Karnataka High Court
Mahantesh S/O Srimant Khainur vs The State Through Sindagi Police ... on 9 March, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR
CRIMINAL APPEAL NO.200029/2023
BETWEEN
SRI MAHANTESH S/O SRIMANT KHAINUR
AGED 43 YEARS, OCC: AGRICULTURE
R/O.BAGALUR, TQ: SINDAGI
DIST: VIJAYAPUR ...APPELLANT
(BY SRI RAJESH G.DODDAMANI, ADVOCATE)
AND
1. THE STATE
THROUGH SINDAGI POLICE STATION
NOW REPRESENTED BY
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
AT KALABURAGI BENCH.
2. SRI BHIMARAYA
S/O.LAKKANNA DODDAMANI
AGE: 47 YEARS, OCC: AGRICULTURE
R/O.BAGALUR, TQ: SINDAGI
DIST. VIJAYAPURA. RESPONDENTS
(BY SRI PRAKASH YELI, ADDL. SPP., FOR R1, R2 IS
SERVED)
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THIS CRIMINAL APPEAL FILED U/S.374(2) BY THE
ACCUSED PRAYING TO CALL FOR RECORDS AND EXAMINE
THE RECORDS IN SPECIAL CASE NO.49/2007 PASSED BY
SPECIAL JUDGE/IIND ADDITIONAL SESSIONS JUDGE,
VIJAYAPURA DATED 18.02.2010 AND CONSEQUENTLY SET
ASIDE THE JUDGMENT OF CONVICTION DATED 18.02.2010
PASSED ON SC NO.49/2007 AND ACQUIT THE ACCUSED FOR
THE OFFENCES UNDER SECTION 302,376 R/W.151 OF IPC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
RAMACHANDRA D.HUDDAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant-accused has preferred this appeal under Section 374(2) of Code of Criminal Procedure (for short 'Cr.P.C') being aggrieved by the judgment of conviction dated 18.02.2010 passed by the II Additional Sessions Judge, Vijayapura in Sessions Case No.49/2007.
2. The brief and relevant facts leading up to this appeal are as under :
That, complainant-PW.1 Bhimaraya Dodamani initially lodged a complaint on 28.6.2007 as per Ex.P.1 stating that he is resident of Bagalur Village and Coolie by profession. His father had two wives. His father's first wife is Rukmini. The complainant is the only son born to Rukmini. It is stated that 3 his mother when he was a child left him and went away from the house. It is further stated that his father married second wife Mahadevi. Out of the wedlock of his father and Mahadevi, two children are born namely Bhagamma and Shruthi. His step mother and his father with their children are residing together.
3. It is further stated that, on 25.6.2007, there was a marriage of Channamma, the daughter of maternal uncle Lakshman Bhimsi Kattimani of his step mother-Mahadevi at Kolkumatagi village. Therefore, his step mother Mahadevi went to Kolkumatagi village to attend marriage. While returning from there on 27.6.2007, when they were standing at Kolkumatagi cross, at that time, she noticed a red colour tractor coming from Maratagi Village towards Bagalur village. The Driver was alone in the said Tractor. His step mother Mahadevi and his sister Shruthi aged three years boarded the tractor which was going towards Bagalur village. Smt.Savitha D/o.Baganna Kadimani and Smt.Channamma W/o.Prabhu Singe were present when Mahadevi and Shruthi boarded the 4 tractor. Further it is stated that Sri Mahadevappa S/o.Kenchappa Arekere of Tea Shop in Kolkumatagi village has seen his step mother sitting in the Tractor which was heading towards Bagalur village. The Driver of the tractor was in the high speed and driving the tractor in a rash and negligent manner on the canal road towards Bagalur. Because of rash and negligent driving of the said tractor, the said Mahadevi fell down from the tractor and sustained injuries and she died on the spot.
4. It is further stated that the driver of the said tractor went away from the said place. This incident was witnessed by one Kallappa Sharanappa Madar a shepherd of his village and later he informed the complainant about the said accident. Thereafter, the complainant and his family members went to the said place and noticed the presence of dead body of Mahadevi. They also noticed the blood coming from the right ear and injuries on her chest as well as shoulder. There were abrasions on her back and injuries were also seen on the body of Mahadevi.
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5. It is further stated in the complaint that he came to know that, the said incident must have taken place at about 5.00 p.m. on the day before the complaint was given i.e. on 27.6.2007. The complainant further stated that, Shruthi who was traveling with his step-mother Mahadevi in the tractor had not sustained any injuries on her person. He further stated in the complaint that, since it was night hours and raining when he came to know of the incident on 27.6.2007, he went to police station on 28.6.2007 and lodged the complaint against the driver of the Tractor and prayed to take action according to law. It is further alleged in the complaint that, the incident occurred near the landed property of one Shanthappa Shivappa Sonnad on the canal road.
