Karnataka High Court
State By Basaralu Police vs S Devaraj @ Kariya @ Musuri on 10 July, 2015
Bench: Mohan M. Shantanagoudar, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.635/2007
BETWEEN:
State by Basaralu Police .. APPELLANT
(By Sri Vijayakumar Majage, Addl.SPP)
AND:
1. S Devaraj @ Kariya @ Musuri
S/o Siddalingaiah
Aged about 24 years
R/o Srirampura, Bangalore
Native place Doddakothagere
Basaralu Hobli
Mandya Taluk.
2. Ananda
S/o Shivanna
Aged about 25 years
R/o Sabbanakuppe Village
Srirangapatna Taluk
2
Native place Doddakothagere
Basaralu Hobli
Mandya Taluk
3. Shivanna
S/o Late Chikkamadiah
Aged about 73 years
R/o Doddakothagere
Basaralu Hobli
Mandya Taluk.
4. Jetti @ Chikkamadaiah
S/o Late Chikkamadaiah
Aged about 47 years
R/o Doddakothagere
Basaralu Hobli
Mandya Taluk.
5. Raja
S/o Chikkamadaiah
Aged about 40 years
R/o Doddakothagere
Basaralu Hobli
Mandya Taluk. .. RESPONDENTS
(By Sri H Mohan Kumar, Adv. For R1 and R2)
This criminal appeal is filed under Section 378(1) and
(3) CR.P.C praying to grant leave to file an appeal against
the judgment dated 16.11.2006 in S.C.No.87/2003 on the
file of the Sessions Judge, FTC-I, Mandya, acquitting the
respondent/accused for the offences punishable under
Sections 302, 120-B, 109 read with Section 114 of IPC.
This appeal having been heard and reserved for
orders, coming on for pronouncement of judgment, this
day, BUIDHAL R.B.J., delivered the following:
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JUDGMENT
This appeal is preferred by the State against the respondents-accused Nos.1 to 7, being aggrieved by the judgment and order of acquittal dated 16.11.2006 passed by the Fast Track Court-I at Mandya in S.C.No.87/2003. The State has also filed an application seeking leave to prefer the appeal and this Court by its order dated 11.09.2007 has not granted the leave to prefer the appeal as against respondent Nos.3 to 7. Hence, this appeal is for consideration as against respondent Nos.1 and 2/accused Nos.1 and 2 only.
2. PW-1/Shanthamma has lodged the complaint as per Ex.P-1 dated 18.01.2003. Somasundara, the brother- in-law of the complainant, married one Mayamma of Biledegulu Village and said couple having two children namely, Pallavi and Praveen, who are aged 13 years and 11 years respectively. In connection with the landed property, since ten years there was a dispute between 4 Somasundara i.e., the deceased and accused Nos.3 to 5. The case was decided in favour of deceased Somasundara at Mandya Court and he was cultivating the said landed property. As the case was decided in favour of the brother-in-law of the complainant, the said accused persons were having ill-will and they were conspiring to do something in the matter. On 18.01.2003 at about 9.00 a.m. Somasundara called the complainant to go to the land for cutting the crop. Accordingly, complainant, Somasundara and Mayamma, who was the wife of Somasundara, went to the land and they were cutting the paddy crop and it was about 10.00 a.m. At the same time, Devaraj/Kariya-accused No.1 and Anand-accused No.2 came holding machchu in their hands and asked Somasundara that why they are cutting the paddy and called them to come out of the land, otherwise they will show them a way, stating so they came in the land. Seeing them and because of the fear, the complainant, Somasundara and Mayamma came to the road side, at that time, accused No.1-Devaraj referring to Somasundara that 5 he can litigate if he is alive and if he is finished off, the dispute will come to an end, stating so assaulted on the head of Somasundara with machchu. When Somasundara was struggling to avoid the blow, sustained bleeding injury to his head. Accused No.1 again assaulted on the hands of Somasundara with machchu. Mayamma, when went to rescue of Somasundara, accused No.2-Anand assaulted her with machchu on the head and upper limbs and Somasundara and Mayamma collapsed on the ground. The complainant made hue and cry, at that time accused Nos.1 and 2 ran away towards Allakere holding machchu in their hands. Immediately, the complainant rushed to the injured; Mayamma has already expired and Somasundara was still alive. She brought the water from the nala and put into the mouth of Somasundara, but he also expired. In the meanwhile, one Ningaiah came from the neighbouring land stated that they were planning since day before yesterday; accordingly, they have finished off the couple and asked the complainant to go and inform the Police over phone. Complainant went to the village and 6 through the shop of one Bhatta, informed the Police over phone about the incident. It is also stated in the complaint that accused Nos.3 to 7 had the criminal conspiracy with an intention to commit the murder of Somasundara and his wife, and because of that reason only, they secured accused Nos.1 and 2 from Bengaluru and instigated them to commit the murder of the deceased, with an intention to grab the property. Hence, she has requested to take action against the accused persons. On the basis of the said complaint, case has been registered against accused Nos.1 to 7 in Basaralu P.S. in crime No.5/2003 for the offences punishable under Sections 143, 147, 148, 120(B), 114, 302 read with Section 149 of IPC and issued the FIR as per Ex.P-14. The Investigating Officer after completing the investigation filed the charge sheet against the said accused persons for the offences punishable under Section 143, 147, 148, 114, 120(B), 302 r/w 149 of IPC. The Trial Court framed the charge against accused Nos.1 and 2 for the offence punishable under Section 302 of IPC, against the remaining accused for the offence under Section 120B 7 of IPC and against accused Nos.3 to 7 for the offence punishable under Section 109 read with Section 114 of IPC.
3. In support of its case, prosecution has examined in all 26 witnesses as PWs-1 to 26, got marked the documents as per Exs.P-1 to P-72, and materials objects as per MOs.1 to 22 and the defence got marked documents as per Exs.D-1 to D-4.
4. After considering the merits of the case, ultimately, the Trial Court acquitted all the accused persons from the said charges. Being aggrieved by the same, the State has come-up in appeal challenging the legality and correctness of the judgment and order of acquittal passed by the Trial Court, on the grounds as mentioned in the appeal memorandum.
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5. Heard the arguments of Sri Vijaykumar Majage, learned High Court Government Pleader and Sri Mohan Kumar, learned counsel appearing for respondent Nos.1 and 2/accused Nos.1 and 2.
6. The Learned High Court Government Pleader has submitted that the entire approach of the Trial Court in appreciating the case is perverse and capricious. Though there are five eye-witnesses to the incident and their evidence is consistent, cogent and worth believable, the Trial Court has wrongly read their evidence and disbelieved the evidence of the eye-witnesses. He has also submitted that recoveries are effected; M.Os.5 and 7 - machchu, and M.O.6 - a pair of chappals were seized as per the voluntary statement given by the respondent-accused Nos.1 and 2. It is also his submission that accused Nos.1 and 2 also led the Police and panchas to their house and produced the blood stained clothes, which were seized under the mahazar Ex.P-7 and the panch witnesses to the said mahazar are PWs-10 and 14, who have supported the case 9 of the prosecution. With regard to the said recovery of the material objects, even in the cross-examination, nothing has been elicited from the mouth of the panch witnesses to disbelieve their version and the same was not taken into consideration by the Trial Court. He has submitted that even the FSL reports and serology reports also show that the said material objects were having the blood stains, which are ascertained as human blood. So far as the blood grouping is concerned, in the report it is mentioned that as the stains are disintegrated, the grouping of the blood was not determined. He has also submitted that the evidence of PWs-3 and 9, who are the children of the deceased, have been wrongly rejected by the Trial Court by assigning wrong reasons. He has submitted that the medical evidence given by the doctors - PWs-6 and 19, and the Post Mortem reports marked in the case, are also consistent with the oral account of the prosecution witnesses. Hence, he has submitted that prosecution has established its case beyond all reasonable doubt; even then, same was disbelieved by the Court below. He also 10 drew the attention of this Court to the photographs produced at Ex.P-26 to P-72 and lastly submitted to allow the appeal and to convict the respondents-accused Nos.1 and 2 for the said offences.
7. Per contra, learned counsel appearing for the respondents-accused Nos.1 and 2 during the course of his arguments submitted that the Trial Court has properly appreciated the oral and the documentary evidence produced in the case and rightly acquitted the respondent- accused. He has submitted that though it is the case of the prosecution that the complainant PW-1 informed the Police over phone about the incident at 10.30 A.M. itself, even then, the FIR came to be registered at 12.00 noon and though the Magistrate Court is at the distance of about 25kms the FIR was produced before the Magistrate at 9.30 p.m. Hence, there is a delay in registering the FIR and also producing the FIR before the concerned Magistrate Court, which aspect is not properly explained by the 11 prosecution. It is also his submission that the evidence of alleged eye-witnesses i.e., PWs-1, 3, 9, 15 and 16 are contradictory to each other and not worth believable. It is also his submission that looking to the post mortem report and the oral evidence of PW-19, it show that the weapons M.Os.5 and 7 were lying at the spot itself and they were not recovered on the voluntary information given by accused Nos.1 and 2. Hence, he has submitted that the evidence of prosecution witnesses is not worth believable, serious doubts arises as to the case of the prosecution and the same was rightly appreciated by the Trial Court and acquitted the respondents-accused. There is no merit in the appeal preferred by the State, hence, he has submitted to dismiss the appeal.
