Karnataka High Court
Mohana vs The State Of Karnataka on 22 October, 2024
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2024:KHC:43075-DB
CRL.A No. 283 of 2019
C/W CRL.A No. 133 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 283 OF 2019 (C)
C/W
CRIMINAL APPEAL NO. 133 OF 2021
IN CRL.A No. 283/2019
BETWEEN:
1. CHANDRA @ CHANDRASHEKARA
S/O THIRUMALAI,
AGED ABOUT 22 YEARS,
2. R GANESHA
Digitally signed by
HARIKRISHNA V S/O RAMEGOWDA,
Location: HIGH AGED ABOUT 37 YEARS,
COURT OF APPELLANTS 1 AND 2 ARE
KARNATAKA
RESIDING AT KAKANAMANE VILLAGE,
BELAGODU(HO), SAKALESHPURA TALUK,
HASSAN DISTRICT, PIN-573134.
...APPELLANTS
(BY SRI. LETHIF B, ADVOCATE FOR A1,
SRI. H.S. SURESH, ADVOCATE FOR A2)
AND:
1. STATE OF KARNATAKA
BY SAKALESPURA RURAL POLICE,
REPRESENTED BY
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NC: 2024:KHC:43075-DB
CRL.A No. 283 of 2019
C/W CRL.A No. 133 of 2021
THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED
17.01.2019 AND SENTENCE DATED 18.01.2019 PASSED BY
THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HASSAN IN S.C.NO.80/2014 - CONVICTING THE
APPELLANT/ACCUSED NO.2 AND 3 FOR THE OFFENCE P/U/S
302 AND 201 R/W 34 OF IPC.
IN CRL.A NO. 133/2021
BETWEEN:
MOHANA
S/O SUBRAMANYA,
AGED ABOUT 37 YERS,
NOW R/AT THAMILUGOWDAS
WRITER IN VINAYAKA ESTAE
KAKANAMANE VILLAGE,
BELAGODU HOBLI,
SAKALESHPURA TALUK,
HASSAN DISTRICT-34,
NATIVE OF DEEPANAGARA
THIRUVANNAMALAI,
TAMILNADU STATE-78.
...APPELLANT
(BY SRI. BUDRUNNISA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY SAKALESHPURA RURAL POLICE
HASSAN DISTRICT,
(REPRESETNED BY LEARNED
STATE PUBLIC PROSECUTOR)
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NC: 2024:KHC:43075-DB
CRL.A No. 283 of 2019
C/W CRL.A No. 133 of 2021
HIGH COURT OF KARNATAKA
BENGALURU -01.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 17.01.2019 AND SENTENCE DATED
18.01.2019 PASSED IN SESSIONS CASE NO.80/2014 U/S
302, 201 R/W 34 OF IPC ON THE FILE OF THE HON'BLE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN
AND CONSEQUENTLY, THE APPELLANT MAY BE ACQUITTED
FROM THE CHARGES AND SET AT LIBERTY.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K) These two appeals directed against the judgment of conviction and order of sentence dated 17.01.2019 and 18.01.2019 respectively passed in S.C.No.80/2014 by the learned III Addl. District and Sessions Judge at Hassan, wherein the learned Sessions Judge convicted appellants/ accused No.1 to 3 for the offence punishable under Section 302 r/w Section 34 of IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.10,000/- each for the said offence. Further, accused Nos.1 to 3 also convicted for the -4- NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 offence punishable under Section 201 r/w Section 34 of IPC and sentenced them to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs.5,000/- each for the said offence. It is directed that both the sentence shall run concurrently.
2. The factual matrix of the prosecution case is as follows:
The deceased in this case one Selvadorai @ Jhakichaan, was a close relative of PW.3-Elumalai. The accused No.4- Ambika (acquitted by the learned Sessions Judge) is the wife of deceased Selvadorai. It is alleged that, when the deceased was living away from accused No.4, she was having an extramarital relationship with accused Nos.1 to 3. After deceased came to know about the same, he questioned his wife i.e., accused No.4 and use to quarrel in that regard. As such, accused Nos.1 to 4 hatched a conspiracy on 25.10.2013 in the house of accused No.4 and decided to eliminate the deceased, since he was hurdle to their illicit relationship. In pursuance of the said conspiracy, on 26.10.2013, accused Nos.1 to 3 with a common intention to commit the murder of Selvadorai, accused No.3 -5- NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 secured him to Vinayaka Estate which belongs to CW.12, on the pretext to have a drink near watchman's shed. Accordingly, when accused No.3 and deceased were having liquor in the said place, at about 10:30 a.m., accused Nos.1 and 2 came from his (deceased) behind and assaulted him with choppers on his head, neck and committed his murder. Thereafter, accused Nos.1 to 3 dragged the dead body, put it into a pit digged in the said land and buried the same. As such, they also made an attempt to disappear the evidence.
