Karnataka High Court
Vijay S/O. Jagadish Sheelavant vs The State Of Karnataka on 20 July, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A. No.100290/2021 c/w
CRL.A. Nos.100265, 100266, 100267,
100272 & 100441 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH 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.100290 OF 2021 C/W
CRIMINAL APPEAL NOS.100265, 100266, 100267,
100272 AND 100441 OF 2021
IN CRL. A. NO.100290/2021:
BETWEEN:
MALLIKARJUN @ BUYI MALIKYA BALAPPA BHAJANTRI
AGE 27 YEARS, OCC. TRUCK DRIVER,
R/O SIDDESHWAR NAGAR,
GOKAK.
...APPELLANT
(BY SRI. ANAND R KOLLI &
SRI.M.N.BIKKANNAVAR, ADVS.)
AND:
THE STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENCH DHARWAD - 580011,
THROUGH GOKAK TOWN POLICE STATION.
BELAGAVI.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT DATED 27.07.2021
AND ORDER OF SENTENCE DATED 28.07.2021, INCLUDING THE FINE
IMPOSED AGAINST ACCUSED NO.1/APPELLANT, PASSED BY THE XII
ADDL. DISTRICT AND SESSIONS JUDGE BELAGAVI, SITTING AT GOKAK
IN S.C. NO.228/2018 (IN RESPECT TO APPELLANT/ ACCUSED NO.1)
C/W S.C. NO.392/2019 SENTENCING IMPRISONMENT FOR LIFE UNDER
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SECTION 302 READ WITH SECTION 149 ALONG WITH FINE OF RS.500/-
FURTHER IN DEFAULT SHALL UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF THREE DAYS AND IMPRISONMENT FOR LIFE UNDER
SECTION 120B READ WITH SECTION 302 OF IPC ALONG WITH FINE OF
100/- IF DEFAULTED SHALL UNDERGO SIMPLE IMPRISONMENT FOR A
PERIOD OF ONE DAY AND SENTENCING TO UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF 3 MONTHS FOR OFFENCE UNDER
SECTION 148 OF IPC.
IN CRL.A. NO.100265/2021:
BETWEEN
VIJAY S/O. JAGADISH SHEELAVANT
AGE: 24 YEARS, OCC. COOLIE,
R/O. AMBIGER GALLI, GOKAK
TQ. GOKAK, DIST.BELAGAVI
AT PRESENT SERVING SENTENCE AT
HINDALGA PRISON BELAGAVI
...APPELLANT
(BY SRI. SHIVRAJ S. BALLOLI, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH GOKAK TOWN POLICE STATION,
TQ. GOKAK, DIST.BELAGAVI
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO ALLOW THE TOP NOTED APPEAL AND TO SET
ASIDE THE JUDGMENT DATED 27.07.2021 PASSED BY THE XII
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT
GOKAK IN S.C. NO.228/2018 THEREBY CONVICTING THE
APPELLANT/ACCUSED NO.6 FOR THE ALLEGED COMMISSION OF
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 302 READ
WITH SECTION 149 OF THE IPC, 1860 AND OFFENCE PUNISHABLE
UNDER SECTION 120B READ WITH SECTION 302 OF THE IPC, 1860 AND
THE ORDER AND SENTENCE DATED 28.07.2021 THEREBY SENTENCING
THE APPELLANT TO UNDERGO IMPRISONMENT FOR LIFE FOR OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH SECTION 149 OF THE
IPC, 1860 ALONG WITH A FINE OF RS.500/- AND IN DEFAULT OF
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CRL.A. Nos.100265, 100266, 100267,
100272 & 100441 of 2021
PAYMENT OF FINE SIMPLE IMPRISONMENT OF 3 DAYS, SENTENCING
THE APPELLANT/ACCUSED NO.6 TO UNDERGO IMPRISONMENT FOR LIFE
FOR OFFENCE PUNISHABLE UNDER SECTION 120B READ WITH SECTION
302 OF THE IPC, 1860 ALONG WITH A FINE OF RS.100/- AND IN
DEFAULT OF PAYMENT OF FINE SIMPLE IMPRISONMENT OF 1 DAY,
SENTENCING THE APPELLANT/ACCUSED NO.6 TO UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF THREE MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 148 OF THE IPC.
IN CRL.A. NO.100266/2021:
BETWEEN
PARASU @ KETA PARASU @ PRAKASH
S/O.HANAMANTH KHANAPPANNAVAR
AGE: 21 YEARS, OCC. COOLIE
R/O. SANGAM NAGAR GOKAK
TQ. GOKAK, DIST. BELAGAVI
AT PRESENT SERVING SENTENCE AT
HINDALGA PRISON, BELAGAVI
...APPELLANT
(BY SRI.SHARAD M. PATIL, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH GOKAK TOWN POLICE STATION
TQ. GOKAK, DIST. BELAGAVI
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT DATED 27.07.2021
AND ORDER OF SENTENCE DATED 28.07.2021 PASSED BY THE XII
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT
GOKAK IN S.C. NO.228/2018 THEREBY CONVICTING THE
APPELLANT/ACCUSED NO.4 FOR THE ALLEGED COMMISSION OF
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 302 READ
WITH SECTION 149 OF THE IPC, AND OFFENCE PUNISHABLE UNDER
SECTION 120B READ WITH SECTION 302 OF THE IPC, AND THEREBY
SENTENCING THE APPELLANT TO UNDERGO IMPRISONMENT FOR LIFE
FOR OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION
149 OF THE IPC, 1860 ALONG WITH A FINE OF RS.500/- AND IN
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DEFAULT OF PAYMENT OF FINE SIMPLE IMPRISONMENT OF 3 DAYS.
FURTHER SENTENCING THE APPELLANT TO UNDERGO IMPRISONMENT
FOR LIFE FOR OFFENCE PUNISHABLE UNDER SECTION 120B READ WITH
SECTION 302 OF THE IPC, 1860 ALONG WITH A FINE OF RS.100/- AND
IN DEFAULT OF PAYMENT OF FINE SIMPLE IMPRISONMENT OF 1 DAY.
THE TRIAL COURT FURTHER SENTENCED THE APPELLANT/ACCUSED
NO.4 TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF THREE
MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 148 OF THE
IPC, 1860 BY ALLOWING THE TOP NOTED APPEAL.
IN CRL.A. NO.100267/2021:
BETWEEN
KUMAR @ KUMMYA TIMMI SANADI,
AGE: 24 YEARS, OCC: COOLIE,
R/O: AMBIGER GALLI, TQ. GOKAK,
DIST: BELAGAVI
AT PRESENT SERVING SENTENCE AT
HINDALGA PRISON, BELAGAVI
...APPELLANT
(BY SRI.R.G.PATIL, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH GOKAK TOWN POLICE STATION
TQ. GOKAK, DIST. BELAGAVI
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT DATED 27.07.2021
PASSED BY THE XII ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BELAGAVI SITTING AT GOKAK IN S.C. NO.228/2018 THEREBY
CONVICTING THE APPELLANT/ACCUSED NO.3 FOR THE ALLEGED
COMMISSION OF OFFENCES PUNISHABLE UNDER SECTIONS 143, 147,
148, 302 READ WITH SECTION 149 OF THE IPC, 1860 AND OFFENCE
PUNISHABLE UNDER SECTION 120(B) READ WITH SECTION 302 OF THE
IPC, 1860 AND THEREBY SENTENCING DATED 28.07.2021 THE
APPELLANT TO UNDERGO IMPRISONMENT FOR LIFE FOR OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH SECTION 149 OF THE
IPC, 1860 ALONG WITH A FINE OF RS.500/- AND IN DEFAULT OF
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PAYMENT OF FINE SIMPLE IMPRISONMENT OF 3 DAYS. FURTHER
SENTENCING THE APPELLANT TO UNDERGO IMPRISONMENT FOR LIFE
FOR OFFENCE PUNISHABLE UNDER SECTION 120B READ WITH SECTION
302 OF THE IPC, 1860 ALONG WITH A FINE OF RS.100/- AND IN
DEFAULT OF PAYMENT OF FINE SIMPLE IMPRISONMENT OF 1 DAY. THE
TRIAL COURT FURTHER SENTENCED THE APPELLANT/ACCUSED NO.3
TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF THREE
MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 148 OF THE
IPC, 1860 BY ALLOWING THE TOP NOTED APPEAL.
IN CRL.A. NO.100272/2021:
BETWEEN
PARASHURAM S/O RAMASIDDA SHIVANAPPAGOL
AGE 21 YEARS, OCC.AUTO DRIVER,
R/O SANGAM NAGAR, GOKAK-591307
DIST. BELAGAVI.
...APPELLANT
(BY SRI.K.S.PATIL, ADV.)
AND
THE STATE OF KARNATAKA
RPTD. BY C.P.I. GOKAK TOWN POLICE STATION,
DIST. BELAGAVI, REP. BY STATE PUBLIC PROSECUTOR,
OFFICE OF ADVOCATE GENERAL
HIGH COURT COMPLEX, DHARWAD - 580011.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO CALL FOR RECORDS IN S.C. NO.228/2018 C/W
S.C. NO.392/2019 AND SET ASIDE THE JUDGMENT DATED 27.07.2021
AND SENTENCE DATED 28.07.2021 IN S.C. NO.228/2018 C/W S.C.
NO.392/2019 PASSED BY THE XII ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELAGAVI, SITTING AT GOKAK FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 148, 302 READ WITH
SECTION 149 OF IPC AND UNDER SECTION 120(B) READ WITH
SECTION 302 OF IPC AND ACQUIT THE APPELLANT/ACCUSED NO.7 BY
ALLOWING THIS APPEAL.
