Karnataka High Court
The State,Thr Aland Ps, vs Arvind S/O. Saibanna Naroni,Ors on 8 April, 2015
Equivalent citations: 2015 (2) AKR 802
Bench: Ravi Malimath, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF APRIL, 2015
PRESENT:
THE HON'BLE MR. JUSTICE RAVI MALIMATH
&
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.3525/2009
BETWEEN:
THE STATE THROUGH
ALAND POLICE STATION
... APPELLANT
(BY SRI. PRAKASH YELI, ADDL. SPP)
AND:
1. ARVIND
S/O. SAIBANNA NARONI,
AGE: 40 YEARS,
2. CHANDRAKANT
S/O. GURUSHANTAPPA BHUSNOOR,
AGE: 70 YEARS,
3. GANGADHAR
S/O. BHANDAPPA BHUSNOOR,
AGE: 43 YEARS,
4. MACHENDRA
S/O. KARABASAPPA,
AGE: 30 YEARS,
5. GORAKHANATH
S/O. KARABASAPPA,
AGE: 23 YEARS,
2
6. VITHAL S/O. SHIVAPPA NARONI,
AGE: 58 YEARS,
7. SATISH
S/O. BASAVANAPPA NARONI,
AGE: 32 YEARS,
8. SIDARAMAPPA
S/O. GURUSHANTAPPA BHUSNOOR,
AGE: 30 YEARS,
9. SHANTAPPA
S/O. SIDARAMAPPA NARONI,
AGE: 45 YEARS,
10. SHRISHAIL
S/O. SHANTAPPA NARONI,
AGE: 25 YEARS.
11. VEERABHADRA
SHIVACHARYA MATHADESHA,
AGE: 52 YEARS,
ALL R/O. KADAGANCHI, TQ: ALAND,
DIST: GULBARGA.
... RESPONDENTS
(SRI. G.G. DODDAMANI, ADV. FOR R1-R6;
SRI. BABURAO MANGANE, ADV. FOR R7-R11)
THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF
CR.P.C. BY THE STATE P.P. FOR THE STATE PRAYING TO
GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 13.03.2008
PASSED BY THE LEARNED FTC-V AT GULBARGA IN
SESSIONS CASE NO.296/05 THEREBY ACQUITTING THE
RESPONDENTS/ACCUSED OF THE OFFENCES
PUNISHABLE U/S. 120(B), 109, 143, 147, 148, 341, 302 R/W 149
OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
3
JUDGMENT THIS DAY BUDIHAL J., PRONOUNCED THE
FOLLOWING:
Date of reserving the Judgment : 17.03.2015
Date of pronouncement of the Judgment : 08.04.2015
JUDGMENT
This appeal is preferred by the State through Aland police station being aggrieved by the judgment and order of acquittal dated 13.3.2008 passed by the Fast Track Court-V, Gulbarga, in S.C. No.296/2005 acquitting the respondents-accused of the offences punishable under sections 120B, 109, 143, 147, 148, 341, 302 read with section 149 of IPC.
2. The appellant has preferred the appeal on the grounds urged at Sl. Nos.1 to 18 of the appeal memorandum.
3. C.W.1-Lingaraj @ Shrishail, son of Shankarrao Denki, resident of Kadaganchi village, permanently residing at Gulbarga lodged a complaint as per Ex.P.1 stating that there is one Sri. Shantalingeshwar Mutt in Kadaganchi village and Gadigeyya Gurushanthaiah, the Matadhipathi of the said Mutt expired and thereafter, as per the customs and traditions of the Mutt, Sri. Somayya Swamy ought to have been brought as Matadhipathi to 4 the said Mutt, instead, one Veerabhadrashivacharya of Matamari village, District Raichur was brought as a Matadhipathi at the instance of one Karabasappa s/o.Shivabasappa Naroni and Sri. Somayya Swamy had been made to leave the Kadaganchi village. Due to this development, it led to disturbance of peace and harmony in the village. Sri. Shantalingeshwar Mutt was having the landed property of about 150-160 acres and Karabasappa Naroni himself was enjoying the income of the said Mutt. For this reason, Revanasiddappa, the elder brother of the complainant, and some leaders in the village were opposing the act of Karabasappa Naroni. Karabasappa Shivappa Naroni started to trouble some of the persons in the village and the said Karabasappa Naroni was murdered at Gulbarga in 1984. In the said case, Revanasiddappa, the elder brother of the complainant, who is deceased in this case, was also one of the accused and in the year 1987, Revanasiddappa was acquitted from the case. In connection with death of Karabasappa, the brothers and relatives of Karabasappa started their illegal acts and attrocities and caused loss to the properties of the complainant. Thereafter, one Arvind Basannappa Naroni, the nephew of Karabasappa Naroni formed a group in the village. In 5 the year 1989, one Iranna Khyar was murdered. In the said case, Arvind Naroni was the main accused along with others and then, all the accused were acquitted from the said case. In the year 1994, there was double murder. In the year 1995 also, again, there was double murder. Even in that case also, Arvind Naroni, Chandrakanth Naroni, Gangadhar, Machendra Naroni, Vittal Naroni, Satish Naroni, Shanthappa Naroni and others were the accused persons, and the persons, who were murdered, were the supporters of Revanasiddappa Denki. Since 20 years, the said persons were having enmity with Revanasiddappa, the brother of the complainant and made an attempt to commit his murder. In the complaint, the complainant has stated that he suspects that the said persons have committed the murder of his brother.
4. On 5.7.2005, morning at 11.00 a.m., Revanasiddappa Denki, the elder brother of the complainant informed the complainant over phone that himself and Madhavarao Patil of Muddadaga together going to Aland on the cycle motor of Madhavarao Patil. In the evening at 6.45 p.m., Beeranna Waggi - PW.4 informed the complainant over phone that his brother Revanasiddappa and Madhavrao were dashed with the jeep and 6 his brother is also murdered by throwing stone on him and Madhavrao Patil has been assaulted severely. Then the complainant become perplex and himself and his father-in-law Revansiddappa Dhotre went to Aland Government Hospital and saw that his brother already dead and Madhavrao Patil was shifted to Gulbarga for further treatment. Complainant came to know that the said incident took place about 5.45 p.m. on 05.07.2005. The main reason for the said incident is in connection with Shantalingeshwar Mutt of their village and because of the said enmity, with criminal conspiracy to finish off the brother of the complainant, 1) Arvind S/o Saibanna Naroni,
2) Chandrakanth S/o Gurushantappa Bhusnoor, 3) Vithal S/o Shivappa Naroni, 4) Machendra S/o Karabasappa Naroni,
5) Gorakhanath S/o Karabasappa Naroni and 6) Satish S/o Basvanappa Naroni together and with the instigation of Veerbhadra Shivacharya Pattadhikari of Sri Shantalingeshwar Mutt committed the murder and hence the complainant requests to take appropriate legal action and justice may be done to him.
