Rajendra vs State Of Karnataka on 27 May, 2010

[Cites 13, Cited by 0]

Karnataka High Court

Rajendra vs State Of Karnataka on 27 May, 2010

Bench: V.G.Sabhahit, S.N.Satyanarayana

   

1
IN THE HIGH coum OF KARNATAKA AT BANGALORE
DATED mxs THE .3'? DAY OF M3 Y zagmo

PRESENT

 

THE HON'BLE MRJUSTICE v.G.sLA3HAm'f  _ "  

AND I

THE HON'BLE MR.3usT3:cs:_ s.N;siALrYA:qA:§;A\{Ar_SiAi%

 

L CRIMINAL APPEAL Ne;_;_794"OEV:2bO§V:§
CRIMINAL AéP'EAL'   2903

CRL.A   

1.Rajéndra . . ,   
S/o Kempa'i'aﬁ',  .-- 
Aged ah~out._2-.6 'years,
NQ;236, HI;-Vi House,

~   l;_ars.._ Cofo hv,' "
" «.Nagash_e"t._ti Ham,
' .-Ban g.a'i.<.,>"r.e 3- 94.

2.'Ra%mes'fzA'I,_ 
S"/.0 Ski-n"ivasa Acharya,
 Agedabout 23 years,
,  ..Neo.1"42, Nagashetti Halli,
 Bangalore - 94.

...AppeIlants

 .:'_'={~SL'i.B.V.Acharya, Senior Advocate
  for Sri.T.J.Chouta, Advocate)



And:

State of Karnataka

Represented by the
State Public Prosecutor,

High Court Building,

Bangalore. 

(By Sri . H. M.Thimmaray:-"J ;;p%al,   =s--p_l;9~qb"1jy_¢':«

Prosecutor)

CRLA No.1816[2003
Between: .

1. Munegowdé:-L  
S/o Munlé-aj;v;i',_. _   
20 years, Neon-.v'.'15'.,_3    "V_ "
Nagashe.ttia!"galI.F;,   .. 
Bang--a'lore; -- "94. 

2. Munl"a_-aju ' _ (fcislead  
S/o Late .Su'bb''a'n.n'a.,. '
52 years, l\.'o.'13=.'_2,"~*"
Nagasphettahlavlli,

 B.a_i%ag3'aVlo,y_re --'V9v4---.-«"  Appellants

V.*,(_SrVi".My.'T4[l%!;alrn'a-iah & Shankarappa, Advocates

for-fappve-l..l_anV},.~~N0.2, Sri.G.S.Ba!agangadhar,
Advo"cate"r.f_oi- appellant No.1)

 ...+=.

"-.l___"l$JtAa;te' by Hebbal Police
 T _4"R..e--p. by S.P.P.,
 "High Court Bldg.,



Bangalore. ...Respondent

(By Sri.H.M.Thimmarayappa, Sp|.Pubiic 

Prosecutor)
****>l<

These Criminal Appeais are."f'ile:d.'V'un'de~r_

Section 374(2) Cr.P.C agaiinstthe-:'j--u'd.gm'ent?
dated 21.11.2003 passed'».14b§r'a..the._ "Pi-l." .."€2it*;rj
S.J., Bangalore, in S.C.VNo.78_/91 - c'_on'vv'ic't3ing 
the appellants/accused 'N.Vos.4.. 8: 5  6, v '

respectively for the '"-vof=f.ence's._ '=p'un"i:shabie
under Sections 143, 148"'r,ea.d with_14?9 IPC,
302 read with Section ;1"49..'jIP'C_ and 324 read
with Section 149 EPZC_a'nd.j_'se"nte'n.cing them to
undergo S.I. for two.c_Amonths.l'*f.o~r the offence
punishable under-v--V~.5:ec'tiAo_n  IPC and
further they~,a'r.e i5ent'.en«cé£.i'-..VtoVf'undergo S.I.
for 3 mo_ni._ths'i'i'_.for.1the_,offen"ce punishable
under Se;cti:o.n""'1y4>8---.j--rgéa__dy_ 'with 149 IPC and
further -sVe»ntencing'v.' ~ _the_r?n to undergo
impris.ron'amge"51t "--si'x m'"o"n'ths and to pay a
fine of Rs.S't}0../"~.y ea't~h_,.I.D., to undergo S.I.
for one 'm0nth'"=,f'o.r"=.the offence punishable
under Sectilon'-.3'2'4_r"e_a'd with Section 149 IPC
and furth-'er Vs-en~!ce'n"cing them to undergo
imprisonment "for" life and to pay fine of

«=,_Rs.1f'«0O__O,/yv- ea"cvh..mI.D., to undergo S.I. for

t'i1re"e ""n:1on«ths for the offence punishable

v.V,u'n..d'er S_e'c'_t~io'r=_ 302 read with Section 149 IPC.

H-ow_eyer',.,VV .t'h..-e substantial sentences are
ordered to.f_r.un concurrently.

"ufheise appeals having been heard and

:?".""--._reserved' and coming on for pronouncement
' ..this day, Sabhahit 3., deiivered the
"_foliowing:-



JUDGMENT

These appeals arise out directed against the judgttien't« ._of_ and sentence passed in4'V__'S_essio"_ns""C'aseV'=, No.78/1991 by the PVr'i"nv:c'*i.pai" 'C_i_t'v Judge and Specia~!.V_«' Jtjid"g'.e;h»'B.ang;ial'ore City dated 21.11.2oo3.it"% §i:_e~.si';;:'f/Q4/2003 is filed by ac.cets'ed in the said Sessions 9-1 and Cri.A. i'h"y"'"ai}ccused Nos.2 and 5 in thiestaiid isiegsusite ns:'t:'(:a.se No.78/1991. T__he V"ap----peliants in these appeals, found guilty of the offence pun.i'sihaVbi.V'e'j_'V.'5'tinder Section 302 read with '.Secti"o.ntg_1V49 IPC, have been sentenced to Qiniidiiérégo imprisonment for fife and to pay of Rs.1,000/- each, in default to iivuhindergo SI for three months for the offence \,{~'3='L"' punishable under Section 302 read with Section 149 IPC. The appellants have ﬁeyen found guilty for having committe_'§1»V.':"ue:t'Vhé..A offences Punishabie under Sections""'.143g.VVi'i"4'£§fKi... read with Section 149 offence punishable under ':';'J5_§ection'»'_.3'2'q«. with Section 149 IPC to undergo SI for two_ mio'nt.h's'Tf-oér the 'offence punishabie under and they are further SI for three punishable Section 149 IPC.

They re ' *.4iu_.V.'s.:e:n.'tenced to undergo imprisonrnteruvtyif.or~,siit months and to pay a enyfinefiiafi__iRs_,506"/v--....each, in default, to undergo "o:ﬁie'vi.:§é1--onth for the offence punishable un"de*r 324 read with Section 149 IPC ' land aiiithye substantive sentences have been I e.o»rd'e'r.ed to run concurrently.

3. The essential facts of the case leading up to these appeals with referenc"e.jto the rank of the parties before the Judge are as below:

It is the case of the pi:os:esc:;:tioin~ 16.08.1990, Ka Iappa', Alsv.svistar1:'t:{t...,...$E1bF Inspector of R.P.l\iagarV_'!4_l?o_l'i--cve who was SHO, receivVe*:.izV:i" about the incident that .o.ccur:r~--etifats.5ii.,a'§av_s«h'.e"'t'tyhaIii and that He conveyed the said'n:{1.ie.§:.g;;qe3;Qé' was working as C.i?.I,_.iiJ';i£,.!§i:agart"-V.._Cirfcle and PW14, his superior it who working as ACP, Yesh-.gvanthpur_"' sub»-Division: On receiving fl-"'«\_(\Is.13 and 14 went to the spot.

Yeshwanthpur Sub--Division, after. 're'ceAi'*viing message about the rioting "":?'.'A"--.a'ndVoLmxurider in the limits of Hebbal Police St.a't»ie:'n, rushed to Hebbal Police Station. By l':"th_aFt time DCP, Ramamurthy was present in \}v''* Police Station. Both of them went to the scene of offence and they posted bandobast for the scene of occurrence and PW.14 to take up inv'estigation.""i-..:

meanwhile, PW.12 ---- Beli;ia"ya'pp'a, working as CPI, J.C.Nagar Pollicite Sta't'ion,iV':.:.Io.n"~_ receiving a phone ca'i'-!.:"fron1'._P'SI.y Police Station he instructed PSI to attend to the and he Proceeded" along with Kala p p'a".'" 'gt: ;5'_i"t'a'i§, o n e M a nj u n ath (cw.3I)'.oyeasIt§,'i}i'ee%e.i;j[:t}:I_ out, he did not give any aminietia%onIraeem.t the incident. He ~"'.,_iear'fn?t Jaiga-dish (PW1) had been shifted Vii'-.if'roi'n._E.a'pt'is't~.Hospital to NIMHANS Hospital an'd""'ifror':u§ei'j__fhere to Bowring Hospital and 't*~.._'_ vrecorded the statement of Jagadish (PW1) as I He returned to the poiice station handed over Ex.P1 to PSI and the same u".w'as registered in Crime No.23?/1990.