IN CRL.A. NO.100441/2021:
BETWEEN
SHRIDHAR S/O. BALAPPA KABBUR
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AGE. 30 YEARS, OCC. COOLIE,
R/O. MAHALINGESHWAR NAGAR,
GOKAK, TQ. GOKAK, DIST. BELAGAVI
AT PRESENT SERVING SENTENCE
AT HINDALGA PRISON, BELAGAVI
...APPELLANT
(BY SRI.SANTOSH B. MALAGOUDAR, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH GOKAK
TOWN POLICE STATION
TQ. GOKAK, DIST. BELAGAVI
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT DATED 27.07.2021
AND SENTENCE DATED 28.07.2021 PASSED BY THE XII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT GOKAK IN S.C.
NO.228/2018 THEREBY CONVICTING THE APPELLANT/ACCUSED NO.5
FOR THE ALLEGED COMMISSION OF OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 120B AND 302 READ WITH SECTION 149 OF
THE IPC, 1860 AND OFFENCE PUNISHABLE UNDER SECTION 120B READ
WITH SECTION 302 OF THE IPC, 1860 AND THEREBY SENTENCING THE
APPELLANT TO UNDERGO IMPRISONMENT FOR LIFE FOR OFFENCE
PUNISHABLE UNDER SECTION 302 READ WITH SECTION 149 OF THE
IPC, 1860 ALONG WITH A FINE OF RS.500/- AND IN DEFAULT OF
PAYMENT OF FINE SIMPLE IMPRISONMENT OF 3 DAYS. FURTHER
SENTENCING THE APPELLANT TO UNDERGO IMPRISONMENT FOR LIFE
FOR OFFENCE PUNISHABLE UNDER SECTION 120(B) READ WITH
SECTION 302 OF THE IPC 1860, ALONG WITH A FINE OF RS.100/- AND
IN DEFAULT OF PAYMENT OF FINE SIMPLE IMPRISONMENT OF 1 DAY.
THE TRIAL COURT FURTHER SENTENCED THE APPELLANT/ACCUSED
NO.5 TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF THREE
MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 148 OF THE
IPC, 1860 BY ALLOWING THE TOP NOTED APPEAL.
THESE CRIMINAL APPEALS COMING ON FOR HEARING ON
13.07.2022 AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY M.G.S.KAMAL J.,
DELIVERED THE FOLLOWING:
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COMMON JUDGMENT
Criminal Appeal No.100290/2021 is filed by accused
No.1. Criminal Appeal No.100265/2021 is filed by the accused
No.6. Criminal Appeal No.100266/2021 is filed by the accused
No.4. Criminal Appeal No.100267/2021 is filed by the accused
No.3. Criminal Appeal No.100272/2021 is filed by the accused
No.7. Criminal Appeal No.100441/2021 is filed by the accused
No.5 against the judgment and order dated 27.07.2021 passed
in S.C. No.228/2018 connected with S.C. No.392/2019 on the
file of XII Additional District and Sessions Judge, Belagavi,
sitting at Gokak (hereinafter referred to as 'trial Court' for
short), by which the trial Court found accused Nos.1 to 7 guilty
of committing offences punishable under Sections 143, 147,
148, 302 read with Section 149 of Indian Penal Code (for short,
'IPC') and under Sections 120B read with Section 302 of IPC
and sentenced them as under:
a. To undergo imprisonment for life for the
offence punishable under Section 302 read with Section
149 of IPC and fine of Rs.500/- each. In default to
undergo simple imprisonment for a period of three days.
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b. To undergo imprisonment for life for the
offence punishable under Section 120B read with Section
302 of IPC and fine of Rs.100/- each. In default to
undergo simple imprisonment for a period of one day.
c. To undergo simple imprisonment for a period
of three months for the offence punishable under Section
324 of IPC.
d. All the sentences directed to run concurrently.
2. The case of the prosecution is that;
a. On 27.07.2017 there was a quarrel between
deceased-Rohit Raju Patil, PW1 and PW2 on one part and
accused No.1 and the others on the other part, on an issue with
regard to playing of swing (jokali) during Siddeshwar Temple
festival, which led to accused No.1 filing a complaint against
deceased, PW1 and PW2. Pursuant to which, PW1 and PW2
were arrested and were later released on bail, while deceased
had obtained anticipatory bail. That the said incident was the
motive for commission of the offence in the instant case
inasmuch as the accused were nursing ill-will against the
deceased, PW1 and PW2 for they having obtained bail and that
the accused persons were following the movements of
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deceased, PW1 and PW2 and were staring at them whenever
they saw them.
b. That on 24.09.2017, at about 9.30 p.m., deceased,
PW1 and PW2 had been to Archarya Galli to watch dandiya
dance program. Due to rain, the said program was cancelled.
Deceased, PW1 and PW2 thereafter went to a pan shop
belonging to one Ramesh-PW5 situated at Apsara Koot in front
of Deviprasad Hotel to have pan/gutka at about 10:15 p.m.
Accused Nos.3, 5, 8 and 9 were near the said pan shop. Just
then, a maroon colour car came from Sangolli Rayanna circle in
a high speed and stopped in front of them. Accused Nos.3, 5, 8
and 9 who were nearby the said pan shop, threw chilly powder
into the eyes of the deceased. By then, accused Nos.1, 2, 4, 6
and 7 armed with jambe (dagger) and talwar (sword) alighted
from the car and pounced on the deceased hacking him to
death on the spot. When PW1 tried to rescue him, accused
No.2 with an intention to kill PW1 assaulted him with talwar
causing injury on to his palm. Accused Nos.3, 5, CCL8 and
CCL9 attempted to murder of PW2 by throttling his neck and
kicking him. Due to the hue and cry, PW3, PW4, CW11, CW12,
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CW13, CW16 and other persons gathered at the spot. Five of
the accused went into the car while others fled from the scene
with arms they had brought. Deceased was shifted to hospital
where he was declared dead. PW1 and PW2 were treated in the
hospital. PW1 lodged first information statement as per Ex.P1
which was registered at 01:00 a.m. on 25.07.2017.
3. After completion of the investigation, a charge
sheet was filed against the accused for the offences punishable
under Sections 143, 147, 148, 341, 323, 120B, 307 and 302
read with Section 149 of IPC. Absconding charge sheet was
filed against accused No.5. Accused Nos.8 and 9 were
juveniles. Therefore, case against them was split. Since the
accused persons pleaded not guilty, trial was conducted.
Initially, only chief-examination of PW1 to PW8 was recorded.
On securing the absconding accused No.5, a case against him
was registered in S.C.No.392/2019 which was clubbed with
S.C.No.228/2018 and both the cases were taken up together
rescheduling the trial. PW1 to PW8 were examined afresh.
Prosecution examined 23 witnesses as PW1 to PW23 and relied
upon 66 documents as Exs.P1 to P66 and 25 material objects
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marked as MO1 to MO25. The statement under Section 313 of
Cr.P.C. was recorded wherein the accused denied all
incriminating material produced against them but did not lead
any defence evidence. The trial Court on appreciation of the
evidence passed the impugned judgment and order convicting
and sentencing the accused as above. Aggrieved by the same,
present appeals by the accused persons.
Submission of counsel for the appellants:
4. Sri.K.S.Patil, learned counsel appearing for the
appellant/accused No.7 in Criminal Appeal No.100272/2021
submitted that the compliant was filed by PW1-Akshaya
Ghorpade. According to the complaint, when PW1, deceased-
Rohit Raju Patil and PW2-Rahul Entagoudar were near the pan
shop of PW5, a black car came and stopped in front of the
shop, from which, 1)Mallikarjun Bhajantri (A1), 2)Arjun
Chikkodi (A2), 3)Kumar Sanadi (A3), 4)Prakash
Khannappanavar (A4), 5)Shridhar Kabbur (A5) came out
holding jambe (dagger) and talwar (sword) and assaulted the
deceased, PW1 and PW2. Eight to ten other persons were the
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bystanders. In a statement recorded on 11.10.2017, PW1 and
PW2 introduced a new case in which only accused Nos.1, 2 and
4 were shown as the prime accused, accused Nos.3 and 5 were
made as bystanders. In their place, Vijay Sheelavant (accused
No.6) and Parashuram (accused No.7) were shown as the
persons alighting from the car alongwith accused Nos.1, 2 and
4 holding deadly weapons. Though names of eight to ten others
referred to in the complaint were not mentioned, later names of
accused Nos.8 and 9 were added of which two were juvenile.
Even while filing the charge sheet, the initial story was
changed. The deposition of PW1, who was the injured eye
witness is full of inconsistencies and contradictions in which he
had conveniently answered stating that he was feeling giddy
when mentioning his occupation as coolie while the other
details had been given perfectly. Though he claimed his clothes
were stained with blood, he did not give the same to the Police.
He had suffered simple injury but in the complaint, it is
depicted as if he had sustained grievous injury. PW1 has
criminal antecedents and his testimony was not trustworthy.
That PW2 another injured eye witness has completely gone
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against his version wherein he has admitted in the cross-
examination that he ran away from the spot when the car
arrived and did not know as to which act was committed by
whom. PW3 and PW4 chance witnesses claim to have come out
for a walk after their dinner. Their presence is unreliable and
improbable as no one would walk in the market area. The said
persons had criminal antecedents. PW5-pan shop owner and
PW6-owner of the restaurant have completely turned hostile,
while PW7 and PW8 witnesses to the recovery of clothes of the
accused and weapons have refused to identify the accused.
Thus he submits in the light of the aforesaid inconsistencies
and leading contradictions in the star witnesses relied upon by
the prosecution, accused cannot be found guilty of the offences
alleged against them. Hence sought for allowing of the appeal.