8. We have perused the judgment and order of acquittal passed by the trial Court, oral and documentary evidence produced by the prosecution as per P.Ws.1 to 26 and Exs.P.1 to P.72 respectively and also the documents 12 Exs.D.1 to D.4 got marked by the defence during the course of examination.
9. Looking to the allegation in the complaint Ex.P.1 that accused Nos.1 and 2 at the instigation of accused Nos.3 to 7 committed the murder of deceased Somasundara and his wife Mayamma, let us examine the material so as to ascertain whether the death of Somasundara and his wife Mayamma is the homicidal death or not.
10. Perused the evidence of P.W.6 Dr.K.S. Satish, who conducted P.M. examination over the dead body of the deceased Somasundara and the P.M. report as per Ex.P.4. In his evidence, he has deposed that on 18.1.2003, he conducted P.M. examination over the dead body of the deceased Somasundara in between 3.30 and 5.30 p.m. He has mentioned seven external injuries, out of which injury No.6 is scratch wound from anterior aspect of right 13 shoulder joint to sternum and injury Nos.1 to 5 and 7 are mentioned as incised injuries. He has further deposed that he has seen iron chopper-M.O.5 shown to him and deposed that if a person is assaulted with a weapon like chopper, the injuries mentioned in the P.M. report-Ex.P.4 are possible to happen. Perusal of the document Ex.P.4 post mortem report, the cause of death is mentioned that the death is due to cardio respiratory failure due to intra cranial hemorrhage as a result of head injury.
Even in cross examination of P.W.6, it is not the case of the defence that it is suicide. P.W.6 has denied the suggestion that he has not conducted post mortem at all at the spot and to oblige the police, he simply signed the post mortem report without verifying.
11. The post mortem examination over the dead body of Mayamma was conducted by the witness P.W.19- Dr. H.M. Mamatha. She has deposed in her evidence in the examination in chief that on 18.1.2003 at about 3.45 14 p.m., she received a requisition from Basralu police through P.C. 567 for conducting the post mortem examination on the dead body of female by name Mayamma wife of Somasundara, aged 35 years in crime No.5/2003. On the same day, she conducted post mortem examination on the said dead body between 3.45 p.m. and 5.00 p.m. and there were six external injuries as mentioned at Sl. Nos.1 to 6 in her deposition. She has given the opinion as to the cause of death that the death was due to hemorrhage and shock as a result of injury to main blood vessels. She has issued post mortem report as per Ex.P.13. The history as told by the police was assaulted murder with large sharp weapon and the same is noted in Ex.P.13. We have also perused the document Ex.P.13. In the cross examination of P.W.19 also, there is no such suggestion that it is suicide.
12. We have perused the oral evidence of P.W.1 Shantamma-the complainant, P.W.3 Pallavi and P.W.9 15 Praveen - the children of the deceased, and P.Ws.15 and
16. We have also perused the inquest mahazar proceedings conducted over the dead body of Mayamma marked as per Ex.P.3 so also the inquest mahazar report Ex.P.11 in respect of Somasundara. It is no doubt true that during the course of cross examination of the prosecution witnesses, it was suggested by the defence that Somasundara and Mayamma died elsewhere and on account of some reasons. But, the said suggestion was denied by the witnesses. When there is satisfactory material on record both oral and documentary about which reference is already made above, and only on the basis of the vague suggestions made by the defence during the course of cross examination that they died elsewhere and on account of some reasons, it cannot be accepted and it cannot be said that it is not a homicidal death. Looking to all these materials on record, we are of the clear opinion that the prosecution has established the fact that the death of Somasundara and Mayamma is the homicidal death. 16
13. It is the case of prosecution that after committing the alleged offence, both the accused went away towards Allagere road holding machchu in their hands. It is also the prosecution case that from the date of the incident, accused Nos.1 and 2 are absconding from the place. The evidence of P.W.21 M. Ramesh, P.C. goes to show that on 19.1.2003, the CPI deputed Hiriyanna, Raghavendra and himself to go along with the PSI for searching the accused and to apprehend them. They searched for the accused at Allgere, Chandagalu, Koppa, Doddakothgere and as they were informed that the accused were at Sriramapura, he along with the PSI went to Sriramapura and apprehended accused No.1 Devaraj and accused No.2 Anand near by Srirampur market and brought them to the police station and produced before the CPI.
During the course of cross examination though it was suggested to P.W.21 that the accused were in the village 17 itself and he did not go in search of accused nor apprehended them at the said place, the said suggestion was denied by the witness.
14. P.W.24 - N.H. Ramachandraiah, CPI, who is the investigating officer in the case deposed in his evidence in the examination in chief that on 18.1.2003, he took up the further investigation of the case from ASI Javarashetty- P.W.20. He further deposed that on 20.1.2003 morning at 5.30 a.m., PSI Krishnaiah-PW-22 produced accused No.1 Devaraja and accused No.2 Anand before him and submitted report as per Ex.P.16 and P.16(b) is his signature. He has also identified accused Nos.1 and 2 before the Court during the course of trial. Thereafter, accused Nos.1 and 2 were interrogated and he recorded their voluntary statements. The accused Anand and Devaraja in their voluntary statements informed about the machchu and clothes which they had worn, pertaining to the case. The voluntary statements given by the accused Devaraju is as per Ex.P.19 and voluntary statement given 18 by accused Anand is as per Ex.P.20. In order to take further action in the matter on the basis of the voluntary statements given by accused Nos.1 and 2, he secured P.W.14 - B.C.Venkatesh and P.W.22 - G. Krishnaiah and P.W.10 - B. Shivananajaiah to the police station and informed about the case to those persons. He shown accused Devaraj and Anand to the said panchas and then accused Nos.1 and 2 took the police and panchas in the government jeep KA-11-G-105. The accused themselves shown the way to them and took them towards the mango and sapota grove of one Sri. Late Narayanashetty of Allagere village Accused No.1 Devaraja took out one machchu and a pair of chappal, which were hidden under the Buthale fence of the said garden and produced before him. He identified machchu as M.O.5 and a pair of chappal as M.O.6. From the said place, accused No.2 Anand also took out one machchu and produced as per M.O.7. He packed and sealed M.Os.5 to 7 in the white cloth and seized them under the mahazar Ex.P.6 and P.6(c) is his 19 signature. He further deposed that he subjected two machchus and a pair of chappal to PF No.5/2003 and sought the permission of the Court to retain the same. The said PF is at Ex.P.21 and P.21(a) is his signature. P.W.24 further deposed that as per the information furnished by accused Devaraja and Anand and in order to seize the clothes which were worn by them, he went to the house of one Krishnaiah Chikkonahalli village. The accused Devaraja took out one checks design shirt and a black colour jeans pant from the said house and produced as per M.Os.8 and 11. The accused Anand also took out from the said house, one brown colour checks design shirt and a brown pant as per M.Os.9 and 10 and he seized the said clothes in the presence of panch witnesses. He packed and sealed them under the mahazar as per Ex.P.7 and P.7(C) is his signature. He subjected those articles to PF No.6/2003 and sought the permission of the Court to retain same. The said P.F. is Ex.P.22 and his signature is P.22(a). He came back to the police station along with the accused with 20 the seized articles and produced the same before the Court along with remand application. At the time of seizure of the said weapons and the clothes, photographs were taken. The photographs as per Exs.P.26 to 32 along with the negatives are in respect of seizure of the weapons. The photographs of the mahazar witnesses as per Exs.P.33 to P.35 were also taken while they signing the mahazar. The photos of the seized clothes, as per Exs.P.36 to 38, which were said to be worn by the accused at the time of incident were taken. Photos were also taken as per Ex.P.39 to 41 for the signature of panch witnesses to the said mahazar.
During the course of cross examination by the learned counsel appearing for the accused, P.W.24 deposed that accused Nos.1 and 2 gave voluntary statements at Basral police station. When he recorded the said statements, no independent witnesses were present. Before proceeding for recovery of the said material objects, he informed the PSI to secure the panch witnesses. The PSI Basralu secured three persons Venkatesh, Krishnaiah 21 and Shivananjaiah. He informed the panch witnesses about the voluntary statements given by the accused before him so also the accused told before them. He informed the accused persons to tell before the panch witnesses about what they have stated before him. Accordingly, the accused told before the panch witnesses about the voluntary statements given before this witness. He denied the suggestion that accused Nos.1 and 2 have not at all given voluntary statements as per Ex.P.19 and P- 20 and denied further suggestion that accused Nos.1 and 2 have not at all took the police and the panchas to any place.
15. PW-22 - G.Krishnaiah, PSI deposed in his examination-in-chief that on 19.01.2003 CPI has directed him to search for accused Nos.1 and 2. On that day, himself and CWs-31 to 35 went to Koppa, Allagere, Beederukote and Dodda-Kothagere Villages in search of accused Nos.1 and 2. Then, on the same day they went to 22 Bengaluru. On 20.01.2003 at 2.00 a.m. they apprehended two accused near Srirampura Market with the help of his staff. They brought the said accused and produced before CPI at 5.00 or 5.30 a.m. and he has given the report, which is marked as per Ex.P-16 and his signature is Ex.P- 16(a).
In his cross-examination, PW-22 has denied the suggestion that they have not apprehended accused Nos.1 and 2 at Srirampura in the manner that he has deposed. He further denied the suggestion that accused Nos.1 and 2 were very much present in their village and they never absconded.
