Karnataka High Court
Parashuram Goneppa Gaddadaver vs State Of Karnataka on 4 July, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100349 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 04TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100349 OF 2021 (C-)
BETWEEN:
1. PARASHURAM GONEPPA GADDADAVER
AGE. 25 YEARS,
OCC. COOLIE,
R/O. AMBEDKAR NAGAR,
LAXMESHWAR,
SHSIRHATTI TALUK,
GADAG DIST 582120.
... APPELLANT
(BY SRI. R.M. JAVED, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH LAXMESHWAR P S
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD 581105
...RESPONDENT
(BY SRI. V.N.BANAKAR, ASPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
SEEKING TO CALL FOR THE RECORDS, SET ASIDE THE
SENTENCE AND ORDER OF CONVICTION IN S.C. NO.72/2017,
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CRL.A No. 100349 of 2021
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
GADAG DATED 26.05.2021, CONVICTING THE
ACCUSED/APPELLANT AND SENTENCING TO UNDERGO LIFE
IMPRISONMENT FOR THE OFFENCE PUNISHABLE U/S 302 OF
IPC AND TO PAY RS.5,000/- AS FINE IN DEFAULT SHALL
UNDERGO SIMPLE IMPRISONMENT FOR 3 MONTHS AND
FURTHER SENTENCED TO UNDERGO SIMPLE IMPRISONMENT
FOR A PERIOD OF 3 MONTHS FOR THE OFFENCE PUNISHABLE
U/S 323 OF IPC AND THEREBY ACQUIT THE APPELLANT.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and decree passed against him, the accused in SC No.72/2017 on the file of the Principal District and Sessions Judge, Gadag, has preferred this appeal.
2. The accused was prosecuted in SC No.72/2017 for the offences punishable under Sections 323, 302, 504 and 506 of IPC, on the file of the Principal District and Sessions Judge, Gadag, on the basis of the charge sheet filed by Laxmeshwar police, in Crime No.140/2017 of their police station. Crime No.140/2017 was registered against the accused on the basis of the complaint as per Ex.P13 filed by PW6-Annappa Torappa Gajakosh.
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3. The appellant was the sole accused in the said case. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
4. Gist of the complaint of PW6 is as follows:-
The accused used to lift money from the pocket of his uncle Somanath. Therefore, himself and his uncle had complained against the accused before the elders of the village and they had advised him. Being enraged by that on 29.7.2017 at about 6.00 pm the accused and another person took Somanath on the motorcycle in the guise that the elders have convened a meeting and summoned him. The complainant also followed them. At about 6.30 pm near the pump house of Agasthyathirtha of Laxmeshwar, the accused picked up quarrel with complainant and Somanath for complaining to the elders, abused them in foul language and crushed the head and face of Somanath with stone and committed his murder. Further, the accused threatened PW6 of his life, if he reveals the incident to others and he assaulted him also.-4-
CRL.A No. 100349 of 2021
5. On the basis of such complaint, PW15 registered FIR as per Ex.P16 and handed over the further investigation to PW18-CPI of Shiratti police circle. PW18 conducted the investigation and filed the charge sheet against the accused for the offences punishable under Sections 323, 504 and 506 of IPC. Since the accused denied the charges and claimed the trial, trial was conducted. In support of the case of the prosecution, PWs.1 to 18 were examined, Exs.P1 to 28 and MOs.1 to 8 were marked. The accused after his examination under Section 313 Cr.P.C., did not file any defence statement or adduce the evidence.
6. The trial Court on hearing both the parties, by the impugned judgment and order convicted the accused for the offences punishable under Sections 302 and 323 of IPC. Though the trial Court did not pass a specific order of acquittal for the offences under Sections 504 and 506 of IPC, it held that the said charges were not proved. For the offence punishable under Section 302 of IPC the trial Court sentenced him to life imprisonment and fine of Rs.5,000/- and for the offence punishable under Section 323 of IPC, simple imprisonment of three months.
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7. The trial Court held that the aforesaid charges were proved against the accused on the basis of the evidence of eye-witness PW6 and the medical evidence of PW11-the Doctor who conducted the postmortem examination and PW13- the Doctor who treated PW6. The trial Court further held that the conduct of the accused absconding from his village also becomes relevant. Aggrieved by the said judgment and order the accused has preferred this appeal.