5. Sri.Shivaraj S. Balloli, learned counsel appearing for
the appellant/accused No.6 in Criminal Appeal No.100265/2021
emphasizing mainly on the non-reliability of the evidence of
PW1 and PW2 submitted that in the compliant at Ex.P1 there is
no mention of accused Nos.6 and 7, it was only in the further
statement their names were included. That though PW1 claims
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to have sustained severe injury to his forearm while attempting
to save the deceased, the wound certificate at Ex.P30 reveal a
minor injury on the left hand web space due to sharp object
improbabilizing the claim of he sustaining grievous injury. PW2
who was allegedly throttled by the other accused has not
sustained any external injury. PW19-Dr.Uday Angadi, in his
cross-examination has admitted that there is no mention of any
MLC in Exs.P30 and P31. Amit Rajakure who accompanied
PW1-Akshaya has not been cited as a witness by the
prosecution. Ex.P32-a requisition issued by the Police to the
Medical Officer is dated 25.07.2017 while the date of offence is
24.09.2017. The said witness has stated that PW2-Rahul had
come on his own on 24.09.2017. PW2-Rahul who though
turned hostile has stated in his deposition that he went with
Rohit and Akshaya in the ambulance to Gokak Government
Hospital and in the cross-examination has stated that he ran
away from the spot immediately on seeing the car. Thus,
learned counsel submits that when the very presence of PW1
and PW2 is seriously questionable, the conviction of the
accused based on their version would cause miscarriage of
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justice. He further submits that PW20-Dr.Jagadish K.T., who
conducted the postmortem of the dead body of the deceased
has deposed that he did not find any chilly powder on any part
of the body of the deceased. Hence, sought for allowing of the
appeal.
6. Sri.R.G.Patil, learned counsel appearing for
appellant/accused No.3 in Criminal Appeal No.100267/2021
submitted that reading of the evidence of the prosecution
witnesses would suggest that the entire incident is created and
fabricated. The presence of PW1 and PW2 at the scene of the
offence is completely ruled out in the light of the evidence of
PW19-Dr.Uday Angadi, who stated that PW1 had not suffered
any grievous injury. That the other chance witnesses PW3 and
PW4 are the tutored witnesses who are also having criminal
antecedents cannot be relied upon. That the entire theory of
chilly powder being thrown into the eyes of the deceased stood
ruled out by the deposition of Doctor who conducted
postmortem report who has categorically stated that no chilly
powder was found on any part of the deceased. Hence sought
for allowing the appeal.
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7. Sri.Santosh B. Malagoudar, learned counsel
appearing for the appellant/accused No.5 in Criminal Appeal
No.100441/2021 submitted that the accused No.5 was arrested
on 23.11.2020 even though the offence alleged to have taken
place on 24.09.2017. That as per the evidence of PW1,
originally accused Nos.1, 2, 4 and 6 had alighted from the car
and assaulted the deceased. Then, accused No.9 threw chilly
powder on the deceased and accused Nos.4, 5 and 8 assaulted
PW2 and accused No.3 throttled PW2. That PW2 who turned
hostile to the case of the prosecution and has admitted in his
deposition that accused No.5 was not there at the scene of
offence. The chance witnesses PW3 and PW4 could not have
been present near the scene. The said witnesses though
claimed to have come out for a walk on that day, it was raining.
Therefore, their claim of being there is unreliable. Learned
counsel relied upon the following judgments:
a. Kapildeo Mandal and others vs. State of Bihar
reported in (2008) 16 SCC 99 - on the point of
his submission regarding suspicion of PW1
sustaining injury in the attack and the Court to
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draw adverse inference on the prosecution version
as not trustworthy.
b. Sunil Kundur and another vs. State of
Jarkhand reported in (2013) 4 SCC 422 - on the
point of PW4, PW5 and PW6 who are the interested
witnesses as they had deep rooted enmity in the
matter and regarding possibility of false implication
of the accused in the matter.
c. Raja @ Shashikumar and another vs. State
through Inspector of Police reported (2013) 12
SCC 674 - on the point of separating chaff from
the grain, as the involvement of accused No.5 has
not been specifically established.
Hence sought for allowing the appeal.
8. Sri.Anand R. Kolli, learned counsel appearing for
the appellant/accused No.1 in Criminal Appeal No.100290/2021
and Sri.Sharad M. Patil, learned counsel appearing for the
appellant/accused No.4 in Criminal Appeal No.100266/2021
reiterated the grounds urged in their appeal memorandum and
submitted that since the prosecution has failed to establish the
presence of PW1, PW2 and PW5 who are the star witnesses, the
entire case falls flat. Therefore, the prosecution has failed to
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prove their case beyond reasonable doubt, benefit of which
should enure to the accused. They adopted the submission of
other learned counsel appearing for the matter for the
appellants. Hence, sought for allowing of the appeal.
Submission on behalf of the State:
9. Sri.V.M.Banakar, learned Additional State Public
Prosecutor submitted that the prosecution has successfully
established the motive for commission of the offence being the
earlier compliant filed by the accused against the deceased,
PW1 and PW2, in which PW1 and PW2 were arrested and
released on bail while deceased was released on anticipatory
bail. In furtherance to this common object, accused had formed
an unlawful assembly and committed the murder of the
deceased and caused injury to PW1 and PW2. That there is
consistent statement by the witnesses PW1 to PW4 regarding
the overt act by the accused Nos.1, 2, 4, 6 and 7 who have
been identified by the said witnesses. Referring to the
arguments regarding PW2 turning hostile, he pointed out that
the chief-examination of the said witness was recorded on
25.09.2019 and on 02.03.2020 and was cross-examined on
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13.03.2020, at which point of time, PW2 had withstood the
cross-examination and supported the case of prosecution
completely and nothing was elicited to discredit his evidence.
However, the said witness was recalled after lapse of 11
months i.e., on 11.02.2021 at the instance of accused No.5 and
it is at that time, he turned hostile. Evidence of such witness is
admissible under Section 154(2) of Cr.P.C. PW3 and PW4 are
the natural witnesses and mere non-mentioning of their names
in the FIR cannot discredit their evidence. The suggestions
made in the line of the cross-examination to the said witness
prove that there was movement of public. Therefore, the
drizzling did not impede the movement of public establishing
the version of the said witnesses going out for walk being
natural. The recovery and discovery of the incriminating
material objects at the instance of the voluntary statement of
the accused have been partly supported by PW7 and PW8-the
panch witnesses. He relied upon judgment of the Apex Court in
the case of State (N.C.T. Of Delhi) vs Navjot Sandhu@
Afsan Guru reported in (2005) 11 SCC 600. That the
accused while recording the statement under Section 313 of
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Cr.P.C. have admitted about recovery of blood stained clothes
at MO14 to MO25. PW5-the pan shop owner has deposed
regarding the presence of four to five persons in front of his
shop and also the presence of deceased, PW1 and PW2 on the
relevant date and time. The said evidence has been
corroborated with the evidence of PW1 to PW4 clearly
establishing occurrence of the incident at the scene of offence.
The conspiracy amongst the accused is established in they
coming in a car with lethal weapons, attacking the deceased
and committing the murder and thereafter moving together
while they were arrested near Hattaragi toll on the National
Highway No.4. Medical evidence is established by the evidence
of PW19-Dr.Uday Angadi who treated PW1 and PW2 had issued
wound certificates at Exs.P30 and P31. PW20 who conducted
the autopsy of the deceased and issued the postmortem report
at Ex.P36 has spoken about 15 injuries sustained by the
deceased and possible infliction of the same with the recovered
material objects. FSL report has found human blood of 'A' blood
group on the articles 1 to 11 and 14 to 24 sent for examination.
PW9, PW10, PW11, PW13 and PW14 have supported the case
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of the prosecution to prove the case beyond reasonable doubt.
Hence seeks for dismissal of the appeals.
10. Heard the learned counsel for the parties. Perused
the records. The point that arises for our consideration is:
"Whether on the facts and in the
circumstances of the case, the trial Court is
justified in passing the judgment and order
convicting the accused for the offences punishable
under Sections 143, 147, 148, 302 read with
Section 149 of IPC and offence punishable under
Section 120B read with Section 302 of IPC and
sentencing them to undergo imprisonment for life
for the offence punishable under Section 302 read
with Section 149 and 120B of IPC and simple
imprisonment of three months each for the
offence punishable under Sections 148 and
Section 324 of IPC?"
11. The case of the prosecution is based on the
circumstance of motive, evidence of eye witnesses, natural
witnesses, medical evidence and recovery of the incriminating
material objects at the instance of the accused persons. The
main line of defence of the appellants/accused is non-reliability
and non-trustworthiness of the evidence of PW1 to PW4 and
the inconsistency and improvement in the case of the
prosecution from the stage of registering of the case to filing of
the charge sheet.
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Analysis
Cause of death:
12. PW20-Dr.Jagadish K.T., in his deposition has
spoken about he conducting the autopsy of the deceased Rohit
Raju Patil. As per postmortem report at Ex.P36 he has stated to
have found following injuries on the dead body of the
deceased:
i. CLW measuring 1 X 1X 14 cm over left cheek
ii. CLW measuring 5 X 4 X 1 cm over epigastric region i.e,
at the centre of chest
iii. CLW measuring 4 X 3 X 3 cm over just lateral to left
nipple
iv. CLW measuring 4 X 2 X 1 cm over anterior margin of
left axila
v. CLW measuring 5 X 3 X 2 cm over left hypocondriac
region
vi. CLW measuring 8 X 8 X 3 cm over right wrist
vii. CLW measuring 4 X 4 X 5 cm over inner part of left
thigh
viii. CLW measuring 4 X 4 X 2 mc over lateral part of left
upper thigh
ix. CLW measuring 6 X 6 X 2 cm over lateral part of let
mid thigh
x. CLW measuring 2x1x1 cm on right scapular
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xi. CLW measuring 6x4x2 cm over left side of lower part
of the back
xii. Two CLW each measuring 1x1 cm is seen laterally and
inferiorly to wound no.(XI) respectively
xiii. CLW measuring 4x4x2 cm over right iliac region
xiv. CLW measuring 10x6x4 cm over left calf
xv. CLW measuring 8x4x2 cm over right calf
13. According to his opinion, the death was due to
hemorrhagic shock secondary to injury to the vital and major
organ - heart and the time since death was 12 to 24 hours
prior to postmortem examination and the injuries found on the
deceased could be caused with the weapon like MO4 to MO8
shown to him.