3. Subsequently, PW.3-Elumalai has set the law into motion by lodging missing complaint on 27.10.2013 as per Ex.P16 based on the information provided by accused No.3. In the said complaint, PW.3 expressed a doubt against accused Nos.1, 2 and 4. However, the respondent-Police registered FIR in Crime No.172/2013 dated 27.10.2013 for man-missing as per Ex.P35. Later, on 28.10.2013, the respondent-Police arrested accused Nos.1 and 2 and interrogated them, recorded their voluntary statement as per Exs.P36 and 37 respectively, wherein they confessed about the commission of the crime so also they led the Police to the place where they buried the dead body. Accordingly, the respondent-Police by intimating the -6- NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 Assistant Commissioner i.e., PW.9, the Doctor i.e., PW.15 and the panchas i.e., PWs.1 to 6, went to the place where the dead body was buried in the property bearing Sy.No.34 belongs to CW.12. The accused persons shown the place and exhumation proceedings was held as per Ex.P17 and the dead body was recovered and thereafter, a spot mahazar was drawn as per Ex.P1 and the belongings of the deceased was recovered in the said place as per M.Os.1 to 7 and an inquest mahazar was also held by PW.9 as per Ex.P18. Later, PW.15-Doctor conducted autopsy over the dead body in the said place and issued postmortem report as per Ex.P24. In the meantime, PW.3 lodged another complaint as per Ex.P15 against the accused persons. Based on the said complaint, the respondent-Police registered the FIR in Crime No.173/2013 dated 28.10.2013 against accused Nos.1 to 4 for the offences punishable under Sections 302, 201, 120B and 114 r/w Section 34 of IPC and thereby produced the accused persons before the jurisdictional Magistrate and remanded them to judicial custody.
4. During the course of investigation, the Investigation Officers-PWs.21 and 22, drawn the relevant mahazars and obtained necessary documents from the concerned Authority -7- NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 and after recording the statement of material witnesses, laid the charge sheet against accused Nos.1 to 4 for the aforesaid offences before the committal Court.
5. After committal of the case before the learned Sessions Court, the learned Sessions Judge after securing the presence of accused persons framed the charges against them for the aforesaid offences and read over the same to the accused, who pleaded not guilty and claims to be tried.
6. In order to prove the charges leveled against the accused, the prosecution in total examined 24 witnesses as PWs.1 to 24 so also got marked 38 documents as Exs.P1 to P38 and got identified 16 material objects as M.Os.1 to 16.
7. After completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of material witnesses to the accused persons as contemplated under the provisions of Section 313 of Cr.P.C. and the accused persons denied the same. The defence of the accused persons is one that of total denial and false implication. However, the accused persons neither examined any witness nor got marked any documents on their behalf.
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8. After assessment of oral and documentary evidence, the learned Sessions Court acquitted accused No.4 for the offences charged against her so also acquitted accused Nos.1 to 3 for the offences punishable under Sections 120B and 114 r/w Section 34 of IPC. However, convicted accused Nos.1 to 3 for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC and sentenced them as stated supra. The impugned judgment as well as the order of sentence is called- in-question in these appeals by accused Nos.1 to 3 i.e., accused No.1 in Crl.A.No.133/2021 and accused Nos.2 and 3 in Crl.A.No.283/2019.
9. We have heard the learned counsel Smt. Budrunnisa, for appellant/accused No.1 in Crl.A.No.133/2021 so also Sri. Lethif B, and Sri Suresh H.S, for appellants/accused Nos.2 and 3 respectively in Crl.A.No.283/2019 so also learned SPP-II Sri Vijaykumar Majage, for respondent-State in both the appeals.