4. It is averred in the complaint filed by PW1 that he is resident of Bovi Co.i'O--ny, Nagashettyhalli, Bangalore - 560 15.03.1990, at 2155 hrs, hiS""'~..:b!fovther..'-"..,, Shamanna (deceased) was."Mhavi,_n'--«g wherefore, himself and has~u.ber_me.».twenties). the ciinic of Dr.Nara\/'aha and.)"'\nr'E*Ie"n'VVVVtheyat were at a distanc'e..,_of:25'iV..ft.VV""hf._romthe clinic Muniraju (accused) Puttachari (accused questioned as to how)" stay and ca me (accused No.2) also and accused No.2 was holding" a: Accused No.2 stabbed ahn'd~ ----- «Shamanna fell down and the spot due to injury. when the'°(coén{.§;_!.ainant went one-step ahead, fl§aray..an;_aswamy (accused No.3), son of ~~VPutit"achari (accused No.1) assaulted him on head with a rod. Accused No.4 was aiso ("present at the spot. He became unconscious KM-"~ 9 before he could identify other persons who were present at the spot. He had purchased a site from one Tigaiara Shamanna was enmity between him and (accused No.6), MunegowdaiW(a'ccuse'di.:_'N_o52i')V and Rajendra (accused l_\lo.4V4), Puittjac"hiVa.'r'i~.("

(accused No.1) and his - V. and accused No.5 ~!.?_'ﬁuttacr.;iii;j;ﬁ'*5._A siﬂsifé',-"g son and action should eh them regarding due to instigation? piaiaih, M unegowda and Cihan i incident is witnessiédii V (PW4), Thimmegowda' that his brother (waAs"v-----taken in a jeep to the i.h--o's.:pi.ta|"v.oa'|1;d~i:.th..at the complainant was taken (to station by Ramaiah and 'K,.,__i(r_»ishn'a..p"p:_ahiin a car and thereafter, taken to and he learnt that his brother ii"-.___'c'i'.§ecVi; due to injuries sustained in the assault. B"?

10 The said complaint was registered at 0245 hrs. during the night of 17/18-8--1990.g-"'--._'g S. PW14 took over investigation in this case"""a'nd_ case registered on the basi__sl"~_of thve.A"counn:.te:r'~_ complaint filed which-v.._j"wasV. in' Crime No.236/1990.: He' the"'s'c:ene of offence which is office at Nagas hetty_ha;l:Vi'i_ ma hazar as per of panch witness and From the spot, he seVVi"zAe"dg_ towel (M0.6) and broken ub4i.ec.es~__Vof"'~c\ricket bat (MO.9) and .--'v.é_wooCii:en_ll'sVticl{""(M_()'.8) and blood stained mud vK_an:Vd"«ugrrst~a;i«vn'ed mud (Mos.15 and 15) from the scene oflloffiénce. At about 3.40 p.m., cw12 'gprodauucerdlvxbefore him Muraegowda (accused "..b£o.'l2v.)_, HRajer:dra (accused No.4), Ramesh '-«l.'-{accdsed No.5). He arrested them. Accused and 5 were wearing blood stained 12 under Mahazar Ex.P5. Narayanaswamy (accused No.3) led him and panchas to.j"h--.is uncle's house and produced an iron he seized the same under Ex.P6 asNpie._:r On 26.8.1990, he iiroduceidii"'a'cc*4us-:e-ﬂiti'~_i§»!,o".'i3_7 before the Court. On the statement of Pw12;....:'~.HeV\ sketch from PWD On 20.09.1990 he sent articles to F.S.L. I charge to CW.9. the case was taken p_'e'r'ﬂthe directions of the con.me.ssa.;..7e.;pg.£eee:m¢e. He verified the investi_gatio~n"alr-ea'--dyviiconducted. He visited :_~"th_e Hosp--Eet'al and police station and .ifrLomT "collected information about ,_condiitiioni."'Vito? accused No.6 when he 'was viii'-«._a'd_mittedjto Bowring Hospital. He learnt that .'__a'~VrT:"cA;IVs"'e_.d No.6 was already discharged from iV'-.___t'heV';hospital. He recorded further statement PW1. He visited Nagashettyhalli and \) 14 received the sketch of the scene of offence from the Engineer, PWD as per Ex.P12. wg'"'0gn 22.10.1990, he received back the from FSL and report as per received the extract NIMHANS as per Ex.P2Q and.__e':.eo eix'_tgifactV'=--o'fv.'V sun of Hebbal statgicml V"'oc.ge"ted

16.08.1990 as perIE3.P.21".'n.'V..:'}ftVeo'-._co!flectéd the documents given to PW1, which §a«a':e{_'at and after completing" filed charge sheet for the Sections 143, 147, 148, 3_24,'"3tO"2V_reAé:_d"~~~'vvith Section 149 IPC. c'o'm-mitted to the City Civil and S,es.esiovn's.._.iudgge, Bangaiore and numbered as Since accused No.1 had .:u...__dei_ed framing of the charge, charge :_w.fas'f"r..amed against accused Nos.?., 4, 5 and (accused No.3 was absconding) for the VV"'--w._"fa~bove referred offences. Accused Nos.2, 4, S K) 15 and 6 pleaded not guilty and claimed to be tried.

6. The prosecution adduced of PWs.1 to 17 and got from Exs.P1 to 25. Ex.p1 vv'as".Vn1arl»{_ed'vii1n*i:uh'~eV"* evidence of PW.3 and V marked. The sta"t~emeVrn't*'Vr_§4fT"'a_ccuisvediéunder Section 313 of code.'wail7'c'riuiﬁV:;r}1ai_'_.Procedure was recorded:i.:VVL:V1'. the accused was one their case that false against them as couxntieri complaint filed by them_agwa"i..nstV_'2:hes"accused and they have "*«bAee..jj'3.fa.,IV:sely in1p-.--icated. The accused did not V'-ic'h.'oo's_e»_,i;Ao:,'i~e:a=d any defence evidence. 7~..ﬁ'«;_TVi1e learned Principal City Sessions '~.:'i_i"uAd;g'e after hearing' the learned counsel for 'V'-.___""aci:used Nos.2, 4 to 6 and on appreciating "xthe orai and documentary evidence on record \r-j5 16 heid that prosecution had proved beyond reasonable doubt that Shamanna suffered homicidai death and pw1 has injuries and prosecution has proved:

reasonable doubt that acc:Lis»e'd«.2:*«.and':"§4_ have committed offences Sections 143, 147, 148i,"-5:5-i24,V. Section 149 IPCi"a.nd .rs'ennten"ced fac'c'used 2 and 4 to 6 as :'Vto:_if"--fa:hi'o_ye by the judgment V 8," """ ":3eiiindﬁhag"g.r'i-eve'd""by the judgment 21.11.:2_O:0.'_3; 5 have preferred Crl.A.'No.x1'Z?i9'4/V2Obi)»:-3'~.-"iiVand accused 2 and 6 ..hav..e'i'1~pir._teferred"€----r«l'.A. No. 131 6/ 2003. Accused Accused No.2 died during the peinden the a ppea I. 17 .9. We have heard the learned Senior Counsel appearing for the appellants.j""'--in Crl.A.No.1794/2003 and the learned appearing for the appel|.Vari-ti Cr|.A.No.1816/2003 and theiiiiiear«.ne'd.:,:_"Statiep Public Prosecutor appearing. * ' respondent and the reply""'a:r"gume*--nts..:.'.:

10. Learned for the Appeal N o. 1 7 9 4 / ed N os . 4 a n cl 5 bef:'o'r"e Judge in Sessions" submitted that the prosec'ut'ion}.hAa_s"~~:miserably failed to prove ""t_haif:L_j'3ac}_cV:used 'N'o..g.;4 and 5 had committed any presence at the spot itself and not satisfactorily proved rizpyeyondiiﬁreasonable doubt. Learned senior submitted that though in the V"-..__""co'mp|aint - Ex.P1, name of accused No.5 is "mentioned, it is stated that no overt act is '\,L5~ 18 attributed to him and name of accused No.4 has been stated at the end of the complaint only to show that action shouid against him. In any View of the overt act is attributed to ascc't:'"s'ed'-«aN0..};j."'.gnvd:7it."'.

is Stated in the compia:i'nt"._.that_~_iA'sve've:.ra,i* persons were present gathered and mam}~.,iad'.iie's'.nsh'audi-.._aisiioivgathered and he saw son of Kempaiah, "see others, he became wherefore, even accord'ci'n'g--.VtV.AfV;.;? made in the _.(accused No.4) was compia"int_._ ' Raj'e.n'id.r"a, present '°aion9', people, who had ""'«aAs9€.:$:1h..|VAed there---.-----«"Accused No.5 was not seen :,co:m.piainant. However, in the eviiidieince'V'o.fA.i:;PW.1, he has stated that accused was holding the left hand and accused was hoiding the right hand of

7..._":"'Sh;amanna, the deceased and accused No.2 ﬂestabbed Shamanna with a knife and that 19 accused No.6 was instigating the other accused. The said averment is not founjdojin the complaint and is an improvemen_t.__'m.'a'd'e;~V. Further, the learned senior "~._coju.rise'i-..:

submitted that the very incident has not been :4'pr'oi:ed'»'V_*v_i_by'~ prosecution beyond According to the.'i3V_ros'.ecu.t'ij4d§§i',._'the"'iricident took place near there is variance be§twi.e:Ven ---- Ex.P6 and the -per Ex.P12. The said clinic and who advised the re|ati_ves'i'c..f to take Shamanna to ""theJf'ho.sp..italit"'imwnediately, has not been V'=e'x=aimai_ri'e_dQ"._"Learned senior counsel further sdbn1iitte.dir:'i.t«hat PWs.2, 3 and 5 are not eye- VW.'__'vwitnesses to the incident and their evidence "h'aA.sVii'b«een recorded two months after the date V'=_.._1'V"'ofV'j;the incident i.e., on 06.10.1990 and no ulexpianation is offered as to why there was \,*vv"