5. On the basis of the said complaint, a case was registered in Crime No.134/2005 of Aland Police Station.
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6. After conducting and completing the investigation, the police have filed the charge-sheet against the accused persons for the offences punishable under Sections 143, 147, 148, 341, 307, 302, 109 and 120-B, R/W Section 149 of IPC.
7. After framing the charges against the respondents- accused and after conducting the trial, the trial Court considering the oral evidence of PWs.1 to 23, documents Exs.P1 to P30, Exs.D1 to D15 and MOs-1 to 18, ultimately acquitted the accused. Being aggrieved by the judgment and order of acquittal passed by the trial Court, the appellant-State is before this Court in appeal.
8. Heard the arguments of the learned Additional SPP appearing for the appellant and also the learned counsel appearing for respondent - accused Nos.1 to 6, so also the learned counsel appearing for respondent - accused Nos.7 to 11.
9. Learned Additional SPP during the course of his argument made the submission that the complainant - PW.1 is the brother of deceased Revanasiddappa and looking to the complaint 8 averments under Ex.P1 and his oral evidence, he has narrated in detail about the enmity of the accused persons towards deceased Revanasiddappa. He made the submission that in connection with bringing Somayya Swamiji to Sri Shantalingeshwar Mutt after the demise of Sri Gadigeyya Gurushantayya Swamiji, there were two factions in the village. He made the submission that though PW.1 may not be the eyewitness to the incident, but he has deposed about the motive for the accused persons to commit the murder of his brother Revanasiddappa. He also made the submission that PW.2 - Channaveer @ Babu is the eyewitness to the incident and looking to his evidence, he has clearly stated that himself and CW.3 one Jalandhar had been to Aland to make the purchase of the coconut and as the coconuts were costly at Aland and after attending his work at Aland, they were coming back and at about 5.45 p.m. when PW.2 and Jalandhar were taking tea in the hotel, both the deceased persons came to the said hotel and they met the witness PW.2 and talked to him and then both the deceased went away on their motorcycle informing PW.2 that they will proceed. The Additional SPP further made the submission that the evidence of PW.2 also goes to show that, thereafter PW.2 9 and Jalandhar also proceeded on their vehicle following the motorcycle of the deceased and at that time, the jeep of the accused came in a high speed and overtaking the witness PW.2 proceeded further and the said jeep was stopped near the kankar machine and in the meanwhile, PW.2 also reached the said place and he deposed about the assault made by the accused on Revanasiddappa Denki assaulting with clubs and he was kicked and accused Chandrakant Bhusnur assaulted the Revanasiddappa with knife on the upper limbs and the neck and accused Machendra thrown the stone on the head of Revanasiddappa Denki and accused Arvind Naroni was instigating the other accused to finish off Revanasiddappa. Learned Additional SPP made the submission that looking to the evidence of PW.2, he narrated in detail the manner in which the incident has taken place and the persons who are all assaulted the deceased Revansiddappa. He further submitted that PW.3 is also another circumstantial witness, who has stated that on the date of the incident, as he was not feeling well, he had been to Aland Government Hospital for treatment and after taking the treatment when he was at the Aland bus stand at about 5.00 p.m., Revanasiddppa met with him along 10 with another person on his motorcycle and PW.3 told to deceased Revanasiddappa that he will also come on their motorcycle and for that Revanasiddappa told that already he is having one pillion rider and police will book the case in case if he is allowed to travel on the same vehicle and thereafter those two persons went away on the vehicle asking PW.3 to come through the bus. Hence, learned Additional SPP made the submission that the evidence of PW.3 also goes to show one of the important circumstance that he has seen deceased Revanasiddppa along with another person at the said place. He has also submitted that under the spot mahazar
- Ex.P3, MOs-1 to 11 have been seized. He submitted that PW.7
- Shantappa Denki also spoken in detail about the motive for the accused to commit the murder of Revanasiddappa and he made the further submission that PW.11 - Basavaraj Sirurmath is the Finger Print Expert and he has submitted his report as per Ex.P5 which also connects the accused persons with the commission of the alleged offence. Learned Addl. SPP made the submission that one Jalandhar who traveled along with PW.2 was also an eyewitness to the incident but he has not been examined. He also made the submission that the evidence of PWs.18 and 19 - 11 doctors who conducted the post mortem examination over the dead body of deceased Revanasiddappa and Madhavrao Patil, issued the P.M. reports and looking to the oral evidence of PW.2 - the eyewitness, the post mortem reports - Exs.P17 and P18 and also the inquest mahazars - Exs.P2 and P3 are consistent with each other and established the case of the prosecution that the accused have committed the murder of Revaansiddappa and Madhavrao Patil. Learned Additional SPP also submitted that except the minor discrepancies, the prosecution material is cogent and consistent. The trial Court wrongly appreciated the oral and documentary evidence and wrongly held that the prosecution has failed to prove the case beyond all reasonable doubt. The Additional SPP submitted that looking to the oral and documentary evidence, the findings recorded by the trial Court are not in accordance with the material and not sustainable in law. Hence, he submitted that the prosecution has proved its case beyond all reasonable doubt and submitted to allow the appeal and to convict the accused persons for the charges leveled against them by setting aside the judgment and order under appeal. 12