16. PW-10 - B.Shivananjaiah, who is the panch witness to the seizure mahazars Exs.P-6 and P-7, has also deposed in detail in his examination-in-chief that these accused persons led the Police and the panchas to the said places and produced M.Os.5 to 7 under Ex.P-6 and M.Os.8 to 11 under Ex.P-7. In the cross-examination of this 23 witness he has stated that the place where they sat talking is the shop place of Krishnaiah. When they started from Kothagere Village, the jeep was stopped nearby the garden, earlier he has not seen that garden. The said garden was having the barbed wire fencing. He does not know that anybody at any time can go inside the said garden, mahazar was written at the place, where accused No.1-Devaraj took out the machchu and chappal, about one hour mahazar proceedings were drawn. After Accused No.1-Devaraj took out machchu and chappal, Anand took out the machchu. The place from where Anand took out the machchu is at the distance of about 6 to 7 feet from the place, from where accused No1-Devaraj took out and produced machchu and chappal. He denied the suggestion that he has not went along with the Police and the accused, and the accused have not at all took out and produced the weapon. He denied the further suggestion that as the father of deceased Mayamma is from his village, in order to help them and to give trouble to the 24 accused he is giving false evidence. He has denied the suggestion that the accused have not at all concerned with the machchu and the clothes, and the mahazar was not at all written nearby the garden but it was written in the Police Station. He has further deposed that the house at Chikonahalli was the Mangalore tiled roof house. He went inside that house, when they went to the said house it was 3.00 or 3.13 p.m. and they were there for about 45 minutes or one hour. He does not remember whether the Police have called the residents of the said house or the neigbours of the said house. The mahazars written nearby the garden and the mahazar drawn at Chikonahalli are hand written. He denied the suggestion that he has not gone to Chikonahalli along with the accused and the Police, and the accused have not produced the clothes to the Police in his presence and no mahazar was drawn at the said place. He denied the suggestion that he put his signature to the mahazar prepared in the Police Station and denied the further suggestion that accused are not 25 concerned with the shirt and pants and MO-6 chappal, which he has identified before the Court.
17. PW-14 - B.C.Venkatesh is another panch witness for the seizure mahazars Exs.P-6 and P-7 for the seizure of M.Os.5 to 11. He has deposed in his evidence in the examination-in-chief that about two years back on one day PW-10/Shivananjaiah and Krishnaiah sat talking at the shop, at that time one Police jeep came nearby the house of PW-8/Mayigaiah. After seeing the same, they went there and saw accused Nos.1 and 2 in the said jeep. Police told them that accused were having the complicity in a murder case and as the accused told that they will point out and produce the weapons, Police asked them to accompany them as panch witnesses. They agreed for the same and went along with the Police in the jeep. The accused themselves were showing the route and took them to Doddakothagere village. The jeep was stopped nearby the road, by the side of the said road there was a garden. 26 They, along with accused went inside the garden. From there, accused-Devaraj brought and produced one machchu and a pair of chappal. Accused-Anand also produced one machchu, they were inside the boundary fencing. He identified the machchu produced by Devaraj as M.O.5, another machchu produced by Anand as M.O.7 and pair of chappal produced by Devaraj is M.O.6. The Police have seized those articles and drawn mahazar as per Ex.P-6 and P.6(b) is his signature. From there accused took them to one house at Chikonahalli, from inside the said house accused Nos.1 and 2 each brought one shirt and pant and produced before the Police. M.Os.8 and 11 are the shirt and pant produced by Devaraj and M.Os.9 and 10 are the shirt and pant produced by Ananad. Police have seized those clothes under the mahazar Ex.P-7 and 7(b) is his signature. Photo was also taken about these proceedings.
In the cross-examination, PW-14 has deposed that when they went nearby the house of Mayigaiah- P.W.8, 27 both the accused, Police Inspector, Photographer and Police staff along with driver were present. Earlier to that he did not know accused Anand and Devaraj. In the garden, at the time of writing the mahazar they came to know the names of accused. The garden was having the fencing. The chappal and the machchu were taken out from inside the fence, which was on the northern side of the said garden. When the accused took out the machchu and chappal, and when they signed to the mahazar, photo was taken. The place from where Anand took out machchu is at the distance of 5-6 feet from the place from where Devaraj took out machchu and chappal. He has denied the suggestion that along with the Police accused Nos.1 and 2 have not come to Belideguala village. He has denied further suggestion that they have not gone to Doddakothagere and Chikonahalli along with Police and accused. He has denied further suggestion that accused Nos.1 and 2 have not produced MOs.6 to 11 in his presence and also denied the suggestion that mahazar 28 under Exs.P-6 and 7 were written in the Police Station. He denied the suggestion that as Mayigaiah/PW-8 is of his native and to help him he is giving false evidence.
18. Perusing the oral evidence of PWs-10 and 14, who are panch witnesses to the mahazar Exs.P-6 and 7, the seizure of MOs.5 to 11 under the said mahazars, the oral evidence of PW-22/Krishnaiah and PW- 24/Ramachandraiah, CPI, so also the photographs and the voluntary statements under Exs.P-19 and 20 they clearly show that accused Nos.1 and 2 gave the voluntary statementS before PW-24/CPI under Exs.P-19 and 20. In view of the said voluntary statements, the Police have seized M.Os.5 to 11 under the seizure mahazar Exs.P-6 and 7. Looking to the cross-examination of the witnesses, except making the suggestions that the accused Nos.1 and 2 have not given voluntary statement as per Exs.P-19 and 20 and they have not led to the places i.e., the garden of Narayanshetty at Kothagere village and to one house at 29 Chikonahalli and nor produced MOs.5 to 11, nothing has been elicited from the mouth of the prosecution witnesses so as to disbelieve the story of the prosecution that accused Nos.1 and 2 gave the voluntary statement under Exs.P-19 and 20 and they led the Police and the panch witnesses to the places and produced MOs.5 to 11, which were seized under Exs.P-6 and 7. Therefore, prosecution has satisfactorily established about accused Nos.1 and 2 giving voluntary statements and producing the material objects MOs.5 to 11.
19. P.W.24 - investigating officer deposed in his evidence about which we have already made reference above that accused Nos.1 and 2 led them and panchas to the place i.e., the garden of Narayana Shetty and from the fence of the said place, took out two machchus and a pair of chappal marked as M.Os.5 to 7. He packed and sealed those articles by putting them in white cloth in the presence of panch witnesses. He has also deposed that 30 those articles were seized under mahazar Ex.P.6. It is also his evidence that thereafter, the accused led the police and the panch witnesses to a house at Chikkonahalli and by going inside the house, they brought and produced a shirt and pant which were marked as M.Os.8 to 11 and packed and sealed those articles also in the presence of panch witnesses under mahazar Ex.P.7.
20. P.W.23 S. Nanjundappa, the Assistant Director of Forensic Science Laboratory, Bengaluru deposed in his evidence in the examination in chief that on 3.2.2003, he received 11 sealed articles involved in crime No.5/2003 of Basral police station from Dy.S.P. Mandya Sub Division, Mandya. The details of those articles were mentioned in page No.1 of the report. All these articles were verified with the assistance of PSM Gaonkar, Scientific officer who was then working under him. All these articles registered in BS No.114/2003 after duly tallying them with the police invoice and the sample seals. As per the letter of advice of 31 the investigating officer, all these articles were opened. The stains found on each one of the articles were subjected to chemical examination test namely, catyletic test and crystal and confirmed that those stains found on each one of the articles were blood stains except on item No.7. Thereafter, they took the sample blood stained cuttings, blood stained scrapings separately and kept them separately for conducting serology analysis. The result of the analysis has been noted in detail on page No.2 of the report. After that, all the articles were repacked separately, the sample seal of laboratory was affixed and they were sent to CPI Mandya, through the director after putting the registration number of section on each of the articles and such report was issued under his counter signature. The report sent by the scientific officer is at Ex.P.17. P.17(a) is his signature. The sample was also sent along with the report.
In the cross examination, P.W.23 deposed that whenever an article is received for chemical examination, it 32 would be entrusted to a scientific officer who has to conduct analysis under his supervision. The entrustment of the work of analysis of the articles of this case has been entered in the case records maintained in the office. He has not brought that record to the Court. The entire test which he has stated would be completed within a day. The scientific officer cannot conduct the test independently in their laboratory and without his approval. Therefore, the report should contain the signature of the scientific officer and also his signature. The scientific officer has signed on 3.10.2003 and he signed on 9.10.2003. He further deposed that the nature of the sample seals received by them was not mentioned in Ex.P.17. He denied the suggestion that he did not conduct the chemical analysis of each articles. The origin and grouping of the blood will be done by serological test in the separate section.
21. Looking to the evidence of these two witnesses i.e., P.Ws.23 and 24, they clearly show that the articles 33 which were sent for FSL examination were in a sealed cover and they were opened by the FSL office. We have also perused the document at Ex.P.17. Looking to the result of the analysis of Ex.P.17, out of the items mentioned at Sl. Nos.1 to 11, all the items, except the item No.7, were having the blood stains. Two iron machchus and two shirts were at item No.8 to 11 and they were also stained with blood. Looking to the document Ex.P25 serology report, it is mentioned that item Nos.1, 2, 3, 4, 5, 8, 10 and 11 were stained with human blood. Regarding the blood group of the stains, it was mentioned that item Nos.1 and 2 were stained with 'O' group blood. It is also mentioned in the same report that the blood group of the stains on item Nos.3, 4, 5, 8 to 11 could not be determined because of the inconclusive result of the tests.