20

delay in recording the statement of the eye- witnesses. Further, the learned senior counsel submitted that it is not the statement of eyewwitnesses recorded, Ex.D1 got markec_l'Min"«tg_h-e of PW.3 would ciearly ' statement had been reciovtiritied v.e'a.rl'i.e:'r Investigation office"r..,,.§n'd'"'a'tter"'s't_hetchanvjge of the investigation Qftiiic-eggriifoiinii filed to the of PWs.2, 4:? recorded on case of the prosecution have not witnessed the incid"e*nMt'.wV'V._ not stated in the Ext}-"1 ---- -that PWs.2,4 and 5 were Evidence of PW.3 is also he has admitted that Ex.D1 VH__'wuas recorded about two months after the the incident. Even though the eye- 'v*____"vvit[nesses were available before the date of V"vl"r.ecording of their statements i.e., \..<'3 21 06.10.1990. Learned senior counsel further submitted that the prosecution has miserably failed to prove that accused were present at the spot and committed any offence alo:n§"wi_t"h accused and wherefore, theyare e'r_iti'tvled':.4'.t'oVN"

be acquitted and the sentence Passed i:W.._the""tryi:i;lu:"'C_9urt"is"'V:liable to be set aside andiiéiiacicuised 5 may be acquitted.-of':-_thieWHoifiienyciiesVwviyoyjrvyivwhich they have been;

appearing for the appellant'*--.._V%N vNo.-__1A1_" Criminal Appeal is arraigned as accused the trial Court in S.C. No'.f8l'/1V9é§.j1.7'Vsubmitted that the appellant v7»,__4'No.24"-.. villi'-liyuvniraju (accused No.6) died during ipendency of the appeal and he argued on of appellant No.1 -- accused No.2. from the arguments already addressed \9«/1 22 by the Eearned senior counsei appearing for accused Nos.-4 and 5 about the scene.-=.__of offence and the deiay in recordin.Qm"t4'tEiu:é..,, statements of PWs.2, 3 and 5 M witnesses though their nam"et"i's.not ,stiat_ed'-fi.~nVi"--w the F.I.R., iearned counsel that the materiai on \'M.oui_"d show that there' the evidence of the evidence which couid not be made of appeiiant No_1 """ counsel false complaint was filed by 1=$tw.1,-g,3ta~._gaedish as counter-blast for ""~«attpheijeogbtajpiaiat~med regarding the death of No.1 by the accused herein the prosecution has faisely %i',.,_".i_mplicated accused No.2 and has not proved ,,f£_h.et""guilt of the accused beyond reasonabie and wherefore, the judgement of ujjconviction and sentence passed by the triai LS-> 23 Court is liabte to be set aside. He also submitted that there is delay in recording the complaint and despatching I-'.I..R. V-"-:3.pr1d there is also delay in sending the the jurisdictional Magistrate and M the case of the prosecugt'i"o"n.A_i"s _:re'n.de'r-edit:

highly doubtful and V the:__ conviction and sentence»..o.rp--assed.b»y:"_:tVh:e""trViaE Court cannot at all:*'!)_e s«u's'ta_:i*nVVe¢;£.

12. Learned RState__Vi';-.VEvu.'btSV:ticV:%'~Prosecutor s u b m itlt'e"d_TAt;h'a't¢f:.; 'wt rti 'a'§~~- Co u rt h as rig h tly considered ' H and documentary evidenceiiiiiaadduVc.ed._Shit' the prosecution in the pi"er_spe"c'ti._v._e.; The prosecution has V7_p'ro'ved--v.__b~evéo~n_d reasonable doubt that PWs.1 Vﬁifiitnessed the incident and that '.they"a.r"e. eye-witnesses. PW.1 is an injured V' "..ev.yAAe'i+'wfitness and the prosecution has proved reasonable doubt that the accused committed the offences, for which they vﬁ 24 are convicted by the triai Court and sentence imposed upon the accused also does not.-C-.ail for interference in these appeals.

State Public Prosecutor argued in if the judgement of convict§'o}i""an'd .;se'ndten-Ce passed by the triai Court.

13. Having rvegxard'.Al""tVoVc.:'j4the' al:)b'veVE said contentions urgedllilliayl counsel appearing that arise for in these appeals are:

the finding of the . ..t}lr'i'Vai'i Covu'r.t:_____'c___i1,at accused Nos.2, 4 committed the offences _. under Sections 143, 148 "."i'ead'.i--l'ci'i_,.§:'..ith Section 149 IPC and A usecatjoii 302 read with Section 149 _ and Section 324 read with '._»_"S:"A:action 149 IPC is justified or calls for interference in these appeals ? \s-»i=» 'O 25

2. Whether the sentence imposed by the trial Court for the offences proved against the'.._W appellants herein is justified calls for interference in th'~e'se-dd' appeals ?

3. What Order ? ' and we answer the abovedpoints a's_ifollows:~ Point No.1: 'F.he fviind..in»g'---of t.h'eV""t1.r*i"al Court is to f. material on

5.. reco rd. s tijnot ju sti fi ed a n d Aitit-"iVs.__::l'§rab,l'e.,._to be set aside.

_ Poini§'No.2:V .,doesv' not survive for consideration in view of our AV"~"answer to point No.1.

No.3: as per the final order for the l'o'\iv i n Q:

Li 26 REASONS

14. Learned counsel appearing Appeiiants has taken us M evidence adduced by the g5r'o"3'ecuti,oh';i«._*§o.f.hH"; ocuiar and documenti'a__r'V_ .e_-vi*den'<:"e--..,i"

Prosecution, in order of the accused, ha":;_ exVAa"ntijtte't:._.'Pvtiésti 17 and got marked '_»__and Ex.D1 was got PW.3 and the marked M.O. Nos.1 1;'o""2--2';':L;' "*::: "

15. itdmayj.bnsﬂa-'dated at the outset that No.1A"-~----P.«uttachari died even before 'th'ei_"~charge-sheet. Accused No.3 -~ Na'ra'van.a§\_«f4..amy died during trial. Muniraju -- V%"'--«___"A»ccused'; No.6 appeiiant No.2 in Crl. A. "5£o.,ii1"8§.16/2003 has died during the pendency i"-liiofiigthis appeal and wherefore, the finding of "the triai Court regarding conviction and L:

sentence against accused Nos.2, 4 and 5 has to be considered in these appeals. Prosecution is mainly relying upoi?V:'V"-téehze-.. evidence of the injured eye-witness M Jagadish, who is the broth'e"r"'«of the deceased, PW.2 --V Ak:<ayaik%.%.1m;.,yl 'met":{{e_i§:l~V of Shamanna, the dece:aVsed.V' -- Jagadish, PW.3 who according to the an eye-

witness PW.-4 --

La ks h m a m' " fig-;-1-... Sh a m a n n a , th e deceasviecl,--.'V.V.A:':§'W':.::f$"-- 4'j'.Vyf:'haﬁ"d'rappa, who is also an to the prosecution and Manjunath, who is the "*.b(led':iji:3~a;l,_iAV:0.,ffic'e'rv...who conducted post mortem 'Veran1ViyAn.;.§/tliioini'over the dead body of Shamanna between 2:30 p.m. to 3:30

16. PW.6 has deposed in his iﬂeexamination-inwchief that on 17.03.1990 at Vt/3 28 2:30 p.m., he conducted post mortem examination on the dead body of Shamanna and found the following external "1. Abrasion over left side face Cms., in front of ear _ it 1.5 x .75 cms. 2 ' V A

2. Stab wound over left lf;jlo'n,t«. "

of chest 8 Cm'Sl.._V""f.rom"-mid_lidne{_:2--~... Cm. below left placed sharp margins .n.'cl'é-an f'_'..ci:._.t-~out, measuring;"4" " at

3. wound 4 cms.

ibeiow -__in_vj"u.r5y No.2 measuring 1.52" 0.5 cm skin deep.

'§'i'~?l._CedHwobliclueulv margins are cut, both ends are ' sfha1'rp. "

Vshéasvdfurther deposed that on dissection of No.2, it was observed that weapon

2 "-.:ié'ntered after cutting skin and muscle has \/V' 29 entered the intercostal space in the mid axillary line cutting the 5"' rib into t_\_:__vo pieces near the sternal end. The we.4a'pfo..n"--vV then pierced lower lobe of left lung lower border anteriorly thrtoughjﬂlayntd»llimas entered pericardium and ventricle obliquely mli"d.dl~ex upwards, backward,-spy has given description of has also described aun-ojtvhergr -- left plural V_1'O::l§i"n1:ll".VVV'of blood and blood were intact and pavi.'eA." were ante-mortem and freshwhin vnatulI'.e'.u:.?I-\brasion was bright red "Vin VF'-5w..,_6__y.vhas opined that death of .WSh.a"rnanynaf-.j'm_ust have occurred 12 to 24 hours plr'i'--"o;_rg?Vto conducting the post mortem 'Vexan'1..:d*{ue to shock and hemorrhage as a A frelVs'lu'l..t of stab injury sustained by him. He further deposed that injury No.2 is insufficient to cause the death of a person in Km 30 the normai course and injury No.2 could be caused by a knife.

16.1 Nothing has been eiicitefi crossvexamination of Pw.6 todisbeii'eei(e'"*h"i.s evidence that Shamanna sus':tai--.':ne'iVd iih.o"mxicVidi'a¢i"'ii_' death and the post-mort-e:"m_ him - Ex.P3 wouid...cie'a-r--iv§'1v--_c'o%Arro'boicatV,e the evidence of PW.7. wouid clearly suffered homicidai it is for the prosecVut'i'o.n;"tofgifgr.o\.i'e'--::tAha-:tVi...h»omicidal death of ShamaV:n_na4'_ 'thy the appellants' herein 4 and 5 in S.C.

-~ Krishnappa is the owner of Ithe \.Nx.hiCh was used for shifting PW.1 to A ..f_thVe"'h'ospitaI, who was injured in an assault. has deposed in his evidence that he lent car and advised CW.25 to bring PW.1 to

k)» 31 Baptist Hospital. He went to the hospital on his scooter in advance and by the time _.the Car arrived, he got PW.1 treated in hospital. The duty Doctor did him anything about the histor-ye. inform anything about?' him Thereafter, he took the advice of the vB.octor'*--ua'nd"*~-he .'vv'aHs. tvviieated there and from PW.1 to Bowring Ho_sp;it.al of the Doctor. PW.1 in the Car when Baptist Hospital.