10. On the other hand, learned counsel appearing for respondent Nos.1 to 6/accused Nos.1 to 6 submitted that the complainant is not the eyewitness and he is a hearsay witness. Looking to his evidence that he left the village Kadaganchi, when he was at the age of four years and permanently residing at Gulbarga goes to show that he has no knowledge about the affairs of the Sri Shantalingeshwar Math at Kadaganchi. Hence, he submitted that he is not a competent witness to speak about the alleged motive for the accused to commit the murder of the deceased. He submitted that though it is claimed by the prosecution that PW.2 Channaveera @ Babu is the eyewitness to the incident. But looking to his evidence, it goes to show that in fact he has not at all personally witnessed the incident and also submitted that even his conduct in not informing about the incident immediately either to the nearest police station or to the relatives of the deceased. If really he was an eyewitness, his conduct is abnormal, so no reliance can be placed on his evidence. Learned counsel also made the submission that he deposed that he had been to Aland along with Jalandhar to purchase the coconut, which is also not acceptable in view of his admission 13 during the course of cross examination that there are big shops at Kadaganchi, since 15 to 20 years and the grocery articles will be sold in the said shops. Learned counsel also submitted that he was not consistent in his evidence and one breadth he deposed that as the coconuts were costly at Aland, he has not purchased the coconut and at another breadth he deposed as the coconuts were not available, he has not purchased the same. It is further submitted that even if it is presumed that he is an eyewitness to the incident, for the sake of arguments and appreciation, without admitting the same, he has not deposed anything how Madhavrao Patil sustained injuries. If really he was an eyewitness and the incident took place in his presence, he could have stated what has happened to Madhavrao Patil and how he sustained injuries. Learned counsel also made the submission, looking to the evidence of PWs.18 and 19/doctors who conducted the PM examination of Revansiddappa and Madhavrao Patil respectively and who sissued the PM reports at Exs.P17 and 18, the medical evidence is totally contrary to the occular evidence and hence, it also goes to show that PW.2 is not a really eyewitness to the incident. He also made the submission with regard to the 14 treatment to Madhavrao Patil, immediately he was admitted to the hospital and till his death, no medico legal records were produced as deposed by PW.19. Learned counsel made the submission that evidence of PWs.3 and 4 also not acceptable in view of the infirmities in their evidence, elicited during the course of their cross-examination and also that they are not the eyewitnesses to the incident. Learned counsel submitted that with regard to the evidence of PW.11/Finger Print Expert, it is the opinion evidence, which is not a conclusive proof and looking to the evidence of other prosecution witnesses, the evidence of PW.11 and his report at EX.P5, will not establish the guilt of the accused. Hence, learned counsel submitted that the Trial Court has rightly appreciated the material and acquitted the accused. There is no illegality and hence, submitted to dismiss the appeal. In support of his argument, learned counsel for respondent Nos.1 to 6 relied upon the following decisions produced along with the memo dated 17.03.2015.
1. AIR-1956-Page No. 526 2. AIR-1975 Page No. 1727 3. CRLJ-1975 Page No. 1500 4. CRLJ-1980-Page No. 914 15 5. CRIMES-2003(2) -S.C. Page No. 268 6. CRLJ-2003 Page No. 1572 7. CRLJ-2002 Page No. 2970
8. CRLJ-2002 Page No. 3737 (SC)
9. CRLJ-2003 Page No. 2025 (SC)
11. Learned counsel appearing for respondents Nos.7 to 11/accused during the course of his argument made the submission that looking to the charge sheet, it goes to show that the vehicle MO.8/motorcycle of the deceased was dashed with MO.17/jeep from behind and thereafter the accused persons assaulted the deceased. Learned counsel submitted that looking to the vehicle MO.5 at the hind side, no damage has been caused and this itself falsify the case of the prosecutions as alleged. Learned counsel made the submission that though the further statement of PW.1 was recorded on the next day and the name of PW.2 that he was the eyewitness to the incident is not at all mentioned. Counsel submitted that from the spot, the police stations are very nearer, even then the alleged eyewitnesses PW.2 or CW.3 Jalandhar have not at all informed the police. If really they have witnessed the incident and there is a delay in registering the FIR and the same has not been properly explained by the prosecution. 16 Learned counsel submitted that with regards to seizure of MO.10 knife, it is the case of the prosecution that it was seized from the spot and it is also the case of the prosecution that it was seized at the instance of voluntary statement of the accused and hence, the seizure of MO.10/knife and the other material objects are not established with satisfactory and acceptable evidence. Learned counsel submitted that with regard to MO.1/stone and looking to its size, the doctor has deposed that it is not possible for a person to lift the said stone and throw it as alleged by the prosecution. Learned counsel made the submission that regarding the evidence of PW.11/Finger Print Expert, he has admitted in his cross- examination that before receiving the requisition from Aland CPI at the spot, he has not received any other requisition. But, he received the telephone message from police control room and he has also admitted that he did not make any note in his records about the receipt of message from control room. Learned counsel also submitted that even PW.11 has admitted in his cross- examination that he did not prepare the detailed chart with regards to, what exactly he did by going to the spot. Learned counsel made the submission that about the classification of loop pattern 17 and whorl pattern, he has not specifically given his opinion about those sub classifications. Hence, counsel submitted that in view of the infirmities in his evidence, his evidence cannot be the basis to form the opinion that prosecution has proved its case. Learned counsel further made the submission that with regards to criminal conspiracy and instigation by accused No.1 to the other accused persons, there is no worth believable material placed by the prosecution. Hence, the learned counsel made the submission that prosecution utterly failed to prove its case beyond all reasonable doubt, as against respondent Nos.7 to 11/accused and hence, submitted to dismiss the appeal.
12. We have perused the oral evidence of PWs.1 to 23, documents at EXs.P1 to P13 and D1 to D15 and material objects at MOs.1 to 18. Even according to the case of the prosecution, PW.2 is the eyewitness and complainant is not an eyewitness to the incident. Let us examine the evidence of the prosecution witnesses adduced both oral and documentary.