14. In the cross-examination, the said witness has
stated that he did not find chilly powder either in the eyes,
nose, mouth and clothes of the deceased, that it was probable
that assailant might have assaulted by standing on the left side
of the deceased. That though he cannot say the number of
weapons used in causing the injuries, he could only correlate
the injuries with the weapons on the basis of the nature of
injuries. He also stated that if a person falls, there is very less
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chance of sustaining injuries as noticed by him on the dead
body of the deceased. Nothing has been elicited in his cross-
examination to discredit his evidence regarding death of the
deceased was due to the injury sustained by the weapons like
MO4 to MO8. Thus the prosecution has established the factum
of death of deceased being a homicidal.
Regarding evidence of eyewitnesses:
15. PW1-Akshaya Krishnappa Ghorpade being the
complainant in this case is also an eye witness to the incident.
He has spoken about the earlier dispute between him, deceased
and PW2 on the one hand and the accused on the other hand
on the issue of playing swing near Siddeshwara Temple and
resultant filing of the case and obtaining bail. He has narrated
the incident as contained in the complaint at Ex.P1. He has also
spoken about accused Nos.1, 2, 4, 6 and 7 assaulting and
causing injuries to the deceased and accused Nos.3, 5, CCL8
and CCL9 throwing chilly powder into the eyes of the deceased
and also about accused Nos.3, 5 and CCL8 and CCL9 assaulting
and throttling the neck of PW2 and also about the injuries
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sustained by him due to the assault on him by accused No.2.
He has also spoken about he and PW2 taking treatment from
PW19 for the injuries sustained by them. That he and one
Akshaya alongwith the body of Rohit went to the Government
Hospital at Gokak where Rohit was declared dead. He has
spoken about conducting of the spot mahazar at Ex.P2,
identified the photographs as Exs.P3 and P4, blood stained tar
collected by the Police, chilly powder box as per MO1 to MO3
and the weapons used for committing the offence at MO4 to
MO8 and the photographs of the car in Exs.P5 and P6 and the
car MO9 and the clothes of the deceased owned at the time of
the incident MO10 to MO13.
16. In the cross-examination he has admitted that
going to pan shop near Apsara Koota was accidental and was
not pre-planned. He has admitted that there were four to five
criminal cases registered against deceased Rohit. He has
denied the suggestion that he and the deceased were involved
in several criminal cases of rioting etc., and were wanted by the
Police. He has further stated that because of the injury and the
giddiness, there was mistake in stating his occupation. He
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denied the suggestion that he was not fully conscious while
giving the other information. He has admitted that he has not
stated either in the complaint or in the further statement that
which of the accused was holding which type of the weapon.
Though several suggestion have been made by the defence
regarding his antecedents and also with regard to he meeting
with deceased and PW2 accidentally on the date of the incident,
nothing has been elicited to discredit his presence at the scene
of the offence.
17. PW2-Rahul Veerupaxa Entagouda in his evidence
recorded on 02.03.2020 has narrated the incident as contained
in the complaint and also spoken about the Police recording his
statement and he identifying the material objects. In the cross-
examination recorded on 03.03.2020, he has admitted that he
is an under trial in a murder case and he has also admitted that
there were number of criminal cases of attempt to murder,
extortion and rioting against the deceased and he was under
observation by the Police. He has also spoken about the dispute
they had with the accused relating to the incident of playing a
swing. He has also admitted that he meeting the deceased,
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PW1, was mere accident and was not pre-planned. He has
stated that he suffered injuries on the neck by the throttling of
the accused, namely Kumar Sanadi (A3), Sridhar Kabbur (A5),
Sainath Revenkar (CCL-8) and Ratan Patil (CCL-9), but there
was no bleeding injury. He has spoken about he getting treated
by the Doctor-PW19.
18. The said witness was recalled on 11.02.2021 at the
instance of accused No.5 during which, in the cross-
examination, he partially turned hostile to the case of the
prosecution to the extent he has stated that he ran away from
the scene when he saw the car of the accused and he did not
know who committed which offence and was cross-examined
by the prosecution.
19. At this juncture, it is appropriate to refer to
evidence of PW19, who has treated PW1 and PW2 on the date
of the incident. PW19-Dr.Uday Angadi, Government Hospital,
Gokak in his deposition has stated that on 24.09.2017 at 10:24
p.m. injury Akshaya Ghorpade-PW1 and Rahul Entagoudar-PW2
had come to the hospital for treatment with the history of the
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assault on the same day at 9:30 p.m. and he examined the
injured PW1 who had sustained cut injury at his right hand little
web-space and thereafter he examined PW2 who had not
sustained any external injury. He identified wound certificates
issued by him in respect of PW1 and PW2 at Exs.P30 and P31.
He has also stated that the injury found on the hand of PW1
could be caused by weapon like MOs.4 to 8. He has also spoken
about PW1 having been admitted as inpatient in the hospital
and discharged on the next day upon the requisition from the
investigation officer for time being enabling them to conduct
mahazar. The requisition by the Investigation Officer is at
Ex.P32. In the cross examination, the said witness stated that
injured PW1 was accompanied by one Amit Rajapure. Rahul
was not accompanied by any person. He has also stated that
while giving history, the injured had not stated the place of
assault, name of the assailants or the nature of weapons. That
PW1 was attended immediately. His general conditions were
normal. That he has not noted the identification marks on the
person of injured. That injured themselves had introduced their
names. He admits that in the absence of identifying marks a
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person cannot be identified. He further states that he has not
recorded if the injury on Askhaya was bleeding, its colour or
age in the document. That he might have been admitted in the
general ward of the hospital and the said records are available
in the hospital. That MLC information was sent to the Police
Station by 10:30 p.m. and that there is no mention about the
same in Exs.P30 and P31. He has also deposed that there is no
mention in MLC register of granting permission to take Akshaya
from the hospital and he does not remember as to what time
he was readmitted to the hospital. He has also stated that if 3-
4 persons of forcibly throttle the neck of a person, there is
probability of nail mark and finger impression at the neck
region. PW2 was treated as outpatient. That the Ex.P30 and
P31 were furnished to the police on 12.12.2017. Witness has
stated that only when they receive the requisition, wound
certificate would be given. The witness also stated that the
clothes of PW1 were stained with blood. But he did not take any
steps to preserve the said clothes.
20. The other eye witnesses to the incident is PW5-
Ramesh who is the owner of a pan shop where the incident had
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occurred. The said witness in his deposition has stated that he
is acquainted with the deceased Rohit and has seen PW1 and
PW2. He has stated that on the date of incident, deceased PW1
and PW2 had come to buy star gutka and after giving them the
same, he closed the shop and went away and he is not aware
as to what happened thereafter. That on the following day, he
learnt about the murder of Rohit. The said witness was
considered partly hostile. In the cross-examination by the
prosecution, he has stated that while he was giving star gutka
to PW1, a group of four persons was there at the spot who had
come creating noise/commotion and being apprehensive of the
said group, he had left the shop. In the cross-examination by
the defence, he has denied the suggestion of he not giving star
gutka to deceased and PW1 and PW2 at 10:00 p.m.
21. Though the aforesaid witness has not completely
supported the case of the prosecution what emanates from his
deposition is that on the said date, deceased PW1 and PW2 had
come to his shop around the time of the occurrence of offence
and had bought star gutka and also presence of group of four
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persons at the spot creating commotion and he apparently
running away being apprehensive of the said group of persons.
22. Referring to the deposition of PW1, it is contended
on behalf of appellants that in the complaint PW1 has taken the
names of accused Nos.1 to 5 as the persons alighting from the
car while in the further statement he has changed it to the
accused Nos.1, 2, 4, 6 and 7 as alighting from the car and
accused Nos.3 and 5 were made as bystanders without any
explanation. With reference to injuries sustained by him, much
has been argued by the learned counsel for the appellants that
considering the nature of injuries as reflected in Ex.P30-wound
certificate issued by PW19, wherein the injury is shown to be as
CL WAT RT LTT webspace, which is of a simple in nature caused
due to sharp object, that it is highly improbable to believe his
version in the complaint at Ex.P1 wherein he has stated that he
has suffered grievous injures on his right forearm while
attempting to rescue the deceased from the assailant.
Similarly, with regard to evidence of PW2 of he not sustaining
any external injuries and he having turned hostile, it is
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contended that he was not at all present at the scene of the
offence.
23. Referring to the deposition of PW2 recorded on
11.02.2021, it was argued on behalf of the appellants that
since said PW2 ran away from the scene of offence, apparently
on hearing about coming of the car, the evidence of the said
witness was of no avail to the prosecution to bring home the
guilt of the accused. As rightly pointed out by the learned
Additional State Public Prosecutor, it is necessary to see that
the chief-examination of the said witness was recorded on
25.09.2019. Since accused No.5 was traced, the said witness
was again examined on 02.03.2020 wherein he narrated the
incident and fully supported the case of the prosecution. He
was cross-examined on 03.03.2020 and completely withstood
the test of cross-examination and fully supported the case of
the prosecution. He was recalled by order dated 11.02.2021 at
the instance of accused No.5 during which time, he partially
turned hostile denying his presence at the time of commission
of offence, as he claimed to have ran away on seeing the car. It
can be seen that the said witness has been either influenced or
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won over between 03.03.2020 and 11.02.2021 a gap of almost
11 months 10 days between the two depositions.