Submission of Sri R.M.Javed, learned counsel for the appellant:
8. There was inordinate delay in filing the complaint. There were material contradictions in the evidence of PW6 and PW15 regarding the explanation for the delay. The story of PW6 about he suffering injuries also did not inspire any confidence as he had not suffered any external injuries and he had not disclosed the history of assault by the accused on him and the victim. It becomes hard to accept that PW6 leaves the dead body to its own fate and does not inform anybody till next day. The evidence of PWs.4 and 5-the wife and son of the deceased show that even before PW6 allegedly filing the -6- CRL.A No. 100349 of 2021 complaint, the police were in the house of the deceased and at the scene of offence. Therefore, the geneses of the compliant itself is doubtful. Except the solitary evidence of PW6 no other witnesses supported the theory of assault on the victim by the accused. The trial Court failed to note that PW6 was not a credible witness and his evidence was impeached. Therefore, impugned order of conviction and sentence is liable to be set aside.
Submission of Sri. V.M.Banakar, learned ASPP
9. Since PW6 was an injured eye-witness, his evidence shall be given due credence. When there is injured eye-witness no corroboration is required to his evidence. The medical evidence shows that the victim died homicidal death. The alleged contradiction or inconsistency are minor in nature and they do not destroy the core case of the prosecution. The impugned judgment and order do not call for any interference.
10. On hearing the parties and on perusal of the record, the point that arises for consideration is "Whether the trial Court was justified in holding that the charges against the accused for the offences punishable under -7- CRL.A No. 100349 of 2021 Sections 302 and 323 of IPC were proved beyond reasonable doubt?"
Analysis
11. Some of the admitted facts of the case are as follows:-
Deceased Somanath was younger brother of father of PW6. PW4-Chandrakala is the wife, PW5-Nagaraj is the son of Somanath. Somanath was the native of Laxmeshwar. Somanath and his brothers were living separately in Laxmeshwar town. PWs.4 and 5 were residing in Bankapur. Somanath and PW6 were alcoholics. Somanath and PW6 were doing coolie work. On 29.7.2017, Somanath was found dead with injuries on his head and face near Agasthyathirtha's pump house in Laxmeshwar town.
12. The case of the prosecution in brief is as follows:-
i) Somanath, accused and PW6 used to consume liquor together. When Somanath was drunk, the accused was picking cash from his pocket and quarreling with him. On the date of -8- CRL.A No. 100349 of 2021 the incident, the accused had picked Rs.120/- from the pocket of Somanath. In that regard, Somanath and PW6 had complained before PW16-Suresh Nandennanavar and the elders had rebuked the accused. The accused was enraged by that.
ii) Therefore, on that day, when deceased and PW6 were standing near the bus stand, the accused approached them saying that the elders have convened the meeting to settle the dispute, therefore, they should go with him.
iii) When they reached Ambedkara Nagar, the accused picked up quarrel with Somanath for complaining before the elders and abused him in foul language. He assaulted Somanath and PW6 by hands. When Somanath questioned the accused, the accused took him on bike towards Agasthyathirtha, crushed the head and face of Somanath with stone and committed his murder. When PW6 followed them and tried to intervene he intimidated PW6 of his life, if he informs anybody and went away.
iv) Then complainant went to Laxmeshwar Government hospital for treatment. He was referred to KIMS hospital, Hubli. After taking treatment in hospital, he came to -9- CRL.A No. 100349 of 2021 Laxmeshwar and filed the complaint as per Ex.P13 before PW15. PW15 on the basis of such complaint, registered Ex.P16 and handed over the further investigation to PW18.
v) PW18 visited the scene of offence and conducted Inquest as per Ex.P1 in the presence of PW1 and CW2 and sent the dead body for postmortem examination. He conducted the spot mahazar on 30.07.2017 in the presence of PW1 and CW3.
During spot mahazar, he seized MOs.1 to 3, stone, blood stained sand and sample sand from the scene of offence and drew the sketch of scene of offence as per Ex.P27. He recorded the statement of witnesses, collected the postmortem report.
vi) On 31.7.2017 he arrested the accused and recorded his voluntary statement. On the basis of confessional statement, he seized MOS.7 and 8, the T-shirt and Jeans Pant of the accused under Mahazar Ex.P8. He referred the seized articles to RFSL, Belgaum, collected the wound certificate of PW6 as per Ex.P21. After completing investigation, he filed the charge sheet.
