Karnataka High Court
Laxmi W/O Basavaraj Biradar vs The State Through Tikota Police ... on 24 June, 2015
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24th JUNE, 2015
PRESENT
THE HON'BLE MR. JUSTICE H. BILLAPPA
AND
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO.3501/2010(C)
C/W.
CRIMINAL APPEAL NO. 200023/2015(C)
IN CRL.A. NO.3501/2010
BETWEEN:
Laxmi,
W/o. Basavaraj Biradar,
Age: 30 years,
R/o. Kanamadi,
Tq & Dist.: Bijapur. ... APPELLANT
(By Sri. Baburao Mangane, Adv.)
AND
The state through
Tikota Police Station,
Bijapur District. .. RESPONDENT
(By Sri. Prakash Yeli, Addl S.P.P..)
2
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. against the judgment of conviction and sentence
dated 06.10.2009 passed by the Principal Sessions Judge,
Bijapur, in S.C. No.8/2007 convicting the appellant/accused
for the offences punishable under Section 302 r/w. 34 of IPC
and the appellant/accused is sentenced to undergo life
imprisonment and to pay fine of Rs.10,000/- and in default
to undergo Simple Imprisonment for 6 months for the
offence punishable under Section 302 r/w. Section 34 of
IPC.
IN CRL.A. NO. 200023/2015
BETWEEN:
Ashok,
S/o. Annappa Biradar,
Age: 44 years,
R/o. Kanamadi,
Tq & Dist.: Bijapur. ... APPELLANT
(By Sri. Baburao Mangane, Adv.)
AND
The state through
Tikota Police Station,
Bijapur District. .. RESPONDENT
(By Sri. Prakash Yeli, Addl S.P.P..)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to allow the appeal and set aside the
judgment and order passed in S.C. No.8/2007 dated
06.10.2009, on the file of the Principal Sessions Judge,
Bijapur, convicting the appellant/accused for the offences
punishable under Section 302 r/w. 34 of IPC.
3
These Criminal Appeals having been heard and
reserved for judgment on 15.06.2015, coming on for
'Pronouncement of Judgment' this day, the court delivered
the following:
JUDGMENT
The above said Criminal Appeals are preferred by Accused Nos. 2 & 1 respectively in S.C. No.8/2007 on the file of the Principal District and Sessions Judge, Bijapur, wherein vide judgment dated 06.10.2009 the learned Sessions Judge has convicted the appellants/accused for the offence punishable under Section 302 r/w. 34 of IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs.10,000/- each, in default, to undergo Simple Imprisonment for 6 months for the said offence and also awarded a sum of Rs.10,000/- as compensation to PW.3 under Section. 357 of Cr.P.C.
2. In Crl. A. No. 3501/2010 there is a delay of 30 days in preferring the appeal, whereas in Crl. A. No. 200023/2015, there is a delay of 1895 days in preferring the appeal. This Court has already 4 condoned the delay in Crl. A. No. 3501/2010 vide order dated 18.02.2010.
3. We have carefully perused the affidavit filed in support of the application under Section 5 of the Limitation Act filed by Accused No.1-Ashok, wherein it is stated that the appellant was in custody since 2.8.2006 and there was nobody to make arrangements for preferring the appeal. In fact, recently one A.I. Biradar, who met the appellant - Ashok and assured him that he will make arrangements to prefer appeal by engaging a counsel, and therefore, he could not file appeal in time.
4. As Accused No.1 was in custody, he would not be benefited in filing the appeal in a delayed manner. Further, added to that there is no reason to disbelieve the contents of the affidavit that, when he was in jail, no body was there to make arrangements to engage a counsel and to file an appeal. Further, as we have heard the arguments on merits of the case and as 5 this Court has admitted the appeal and ordered to post this case along with Crl. A. No. 3501/2010, we prefer to condone the delay in the connected appeal No.200023/2015. Accordingly, the delay is condoned.
5. The records disclose that Accused No.1- Ashok was arrested on 2.8.2006 and since then he has been in judicial custody. Accused No.2 -Laxmi was released on bail as could be seen from the order sheet of the Trial Court dated 4.03.2007 and she was on bail through-out the during the course of the trial. She was taken to custody on the date of the judgment of the Court and since then she has been in judicial custody.
6. Before adverting to the merits of the case, we would like to note the brief factual matrix of the case. The state through Bijapur Rural Police submitted a charge sheet against the accused persons on the allegations that PW.1 Appugouda Annappa Biradar, PW.15 -Peeragond Annappa Biradar, Accused No.1- Ashok and another person by name Suresh and 6 deceased Basavaraju are all full-blood brothers and residents of Kannamadi Village. Accused No.2 is the wife of deceased Basavarju. Accused No.2 and the deceased Basavaraju were blessed with four children after their marriage. All the brothers were divided and they were all residing separately in their respective lands in the said village. Accused No.1-Ashok and Suresh, Deceased Basavaraju were residing in different portions of one and the same land at Kannamadi village at some distances. The house of Accused No.1 is situated behind the house of Basavaraju at some distance.
7. It is the case of the prosecution that Accused Nos.1 & 2 developed illicit intimacy and the deceased Basavaraju was suspecting Accused Nos.1 & 2 with regard to their illicit relationship. This gave raise to convening of several panchayats in which Accused Nos. 1 & 2 and deceased Basavaraju were advised by panchayat. Being aggravated by such advise, Accused 7 No.1 has been grinding axe against deceased Basavaraju.
8. It is the further case of the prosecution that Accused Nos.1 and 2 because of their illicit relationship, hatched a conspiracy to do away with the life of deceased Basavaraju. It is the further case of the prosecution that on 31.7.2006 Accused No.2 with the help of Accused No.1 in the night hours at about 12.00 'O' clock in the house of the deceased Basavaraju when the said Basavaraju was sleeping, mercilessly assaulted him with an axe and a chopper and caused severe injuries. Having sustained such severe injuries the said Basavaraju succumbed to the injuries on the spot. It is the further allegation of the prosecution that during the course of the investigation the Police have collected sufficient materials to establish motive and also recovery of incriminating articles at the instance of the accused and having found sufficient evidence of the eyewitnesses and other material witnesses, they laid a 8 charge sheet against the accused for the offence punishable under Section 302 r/w. 34 of IPC.
9. The Court after securing the presence of the accused, proceeded to frame charges for the above said offence and held trial. The prosecution in order to bring home the guilt of the accused, examined as many as 23 witnesses as PWs. 1 to 23 and got marked 30 documents as Exs.P1 to 30 and material objects as MOs. 1 to 16. During the course of cross-examination of PW.3 and PW.14, the defence also got marked Exs. D1 and D2, By accepting the incriminating materials found in the evidence of the prosecution witnesses the Court also examined the accused under Section 313 Cr.P.C. and recorded their answers. The accused persons did not choose to lead any evidence. Therefore, after hearing the detailed arguments, the Trial Court after appreciating the materials on record recorded the judgment of contention and sentenced the accused accordingly.
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10. The appellants have challenged the judgment and Order passed by the Trial Court on various grounds, particularly, attacking the version of the eyewitnesses and also other witnesses to recovery and panchayat etc.. In support of the grounds urged before this Court, learned counsel for the appellants has strenuously argued that the Trial Court has not properly appreciated the oral and documentary evidence on record in their proper perspective; that the Trial Court has also not given any importance to the major contradictions, omissions and the circumstances which are accepted, though they are sufficient to up-root the case of the prosecution. The learned counsel took us through the evidence of the prosecution and argued in detail as to why the prosecution case should not be accepted. We would like to discuss the submissions of the learned counsel for the appellants at relevant point of time.