24. The Apex Court in the case of Superintendent of
Police, CBI and others vs. Tapan Kumar Singh reported in
(2003) 6 SCC 175 adverting to the nature of first information
report, its contents and requirement under Section 154 of
Cr.P.C. at para 20 has held as under:
"20. It is well settled that a First Information Report is
not an encyclopedia, which must disclose all facts and details
relating to the offence reported. An informant may lodge a
report about the commission of an offence though he may not
know the name of the victim or his assailant. He may not even
know how the occurrence took place. A first informant need not
necessarily be an eye witness so as to be able to disclose in
great details all aspects of the offence committed. What is of
significance is that the information given must disclose the
commission of a cognizable offence and the information so
lodged must provide a basis for the police officer to suspect the
commission of a cognizable offence. At this stage it is enough if
the police officer on the basis of the information given suspects
the commission of a cognizable offence, and not that he must
be convinced or satisfied that a cognizable offence has been
committed. If he has reasons to suspect, on the basis of
information received, that a cognizable offence may have been
committed, he is bound to record the information and conduct
an investigation. At this stage it is also not necessary for him to
satisfy himself about the truthfulness of the information. It is
only after a complete investigation that he may be able to
report on the truthfulness or otherwise of the information.
Similarly, even if the information does not furnish all the
details, he must find out those details in the course of
investigation and collect all the necessary evidence."
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In the light of above judgment, the discrepancy if any in the
complaint, FIR, and in the further statement of PW1, would not
affect the case of prosecution.
25. Dealing with appreciation and reliability of the
evidence of injured witnesses, the Apex Court has in the case
of Baleshwar Mahto and another vs. State of Bihar and
another reported in (2017) 3 SCC 152 at para 11 has held as
under:
"11. Here, PW-7 is also an injured witness. When the eye-witness
is also an injured person, due credence to his version needs to be
accorded. On this aspect, we may refer to the following
observations in Abdul Sayeed vs. State of Madhya Pradesh:
"28. The question of the weight to be attached to the
evidence of a witness that was himself injured in the
course of the occurrence has been extensively
discussed by this Court. Where a witness to the
occurrence has himself been injured in the incident, the
testimony of such a witness is generally considered to
be very reliable, as he is a witness that comes with a
built-in guarantee of his presence at the scene of the
crime and is unlikely to spare his actual assailant(s) in
order to falsely implicate someone. "Convincing
evidence is required to discredit an injured witness."
[Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC
881:1973 SCC (Cri) 563:AIR 1972 SC 2593], Malkhan
Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC
(Cri) 919 : AIR 1975 SC 12], Machhi Singh v. State of
Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681],
Appabhai v. State of Gujarat [1988 Supp SCC 241 :
1988 SCC (Cri) 559 : AIR 1988 SC 696], Bonkya v.
State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC
(Cri) 1113], Bhag Singh [(1997) 7 SCC 712 : 1997 SCC
(Cri) 1163], Mohar v. State of U.P. [(2002) 7 SCC 606 :
2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v.
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State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC
(Cri) 472], Vishnu v. State of Rajasthan [(2009) 10 SCC
477 : (2010) 1 SCC (Cri) 302], Annareddy Sambasiva
Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1
SCC (Cri) 630] and Balraje v. State of Maharashtra
[(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211]
29. While deciding this issue, a similar view was
taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC
719 : (2010) 1 SCC (Cri) 107] , where this Court
reiterated the special evidentiary status accorded to the
testimony of an injured accused and relying on its
earlier judgments held as under:
"28. Darshan Singh (PW 4) was an injured
witness. He had been examined by the doctor. His
testimony could not be brushed aside lightly. He
had given full details of the incident as he was
present at the time when the assailants reached the
tubewell. In Shivalingappa Kallayanappa v. State of
Karnataka [1994 Supp (3) SCC 235 : 1994 SCC
(Cri) 1694] this Court has held that 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, for the reason that his presence on
the scene stands established in case it is proved
that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 a similar
view has been reiterated observing that the testimony of a
stamped witness has its own relevance and efficacy. The fact that
the witness sustained injuries at the time and place of
occurrence, lends support to his testimony that he was present
during the occurrence. In case the injured witness is subjected to
lengthy cross-examination and nothing can be elicited to discard
his testimony, it should be relied upon (vide Krishan v. State of
Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus,
we are of the considered opinion that evidence of Darshan Singh
(PW 4) has rightly been relied upon by the courts below."
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
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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."
The fact that PW1 was injured is not denied. It is established by
the evidence of PW19. Nature of injury may vary compared to
the statement given in the complaint. The same cannot be an
issue to discard the entire evidence of PW1.
26. The Apex Court in the case of Hari and others vs.
The State of Uttar Pradesh reported in 2021 (4) Crimes
442 (SC) dealing with appreciation of hostile witnesses at para
25 and 26 has held as under:
"25. It is well settled that the evidence of prosecution
witnesses cannot be rejected in toto merely because the
prosecution chose to treat them as hostile and cross-
examined them. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether but the
same can be accepted to the extent that their version is found
to be dependable on a careful scrutiny thereof .......
26. Even if the witnesses have turned hostile, their
evidence can be accepted, if they are natural and independent
witnesses and have no reason to falsely implicate the accused.
In Mrinal Das and Others v. State of Tripura this Court
observed that credible evidence even of a hostile witnesses
can form the basis for conviction in a criminal trial."
27. Referring to the evidence of PW2 who turned hostile
in the cross-examination conducted on 11.02.2021, it is
contended by the appellants that the said witness has not
supported the case of the prosecution. As already noted, the
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gap between 03.03.2020 and 11.02.2021 in the cross-
examination of the said witness must have had definite role in
influencing the said witness to depose the manner he did on
11.02.2021. There is nothing wrong or abnormal in relying
upon the deposition recorded on 02.03.2020 and 03.03.2021
and discarding the one recorded on 11.02.2021. Similar is the
situation with the deposition of PW5, who does not dispute the
presence of deceased, PW1, PW2 and a group of four persons
at his shop. The evidence of PW2 and PW3 can be safely relied
upon under the facts and circumstance of the case.
28. In the light of the aforesaid principles of law and
the facts and circumstance of the case, the deposition of PW1,
PW2 and PW5 and even the suggestions made by the defence
during the cross-examination of PW1 and PW2 with regard to
their presence at the shop, was accidental and was not pre-
planned, establishes the case of the prosecution regarding their
presence at the scene of offence.
29. PW3-Nagesh is a circumstantial witness who has
stated that he is acquainted with the deceased Rohit Raju Patil,
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PW1 and PW2 and also accused persons and identified each of
the accused by their names. He has stated that on the date of
the incident, at about 10:15 p.m. he along with PW4 and other
friends was walking from Karagadi circle towards Dyavamma
Temple and came in front of Apsara Hotel. The red colour car
had crossed them and had stopped in front of Dyavamma
Temple from which five persons namely accused Mallikarjun
Bajantri, Arjun Chikkodi, Parashuram Shivanappagola, and
Parashuram Khanappanavar, Vijaya Sheelavant alighted from
the said car armed with the jambe (dagger) and talwar (sword)
in their hands. He also saw accused Sainath Revenkar, Ratan
Patil, Kumar Sanadi, Sridhar Kabbur who were standing by the
side and throwing chilly powder into the eyes of the deceased
and thereafter attacking him all over the body, who fell down
due to the assault. They also saw the accused persons going
away in car. They went near the deceased thereafter and found
injuries all over his body and they called 108 ambulance and
took the deceased to the hospital where he was declared dead.
In the cross-examination, the said witness has stated that he
carries on the business of vegetable vending up to 08:00 p.m.
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everyday and goes home thereafter. He denies the suggestion
that there was animosity between him and the accused. He has
stated that he did not attempt to rescue the deceased from the
attack. That there were bloodstains on his hand while he
carried Rohit into the ambulance. Nothing has been elicited
from the said witness to discredit his presence at the spot at
the time of the offence.
30. PW4-Sainath Eshwar Pavadi is another
circumstantial witness who has spoken about his acquaintance
with PW1, PW2 and the deceased as well as the accused
persons involved in the case. He has also spoken about he
walking along with PW3 and other witnesses at about 10:15
p.m. on 24.09.2017 near the place of incident. He has narrated
the incident similar to that of the narration of PW3. In the
cross-examination, he has admitted that there were criminal
cases against the deceased and also against his friends. He has
admitted that on the said date, there was drizzling and that he
and his friends used to walk everyday and he has been
suggested that the road between Karagadi Circle going towards
the river bank was a busy Gokak market road. Witness has
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stated that since it was the night, it was not that busy. It is
further suggested that nobody goes for a walk on the busy
market area which has been denied. Nothing has been elicited
from this witness except denial of his evidence with regard to
his presence at the spot and scene of the offence.
31. As rightly pointed out by the learned Additional
State Public Prosecutor, the presence of the said witnesses is
natural. The very suggestion to PW4 regarding the said place
situated in a busy market area with the movement of people
makes it natural for PW3 and PW4 to be present there. Though
it is contended on behalf of the appellants that due to rain it
was improbable for PW3 and PW4 who have gone there for a
walk, nothing has been brought out to disbelieve the versions
of PW3 and PW4. More particularly when the said witnesses
have withstood the test of cross-examination and have
identified the accused by their names.
Regarding the recovery of clothes and weapons:
32. PW7-Kenchappa and PW8-Srikant Bharamappa who
are Teachers in Government Kannada Higher Primary School,
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Markhande Nagar, Gokak. They are the panch witnesses to the
seizure mahazar at Ex.P9. They have spoken about they going
along with the Police and six persons being in the Police jeep.