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CRL.A No. 100349 of 2021
13. The defence of the accused is of total denial. The case of the prosecution is rests on:
i) The circumstance of motive,
ii) The evidence of PW6 the injured eye witness;
iii) Res gestae witnesses PWs.4, 5 and 7
iv) Medical evidence of PW13 who allegedly treated
PW6, PW11-the doctor who conducted the post mortem examination of the dead body of Somanath
v) The evidence of the police witnesses;
Reg: Eye witness
14. The trial Court convicted the accused relying on the evidence of PW6-the alleged injured eye witness. According to the defence counsel, the evidence of PW6 is tainted with suspicion and discredited. Regarding appreciation of injured eye witness, the Hon'ble Supreme Court in para 30 of the judgment in Baleshwar Mahto and Another Vs. State of Bihar and Another1 relying on its earlier judgment in Abdul 1 (2017) 3 SCC 152
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CRL.A No. 100349 of 2021 Sayeed Vs. State of M.P.2 and Jarnail Singh Vs. State of Panjab3 held as follows:-
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
(Emphasis supplied)
15. The reading of the above judgment which was based on several other earlier judgments makes it clear that to rely on such evidence, firstly prosecution has to establish that such witness was injured eye witness. If there are strong grounds for rejection of his evidence on the basis of major 2 2010 SCC 259 3 (2009) 9 SCC 719
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CRL.A No. 100349 of 2021 contradictions and discrepancies therein, the evidence of such injured eye witness can be rejected.
16. In the case on hand, the alleged incident said to have taken place on 29.07.2017 at 6.30pm. PW6 said to have filed the complaint on 30.07.2017 at 10.00am. The FIR was delivered to the Court on 30.07.2017 at 2.30pm. In the complaint-Ex.P13, the reason assigned to explain the delay in filling the complaint is that he had suffered internal injury in his chest, therefore, he was admitted in Laxmeshwar Government Hospital. It is further stated that from there, he was sent to KIMS Hospital for higher treatment. After his discharge from KIMS hospital, he returned to Laxmeshwar and therefore, there is delay in filling the complaint. In the complaint itself he says that he was accompanied by his younger brother. The said younger brother does not file the complaint.
17. Contrary to such explanation in the complaint, PW6 in his chief-examination states that on the date of the incident itself, he went to the police station to file a complaint. But, police declined to receive the complaint on the ground that he is intoxicated and in such state complaint cannot be taken.
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CRL.A No. 100349 of 2021 Then he went to the District hospital, Gadag, and took treatment there. Then filed the complaint. But the prosecution version is totally different.
18. PW15-the A.S.I. of Laxmeshwar police station who allegedly received the complaint and registered the FIR- EX.P16 states that on 30.07.2017 at 10.00 am, when he was the Station House Officer of Laxmeshwar police station, PW6 appeared before him and filed the complaint-Ex.P13. He says on the basis of the said complaint, he registered FIR-Ex.P16 and handed over the further investigation to PW18-the CPI of Shirahatti police circle. In Ex.P16, PW6 taking treatment in Hubli KIMS hospital is shown as the reason for the delay, whereas according to the prosecution itself, PW6 first went to Laxmeshwar Community Health Centre, and PW13-the Medical Officer of the said centre treated him.
19. PW13 states that on 29.07.2017 at 8.00pm, PW6 was brought to the CHC with the history of some galata. He further deposes that on examination, PW6 was found to be suffering from the pain in back, chest, knees and elbows and they were simple injuries. He further says that regarding
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CRL.A No. 100349 of 2021 examination of PW6 he issued the wound certificate-Ex.P21. The injuries mentioned in EX.P21 are as follows:-
i) Backache
ii) Chest tenderness
iii) Knee elbow joint pain
They are certified to be the simple injures aged 6 hours prior to the examination. Thus, there were no visible injures on the body of PW6.