10. It is the primary contention of the learned counsel Smt.Budrunnisa for appellant/accused No.1 in Crl.A.No.133/2021 and Sri H.S.Suresh for appellant -9- NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 No.2/accused No.3 in Crl.A.No.283/2019 would submit that, the impugned judgment suffers from perversity and illegality since the learned Sessions Judge convicted the accused only based on surmises and conjectures without properly appreciating the evidence available on record. As such, the same is liable to be set-aside.
11. They would further contend that, none of the prosecution witnesses have deposed about the criminal conspiracy committed by accused Nos.1 to 4 to do away the life of deceased-Selvadorai. Accordingly, learned Sessions Judge acquitted accused Nos.1 to 3 for the offences punishable under Sections 120B and 114 r/w Section 34 of IPC and acquitted accused No.4 from all the charges. Further, it is the prosecution case that, accused No.3 brought liquor from Belagodu on 26.10.2013, and thereafter, he took the deceased to Vinayaka Estate on the pretext of consuming liquor, however, the prosecution has not collected any evidence/materials with regard to purchase of liquor by accused No.3 and also the seizure of motorcycle in which accused No.3 allegedly taken the deceased to the spot. Further, both the learned counsel would submit that, the motive for appellants/accused Nos.1 to 3 to
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 commit the murder of deceased-Selvadorai as per prosecution is that, they had illegal intimacy with accused No.4. To prove the same, PWs.3 and 4 have not specifically stated about the illegal intimacy of accused No.4 with accused Nos.1 to 3. Further, all accused Nos.1 to 3 are the relatives of accused No.4, more specifically accused Nos.2 and 3 are the brothers of accused No.4. In such circumstance, the motive alleged against the accused is totally not proved by the prosecution. Learned counsels would also contend that, PW.3 who set the criminal law into motion by lodging missing complaint as per Ex.P16 based on the information provided by accused No.3. The accused No.3 implicated in the crime after exhumation of the dead body of the deceased. Though PWs.3 and 4 deposed in their evidence that, accused Nos.1 and 3 were said to have shown the place of burial of the deceased, however, their evidence is contrary to each other and PW.3 stated that, huge number of publics were gathered in the said place much earlier to the exhumation proceedings. In such circumstance, the recovery of dead body at the instance of accused Nos.1 and 3 cannot be believable and not as per the law laid down by the Hon'ble Apex Court in catena of judgments. The learned
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 counsels would also contend that, the evidence of eye- witnesses to the incident i.e., PWs.7, 8 and 10 suffers from much contradictions and omissions which goes to the root of the prosecution case. There is a delay of one day in recording their 161 statement by the respondent-Police. They have not specifically stated about holding of weapons by each accused at the time of assaulting the deceased. Hence, according to learned counsels, their evidence cannot be relied. Lastly, the learned counsels would contend that the recovery of M.Os.13 to 16 under Ex.P20 i.e., the weapons used for commission of crime has also not proved for the reason that, PWs.11 and 16 the witnesses for the said mahazar partly turned hostile to the prosecution case. With these submissions, the learned counsels for accused Nos.1 and 3 prays to set-aside the impugned judgment.
12. Learned counsel Sri Lethif B., for accused No.2/appellant No.1 in Crl.A.No.283/2019 would vehemently contend that the eye-witnesses to the incident who have examined before the Sessions Court i.e., PWs.7, 8 and 10 have not deposed about the involvement or presence of accused No.2 in the alleged spot. Though the prosecution treated these
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 witnesses as hostile witnesses and cross examined them in order to prove the involvement of accused No.2, but nothing has been elicited from their mouth regarding the involvement of accused No.2 in the crime. He would further contend that, the witnesses i.e., PWs.3 and 4 for the exhumation mahazar- Ex.P17 have not stated about the presence of accused No.2 either in the Police Station or in the alleged spot. According to PWs.3 and 4, accused Nos.1 and 3 led the Police to the place of burial. The prosecution also treated these witnesses as hostile witnesses and examined them in respect of the presence of accused No.2, but nothing has been elicited from their mouth. According to learned counsel, though PW.1 deposed against accused No.2, he is a witness for spot mahazar-Ex.P1, wherein M.Os.1 to 7 were recovered. However, M.Os.1 to 7 no way connects the involvement of accused No.2 in the crime. Further, in the cross examination of PW.1, he categorically admitted that, the mahazar was drawn at the road and before he reaching the spot, the dead body of the deceased was already exhumed. Additionally, he contends that, PWs.3 and 4 the witnesses for exhumation of dead body and for the motive, have totally given a goby to their statement in respect of
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 presence of accused No.2. Further, M.O.16-T-shirt which allegedly seized at the instance of accused No.2 was not stained with blood as per FSL report i.e., Ex.P33 in item No.10. Hence, according to learned counsel, except the evidence of PW.9-The Assistant Commissioner and Investigation Officer- PW.22, absolutely no other corroborative piece of evidence is placed by the prosecution to prove the involvement of accused No.2 in the crime along with accused Nos.1 and 3. Hence, the learned Sessions Judge totally misread the evidence of witnesses and wrongly convicted accused No.2 in the crime. Accordingly, he prays to set-aside the judgment of conviction and order of sentence passed against accused No.2.