13. PW.1 - Lingraj, who was the complainant, deposed in his evidence that on 05.07.2005, at 6.45 p.m., PW.4 - Beeranna Vaggi informed through the phone that as against Revansiddappa, 18 accident has been caused and he has been murdered then immediately, himself and his father-in-law were proceeding to Aland to Gulbarga and while so proceeding on the way, little ahead from Busnoor cross, on the left side of the road, opposite to Kankar machine of Jawali, many people gathered and they saw motorcycle of Madhavrao Patil was lying by the side of the road and it was damaged at the hind side and he has seen one bloodstained black colour stone, weighing 10 to 12 kgs and by the side of the said stone, three clubs were lying. At little distance, one bloodstained knife was lying and one piece of radiator fan of the jeep and head glass pieces of the jeep were lying. Blood was also seen at the same place and piece of a brain was lying at the said place. When he enquired with the people gathered there, people informed that police came to the spot and shifted the dead body to the hospital, then immediately they went to the hospital and at the mortuary, seen the dead body of Revansiddappa and also seen the injuries on the dead body. He enquired with the police that where is Madhavrao Patil and as he sustained injuries, first aid treatment was given to him at Aland hospital then he was shifted to Gulbarga Basaveshwar Hospital and when he was in the 19 police station, he informed the SP of Gulbarga in detail about the history for the said incident and he has also given detailed information about the same and thereafter, he lodged the complaint about the incident to Aland police. He has also deposed that in connection with Sri. Shantalingeshwar Mutt, there were two groups and enmity started between them. The accused before the court are having enmity with the Mutt and because of that reason, the accused themselves have committed the murder of his brother Revenasiddappa. He has deposed that the complaint is Ex.P.1 and signature is P.1(a). At the spot, he has seen, one big size stone and he identified it as M.O.1. He has also seen two wooden sticks and one jali club which are marked as M.Os.2 to 4. He identified backside sari guard of the motor cycle as M.O.5 which was lying on the spot. The broken indicator piece of the motor cycle is identified as M.O.6, the broken radiator of the jeep is M.O.7, hero honda motor cycle which was lying is M.O.8 and the glass pieces of the indicator of the jeep are M.O.9, a knife lying at the spot as M.O.10 and a fiber piece of the jeep is M.O.11. He has also identified the blood stained clothes of his deceased brother as M.Os.12 to 16. Police had recorded further 20 statement of Channaveer - P.W.2, who had come to attend the funeral of Revanasiddappa. P.W.2 informed that he has seen the incident and at the time of committing the murder of Revansiddappa, he had seen Arvind Naroni, Chandrakant Bhusnoor, Gorakhanath Naroni, Gangadhar Bhusnoor, Machendra Naroni, Vithal Naroni, Satish Naroni, Sidramappa Bhusnoor, Shantappa Naroni and Shrishail Naroni present at the spot.
14. In the cross examination by advocate for accused Nos.1 to 6, P.W.1 has deposed that he was born at Kadaganchi village, but he was brought up from his 4th year at Gulbarga only. In his complaint at Ex.P.1, he has stated that on the aspect of murder, he has mentioned more information on the basis of suspicion and he has not personally witnessed the incident. He denied the suggestion that though he left Kadaganchi in his young age and he was residing at Gulbarga, he does not know anything about the Mutt but even then at the instance of P.W.4 Beeranna, he has filed a false case against the accused. Channaveer C.W.2 and Somayya C.W.16 are his own brothers. At the distance of 4-5 kms. from the place of incident, there is Aland police station. 21 From the spot, Kadaganchi village is at the distance of 15-18 kms. and Gulbarga is at the distance of 18 kms. from Kadaganchi village. He denied the suggestion that his father Shankarrao Denki was doing matka business at Gulbarga and by that, he earned sufficient money. Thereafter, his deceased brother Revansiddappa was looking after the said matka business. He denied further suggestion that while doing the said matka business, Revansiddappa was having enmity of many persons and because of that reason, the public conspired to commit the murder of Revansiddappa. He denied the further suggestion that on 5.7.2005 at about 2.30 p.m. itself, somebody must have assaulted Revanssiddappa or committed accident of the vehicle and caused his death. After coming to know about the incident, C.W.4 Beeranna himself and his father-in-law Revanasiddappa Dhotre went to the spot in a car. When Beeranna phoned and informed him about the incident, he did not tell him that accused committed the murder of Revanasiddappa. When they were going to the spot in a car, they had not met the Beeranna on the way. He admitted as true that in his complaint - Ex.P.1, he has not mentioned that blood stained stone, the blood on the ground, the 22 clubs and the knife were lying at the spot. He admitted as true that in his further statement dated 6.7.2005, he has not mentioned that he came to know about the incident from Channaveer - P.W.2. When he lodged complaint Ex.P.1 at the first instance, he mentioned the names of six persons and he further deposed that at that time, as he was having suspicion only against six persons and he lodged the complaint.
15. In the cross examination by advocate for accused Nos.7 to 11, P.W.1 has deposed that in the material objects before the court, there are no indications that the broken fan piece of the radiator and broken pieces of the indicator are belonging to the jeep. He admitted as true that Gulbarga-Aland road is a national highway and good number of vehicles are plying everyday and accidents will happen on the said road and such type of material objects were lying on the road and by the side of the road. He denied the suggestion that himself, his father-in-law, Veeranna and police officers after detailed deliberation and discussion till late night and then he filed the false complaint against the accused. He admitted as true that in Ex.P1, there is no mention in which place on which date and at what time it was prepared. 23
16. Looking to the evidence of PW.1, he himself has deposed that he is not an eyewitness to the incident. But, he deposed that when he was in the police station, he informed Gulbarga S.P. about the history and detailed information in connection with the incident. This goes to show that it was before, he lodged the complaint as per Ex.P1. Then what is the detailed information and the history he has furnished to S.P. Gulbarga was not placed before the Court by the prosecution. It is necessary that what information he has furnished at the first instance about the history of the incident, the S.P. ought to have reduced the same into writing and the prosecution ought to have produced the same before the Court which is not done in this case and it raises reasonable doubt as to whether he has narrated same thing as he narrated in Ex.P1 before S.P. Gulbarga or he has narrated something else other than what he has stated in his complaint - Ex.P1.