10
11. The learned Addl. SPP has strenuously countered the arguments of the learned counsel and submitted that there is abundant evidence placed by the prosecution to connect the accused persons to the crime alleged. The eyewitnesses' version, motive, recovery of the incriminating articles at the instance of the accused, evidence of handwriting expert regarding the hand writing of Accused No.2 with that of the letter writing by her to Accused No.1 and also placing surrounding circumstances the prosecution has proved the case against the accused beyond reasonable doubt; The learned Sessions Judge in his lengthy judgment has considered each and every points raised by the learned counsel for the appellants and by a reasoned judgment, convicted the accused persons. The said well-reasoned judgment does not call for any interference at the hands of this Court.
12. For having heard the arguments of the learned counsel for the appellants and the learned 11 Addl. SPP, we are conscious of the legal principles that, the First Appellate Court normally should not disturb the findings of the Trial Court if the opinion of the Trial Court is also possible on the basis of the materials on record. The appellate Court should not in a causal manner substitute its opinion to that of the opinion of the Trial Court unless the appreciation of the materials on record by the Trial Court is erroneous and perfunctory which causes miscarriage of justice. Bearing in mind that the said guidelines, being the First Appellate Court, this Court has got responsibility to re- look into the materials on record and if necessary re- appreciate the evidence in order to administer the real justice to the parties. In this background we would like to first discuss the evidence of the prosecution witnesses as to what the witnesses speak about and who are the witnesses relevant to be considered.
13. PW.1-Appugouda Annappa Biradar is the elder brother of the deceased, who lodged the complaint 12 as per Ex.P1. PW.2 - Kiran and PW.3 - Ravi are the sons of Accused No.2 and the deceased, who are the eyewitnesses to the case. PW.2 has turned hostile to the prosecution and his statement was marked at Ex.P2. PW.3 has supported the case of the prosecution. PW.4 - Sangappa is the panch witness to Exs. P3 and P4. Under Ex.P3, MOs.4 to 8 were recovered at the instance of Accused No.1 and under Ex.P4, MOs. 9 to 12 were recovered at the instance of Accused No.2. PW.5 -Bhimaraya is the witness to the Inquest Panchnama (Ex.P5) and also Mahazar (Ex.P6), under which MOs. 1 to 3 were seized. He turned hostile to Inquest Panchnama and supported so far as Ex.P3 is concerned. PW.6 - Irappa and PW.7 - Somanna are the witnesses examined to prove the circumstance that immediately after the incident, Accused Nos.1 & 2 ran away from the house of the deceased holding axe and sickle in their hands, but he did not support the case of the prosecution. PW.7-Somanna, PW.8-Shrishail, PW.9-Gurubasu, PW.15 -Peergonda Annappa Biradar is 13 another brother of PW.1. PW.16-Rajkumar, 17- Babugouda, PW.20-Mallappa, PW.21-Ahsok Mallappa were examined to establish that Accused Nos. 1 & 2 had illicit intimacy with each other and these witnesses held panchayat to advise Accused Nos. 1 & 2 and deceased Basavaraju, but none of these witnesses have supported the case of the prosecution, except PW.15. PW.10- Ramash is a panchwitness, in presence of whom the Investigating Officer has seized MOs. 13 to 16, which are the clothes and waist thread and wrist watch of the deceased under Ex.P11- Panchanama. PW.11-Raju Krishna Mujumdar, the Asst. Engineer, PWD, who prepared the spot-sketch as per Ex.P12. PWs.12, 13, and 22 are the police officials, who assisted the Investigating Officer. PW.18-Dr. Anil Agnihotri conducted post-mortem examination of the deadbody deceased Basavaraju. The post-mortem report is marked at P.16. PW.23-M. Shankarappa, is the handwriting expert, who examined the writings of PW.2 14 in connection with the case and Exs.P26 and P27 are the important documents marked through him.
14. Out of the above said witnesses some of the witnesses, who turned totally hostile to the prosecution are of no use either to the accused or to the prosecution, therefore, we would like to discuss the evidence of the relevant witnesses.
15. The prosecution has in fact projected its case on the strong basis of the evidence of the eyewitnesses, motive for commission of the offence, conspiracy between Accused No.1 & 2, Panchayat held to show the illicit intimacy with Accused Nos. 1 & 2, recovery of incriminating articles at the instance of Accused Nos. 1 & 2 and also the evidence of handwriting expert to connect Accused Nos.1 & 2 to the prosecution case. The prosecution also mainly relied upon the evidence of PW.1, who is none other than the brother of the deceased who lodged first information report as per Ex.P1.
15
16. On going through the entire materials on record and after re-appreciation of the evidence, the point that would arise for consideration of this Court is,-
"Whether the Trial Court has
committed any error in convicting and
sentencing the accused for the offence
punishable under Section 302 of IPC.?"
17. We would like to first discuss the stages of the case of the prosecution and whether those circumstances and stages of the case have been proved to the satisfaction of the Court and whether the Trial Court has properly appreciated those circumstances projected by the prosecution.
18. Before adverting to the circumstances and the version of the eyewitnesses, it is just and necessary to consider, whether the death of deceased Basavaraju is a homicidal death. The accused persons did not dispute this particular aspect in the course of the trial. 16 Even in their statement under Section 313 of Cr.P.C. they did not produce any material to dispute this aspect. On the other hand, the prosecution has produced the inquest report marked at Ex.P5 and examined PW.5 and also the Investigating Officer (PW.22), who conducted the inquest proceedings and both of the said witnesses have categorically stated that the deceased had sustained severe injuries on various parts of his body and he was in the pool of blood when they saw the dead body on 1.8.2006 in the house of the deceased. Apart from the above, PW.18- Dr. Anil Agnihothri has categorically stated in his evidence that he conducted the post-mortem examination over the dead body of deceased Basavaraju on 1.8.2006 and found as many as 15 injuries on the dead body and on going through the post-mortem report he deposed that the said injuries were ante-mortem in nature and the death was due to hemorrhagic shock as a result of the injuries sustained. There is no dispute with regard to the opinion expressed by the Doctor with regard to the 17 homicidal death of the deceased. Therefore, the prosecution has proved the homicidal death of the deceased.
19. In order to prove the case of the prosecution, the prosecution mainly relied upon a star witness PW.3, who is the eyewitness to the incident. The evidence of this witness has to be understood coupled with the evidence of PW.1 and PW.22, the Investigating Officer. Pw.2 is also another eyewitness, who is the son of deceased Basavaraju and he turned hostile to the prosecution. Therefore, the sole eyewitness to the prosecution is PW.3, who is also one of the two sons of the deceased Basavaraju, has been residing with PW.1. In this background, the version of eyewitness has to be appreciated to ascertain whether his evidence is trust-worthy and credit-worthy for acceptance. The fundamental principle of criminal jurisprudence is that, it is not the quantity but the quality of evidence placed before the Court that counts. 18 Even a sole trust-worthy, credit-worthy and unblemished version of an eyewitness would stand a strong circumstance, which can unequivocally point towards the guilt of the accused can be relied upon by the Court for convicting the accused. Bearing in mind the above said principle, we would like to discuss the evidence of PW.3 to ascertain whether his evidence is trust-worthy for acceptance.