20. PW13 in his cross examination sates that soon after the arrival of PW6 into the hospital, he informed the police, that he did not refer PW6 either to Gadag district hospital or KIMS Hospital, Hubli. No records were produced to prove that PW6 was treated either in District hospital, Gadag or in KIMS hospital, Hubli. When PW6 says that he was accompanied by his younger brother-Maruthi, in Ex.P21 the name of said Maruthi does not reflect. It only says that he was accompanied by his relatives. PW13 says that PW6 was accompanied by 2 to 3 persons and he examined the injured for about 15-20 minutes. In Ex.P21, it is not stated what treatment was given to him.
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CRL.A No. 100349 of 2021
21. There were no visible injuries on PW6. The I.O. doesn't collect the MLC register extract and produce the same to show that PW6 was examined or treated by PW13 in Laxmeswhar Community Health Centre. The I.O. in his cross examination states that after taking treatment in Laxmeshwar hospital PW6 took treatment in Hubli KIMS hospital. But he has not collected any records regarding the same. He says because PW6 was treated as out patient, no record was collected. But, even for that atleast there will be entry in out patient register. So far as non collection of MLC register extract from Laxmeshwar Community Health Centre, though he admits that, he says since he did not find that necessary he did not collect that.
22. Contrary to the theory of taking treatment in KIMS Hospital as found in Ex.P13 and in the evidence of PW18, PW6 says that he was treated in District Hospital Gadag. PW18 says that PW6 did not inform him about he taking treatment in Gadag Hospital. These are all the material contradictions which show that there was an attempt to suppress something by the aforesaid witness. PW15 who registered the FIR in his cross- examination says that before he receiving the complaint, he
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CRL.A No. 100349 of 2021 had not received any information regarding the incident. To improve the case he says that on 29.07.2017, H.C.917 who had gone to hospital for investigation in another case informed him that during his visit to the hospital, the Medical Officer told him about the admission of PW6 in the hospital. He does not say which was that hospital. He further says that on getting such information, he went to the hospital at 8.30 pm and came to know that the injured is shifted to KIMS Hospital, Hubli, which is neither the case of PW13 nor PW6. PW15 further says that when he visited the hospital, none of the relatives of the injured were there and he did not get MLC intimation from the hospital. He says that PW6 was accompanied by his younger brother Maruthi Gajakosh.
23. Even according to PW15, the FIR was registered at 10.00 am. But Ex.P16 shows that the same was delivered to the Court at 2.30 pm. The delay in delivering the FIR was not explained. That creates doubt about the registration of the FIR at 10.00 am. That goes to show that before registering the FIR, there was some deliberation, because PW1 says that he was accompanied by his younger brother. He was not cited as the charge sheet witness. PW6 says that his uncle Somanath
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CRL.A No. 100349 of 2021 died instantaneously at the spot. It goes hard to accept that when his uncle was murdered, himself or his relatives do not file complaint till next day. PW6 in his cross examination states that he was accompanied to the hospital by his brother Maruthi and death of his uncle was known to the people of his lane. But they have not filed any complaint.
24. When PW6 and PW15 say that the FIR was registered on 30.07.2017 at 10.00 am, PW4 and PW5 the wife and son of the deceased Somanath state that they were informed about the death of Somanath on 29.7.2017, therefore they came to Laxmeshwar during the same night. PW4 says that evening only they went and saw the dead body near Agasthyathirtha, Laxmeshwar and she does not know the cause of death of her husband. She does not know what crime the accused has committed. The prosecution treated her as hostile witness and cross examined her. She denies having given statement before the police as per Ex.P12 to the effect that PW6 informed her on 30.07.2017 about the incident. Nothing was elicited in her cross examination to believe that she has any strong reason to turn hostile.
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CRL.A No. 100349 of 2021
25. PW5 the son of the deceased says that his elder brother CW8 informed him that his father has suffered serious injuries in the quarrel and he was admitted to the hospital. During the same night he came to Laxmeshwar. He further deposed that during that night itself, police were in the house of the victim and did not allow him to enter the house. On seeing the dead body of his father, he came to know about the death of his father. He further states that when he enquired PW6 he told that the quarrel took place between the accused, deceased and PW6 regarding the payment of wages. But he says that he does not know who hit whom and who are the assailants of his father. Though in the cross examination he admits about PW6 informing him about the incident and he giving statement about that, his evidence that the police were present in the house of the victim on the previous evening itself demolishes the prosecution case that police were informed on the next day. The above facts go to show that there is an attempt on the part of the I.O. as well as PW6 to suppress some material fact and the genesis of the case itself is doubtful.