17. PW.2 - Channaveer @ Babu is another important witness as per the prosecution and prosecution claims that he is the eyewitness to the incident. He deposed in his examination-in- 24 chief that on 05.07.2005, himself and C.W3 - Jalandhar went to Aland on his motorcycle. They left the village Kadganchi at 3.00 p.m. and reached Aland at 4.00 p.m. He went to Aland to bring the coconut and when he enquired about the coconut and as they were costly, thinking that he can purchase coconut in his village Kadaganchi, they returned back. After attending his other work at Aland, at about 5.15 p.m. when they were taking tea at the hotel, deceased Revanasiddappa Denki and one Madhavrao Patil came on the motorcycle and talked to him then they went away and he also went on his motorcycle along with Jalandhar behind the vehicle of Revansiddappa proceeding towards Kadaganchi. When his motorcycle was proceeding at Aland Check-post, the jeep belonging to accused No.1 - Arvind Naroni was proceeding in a high speed and went ahead overtaking his vehicle. Who was driving the said jeep and who are all others in the said jeep it was not possible for him to see the same. After proceeding the distance of 1 km near by Kankar machine, the said jeep was stopped and he also reached the said place. After seeing the jeep at the said place, he also stopped his motorcycle at the distance of 10 feet and when he saw, Gorakhanath Naroni - A5, Vithal 25 Naroni - A6, Satish Naroni - A7, Shantappa Naroni - A9 and Shrishail Naroni - A10 were assaulting Revanasiddappa with the clubs and Revanasiddappa was lying on the ground. After seeing the same, he screamed, but even then the said persons did not listen to his scream and in the meanwhile, Gangadhar Bhusnoor - A3 and Sidramappa Bhusnoor - A8 were kicking Revanasiddappa and Chandrakant Bhusnoor - A2 assaulted Revanasiddappa on his upper limbs and on the neck with knife and Machendra Naroni - A4 took the stone lying on the ground and thrown on the head of Revanasiddappa. Accused No.1 - Arvind Naroni was instigating the other accused persons to finish off Revanasiddappa. At the said place, one hero honda motorcycle was lying in a damaged condition and Madhavrao Patil was also lying on the ground unconscious. After seeing them and thinking that they will inform to others about the incident, Arvind Naroni asked to other accused to assault them and after seeing all of them coming towards them, himself and Jalandhar went away on their motorcycle. After going to the village when he wanted to inform about the same to the relatives of Revanasiddappa Denki, he came to know that they have already received the message and went to 26 Aland. When himself and Jalandhar witnessed the incident, it might be 5.30 to 5.40 p.m. The jeep, which was at the spot was bearing No.KA-32-8659. The cycle motor, which was lying was bearing No.KA-32/E-6614. He can identify the clubs used by the accused to assault Revanasiddappa and they are MOs-2 to 4. The knife is M.O.10, the stone is M.O.1 and the persons who were assaulting Revanasiddappa Denki are the accused before the Court. The motorcycle, which was lying damaged is M.O.8. The jeep is M.O.17. In the cross-examination by counsel for accused Nos.1 to 6, he deposed that in his village, there are wholesale Kirana shops of one Sharanappa Bhute and Vishwanath Sawaleshwar. He also admitted as true that there are big Kirana shops of one Shivraj Chawla, Vithalrao Golkar, Madivalappa Vani, Revanasiddappa Tadkal and Shivappa Chinde and those shops are in existence since 15-20 years and those shops owners are selling grocery articles to him. He also deposed that as the items are costly in their shops, he is purchasing the items from outside. At Kadaganchi, since 15 years, there is a Government Hospital and there is a private hospital of one Mangalbabu Shah since 15 years. So also there are private hospitals in existence since 10-15 years of 27 one Mallikarjun Madiyal and Baburao Banashetty. Normally for small ailments, the people of his village are getting the treatment in the said hospitals. CW.16 - Somayya is his brother. About the said incident, excepts CW.4 -Beeranna and the police, he has not informed to any other persons. In his house there are totally 6 persons. His eldest son is 12 years old, daughter is 9 years old and other children are 5-6 years old. He admitted as true that in his statement before the police, he has not stated that as the grocery items in his village are costly, he went to Aland to purchase the same. He admitted as true that in his statement, he has mentioned before the police that he has seen the jeep for the first time, which was nearby the Kankar machine. The police have read over the statement to him and he has admitted it as true. That in his statement, he has not mentioned that with the knife they have assaulted on the left side of the neck of Revanasiddappa. In his statement before the police, he has not stated that at the time of the incident two wooden raptors were used. So also he has not mentioned in his statement before the police that about the incident he has informed CW.4 - Beeranna. On the next day of the incident, he had not been to Aland. As he was having the fear, 28 he has not informed the Narona police about the incident. On that day he has not purchased any items at Aland, as they were costly. In his statement before the police, he has mentioned that at 3.00 p.m. he left Kadaganchi and reached Aland at 4.00 p.m., as the grocery articles they wanted have were not available. He further deposed that after going to the village, he wanted to inform about the same to the relatives of Revanasiddappa. He has not made any attempt to inform the same to Beeranna - PW.4, the friend of Revanasiddappa. He has admitted in his evidence that he has not stated before the police as per Ex.D1. According to him, five persons assaulted Revanasiddappa with clubs and they assaulted with clubs by raising their hands and with full force. Accused No.2-Chandrakant Bhusnoor assaulted Revanasiddappa with knife for 2-3 times. In the cross-examination by advocate for accused Nos.7 to 11, he denied the suggestion in his statement before the police that he has not stated when he came near Aland check post, jeep of Arvind Naroni came from Aland side, overtake his vehicle and proceeded. He denied further suggestion that he has not stated in his evidence that after crossing the place of the incident towards Gulbarga, at 10 feet, he stopped his 29 motorcycle and on sitting on the motorcycle, he has seen the incident. Normally, 15 to 20 persons are working in the Kankar machine. But, on that day no one was working in the Kankar machine. He has admitted that from Gulbarga to Aland, it is a national highway and good numbers of vehicles are moving on the said road. So, looking to the evidence of PW.2 that he has admitted that since 10 to 20 years, there are many Kirana shops and all the grocery articles are available in the said shop. Looking to the cross-examination of PW.2 at one breadth, he deposed that coconuts are costly so he has not purchased and on another breadth, he deposed that coconuts are not available so he has not purchased. Even with regard to the motorcycle, there is no acceptable evidence. Looking to his conduct, though he claims that he has personally witnessed the incident, but he has not at all informed the same either to the police or to the relatives of Revansiddappa. Even, he has deposed that he has not inform the same to his family members, wife and children, which is most improbable and abnormal conduct. When he has seen ghastly murder, his normal conduct would have been to inform the police or atleast to relatives of the deceased. Even in the further 30 statement of PW.1- complainant, there is no mention that Pw.2- Channaveer @ Babu is the eyewitness to the incident. It has come on record, while conducting the Inquest Mahazar on 05.07.2007. It was not known that who are the assailants and there was only suspicion. So all these material goes to show that the prosecution has planted PW.2, as the eyewitness to the incident. The evidence of PW.2 is not worth believable.