The through out until he was VVa«dirn,itVte4d_Bowring Hospital. His .-'~.«_neiV_g'i3b:o'ur came and informed him V"-ealjiouet-.t4h~e«.:ihc_ident. He gave keys to him and asked toixtake the car to shift'PW.1. it It is elicited in the cross-

'«i«'--'eigaz?nination of PW.7 that he has not stated ""V.:.ih'efore the Police in his statement that the Vim?"

an incriminating material against the appeliants herein.

18. PW.8 -- Babu is a witness"

seizure of clothes of Acc§Js'e*d. it and mahazar - Ex.P4. 3-lo\}vV_ei.I.eA'r, supported the case of ° V was treated as hostilep..a'n~ri_:'-n"octhinag---ha~s been elicited in his cross-feitiaininiaiitioin.to support the case of_.t«hhe'---proseiciiti_o'n',--.._ ' "

18"."'1~ elicited in the by the learned prosecutor that o_Vn'«.:§'5.O8.199O, he was again the"'P.o.!ice to witness panchanama in the Poiice Station. Some cio't'i1«inc;;;'V--"f'j_ iévas shown alleged to have 'a_perta~.in'ed to accused No.3 and same was 'Vf_"seii2"ed. under the mahazar Ex.P5 as per EVjLx.P5(a). Thereafter, the police took him, accused No.3 and other staff in the Jeep to \,J\ 34 the house of accused No.3. Accused No.3 produced one rod and it was seized under mahazar Ex.P6. It is elicited in his cross- examination by the learned _.c_'o.u'n.s.e'lx appearing for the accused that it to suggest that he has not the proceedings of Exs.P4 signed the same in the P..o"i'--i,ce VSta't'i.o_"'n

19. PW.9 - Shivara_mi'»vis'wwa wi't"n.e_ss_9to the spot mahazar -- deposed in his evidentze"*~...:a:pbo':ii§'t' 'l_5'o'lice drawing the mahazllarll M.O. Nos.10 to 13 from_thgigpvaptp'v._aAb:._d"~~--the mahazar v- Ex.P7 on Aallnd-----«"also seizure of one club pieces as per M.O. No.8 and jiblood stained turkey towel and VV'--«___".lqroke~~n"'-cricket bat as per M.0. No.9. He has A ":ideh'i'ed the suggestion that the said mahazar was drawn in the Police Station and "that he has not at all gone to the spot and \.x.--4< 35 that he is deposing falsely to support the case of the prosecution. The evidence of PW.9 wouid only show that M.O. Nos.6,.f'8e, 9 to 13 have been seized from the Ex.P7.

20. PW.10 ----- Kempaiaihg Assistant Executive En'g.t:i"neerVh in'iVK:eeVehVi'hyalii V Sub-Division. Na.gasAh"e'ttfyh"a._IIi 'cornes in Kegenahalli sub-d'ivisi§o--ri'.:" issued certificate '_per§;_ that there was $7-3s11pp'I-y "'_"'("u'ninterrupted) to NagashettyhaVl'i§.i"s«.:'i'oLi1«.,:'::"1..6..08.1990 during the whole ti"i_»'S"~.-"»ievidence has remained ~'"~._unc.'o:'ntrVov_erte'd~~----as he has not been cross- learned counsel appearing for the 'a'cc'used.' Therefore, his evidence fvvou!'d~.i"«show that there was supply of {e!AeVc"t:~«ricity to Nagashettyhalli during the iv'9'night of 1 5 .03. 1990.

36

21. PWs.11, 12, 13, 14 and 15 are Police officials, who conducted the investigation and assisted the Investiga'tifo..n"--VV Officer.

22. Pw.16 -- Dr. Trishuia v;..-is \;v~o%'r:{in:g[i'"_-;un"*1.i_i Casualty ward at Bowring:j%a_os[A3"'itaI and has deposed that onVAi-1~iV$.";':98--»,L"19r9G--:aAt_.about 1:30 p.m., she A:',l'S:Il;Shamanna, aged 30 years:

M a n j u n a t h        m a n n a w a s
 the main road.
On  that B.P. was not

recordabi'e.,_Vtn.oV'r_es.p'i~r_'ation, pupils dilated and ther.e____jwas no heart beat. On .We'x;am.iTnvation';..she noticed one stab injury and a|so"'b|ee'daji_n'§V from both the nostrils. Patient "d..e"'c.;lared dead at 10:30 p.m. The iron A found in the wound was removed. It H found to be a double edged knife 'iupointed. She handed over the same to A.C.P. 37 of Hebbal Police Station after sealing it with a covering fetter. She has identifiedT"."'tThe extract of the accident register Ex.P17 and also the letter C.P.I., as per Ex.P24. sne;has«sau;%so about the injuries sTustaii'ne'd Jagadish, who was exa"mji'ned and has stated thértsh"eWf'o'uh"d._the--Hf'o'l'!owing injuries on the bodyiriof "1. $4§vie'!.ii"h':g:'Gii'.a._H"t!ti-:5'é_r=*iiip of the rivght part of the u ppe' r_ Ce Ii ti-"a'!° vi r;

one'.iV_iaVcerated wound 1 1/2" x '' '. ''1.'4'.:':)( */g" over the posterior part of "-i'__th'e47«!.,ei't;'v~'barietaI region. Bieeding "'"prc:seVrit with contusion of 2" x 1 .. Vuo_.'/2""-éround it;

\,E;,2§ 38

3. Tenderness over the chest and abdomen upper part present."

She has further deposed that the case of PW.1 - Jagiadiiisiz ortho and dental. She op:i_'ne'd'~ opinion about injury from Dentist 3 were simple in to the q uestion, inju ry No. 2 could be with an iron rod.

She register ----

Ex.P2$K¢ entry has been marked as«.p'e is elicited in the crossw ei(a'niéina't'io_n: of P_W.16 that it is true that Vi'=___ixshamanna was brought dead to the hospitai. A":ShVei"'~~_.has not conducted the postmortem i'-_.._Ne)i;amination over the dead body of ﬂishamanna. It is not true to suggest that \/W?' 39 there was no iron piece in the body of Shamanna. It is true that she was not expected to remove any objects (foreign body) from the dead body. It elicited that the injuries serveydf-..:onil."thee:

person of Jagdish could contact with hard, blunt and:'r.ough,."_;$'ur"fa'ce./V Such injuries could be caused of the fall on the rovugh It elicited in her cross--examinati'o;nfv learned counsel for;~'a'c:yc:yi.ase=d that certain namesw """ '-.fa'ccu's"ed"§ persons were in Ex.l325. In a medico-lVe'ga'l ca_se.V,"'t..iie patient would be first __in the......_hospital and then only, they information and if not, they would the information to Police. 'v_Befo"reV""l_3rVinging the injured to the hospital, 'X_heVVff"was taken to NIMHANS. The injuries 'V"-____"".'no:ticed by her on the said Jagadish was *~v_V_a 40 fresh and bleeding. The injuries noted couid be caused in a road accident.

22.2 PW.16 has deposed M further examination-in-«chieftha«_t¥,the:r:é._is"--no'":

rule as such that the dead body should not there is no rule ﬁbVo"ct"or can remove the implant§__" f¢:ﬁ'c~_.ited in her cross-exam§..n'e:t;i.onlrtheiit person is brought to dead person, the body ﬂth"e'"h%1ortuary for post- h In her further examination'--iVn§cAh,_E'ef'; she has identified M.0. ﬁts..p_the'"k---n----§fe removed from the dead V":I_5o.dT_y~soof:_:'tS'h:e'h1anna, the deceased person. It is'Ae'Eicite'di._iYn her further cross-«examination itvddis true that in Ex.P24, the tetter, it is A V~:t_ﬁoVtt""mentioned about the description of the wt?' 41 22.3 It is clear on appreciation of the evidence of PW.16 that her evidence would aiso support the case prosecution that Shamanna homicidal death and wouldiiﬁlrthefj if when she examined

17.08.1990, she found "t..h"r.ee ivin'-i"!ﬁ'i:Q:SVV'V.';bVhVVVfhe " ' body of Jagadisrhuxan'ci=i:_:'oi1-~e inj'u.r.y"E was grievous and two Min'ju:.-.i7e;s __'wje..r"e-. simple in nature. It _is._c'i.eair facts elicited in her the said injuries couldjbe" in contact with hard injuries sustained by Jagadishx"=co~uVl:d._ Ab.Ve'«.r.ucaused in a road traffic "'«..acc':ij£ie;y_n;t...t_ HeV'r've.i:.i'dence would also prove the V'*~.y_rele'vuAa'n:_trheiitry in the accident register - Ex.P25(a). However, it is for 'gthe prforsecution to prove that injuries found A ":ff'onrt~lae body of PW.1 -- Jagadish were caused 15.33; the appellants herein as alieged by the I'-

\5i'x}'i' 42 prosecution and as per the charge framed against the appellants.

23. It is clear from the "

material on record that proved beyond reasonah'lVe:*._lﬁdouht~_ , Shamanna suffered Pw.1 -- Jagadish su.f_fer'e'ci' one was grievous in nature were simple in nfaturje. 'fovrove that it was the t:h:--.eA"'~.av;§_o:eilants herein and the ﬂa's'V~--'jValIeged by the homicidal death of Sham_annxa~,% l'._Vil'n«;i'~'uries to PW.1, the "V"«.prov$_€ec;»uV:tion ..... ..mainly relying upon the :VoVf:'PWs.1 to 5 as also the seizure of blood stéﬁnled clothes from Shamanna, the 'i.decea.5'é;_dvand also recovery of knife made on C_thVel""l)asis of the voluntary statement given accused No.3. However, that material would not be relevant for the purpose of mi:

44

about 9:45 p.m. on 16.08.1990. Complaint has been registered on the basis of the complaint given by Narayanaswagnéjffi<_§.;..,, accused No.3 (since deceased) it No.236/1990 regarding ;t'He~. ﬂ V-.bfx"g Puttachari. In the vsaid2K__ Jagadis h has been No.3 and after Vcomp..i'e'tiVn;guV""s._invﬂeistigyation, Shamanna was faicotlsed No.6 and since charge-

sheet, hex? deceased and c h a F9 9 a i n st a c c u s ed i\3os.1 to i' No. 6 as dead and the sa~id'vco'vmAp_lua'i'--~nt filed by accused No.3 ""~hAer=eg_:ii:1 regis.i:..e'red in S.C.No.13/1991. Sessions Judge has rightly pr.oc'e'ed.e'd:'j__on the basis that since Crime i"-,_4is:§;os.23cg_a'nd 237 of 1990 pertain to death of and Puttachari and though they V"-_.__'""'arie separate incidents according to the ﬂiprosecution, he has properly foilowed '\_,.:.=> 45 the procedure of completing the evidence in both the cases independently and therea,ft.er, disposing of both the sessions S.C. No.78/1991 arising out appeals and aiso S.C. Nr5.mi3',*'1*.39.1.xV:on:v't:he"'. same day i.e., 21.11.2003.