13. Refuting the above submissions made by the learned counsels for the appellants/accused Nos.1 to 3, the learned SPP-II appearing for the State would submits that, the impugned judgment under these appeals do not suffers from any perversity or illegality since the learned Sessions Judge after properly appreciating the evidence and materials available on record passed a well reasoned judgment, which do not call for any interference. He would further contend that, in the evidence of PWs.1 to 4, it is clearly stated about the
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 involvement of accused Nos.1 to 3 in the crime. Further, PWs.7, 8 and 10 the eye-witnesses to the incident have categorically deposed about the involvement of accused Nos.1 and 3. Though these witnesses have turned hostile in respect of the involvement of accused No.2, nevertheless, in view of the dictum laid down by the Hon'ble Apex Court in catena of judgments, even the evidence of hostile witness cannot be discarded in toto and the Court has to remove the reliable evidence like removing corn from the chop and to accept the evidence which is relevant in bringing home the guilt against the accused. According to learned SPP-II, when a case is based on the evidence of direct eye-witnesses, the motive and the other aspects will not play a vital role to prove the guilt of the accused. However, in the case on hand, the evidence of PWs.3 and 4 clearly establishes the motive aspect i.e., accused Nos.1 to 3 had illicit affair with accused No.4 and as such, accused Nos.1 to 3 hatched a conspiracy to do away the life of deceased-Selvadorai who is none other than the husband of accused No.4. The evidence of PWs.3 and 4 the witnesses for Ex.P17 i.e., exhumation mahazar drawn by the Assistant Commissioner-PW.9 clearly reveals that, accused Nos.1 and 2
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 have confessed in the Police Station about the burial of the dead body and thereafter, they led the Police, panchas and PW.9 to the spot and the exhumation proceedings held as per Ex.P17 in the presence of PW.9 and recovered the dead body. Though PWs.3 and 4 turned hostile in respect of presence of accused No.2, nevertheless, PWs.9 and 22 have deposed about his presence, as such, the involvement of accused No.2 is also proved by the prosecution. Learned SPP-II would further contend that, PWs.1 and 2 the spot mahazar witnesses also supported the case of the prosecution and evidence of PWs.11 and 16 clearly establishes the recovery of M.Os.13 to 16 under Ex.P20 at the instance of accused No.3. He would also contend that, the medical evidence of PW.15 and FSL report-Ex.P33 corroborates to the oral evidence of PWs.7, 8 and 10 so also the evidence of PWs.4, 5 and 9. Apart from that, PWs.21 and 22 the Investigation Officers categorically deposed about the arrest of accused and recording of their voluntary statement so also with regard to conducting investigation. Hence, learned SPP-II would submit, in such circumstances, there is no reason to disbelieve the evidence of these material witnesses. Accordingly, learned Sessions Judge rightly convicted the
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 accused for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC and sentenced them appropriately which does not call for any interference by this Court. Accordingly, he prays to dismiss the appeals.
14. Having heard the learned counsel for the appellants so also learned SPP-II for respondent in both the appeals and on perusal of the documents made available before us, the points that arise for our consideration are:
(a) "Whether the judgment under these appeals suffers from any perversity or illegality?
(b) Whether the learned Sessions Judge is justified in convicting the accused for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC?"