18. PW.3 - Sidramappa is also one of the witness, who claims that on the date of the incident, as he was not feeling well, he went to Aland Government Hospital at 2.30 p.m. and he was still in Aland hospital premises. The doctor gave him injunction and also the prescription for the tablets. He purchased the medicine in the medical shop, which was opposite to Aland bus stand. At 5.00 p.m., when he was at Aland bus stand, Revanasiddappa Denki met with him. At that time, along with Revanasiddappa on the motorcycle, there was another person and he informed Revanasiddappa that he came to Aland hospital for treatment. When he asked them, he also wanted to go along with him on their motorcycle. Revanasiddappa told that police will book a case and hence it becomes difficult and they went telling 31 him to come through the bus. In the evening, he was travelling in the bus from Aland to Gulbarga, to go to Kadaganchi and after passing the city outskirts of Aland and nearby the Kankar machine, as there were many vehicles, the bus was also stopped and passengers alighted and he saw that Revansiddappa and another person, who was on his motorcycle Muddadagi Gowda were lying on the ground. Their motorcycle was also damaged and it was lying there and there was one stone lying. Revanasiddappa head was broken and one knife was lying. Then he gave telephone number of Shankarrao, the father of Revanasiddappa to somebody and through the mobile phone of that person, he made an attempt to inform about the incident but he was not able to talk over the phone. Thereafter, with the help of another telephone number, which he was having and through the mobile of some person, he informed about the same to Beeranna of Kadaganchi village. When he informed that Revanasiddappa was murdered, Beeranna- PW.4, in turn informed him to stay there only and immediately they will come. As he was not feeling well, he went away. After seeing the incident, he suspected that in connection with Mutt subject Veerbhadra 32 Shivacharya and his supporters Naroni family and Bhusnoor family members have committed the murder of Revanasiddappa. He identified three clubs as MOs.2 to 4, knife as MO.10 stone as MO.1 and motorcycle of Revanasiddappa as MO.8. He denied the suggestion that he is the relative of Denki family and at the instance of complainant - Lingaraj and PW.4, he has given the false evidence. Looking to his evidence in the cross-examination that in his village Kadaganchi, there are Government hospitals and private hospitals and he was not taken the treatment in the said hospital and after purchasing the medicine, receipt was given to him but, he has thrown there only, as it was not useful to him and he does know the name of medical shop. He denied the suggestion in his statement before the police that on that day, after getting the treatment and he has gone to his village and he was travelling in the bus from Aland towards Gulbarga. He has not purchased the bus ticket, as the conductor was on the front side and issuing tickets to the passengers and said conductor asked him also to purchase the ticket. He does not know the name of the person, through whom he contacted Beeranna, by giving the phone to the said persons. He has not stated before the police in 33 his statement, as per Ex.D2 that he has not stated the motorcycle umber KA-32/E-6614. He has not stated in his statement before the police that there was a jeep and its number was KA-32/8659 as per Ex.D2. He has not stated as per Ex.D4, in his statement that dated 05.07.2005, through the mobile phone he informed PW.4- Beeranna that at that place, murder took place. He has not stated in his statement before the police, as per Ex.D5 that his name was Madhavrao Patil. He has not requested the conductor of the bus that he will give the complaint to the police station and hence he may be taken to the police station. He has not stated before the police, as per Ex.D6 that "motorcycle was dashed and made him to lye and assaulted with the clubs, with stone, with sharp edged weapons, stabbed on the neck and by throwing the stone on the head, murdered". In the cross-examination by the counsel for Accused Nos.7 to 11, he deposed that he has stated before the police as per Es.D7. Looking to the evidence of this witness, it goes to show that he had not been to the hospital at Aland for the purpose of treatment and there is no cogent and acceptable material and only for the purpose of this case, he has been planted.
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19. PW.4 - Beeranna deposed in his evidence in the examination-in-chief that on 05.07.2005 at 6.00 or 6.30 p.m. when he was in his house at Kadaganchi village, PW.3 - Sidramappa phoned to him informing that on Aland road near by kankar machine, Revanasiddappa Denki has been murdered. He informed him that the people gathered they were talking that it is the accident but in the said murder he suspects that there is a hand of A1 - Arvind Naroni. After coming to know the same, he informed PW.3 to stay there only and he will also come there. Then himself and the village people went in the jeep to the spot and saw the dead body of Revanasiddappa Denki and the stone, club, knife and motorcycle were also lying by the side of the dead body and Madhavrao Patil was lying unconscious. He sent Madhavrao Patil in one jeep for treatment. Many people gathered there and police also came there. Police have taken the photographs of the spot and then in another jeep, they took the dead body of Revanasiddappa to Aland Hospital and in the evening, he informed about the same over phone to PW.1 - Lingaraj. On the next day of the incident when he had been to Dharmaling Ashram at Kadaganchi, PW.2 - Channaveer met him 35 and informed that on the previous day, he has seen the incident and he wanted to inform the same to PW.4 on the previous day itself but he came to know that they went to Aland. So he has not informed the same. Whatever the PW.2 informed him, the same he has informed to PW.1 - Lingaraj at the time of funeral in his presence. During the course of cross-examination by learned counsel for Accused Nos.1 to 6, he has denied that since 20 years he was thinking that for one or the other reason he wanted to involve Narona family people in one or the other case. He denied the suggestion that though Revanasiddappa Denki expired in the road accident, but taking the undue advantage of the same, he called PW.1 - Lingaraj Denki and with due deliberation, he got filed false case through the complainant against the accused. He admitted as true that earlier, he made an attempt to bring CW.16 - Somayya as a Swamiji to Kadaganchi Mutt. He deposed that he has not stated before the police as per Exs.D12, D13, D14 and D15. In the cross-examination by the learned counsel for Accused Nos.7 to 11 he deposed that his village is 10 K.M. from Narona. There is Police Station at Narona and after Sidrammppa
- PW.3 informed him about the incident he, came to know that it 36 is a murder. Even then, it was not struck to him to go to the Narona police station and to lodge the complaint. After going to the spot, about he talked with Lingaraj and informed him about the incident and the talks between himself and Lingaraj was recorded in his mobile but he has not shown it to the police. On 05.07.2005 itself at 7.00 p.m., the police conducted the inquest mahazar over the dead body of Revanasiddappa
