and used to support the persons, who invested in real estate business and thereby, he had gained lot of enemies. He has admitted that the deceased was involved in granite business and without exploring, he used to involve in all the disputes and used to resolve the problem and hence, someone from real estate business or granite business would have killed him. He further stated that when he went to the spot along with PW.2/Prakash, he has not made any statement on the spot before the Police, or in the Hospital. In the evidence of PW.2, he has not whispered whether the accused persons involved in the real estate business or granite business and thereby, the prosecution failed to prove the involvement of accused No.1 to 3 beyond reasonable doubt.
39. It is also relevant to state, at this stage, that when a common charge was made against accused Nos.1 to 7, admittedly, accused Nos.5 to 7 have been acquitted by the very impugned judgment of acquittal and the State has not filed any appeal against the judgment of acquittal.
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CRL.A No. 728 of 2020
40. On meticulous examination of evidence on record, it is clear from the evidence of PWs.1, 2, 7, 10, 12, 13, 21, 22, 23 and 24, that there are so many omissions and contradictions in the evidence of prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the Court has to take strict note thereof. On thorough reading of the aforesaid evidences of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves. It is well settled principles that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused persons and the other to their innocence, the view which is favourable to the accused persons should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A
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CRL.A No. 728 of 2020miscarriage of justice which may arise from acquittal of the guilty is no less than from conviction of innocent. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case LAXMAN v. STATE OF MAHARASHTRA reported in AIR 2002 SC 2973 and the same is reconsidered by the Hon'ble Supreme Court in its latest judgment in the case of PURUSHOTTAM CHOPRA AND ANOTHER v. STATE (GOVT. OF NCT, DELHI) reported in AIR 2020 SC 476.
41. The entire case of the prosecution to implicate the accused persons is only based on probabilities and circumstantial evidence and on the basis of the evidence adduced and documents produced on behalf of the prosecution. The glaring discrepancies in the evidence of PWs.1 and 2, who are eyewitnesses, do not appear to be credible and merely on the voluntary statements of the accused persons, i.e. Exs.P24 to 27, they cannot be convicted in the absence of corroborative evidence.
42. Admittedly, the voluntary statements recorded by the Police are not in accordance with the provisions of Section 27 of the Indian Evidence Act, 1872, and there is inconsistency in the statement made by the Police as well in the prosecution
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CRL.A No. 728 of 2020witnesses. There is so much for the gaping holes in the prosecution story based on the eyewitnesses' accounts. Doubts arising from the eyewitnesses accounts left too many question marks and too many unexplained circumstances, which contraindicated their acceptance without corroboration. Corroboration was available in the form of the documents.
43. After careful examination of the charge of murder made against the accused persons should show beyond the shadow of reasonable doubt, the shadows are dark enough to eclipse the truth. The learned Sessions Judge has ignored a number of reasonable doubts which legitimately arose on the evidence led by the prosecution and its conduct in suppressing the vital documents and witnesses, which clearly indicate that the prosecution failed to prove the guilt of the accused persons beyond all reasonable doubt. As admitted by PW.7, who is none other than the father of the deceased, the deceased used to involve not only in granite and real estate businesses without investment and gained number of enemies and there is no eyewitnesses proved by the prosecution to show that accused Nos.1 to 4 involved in the alleged offence. Inconsistency of lodging the complaint by two persons and written by one person; and for the reasons best known to the
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CRL.A No. 728 of 2020Officer, the names shown in the complaint are left out in the F.I.R. Admittedly, the learned Sessions Judge acquitted accused Nos.5 to 7 and no appeal is filed by the State. The medical evidence and scientific evidence also doubtful in the present case.
44. The learned High Court Government Pleader relied upon the dictum of the Hon'ble Supreme Court in the case of MALLIKARJUN v. STATE OF KARNATAKA reported in (2019) 8 SCC 359 with regard to discrepancies. If there are minor discrepancies with regard to the weapon used, that cannot affect the case when the very foundation in the present case is shaking, thereby the said judgment has no application to the facts and circumstances of the present case.
45. The other judgments relied upon by the learned High Court Government Pleader is BALVIR SINGH v. STATE OF MADHYA PRADESH reported in (2019) 15 SCC 599 with regard to inconsistencies between oral and medical evidence, and in the case of STALIN v. STATE, REPRESENTED BY THE INSPECTOR OF POLICE reported in (2020) 9 SCC 524 with regard to motive. Admittedly, evidence of PWs.5, 7, 18, 20, 21 not proved the motive and that there is no consistency in the
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CRL.A No. 728 of 2020medical evidence. When the motive itself is not proved by the prosecution beyond reasonable doubt regarding involvement of the accused persons and recovery of MOs.8 to 13, the said judgments have no application to the facts and circumstance of the present case.
46. The latest judgment relied upon by the learned High Court Government Pleader in the case of STATE THROUGH THE INSPECTOR OF POLICE v. LALY @ MANIKANDAN AND ANOTHER reported in 2022 LiveLaw (SC) 851 with regard to eyewitness. Admittedly, in the present case, PWs.1 and 2 have not proved themselves as eyewitnesses and hence, the said judgments have no application to the facts and circumstance of the present case.
47. In view of the specific evidence of PW.7, father of the deceased, that his son had gained so many enemies as he had involved in the real estate business, that cannot be a reason for the prosecution to prove the case beyond reasonable doubt.
VIII - Conclusion
48. For the reasons stated supra, the point raised in the present appeal has to be answered in the affirmative holding that appellant Nos.1 to 4-accused Nos.1 to 4 have made out a
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CRL.A No. 728 of 2020case to set aside the impugned judgment and order of conviction sentencing them to undergo rigorous imprisonment for life for the offences punishable under Sections 120B and 302 read with Section 149 of IPC and to undergo rigorous imprisonment for six months for the offence punishable under Section 143 read with Section 149 of the IPC.
49. Upon consideration of the facts and circumstances of the case, we are of the considered view that, the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused persons and the benefit of doubt has to be given to the accused persons and the order of conviction of the accused persons is liable to be set aside.
IX - Result
50. For the reasons stated above, we pass the following:
i) The appeal is allowed;
ii) The judgment of conviction and order of
sentence dated 27-1-2020 passed in Sessions Case No.5032 of 2014 connected with Sessions Case No.5065 of 2014 on the file of II Additional District and Sessions Judge,
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CRL.A No. 728 of 2020Ramanagara, sitting at Kanakapura, is hereby set aside;
iii) Accused Nos.1 to 4 are hereby acquitted of the charges leveled against them for the offences punishable under Sections 143, 120B and 302 read with Section 149 of the Indian Penal Code, 1860;
iv) Bail and surety bonds executed by accused
No.4 are hereby cancelled, and
v) The Registry is hereby directed to
communicate this order to the concerned Jail Authorities and the Jail Authorities are hereby directed to release accused Nos.1 to 3 forthwith, if they are not required in any other case.
In view of the disposal of the main appeal, I.A. No.1 of 2021 does not survive for consideration and accordingly, it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE bk (paragraph Nos.1 to 6) gss [paragraph Nos.7 to 17 (l)] kvk [paragraph Nos.17 (m) to 50]