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CRL.A No. 100349 of 2021 Reg: Motive
26. According to the prosecution the motive for commission of the crime was the victim objecting the accused picking up the money from his pockets frequently and victim complaining about the same before PW16 and PW16 and others rebuking the accused about the same. To prove this circumstance the prosecution relied on the evidence of PWs.4, 5, 6 and 16. PW16 totally denies the theory of PW6 and the victim informing him about picking up of any cash or he advising them or giving statement as per Ex.P23. Nothing worth was elicited in the cross examination to show that there was any reason much less strong reason for him to turn hostile. Then what remains is the only evidence of PW6. According to the prosecution PW6 and PW16 were only direct witnesses to the motive circumstances and PW6 narrated the said motive to PWs.4 and 5. Therefore, the evidence if any of PWs.4 and 5 was hearsay evidence. Even then they did not support that in their evidence.
27. So far as PW6, it is suggested that there was a property dispute between the deceased and his brothers
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CRL.A No. 100349 of 2021 themselves, on the ground that in the partition, the brothers had allotted him a house which was in litigation. PW5 in his cross examination admits that there was dispute between his father Somanath and the father of PW6 regarding the property. He further admits that in the site allotted to his father, a hospital was constructed and they did not get the share of his father till the date of his evidence.
28. It is the defence of the accused that PW6 himself on committing murder, to screen that, has filed a false complaint. PW6 in para 8 of his cross examination admits that the deceased was living in a rented house in the town and he and his other uncles are living in their own houses. He further admits that one Rafiq filed a case against his uncle Somanath and took the property of Somanath. He further admits that regarding that his uncle was quarrelling with his father. He further admits that his uncle was pestering them to clear the litigation and get that property back to him. To the suggestion that in that background, he had ill-will against Somanath, he says that he had no ill-will but his mother was abusing him. To the suggestion that there was ill-will between him and Somanath regarding the property matter, he says that there
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CRL.A No. 100349 of 2021 was only oral quarrel. Such admissions of PWs.5 and 6 probabalise the defence of the accused that there was ill-will between PW6 and his family members on one hand and the deceased on the other hand with regard to property dispute. In that back ground, he not filing complaint immediately after the alleged death, creates a doubt about the conduct of PW6.
29. Further the cross examination of PW6 shows that himself and deceased Somanath were doing coolie work since two years prior to the incident under Ningappa the uncle of the accused and collecting their wages from him. He has further admitted that they were collecting coolie amount on every Friday at the rate of Rs.1,500/- to Rs.2,000/-. The evidence of PWs.5 and 6 show that PW6 and Somanath were alcoholics and the deceased was living separately from his wife and son since 7 to 8 years. The evidence of PW6 further shows that house of himself, deceased and accused were in different directions in Laxmeshwar town. Therefore, he had to probabalise why and how he himself and Somanath met at the time of the alleged incident.
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CRL.A No. 100349 of 2021
30. The cross examination of PW6 shows that the alleged scene of offence i.e. Ambedkaranagar where the first incident took place and the pump house where the second incident took place were populated areas and people used to move in those places in the evening time. If that is the case, there could have been other eye witnesses to the incident which improbabalises PW6 being the sole eye witness to the incident.
31. PW11 the Doctor who conducted the autopsy on the dead body of the victim says that if an intoxicated person is brought before the Doctor beyond 12 hours though the alcohol content will not be found in the stomach or intestine, the same will be present in the blood. He further states the I.O. did not give requisition for preserving viscera or blood or any part of the body. She also states that I.O. did not give the history of the incident when dead body was brought for postmortem examination and the Doctor who conducts the postmortem examination should know about the history of the incident. She further states that she has not ascertained the history of case before the PM examination. The I.O. has no explanation
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CRL.A No. 100349 of 2021 why he did not request PW11 to preserve blood, viscera for sending for FSL examination.
32. According to the prosecution, the accused held MO1-the stone in his fist and crushed head of the victim. But, PW11 says that MO-1 was first holding stone which means a stone caught or held with fist. She further admits that MO1 cannot be caught hold with single first. She admits that injury Nos.1 to 3 could be caused, if an intoxicated person falls on the ground while going on a motorcycle. This medical evidence improbabalise the theory of assault by MO1 leading to the injuries found on the dead body.