One of them handing over 12 clothes in their presence marked
as Ex.P14 to P25. Thereafter, they were taken near Apsara
Hotel where the accused persons shown the spot of the incident
which was recorded in mahazar at Ex.P10 and identified the
photograph Ex.P11. Thereafter, they were taken near water
tank where the accused had shown the place of hatching
conspiracy which was drawn in mahazar at Ex.P12, the
photograph is marked at Ex.P13. Thereafter, they were taken
near a Village Chikkanandi on Gokak-Yaragatti road where the
Police had informed them that the accused had hidden the
weapons used to commit the offence. One of the accused got
down and brought the weapons hidden in a bush which are
already marked as MO4 to MO8 and a mahazar was drawn at
Ex.P14, photographs taken at the spot are at Exs.P15 and P16.
Thereafter, they were taken near Nesaragi cross on Yaragatti-
Belagavi road where the car used by the accused at the time of
commission of offence. The photograph and the mahazar of the
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same is drawn at Ex.P17 and the photographs are at Ex.P18.
The said witnesses have not identified any specific accused who
handed over the clothes or the weapons used for committing of
the offence. However, they have reiterated they going with the
Police to the scene of offence and to the place where the
accused had hidden the weapons used for committing of the
offence. This part of the prosecution case is well supported by
these witnesses. It is quite natural for them not to have
specifically identified the accused who had handed over the
weapons since there were six accused and also considering the
passage of time. Nothing has been elicited to discredit the
evidence of these witnesses with regard to drawing up of
mahazar and seizing of the material objects referred to above.
33. The trial Court at para 76 of its judgment has stated
that the accused persons during the recording of 313 statement
to the relevant questions have stated that their signatures were
taken on the blank papers. Accused No.1 has stated that police
had planted knife and talwar and he was picked up at their
instance. Accused No.6 has stated that in was in the station,
thus, tried to create doubt about the recovery of weapon. The
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weapons were recovered from the spot as deposed by PW7 and
PW8. As rightly taken note of by the trial Court the weapons
were not carried by the police to the place of recovery. As
regards the recovery of clothes, accused No.1 during recording
of statement under 313, has stated that a pant and a shirt was
secured from his house through his mother, accused No.2
admits seizure of his clothes, but denies the purpose. Accused
No.3 states that his clothes were taken by the police. Accused
No.4 confirms seizure of his clothes. Accused Nos.6 and 7 state
that their clothes were procured from their house. This
response of the accused persons establishes the clothes seized
by the police belong to the accused. Therefore, nothing has
been brought on record to doubt the process of recovery.
Regarding conspiracy:
34. PW10 one Omkar, a circumstantial witness who has
spoken about he alongwith one Manoj, walking towards the
water tank near Siddeshwara Temple and sitting about 15
meter away from the water tank. At that time, they saw the
accused persons near the said tank who were sitting about 10
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meters away from the tank and they overheard them talking
about murdering the deceased. On hearing the same, being
apprehensive, he and Manoj left the place and went to their
house. In the cross-examination, the said witness has stated
that he is a friend of deceased Rohit, PW1 and PW2 and that he
is aware of the dispute between the deceased and the accused.
He has admitted that on hearing the conversation of the
accused, he did not attempt to inform the Police or alert the
deceased or PW1 and PW2. He has also further stated that he
was not able to hear which of the accused was talking and that
the accused did not speak to him and Manoj.
35. As rightly contended by the learned counsel for the
appellants, this part of the prosecution witness appears to be
non-trustworthy. The spot where alleged conspiracy was
hatched appears to be public place and presence of PW10 along
with Manoj at the time of alleged hatching of conspiracy
appears to be improbable. It is also cannot be conceived that
such a conspiracy was being discussed in an audible voice.
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Regarding the use of chilly powder in commission of
offence:
36. PW1 and PW2 have stated that accused Nos.3, 5
and CCL8 and CCL9 who are nearby the pan shop of PW5,
threw chilly powder into the eyes of deceased. The spot
mahazar witness has deposed that the chilly powder box was
seized at the scene of offence.
37. PW12-Sheshachal is the owner of Vaibhava Laxmi
Home Products, a grocery shop. He has spoken that one boy by
name Ratan was known to him and was moving around his
shop and a day or two before the date of incident, he had
purchased 100 grams of chilly powder from his shop. He has
identified said Ratan in the Court. Nothing has been elicited in
the cross-examination to discredit the evidence of the said
witness though he has not been able to state as to how many
customers had come on 24.09.2017 to his shop and the
whereabouts of the said Ratan. However, he states that he
distinctly remembers said Ratan Patil as within a day or two of
he purchasing the chilly powder, the incident had taken place.
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38. PW20-Doctor who has conducted the autopsy of the
dead body of the deceased has stated that he has not seen any
trace of chilly powder in the eyes or any part of the body of the
deceased.
39. This evidence though appears to be shaky the fact
of CCL9 procuring the chilly powder from the shop of PW12 has
been established. PW12 has specifically and categorically
deposed regarding purchase of the same from his shop by
CCL9. the recovery of chilly powder box from the spot is also
established. There may not have been the usage in the manner
describing the complaint but this circumstances cannot be
completed ruled out in the facts an circumstances of the case.
Regarding use of car bearing No. KA No.29/M-7216:
40. PW9-Maruti Siddappa Kittur, a driver who is a
witness to seizure mahazar-Ex.P19 drawn while seizing the car
bearing registration No.KA-29/M-7216 and identified the
photographs Exs.P5 and P6. The said witness has supported the
case of the prosecution.
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41. PW13-Ramesh Krishna Kadam, a mechanic who has
spoken about the accused Arjun Chikkodi bringing the car to his
garage for repairing the break. He has stated that his garage is
known as 'Suresh Mestri Garage'. He has also spoken that the
said accused some time used to bring the car and repair it by
himself. The car which was brought by the accused was
repaired by PW13. On the following day at 12:00 p.m. said
accused had taken the car for driving. He had told that he
would settle the bill in the night about 10:00 to 10:30 p.m. The
said witness has identified the car in photographs at Exs.P5 and
P6. Nothing has been elicited in the cross-examination
regarding accused bringing the car to his shop for repair except
suggestions of denial.
42. PW14 is Sridhar Basavanneppa Angadi who is the
owner of the car and resident of Sunakumpi. He has stated that
on 21.09.2017, he had taken his car to Suresh Mestri's Garage
near AP.M.C for load setting silencer repair and break repair.
Suresh Mestri was not present in the garage. But accused Arjun
Chikkodi was present in the garage. He has handed over the
car to him on 24.09.2017 at 11:30 p.m. near Nesargi cross and
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had taken Rs.8,100/- from him as repairing charges. That he
has purchased the car on a loan and it is in bank custody. He
has identified his car at Exs.P5 and P6. The Police had seized
the car from his house after two days.
43. In the cross-examination, said witness has
reiterated that he having taken the car to the Mestri's garage
and handing over the same to Arjun Chikkodi. He has also
stated that he did not meet Suresh Mestri on the said date.
That he had gone to get the car near the Nesargi cross on a
motorbike at about 11:30 p.m. and after receiving the car, he
had left the same at his brother's place. He has denied the
suggestions of he not leaving the car for repair at Mestri's
garage. In the further cross-examination by the counsel for
accused Nos.3, 4, 6 and 7, he has deposed that on 21.09.2017
he had given the car for repair and received it on 24.09.2017.
That since the accused had asked him to near Nesargi cross to
take the delivery, he had gone there. To a suggestion that he
could have taken the car on a following date to Gokak, the
witness replied that in fact he had asked so but the accused
had insisted to take the delivery of the car, as he was going
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out. Therefore, the witness had gone to Nesargi cross to take
the delivery. That the distance between Sunakumpi to Nesargi
is about 12 to 13 kms. To a suggestion that why did you not
take anyone alongwith him to take the delivery of the car,
witness has replied that since his brother's house was near by,
he did not think of taking up anyone along with him.
44. Though it appears the receipt of car by PW14 from
accused No.2 at 11:30 p.m. near Nesargi cross to be not
normal, the fact remains that from the deposition of PW13 and
PW14 the possession of car with accused No.2 on the date of
incident has been established by the prosecution and nothing
has been elicited to discredit this aspect of the matter.
Filing of complaint:
45. PW15-Akarsh Ghorpade is a scribe of the complaint.
He has deposed that on 24.09.2017 at 11:00 p.m. he had gone
to the Government Hospital to see deceased Rohit Patil. PW1-
Akshaya Ghorpade, his relative was also present there. He had
sustained injuries to his hand. He had asked to write a
complaint. Accordingly he wrote the complaint between 11:30
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p.m. and 12:00 a.m. as per Ex.P1. In the cross-examination,
he has stated that while writing the complaint, the Police was
present. He denied the suggestion that the Police was
instructing him to write the complaint. That the Police had
given him the pen and paper to write the complaint. He took 15
minutes to write the compliant. He denied the suggestion that
he took up to 03:00 a.m. to write the complaint. He has stated
that he has left to his home about 12:30 a.m.
46. PW18-Mayappa Satteppa is the ASI. He has spoken
that on 24.09.2017 at 10:30 p.m. he received a telephone call
from an unknown person regarding the fight with knife, jambe
and talwar near Apsara Koota. Immediately he along with his
staff CW30 went to the spot and learnt that the injured persons
were taken to Gokak Hospital. He found blood spilled at the
spot. He had left CW30 to preserve the scene of offence and he
went to the Hospital where Akshaya Ghorpade was being
treated. Deceased Rohit Patil was dead. Entagoudar was also
being treated. Akshaya Ghorpade had injury on his hand. He
enquired with him. Akshaya Ghorpade got complaint written by
one Akarsh Ghorpade on a paper and pen given by him.
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Complaint was written between 11:30 to 12:00 p.m. There
were lot of people gathered near the hospital. He looked after
bandhobast for 15 to 20 minutes. Thereafter, went to the
station and registered the case in Crime No.187/2017. He sent
the FIR to the Magistrate through CW31. He identified a
complaint already marked as Ex.P1 and the FIR at Ex.P29.