22. As per the case of the prosecution, the eye- witnesses to the incident are PW-1 Smt.Shanthamma, PW- 3 Kumari S.Pallavi, PW-9 S.Praveen, PW-15 Chikkaraju and PW-16 Shivanna. Let us examine the oral evidence of 34 these witnesses referring to the relevant portion of their evidences.
23. PW-1 Shanthamma deposed in her evidence in the examination-in chief that CW-2 Pallavi and CW-3 Praveen are the children of her brother-in-law. She know the accused present before the Court. Somasundara is the own brother of her husband and CW-2 and 3 are the children of Somansundara, who is no more. Mayamma is the wife of Somasundara, who is also no more. About two and half years back at about 9.30 a.m. herself , Somasundara and Mayamma, who was the wife of Somasundara and three other persons from Chokanahalli, went to the land for cutting the paddy crops. At that time accused Devaraja and Anand came there and questioning Somasundara why he is cutting the paddy crops, asked him to come out, in response to the same Somasundara told accused Nos.1 and 2 that matter is decided in his favour in the Court and since 2-3 years he is cultivating the 35 said land, he will not come out and questioned them that what they will do to them. Again accused Nos.1 and 2 called Somasundara to come out of the land stating that if `he is alive then only he can cut the crop. The three persons from Chakanahalli were afraid and went away and somsaundara went towards the road from the place where he was cutting the paddy crop. The persons, who are from Chakanahalli, went out of the land and they were standing at uphill/the place which is little higher level from the surface of the land (eri). Accused Nos.1 and 2 were holding machchu in their hands. Somasundara asked them what they will do to them, at that time accused No.1/Devaraj assaulted with machchu on the right hand elbow portion of Somasundara with force and because of that, the forearm of the right hand was cut and again with the same machchu he assaulted on the head. After seeing the same, Mayamma, the wife of Somasundara, rushed to him, asking the accused not to do anything to her husband and she was crying. At that time accused No.2/Anand 36 assaulted with the machchu on the head of Mayamma uttering the words that, if Mayamma and her husband were murdered then the case will come to an end. He assaulted again on the head and again gave another blow with the machchu nearby the neck, then Mayamma collapsed at the said place. Seeing the same, Somasundara ran towards Mayamma, at that time accused No.1 assaulted him with machchu on the back of the head and Somasundara collapsed at the said place. She was seeing the same by standing inside the land. Thereafter, accused Nos.1 and 2 went away towards Allagere road holding the machchu in their hands. In the meanwhile, CWs-2 and 3 i.e., Pallavi and Praveen, came towards their parents uttering the words as "amma and anna". Ningaiah, the son of Chikkarangaiah, also came there. Chikkarangaiah came and seeing the same told that, since one week the accused were conspiring to finish off the deceased and ultimately they have achieved the same and asked PW-1 to go and inform the Police over phone. Then 37 she went to the shop of one Bhatta and with the help of Kumar, the son of Bhatta, she informed the Police over the phone. By the time she went back to the spot, Police were already present at the spot, she informed the Police as to what has happened. Police reduced the same into writing and obtained her signature and she has seen the said document, which is marked as per Ex.P-1 and her signature is P-1(a).
In the cross-examination by the learned counsel for the accused, PW-1 denied the suggestion that the disputed land was never in possession of Somasundara and it was in possession of accused No.3 Shivanna and his family members. On the date of the incident they left the house at 9.00 a.m. for cutting the paddy crops her house is at the distance of less than one mile from the said land. She was having the sickle with herself. Herself, Somasundara and Mayamma, all the three together went to the land. In the neighbouring lands no other persons were present. Ten minutes after they reaching the land, three persons from 38 Chakanahalli, who are the workers, came to the land and they have also brought the sickle with them. All the six persons cut paddy at some portion. When they left the house, CWs-2 and 3 i.e, Pallavi and Praveen were in the house itself. Pallavi was admitted to the hospital for treatment and she was just discharged and brought to the house. On that day, as it was Saturday they informed Praveen/CW-3 to look after Pallavi and be in the house itself. When she saw Praveen and Pallavi nearby the land by that time the incident was occurred. Pallavi and Praveen came to the said place to enquire with them that at what time they have to bring the meals and they came to the land by walk. Accused Nos.1 and 2, who were standing on the bund of the said land called Somasundara to come on the road, stating so accused Nos.1 and 2 came to the road following them Somasundar and Mayamma also came to the road. Herself and three workers, who came from Chakanahalli have seen the incident and no others have seen. When the incident was going on and after 39 seeing the same neither she nor those three workers from Chakanahalli made hue and cry. Three workers of Chakanahalli were standing at uphill/the place which is little higher level from the surface of the land (eri). When the accused assaulted Somasundara and Mayamma, the sickles with Somasundara and Mayamma fell at the said place. When she informed the Police over phone it was 10.30 a.m. She informed the names of the assailants, the names of the deceased and her name and the place of the incident; she spoken for about 10 minutes over the phone. When she went back to the spot the dead bodies were at the spot and the three workers came from Chakanahalli were also present there. When the Police came it was 10.45 a.m. Police have prepared one document, read over the contents to her and obtained her signature and 4 to 5 other persons were also signed. Prior to the incident there was no any sort of grudge or difference of opinion between themselves and accused No.1 Devaraja and accused No.2 Anand. On the date of the incident there were no talks or 40 galata between themselves and accused Nos.3 to 7. When she had been to the shop of Bhatta, she has seen accused Nos.3 to 7 in the village. According to her Somasundara was assaulted and sustained 5 blows and Mayamma sustained 3 blows. She denied the suggestion that Somasundara, Mayamma and herself have not at all gone to the land to cut the paddy crop. While giving statement before the Police she has stated about the presence of herself, Somasundara, Mayamma and three workers from Chakanahalli, who came to cut the paddy crops. She denied the suggestion that they have not called three workers from Chakanahalli. She has denied the further suggestion that though Pallavi and Praveen were not knowing about the incident, purposely they have been shown as witnesses in the case. While giving the statement before Police she has stated about the fact that Pallavi and Praveen came to the spot. She denied the further suggestion that accused Nos.1 and 2 have not assaulted Somasundara and Mayamma with machchu. She 41 has also denied suggestion that somewhere for some reason Somasundara and Mayamma expired and taking undue advantage of the same and as there was a land dispute, they filed false case against the accused.
24. P.W.3-Pallavi deposed in her evidence in the examination in chief that P.W.1 Shanthamma is her aunt and C.W.3 Praveen is her younger brother. She knows the accused. She was studying in 7th standard at Morarji Residential School, Tangalgere Mandya Taluk. Her father Somasundara and mother Mayamma expired about 2½ years back. On 18.1.2003, Saturday at 8.00 or 8.15 a.m., her father called P.W.1 to come to the land for cutting the paddy crop. After having meals, her parents and her aunt, all the three, went towards the field for cutting the paddy crop. She further deposed that on the previous day, i.e., on Friday, as she was not feeling well, she was taken to the hospital for treatment. On Saturday, she was in the house itself. Her parents and aunt while going to the 42 paddy field told her to bring the meals, but they had not told as to at what time, she has to bring the food. Therefore, herself and her brother C.W.3 Praveen went to the field to ascertain at what time they should carry the meals. Her brother took the tyre of the bicycle wheel. When they were proceeding towards field, they saw accused No.1 Devaraja holding Machchu in his hand. There was no dispute or enmity between Devaraja and themselves. She thought that he might be going to cut the trees. The accused Anand and Devaraja went ahead them towards the 8th thoobu paddy field. They also went there. They saw that quarrel was gong on between Devaraja and her father in connection with the land. Devaraja asked her father as to why he was cutting the paddy crop. In turn, her father told that it was his land and who was he to ask the same and asked Devaraja to go from there. Devaraja dragged her father towards the road and assaulted on the hands of her father with machchu and again assaulted on the head with same machchu. In the meantime, her 43 mother, came crying and saying not to do anything to her husband. At that time, the accused Anand assaulted on her neck and head. They sustained bleeding injuries. Her aunt Shanthamma was standing inside the land. The three workers, who came to cut the paddy crop, were also present there. Accused Anand and Devaraja went towards Allagere holding machchu in their hands. Then her aunt rushed to the spot as her father was still alive. P.W.1 Shanthamma brought water through the pallu of the saree and put the water into the mouth of Somasundara. Her mother died at the said place. By the time, the murder of her parents took place, it was 10.00 a.m. In the cross examination, P.W.3 deposed that on the date of the incident itself, at the spot, she gave her statement before the police at about 10.30 or 10.45 a.m. Police had taken her statement by handwriting. When she had seen the police for the first time on the date of incident, it was 10.15 a.m., and the police came to the spot in a jeep. Normally, her family members were taking 44 food at 8.00 or 8.30 a.m. Along with her parents, herself and her brother Praveen also had food in the morning. Even earlier to the incident, whenever her parents were going to the field, she used to carry the meals to them. On the date of incident, in their house, they prepared mudde (Ragi ball) and uppu saaru. When her parents and aunt left their house, it was about 9.00 a.m. Ten minutes after the departure of her parents and aunt to the field, herself and Praveen went towards the said place. She further deposed that on the way, herself and Praveen met accused Devaraja and Anand. At that time, accused Nos.1 and 2 were walking fast and went ahead them. Five minutes after Devaraja and Anand went ahead, they reached their land. Her parents and aunt did not see her and Praveen. When they reached the field, her father was in the field itself and they were standing nearby the toobu, but they did not go nearby the field. The place at toobu is at the distance of 30-40 feet from the paddy field. When they stood nearby the toobu, quarrel started between accused 45 Nos.1 and 2 and her father for about 20 minutes. Their mother also stood behind the accused at little distance. When the quarrel was gong on, her father was holding sickle so also her mother. Accused Nos.1 and 2 by picking up quarrel, pushed their father and took him towards southern side. In that process, the sickle in the hands of her father fell down. Neither herself and Praveen nor her parents or the aunt called any body for the rescue. Her father sustained injuries to hand and immediately, thereafter he was assaulted on his head with machchu by Anand and Devaraja. At that time, he fell down and her mother came to him telling the accused not to assault him. The place where her father fell down was a tar road. Her father received about 6-7 blows and her mother received 3 blows. All the 6-7 blows to her father was from Devaraja and all the three blows to her mother was from Anand. Their mother thrown the sickle there only and came towards their father. She does not know whether the police have taken the sickle of her mother and father. 46 While giving the statement before the police, she has stated that her parents had taken meals to limited quantity. She has also stated before the police that her parents told her to bring meals to them so also she has stated that as she was not feeling well on 17.1.2003, treatment was taken by her. As the police did not ask, she did not state in her statement that while going to the land, they saw the accused holding the machchu and that, they thought that the accused were going to cut the trees. She has further deposed that her aunt has come to the Court and her uncle Ningaiah also has come to the Court. She denied that she has been tutored by the police and by her aunt and uncle to give the evidence in a particular way. Witness volunteered and deposed that whatever she has seen at the time of incident, she has deposed the same before the Court. She denied the suggestion that herself and Praveen had not been to the field and denied further suggestion that the death of her parents has not taken place nearby the land in the manner she has deposed. She 47 denied the suggestion that the police have not at all come to the spot at 10.45 a.m. nor she has given the statement before the police. There was no enmity between the accused Anand and Devaraja and between themselves.