6. Based on the said complaint, crime was registered under Sections 279, 304A of IPC and 187 of MV Act. The criminal law was set in motion by registering Crime No.140/2007 of Sindgi Police Station.
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7. It is the further case of prosecution that on 30.6.2007, complainant gave his further statement before the Police stating that, on 28.6.2007, he has lodged a complaint against the driver of the Tractor. It is further stated by him that he came to know from Kallappa that when his step mother and his sister were travelling in the Tractor at that time, the driver of the said tractor i.e Mahantesh S/o.Srimanth Khainur-appellant herein had committed rape on her and murdered her.
8. Based on the further statement of the complainant, the relevant provisions of Section 302 of IPC were inserted in the FIR and sent to Court.
9. The initial complaint was received by one D. Hulugeppa, S/o.Hanamantappa, PSI PW.21 who was on duty at Sindagi police station. On 28.6.2007 at 12.30 p.m., it was registered as per Ex.P.10 F.I.R. Thereafter, as per the direction of Dy.SP, he arrested the accused and produced him before one Shri Rajashekhar, S/o.Kasnappa Nayak PW.22 who was Dy.SP, Indi at that time. He took further 7 investigation of the case on 1.7.2007. On that day, at about 9.00 a.m., accused voluntarily agreed to show the spot. He went to the spot along with Panchas by name Tammanagouda S/o.Basavannappa Biradar (CW14) prepared the Panchanama as per Ex.P7. IO went to Kolkumatagi village with the Panchas and in their presence, he recorded statement of complainant and so also recorded the statement of CW.11, Prakash, CW.12 Basappa S/o.Siddappa Halli, CW.13 Lakkappa S/o.Saibanna Harijan and CW.17, Jagadev, S/o.Sidagond Medegar. Thereafter, he sent the accused for medical examination. He produced him before the Court and accused was remanded to the judicial custody. IO requested Tahsildar, Sindgi to issue caste certificate of the complainant and also accused. He sent a requisition to PWD authorities for preparing the sketch of the scene of offence, sent the dead body for post mortem. Thereafter, dead body was handed over to the relatives of the complainant.
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10. On 21.7.2007, PW.22 received the Post Mortem Report marked at Ex.P11. Further he received the report regarding the potentiality of accused of performing sexual intercourse from the Medical Officer marked at Ex.P8. On the same day, he received the caste certificates marked at Ex.P13 to P15. Further he recorded the statements of CW.18 and 19 Narasimha and Dr.Manohar regarding articles seized while conducting the post mortem. He obtained the Record of Rights of Sy.No.44/2 of Bagalur Village marked at Ex.P17. He then sent a requisition to the Medical Officer to give opinion regarding the injuries on the neck of the deceased Mahadevi which he received on 10.9.2007. Obtained the opinion of the Medical Officer stating that death was by manual strangulation marked at Ex.P12.
11. After completion of the investigation, Investigating Officer has filed the charge-sheet against the accused person for the offences punishable under Sections 376, 302, 201 IPC and Sec.3 (2) (v) of SC/ST (Prevention of Atrocities) Act before the jurisdictional Court i.e.II Additional District and 9 Sessions Judge, Vijayapur (hereinafter referred to as `Sessions Judge' for short). After filing of the charge-sheet, the Sessions Judge took cognizance of the aforesaid offences, registered the case in Special Case No.49/2007. Copies of police papers were supplied to the accused as contemplated under Section 207 of Cr.PC. Accused was remanded to the judicial custody from time to time.
12. After hearing both side, the learned Sessions Judge, framed the charge against the accused person for the offences under Sections 302, 376, 201 of IPC and Sec.3 (2)
(v) and Sec.3(1)(xii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Accused pleaded not guilty and claimed to be tried.
13. To prove the guilt of the accused person, prosecution in all examined 24 witnesses as PW.1 to 24 and got marked Exs.P.1 to P.20 along with MOs.1 to 5. During the course of cross-examination, the portion of the statement of PW.2 are marked as Ex.D1 to D7 and closed the prosecution evidence.
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14. After closure of prosecution witnesses, the accused was questioned under Section 313 of Cr.P.C so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence.