33. The above discussion goes to show that there were material contradictions in the evidence of PW6, the alleged solitary eye witness and the other evidence on record which goes to the root of the matter and demolishes the core case of the prosecution. The above discussion further shows that there were strong grounds for rejection of evidence of PW6 on the basis of major contradictions and discrepancies. In convicting the accused the trial Court failed to notice the exception provided to the reliability of the injured eye witness
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CRL.A No. 100349 of 2021 in Baleshwar Mahto's case referred to supra, the major contradictions and discrepancies in the evidence of PW6 and other evidence on record. That lead to miscarriage of justice to the accused.
Reg: recovery of MOs.7 and 8 on the basis of the voluntary statement of the accused
34. According to prosecution on his arrest, the accused volunteered to produce the T-shirt and jeans pant worn at the time of offence and the I.O.-PW18 seized the same under the Mahazar Ex.P8 by taking photograph Ex.P10. The accused denies having given any voluntary statement as per Ex.P28 or the recovery of the same. To prove that circumstance, the prosecution relies on the evidence of PW18, CW4/PW2, CW5/PW3. As per Ex.P8 on his arrest, the accused produced MOs.7 and 8-blood stained T-Shirt and pant worn by him in the presence of PWs.2 and 3 and the same were seized under the Mahazar Ex.P8 on 31.07.2017 between 3.15 and 4.00 pm.
35. PW2 in his chief-examination itself states that the police took his signature on Ex.P8 in the police station and
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CRL.A No. 100349 of 2021 collected the shirt, pant and towel which were in the police station. He does not say that the accused produced them. Though in the cross examination by the Public Prosecutor, he admitted that he is depicted in Ex.P9 -the photograph (which was marked subject to objection regarding admissibility) and accused produced them, again in the cross examination by the defence counsel, he states that he does not know reading and writing and does not know the contents of Exs.P7 and P8. He further admits that he signed on those documents at the instance of the police and he had not gone to the police station on 30.07.2017. He further admits that he is the nephew of the deceased. That goes to show that a relative is brought in as independent witness and moreover his evidence with regard to the seizure and drawing of the Mahazar was not cogent and consistent.
36. So far as PW3, though he admitted his signature on Exs.P7 and P8, the Mahazars regarding seizure of the clothes of the deceased and the accused, in the cross examination by the defence counsel, he says, he has not read and understood the contents of the said documents. He says that he is not aware of the contents of the said documents. He
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CRL.A No. 100349 of 2021 says he does not know why the photographs and the clothes MOs.7 and 8 were taken. Therefore, his evidence also did not support the theory of seizure at the instance of the accused.
37. The said seizure theory was set up to link the accused to the crime on the basis of RFSL report Ex.P24. In Ex.P24, it is stated that MO1-stone, MO2-the mud, MOs.4, 5, 7 and 8 were stained with 'O' blood group. But as already discussed, the doctor who conducted the autopsy says that I.O. did not issue requisition to collect the viscera in the blood samples to send them to FSL. Since the seizure itself is not proved beyond reasonable doubt and in view of the evidence of PW11, the observation in Ex.P24 is no way advance the case of the prosecution.
38. The trial Court ignoring all the above said material contradictions and suspicious circumstances and judgment of the Hon'ble Supreme Court in Baleshwar Mahto's case proceeded to convict and sentence the accused based on the solitary evidence of PW1. Therefore, the said judgment and order are unsustainable in law and warrants interference by this Court.
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CRL.A No. 100349 of 2021 Therefore following:
ORDER Appeal is allowed.
The impugned judgment and order of conviction and sentence passed against the appellant/accused is hereby set aside. The appellant - accused is acquitted of the charges for the offences punishable under Sections 302 and 323 IPC.
The accused shall be set at liberty forthwith, if his detention is not required in any other case.
The fine amount deposited, if any, shall be refunded to the accused.
The order of the trial Court with regard to disposal of the properties is maintained.
Communicate the copy of this order to the trial Court and the concerned prison forthwith.
Sd/-
JUDGE Sd/-
JUDGE Vmb/jm