47. In the cross-examination, he has stated regarding
the entry made in Station House Diary regarding receiving the
telephonic call and also regarding he and CW30 going to the
spot. That he did not minutely notice the blood spilled places.
That it was about 10:45 p.m. when he went to the Hospital. He
has reiterated PW1 and PW2 being treated and the presence of
Akarsh Ghorpade. He has stated that he had carried the paper
and pen expecting its requirement. That he was present at the
time of writing of the compliant. He has denied that Ex.P1
complaint was prepared in his presence and in the presence of
CBI in the Police station on 25.09.2017 at 02:30 a.m., and that
he was deposing falsely to cover up the delay in registration of
complaint.
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48. Thus, it is seen that there is complete consistency
in the deposition of PW1, PW15 and PW18 with regard to timing
and manner of recording of the complaint and registration of
the same without any delay ruling out any possibility of
fabrication or deliberation as sought to be made out by the
accused.
Other witnesses:
49. PW11 is one Jyotiba who is a witness to inquest
report at Ex.P20 has spoken about the injuries on the body of
the deceased and drawing up of spot mahazar seizing of chilly
powder box, blood stained tar, measurement of the spot, taking
of the photographs etc., and also seizing of the blood stained
clothes of the deceased. Nothing has been elicited to discredit
the evidence of the said witness.
50. PW16-Rajashekar M. Hiremath, the Assistant
Executive Engineer who has spoken about preparing sketch of
scene of offence as per Ex.P24 and sketch of the spot where
the conspiracy was hatched near water tank, Gokak as per
Ex.P25. Nothing has been elicited to discredit the evidence of
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the said witness with regard to sketch in respect of scene of
offence. As noted above, the spot of hatching criminal
conspiracy may not be of much significance in view of the
theory of PW10 and another person overhearing the same has
not inspired the confidence of the Court.
51. PW17-Mahesh Sakaram Bagadi, an Engineer in
HESCOM. He has spoken about issuing a certificate at Ex.P28
with regard to supply of electricity near Dyavamma Temple of
Apsara Koota, Gokak. In the cross-examination, he has
admitted he has to refer to log book with regard to supply of
electricity. He has also admitted that in Ex.P28 there is no
reference to the details of log book. He admits that he has not
visited the place near Apsara Koota or inspected the condition
of transformer or electricity wires before issuing Ex.P28.
Though the evidence of this witness is shaky, nothing has been
brought on record to show that the place of offence was not
having sufficient light. In fact it is borne out of record that the
scene of offence is situated in a busy market area and it was
the festive season . from this, it can be inferred that there was
sufficient light capable of identifying the persons. The witnesses
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are not the strangers, they are acquaintance of the accused.
therefore, there is no doubt in the identification of the accused
persons during the incident.
52. PW21 is Sri.Vidya Senior Scientific Officer, who has
deposed about receiving 24 sealed articles on 09.11.2017
namely, 1) chilly powder, 2) blood stained mud, 3) sample
mud, 4) nikker, 5) four t-shirts, 6) one jerkin, 7) bermuda,
8)three shirts, 9) six pants, 10) three jambs, 11) two talwars.
On examination except articles 3, 12 and 13, all other articles
were stained with 'A' group human blood. The report given by
her is marked at Exs.P41 and 42. In the cross examination, she
has denied that the articles shown to her were not concerning
the present case. She also denied that she was obliging the
investigation officer in giving the false certificate. Nothing has
been elicited to discredit her evidence.
53. PW22 is the photographer who has spoken about he
having taken the photographs at the instance of the Inspector
or Police on 25.09.2017 and 27.09.2017 at the Government
hospital, at the place of incident and near Chikkanandi, near
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Nesargi cross, and near Sangam Nagar, Gokak. That again on
29.09.2017, he had taken photographs of the car. The
photographs taken by him Exs.P3 to 6, 11, 13, 15, 16, 18 and
21. That the said photographs were taken by him by Nikon
D3000 digital camera and prints of the photographs were taken
in his computer and Epson printer in his office. He has given a
certificate as per Ex.P43. In the cross-examination, questions
have been asked about his experience, about setting the date
and time and with regard to the inbuilt memory of the camera
and also of the capacity of computer etc. Nothing has been
elicited to discredit his evidence.
Deposition of investigation officer:
54. PW23 is the Circle Inspector, Investigating Officer in
the matter. The said witness has spoken about he visiting the
hospital, examining the dead body, enquiring with PW1 and
PW2 and also visiting the scene of offence on the night of
25.09.2017. He has further deposed that about 06:00 a.m., he
went to the hospital and requested the doctor to discharge PW1
for the purpose of conducting spot mahazar and also spoken
about drawing inquest panchanama of the dead body in the
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presence of the mother and one Akshaya Ghorpade between
06:00 a.m. to 08:00 a.m. He has spoken about the injuries on
the part of the deceased about the clothes worn by the
deceased and taking the photographs requesting the doctor to
conduct postmortem report, thereafter visiting the scene of
offence along with PW1 and PW2, seizing chilly powder box and
blood stained tar and mud as per MO1 to MO3 and the
photographs in that regard. He has also spoken about drawing
up of sketch and recording the statement of CW1, CW8 to
CW16 and CW19 to CW21. He has also spoken about obtaining
the extract of the car on 26.09.2017 from the RTO. That on
27.09.2017, he and his staff went near Hattaragi Toll Naka on
NH4 at 08:00 a.m. and arresting all six accused namely,
Mallikarjun Bhajantri, Arjun Chikkodi, Kumar Sanadi, Keta
Parasu Khanappanavar, Vijay Sheelavant and Parashuram
Shivanappagola present before the Court and after the arrest,
took them to police station, recorded their separate statement,
in which except Kumar Sanadi, all other accused in their
voluntary statements had stated that if they were taken, they
would show the weapon used by them for commission of crime
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which they have thrown near thorny bush on the way to
Nesargi. The portion of the statement of accused No.1 marked
at Ex.P46. The portion of the statement of accused No.2
marked at Ex.P47. The portion of the statement of accused
no.4 marked at Ex.P48. The portion of the statement of
accused No.6 marked at Ex.P49. The portion of the statement
of accused No.7 marked at Ex.P50. that immediately he called
the higher officers of CW4 and 5 who came to the station at
11:45 a.m. and in their presence, seized the pant and shirts of
the six accused, and marked at MO14 to MO25, as per mahazar
at Ex.P9 and took the accused to show the place where they
hatched conspiracy and committed the offence and mahazars
were drawn as per Ex.P10 and 12, and photographs were taken
as per Ex.P11 and P13 and that when they reached
Chikkanandi cross, thereafter upon the information of the
accused, they went near the bush next to tamarind tree where
they had hidden the weapons used namely, three jambes and
three talwar for commission of offence. The said weapons were
stained with blood and the same were seized as per Ex.P14, the
sketch of the said place as per Ex.P14(d), thereafter the
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accused took them to Nesargi cross, where car bearing KA
No.29/M-7216 was handed over to the owner of the car. The
said place was identified and mahazar was drawn as per
Ex.P17. He has also spoken about recording of the statement of
the owner of the car obtaining the photographs of the seizure
of the car and obtaining the wound certificates of PW1 and
PW2. He has also spoken about P.M. report and report from the
RSL. They also have spoken about a report regarding searching
of accused No.5.
55. In the cross examination, suggestions have been
made with regard to purported delay in registering the FIR
which he has denied. He has deposed that there was chilly
powder on the face of the deceased but the same has not been
mentioned in inquest report. That when he visited the spot for
the first time, it was 4:00 to 4:30 a.m. and the spot was
covered with plastic but he has not seized the said plastic
cover. That there was blood spilled only at one place which has
been collected. That he arrested accused Nos.1, 2, 3, 4, 6 and
7 near the Hattaragi Toll and brought them to the station at
9:00 a.m. During this period, they were in his custody. Several
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questions have been asked denying the mode of conducting the
investigation by him. Nothing has been elicited to disbelieve his
version.
Conclusion:
56. Thus, from the aforesaid deposition of the witnesses
the facts that emerge are as follows:
a. That two months prior to the incident, there was a
quarrel /dispute between deceased, PW1 and PW2
on the one part and the accused persons on the
other part with regard to playing of swing resulting
in accused registering a case against deceased,
PW1 and PW2. In that, PW1 and PW2 had obtained
bail and accused had obtained anticipatory bail.
This is the motive circumstance and the same is not
disputed.
b. That on the date of incident-24.09.2017 at about
10:15 p.m., deceased, PW1 and PW2 and accused
Nos.3, 5, 8 and 9 were present near the pan shop
of PW5.
c. Accused Nos.1 ,2, 4, 6 and 7 arrived in a car armed
with jambe and talwars in their hands and
assaulted the deceased resulting in his death.
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d. That PW1 sustained injuries in the process of
rescuing the deceased from the assault of accused
No.2 and PW2 was assaulted and throttled by
accused Nos.3 and 5.
e. That the deceased was taken to the hospital in an
ambulance by PW1 and PW2.
f. PW1 and PW2 were treated by PW19 for the injuries
sustained by them.
g. Complaint was filed at 12:30 a.m. at 25.09.2017 by
PW1 written by PW15 in the hospital and in the
presence of constable.
h. That the accused persons were arrested on
27.09.2017 near Hattaraki Toll Naka at about 8:00
a.m.
i. Based on separate voluntary statements given by
six accused persons, the police recovered clothes
and also recovered blood stained weapons from a
bush near Nandi cross.
j. Seized the car bearing KA-29/M-7216 belonging to
PW13.
k. The injuries on the body could be caused by the
weapon used as per the opinion given by PW20 in
the postmortem report at Ex.P36.
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l. That the RFSL report at Exs.P41 and 42 showed the
traces of 'A' group human blood on the weapons
and the clothes.