20. It is the case of the prosecution that the Accused Nos. 1 & 2 have developed illicit intimacy with each other, which was the motive for commission of the offence and that in spite of panchayat held by the village people Accused Nos. 1 & 2 did not desist from their relationship, but they conspired to kill the deceased. In order to prove this particular aspect, the prosecution has relied upon the evidence of PWs.1, 3 & 15, who have supported the case of the prosecution. Rest of the witnesses, as noted above, have turned hostile to the prosecution. PW.1 in his evidence has stated sofaras 19 this circumstance is concerned that the relationship between Accused No.1 and deceased Basavaraju has strained, as the deceased Basavaraju suspected illicit incimacy of Accused No.1 with his wife. A panchayat was also convened in the house of Basavaraju with regard to illicit intimacy and at that time Mallapa Gurubasu acted as elder and he advised Basavaraju not to suspect his wife. Accused No.1 was dis-satisfied with the said panchayat, therefore, he left the place. But, he has not specifically stated as to when and how many days prior to the incident the said panchayat was convened etc. and he also not specifically stated the role played by him in the said panchayat. In the course of cross-examination, he has stated that on the previous day of incident the panchayat was held and because of that reason, he suspected Accused Nos. 1 & 2, they must have committed the murder of deceased Basavaraju. In a very vague way, the said circumstance has been spoken to by this witness. However, the persons who were participated in the said panchayat 20 viz., PW.9- Gurubasu and another PW.20-Mallappa have turned total hostile to the prosecution. Moreover, the other witnesses who were also examined before the Court in order to prove the case have also turned hostile to the prosecution and they deposed that no such panchayat was convened in order to advise Accused Nos. 1 & 2. PW.15-Peergond is another brother of PW.1-Appugouda. He also in a very causal manner has stated that the panchayat was convened with regard to the illegal intimacy between Accused Nos. 1 & 2, but he never stated where, when and on what date the said panchayat was conducted. In the course of cross- examination he has stated that the said panchayat was held two days prior to the incident, but there is absolutely no acceptable evidence with regard to the holding of panchayat regarding illicit intimacy of Accused Nos. 1 & 2 and advising them to desist their illicit relationship. The evidence of PWs.1 & 15 is not sufficient to accept with regard to this circumstance. These two witnesses have only suspected the 21 relationship between Accused Nos.1 & 2, but all witnesses have not at all spoken to about the illicit relationship between Accused Nos. 1 & 2. In this regard PW.2 & 3 are also relevant witnesses. PW.2 totally turned hostile to the prosecution and he never spoken about the relationship between his mother and Accused No.1. However, PW.3 has stated that his father was cordial with Accused No.1. Though he has supported the case of the prosecution sofar as the other material things he has fully supported the prosecution with regard to the relationship between Accused Nos.1 & 2. At Para-2 of his evidence, he has stated that Accused No.1 used to sleep in their house in the absence of his father, as such some quarrel has taken place between his father and mother, therefore, accused assaulted his father. If these two version i.e., the relationship between deceased and Accused No.1 was cordial in nature and Accused No.1 used to sleep in their house in the absence of deceased are considered, it will lead us to no place and it cannot be inferred by means of such 22 two opposite evidence to draw an inference with regard to the illicit intimacy or conspiracy between Accused Nos. 1 & 2 prior to the incident. Therefore, the prosecution has not properly placed sufficient material to draw an inference sofaras this circumstance is concerned. The Trial Court in fact swayed away by the statement of PW.3 and distorted versions of PW.1 and PW.15, and has come to the conclusion that the prosecution has proved this particular circumstance, which in our opinion is not proper appreciation of materials on record.
21. The sole eyewitnesses to the prosecution is PW.3. It should be borne in mind that PWs.2 & 3 are full blood brothers being the sons of deceased Basavaraju and Accused No.2 PW.2 totally turned hostile to the prosecution and he never implicate either Accused No.1 or Accused No.2 to the death of his father Basavaraju. It is evident from the record that after release of Accused No.2, PW.2 started residing with 23 Accused No.2, wherein PW.3 has been residing with PW.1. It is argued by the learned counsel for the appellants that because PW.3 was forcibly kept with him by PW.1 and he tutored PW.3 right from the beginning to implicate Accused Nos. 1 & 2. Therefore, the evidence of PW.3 should be very carefully scanned and scrutinized. He also contends that there are lot of contradictions, omissions and also improbabilities in the evidence of PW.3. If the evidence of PW.3 is appreciated with the corresponding evidence of other witnesses and the circumstances, it would definitely show that PW.3 was not an eyewitness to the incident, but he was a planted witness to falsely implicate Accused Nos.1 & 2. Bearing in mind the submissions made by the learned counsel for the appellants, we have to consider the evidence of PW.3 very carefully with proper perspective. The Trial Court also considered the omissions, contradictions and probabilities in the evidence of PW.3, being the eyewitness and came to the conclusion that his evidence is credit-worthy and 24 acceptable. But this court has to see whether such observations made by the Trial Court is proper and correct.
22. PW.3 is a boy aged 10 years, wherein PW.2 was aged 11 years as on the date of recording their depositions. Some preliminary questions have been put to PW.3 to satisfy whether he could understand the questions that may be put to him and give coherent answers.
23. PW.3 has deposed before this Court and admitted that the house of Accused No.1-Ashok is situated behind their house in the same garden land; His father was cordial with Accused No.1; About 1 year 5 months back the incident taken place at 12.00 'O' Clock in the midnight. He further says that, on the date of incident, himself, his brothers and mother (A2) were sleeping in the kitchen room during said night. In the night hours he woke-up and found that his mother was not in the kitchen room. He also made his brother 25 Kiran (PW.2) to woke-up and they saw Accused Nos.1. and 2 talking with each other behind their house. On seeing them, these two brothers came back and slept once again. He further deposed that his father was sleeping in the adjoining room. Little later, they heard some sound again they woke-up and saw through the opening in the common wall between two rooms and observed Accused No.1-Ashok assaulting his father with an axe and Accused No.2-Laxmi assaulting his father with a sickle. He further says that, after assaulting his father Accused No.1-Ashok went out of the room latching the said room and kitchen from out side leaving Accused No.2 in the room. Later in the early morning, they heard screaming sound of Accused No.2 and on hearing her hue and cry people from neighbourhood assembled. After the people assembled, the police also came there. PW.3 has specifically stated that Accused No.1 was sleeping in their house on some occasions during the absence of his father (deceased Basavaraju) and in that context there was some 26 quarrel between deceased Basavaraju and Accused No.2. He also specifically stated that on that day his paternal uncle Appugowda (PW.1) also came to the spot. He also specifically say that he saw the incident in the light emitted from the bulb fixed in the room. Looking to the above said evidence in the examination- in-chief, according to this witness he saw the incident from aperture, which was there in the common wall between the kitchen and the room in which the incident had taken place.