15. We have carefully gone through the entire evidence on record so also the documents placed by the prosecution before the Sessions Court. We also perused the impugned judgment passed by the Sessions Court. On perusal of the evidence on record, in order to prove the homicidal death of the deceased Selvadorai, the prosecution relied the evidence of PW.15-the Medical Officer, who conducted the autopsy over the dead body and issued postmortem report as per Ex.P24. On
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 careful perusal of Ex.P24, the Doctor gave an opinion that, the death of deceased was due to instantaneous death subsequent upon sharp heavy force impact sustained to neck, head and thorax. Further, it is opined that, the death was occurred between 36 to 48 hours prior to postmortem examination. The Doctor noticed 13 chop and other wounds on the dead body. He also noticed four injuries in the skull. He also opined that, the injuries mentioned in the postmortem report may be caused with M.Os.4 and 5 i.e., 2 choppers. The postmortem was conducted by the Doctor at the spot where the dead body was recovered/exhumed in the presence of Assistant Commissioner- PW.9. The Doctor specifically stated that after exhumation of the dead body, the postmortem was conducted. PW.9 also deposed to that effect. Nevertheless, PW.9 conducted inquest panachama as per Ex.P18 in the presence of PWs.1, 2 and 6. Ex.P18 also depicts 12 injuries on the dead body of the deceased. Apart from these evidences, PWs.7, 8 and 10 the eye-witnesses also deposed before the Court about the injuries caused by the accused to the deceased with M.Os.4 and 5. Hence, on a conjoint reading of the evidence of PWs.15, 9 and 22 and eye-witnesses PWs.7, 8 and 10, we are of the
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 considered view that the prosecution has proved the homicidal death of the deceased beyond reasonable doubt.
16. In order to connect the accused in the homicidal death of deceased, the prosecution mainly relied on the evidence of eye-witnesses to the incident i.e., PWs.7, 8 and 10. We have carefully perused the evidence of these witnesses. The statement of these witnesses has been recorded by the Investigation Officer on 28.10.2013 i.e., one day after the incident. These witnesses have stated in their evidence that, since they afraid about the incident, they ran away from the spot and went to coolie work to other place and they failed to inform the same to the Police on the date of incident. Hence, one day delay in recording their statement cannot be a ground to discard their credibility. Coming to the evidence of these witnesses, they have categorically stated before the Court that, on the date of incident, accused Nos.1 and 3 have taken the deceased to Vinayaka Estate belongs to CW.12 and both accused Nos.1 and 3 were assaulted the deceased with choppers. PW.8 specifically stated that, accused No.3 took the deceased to the said estate in a motor cycle and thereafter, accused Nos.1 and 3 have committed the murder of deceased
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 by assaulting him. PW.10 also reiterated the versions of PWs.7 and 8. Though the defence counsel cross examined these witnesses at length, except some minor contradictions, nothing worthwhile has been elicited from them to discard their evidence. It is relevant to state that those minor contradictions do not go to the root of the prosecution case. It is pertinent to discuss at this juncture that these eye-witnesses have failed to depose about the involvement of accused No.2 in the crime. Though they have given a statement under 161 of Cr.P.C before the Police about the involvement of accused No.2 also, but they have totally given a goby to the prosecution case to that effect in their evidence. The learned prosecutor treated them as hostile to that effect and cross examined them, but nothing worthwhile has been elicited from them about the involvement of accused No.2.