15. The learned Sessions Judge having heard the arguments of both sides and having perused various records, vide judgment dated 18.02.2010 convicted the accused for the offences under Section 302, 376 R/w.511 of IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.500/- for the offence under Section 302 IPC. Further, the Sessions Judge sentenced the accused to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.500 for the offence punishable under Sec.376 read with Section 511 of IPC and in default of fine, he shall undergo simple imprisonment for fifteen days. Further, ordered that the period already spent in custody, shall be given set off under Section 428 of Cr.PC. 11
16. It is this judgment of conviction and sentence passed by the Sessions Judge has been challenged by the appellant-accused by filing this appeal, on the following grounds:
That the impugned judgment and order of conviction and sentence recorded by learned Sessions Judge is contrary to law, facts and evidence on record. The trial Judge, while passing the impugned Judgment and order of conviction of sentence has committed an error and it has resulted in miscarriage of justice. There is no proper assessment of evidence.
17. The complaint is lodged by the complainant stating as accidental death of deceased-Mahadevi. The name of the appellant is not forthcoming in the FIR. The entire case of the prosecution is based on circumstantial evidence and consequently failed to prove the guilt of the accused. The prosecution has examined PW.2 as last seen eye witness of the said incident. Initially PW.1 lodged a case of homicidal death based on the information given by PW.2. However, it is 12 alleged by the prosecution that subsequently PW.2 has cooked up story of rape by the appellant and deceased raising hue and cry. This conduct of PW.2 in giving contradictory versions about the very same incident clearly goes to show that he is a planted witness and the prosecution has falsely implicated the appellant. The trial Court has totally ignored the inconsistencies and the contradictions in the evidence of the prosecution witnesses and has given undue weightage to the such witnesses. Further, it is urged that the trial Court has erred in convicting the appellant/accused only on the basis of assumptions and presumptions. Therefore, amongst other grounds, it is prayed to set aside the order of conviction and sentence.
18. After filing of this appeal, notice of the same was issued to the respondents. Learned SPP took notice of this appeal. Notice to the complainant is served Records of the trial Court are secured.
19. We have heard the learned counsel of both the side and meticulously perused the records.
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20. It is the specific case of the prosecution that, though initially the complaint was lodged by the complainant PW.1 alleging the accidental death of deceased but, subsequently as per say of PW.2 that, when deceased Mahadevi was travelling in the tractor being driven by the accused, the accused turned the tractor in Bagalur Cross and stopped the Tractor near the canal. One lady and her daughter were in the Tractor. He saw the accused catching hold of the sari of that lady and dragged her. He says, he saw the incident from 40 to 45 ft. distance. The accused got down the lady from the Tractor and committed rape on her. So also throttled her neck and because of that she died. Thus, it is alleged by him that, accused murdered the deceased. In this case, PW.2 is the only witness according to the prosecution who has seen the said incident. So also, some other witnesses have been cited as last seen witnesses they are, Savitha Kadimani and Chandrakanth Kadimani examined as PWs. 4 and 8.
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21. Learned counsel for accused-appellant submits that, in view of discrepancy in the evidence of prosecution witnesses, the prosecution has utterly failed to prove the guilt of the accused. The evidence so adduced is unworthy of credit and has to be disbelieved. He prays for acquittal of accused.
22. As against this, the learned SPP Sri Prakash Yeli submits that, in view of evidence of PW.2 so also last seen witnesses by name Savitha who came to see off Mahadevi would show that, she has last seen her sister boarding the tractor driven by accused. Therefore, her evidence has to be accepted and conviction and sentence is justified.
23. To appreciate whether the prosecution has established the guilt of the accused beyond all reasonable doubt, we have to read oral and documentary evidence led by the prosecution.
24. PW.1 Bheemaraya is the complainant, admittedly is not an eye witness. He has stated that, he came to know about the incident from PW.2 Kallappa who was grazing 15 sheep in the land at the relevant time. According to his evidence, on the next day of the incident, Kallappa came to him and told him that he saw his mother Mahadevi along with her three year old daughter travelling in the tractor. Later on he went to see his sheep which were spread. It is his evidence that, the said incident has taken place at about 5 pm on the previous day. He states, immediately he went to the said place and noticed that his step-mother Mahadevi sustained injuries on her both ears and the said ears were torn, blood stains around the neck were seen and saree was torn and there were injuries on her chest. According to his evidence, police came and thereafter the dead body was shifted by the Police for post mortem. He states `Karimani sara' and `Tali' were found on the person of the deceased.
25. The prosecution declared this PW.1 as a hostile witness. He has been cross-examined by the prosecution. But, he says he has seen the dead body of Mahadevi and came to know about accident.