24. During the course of cross-examination it is suggested that through that aperture he could not have been seen the incident as the said aperture had a shutter which can only be operated from the bedroom which was fitted with a bolt. He admitted that if that shutter was closed, nobody can see what is happening in the living room from the kitchen. It is also admitted by him that the door frame of the bedroom was broken and the door could not have been latched. It is also 27 specifically admitted that there are no windows on either side of the front doors of both the rooms. It is also admitted that there are two small windows in the wall to the bedroom at considerable height and those two windows would always be closed since the treasury is kept in the said room. In the course of cross- examination he has admitted that he has not stated before the police that on the date of incident he has seen Accused Nos.1 & 2 talking with each other behind their house, because the Police did not ask him. It is also admitted that if there is no light in the bedroom the happenings in the bedroom cannot be seen by anybody from the kitchen room. He also admitted that he has not stated before the Police about he witnessing the incident in the light emitted from the bulb fixed in the bedroom. In the above said circumstances the Court has to see whether this witness could have seen the incident or not. As he himself has admitted that he has seen Accused Nos.1 & 2 talking with each other behind the house is an improvement before the Court. 28 If we consider Ex.P12 and the evidence of PW.11, the Asst. Engineer who prepared the sketch, it clearly discloses that there is absolutely no mention of any electric connection to this house nor it is there in the sketch that there are any windows to the kitchen and however there is a window on the western wall of the bedroom and there are absolutely no windows to the kitchen towards south so that PW.3 could see Accused Nos.1 & 2 talking with each other behind their house. It is also admitted that it was 12.00 'O' Clock in the night and there was no light in the backside portion of the house therefore, it creates a serious doubt whether he has actually seen Accused Nos.1 & 2 talking with each other behind their house. The sketch EX.P12 also shows that the front doors of the house is situated towards the north of the house surrounded by compound with a open space and thereafter the kitchen and bedroom is situated adjacent to each other having doors. Therefore, a person must come out from the kitchen and from outside on crossing the open space 29 and comes around the house to reach the hind portion of the house and then only he can see some body talking with each other behind the house. Therefore, it improbabilises the said version of PW.3 that he saw Accused Nos. 1& 2 on that day talking to each other behind the house. In the sketch there is no mention of any electric pole in the surrounding portion of the said house though the houses of the brothers of the deceased by name Suresh Biradar, Accused No.1- Ashok, Annappa and house of one Hanmanth Lakkappa are shown. But there is no mention about this house is having any electric connection or any facility of light to the bedroom or to the kitchen. In this background the evidence of the Investigating Officer (PW.22) also shows that while writing the spot- mahazar, he has not shown about the house of Basavaraju having any electric connection. It is elicited that PW.22-Investigating Officer has also not recorded in the statement of PW.3 that he saw the incident in the light emitted by the bulb fixed in the bedroom. Except 30 the improved portion of PW.3 before the Court, no other material is available to come to a definite conclusion that the said house was having any light facility so as to confirmingly say that PW.3 could have seen the incident through the light. The spot panchanama also totally blank sofaras this aspect is concerned. The Trial Court has brushed aside this improvement thinking it as a minor contradiction. But in our opinion, this particular aspect go to the root of the case in order to believe or disbelieve the version of PW.3.
25. Now coming to the other important aspect that PW.3 could have seen the incident through aperture in the common wall. PW.3 in the course of cross-examination has admitted that there is a shelf in the common wall lying between the two rooms and there is a opening in the middle portion of the shelf and the said shelf had shutters which can only be operated from the bedroom. It has got a bolt which can be operated from the bedroom and not from the kitchen. If the said 31 shutter is bolted from the bedroom or closed, nobody can see the happenings inside the bedroom from the kitchen. It is also admitted in the cross-examination (para-10) that, on the previous day of the incident they took meal at 7.00 pm. and went to the bed and he woke-up in the morning when he heard the sound of some galata and he saw the police and people assembled. PW.1- Appugouda also came to their house during morning hours at about 9.00 am. after the police came to their house. He also admitted that he has not stated before the police about his mother and Accused No.1 went out after the incident and earlier to the incident they were talking to each other.
26. Looking to the above said evidence of PW.3, it should be shown to the Court that the said shutter was opened in the night hours. The spot-mahazar and the evidence of PW.22 (I.O.) show that the treasury of deceased Basavaraju was in the said cub-board situated in between the kitchen and the bedroom and it is also 32 admitted that the contents of those treasury and other clothes were scattered in the house. Nowhere in the spot-mahazar it is observed by the Investigating Officer whether the said shutters attached to the said opening was bolted from inside the bedroom or it was open at the time of spot-mahazar. Even none of the witnesses including PW.1 have sated as to the status of the said aperture at that particular point of time. In fact, the Investigating Officer has not at all prepared any sketch and not stated anything about the shutter in the spot- panchanama, which is marked at Ex. P6. Perhaps at the time of spot-mahazar, the Police had no intimation or information with regard to this aperture in the said common wall in between kitchen and the bedroom. This also creates a serious doubt whether at the time of spot-mahazar, the eyewitnesses were present and whether the Police had any intimation that this witness is an eyewitness to the incident. That is why recording of the statement of the eyewitnesses PWs. 2 & 3 play a dominant role. The Investigating Officer had admitted 33 that the statement of the eyewitnesses were recorded at 8.00 p.m. in the night. There is no explanation as to why at the time of spot- mahazar the eyewitnesses have not shown the said opening in the said common wall through which PW.3 has seen the incident. This also creates a serious doubt whether such version of PW.3 is true fact and it can be credit-worthy for acceptance. The learned Sessions Judge while discussing this aspect has also observed one more important point that height of PW.3 is three feet and it is evident that Ex.P12- sketch of offence showed that the small opening or the duct shown as "V" in the common wall and the height of the said duct was shown as 1.10 mts.. ie., about 3½ feet from the floor. Therefore, it is not clear that height of PW.3 is three feet and how can he see through that opening which is ½ feet above his head. Though the learned Sessions Judge observed this discrepancy, he has not given any explanation as to how PW.3 could raise to that height to witness the incident through that aperture. The Trial Court has simply stated, that 34 discrepancy is not sufficient to discard the evidence of PW.3. In our opinion if there is no explanation as to how and in what manner PW3 has raised himself to 3½ feet and saw through that opening. This creates a serious doubt with regard to the witnessing the incident by PW.3.
27. Be that as it may. The Investigating Officer who visited the spot at 2.00 p.m. has not taken care to examine neither PWs.2 and 3 nor PWs.2 and 3 have disclosed that they have seen the incident with their open eyes. PW.5 is also a panch-witness, who turned hostile to the prosecution. In the course of cross- examination it is elicited that the house of Basavaraju was comprised of two rooms; there was a window like aperture in the common wall between two rooms; the shutter of the said window was latched from the bedroom and those latches could be operated from the bedroom alone and the said aperture was 5 feet above the room floor. This further fortifies the evidence of 35 PW.3 and also creates a serious doubt whether the said aperture was open in the night hours or it was bolted from the bedroom. This serious aspect has not been properly appreciated by the Trial Court.
28. The other circumstance which also makes to disbelieve the evidence of PW.3 is that the hostility of PW.2, who is the eldest son of deceased and Accused No.2. If at all such aspects have been seen by PWs.2 and 3 through that aperture, why PW.2 has to turn hostile if at all his mother and Accused No.1 have brutally murdered his father. It is argued before the Court by the learned Addl. SPP that PW.2 was with his mother (A1) after she was released on bail and PW.3 was with PW.1, therefore, PW.2 was tutored by his mother and as such he turned hostile to the prosecution. If same analogy is applied, it is difficult to accept the evidence of PW.3, who might have also been tutored by PW.1. It is also to be noted that except PW.3 all other children were with Accused No.2 after her 36 release on bail. Therefore, when two eyewitnesses are cited, who are having the same relationship with the deceased, one turning hostile to the prosecution it virtually causes damage sofar as the credibility of other eyewitnesses. Therefore, on this ground also the evidence of PW.3 cannot be solely made basis for conviction.