25. Scrutiny of ti'1_e"--~._ma't'erial would further show thaVt___2t'h_e'r_»e 'n_Q_nAg7erit in the contention "i"ea:rn_ed counsei appearing forthefa'p-:5'el'ia"n_tsVT there is delay." complaint and despat"chi.ng to the jurisdictional Magistrate. asVvthie_i'm:aterial on record would "V..gle3_:r1ly_...Vsh.owA'thv-atthe injured PW.1 was first ashiiftec:..¢:_:'t.ol~.::'B.aptist hospital, thereafter, to from there to Bowring Hospital 'and h~is";.statement has been recorded in the A ":.BolIi}'|*_.ing Hospital as per Ex.P1. It is clear the evidence of PW.1 himself and also 'ﬂfthe evidence of the medical officers '1 46 examined on behalf of the prosecution and the wound certificate and accident register extracts marked on behalf of the that PW.1 was taken in the Car Hebbal Police Station ar;(d"'V"froI'n Baptist Hospital and from and from there to Bowri'n:§'-.,Hospita.lT it constables of the°...v_ran=kW Vliead""Constable were not present .;tiheV~.siloi__iéc'el_=S'tation, their statement b4e"'a]revco§rA*ded at that time.

has stated in his evidence". that received information "'«..telei3h;,'Q:ni.._caiiv'---f-rom A.S.I., Kaiappa of R.P. Vi'._N'e§'a_r:'»l§'e.l"icevStation on 16.08.1990 at about

1.'1;__'4O about the incident in '<__NagashettyhaiIi village. He aiso received ":i:";:h:ohe message from P.S.I., Hebbal Police Station about the incident at about 11:45 p.m. Immediately, he instructed P.S.I. «- \SL«"> 48 at about 2:30 a.m. The statement of PW.1 was recorded by PW.12 --- B.S. Belliyappa---._in the Bowring Hospital at 2:45 a.m. was received by the jurisdictional it at 5:30 p.m. on 17.08.199:()""'a'n.d there is no delay in deVspat'ch:'i-ni'_c; after registration of a.m. There is also:"nxo iiVr:s...'reciio'r'diwnig the statement of PW.1 record would c I ea r:li\,~--Ls-h "1 e inj u red was shif€tei¢';i:_«...V Hospital and t h e re aft' ieliiiiiifgre-a N I M H A N S a n d from "brought to Bowring Hospital Piw.A12'«...irecorded his statement. Poli"c'e......I.nspector has stated in his he returned to the Police Police Inspector came and V:*~-.___4iehandiedtgoiler him the complaint given by No.3 and he registered the same in No.236/1990. The above said facts _u"'.'.spoken to in the evidence of PWs.12 and 13 L) 49 has not been controverted in the cross- examination of the witnesses and there i.s.__no reason to discard the evidence of and 13.

27. Further, the

- PW.16 would aiso that.tAh-.e"':..i'n'jVu'red "ii PW.1 was referreVc!_.to .h"os.piAt§a| and from there, he Bowring Hospital an_dj;th_e and the evidence PW. 1 a nd the ciearly show that Baptist Hospital on 16.03.1999VatV',--_1i1._§2:5 pm. He was taken to non Virefervence at 00:30 hours and he to Bowring Hospital at about a..imi.%k*on 17.08.1990 and immediately, statement of PW.1 has been recorded by The above said finding is also V."r--Di'sapported by the evidence of PW.11- Dasegowda and wherefore, it is ciear that UV!"

there is no deiay in recording the compiaint

- Ex.P1 as stated by Pw.1 -- Jagadish antibin despatching the F.I.R. to the Magistrate and the same would not:

way affect the case of the ;§EAo'secu'ti.cn:;"«__

28. It is also stage that even a':c.c'oriziiiinof;tVoa'.._theécontplaint filed by PW.1, place on taking his brother--5 Durga Clinic and tiegard to the spot whereivvithie As per Ex.P7 as aisothe skevtcehv-.|:ir_e'p'ared by the A.C.P., about "'=..1;he':c._sc:g.neAof 'oc'cuVrrence and the material on show that the incident has taken near Durga clinic and the dead i"~..«.i_'*..body"of Shamanna was found near the "'eCh:a'.n«nei (mori) near Durga clinic and in the boundary to the spot been described as follows:-

\/§_.V§K 51 East by: road leading to Puttachari'sV.--.___ house West by: Ramaiah ' 5 house (No. South by: YeIIappa's house . 3 North by: Srinivasamurtihy fl (No.11?) _ on the northern side house, there is Durga Civig-n._.i};,' itiisy clear from the sketch that the does not tally winciclent as per mahairar__~--' the evidence of to 7 has 'to be V scruy-;ihi.zed 'w_it'h care and caution.

-- Jagadish is the complainant Vein ""thiv«s'-case. He has deposed in his 4H":'i.'4.u"*ezsracmination-in-chief that on 16.08.1990 at 9:45 p.m., he was watching "!'.V. in his "house. His younger brother - Shamanna was \-we"

52

not feeling well. His wife was taking him for medicai check-up and his mother advisedthim to accompany Shamanna and to his sister-in-law. So, he went and his siste:-~--in-|aw and he wiais"ac'-co.;mi;5'ahyiihg': his brother. when they we'i<e:"nA.eari.t_i'h'e accused Nos.1 to 6 cV.a'rrVyvin'gValdiieaiidiy weapons like cricitet b.a't','*a; ofibioiier and accused Nos.4 and TwiEe:'re_U'c,Aairiff};ing clubs. Accused No.'3_"_'--wa_s €c'.ar'ry'i"ngV. iirion rod and accused knife. They came ob\t'a'i'ning stay from the Court."'.'i'hey. quarrel. The witness did not re"ta'iiaVt--_eiasn'd: proceeded further. The Vii.agaViVn"' ---- --attacked them and caught Vi'uhcjid'c.o'f4:_;his..:i3'fother Shamanna. Accused No.5 ho.|'ciini::g left hand, accused No.4 was hi'-.,'<.,ho|dinVcj':. right hand and accused no.6 was coilar of the neck of Shamanna. On hearing the noise, the wife of Shamanna, his mother (PW.4) and his sister (not examined) A K.,x.,1,2i 53 and one Thimmegowda (PW.3) and Maregowda (not examined) and one Chandra Nayak (PW.5) and Aswathappa__":V:'V(-§i'o.tv., examined) and Munakkayyamma casje.'et.n"ear'_'"_'s H the scene. Accused No.6 was"i'nstig.;a'ti:vn_gV:t.!1e'V_« other accused. Accused Not';

Shamanna and as a his face touching"~..t'he'/"Qrotiiinadé. has further deposed and tried to rescue assaulted with ironi'"Vr'c5'dr""h'--y.: on the left side snatched the lid of No.6 and hit on his fa_ce.i"~ He_}fe'i--.t"giddiness and sat down. Nzo.1V"Va"s-saulted him with cricket bat and shoulders and he was bleewdin.g';V'a:'3.s_§fter assaulting, the accused went i"~.«.."~.towar'ds the house of accused No.1. He has deposed that his brother -- Shamanna was carried to Durga Clinic of Dr. Narayan, which was at a distance of 15 foot away from ti \)g,V§ 54 the scene. The knife was struck in the chest region. The Doctor advised that his brother was to be taken to the Hospitpalwt"-fforv. operation. His brother was taken M to Bowring hospitai. The :p"er'so_n'.s,...w'i1.o gathered at the spot went t3o.waiV_rdsi't_he..t:.o'si's_§'i-. of accused No.1 to quVe=.-sﬁt'iw--on they had done so. whiie he was sitting at the scene having s u stained i n n a (not examinedi)" ' enquiries with him and" about the accused it and his brother.

Rama_nna'°wentV'v._aru--,d"{ﬁiVot the Car and took him toxtvh-e«'Hebbai Police Station. He go and take treatment first.

0.nre"'%iPo.i.i'c1ericonstable accompanied him. He 'ryvas taken to Baptist Hospital. He was ,,I'fadyii'~sed to take treatment in NIMHANS. He again referred to take treatment in Bow:-ing Hospitai. when he was in Bowring \,tj.

55 hospital, C.P.I., recorded his statement as per Ex.P1. He did not give ali the detaiis whiie giving statement --- Ex.P1 further statement was recordiédv.._:"-"on'_""r "

25.08.1990.