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26. According to his evidence, immediately after the incident, he has given a complaint stating it was an accidental death and later, after hearing from Kallappa PW.2, he says, it was rape and murder. Initially complaint was filed alleging that, there was accidental death of deceased Mahadevi. Thereafter, he further deposed that, two days after the incident, he came to know that, when his mother was travelling in the tractor driven by the accused, he made Mahadevi to get down from the tractor and committed rape on her. On reading of evidence of PW.1, it shows that, his evidence is full of embellishments, contradictions, omissions and discrepancies. Therefore, no evidentiary value can be attached to the evidence of PW.1, unless it is corroborated by independent witnesses.
27. PW.2 Kalappa is examined by the prosecution who is branded as an eye-witness. According to his evidence, he knows the complainant. The distance between his house and the house of complainant is about 400 to 500 ft. He has stated that, one year 2 to 3 months back as on the date of 17 his examination-in-chief, one Mahadevi died. He was grazing the sheep at about 5 p.m. on the date of incident near the land of Shantappa which is situated nearby canal road. That canal road runs from Kulekumatagi village to Yatanur. He deposed that, at that time, accused came driving the red colour tractor on the canal road from Kulekumatagi side. Accused turned his tractor in Bagaloor cross on canal road and halted the tractor. In the said tractor, one lady with her three year kid was sitting. There accused caught hold of saree of that lady and dragged. He saw the said incident from a distance of 40 to 45 ft. He says, in between himself and the place of incident, some bushes were grown. The accused got down that lady from tractor. Accused attempted to molest that lady. That lady raised voice 2-3 times. At that time, it was drizzling and his sheep spread in that area in the neighbour lands. He says crying voice of that lady stopped all of a sudden. He states when he came back after collecting the sheep, on the canal road, that lady was killed and thrown away. He says, the accused made the child to sit nearby the dead body and accused went away with his tractor. He says, 18 then he went near the dead body and found that the dead body is that of Mahadevi W/o.Lakkappa i.e. step-mother of complainant. Further he states, he went to the house of complainant and informed the complainant stating that his mother fell down while travelling in a tractor. He further deposes that, two to three days later, he went to the house of complainant and told before him the real story stating that, accused dragged saree of Mahadevi and got down Mahadevi from the tractor and molested her and also committed murder. He states that, being afraid of the accused, he did not tell the real story on the first day.
28. Thus, PW.2 being branded as an eye-witness, has given quite inconsistent evidence with regard to the incident. He says, being afraid of the accused he did not tell the real story on the first day, thereafter, he goes and informs the complainant about the real story. His conduct has to be seen. Natural conduct of human being is to inform the real fact to the relatives about the incident. He knows PW.1 complainant. He would have narrated the real story if at all he has seen 19 the alleged incident of rape and murder of deceased Mahadevi in the hands of accused. Thus the story set up by PW.2 cannot be believed in the absence of other corroborative evidence. He is the sole eye-witness to the alleged incident. But his evidence cannot be accepted as a gospel truth.
29. It is elicited in the evidence of PW.2 in the cross- examination that, distance between himself and spot was about 300 to 400 feet but, in his examination-in-chief, he has stated that it was 40 to 45 feet. There is contradiction in his say. Further PW.2 says, after hearing the screaming voice, he rushed to the spot immediately. But, further he says that, the incident took place on that day in between 4 and 5 p.m. According to him, nobody instructed him to state the time of the incident. He says canal road is called as Kulekumatagi to Yatanur village. He says, after 30 minutes accused went away along with his tractor. Thereafter, he came to spot and saw the dead body of a lady found fallen on the spot. He did not notice the injuries over the dead body on 20 that day. This evidence of PW.2 spoken in the cross- examination is quite contrary to his statement i.e. what he has said in his examination. If such an evidence is adduced, it requires a close scrutiny and cannot be accepted.
30. It is further elicited that, he went to his house and after leaving his sheep in his house, went to the house of complainant at about 6.30 p.m. and in the house of complainant, his father and grand mother of complainant were present. He told before Lakkappa (father of complainant) that Mahadevi fell down from the tractor by jumping and died. At that time, complainant was not present in the house. After informing the same before the father of the complainant, he returned to his house. But, the complainant PW.1 states that on the following day, PW.2 has informed him about the incident stating that accused had raped and murdered deceased Mahadevi. This evidence of PW.2 is contrary to the case of the prosecution.
31. He states that, he has not stated before the police as per Ex.D1 to D6. As per his evidence, there was a distance 21 of about 300 to 400 feet from him to the place of incident. If that is so, it is not at all possible to identify the person from such a long distance. His evidence is quite unnatural so as to accept it as true.
32. The evidence of PW.2 shows that he is not a trustworthy witness to be believed as a person who has seen the alleged incident. He has changed his versions. Therefore, evidence of PW. 2 will not come to the rescue of the prosecution.