25. P.W.9 Praveen deposed in his evidence in examination in chief that he knows all the accused before the Court. P.W.1 Shanthamma is his aunt, P.W.3 Pallavi is his elder sister. His father Somasundara and mother Mayamma are no more. They were murdered about 2½ years back. Their murder took place at 8th toobu nearby the land of Doddakothagere village. On 18.1.2003 morning, his parents and aunt after having the meals of limited quantity, went towards the land at about 8.30 a.m. Himself and his elder sister Pallavi were in the house. Himself and Pallavi went to the land to know from his parents as to at what time they have to bring the meals. While going, he took tyre of the bicycle. When they were so going to the land, they saw accused Nos.1 and 2 48 proceeding towards the land holding machchu in their hands. Those accused are before the Court. When they went nearby the land, accused Nos.1 and 2 were quarreling with his father nearby the tar road. Accused No.1 Devaraja asked his father as to whose land it is and why he is cutting the paddy. For that his father told that the land is of him and what are they asking. When the accused Devaraja was attempting to assault his father on the head and to prevent the blow, his father raised his hand and sustained the blow to his forearm. His father was again assaulted with machchu. Then at shoulder portion and upper arm, his father got bleeding injuries. Seeing the same, his mother rushed to his father and at that time, accused Anand assaulted his mother with machchu on the neck and on the backside of the head. Thereafter, he assaulted on her left shoulder and she sustained injuries to left fingers. His mother was also sustained the injury on her waist. Then accused went towards Allakere road by holding machchu in their hands. When this incident was 49 going on, he witnessed the same nearby toobu. Then Shanthamma, the complainant rushed to the spot and brought water through the pallu of her saree and put into the mouth of his father. They also went to the said place. Thereafter, his aunt went and informed the police over the phone. The workers who came from Chakanahallli also witnessed the incident by standing at the place which was at higher level from the surface of the land. As per the instigation of accused Nos.3 to 7, accused Nos.1 and 2 assaulted his parents. He has stated about all these things before the police.
In the cross examination, P.W.9 deposed that he does not remember as to how many times, he came to the Court in connection with this case and he does not remember the first date when he came to the Court. Whenever, he came to the Court, his uncle, aunt and his sister used to be with him. On the date of giving evidence, his aunt accompanied him. But he denied the suggestion that he was tutored to give correct date and 50 month while giving evidence. On the date of incident, mudde (ragi ball), rice and uppu saru were prepared in his house. He had food along with his parents at 8.00 a.m. The field is about 1 k.m. from his house. When there was holiday for school, himself and his sister used to carry the meals to his parents to the field. On the date of incident, there was no holiday for the school. After five minutes of his parents left the house to the land, himself and his sister went towards the land and reached the land within five minutes. When they went to the land, they did not talk to their parents. His aunt was standing on the land and quarrel was going on between the accused and his parents and it went about 20 minutes. Neither his sister nor his aunt called anybody for the help. The place at which he was standing was at the distance of 30-40 ft from the land. He stood at the place which was at higher level from the surface of the land. His sister was with him. The accused Devaraja assaulted his father with machchu holding it in his right hand. The 2nd blow of the accused Devaraja was 51 on the head of his father. Then his father fell down. Anand assaulted his mother on her neck with machchu and then on the head. After accused Nos.1 and 2 left the spot. Then only he went towards the place where his parents were lying. His sister also accompanied him. When police came to the spot, it was 12.00 noon. When statement was recorded it was 12.30 noon. The police recorded his statement with the pen. He gave statement before the police. But as he was in a panic mood, he could not say anything about the facts that when accused Devaraja tried to assault his father with machchu on his head, to prevent the same, his father raised his hand and at that time, a blow fell on the fore arm. In his statement, he has stated that when the incident was going on, they were witnessing the same by standing nearby toobu and his aunt was standing in the land itself and three workers from Chakanahalli were standing at uphill/the place which is little higher level from the surface of the land (eri). He denied the suggestion that he is deposing falsely, that on 52 the way, he has seen Anand and Devaraja who were proceeding towards the land holding machchu and he has witnessed the incident by standing at toobu.
26. P.W.15 Chikkaraju deposed in his evidence in examination in chief that he knows the accused before Court so also he knows Somasundara and Mayamma who are no more. About two years back, on one day, he was called by Somasundara to cut the paddy crop. Himself, Shivanna and Yoga, they three persons went there. Devaraja and Anand came there and asked them not to cut the paddy crop. The accused assaulted Somasundara on his head with machchu and at that time, himself, Yoga, Shivanna, Somasundara, wife of Somasundara and wife of the younger brother of Somasundara were present. When Somasundara was assaulted, Mayamma went to his rescue. At that time, Anand assaulted Mayamma with machchu on the back side of her head. Thereafter, accused 53 nos.1 and 2 went towards Allagere road holding machchu in their hands.
At that stage, P.W.15 was treated as hostile at the request of the prosecution and when cross examined by the P.P., he deposed that it is true that he has given statement before the police on 18.1.2003. He admitted that when he gave statement before the police he had stated that when accused Devaraja and Anand came to the land, they told that dispute is going on, and called Somasundara to come outside. Somasundara in turn, told that the land is of him and who are they to ask the same and stating so, Somasundara came outside from the field and after passing the cannel, he was climbing uphill/the place which is little higher level from the surface of the land (eri). So also he has stated in his statement that because of the fear, they did not come out of the field. He has also stated in his statement that when the incident took place, Pallavi and Praveen, the children of Somasundara were present.
54
In the cross examination by learned counsel for the accused, P.W.15 deposed that he was knowing the names of Pallavi and Praveen the children of Somasundara even earlier. Pallavi and Praveen came to the said place on their own. It was at 10.10 a.m. Pallavi and Praveen were standing at the distance of 10 ft. from them. He does not know whether Somasundara spoken to Pallavi and Praveen because they were standing at the distance. By the time Pallavi and Praveen came to the spot, accused Anand and Devaraja went away. He has not stated in his statement before the police as per Ex.D3 to the effect that Somasundara was climbing the Eri. Neither himself nor Shivanna or Yoga made any attempt to avoid the incident. And they have not at all called anybody for the rescue. When the incident took place, he was standing on the uphill of Doddakaluve. He deposed that Police have recorded his statement three days after the incident. He denied the suggestion that he has not at all went to the field of Somasundara and denied further suggestion that 55 the accused Devaraja and Anand have not at all come to the field of Somasundara nor they have assaulted Somasundara and Mayamma. He denied the suggestion that to give trouble to the accused, and at the instance of brother of Somasundara he is giving false evidence.
27. P.W.16 Shivanna deposed in his evidence in examination in chief that he knows the accused, Somasundara and Mayamma. About two years back at about 10.00 a.m. he had seen Somasundara and Mayamma cutting the paddy crop in their field. The sister in law of Somasundara was also present with them. Himself, Chikkaraja, Yogaraj also went there. Anand and Kariyappa came to the said place and told Somasundara that if he cuts the paddy crop, then they will finish of him. Kariyappa assaulted Somasundara with Machchu. Mayamma rushed to the said place. At that time, accused Anand assaulted Mayamma with machchu and they sustained bleeding injuries. Accused Nos.1 and 2 went 56 towards Allagere road holding machchu in their hand. Police have recorded his statement. He has not seen the children of Somasundara at the said place.