29. The other important aspect to be taken note of is, the surfacing of the names of PWs.2 and 3 as eyewitnesses at the later stage. It is evident from the evidence of PW.1 that on the date of the incident, at about 12.00 noon he received the information with regard to the death of the deceased Basavaraju through PW.8- Shrishail T.A. and he went to the house and saw the dead body of his brother. He has specifically stated in the cross-examination that PWs.2 and 3 were present in the house at that particular point of time. But he has not stated whether he enquired with them with regard to they witnessing the incident and they 37 disclosed that they have seen the incident. He has also stated that lot of people were gathered near the house of deceased Basavaraju and thereafter he went to the police and lodged a complaint. If at all PWs. 2 and 3 are the eyewitnesses to the incident and they were cordial with PW.1 they should have immediately disclosed to PW.1 as to how the incident had happened and it is unnatural to accept the conduct of PW.1 that whether he did not enquire PWs.2 and 3 who were the only persons in the house at the time of the incident as to what happened in their house on that day. Therefore, it creates a serious doubt whether this PW.3 has been planted as an eyewitness subsequent to lodgment of the complaint. The FIR (Ex.P1) lodged by PW.1 does not disclose the existence of any eyewitnesses to the incident. PW.1 only suspects that Accused Nos.1 & 2 might have committed the murder of the deceased. Even in Ex.P1 complaint, PW1 does not speak anything about PWs. 2 & 3. It is not that Ex.P1 was hurriedly lodged before the Police as, the last paragraph in Ex.P1 38 discloses that PW.1-Appugouda and PW.17-Babugouda have after due deliberation with each other lodged the complaint. If at all PW.1 has visited the house of the deceased at 9.00 am as stated by PW.3 or at 12 in the Noon, as admitted by PW.1, at that time they were not knowing that PWs.2 and 3 are the eyewitnesses to the incident and perhaps they were eyewitnesses to the incident that is why PWs.2 and 3 have not disclosed anything to PW.1. This also creates a serious doubt whether PWs.2 and 3 have been planted as eyewitnesses later.
30. It is also taken note of that PW.22 (I.O) in his evidence has stated that he visited the house of the deceased immediately after receipt of Ex.P1-complaint and he went to the scene of offence along with photographer and finger print expert. He admitted that the almirah in the said house was broken and properties were scattered. He conducted inquest panchnama as per Ex.P5 and sent for post-mortem 39 examination. He also stated that he drew-up mahazar at spot. At the time of the proceedings under Ex.P5 and P6, PWs.2 and 3 were very much present and it is admitted by PW.2 in the course of cross-examination (Para-8) that CWs.8 and 9 (PWs.2 & 3) were present at the time of inquest. It is the case of the prosecution that PWs.2 and 3 were the persons last seen the deceased when he was assaulted by Accused Nos.1 & 2. But in the inquest also nothing is elicited that these two persons are the eyewitnesses to the incident. There is no explanation as to why at the earliest point of time before recording of the spot-mahazar and inquest, the eyewitnesses' version was not recorded. The witnesses Bhimaraya and Gurubasappa who are the witnesses to the inquest proceedings have expressed their opinion at the time of inquest that Accused Nos.1 & 2 have committed themurder, but nothing is there to show that PWs.2 and 3 have disclosed this fact to anybody at that particular point of time. Question No.4 put at the time of inquest proceedings also shows that one 40 Neelakantappa was the last person who has seen the deceased prior to the incident, which shows that PWs.2 and 3 were never shown as the persons last seen the deceased prior to his death in the bedroom as elicited from the mouth of PW.3. That is the reason why the names of PWs.2 and 3 as eyewitnesses have never surfaced till 8.00 p.m. in the evening when for the first time the Investigating Officer has alleged to have recorded the statements of PWs.2 and 3. PW.3 has categorically admitted in his cross-examination that at 9.00 am itself PW.1 and Police had been to his house and the Accused Nos. 1 & 2 were present at the spot soon after the incident and it is not explained as to why their statements have not been recorded by the Investigating Officer. The abnormal conduct of the Investigating Officer, PW.1 and PWs.2 & 3 creates a serous doubt as to whether PWs.2 & 3 are eyewitnesses. The natural conduct of PW.1 and the Investigating Officer is that immediately after visiting the house of the deceased they have to enquire as to who were all 41 present in the house on the previous night and actually what happened. The natural conduct of PWs.2 & 3 should be that immediately when they saw PW.1, who is none other than their paternal uncle, they should have disclosed as to what happened in the night. This abnormal conduct also probabilises that PWs.2 & 3 might not be the eyewitnesses to the incident, but, subsequently, planted witnesses.
31. It is the case of the prosecution that Accused Nos. 1 & 2 immediately after the incident ran away from the spot holding a chopper and a sickle. The prosecution examined PWs.6 & 7 to prove this circumstance, but, they turned hostile to the prosecution. PW.3 in his evidence has totally contradicted this circumstance and in the course of cross-examination he has categorically admitted that when the Police came to the spot Accused Nos.1 & 2 were present at the spot. If that is so the Investigating Officer has to explain as to why he has not examined 42 PWs.2 & 3 and got identified the Accused Nos.1 & 2 on the spot itself. PWs. 6 & 7 having turned hostile and PW.3 having given a contrary version, also creates a serious doubt which goes to the very genesis of the case and shaken the foundation of the prosecution story.
32. The another important and strong circumstance which destroy the version of PW.2 is with regard to the existence of light at the time of incident. Admittedly, except the evidence of PW.3 no other material is available with regard to the existence of any light or the electricity connection to the house of the deceased. But, PW.3 says that he saw his mother and Accused No.1 prior to the incident talking to each other behind their house, which was also not believed by this Court. He has specifically stated that he saw the incident from the bulb light, which was emitting light from inside the bedroom. In the course of cross- examination PW.3 has categorically admitted that he has not stated before the Police about Accused Nos.1 & 43 2 talking with each other behind their house and that he has seen the incident in the light emitted from the bulb fixed in the bedroom. PW.22- Investigating Officer has also admitted in the cross-examination that PW.3 has not stated before him that he saw the incident in the light emitted by a bulb in the bedroom. Therefore, it is a material omission, which amounts to contradiction. It is not that the incident happened in a day light and it was in the midnight between 31.07.2006 and 01.08.2006, and everybody was sleeping in the house. It is quite understandable that, at that odd hour no body will keep the bulb burning, even if it is accepted that there is any electrical connection to the house of the deceased. More over it is a material aspect that the prosecution has to establish with regard to the existence of the light at the time of the incident. PW.5, the panch- witness to the spot-mahazar has turned hostile and nothing is elicited in the course of cross-examination with regard to the existence of the light in the house of the deceased. The Investigating Officer (PW.22) also 44 admitted in the course of cross-examination at Para-6 that, there is no mention in the spot-mahazar about the house of Basavaraju having electric connection. PW.11 who is the engineer visited the spot and drew-up the spot-sketch as per Ex.P12 also does not say anything about the electric connection or existence of any street light or electric pole near the house of the deceased Basavaraju. Ex.P12-Sketch also does not depict the existence of any electric connection or electric pole near the house of the deceased. Therefore, this is also an important circumstance which creates a serious doubt as to whether there was any bulb burning in the house at the time of incident to enable PW.3 to see the incident though that aperture.
33. One more important aspect to disbelieve the version of PW.3 is that he has given a statement before the Police as per Ex.D1, though he denied the said portion of his statement, but he accepts that he has given statement before the Police. PW.22 has admitted 45 that PW.3 has given the statement as per Ex.D1, therefore, Ex.D1 is proved in accordance with law. Ex.D1 shows that at the time of recording the statement of PW.3, the weapons, the chopper and sickle (MOs. 4 &
5) were shown to this witness and he identified them and said that they were the same weapons used by Accused Nos. 1 & 2 at the time of committing the offence. But according to the prosecution, these two weapons were recovered at the instance of Accused Nos.1 & 2 on the next day of the recording of the statement of PW.3 i.e, on 02.08.2006. Therefore, this also creates a serious doubt whether this witness can be believed by this Court as sole truthful witness.