30. PW.2 - AkkaV\irvc:a'*mmAa,.__twrhioih mother of PW.1 -V-.~~.§ha'rr:"ain_:na';_.the'd.e.c:eased has deposed in heriﬂieﬁyia'n1,i.inat:i:e:.ﬁ_»;{i'-.{I.fchief that on 16.08.19:.,9(A:):V':-at was suffering heiiiiwanted to go and and his wife accomaar:4ie'dV:'VViri"n§V house. She told Pw.1 thait--,hwif'e__ o_Vf'=S'hamanna is a pregnant aske"d..,h__irn to accompany Shamanna, and send wife of Shamanna back.' ixisjciovrdingiy, PW.1 went out. After 'v,some..tii_mie, wife of Shamanna shouted and '{fca_I;|i"e~«d her stating that quarrel might take "ipiiace. Herself and wife of Shamanna went ﬂtowards Durga ciinic. She saw that accused \5?-J» =» 56 Nos.5 and 4 were holding Shamanna's hand. Accused No.6 was holding the neck coliar. Accused h£o.6 was instigating others to1jk'§..l| her son - Shamanna. Accused No.2 her son on the chest with the knif.e,.v_"_:~HVve:é{:'son"T._7 .. Shamanna feil on the touching the ground. V,:P_ﬁW.1',,_dwho at'; day iittle distance, came as to why they Shiahianna.

Accused No.3 iron rod on the head'§7ané._ bleeding injuries'.t"'~A_Vc"e;used 'w'a~5"§ho|ding the lid of the bo'i>|_e"r:. ' snatched it from accused ahd'..,h'i.t7on the mouth of PW.1. s;at.__down.. .... ..with agony. Accused No.1 Vcassaulytedif!§"\:'J.1 with a bat. The accused pe.i'.s'otnsAw'eVL?it away stating that they have ;u._,___'f_inishedg_them. Injured Shamanna was taken '»ton_;D'u,rga Ciinic. PW.2 has further deposed ii"-____'"i:hVat herself, Maregowda (not examined), V'=-_q"v.1:himmegowda (PW.3), wife of the deceased \§:.\§, 57 Shamanna (PW.4) and wife of PW.1 took the injured Shamanna to Durga ciinic. S-inhce broken portion of the knife had the chest of Shamanna, the Doctorijaﬁi».rE'sec!_$_4'i them to take Shamanna t:o'Wt'h'eA_ major operation and Shama'n_ri'a was-.t'a.k'e'ra:."'i-.nW a 3eep to the Hospitai."-irti is"a--.%.so_js3tua:tVe'ds'by it her in her exa_mi.natiaroin'-{i'n;"¢;.|f;ief"thwat her statement was reoo.rde'd:E':'tw:o-ifnfionths after the incident':.r;'fancJ'_ §t'|i.eyiVA"'~ivi"\_;i.v.erefivvery much residing the incident til! h e r s tVa'tie'm.e:;n t éiiiirira s" -- raei: o r'd'e . 3V"3,._. ._PW'.*3b'v._§'ifl"h_i"rn_n1egowda has deposed in his eiv--i__iien¢'*e knew Shamanna, the deceiaseud. t6.08.1990, Shamanna was ::i1'uriﬁcie_red.i:'«-._VAccused Nos.1, 2, 3 and other aco'uVse'd.'_ha:g'e"'murdered Shamanna and it was V.arou'nd-..':.9v:"2'1S p.m. He was returning home Lakshmi Medicai stores after purchase .'«i«~_.o'fV"m'edicine via Panchayathi road. PW.1 and 58 the deceased were going ahead of him at a distance of about 70 feet. Accused Nos.:Vl----__to 6 came suddeniy and attacked They were threatening Shamanna,rro:VVao:n'dTh'_""'e"

accused No.4 held the left ha"n'd. No.5 held the right hand deceased. Accused collar of the neckr'f.!j0m<"be"h:iri'd._ and"-accused No.6 told others to No.2 stabbed on PW.1 tried to questioned the accused?' iron rod on the heV:a.d"of was bleeding with injury. Ae¢usedN'o,i~5 took the lid of boiler "V"fF°'7ii"~a§A§u.eSedAAV"'i'~ivc..e.1 and hit on the mouth of down with pain. Shamanna wa~s"'"'iAta|.A<eviri__..5'to the clinic of Dr. Narayan. or Shamanna (pw.2), wife of "Sh,arnjanna (PW.4) and her daughter (CW.5), 'V'-.."'hiVn1se|f and Maregowda took Shamanna to ﬂithe ciinic of Dr. Narayana. The Doctor on U-55 59 seeing Shamanna told them that the injured was stuck with the knife in the chest and that he must be taken to a major hospi.t'a_<li;~._v Himself, Maregowda and Manjunath injured Shamanna to Bowring»....H_osp'i.ta'iAKftetr 15 minutes, Manjunath and c'ai'i*a.«e'4;_' and informed him thatiS_h'a_manna._wi.a"sjﬁ'd.teVa..d. He has also stated. e..;§aini':1jactiVAo§n«in- chief that the stauteihmenvt--.h}hr4e'c":o'9rded by the Police after.» incident and he during the s a i cl ..a th e_i_n§c i d e n t.

32. VVP..w..4xW~.-"4V'l',_a!i:s~hmamma is the wife of .--.$haV_ni:an_fnaV, xit'h,e_ ___ __.deceased and she has examination-in»-chief that on about 9:45 p.m., her husband '.Vwas4'not well. She was taking him to the it :f_Docit.or"'at Durga Clinic. After they went for "fsioime distance, PW.1 came and told her to back to house and that he would L5' 60 accompany her husband to Ctinic. She stood for a white. PW.1 and her husband were proceeding towards Durga ctinic and at .--that time, all the six accused persons ca_rr_i--ew"'a'nd~«V they wrongfulty restrained her -- PW.1. Her husband --~--- Sh-ianiannia tried to avoid the accused further. She sensed t':-.;:.;V"ii.bEeV. V for her mother--in='-!.aw.=i""'iter'V:rhoth--e'ri-'in-law, co-sister and sister--.i.in;g.ai"w __a'i'sfjo_"c;ame there and they went; '_i;.ov\§t'_ar€cis' Accused Nos.4VvcanidA..:Siy were"'h«o!din'§j""each of the hands of Shainanna.Viainezri'i'..V)Shc::cused No.6 was holding the co¥|ar"'«of' of Shamanna. Accused told ----- «other accused to finish Accused No.2 stabbed him on Her husband feil down. When 'ra...,,,.~d'~!?W.1gxirntervened, he was assaulted by '":.'accu"sed No.3 with iron rod and he was

5..__"V""bieeding. Accused No.6 took the lid of the ﬂiboiier from accused No.1 and hit on the face i 61 of PW.1. PW.1 sat down. Accused No.1 assauited PW.1 with bat. Accused persons went away saying that PW.1 and her 3 shouid not intervene in their affair.'V.{H.gsr:si'e'lf;_.'i Pws.2, 3 and Maregowda t.oioi<"h_e-tr Shamanna to Durga c|inic.:".__'i"'hAe them to shift Shamanna"-to "ma'j'o.r"'_:

and the Doctor 1.-'s"re.ht c|o"si'hEg the door of the clinic. came and took her with pw.3 and learnt that her hospital. One Ramanvina 'Car saving that their wo u Id g o "to 'Po ii S-ta tion .

tttt Htlhandrappa has deposed in Ahisjexa:'ﬁ1j:'nat.E'on-in-chief that his residence is i _ byA"t«he,___»s'id.1'eA of the residence of accused No.1 since 10 years, he knows all the accused 4'@"b.e'fo..sé*'e the Court. He knows PW.1 and i.'°=.Shamanna, the deceased and their family 9.21 62 members. There was dispute between Thigalara Shamanna and accused No.6 on--"'tphe one part and Shamanna, the deceased..__e:n"jthe.V other part, in respect of a house site.

used to be frequent :'q"u'a«rre.é| Shamanna and accused' No.A:6.,_ to 5 were also supporti':a:§'*~.acc"u'sed.Vjf§£o"i.v§""wiith regard to the diszputetres'r'e§nea:'t'iV'i2g to"'the§ site. They used to haveiﬂa house of accused during 8:30 p.m::;4" 'i"j'h--e accused were do something to PW.1 and his two broth_ers'"a.._,_f0rV:'v__fiin_d'E..--ng a soiution to the ..e_site'{'iv--«---His house is situate 3 feet house of accused No.1. So, he washab.le'j__..5'to hear their discussion and ".conve.rs;_atEon. He has further deposed in his A ":i.é3§Vai'm_.ination-in--chief that he witnessed the ""'in'j.cident of assauit on Shamanna. It was on '4".'i"hursday about 8 years next before the date \,».)}> K 63 of his deposition (witness examined on 11.06.1998) at about 9:45 p.m. He wentoto Bus 'stop to eat some eatabies from u there. He ate Pani Poori returning on the Panchayat"oiffi::te"--,ro4a:Ad".«._ Doctor's clinic, there was "q__u'a_rrel 'go'i~n'gV*o'n%."~ He walked briskly to of V offence. Accused.'i\!.os.§i"a'nd each of the hands of deceased.

Accused No§.6::.£h1'ad of the neck of Accused No.2 was Shamanna, the deceased knife in his hand.