17. Apart from the evidence of eye-witnesses, the prosecution also relied the evidence of PWs.1 to 4 to prove the guilt of accused. Among PWs.1 to 4, PWs.1 and 2 are the witnesses for spot mahazar-Ex.P1, wherein the belongings of deceased recovered from spot as per M.Os.1 to 7. PW.1 stated in his evidence that, accused Nos.1 and 2 led the Police to the
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 spot and the Police have exhumed the dead body and recovered M.Os.1 to 7. Per contra, PW.2 deposed that the accused Nos.1 and 3 informed the Police about the commission of the crime and led the Police and PW.9 to the alleged spot and thereafter, recovered the dead body and M.Os.1 to 7. On perusal of evidence of PWs.3 and 4 the witness for Ex.P17- recovery/exhumation mahazar drawn by PW.9, these witnesses have deposed about the confession of accused Nos.1 and 3 before the Police about the commission of murder of deceased Selvadorai and also the burial of the dead body in the estate of CW.12. Thereafter, they took the Police and PW.9 to the said spot and the exhumation proceedings was held in the said spot and the dead body was recovered. They also deposed about the presence of the Police and The Assistant Commissioner in the said spot. They identified the belongings of the deceased. Unfortunately, both these witnesses also failed to depose about the presence of accused No.2 either in the Police Station or during the course of exhumation proceedings. Though the learned SPP cross examined these witnesses to that effect by treating them as hostile, but nothing has been elicited from their mouth regarding the presence/involvement of accused
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 No.2. In the same time, though defence counsel for accused Nos.1 and 3 cross examined these witnesses at length, except some minor contradictions, no other conclusive evidence elicited from them to disbelieve the prosecution version. PW.2 also deposed only against accused Nos.1 and 3. Though PW.1 deposed against accused No.2, on perusal of his cross examination, he categorically admitted that before he reached the spot the dead body of deceased Selvadorai was already exhumed. Further, he also admitted in the cross examination that before he reaching the spot, the Police were already present in the said spot. Moreover, PWs.1 and 2 are the witnesses for spot mahazar and recovery of M.Os.1 to 7, in our view, the sole evidence of PW.1 cannot be accepted against accused No.2. However, the evidence of PWs.2 to 4 clearly establishes the confession of accused Nos.1 and 3 before the Police and the subsequent exhumation proceedings as per their direction. Further, on careful perusal of the evidence of PWs.11 and 16, the prosecution also proved the recovery of M.Os.14 to 16 under Ex.P20. Both PWs.11 and 16 have categorically deposed that accused No.3 led the Police to Kakanamane village, Belagodu Hobli and about the recovery of empty liquor
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 bottles and also 3 shirts belongs to the accused which marked as M.Os.14 to 16. Those shirts were sent to FSL and PW.24-FSL Officer examined before the Court and FSL report marked as Ex.P33. The said report depicts that among those shirts, except item No.10 i.e., one shirt belongs to accused No.2 the other items stained with human blood. Moreover, PWs.2 and 3 have categorically stated before the Court about the recovery of M.Os.4 and 5 i.e., 2 choppers at the instance of accused Nos.1 and 3 under Ex.P1. The FSL report Ex.P33 also depicts that those M.Os.3 and 4 are stained with human blood. The Medical Officer PW.15 has opined that the injuries found on the dead body could have been caused by assaulting with M.Os.4 and 5. Hence, the medical evidence and scientific evidence corroborates with the oral testimony of PWs.7, 8 and 10 the eye-witnesses to the incident in respect of involvement of accused Nos.1 and 3 in the homicidal death of deceased Selvadorai. Though the learned SPP-II would contend that the involvement of accused No.2 also has been proved by the evidence of PW.9-The Assistant Commissioner and PWs.21 and 22-Investigation Officers, there is no corroborative evidence of independent witness to substantiate their version placed by
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 the. The Hon'ble Apex Court in the case of Pradeep Narayan Madgaonkar vs. State of Maharashtra reported in AIR 1995 SC 1930 has held that "indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency, but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony".
18. Hence, on careful perusal of the evidence of eye- witnesses i.e., PWs.7, 8 and 10, the evidence of PWs.3 and 4 i.e., witness for exhumation mahazar drawn as per Ex.P17 and the spot mahazar Ex.P1 so also the evidence of PWs.11 and 16 for the recovery mahazar Ex.P20 coupled with the evidence of Investigation Officer and The Assistant Commissioner-PW.9, we are of the considered view that the prosecution has proved the charges leveled against the accused Nos.1 and 3 beyond reasonable doubt. Though learned counsel for accused Nos.1 and 3 vehemently submitted that there are contradictions in
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 the evidence of eye-witnesses so also the mahazar witnesses, however, the Hon'ble Apex Court in the case of Raj Kumar Singh v. State of Rajasthan reported in (2013) 5 SCC 722 held in Paragraph 43 as under:-
"43. While appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being
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NC: 2024:KHC:43075-DB
CRL.A No. 283 of 2019
C/W CRL.A No. 133 of 2021
tested on the touchstone of
credibility."
It is in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence, the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused."
19. The learned counsels for the appellants/accused Nos.1 and 3 have also argued that PWs.3 and 4 are the close relatives of the deceased, their evidence cannot be relied since they are partisan witness. The Hon'ble Apex Court in the case of Ravasahebgouda Alias Ravasahebgouda v. State of Karnataka reported in (2023) 5 SCC 391, held that the evidence of sole related eye-witness can be basis for conviction, particularly when there is no vagueness in his/her testimony with respect to the act committed by the accused. The Hon'ble Apex Court in Para No.25 of the said judgment held that:
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 "25. A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even "partisan" or "interested" witness may lead to failure of justice. The principle of "falsus in uno, falsus in omnibus" is not one of general application. [Bhagwan Jagannath Markad v. State of Maharashtra [Bhagwan Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537 : (2017) 1 SCC (Cri) 189]."