34. In the above said backdrop the Court has to ascertain that, PW.3 being the boy of tender age could have been tutored by PW.1. It is an admitted fact that PW.1 that had some loan transaction with Basavaraju and whether he had repaid loan amount or not. It is suggested to him that he has some monetary 46 transactions with Accused No.1 and deceased Basavaraju and therefore, he has got some ill-will against him, as he has not repaid the amount. Because of that reason taking advantage of the death of Basavaraju due to some other reason he took the custody of PW.3, taken care of him, given all sorts of facility to him and used him as a tool to implicate Accused Nos.1 & 2 to the crime. In this background, it is worth to refer to the evidence of PW.3. When PW.3 was admittedly examined by the Court by means of putting some preliminary questions to ascertain whether the witness could give coherent answers, PW.3 has categorically stated in the course of cross- examination at para-8 that he has attended the Court about 5 to 6 times and all those days PW.1- Appugouda and his wife brought him to the Court. It is also admitted that PW.1-Appugouda was present in the Court hall during the course of recording the evidence of this witness and it is also admitted that PW.1 has been looking after him and he has been bearing the expenses 47 of his education, clothes, school fee etc.. Therefore, it is suggested to him that though he was not an eyewitness to the incident, due to the tutoring impact by PW.1 he has given a false evidence before the Court. PW.1 also has admitted that PW.3 has been with him right from the date of the incident and he has been taking care of the said boy. There is no explanation by either of the witnesses as to why PW.2 and other children have been residing with Accused No.2 and why PW.3 alone has been residing with prosecution witnesses. If at all PW.1 on sympathy wanted to help the children of his deceased brother Basavaraju, he would have taken care of all the children equally, but why he has taken care of PW.3 alone. This also creates a serious doubt whether PW.1 in order to fulfill his ambitions has used PW.3 as a tool. The presence of the wife of PW.1 through-out in the Court hall when PW.3 has attended the Court and examined before the Court also creates suspicion in the mind of the Court as to whether they were present with an intention to see that PW.3 will not go away from the 48 tutored track. It is evident from the cross-examination of PWs. 1 & 3 that PW.1 never allowed PW.3 to go and meet his mother. That also clearly go to show that PW.3 might have been tutored by PW.1.
35. Last but not least, PW.8 is the person who actually saw the dead body of the deceased for the first time after the incident. It is in the evidence of PW.1 that PW.8 Srishail informed him with regard to the death of deceased Basavaraju . PW.8 also does not say though he visited the house of Basavaraju as to how the incident happened and whether he enquired PWs.2 & 3 with regard to happening of the incident. So at the earlier point of time, PWs. 2 & 3, though there was an opportunity, they did not disclose the fact to PW.8. According to PW.3 the Police had gone to their house at 7.00 am.; they enquired PWs.2 & 3 and thereafter at 9.00 a.m. PW.1 goes to the house of the deceased; lot of people by then already gathered, the spot-mahazar was drawn, inquest was conducted. At all the times during 49 the above said proceedings PWs.2 & 3 were present but in spite of enquiry by the Investigating Officer they did not disclose that they were the eyewitnesses. Therefore, this aspect goes to the root of the prosecution case with regard to credibility of the case. It is also admitted by PW.3 about the presence of Accused Nos.1 & 2, which is not the case of the prosecution. Therefore, the evidence of PW.3 cuts the case of the prosecution at the root.
36. From the above said discussion and considering innumerable contradictions, omissions, improbabilities, abnormalities in the conduct of PW.3 we are unable to accept the evidence of PW.3 as an eyewitness as his evidence cannot be made basis for drawing any inference with regard to the complicity of Accused Nos. 1 & 2 in the alleged crime. It is not that the accused has to show to the court beyond reasonable doubt that the witness should not be accepted. By means of creating suspicion or doubt in the conduct of 50 the witness and that itself is sufficient to discard the evidence of such witness. Under the above said circumstances the evidence of PW.3 is not trust-worthy or credible for acceptance.
37. It is not the case of the prosecution that the prosecution has relied upon the evidence of the eyewitnesses but the prosecution also relied upon certain other circumstances to connect the accused persons to the crime. The strong circumstances are, -
(1) Recovery of certain incriminating articles at the instance of Accused Nos. 1 & 2 and also their connection with the crime.
(2) The conspiracy and conduct of Accused Nos. 1 & 2 just prior to the incident.
38. It is the case of the prosecution that as per Ex.P3, they have recovered from Accused No.1 MOs. 4 to 8 which are axe, sickle, pant, chit and a shirt. Under Ex.P4 they have recovered MOs. 9 to 12 at the instance of Accused No.2 which are sari, jumper, chappal, and 51 chilli powder respectively. The prosecution has relied upon the evidence of PW.4 and as well as the Investigating Officer (PW.22) to establish this aspect. To connect the above said articles to the crime the prosecution also relied upon Ex.P6 under which MOs. 1 to 3, which are bloodstained pillow, Jamkana and Rug were recovered. PW.5 is a panchwitness. The prosecution was also relied Ex.P11 another mahazar under which MOs. 13 to 15 recovered which are the clothes, waist thread the wrist watch of the deceased. Of course there is no much dispute in the course of cross-examination of PW.5-Bhimaraya and PW.10 Ramesh with reference to the recovery of bloodstained articles in the house of the deceased under Ex.P6 and bloodstained clothes and other articles under Ex.P11, which are stated to be belonged to the deceased. But the main contest is with regard to recovery of incriminating articles at the instance of Accused Nos.1 & 2.
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39. PW.4 in fact has supported the case of the prosecution. He has deposed before the Court that on 02.08.2006 his presence was secured by the Investigating Officer to the I.B. at Kannamadi village and PW.10 was the co-panchwitness. It is stated that Accused Nos. 1 & 2 were in the custody of Police. Accused No.1 took the police to his garden land and went inside the room in the said garden and produced a plastic bag contained one ash colour pant, white shirt and chappals. He also took the police to a bush nearby the side of Nala situated near his garden land and took out one axe and sickle from the said bush and produced the same before the Investigating Officer and all those articles were seized under Ex.P3. He identified those articles as MOs. 4 to 8. He also deposed that Accused No.2-Laxmi took the Police to a heap of gross situated on the bund of her garden land and took out a sari, jumper and chappal from the said heap and the Police have seized the said articles as per MOs. 9 to 12 under 53 Ex.P4. PW.22 - Investigating Officer has also reiterated the said factum.