Accused'iN.o.'2._'gu*i_de'd accused No.2 to stab 'xv'"Elncif'a:?*i3u.i/Sedb2"'V-------c«;'2 stabbed on the chest. deceased feli down on the went to rescue the said 'x$haman;na. At that time, accused No.3 % ":fasVsa":_:|ted PW.1 on his head with rod. pw.1 bleeding injury. Accused No.1 was uwhoiding the iid of a boiler. Accused No.6 \.J"

took the lid and hit on the mouth of PW.1. PW.1 sat down with pain. Thereafter, Shamanna was taken to Durga Doctor advised them to shift Shamanna to a major hos."pit'a!.y_ brought the Jeep and ':".Mia_r.ego'w.d*a«. Thimmegowda took the"v-i':n§.ure.d'--« in the Jeep. The accvusyed '.V;i'er..i'§E§'t?i'Vi"s.._Aietit"the: place saying that they and PW . 1 . 'ha th at h e went the was terribly and slept. He has fti'rt"h_er: the Police have recor_ded'i'his sytvat-E:i'n~;.r,ént two months after the .....

above said evidence of PWs.1 to as jdeposed in their examination--in-chief f'iia:si'""to be scrutinized and appreciated in the of the facts elicited in their cross- examination and other material on record to \:~\/9 65 find out as to whether the prosecution has proved beyond reasonable doubt' that these witnesses PWs.1 to 5 have witness.¢'d"-fh'e., incident and to find out as to whether:iith"eier_"'_4'c if evidence is truthful and r'e'I"i'a«ble§_ and-v'._as'--.i'to"--»y whether the finding of justified or calls for '-i.n"terfer..en*cyé_: 'V appeaL

35. It §i.S":(;l:€far the evidence adduced the prosecution is mainIy:vi"'rei'yi:hY.§i .A:':i?ipori'.Vyy¢"the'"evidence of the eye- witnesses,' referred to above. As recovery 'isfmad-veAionf.-the basis of the voluntary ..rgiven*h!;a.«'accused No.3 and according to "pro.s'ecutTio.n, the stab injury was caused by accused the recovery is not helpful to the 'x_prosecuti;_on. Even otherwise, it is clear from the A "iifevid"ence of the Investigation Officer that the knife ' vvas not stained and serological report is not obtained and the same marked on the basis of the voluntary \/W> 67 on record that PW.2 has stated in her examination---in- chief itseif that her statement was recorded two months after the incident and she was very*':V:ri1"_i;ic:l:.,y4 available after the incident tili her recorded. Similarly, PW.3 has stated. in it examination---in-chief itself thatlA:'.hi:;s_l"staterrxent recorded by the Police two months."after_the"r§;icid'ent " l and he was very mucl2...avaiira'i:ile'during the said two months after the incidlent'. stated in his examinatic2n;--:in--Chlief' that Police recorded months after the incident; the-'"<§:ross--examination of PW.4 thatlifler recorded by Police only after two Vmonthysy date of the incident. of PWs.14 and 15 would show th'at'°i>W..égtrikcaonducted part of the investigation and 'gyhad recorded the statement of the witnesses. A 5_Fow'e.ver, on a complaint filed regarding improper investigation conducted by PW.14, the investigation was directed to he handed over to PW.15, who was 68 working as A.C.P. (Crimes), Bangalore and PW.15 took over further investigation on 03.10.1990. It is clear on scrutiny and appreciation of the evidence"-«o'f.iy¢ PWs.12, 13, 14 and 15 that major portion investigation was conducted by ZPWA4 -{<0 it Shetty, who was working as "sHowe'v.er,.V elicited in the cross--examiVn'ai:ti~on of the investigation conducted _ i not honest. Evidence of PW.15 'he took over further investigation basis of the direction of Police and he recorded' iioiiv-~VP'l§lVs.2 (CW.3), Pw.3 (cw.6)i,i'=_ and pw.s (cw.1o) on 06.10._1990".-«,i It Viis-not though the evidence of the wasur:ct...recorded by PW.14. In fact, the "~v.factis'veI'ic:itediinthe cross-examination of Pw.3 would cleariiy that though he states that his statement 'xwas notgrecorded any time earlier to his statement A ":ifi;ico'rded two months after the incident and that he has not stated before the Police as per Ex.D1, Ex.D1 has been proved in accordance with law and it is 'of-

69 clear from Ex.D1 that the statement of PW.3 was recorded on 06.10.1990 and in the said statement, there is reference to the earlier statement giveva_j"b_y~.._ him. His statement marked as Ex.D1 reads u "He has heard the statement .

him earlier, which was read over, to In his earlier statement, which are not within been stated. He to commit the'--murde~r:'.o~f he has 4' of statement and therefore, he was statement on ;§'«5.31f0.;99io;~°_ ,,,,, it is clear that this is not 0: _a c"ase,__"' wherein, the evidence of PWs.2, 4 ."~i:s recorded for the first time on 'f,e._o's';1e;'199o. In fact, the evidence of PWs.2,4 and 5 would clearly show that they were always Lei 70 available to the Police after the incident and their statement was recorded only after two months from the date of the incident. Further, it is elicited in the cross-~examination of PW.2 that on the very ne4x_..tV_id_a~'y_ morning, she met Police around 8:10 informed them about the incident. it PWs.3 and 4 were also present :'a_nd_fP.olice_1ha'd"cVozne:;_hé to her house 5 to 6 times within me weheik;tg;ty..gggg;t; is' elicited in the cross~--examin_a_t'io:nupf r5v.:].l_z i' that she was there at the scene' for atbvoltitt minutes and thereafter, she went ba'e.§(j~ho--m=e statement was reco'rded;T;byéV":the after two months from thJé_da_te and police have not recorded heI=.Vstatemen't*alt any time earlier before the .r__ecorded....t'wo months after the incident.

-clear from the facts elicited in the cross¥exam*iiin_a1tion of PW.15 by the learned counsel 'a__ppea'ri.n1g3_ for the accused that :

"My investigation disclosed that the investigation done by my predecessor was \a' 71 not honest and he was discarded the statement of the witnesses whom I have recorded and the contents of the statements are not true. "

PW.15 has further voIunteeI_'_,ed,__ to_-"'st-ate'V"'~:tvhat.s,:' it statements of witnesses, reiating. It is elicited in the cross-e_)_('a.,rI1intaition, para 5 that he has recorded_ﬂth_e'v.statemeVntsﬁ%of the witnesses, whom he was convinced aboutthe statements as correct. :__ of CW.7.

and in CW.7 disclosed to him it'ha.t' run to death in the lane near his house 'ear'itier,.'t.o4the assauit on Shamanna, _.._the d.eceased.V" "flV':|v1Vere:fore, it is clear from the facts Ahedtilcited_,in,t~he~.,evidence of PWs.14 and 15 that PW.14 had.'record»ed~i,the statements of the witnesses and

--Vacco.rdin--§;. "to the investigation conducted by him, "',.'sPut*£a_chVa'ri, who is arraigned as accused No.1 in this "was done to death even before the death of Shamanna, the deceased in this case. According to \9x/3' ' 72 him, the veracity of the statements of witnesses recorded by him are true and correct. However, according to PW.15, the investigation conducted:'f"hgy_ his predecessor was not honest and he ' the statement of the witnesses.'---"'In..ani_i A' matter, the fact remains PWs.2 to 5 was admittedly '--r_ec_ordied.__ on,VAiV0.;6;i_:.G';19j9O nearly about two monthsge.~after"~the dategof the incident.

38. _t'ha:'t_' when there is delay in reco.a-d'i'r*.gx;"the:;;;,sta"tement'--~of"§ the witnesses, the same has to the prosecution and in the present-._,casVe,-__ regard to the above said of PWs,..1_4v and 15, it is clear that no hi'--~.e3q$i'anat,ioii«.whatever is offered for the deiay in recording t'h_e.'e1'statement of the witnesses, PWs.2 to 5 'gand ii'W:1;4Vhas stated that the statement recorded by e~:i_himi"i.s genuine and correct. However, according to PW.15, the investigation conducted by PW.14 was not honest and he has not recorded the statements of W 73 the witnesses. It is laid down by the three Judges Bench of the Hon'ble Supreme Court'-.__ in BALAKRISHNA SWAIN Vs. THE STATE of (AIR 1971 SUPREME coum' 304) that unjti§ti§§ed7sr{d,,'i unexplained long delay on partof-.the,, invxu1es'tigj:atii.nVy; officer in recording the statemenitliof ma.te.rial"

witnesses during investigat-i.o'n._,of mu.rder"cas.e"would V render evidence of such wit,ne.é'5"ulnteliablep

39. Fur.th:er,' it averments made in of PW.1 that been mentioned in the to him, he lost consciousne_ss.after'hewas assaulted and wherefore, _._it isﬂcllear that-V.iVn___&,view of the unexplained and "'~__u»nju-sVtified,'delay of two months in recording the statemevnts'iof",:l5lIVs.2 to 5 in this case, the defence of .the aééccusedélllthat PWs.2 to 5 have been planted as uh"keyeniwitnlesses by recording their statements ..al,bei--atedly, which has not been explained and which is T justified is, probabilized. Therefore, their \¥--\/'> 74 evidence is rendered unreliable. Even otherwise, it is clear from the appreciation of the evidence of PWs.2 to 5 that they have not witnessed the inciderltand that they have been inducted as eye--wit:nes_;se_s.j'by, recording their statements after inord_i.na:'te. delay of, two months, which is unexplained»1:a'n.d'runjust~i.fied'V,as:' it is clear from the facts elicited infthe"cross-Pk' examination of PW.2 that tl'§e:.i:3iace is about 180 feet andviieitycept the witnesses named by seen and witnessed from stating that herseif shifted Shamanna to Hospital, she about the other persons present atthat Vti.rn'e_." Similarly, the facts elicited in .~,ythe;'~i.,crossV~e)ia:'n.i.ﬂ.§tion of PW.2 regarding the descrViptvi'oni..ofv the spot where the incident took place with the evidence of the other gwitnues.s'"es."and it is elicited that the incident took iljpliaceyyinﬂifront of Durga Clinic. It is clearly elicited in thecross-examination of PW.5 that from the house of lﬁiattachari, Durga clinic is not visible and if really, \.»J"

PWs.2 and 3 had got to the spot from their house after hearing the cry, they would not have witnessed the incident.