He was treated as hostile by the prosecution and when cross examined by P.P., he denied the suggestion that he has given statement as per Exs.P.9 and P.9(a) to 9(c). In the cross examination by learned counsel appearing for the accused, he deposed that when he had been to the place, it was 10.00 a.m. and the deceased was cutting the paddy crop. He had not went inside the land where Somasundara and Mayamma were cutting the paddy crop. They were in the said place for about 15 minutes. Thereafter, they went to their village and again he did not come to the said place. Police recorded his statement three days after the incident. He has not made any attempt to inform about the incident either to the family members of Somasundara or to any other members in the village. He has not stated before the police about attack by accused telling Somasundara and Mayamma that if they 57 cut the paddy crop, they will finish off them. Himself, Chikkaraju and Yogarju went from the said place after 15 minutes. He denied the suggestion that no such incident has taken place and the accused have not at all committed the murder of Somasundara and Mayamma. He denied further suggestion that at the instance of brother of Somasundara and to give trouble to the accused persons, he is giving false evidence. Mayamma also fell down by the side of Somasundara.
28. We have perused the judgment and order of acquittal passed by the trial Court. Looking to the said judgment, the trial Court disbelieved the case of prosecution and ultimately, acquitted the accused on the following reasons:
(1) There was land dispute between the accused, the complainant side and the deceased and taking undue advantage of the same, false case has been booked against the accused persons.58
(2) Even though it is the case of prosecution that Shanthamma-complainant-P.W.1, P.Ws.3 and 9-
the children of the deceased and three workers of Chakanahalli were present in the field, when the incident was going on, they have not went to rescue of the deceased nor made hue and cry to call somebody for the help. Hence, their conduct is unnatural and abnormal.
(3) There is inconsistency in the ocular evidence and medical evidence.
(4) Recovery of the weapons and blood stained clothes were not properly and satisfactorily proved by the prosecution.
(5) Though P.W.1 claims that she informed the police about the incident at about 10.30 a.m. over phone giving the names and details of the assailants, deceased and also about herself, even then the same was not entered in the station diary and not registered as FIR.
59
(6) Though it is the case of prosecution that the paddy crop was cut and nearby the dead body there was stone and blood stains, the investigating officer has not seized the cut paddy crop and the blood stained stone nor referred the stone to the doctor for opinion.
(7) The evidence of prosecution witnesses as not worth believable.
29. Let us examine these aspects with reference to the materials placed on record.
30. With regard to the observation made by the trial Court that there was land dispute between the accused and the deceased and their family members and because of that reason there was false implication of the accused is concerned, the materials go to show that there was a land dispute between the father of the deceased Somasundara and accused No.3 Shivanna. But the evidence of P.W.1 60 Shanthamma and P.W.3 Pallavi clearly goes to show that there was no any sort of enmity or difference of opinion between themselves and accused Nos.1 and 2 - Devaraja and Anand respectively. This aspect of the matter has been totally ignored by the trial Court. The evidence of prosecution witnesses has also been wrongly interpreted by the trial Court and it has come to the wrong conclusion. When it was deposed by P.Ws.1, 3 and 9 that there was no difference of opinion or enmity against accused Nos.1 and 2, the question of falsely implicating them with the charge that they have committed the murder of Somasundara and Mayamma does not arise at all. At the most, the land dispute and the enmity is in respect of other accused, more particularly accused NO.3 Shivanna. But against Shivanna accused No.3, there is no allegation that he has committed the murder of Somasundara and Mayamma. If at all P.Ws.1, 3 and 9 wanted to falsely implicate the accused persons in the case, they could have deposed in their evidence that there was enmity and difference of opinion 61 even with accused No.1 Devaraja and accused No 2 Anand. They could have also made an allegation that even accused Nos.3 to 7 were present at the spot and participated in committing the murder of Somasundara and Mayamma. Therefore, the observation made by the trial Court in this regard is not sustainable. In this regard, we are referring to the decision of the Hon'ble Apex Court in the case of KUNDLIK VS. STATE OF MAHARASHTRA reported in 1980 Supp SCC 178, wherein Their Lordships have observed as under;
"Criminal trial - appreciation of evidence - in absence of previous enmity between parties, false implication of the accused out of question."
31. It is true that the evidence on record goes to show that P.W.1 was standing in the land when the incident was going on and she had not made hue and cry nor called anybody for help. Only on the basis of this, the Court cannot come to the conclusion that the respondents- accused have not at all committed the alleged offence. 62 The Court has to see the entire materials on record to come to such conclusion. The evidence of P.W.1 Shanthamma has supported the other materials on record i.e., recovery of the weapons used as per M.Os.5 and 7 machchus and also the blood stained shirts about which we have already discussed in detail. Even the FSL report also shows that there were blood stains on the two machchus and shirts were also blood stained. It is also the finding of the FSL that the blood stains were human blood. If at all there is no involvement of accused Nos.1 and 2 in the alleged offence, then there was no possibility of their shirts having the blood stains so also the machchus which were seized as per the voluntary information furnished by them having the blood stains of human blood. It is true that the serology report marked as per Ex.P.25 shows that the blood group of the stains on item Nos.3 to 5 , 8 10 and 11 could not be determined because the results of the tests were inconclusive. But only on the basis of this, the FSL findings cannot be rejected in toto. In this regard, we are 63 referring to the decision of the hon'ble Supreme Court in KHUJJI ALIAS SURENDRA TIWARI VS. STATE OF MADHYA PRADESH reported in AIR 1991 SC 1853, wherein Their Lordships have laid down the proposition as under:
" (D) Penal Code (1860), S.300 - Murder -
appreciation of evidence - blood stains of human blood on weapon and clothes of accused - blood group of stains not determined - does not make the find of human blood of no consequence-
direct evidence that accused inflicted knife blow on deceased - find of human blood on knife and clothes of accused - corroborates direct testimony."
The relevant paragraph is para No.10, which reads as under:
Mr. Lalit, however, argued that since the report of the serologist does not determine the blood group of the stains on the weapon and the pant of the appellant, the mere find of human blood on these two articles is of no consequence whatsoever. In support of this contention he 64 placed strong reliance on the decisions of this Court in Kansa Behera Vs. State of Orissa (1987) 3 SCC 480: (AIR 1987 SC 1507) and Surinder Singh Vs. State of Punjab 1989 Suppl (2) SCC
21. In the first mentioned case the conviction was sought to be sustained on three circumstances, namely, (i) the appellant and the deceased were last seen together; (ii) a dhoti and a shirt recovered from the possession of the appellant were found to be stained with human blood; and (iii) the appellant had made an extra-
judicial confession to two witnesses when arrested. There was no dispute in regard to the first circumstance and the third circumstance was held not satisfactorily proved. In this backdrop the question for consideration was whether the first and the second circumstances were sufficient to convict the appellant. This Court, therefore, observed that a few small bloodstains could be of the appellant himself and in the absence of evidence regarding blood group it cannot conclusively connect the bloodstains with the blood of the deceased. In these circumstances this Court refused to draw any inference of guilt on the basis of the said 65 circumstance since it was not 'conclusive' evidence. This Court, however, did not go so far as to say that such a circumstance does not even provide a link in the chain of circumstances on which the prosecution can place reliance. In the second case also this Court did not consider the evidence regarding the find of human blood on the knife sufficient to convict the appellant in the absence of determination of blood group since the evidence of PW2 was found to be uninspiring and there was no other circumstance to connect him with the crime. In this case we have the direct testimony of PWs 3 and 4 which we have considered earlier. The find of human blood on the weapon and the pant of the appellant lends corroboration to the testimony of PW1 Komal Chand when he states that he had seen the appellant inflicting a knife blow on the deceased. The appellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that the aforesaid two decisions tuned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human 66 blood on the weapon or garment of the accused is of no consequence. We, therefore, see no substance in this contention urged by Mr. Lalit.
32. We have also perused the statement of accused NOs.1 and 2. they have not at all explained as to how and why their shirts were having the blood stains so also M.Os.5 and 7 which are seized as per their voluntary information which was ascertained from the FSL that they are the human blood stains. Looking to this material, the oral evidence of p.w.1, 3 and 9 also gains support from FSL as well as serology report about the complicity of accused NOs.1 and 2 in committing the alleged offence.