20. PW.11 - Basavaraj, Finger Print Expert deposed in his evidence in the examination-in-chief that on 06.07.2005 at 9.00 a.m., he received the telephone message from Gulbarga Police Control Room to visit Madiyal village and examined a Mahindra jeep in Aland Police Station Crime No.134/2005. Accordingly, he went to Madiyal village at about 11.00 a.m. and examined one Mahindra jeep bearing Regn. No.KA-32-8659. He has issued the scene of offence attendance certificate. On 29.08.2005, he received finger print slips of 10 accused persons, which he has named in the deposition at Sl.No.1 to 10. He examined chance prints with finger prints of above named 10 accused persons by using magnifying glass and marked the identical finger prints as S1, S2 and S3 on the finger print slips of Gorakhanath - A5, 37 Chandrakant - A2, Machendra - A4 and Arvind - A1 respectively. On 02.09.2005, he sent the chance prints and the marked identical finger prints to the Photo Section Office of Superintendent of Police, Finger Prints Bureau, CID Bangalore for enlarge finger print photographs. On 07.10.2005, he received the said enlarge finger prints photographs and on 10.11.2005, he examined the finger print photographs, marked identical ridge characteristics with red ink of the enlarged finger print photographs and issued his opinion along with grounds of opinion. He sent his opinion to C.P.I., Aland on 12.10.2005. The said report is at Ex.P5. He had also sent 5 positive enlarged photographs with his report to C.P.I. Aland. The said 5 photographs are at Exs.P6 to P10. He has brought the original lifted chance finger prints, which are 9 in number. The original chance prints taken by him are in two sets and they are together marked as Exs.P11 and P12. In the cross-examination, he deposed that he did not prepare the detailed chart with regard to what exactly he did by going to the spot. Before taking chance finger prints, he followed the 6 methods prescribed for finger print experts. He denied the suggestion that he did not examine 38 chance prints on that vehicle by going to the spot. He denied the suggestion that said jeep was not at all present at the spot and he has prepared false report at the instance of the police and giving false evidence. He admitted as true that out of the 4 finger prints opinion given by him, 2 prints are of loop pattern and the remaining 2 are of whorl pattern. He admitted as true that in loop patterns again there are classification and in his report - Ex.P5, he has not specifically given his opinion as regards to which class of these 2 loop pattern pertains to. He denied the suggestion that to give an opinion as an expert, he shall first take the position of delta and with reference to delta only, the distance of different types of ridges are to be mentioned. He admitted as true that in whorl pattern also, there are different types. He denied the suggestion that he has given his report - Ex.P5 only after the concerned police supplied him with the necessary materials. So looking to his evidence and the report, he has admitted that he has not prepared the detailed chart with regard to what exactly he did by going to the spot and also admitted that about the different classification of loop pattern, he has not mentioned in his report - Ex.P5.
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21. Now coming to the medical evidence of PW.18 - Dr. Suchitra, she has deposed in her evidence that on 05.07.2005 at 11.45 p.m., police constable 943 by name Shantayya brought requisition with the dead body of Revanasiddappa for the purpose of post mortem examination. Accordingly, she conduced P.M. examination from 11.45 p.m. to 1.00 a.m. in the hospital mortuary and noticed the external injuries No.1 to 8 as mentioned in her deposition. About the internal examination on dissection of the body, she noticed about the internal organs as mentioned at para Nos.1 to 7 in her deposition and further deposed that in her opinion, cause of death was due to Neurogenic shock, secondary to multiple injuries over the body. Time since death was 8 to 12 hours approximately prior to post mortem examination. At the time of P.M. examination, along with her, her colleague medical officer Dr. A.M. Bujruke - CW.29 was also present. The P.M. report is Ex.P17 and her signature is P17(A). Injury Nos.1 and 8 mentioned in the P.M. report may be caused by assaulting with knife and she has seen the knife - M.O.10. Injury Nos.4 and 5 may be caused by assaulting with clubs - M.O.2 to 4 shown to her, but not injury Nos.2 and 3. Injury Nos.6 and 7 may be caused by 40 assaulting with stone - M.O.1. In the cross-examination by the learned counsel for accused Nos.1 to 6, she has deposed that the police officer or the investigating officer of this case have never shown her any weapons to examine them and to give her opinion. She has seen the weapons M.Os.1 to 4 for the first time. She admitted as true that one edge of the knife - M.O.10 is blunt and the other edge is very sharp and if such weapon is used for stabbing, in that event, sharp edge of the weapon will cause clear cut edges to the injury and the blunt edge would cause irregular edges. It is true that M.O.10 - knife is having sharp pointed one. It is true that injury Nos.1 to 3 mentioned in Ex.P17 are incised wounds and by using weapon like M.O.10 and by stabbing with such weapon they may not be caused. It is true that since injury Nos.1 to 3 referred above are having greater length and depth is 1 cm and as such they may not be possible to cause by using weapon like M.O.10. It is true that depth of injury No.8, mentioned by her as 0.5 cm in both (a) & (b) portions cannot visible to the necked eyes and therefore, it is not possible for causing such injuries with the weapon like MO.10. It is true that in Ex.P17 or in the PM register, she has not mentioned whether 41 injury Nos.1 and 8 were horizontal or vertical to the body. She admitted as true that it is not possible for her to say exactly at what distance these injuries were found on the neck. Injury No.6 mentioned in Ex.P17 is not an external injury. Injury No.6 referred above may be caused as a result of injury No.7. She denied the suggestion that she has not given real truth regarding the observation of the injuries on the body and at the request of concerned police she has given false opinions. She admitted as true that injury Nos.2 and 3 are not penetrating wounds. She admitted as true that injury Nos.1 to 3 and 8 could never be caused by using weapon like MO.10. She admitted as true that to cause incised wounds using of weapons having sharp edges are required. She admitted as true that while looking to the wooden rafter MO.2, all its four edges are not sharp and they are in ragged shape. It is true even by using Jali stick - MO.4 and if the assault is made, it cannot cause the injuries of having uniformity in shape. It is true that the surface of MO.4 - Jali stick is very rough and it has got knots throughout. It is true even by using MOs.2 and 4, injury Nos.1 to 3 and 8 cannot be caused. It is true even injury No.4, which was lacerated wound, may not be possible to be 42 caused by assaulting with above said MOs.2 and 4. It is true that stone MO.1 before the Court is heavy stone and a person cannot throw it. It is true, as per their findings given in PM report at Ex.P17, the death of deceased was instantaneous. It is true as per their finding given in Ex.P17, time since death was 8 to 12 hours. Since they conducted the post mortem at 11.45 p.m., the approximate time of death of a person may be between 11.45 a.m. and 3.45 p.m. on 05.07.2005.