33. PW.3 Sangawwa, is the mother of deceased- Mahadevi. She is a hearsay witness. Based upon the information she received from others, she has stated before the Court that, accused has committed rape on her daughter and murdered her. As her evidence is hearsay evidence, it cannot be accepted as she is not a trustworthy witness. Only to the extent that she is mother of deceased, we believe her evidence.
34. PW.4 Savitha is a witness who is niece of deceased. Deceased was the elder sister of her father i.e. she is aunt of 22 PW.4. As per case of the prosecution, the deceased Mahadevi was seen by PW.4. According to the evidence of PW.4 about one year 6 months back to the incident, deceased Mahadevi left Kulekumatagi village to go to her husband's village i.e. Bagalur. She has stated that, herself and Channamma for whose marriage deceased went to Kulekumtagi Village, together went to see off deceased- Mahadevi upto Bus Stand at Kulekumatagi village. On that day about 2.00 p.m. Mahadevi boarded the red colour tractor having red colour which was going towards Bagalur. The accused was driving that tractor on that day. She has stated that after leaving the deceased, she went back to her agricultural land.
35. The learned Public Prosecutor submits that, she is the last seen witness. She has seen deceased boarding the tractor driven by the accused at 2.p.m, therefore, her evidence has to be accepted. It is highlighted by the learned Public Prosecutor that evidence of PW.4 is quite natural and it can be accepted. But, the other corroborative evidence is not 23 forthcoming in this case. It is in the evidence of PW.4 that on the next day, PW.4 came to know that somebody committed rape and murdered Mahadevi. Police came and enquired her. According to her, she has told before the Police while sending Mahadevi, Mahadevi told them that she will go in the tractor and went in the tractor. Along with Mahadevi, a small female child was there. She has been declared as hostile witness by the prosecution.
36. She has been cross-examined by the Public Prosecutor. In the cross-examination, she has stated, at about 4 p.m. on 27.6.2007, they were present when Mahadevi boarded the tractor which was driven by the accused near Bagalur cross on a road situated on the side of Nala and later it came to their notice that Mahadevi died on account of jumping from the tractor by falling on the ground and on the next day, they went to spot and saw the dead body of Mahadevi. Further in her cross-examination she has stated that she came to know from one Kallappa Madar that on the day of incident while Mahadevi was travelling in the 24 tractor of the accused near the cross of nala road, accused stopped the tractor and dragged her saree and got down from the tractor and fell her down and committed rape near the land of Shantappa Sonnad. She further says, when she raised her voice, killed her.
37. On the basis of hearsay information i.e. from Kallappa Madar who is PW.2 she came to know about the said incident. It is elicited in the cross-examination of PW.4 that, herself and other witnesses came to Court in a jeep and she has stated that complainant hired the jeep and brought them to the court on that day. On the instructions of complainant, this PW.4 must have given her evidence. Though she has denied that PW.4 has tutored her, but, it cannot be disbelieved that she has not been tutored. This possibility cannot be ruled out. Though this witness is alleged to be a last seen witness, her version cannot be accepted as it is contradictory in nature. She has stated the whole story based on the information given by PW.2-Kallappa. Therefore, we disbelieve the evidence of PW.4.
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38. PW.5 is one Madiwalappa who is resident of Bagalur doing agriculture and business. The tractor which is involved in this incident is standing in the name of his son. He states that, accused was driving the tractor on that day and the tractor is marked as MO.5.
39. Learned SPP submits that PW.5 being the owner of the tractor having knowledge of incident, his say has to be believed. The fact that PW.5's say as owner of the tractor is not denied by the defence. No doubt, PW.5 has spoken before the Police that, tractor belongs to him marked as MO.5. But, it does not mean that, the statement of PW.5 has to be accepted to connect the accused to the alleged incident. He is only the owner of MO.5 tractor.
40. PW.6 is Shantappa Sonnad of Bagalur village is the land owner where the dead body of Mahadevi was lying. He has stated that he came to know of the incident through Kallappa Madar. He has stated in his cross-examination that he does not know how Mahadevi died and who committed 26 rape on Mahadevi. Thus, evidence of this witness cannot be accepted to connect the accused to the alleged incident.