33. With reference to seizure of the weapons M.Os.5 and 7 and a pair of chappal M.O.6, the photographs are produced as per Exs.P26 to P.32 about which reference is made while referring to the evidence of witnesses. The trial Court has observed that the place from where M.O.5 and 7 machchus were seized is a place which is accessible to the 67 public and hence, the recovery of M.O.5, 6 and 7 cannot be relied upon. But the trial Court has not at all perused the photographs while coming to such conclusion. It may be true that the place from where M.Os.5 to 7 were recovered is a fence put to the garden of one Narayan Shetty. It may be true that as gate to the said garden was not having lock, anybody could entered into the garden, but that does not mean that everybody can have access to the place where M.O.5 to 7 were taken out and produce before the police. We have perused the said photographs. They clearly show that the weapons and a pair of chappal were hidden in such a place where the public have no access to the said place, though there may be access to the garden. Therefore, only on the basis that the witnesses have not made hue and cry nor tried to call anybody or tried to went to rescue of the deceased, the evidence of eye witnesses P.Ws.1, 3 and 9 cannot be rejected. In this regard, we are referring to the decision of the Hon'ble Apex Court in case of ANGAD VS. STATE OF MAHARASHTRA reported 68 in AIR 1981 SC 1227, wherein Their Lordships have laid down the proposition as under:
" Penal Code (45 of 1860, S. 300 - Charge of murder - appreciation of evidence - evidence of eye witnesses cannot be rejected only on the ground that they did not intervene to save the deceased (Evidence Act (1872), S. 3). "
34. We have gone through the oral evidence of PWs-1, 3, 9, 15 and 16. So far as the evidence of PWs-15 and 16 is concerned, they have turned hostile and not fully supported the case of the prosecution. But so far as the evidence of PW-1/Shantamma, PW-3/Pallavi and PW- 9/Praveen is concerned, their evidence is consistent, cogent and worth believable. Looking to the evidence of PWs-3 and 9, the children of the deceased, in their evidence in the examination-in-chief they have stated that while going to the land so as to ascertain from their parents that at what time they have to carry the meals, PW-9 Praveen was proceeding with a bicycle tyre. During 69 the course of cross-examination of these two witnesses, this fact deposed by both the witnesses has not at all challenged by the defence. Even perusing the photographs produced as per Exs.P-51, P-70, P-69, P-71, P-72 and P- 68, the tyre of the bicycle is clearly visible. This is also one of the circumstances, which shows the presence of PWs-3 and 9 in the said place at the time of incident. About these aspects Trial Court has not discussed anything. It is the observation made by the Trial Court that if really PWs-3 and 9 are the eye-witnesses to the incident and very much present in the land, PW-1/Shanthamma could not have missed this fact to mention in her complaint Ex.P-1. It is true that in Ex.P-1, there is no specific mention about the presence of PWs-3 and 9 at the spot when the incident was going on. But, that by itself is not a circumstance to reject the entire case of the prosecution. Complaint is to set the criminal law into motion and FIR is not the encyclopedia to contain all the details exhaustively, and during investigation the Investigating Officer will collect the 70 relevant material after completing the investigation. According to the evidence of the Investigating Officer, IO has recorded the statement of PWs-3 and 9 i.e., Pallavi and Praveen on 18.01.2003 itself i.e., the date of the incident. It is true that looking to the oral evidence of PWs-3 and 9, regarding some facts elicited in their evidence that there is an omission that they have not mentioned about those facts before the IO while giving their statements. But so far as PW-1 Shanthamma is concerned in her evidence she has narrated all the relevant facts and looking to the cross- examination of the IO there is no reference by the IO about any omissions of PW-1 Shantamma. All these aspects of the matter were not properly appreciated by the Trial Court. Only on the grounds that in the complaint there is no mention about the presence of PWs-3 and 9 and there are important omissions in the statements of PWs-3 and 9 about the facts they have spoken in their oral evidence the entire case cannot be rejected. The incident has taken place on 18.01.2003 and the oral evidence of 71 the witnesses PW-1 was recorded on 13.06.2005 i.e., nearly after 2½ years, the evidence of PW-3 Pallavi was on 14.06.2005 and evidence of PW-9 Praveen was recorded on 16.06.2005 i.e., almost 2 ½ years, there may be minor discrepancies in their evidences. But so far as the quarrel between the deceased and accused Nos.1 and 2 and accused Nos.1 and 2 assaulting the deceased with machchu and causing the bleeding injuries, Somasundara and Mayamma collapsing on the ground after sustaining the injuries there is clear evidence from all the three witnesses i.e., PWs-1, 3 and 9. The incident took place at 10.00 a.m. in the broad day-light and looking to the cross- examination of PW-1 Shanthamma nothing was elicited from her mouth so as to disbelieve her evidence that she also went along with the deceased to the land for cutting the paddy crop. Therefore, her evidence is natural and worth believable. So far as the evidence of PWs-3 and 9 is concerned, though it was suggested in the cross- examination that they have been tutored by their aunt, 72 uncle and other family members to give the evidence in a particular manner, which suggestions were denied by the witnesses. Therefore, looking to their evidence it clearly shows that their evidence is free from tutoring from anybody and whatever they have seen they deposed before the Court. When the evidence of PWs-1, 3 and 9 is trustworthy, it cannot be rejected only on the ground that there are omissions in their statements. In this regard, we are referring to the judgment of the Hon'ble Apex Court reported in AIR 1979 SC 1234 wherein Their Lordships laid down the proposition as under:
" Criminal P.C. (2 of 1974), S.162 -
Evidence Act (1 of 1872), S.3 - Statement of Police - Omissions in - Effect of. The statements given by the witnesses before the Police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but mere small omission will not justify a finding by a Court that the witnesses concerned are self- contained liars. "73
35. Before coming to the conclusion in the matter the principle under Section 3 of the Evidence Act of appreciation of evidence is that the Court has to consider the entire materials placed on record both oral and documentary in totality and to see what is the cumulative effect emerges out of such appreciation and Court should not appreciate the piece of evidence either oral or documentary in isolation before coming to the conclusion in the matter. There may be some minor discrepancies but the question is whether the discrepancies will go to the root of the matter or not and the proof of the case by the prosecution beyond reasonable doubt need not necessarily a perfect proof. In this regard we are referring to the judgment of Hon'ble Apex Court reported in AIR 1978 SC 1091 wherein Their Lordships laid down the proposition as under:
(A) Evidence Act (1 of 1872) S.3 - Criminal trial - Proof of guilt beyond reasonable doubt -
Standard of proof.
74
Credibility of testimony, oral and
circumstantial, depends considerably on a
judicial evaluation of the totality, not isolated scrutiny. While it is necessary, that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction.
In para No.2 of the said decision, it is observed by their lordships as under :
2. Credibility of testimony, oral circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are 75 prone to err, it is argued that it is too imperfect.
One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up? No, we must be realistic.
36. The Trial Court has also observed in its judgment that there is an inconsistency in the medical evidence and oral evidence and on that ground also it disbelieved the case of the prosecution. The Trial Court observed in the judgment that with regard to the number of blows said to have been given by accused No.1 on deceased Somasundara with machchu and accused No.2/Anand said to have given on deceased Mayamma with machchu are not consistent with the PM reports Exs.P- 76 4 and 13 respectively. The witnesses PWs-1, 3 and 9 have deposed in their evidence that they have seen accused No.1 assaulting Somasundara with machchu and accused No.2 assaulting deceased Mayamma with machchu. When the two ghastly murders took place in the presence of PW- 1, 3 and 9, the witnesses are not supposed to count the blows and the Trial Court is hyper-technical in expecting the same from the mouth of the witnesses. Even looking to the oral evidence of the prosecution witnesses they have deposed the portion of the body at which the accused assaulted with machchu on the deceased, it is true in the PM report Ex.P-4 the doctor, who conducted the PM examination has mentioned 7 injuries and in the PM report Ex.P-13; pertaining to Mayamma, the doctor mentioned 6 injuries. We have perused the nature of the injuries sustained. If the Trial Court is more particular, expecting from the witnesses about the number of the blows given by the accused, the evidence of PW-3/Pallavi clearly shows that her father received 6 or 7 blows and her mother 77 received 3 blows, which is also consistent with the number of injuries said to have been sustained by the deceased. It is true perusing Ex.P-13 the PM report pertaining to Mayamma is concerned, though there are 6 injuries are mentioned but out of the 6, three are the incised wounds and injury Nos.5 and 6 are skin erosion and injury No.4 is to the little finger. So this also probablises the case of the prosecution about the number of blows received by Somasundara and Mayamma, this aspect has not been taken into consideration by the Trial Court while evaluating the oral and documentary evidence placed on record.