40. Simiiariy, it is clear from the'év'iéieVn'ce;of_ ii"

PW.3 that he has no regard for:"t,ru1t'_h*~'iVand has stated about the previotgis-...state'n3_ent i'rec§o'r*ded§ by = L' the Police in Ex.D1, vvhereVi,n.,ﬂ'he"'has..stat.ed_,that he has heard the stateme'riAt-g'iv_e':h:iv gariier before the Police, which .vvas"'re'ac:'!:: referred to above. in the earlier statement, the Police, he had stated :Vbef'o'reVVt'h~§:- had gone with others to cause'<._the Puttachari and he had .-v..'witn-dissed thxe'=-..dVeat_h of Puttachari and the said s,tate,n:ents.._Va'--re not correct and wherefore, he was fii'riii1.e'i:;.'statement as per Ex.D1. However, it is 'V elici.t'ed*Vi,n"t.he Cross-examination of PW.3 that it is VVi":jnoti~.true to suggest that when his statement was

-- rat-sciorded after two months, the Investigation Officer "made reference to his earlier statement and brought \,J\ 76 it to his notice. It is further elicited that he has not stated before the Police as per Ex.D1. However, Ex.D1 has been proved in accordance with iaw. cs'4:.'\'[."\art from the above said fact that statement recorded after two months from the.V__d?a~-te':.A.ofn_the'i incident though he was availa:'blei::for statement, the statementof PW.A3=.recorCieAd i'eaijli"erV"a' before the Police has been 'siti:V;i5';3resséd_ Police. Therefore, adverse infe_ren'ce_':ha.s:.Vt'o. be drawn that the eariier statement of was"ii-o~ti__helpful to the prosecution ';'_'wh:erefere,"'«~ V. furither statement was recorded~,'on*:95.1jQ;--:l'9i3'G~~tVo"§help the case of the prosecuvtio--n. V i Furtl1e.r,______it is aiso elicited in the cross- '"2_VexVa'rninat'ion.._iof_PW.4 -- Lakshmamma, the wife of Si.hain3annaé;."Ljthexdeceased that she was there at the spot uforabout 15 minutes and thereafter, she went to "house and on advice of others, she did not

--..i.'ac'co'rnpany her husband to the hospital, which is 'yicieiariy contrary to the natural human conduct and if \,,;s 77 she had realiy seen the incident, she would have accompanied her husband to the hospital.V_--.___l-vler statement is also recorded after two months f:€on;i'y:'t:he date of the incident and the same "

expiained. So also, in the-cross-eiyxarnination}oi? PW.5 -~ Chandrappa, it is elicited he the name of all the pers~oy:n's, whoa 'wit'ness"ed''jthe '' incident apart from the ones-hehas-.iynamedv.-.. He is not permanently empioyeud 'o_nd'eri'l;--l:'antimayntrhegowda.. It is also clear..ff°") the cross-

examination" years after the incident,---Vh_e"i"ati'hiit§ed from Nagashetty Halli and Layout in the house of oneh Monetjovxvd.a, who is related to PW.1. It .-»__is a_lso clear irom_____tyhe evidence of PWs.2 to 5 that Vevyivdence regarding the overt act on the part of accrr'sied'V'i"€!.¢s}'4V'and 5 is contrary to the narration jygiven iyynitheéicomplaint filed by PW.1. iW42. Having regard to the above said "scvircumstances of the case and the circumstances \,«/"* 79 and he has oniy stated that 10. persons had assembied there and he saw Rajendra -- accused _N_'o.4 aiong with the said persons. However, at the--«jen_d«_:of'4 the compiaint while making a prayer action, he has named accused..~No_.S any-._V event, no overt act has been a1€ctrii_5uted'~-tvo..accLi_seVE'§i~:. Nos.4 and 5. However, has.__de_piose'd""'in 'his " L' examination-in--chief that aiccVijsed»..g!§Ior4"'was_.i1o¥ding right hand and accused left hand of Shamanna, arveirments made in the in the cross-

examina--ti--onV:"o_f Officer -- PW.15 that as perivthep' there was no dispute between 5 on the one part and .-~.__in3'uré::d c'omp|.ainan__t__and another. Further, it is also ".__ciear._from evidence of PW.13, who was working asA«PuSiVi;i'i~"."g:of's::.Virlebbal Poiice Station that he was jpinforrnedaabiout the incident and he went to the spot "..jand"~~..received the information that two groups of Wfrpaeoipie, one group including Puttachari and another group inciuding Shamanna had ciash with each other 80 and _in the said incident, both Puttachari and Shamanna died and he informed about the incident to his superior officer. Therefore, the evidence of and the materiai collected by the prosecutio_n'*t-héittihe"

incident in the present case, took piace.._n_ﬂeaVr ciinic is clearly doubtfui and as the teamed senior counseﬂappearing fo"r..ac'cu'§;e'd Nos.4 and 5, the prosecutioini'rhas_Vfaiiedttov'prove the actual place where ' The evidence adduced shows that the the house of Puttachari :acnd__"i;vhei-eforfjei,touch credence cannot be attached to of PW.1, who has stated that the incuidenit to'ok.ﬁpi_i»a4ce while he was taking his 'brot.h5erVto theinihospitai near the Durga ciinic. senior counsei appearing for gaccusend"*V_Nos.4 and 5 -- appeliants in Crl. A. Au'iﬂtNo.=;t:{9e/2003 has relied upon the decision of the tiorfbie Supreme Court in BALADIN AND omens vs. \,e»_ 81 STATE OF UTTAR PRADESH (AIR 1956 SC 181), wherein it is heid as follows:

"It is well settled that f?3;er6A,i":hr:"'*-ll presence in an assembly does notc'reake"*~:: '- such a person a member assembly unless it is Vshovlin that 2 V' done something orl._L"o.mitt'ed_' something which wouj4l:d.,::'make"' member of an ,or unless the case falis 142, Indian Pen:a_:v'cod.é;.,.,.,,:f:: , 'V The same lhxawelllreiterated by the l-lon'bl:ev Su-preme__V:Cou.rt"~i._n Pjs'-\RSURAM PANDEY AND omens " mt-.--ls; or.if'5iHAR (2004 (7) Supreme V 565)V.4;" "Learne'd.,_se'nior counsel has also relied upon a decisions, wherein the Hon'ble Supreme A(l';"c;:.ur-'_1'_;_%t1hagr..:_|e.Ai'§;l.7down that when there is a clash _betw'een__"tv~.ioAgroups of people, the burden is upon tlhegrprosecution to prove as to who were the persons i._whVo-assaulted the victim among the persons present it Ilfin--the group. However, in the instant case, according kiwi :

82 to the evidence adduced by the prosecution, it is ciear that the incident had taken place due to clash between two groups of peopie, who had enmity,V_ia.nid_V the scene of offence has been investigation officers.

45. However, the iea'r_n'e.d Session_si'i,,v'}'uwtig,e,,,has proceeded on the basisthat to 5 is truthful and reiiVabie,. Judge failed to note that_ 4 to 5 have been date of the incident, the delay has not been e:t.plaineVd'l'.'fejarliéiiiStatements recorded by the Police haveabeyen hsiuippresésed and Ex.D1 proves the .i.,,same«_.§: vievvosfvithe above said reasoning given by A":_Vus;"wVhEl,e'A«.di,st:u_ssing the evidence adduced by the hold that the triai Court has not

-Vappruecia'----ted"the evidence adduced by the prosecution wht.heV""proper perspective. Therefore, on re- .,i,'_.a"p-preciation of the entire evidence adduced by the "prosecution and having regard to the above said L,/Q;

83 material on record and the principies laid down by the Hon' bie Supreme Court, we hold that the finding of the triai Court that the prosecution has provegdthe guilt of the accused cannot be Accordingly, we hold that the finding trial Court that the prosecutiori ha:s",3r7ove'd accused Nos.2, 4 and 5 (appellants' heideih)" h;aiVe'V"w.i' committed the offences alon'§i».:tvith theV_o'thVerl°accVused punishable under Sections Section 149 IPC, Section 302 IPC and Section 324 read.Vi?.iitl*i=A._Sect'ionixtd9c~Ih_P:C.S, is liable to be set aside prosecution has miseraisly'failed"t'o:Vp»rovie"that the appellants' herein

--- accusecl°!§lo.=..=.i,._¥l'i.a'n.d.'i'5 have committed the said ﬁoffe_rié;.es_Slai1d th"e~a.P.PF:llants' herein »-~ accused Nos. 2, and' 5.c_Vare:4..e'i'=t_itled to be acquitted of the charges of ha'vAiitgV.Vco"rijn'sitted the offences punishable under '.VSecti4o.-($3.143, 148 read with Section 149 IPC, Section S'S..;3o2---zeaci with Section 149 we and Section 324 read Section 149 IPC.

'\.Sz»~q3\ 84 Accused No.2 -~ appeilant in Crl.A. No.1816/2003 is entitled to be set at liberty unless he is required in any other case. Bail bond executed by accused' and 5 -- appellants in Criminal Appeal is liable to be cancelled. In vie.w~»o_f the"v"fa'_g;.t°theat~s._V "' the finding of the triallﬂc?§u'rt--"~.t'h_at:x prosecution has prov'ie.cl'-~.._th"e" the appellants' herein_,_..-- 5 is set aside, the"cgue-5_tiiV§..n."'~Ve',§-If-considering delinquency" arise and according¥y.,*ti:eV determination and pass lot§y.i_ng:'.'0:rder.:.,'W BothV"'t.he .app_eai_s' a:i:~:~.-'allowed. The judgement of .---.,_conyii;tivot1 and " sentesice passed by the Court of the .,VCity.,=.:Sessions Judge, Banaglore, in S.C. rm,'7s'/19292; gfciated 21.11.2003 is set aside. ',VAppe'iian.ts"'4f herein - accused Nos. 2, 4 and 5 are Vvvﬂjcacqiuiytteici of the charges of having committed the ouffenices punishable under Sections 143, 148 read Hyyith Section 149 IPC, Section 302 read with Section \s«\?'* 85 149 IPC and Section 324 read with Section 149 IPC. Accused No.2 - appeiiant in Crl. A. No.1816/2.003-"is set at liberty unless he is required in any othe.&Ij__eéiVS.e:';~Vi.""-.4 V. Bail bonds executed by accused Nos__.4 appeliants in Criminal Appeai N6;i'?.9ﬁ4_4/2_Q'dV:§'._'éire? canceﬂed.

"

V' B;)"'snu:'naiN

Legal Document View

Unlock Advanced Research with PRISMAI

Karnataka High Court

Rajendra vs State Of Karnataka on 27 May, 2010

Bench: V.G.Sabhahit, S.N.Satyanarayana