40. During the course of cross-examination this PW.4 has toppled the case of the prosecution creating doubt with regard to his presence at the time of drawing-up of mahazar and recovery of above said incriminating articles at the instance of Accused Nos. 1 & 2. It is admitted that he is the close friend of PW.1- Appugouda. It is stated that, on the day of incident he was out of station and he returned to the village on next day i.e, 02.08.2006, on which day, the articles were recovered. He categorically stated in the cross- examination that, on that day at 2.00 p.m. his presence was secured by the Investigating Officer to the I.B. It is suggested to this witness that he was deposing falsehood and he was not present at the time of alleged drawing-up of Exs.P3 and P4. Sofar as the elucidation of this factum that he was not present on the previous day he came to the village at 11.00 am on 02.08.2006 and 54 his presence was secured at 2.00 pm. at IB is concerned, there is no cross-examination by the prosecution. In this background the evidence PW.22 and contents of Ex.P3 and P4 play a dominant role. PW.22 in his evidence has stated that he has recovered the articles as per Exs.P3 & P4 from Accused No.1 & 2 and drew-up mahazars at spot as per Ex.P3 and P4. If Ex.P3 is seen in its proper perspective, this mahazar was started at 10.30 a.m. and concluded at 12.00 in the noon. Ex.P4 was started at 12.15 p.m. and concluded at 1.00 p.m. That clearly goes to establish that when the mahazar was started at 10.30 a.m., PW.4 was not at all in the village, as, as per his admission he came to the village at 11.00 am. When both the mahazars were concluded he was not at the spot because he admitted that his presence was secured at 2.00 pm. Therefore, it falsifies the recovery of these articles in the presence of this witness from Accused Nos.1 & 2.
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41. Apart from the above evidence of PW.4 the evidence of PW.3 also in fact play a dominant role to falsify the recovery of the articles at the instance of Accused Nos. 1 & 2. Even at the cost of repetition we may say that PW.3 in the course of cross-examination has admitted that on the day of the incident the Police have visited their house at 7.00 a.m., at that time, Accused No.2 was very much present in their house and the police enquired PW.3, but the police have not recorded his statement. He further admitted that after the incident when the police came, PW.1-Appugouda came to the spot and Accused Nos. 1 & 2 were also very much present in the house of the deceased. It is not the case of PW.3 that Accused Nos. 1 & 2 went away from the spot, changed their dresses and came back. Therefore, according to PW.3, when police have visited their house at 7.00 am. and Accused Nos. 1 & 2 were present, the Investigating Officer would have taken the custody of Accused No.1 & 2 if all at PW.3 was an eyewitnesses to the incident and if he could have 56 disclosed that Accused Nos. 1 & 2 are the culprits and would have recovered all the incriminating articles at the instance of Accused Nos. 1 & 2. This particular aspect also gets support from Ex.D1. PW.2 has admitted in his evidence that he recorded the statement of PW.3 on 2.8.2006 and PW.3 has stated before him as per Ex.D1; Under Ex.D1, PW.3 gave a statement on 01.08.2006 itself and that the chopper and sickle were shown to this witness and he has stated that those were used by Accused Nos. 1 & 2 for the purpose of assaulting the deceased. This particular admission of PW.2 and proven statement of PW.3 under Ex.D1 totally uproot the case of the prosecution sofar as recovery of incriminating articles at the instance of Accused Nos. 1 & 2, because, according to Ex,D1 these articles (MOs. 4 & 5) were with the Police, which were shown to PW.3. How could it be possible when it is the case of the prosecution that those articles were recovered at the instance of Accused Nos.1 & 2 on the next day i.e.2.8.2006. This shows that Investigating Officer must 57 have joined hands with PW.1 to concoct the case of the prosecution. In fact this has been taken serious note of by the trial Court and the Trial Court has casted serious aspersions on the Investigating Officer and stated that the officer has committed blunder, but the Trial Court in spite of that accepts Exs.P3 and P4 and made use of those documents for the purpose of convicting the accused. In our considered opinion, this contradiction elicited and proved as per Ex.D1 is not a mere or flimsy contradiction, but it is a major contradiction which goes to the root of Exs.P3 and P4 and the recording of panchanamas by PW.22. Therefore, we do not agree with the observation of the learned Sessions Judge in accepting these two documents.
42. Looking to the above said circumstances, in view of the evidence of PW.4 that he was not present at the time of Exs. P3 and P4 and the contradiction elicited in Ex.D1 totally makes it clear that the said mahazars are not credit-worthy and trust-worthy for acceptance 58 and they have to be discarded. If Exs.P3 and P4 vanishes from consideration, the connection to these material articles with the commission of the offence also to be discarded.
43. Though the other articles that is MOs. 1 to 3 recovered under Ex.P6 and MOs. 13 to 16 recovered under Ex.P11, connected with the deadbody of the deceased were sent to FSL along with the incriminating articles seized from the accused persons, the positive result given by FSL under Ex.P25 is of no significance in this case. Of course, Ex.P25 show that the clothes of accused No.2 and the clothes of the deceased contain 'A' group blood. Merely because these articles contain 'A' group blood is not sufficient to hold that they are sufficient to bring out the guilt of the accused in the absence of proof that those articles were recovered at the instance of Accused Nos. 1 & 2 under Exx.P3 and P4. Though this circumstance is posed as a strong circumstance, but the same is shrouded with 59 mysterious circumstances noted above. Hence, that also cannot be made a basis to draw a conclusive inference that Accused Nos. 1 & 2 are the culprits.
44. The second circumstance projected by the prosecution is the conduct of Accused Nos. 1 & 2 prior to and after the incident. It is the case of the prosecution that Accused No.2 wrote a letter to Accused No.1 hatching a conspiracy. This Ex.P26 alleged have been seized from the custody of Accused No.1 under Ex.P3. It is the further case of prosecution that the Police have also taken specimen handwriting as per Exs.R1 to R6 from Accused No.2 in presence of the panch-witnesses, which are collectively marked as Ex.P27 and they were sent to the expert and the expert (PW.23) has given an opinion as per Ex.P28 giving reasons as per Ex.P29, that the writing in Ex.P26 and Ex.P27 tallies with each other. Therefore, on this ground the prosecution wants to establish the 60 conspiracy and the commission of the offence by Accused Nos. 1 & 2.
45. The prosecution has strongly relied upon the evidence of PW.22 and PW.23 in this regard. The learned counsel for the accused has strenuously contended that this circumstance has not been proved, as the very alleged taking of the specimen writings of Accused No.2 is not proved before the Court by examining any witnesses. Accused No.2 has denied the said disputed documents. Even assuming that such writings are there, Ex.P26 has not been proved to be recovered under Ex.P3 from Accused No.1. Therefore, this circumstance is not sufficient to hold that the Accused Nos.1 & 2 have conspired with each other and planned to commit the murder of the deceased and accordingly executed their plan. In this background it is just and necessary to appreciate the evidence on record to ascertain whether this circumstance is proved to the 61 satisfaction of the Court and whether this circumstance is sufficient to prove the guilt of the accused.