41. PW.7 is one Laxman of Kulekumatagi village doing agriculture. He has stated that, deceased Mahadevi was the daughter of his elder sister. He has stated that he came to know through his daughter Channamma that deceased Mahadevi boarded the tractor and next day he came to know about murder of Mahadevi. He says that, somebody must have assaulted and thrown the dead body on the road and further stated before the police that the accused has committed rape on Mahadevi and assaulted and done to death and threw the dead body on the road. In his cross- examination he has stated that, he came to know of death of Mahadevi only through Kallappa Madar PW.2. He has stated that Mahadevi came to his village to attend the marriage of his daughter Channamma and the time she left for Bagalur village it was about 3 to 3.30 p.m. on the next day of marriage. We find quite inconsistency in the evidence of this 27 witness with regard to the time the deceased left the said village.
42. PW.8 Chandrakant Kademani and PW.9 Parashuram are Panchas who were present at the time of Inquest Panchanama. They have stated that himself, Parashuram and Lalitabai were present. On that day, it was raining so there was total wet around the dead boy and broken glass bangles were also fallen nearby the dead body. They say that, while drawing inquest panchanama, those glass bangle pieces were seized. Inquest Panchanama is marked as Ex.P3 and the glass bangles were marked as MO.4. To the extent that PW.8 was present at the time of drawing inquest Panchanama, we believe their evidence.
43. PW.10 and 11 are Siddanna and PW.11 Prakash are co-panchas who have signed the seizure Panchanama of tractor at Ex.P6. According to them, they are seizure panchas of tractor. Seizure of the tractor is not disputed by the defence. Therefore, to the extent of seizing of the tractor, we believe the evidence of PWs 10 and 11.
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44. PW.12 Basappa of Bankalagi village is a panch to Ex.P7. Since he turned hostile, prosecution prayed for his cross-examination. Though severe cross-examination is directed to PW.12, nothing is elicited. Therefore, we disbelieve the evidence of PW.12.
45. PW.13 Lakkappa is husband of deceased Mahadevi. He has deposed in his examination-in-chief that, about one year eight months back, his second wife Mahadevi died. Two days' prior to the incident, his wife went to Kulakumatagi village to attend marriage of her relative. After the marriage on the next day, she was coming towards Bagalur village and while she was waiting for vehicle to come over to Bagalur at that time, one tractor loaded with sand came and that tractor was going towards Bagalur village and driver of tractor halted the tractor and picked his wife to give drop to Bagalur as a passenger. He has learnt all this through his son who is the complainant in this case.
46. As per his evidence, he has learnt the death of his wife Mahadevi through PW.1-his son and complainant, PW.2 29 Kallappa and PW.4-Savitha. He has not seen the incident directly. His is a hearsay witness in this case. So the evidence of PW.13 can be believed to the extent that he came to know the death of his wife from PW.1.
47. PW.14 Tammanagouda Biradar is also a co-panch who has signed Ex.P7. This witness has also been turned hostile. Nothing worth is elicited from his cross-examination.
48. PW.15 is the Doctor by name Dr.Sanganna Chikkalaki who, at that relevant point of time was working as Medical Officer, CHC, Sindagi. He examined Mahantesh Kahinoor who is accused in this case. Accordingly, he issued a certificate stating that accused is capable of performing sexual intercourse. This fact is not denied by the defence. He issued certificate as per Ex.P8. To that extent, we believe the evidence of PW.15.
49. PW.16 is Vijay Georga who is Motor Vehicles Inspector in RTO Office, Bijapur since 25.4.2006 who inspected the tractor involved in the incident and issued a report vide Ex.P9. He has opined that the accident was not 30 due to any mechanical defect. Though this witness was cross-examined by defence, nothing is elicited in the cross- examination. In this case, tractor has been seized to find out whether the accident has occurred due to mechanical defect in the tractor. The said issue has not been pressed into service by the prosecution as per further statement of PW.1.
50. PW.17, Jagadev Medegar is a Police Constable. He was entrusted with the duty of taking the dead body of deceased Mahadevi for post mortem examination. Accordingly, he carried the same and handed over to the concerned MO for PM examination. To the extent of taking the body for post mortem examination, the statement of PW.17 Police Constable is to be believed. He has stated that on instructions of CPI, he took the dead body for PM mortem, seized the clothes under Panchanama and after PM, he handed over the body to the relatives and took receipt. He handed over MOs.1 to 3 to his Officer for further investigation in this case. To that extent, we believe his statement.
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51. PW.18 Narasimha working as Police Constable, Sindagi Police Station. He has stated that on 28.6.2007, he was entrusted with the duty of handing over FIR and complaint to the jurisdictional Magistrate. He collected FIR and complaint at 1.30 p.m. on that day and handed over the same to JMFC, Sindagi at 3.00 p.m. Said FIR is marked as Ex.P10. To the extent of handing over of FIR to the jurisdictional Magistrate by PW.18 can be accepted. Therefore, we believe his evidence.