57. In the case of Duleshwar and another vs. State
of M.P. (Now Chhattisgarh) reported in AIR 2020 SC 1217
dealing with the appreciation of evidence in the case of multiple
number of accused and several eye witnesses at para 15, 15.1
has held as under:
"15. Before embarking on the question aforesaid, we may
refer to the facts that in the present case, as many as 12
persons were named in the FIR and as many as 18 persons
were tried for the offences in question. In the trial, apart from
other witnesses, the prosecution examined several persons as
eye- witnesses, including PW-2 Santosh Kumar, PW-3 Bhuwan,
PW-4 Rajesh, PW- 5 Prahlad Yadav, PW-9 Hiradhar and PW-16
Tikuram Yadav. The Trial Court convicted 9 accused persons,
including the present appellants, for the offences under
Sections147, 148 and 302 read with Section 149 IPC and the
High Court confirmed such conviction.7 In regard to such a case
involving multiple accused persons and several witnesses, it
would be worthwhile to refer to the principles expounded in
Masalti v. State of U.P.: (1964) 8 SCR 133, as reiterated in the
case of Chandra Shekhar Bind (supra) in the following:
"9. However, this is an incident in which a large number
of accused had participated. The Constitution Bench of this
Court has, in the case of Masalti v. State of U.P.: AIR 1965 SC
202 held that under the Evidence Act, trustworthy evidence
given by a single witness would be enough to convict the
accused persons, whereas evidence given by half-a-dozen
witnesses which is not trustworthy would not be enough to
sustain the conviction. It was held that where a criminal court
has to deal with evidence pertaining to the commission of an
offence involving a large number of offenders, it is usual to
adopt the test that the conviction could be sustained only if it is
supported by two or three or more witnesses who give a
consistent account of the incident. It was held that in a sense,
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the test may be described as mechanical, but it cannot be
treated as irrational or unreasonable. It was held that even
though it is the quality of the evidence that matters and not the
number of witnesses, still it is useful to adopt such a
mechanical test.
10. This two-witness theory has also been adopted by
this Court in the case of Binay Kumar Singh v. State of Bihar:
1997 1 SCC 283. It is held that there is no rule of evidence that
no conviction can be based unless a certain minimum number
of witnesses have identified a particular accused as a member
of the unlawful assembly. It is held that it is axiomatic that
evidence is not to be counted but only weighed and it is not the
quantity of evidence but the quality that matters. It is held that
even the testimony of one single witness, if wholly reliable, is
sufficient to establish the identification of an accused as a
member of an unlawful assembly. It is held that all the same,
when the size of the unlawful assembly is quite large and many
persons would have witnessed the incident, it would be a
prudent exercise to insist on at least two reliable witnesses to
vouchsafe the identification of an accused as a participant in the
rioting."
15.1. Thus, it is the quality of evidence that matters and not
the quantity; and even the testimony of a single witness may
be sufficient to establish the identity of an accused as member
of an unlawful assembly but, when the size of assembly is quite
large and many persons have witnessed the incident; and when
a witness deposes in general terms, it would be useful to adopt
the test of consistency of more than one witness so as to
remove any doubt about identity of an accused as a member of
the assembly in question. However, even if adopting such a test
of consistency, what is to be looked for is the 'consistent
account of the incident'; and the requirement of consistency
cannot be overstretched as if to search for repetition of each
and every name of the accused in each and every testimony. In
other words, the comprehension of overall evidence on record is
requisite; and mere counting of heads or mere recitation of
names or omission of any name in the testimony of any
particular witness cannot be decisive of the matter. In such
facts and circumstances, even the relevance of the
corroborating facts and factors like that of recovery of weapons
or any other article co-related with the crime in question cannot
be ignored altogether."
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58. In the case of State of U.P. vs. Dan Singh and
others reported in (1997) 3 SCC 747 dealing with Section
149 of IPC at para 33 has held as under:
"33. Before we deal with the testimony of these
witnesses, it will be important to bear in mind that in the
present case the conviction is being sought under Section 302
I.P.C. with the aid of Section 149 I.P.C.. The two essential
ingredients of this Section are that there must be a
commission of an offence by any member of unlawful
assembly and that such offence must be committed in
prosecution of common object of that assembly or must be
such as the members of that assembly knew to be likely to be
committed. It is also a well-settled law (see Masalti Vs. State
of Uttar Pradesh, AIR 1965 SC 202) that it is not necessary for
the prosecution to prove which of the members of the unlawful
assembly did which or what act. In fact as observed in Lalji's
case (supra) "while overt act and active participation may
indicate common intention of the person perpetrating the
crime, the mere presence in the unlawful assembly may fasten
vicariously criminal liability under Section 149"
In the light of the aforesaid principles of law , it is seen that
even in the instant case there are seven accused persons and
two children in conflict with law. There are several witnesses to
the incident. The evidence of PW1, PW2 and PW5 has
categorically established their presence at the scene of
occurrence of offence. Evidence of PW3 and PW4 has supported
the case of the prosecution. Nothing to disbelieve their version.
59. In view of the participation of all the accused in
commission of the offence with pre-determined intention as
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evident above, prosecution has successfully established the
guilt of the accused.
Certain discrepancies highlighted and pointed out by the
appellants in the evidence of the prosecution:
a. Mentioning of names of accused Nos.1 to 5 in the
FIR and later replacing names of accused Nos.3 and
5 with that of accused Nos.6 and 7.
b. PW1 in the compliant claiming to have suffered
grievous injury on his forearm, but in Ex.P30 the
injury is only of a simple in nature.
c. PW2 partially turning hostile and claiming to have
ran away from the place of incident on seeing the
car.
d. Presence of PW3 and PW4 being improbable as they
could not be expected to walk during the drizzling
in a market area.
e. PW5 pan shop owner turning hostile and not
supporting the case of the prosecution.
f. No specific attribution made to the accused persons
of their alleged overt act.
g. The theory of accused Nos.6 and 7 and CCL8 and
CCL9 throwing the chilly powder into the eyes of
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the deceased. PW20 who conducted the
postmortem of the dead body of the deceased had
categorically deposed that he did not find traces of
chilly powder on any parts of the dead body of the
deceased or on his clothes.
h. PW10 a circumstantial witness along with one
Manoj over hearing the conversation of conspiracy
amongst the accused persons near the water tank
with regard to they committing the murder of
deceased.
i. The owner of the car taking delivery of the same at
about 11:30 p.m. from accused No.2 near Nesargi
cross about 10 to 12 kms., away from the place of
his residence and paying Rs.8,100/- as service
charges to accused No.2.
j. PW1 to PW4 also having criminal antecedents and
reliance on their evidence being unsafe to convict
the accused
k. Prosecution not furnishing the documents with
regard to the previous case filed by the accused
against the deceased and PW1 and PW2.
l. Prosecution not preserving the blood stained
clothes of PW1 and PW2 who claim to have carried
the body of deceased into the ambulance.
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m. PW7 and PW8 not specifically identifying the
accused who handed over the blood stained clothes
and weapons during recovery at the instance of the
voluntary statement made by the accused.
n. Non-production of log book by the PW17 to
evidence supply of electricity in the area of scene of
offence.
60. From the aforesaid discrepant piece of evidence, we
find even as taken note of by the trial Court; a) the story with
regard to spraying of chilly powder into the eyes of the
deceased has not been proved medically, therefore, the same
cannot be accepted. However, seizure of chilly powder box has
been established. b) the theory of PW10 along with one Manoj
overhearing the conversation of the accused with regard to
they hatching conspiracy near water tank, cannot be
countenance. c) PW14 taking the car from accused No.2 near
Nesargi cross at about 11:30 p.m. on the date of the incident
which is about 10 to 12 kms., away from his place, though
appears to be not normal, but the fact of the car being in
possession of accused No.2 is established. d) Non-production of
log book by PW17 to evidence supply of electricity in the area
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of scene of offence, would not effect much as there is nothing
on record to suggest that there was no sufficient light in the
area around scene of offence.
61. Having said that whether the aforesaid lacuna in the
investigation would take away the core case of prosecution and
whether the same destroys the ring of truth in the case of the
prosecution, is a question to be considered. As already noted
above, the discrepancy in the nature of non-mentioning of
names of all the accused in the FIR, mentioning of wrong date
in Ex.P32 as 25.07.2017, non-seizing of blood stained clothes
of PW1 and PW2 are of very minor and insignificant in nature.
Even if the aforementioned instances in the investigation are
considered to be the error and lacuna in the entire story of the
prosecution, there is sufficient material evidence available on
record to prove the guilt of the accused. This case is based on
direct evidence. Presence of PW1 and PW2 at the scene of
offence is proved, presence of accused persons is also proved.
This is corroborated by the evidence of PW5-pan shop owner
and also equally corroborated by evidence of PW3 and PW4.
PW1 and PW2 sustaining injuries and being treated by PW19,
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has not been shaken and the same has been proved. There
may be certain amount of exaggeration or embellishment in the
case of the prosecution as enlisted hereinabove, but we are of
the considered opinion that the same would not dislodge the
case of the prosecution completely and does not create any
reasonable doubt to disbelieve the case of the prosecution. The
trial Court in our opinion has taken all these aspects into
consideration in detail and from all perspective and has come to
just conclusion of the prosecution having proved its case
beyond reasonable doubt.
62. For the aforesaid reasons and analysis, we are of
the considered view that the appellants have not made out any
grounds for interference with the judgment and order passed
by the trial Court. Hence the following:
ORDER
Appeals are dismissed.
The judgment and order of conviction dated 27.07.2021 and the order of sentence dated 28.07.2021 passed in S.C. No.228/2018 connected with S.C. No.392/2019 on the file of
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(K.S.MUDAGAL) JUDGE (M.G.S. KAMAL) JUDGE Rsh / KGK