37. We have already made it clear that the ocular evidence of PWs-1, 3 and 9 is worth believable and they are the eye-witnesses, even if, for the sake of appreciation it is assumed that there is a inconsistency, that by itself will not render the ocular evidence as unreliable. In this connection we are referring to the decision of the Hon'ble Apex Court reported in AIR 1973 SC 1204 in Para No.11 78 of the said judgment it is observed by Their Lordships as under:
" 11. No doubt in the judgment of the High Court we do not find any reference to the decisions in which the Privy Council and this Court have laid down the principle which the appellate Court is expected to keep in view when dealing with an appeal against the order of acquittal. But the judgment of the High Court clearly shows that it went into all aspects on which the prosecution evidence could be criticized and concluded that the evidence was fully trustworthy and that the medical evidence, shaky as it is, did not throw any doubt on the trustworthiness of the prosecution witnesses as to the place, time and circumstances in which Ramratan was killed. This, in our view, should be sufficient to justify interference by the High Court with the judgment of the trial Court. This Court had in Gopinath Gangaram v. State of Maharashtra, Cri. Appeal No.99 of 1967, D/- 15- 10-1969 (SC) adopted a similar approach. However, in the peculiar circumstances of this case, we have also ourselves considered the evidence to which our attention was drawn and 79 in our opinion the trial Court seems to have attached undue importance to some of the observations of Dr.Panwar in the witness box, extracted in cross-examination in the trial Court long after the post-mortem, without correctly and fully appreciating the overall effect of his evidence considered as a whole along with the post-mortem report which had been prepared contemporaneously with the autopsy. Without examining any ballistic expert and without even knowing what kind of fire arm had actually been used for the murder in question, the trial Court had also, in our view, erroneously discredited the testimony of the eye-witnesses on the basis of the medical evidence. The evidence of the eye- witnesses was not fully and correctly evaluated, it was discredited on the basis of somewhat unsatisfactory testimony of the doctor which on proper judicial appraisal does not contradict the version of the prosecution witnesses as to the manner in which the deceased was shot at. The evidence of alibi of Chandrapal Singh was also wrongly considered to prove his absence from the place of occurrence at the time of the crime. Similarly the testimony of the investigating 80 officer was doubted for reasons which appear to us unsubstantial and insupportable. The High Court on the other hand paid closer attention to the evidence and material on the record. scrutinized it with greater care and held the testimony of the eye-witnesses to be acceptable with respect to the time, place and manner of the murder of the deceased. This evidence, in our view, was not rendered untrustworthy because of its inconsistency with the medical evidence which was also scrutinized by the High Court with greater care and anxiety. The appraisal of the evidence of the investigating officer by the High Court carries greater conviction, being more rational and objective. "
38. The Trial Court has also observed that looking to the evidence of PW-19/Doctor, who conducted the PM examination over the dead body of Mayamma, during the course of cross-examination deposed that at the time of conducting PM examination Police have shown her two large weapons. The two large weapons which were shown to her were like iron choppers and she said that those 81 weapons were not shown to her by anybody but they were lying there and she saw them. She has not made mention of it in Ex.P-13, she saw those weapons when the dead body of Mayamma and her husband found lying together on the road. Later, when they were kept in separate places, she did not see those weapons. In view of this evidence of PW-19 the Trial Court assumed that these two are the iron choppers which were lying at the spot itself and therefore, the theory of the prosecution that the accused after the incident went away holding the iron chopper in their hands, cannot be accepted at all. But this observation of the Trial Court is totally misconceived and it is not in accordance with the materials placed on record. In this connection during the course of arguments the learned Govt. Pleader Sri Vijaykumar Majage clarified to the Bench that the deceased while going to the land were carrying the sickles for the purpose of cutting the paddy crops and even in the oral evidence of PWs-1, 3 and 9, it has come that when the quarrel started by the accused 82 with the deceased both the deceased i.e., Somasundara and Mayamma left their sickles there only and they were lying. Hence, he submitted that those two sickles found at the spot were the sickles carried by the deceased. We have perused the spot mahazar Ex.P-12, wherein it is mentioned that nearby the dead body of Mayamma one sickle was lying and nearby the dead body of Somasundara another sickle was lying, apart from that there is acceptable evidence on record to show with the help of the eye-witnesses that, immediately after the incident the accused persons carried the machchu in their hands and went towards Allagere road, there is also evidence of panch witnesses PWs-10 and 14 that in their presence the accused took out and produced MOs-5 and 7 machchu from the fence to the garden of Narayana Sheety and produced before the IO. Apart from that PW-19/Doctor has not stated specifically that she has seen MOs-5 and 7 machchu at the spot by the side of the dead body, what she has deposed is the weapons like machu were seen by 83 her. We have also perused the photographs produced in the case, which are marked as per Exs.P-27, 30, 31, 32 and looking to the weapons in the said photographs they are also like sickles though termed as 'machchu'. Therefore, in view of these materials on record we are of the clear opinion that Trial Court is not correct in observing that the evidence of PW-19 show that she has seen the machchu at the spot and this falsifies the case of the prosecution, is not a correct view.
39. Looking to all these materials on record, it cannot be said that there is inconsistency in the ocular evidence and the medical evidence and we have already observed above that even if it is presumed for the sake of appreciation that there is any such inconsistency then it will not make the ocular evidence as unreliable.
40. With regard to the complainant lodging the complaint before the Police under Ex.P-1 is concerned, it is 84 no doubt true that, as per the prosecution case the incident has taken place at 10.00.a.m., then PW-1/Shantamma came to the shop of one Bhatta at 10.30 a.m. and informed the Police over phone about the incident. It is true, it has come on record in the evidence of PW-1 that she told the names of assailants, names of the deceased and her name and address, and the place of the incident to the police. It has also come on record in her evidence that she has spoken about ten minutes to the Police. Admittedly, the Police have not produced station house diary entries before the Court during the course of the trial. Though it is stated by the witnesses that he had entered the said information in the station house diary. It is also the argument of the defence that the whole incident started because of cutting of the paddy crop in the said land and though it is stated that some paddy crop was cut, the Investigating Officer has not conducted investigation in that regard and not seized the cut paddy crop, so also it is the argument of the defence that nearby the dead body 85 there was one stone having the blood stains, which was not seized and sent for FSL for examination. Regarding all these submissions, there is no doubt that the Police machinery in-charge of the investigation of the case were supposed to do all these things but they have not done it. So we can say that there is a faulty investigation or defective investigation to that extent. But so far as PW-1 is concerned immediately after the incident she went to the shop of one Bhatta and informed the Police, which is also admitted by PW-20/K.B.Javarshetty, who was the Station House Officer at that time. In his evidence he has clearly deposed that on 18.01.2003 morning at 10.30 a.m. when he was the SHO, one Shanthamma W/o Ningaiah informed him over phone that her brother-in-law Somasundara and Somasundara's wife were murdered and asked him to come immediately. Therefore, no fault can be found with PW-1 and her conduct is also natural in immediately going to the shop and informing the Police. But so far as inaction on the part of the Police in not entering the said 86 information in the station house diary and non-seizing of the cut paddy crop, non-seizing of the blood stained stone said to be at the spot and not sending for the examination is concerned, it may be a lapse on the part of Investigating Officer. But only on the basis of that, the entire case of the prosecution cannot be disbelieved, when there is cogent and acceptable material placed through the mouth of the witnesses. In this connection also we are referring to the decision of the Hon'ble Apex Court reported in the case of Dhanaj Singh alias Shera and others Vs. State of Punjab in AIR 2004 SC 1920 wherein their Lordships laid down the proposition as under:
(A) Penal Code (45 of 1860), S. 300 -
Murder - Faulty investigation - Effect -
Court has to be circumspect in evaluating the evidence - However, accused cannot be acquitted solely on account of defective investigation - To do so would tantamount to playing into hands of Investigating Officer if investigation is designedly defective.
87
41. We are also referring to the another decision of the Hon'ble Apex Court in case of STATE OF U.P. Vs. HARI MOHAN AND OTHERS reported in AIR 2001 SC 142 where in Their Lordships have laid down the proposition as under:
(A)Criminal P.C.(2 of 1974), S. 156 -
Investigation - Defective in nature - Cannot be made a basis for acquitting accused -
Moreso when a case is made out against all or any one of the accused persons.
The relevant paragraph in the said decision is Para No.9, which reads as under:
" 9. Before appreciating the circumstantial evidence in the case, we are at pain to place on record our displeasure regarding the conduct of the investigation in the case. The investigating Officer appears to have left no stone unturned to help the accused-respondents. It appears that the valuable evidence, though available, was not collected apparently for ulterior purposes. The 88 conduct of the investigating officer SI D.P. Tiwari (P.W. 7) was even noticed by the trial Court. On 30th October, 1978 while recording his statement, the trial Court observed that "it appears that the IO was negligent and an irresponsible investigating officer". It was noticed that "the witness giving aforesaid statement and it appears that he wants to damage the prosecution case". It is not disputed that during investigation it had come in evidence that respondent No. 1 was possessed of a licensed gun which was stated to have been used by him on 15-3-1977, the alleged day of occurrence, yet no effort was made by the IO to seize the gun or get it examined by an expert to ascertain whether any shot was fired from its barrel. He also failed to have taken into custody the letter written by the deceased for a sufficiently long period though its mention was made by the P.W.1 in the FIR itself. However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. It is unfortunate that no action can be 89 taken against the IO at this stage who, in all probabilities, must have retired by now. "
42. Perusing the materials on record, we agree with the findings of the Trial Court that the prosecution has failed to establish that accused Nos.3 to 7 have instigated/conspired with accused Nos.1 and 2 for committing the murder. Perusing the entire materials on record, both oral and documentary, we are of the opinion that prosecution has proved its case beyond reasonable doubt that it is accused Nos.1 and 2 who committed the murder of Somasundara and Mayamma. The view taken by the trial court cannot be said to be the only possible view to be taken in this case in so far as it relates to Accused Nos.1 and 2 are concerned. Hence, the judgment and order of acquittal passed by the Trial Court in favour of Accused Nos. 1 and 2 is not sustainable in law.
43. Hence, we pass the following order:
90
(a) The appeal preferred by the State as against respondents Nos.1 and 2/accused Nos.1 and 2 is allowed.
(b) The judgment and order of acquittal dated 16.09.2006 passed by FTC-I, Mandya, in S.C.87/2003 is hereby set-aside in so far as respondent Nos.1 and 2 / accused Nos.1 and 2 are concerned.(c) Respondent Nos.1 and 2 / accused Nos.1 and 2
are convicted for the offence punishable under Section 302 read with Section 34 of IPC.
(d) Perusing the materials on record and looking to the oral and documentary evidence in the case and as it is not the case which comes under the rarest of rare cases, accused Nos.1 and 2 are sentenced to undergo rigorous imprisonment for life. 91 (e) The respondents 1 and 2/accused No.1 and 2 are entitled to benefit of set off of the custody period which they have already undergone, as per Section 428 of Cr.P.C.
(f) The concerned trial court to secure Respondents No.1 and 2/ Accused Nos.1 and 2 to serve the sentence.
Sd/-
JUDGE Sd/-
JUDGE Cs/BSR/-