52. PW.19 is Dr.Manohar Karnal working as Medical Officer, PHC, Sindagi during the year 2006-2007 who conducted post mortem examination over the dead body of deceased Mahadevi as per requisition received from CPI, Sindagi. He has stated that he went to Bagalur village and conducted post mortem in an open area and he observed as follows:
"1. It was a dead body of a female moderately built and nourished. Rigor mortis present all over the body. Postmortem stain present over the back. Nail beds are bluish, skin over the palms and solar is wrinkled and bleeched. Blood clots are present in right ear and 32 nostrils. Right eye is opened, left eye is closed. Sand weed and mud stains present all over the body at places.
He has found the following external injuries:
1. Lacerated wound over upper part of right mastoid right side of back of ear behind right pinna measuring 4 cm x 1 cm x bone depth.
2. Blood clots present. Right pinna lacerated at its lower lobule 2 cm x ½ cm.
3. Soft tissue around the front teeth lacerated at places blood extravassated.
4. Pressure abrasion over left side of neck at the level of middle or thyroid cartilage 4 cm from midline.
5. Contused abrasion over right side of middle of front of neck 3 number placed one below the other measuring 1 cm x 1 cm each.
6. Pressure abrasion over the back of right shoulder measuring 6 x 6 cms.
7. Multiple contused abrasion over the back of the chest across the midline over an area of 20 x 15 cms.
3. On dissection of dead body, I noticed:
1. Blood extra vassated over right temporal area
2. Skull: Intact and normal
3. Sinal sheed is intact and normal 33
4. Brain and spinal cord: Intact and congested
5. Head and Lungs, Spleen level, long intestine, small intestine normal
6. Kidneys, Urinary bladder were normal I am of the opinion that the death is due to asphyxia as a result of compression over the neck. Time of death is 12 to 24 hours prior to P.M. Examination. I have conducted p.m. examination on that day at 3.45 p.m. to 5.45 p.m. Now I see the P.M. Report . It is marked as Ex.P11. My signature is at Ex.P.11(a)."
53. Further, the doctor has stated that he cannot say the specific time at which death took place. But he can say the range of time of death approximately. To the extent of conducting post mortem on the dead body of deceased Mahadevi, the evidence of PW.19-Doctor has to be accepted. Though there is allegation committing rape on deceased by the accused, in such an event, no such injuries are stated by this Doctor. In the absence of corroborative evidence, we believe the evidence of PW.19 to the extent of conducting post mortem.
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54. P.W.20 Mahantesh Yaranal, was an AE in Sindagi Sub Division , PWD since 2006. As per request of CPI, Sindgi, he visited the scene of offence. The place was shown by IIC No.732 by name Kudagi. The spot is situated in Bagalur on canal road side of Moratagi to Bagalur village on the bank of canal. He drew sketch and identified the sketch.
55. To the extent of visiting the spot and identifying the sketch, we believe the evidence of PW.20.
56. PW.21-D.Hulagappa was the Police Sub- Inspector at the relevant point of time who registered the crime initially in Crime No.145/2007 under Section 279 and 304(A) of IPC and Section 184 of the Motor Vehicles Act based upon the complaint Ex.P.1. He prepared the first information report as per Ex.P.10 and set the criminal law into motion. Thereafter, he handed over the investigation to Deputy Superintendent of Police on 01.07.2007. This fact of registering the crime initially for the aforesaid offences is not denied by the defence. Thereafter, as per the further statement of the complainant, the offences punishable under 35 Sections 302 and 201 of IPC are inserted. To the extent of registering the crime, the evidence of this PW.21 is to be believed.
57. PW.22-Rajashekar Kasanappa Nayak was the Deputy Superintendent of Police at the relevant point of time. On taking the further investigation, he has conducted the panchanama of the scene of occurrence and after completion of investigation he has filed the charge-sheet.
58. This PW.22 being the Investigating Officer, his evidence is to be accepted to the extent that he has conducted further investigation and filed charge-sheet. In the absence of corroborative evidence, the evidence of the police officers become formal in nature.
59. PW.23 - Riyazahamad was the Head Constable at the relevant point of time and he showed the scene of occurrence to the Engineer of Public Works Department, who has prepared the sketch. To the extent of showing the scene of occurrence the evidence of PW.23 is to be accepted. 36
60. PW.24 - Vithal Parashuram Jagali is the CPI, who has recorded the statements of some of the witnesses and sent the dead body to the Primary Health Care Center, Moratagi for conducting post mortem examination. To that extent we believe his evidence.