46. As we have already held that Ex.P23 has not been proved because under which the Police alleged to have seized MOs.4 & 5 (chopper and sickle ) which were with the police even prior to such seizure, as per the evidence of PW.3 under Ex.D1. Therefore, Ex.P26 cannot be relied upon as a document seized from the custody of Accused No.1. The collection of specimen handwriting as per Ex.P27 (R1 to R6) and also another letter which is marked at S1 and S2 were tallied with the questioned document (Ex.P26) as per the evidence of PW.23. There is no need for us to go in detail with regard to the evidence of PW.23. PW.22 has stated that he has collected Exs. R1 to R6 and also S1 and S2 at the instance of Accused No.2 under a mahazar which is marked at Ex.P23. One Manoj Ramsing Hiram and Annappa son of Gurulingappa are the witnesses to this mahazar. Manoj is cited as a witness as CW.4, but the 62 said Annappa has not been cited as a witness to the prosecution in the charge sheet The said manoj has not been examined but given up by the prosecution for the reasons best known to them. Therefore, the prosecution has not shown to the Court why the said witness was not examined and the mahazar was marked through the Investigating Officer and it is not established before the Court that the said specimen writings were taken in presence of the panch-witnesses. Apart from that the evidence of PW.23 in the course of cross-examination, there is a clear indication that Ex.P26 and 27 though have some discrepancies but they are written by the same person. The important aspects elicited during the course of cross-examination at Para-5 is that the pen used writing in Ex.P26 is the same as used in Ex.P27 that is to say the writings in Ex.P26 and writings in the specimen writings of Accused No.1 in Ex.R1 to R6 are written by the same pen. PW.22 in his evidence has not explained as to how he got the same pen to take the specimen writings of the Accused No.2 in the police 63 station. PW.22 in the examination-in-chief itself has stated that he took the model handwriting of Accused No.2 on white papers in the presence of panchas on six papers under Ex.P23 panchanama and Accused No.2 produced a letter dated 10.11.1994 written by her to her husband but how he seized this document, is not explained. In the course of cross-examination, it is suggested by denying the said production of the documents by Accused No.2 to the effect that those documents were all concocted documents for the purpose of this case. When it is specifically denied it is incumbent upon the prosecution to prove the case beyond reasonable doubt that Ex.P27 was seized on 2.8.2006. As on 02.08.2006 accused was in the custody of the Police. There is no explanation in the mahazar or in the evidence of PW.22 where the pen which was used for writing Ex.P26 and Ex.P27 was kept and who produced the said pen and from where the Police got the particular pen to get the same type of writings as in Ex.P26 on Ex.P27. This has not been 64 clarified or explained by the Investigating Officer. Therefore, even without going to the contents of expert's evidence the story of the prosecution falls to the ground that they have taken the specimen writings and also a letter S1 and S2 from Accused No.2.
47. It is further improbabalises the case of the prosecution that Ex.P26 was recovered at the instance of Accused No.1. It is just and necessary to extract the contents of Ex.P26.
C±ÉÆÃPÀ CªÀjUÉ 31.07.2006 gÁwæ 11-00 UÀAmÉ £ÀªÀÄä ªÀÄ£ÉUÉ §gÀ¨ÃÉ PÀÄ £ÁªÀÅ C°è EgÀÄvÉÃÛ £É ¤ÃªÀÅ C°èAiÉÄà §gÀ¨ÃÉ PÀÄ. £ÁªÀÅ EgÀÄvÉÛÃ£É fêÀ ºÉÆqÉAiÀÄ ¨ÉÃPÀÄ. £ÁªÀÅ E§âgÀÄ PÀÆrAiÀÄÄ Nr ºÉÆÃUÉÆt £À£Àß UÀAqÀ §¸Àªg À Ád gÁwæ ªÀÄPÀ̼À ªÀÄ®VgÀÄvÀÛªÉ ºÉÆqÉzÀÄ R¯Áè¸À ªÀiÁqÉÆÃt mÉdjAiÀÄ°è£À §mÉÖAiÀÄ£ÀÄß J®è PÀqÉ ©¸ÁPÉÆÃt PÀ¼Àî §AzÀvÉÛ ªÀiÁqÉÆÃt. aÃn N¢ ¤Ãj£À°è vÉƼÉAiÀÄ ¨ÉÃPÀÄ.
¦æÃwAiÀÄ J¯ï.©. ©gÁzÁgÀ 65
48. If the said Kannada Vernacular is translated, it gives meaning that on 31.07.2006 Accused No.2 was written a letter to Accused No.1 calling him to his house at 11.00 p.m. she will be in the house and they have to assault and thereafter they have to run away from that place. It is further stated that she would be in the house sleeping along with her children and also it is said in the said letter to scatter the treasury and clothes to show that some thieves have come to the house. She has also suggested after reading the said letter to Accused No.1 to wash the said letter. This letter was alleged to have been written on 31.07.2006.
49. The records, particularly the sketch prepared by PW.11 at Ex.P12 shows that the house of Accused No.1 is situated behind the house of the deceased Basavaraju. It was very nearby and even Accused No.2 can call Accused No.1 from her house itself. Whether Accused No.2 would send that letter to Accused No.1 to create evidence against them. Further added to that 66 when it is specifically stated in the letter that after reading the said letter Accused No.1 has to wash out the said letter. Whether still it can be said that Accused No.1 keep that letter in his pocket even after commission of the offence so as to enable the Police to recover the said chit on 02.08.2006 i.e, on the next of the incident. This conduct of the Police in alleged recovery of the chit is highly doubtful. Therefore, it raises a genuine suspicion that there was no recovery of Ex.P26 at the instance of Accused No.1 perhaps to create evidence both Exs.P26 and P27 (Ex.R1 to R6) must have been taken at the same time in the Police Station. In the absence of proving that Ex.P26 was recovered at the instance of Accused No.1 even the opinion of PW.23 stating that all the hand writing in Exs.P26, P27 and S1 & S2 are that of Accused No.2 is of no avail to the prosecution. Even assuming that they are the signatures, they are the specimen writings of Accused No.2 there was no other material to prove the guilt of the accused that the same plan has been 67 executed by them. Therefore, we are of the considered opinion that this circumstance is also not established by the prosecution beyond reasonable doubt.
50. The prosecution has also produced the evidence of the doctor to establish that the injuries sustained by the deceased could be caused by means of assaulting him with chopper and sickle. Admittedly, the said chopper and sickle (MOs. 4 & 5) were not sent to the doctor for opinion, but they were shown to the doctor before the Court and elicited that those injuries could be caused by such weapons. These MOs.4 & 5 were also sent to FSL and the report of the FSL which is marked at Ex.P25 shows that the stains on the said weapons - MO Nos.4 & 5 were not sufficient for serological examination. During the course of cross- examination of the docor-PW.18, it is elicited that MO.5
- Sickle is in the shape of question mark. If the tip of the sickle is used to assault, it would cause punctured wounds and if curvature portion of the said weapon 68 touches the body, it would cause incised wounds. It is suggested that incised wounds cannot be caused by MO.5-Sickle. It is further admitted that MOs.4 & 5 were not sent for examination. It is also further admitted that the injuries suffered by Basavaraju were chop wounds and incise wounds. Incise wounds and chop wounds can only be caused by heavy sharp-edged weapon. It is admitted MO.5-Sickle is a light weapon. After giving description of the wounds and after looking the weapons the doctor has opined that chap wounds can be caused by choppers and depends upon the force employed and incise wounds can be caused by using little force. Therefore, using of the sickle appears to be remote as per the doctors' evidence.
51. Looking from any angle, the prosecution though produced materials before the Court, they are not sufficient to prove the guilt of the accused to the hilt. The material contradictions and omissions which go to the root of the prosecution case as described by us 69 has not been appreciated by the Trial Court. Perhaps the Trial Court morally convinced itself has bent the evidence to bring home the guilt of the accused which should not have been done by the Trial Court. The courts are meant to administer justice according to law. Hence, we are of the opinion that the Trial Court has committed a serious error in convicting the accused persons for the offences charged. We have no hesitation to reverse the judgment of the Trial Court. Hence, we pass the following order:-
ORDER The appeals are hereby allowed. The judgment of conviction and sentence passed in S.C. No.8/2007 dated 06.10.2009, by the Principal Sessions Judge, Bijapur, convicting the appellant/accused for the offences punishable under Section 302 r/w. 34 of IPC is hereby set aside. The appellants/accused are hereby acquitted of the charges levelled against them and they 70 shall be released forthwith if they are not required in any other case.
Office is hereby directed to communicate this order to the concerned Jail Authorities to release the accused persons forthwith. If any fine amount is deposited, the same is ordered to be refunded to the accused.
Sd/-
JUDGE Sd/-
JUDGE KGR/PL*