20. Applying the above findings to the case on hand, we have no hesitation to say that the minor contradictions in the evidence of material witness does not go into the root of the prosecution case and the same cannot be eschewed from the other material evidence. The another contention raised by the learned counsel for accused Nos.1 and 3 that the evidence of PWs.3 and 4 cannot be relied for the reason that they are the partisan witness i.e., the relatives of the deceased.
21. Further, learned counsels for accused Nos.1 and 3 have also relied the judgment of Hon'ble Apex Court in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra reported 1984 (4) SCC 116, whereby the Hon'ble Apex Court laid down the guidelines to prove the case based on
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 circumstantial evidence. We have no quarrel in the dictum laid down by the Hon'ble Apex Court in the said judgment. However, the said judgment does not applicable to the case on hand for the reason that, the case on hand is not rests on circumstantial evidence only. There are 3 eye-witnesses to the incident i.e., PWs.7, 8 and 10 clearly supported the case of the prosecution as against accused Nos.1 and 3 as discussed supra.
22. Hence, on overall perusal of the evidence discussed supra and the evidence of Investigation Officer, we are of the considered view that the prosecution has proved the guilt of accused Nos.1 and 3 beyond reasonable doubt and the learned Sessions Judge rightly convicted them for the offences punishable under Sections 302, 201 r/w Section 34 of IPC. However, the prosecution failed to prove the involvement of accused No.2 in the commission of crime and his presence at the place of exhumation. As discussed supra, the eye-witnesses and other material witnesses have turned hostile in their evidence in respect of accused No.2, the learned Sessions Judge misread the evidence of those witnesses and wrongly convicted accused No.2. It is well settled position of law that benefit of doubt belonged to the accused. It is trite that
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between "may be" and "must be". Our view is fortified by the law laid down by the Hon'ble Apex Court in the case of Narendra Singh v. State of M.P., reported in (2004) 10 SCC 699.
23. On careful perusal of the entire material on record, the prosecution failed to prove the guilt of accused No.2 beyond reasonable doubt. In that view of the matter, it requires interference in the impugned judgment of conviction in respect of accused No.2 i.e., appellant No.1 in Crl.A.No.283/2019. Accordingly, we answer the point raised above in partly affirmative and proceed to pass the following:
ORDER i. The Crl.A.No.283/2019 filed by accused Nos.2 and 3 is allowed-in-part.
ii. The judgment of conviction and order of sentence dated 17.01.2019 and 18.01.2019 respectively passed in S.C.No.80/2014 in respect of accused No.2-Chandra @ Chandrashekhar i.e., appellant No.1 is set aside and confirmed
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 in respect of accused No.3-R.Ganesh i.e., appellant No.2.
iii. The appellant No.1/accused No.2-
Chandra @ Chandrashekhar is acquitted
for the offences punishable under
Sections 302, 201 r/w Section 34 of IPC.
iv. The bail bond executed, if any, by the
appellant No.1/accused No.2 shall stands cancelled.
v. If the appellant No.1/accused No.2 has deposited any fine amount, the same shall be ordered to be refunded to him on due identification.
vi. Crl.A.No.133/2021 preferred by accused No.1/appellant-Sri Mohana is dismissed.
vii. Consequently, the judgment of conviction and order of sentence dated 17.01.2019 and 18.01.2019 respectively passed in S.C.No.80/2014 is confirmed against appellant/accused No.1-Mohana.
viii. Registry is directed to forward the operative portion of this order to the Jail Authorities of Central Prison, Bangalore to release appellant No.1/accused No.2-
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NC: 2024:KHC:43075-DB CRL.A No. 283 of 2019 C/W CRL.A No. 133 of 2021 Chandra @ Chandrashekar, forthwith, in case if he is not required in any other case.
ix. Registry is directed to send back the trial Court records along with copy of this judgment to the trial Court, forthwith.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(RAJESH RAI K) JUDGE HKV List No.: 1 Sl No.: 8