61. In all criminal cases panchas are the authors of the panchanama. Police Officers are the supervisor of the investigation. When panchas turn hostile, no evidentiary value can be attached to the evidence of the panchas. In the absence of corroborative evidence, the evidence of the police officials as stated supra becomes formal in nature.
62. In this case, as per the argument of the learned Special Public Prosecutor, evidence of PW.2-Kallappa Madar and PW.4-Savita can be accepted by the court. As discussed above, their evidence cannot be accepted as their evidence is full of contradictions, omissions and discrepancies. In the absence of cogent and reliable evidence, it is hard to believe the story of the prosecution that it has proved its case beyond all reasonable doubt.
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63. On careful scrutiny of the evidence so placed on record, the evidence so adduced by the prosecution suffers from serious infirmities which have been discussed hereinabove. It is not necessary to reiterate them, but, it will be sufficient if we refer only to one serious infirmity which in our opinion, is of most serious nature. Though according to PW.2 Kallappa, he saw the sexual assault on the victim Mahadevi by the appellant-accused from a distance of 300- 400 ft., he did not mention the name of the appellant as assailant for 2 days. The alleged incident of sexual assault on victim has taken place at about 6.00 p.m. on 27.6.2007 and yet PW.2 did not come out with the name of the accused until 29.07.2007. It is not possible to accept the explanation sought to be given on behalf of the prosecution that PW.2 did not disclose the name of the appellant as the assailant earlier than 29.07.2007 on account of fear of appellant. There could be no question of any fear from the appellant because in the first place, PW.2 the resident of same village of that of appellant. They were not known to each other. No such evidence is brought on record. No evidence that PW.2 is 38 afraid of appellant. Secondly, police had already been informed and complaint was lodged of accident death. Already Police have taken up the investigation. It is indeed difficult to believe that PW.2 should not have disclosed the name of the appellant to PW.1 complainant and to the police. This is a very serious infirmity which destroys the credibility of the evidence of PW.2. In the similar facts and circumstances of the case, the Hon'ble Supreme court of India in a judgment reported in AIR 1976 SC 2488 in the case of State of Orissa vs. Mr.Brahmananda Danda, has held:
"(A) Evidence Act (1872), S.3 - Murder case - Eye witness not disclosing name of assailant for a day and half - credibility. (Penal Code 1860), (S.302).
Where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye-
witness and this witness did not disclose the name of the assailant for a day and half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non-
disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness....."
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64. The criminal jurisprudence says that, it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. It is settled that, even a slightest doubt arises in the case of prosecution that benefit of doubt has to be extended to the accused. In this case, though the prosecution relies upon evidence of PW.2 being the person who has seen the incident, his evidence doesn't inspire any confidence in the mind of the court. Though, PW.4-Savita, the sister of the deceased says about making her sister Mahadevi to board in the tractor etc, but her evidence is full of inconsistencies and discrepancies. She has given different time of boarding the tractor itself. So clear cut links to establish the guilt of the accused is missing in this case. If such evidence is placed on record by the prosecution, the story of the prosecution cannot be accepted as truthful. Prosecution in this case has utterly failed to prove the guilt of the accused to the hilt. Therefore, if all these factual features coupled with the un-corroborative discrepant evidence is read together, it can be stated that prosecution has utterly failed 40 to prove the guilt of the accused beyond all reasonable doubt.
65. The learned Trial Judge has committed a grave error in convicting the accused based upon the evidence of PW.2. The findings of the learned Trial Court are perverse and capricious and not based on evidence adduced by the prosecution. Therefore, by giving benefit of doubt, the accused is entitled for acquittal by setting aside the impugned judgment of conviction and sentence passed by the trial Court.
Resultantly, we pass the following ORDER The appeal is hereby allowed.
The judgment of conviction dated 18.02.2010 and order on sentence dated 22.02.2010 passed by the Special Judge/II Additional Sessions Judge, Bijapur in Special Case No.49/2007 dated 18.02.2010 is hereby set-aside and the appellant/accused has been acquitted for the offences under Sections 302 and 376 read with Section 511 of Indian Penal 41 Code and he is set at liberty forthwith, if he is not required in any other case.
The Jail Authorities are hereby directed to release the appellant-accused Mahantesh S/o Srimant Khainur forthwith, in this case, if not required in any other case.
The Registry is directed to intimate the Special Judge/II Additional Sessions Judge, Bijapur and the concerned Jail Authorities through e-mail to release the appellant/accused- Mahantesh S/o Srimant Khainur forthwith, if he is not required in any other case.
Registry is hereby directed to send back the trial court records.
SD/-
JUDGE SD/-
JUDGE Sk/sn