22. PW-19 - Dr. Ambaraya, Medical Officer, Government Hospital at Aland, deposed in his evidence, in the examination in chief that on 05.07.2005, in their hospital, Lady Medical Officer Dr. Suchitra - PW.18 conducted PM examination on the dead of one Revanasiddappa in their hospital mortuary and at that time he was also present with her and he has also signed on PM report at Ex.P17 and his signature was at Ex.P17(b). On 07.07.2005, he received the requisition from PC No.709 of Aland police station with dead body of one Madhavrao S/o Shivasharanappa Patil for the purpose of PM examination. The requisition was in respect of Aland P.S. Crime No.134/2005. He conducted PM examination from 1.00 a.m. to 2.30 a.m. and noticed the external injuries as 43 mentioned at serial Nod.1 to 6 in his deposition and also noticed two internal injuries mentioned at serial Nos.1 and 2 in his deposition. The cause of death is due to cardio-respiratory failure due to injury to the right and left lungs and fracture of ribs on the right side Nos.2 to 7 and multiple abrasions on the body. Time since death was 12 to 24 hours prior to PM examination. He issued PM report as per Ex.P18 and his signature is at Ex.P18(a). He has seen the clubs and wooden rafters before the Court, which are MOs.2 to 4 and by using them, the external injury Nos.1 to 6 found on the dead body, mentioned in the PM report at Ex.P18 cannot be caused. In the cross- examination by learned counsel for accused Nos.1 to 6, he deposed that except receiving the requisition, he has not received other information or reports, while conducting PM examination. He has not treated the deceased Madhavrao Patil. Even the concerned police did not produce any medical records for having given the treatment to the deceased Madhavrao Patil in any hospital. But, he has deposed that at the time conducting PM examination, he had seen the medical records like chest x-ray etc. of the patient, who was treated in Hyderabad hospital. On going through those records, 44 he came to know that it is a medico legal case. Though it is a medico legal case, he did not retain those records with him. He admitted as true that now without looking to those hospital records of Hyderabad, he cannot say exactly the cause of death of deceased Madhavrao Patil. So that it was not an instantaneous death but the death was after some time. He himself prepared in his handwriting PM report at Ex.P18. At the time of giving evidence in the Court, on that day by looking to Ex.P18, he came to know that there was a mistake in mentioning the hour of conducting PM examination. He has wrongly mentioned as 2.30 p.m. instead of 2.30 a.m. He admitted as true that the above said mistake with regard to hour of conducting PM examination mentioned in Ex.P18 has been noticed by him, at the time of cross-examination. He admitted as true that as a medical officer, he can give correct cause of death of a person by looking to the previous treatment given to that person and also post mortem consequences. It is true unless those things are seen by him due to lapse of more than 2 years and 3 months after conducting PM examination, now he cannot say the cause of death of the deceased. He has not mentioned in Ex.P18 about clotting of 45 blood on any of the external injuries. It is true that time since causing injuries was quite different from time since death and as such he has mentioned only time since death in Ex.P18. It is true that now it was not possible for him to give exact time of causing such injuries. He admitted as true that to say the age of injuries and contusion, the colour of contusions is a major factor. Even some times, in the natural death of persons also there will be a congestion of lungs, kidneys and other internal organs.
23. PW.21 - Shivashankar Lalappa Zandekar-CPI deposed in his examination-in-chief in detail about the investigation that he has conducted. He deposed that on 05.07.2005, when he was in Narona police station, PSI Aland CW.33 informed over the phone that one murder case has been registered in Aland police station. Then he left Narona and reached Aland police station at 9.15 p.m. and CW.33-PSI gave the file of the said case to him. Immediately, he went to Aland Government Hospital and seen the dead body of Revanasiddappa Denki in the hospital dressing room. In the presence of PW.5 - Shivashankarappa and PW.6 - Sharfoddin, he conducted inquest panchanama as per Ex.P2 from 10.00 p.m. to 11.30 p.m. and Ex.P2(c) is his signature. Then through PC 933 - 46 Shantayya, the dead body was given to the doctor for PM examination. Then he also came to know that in the same incident Madhavrao Patil, who was also assaulted, who was in unconscious stage, was sent to Gulbarga hospital for further treatment and as he received the information that the jeep involved in the case is Mahendra company of silver colour, belongs to accused No.1 Arvind Naroni of Kadaganchi village and he sent the information to neighboring police station to trace the said jeep. On 06.07.2005, he visited the spot and in the presence of PW.5 - Shivashankarappa and PW.6 - Sharfoddin, conducted the spot mahazar and spot was shown by the complainant and the same was at Ex.P3 and Ex.P3(c) was his signature and under the said mahazar, the items mentioned at Nos.1 to 9 in PF were also seized and so also the vehicle. He identified the material objects before the Court. PC.933 came back after PM Examination of Revansiddappa and produced the clothes of deceased and he secured the punch witness PW.16 - Parameshwar and CW.27 - Devindrappa and in their presence, seized clothes MOs.14, 15 and 16 under the mahazar at Ex.P.19 and his signature was at Ex.P19(a). PSI Nimbaraga contacted over the phone and 47 informed that near Madiyal gram, by the side of the road, in ditch there is one silver colour jeep bearing No.KA-32/P-8659 and thinking that it may be the jeep pertaining to the murder case and as he was informed by the people gathered by telling that the said jeep belongs to Arvind Naroni. Then he went to the said place and in the presence of punch witnesses i.e., CW.24 -Basavaraj and PW.15 - Guranna, seized the jeep under Ex.P15 and his signature was at Ex.P15(b). Then he came back to Aland and at that time, CW.30/PSI- D.B.Patil came back and informed him that the dead body of Madhavrao Patil was brought from Hyderabad and it is kept in Government Hospital at Aland. Then he went to Aland hospital and saw the dead body of Madhavrao Patil and in the presence of punch witnesses i.e., CW.22 - Muragappa and PW.13/Veeranna, conducted the inquest panchanama as per Ex.P13 and Ex.P13(b) is his signature. Then, the dead body was sent for PM examination and he has also recorded the statement of CW.14/Shobhavati and CW.15 - Sharanappa @ Shivasharanappa, who are the relatives of Madhavrao Patil. After recording the inquest mahazar and spot mahzar he has recorded the voluntary statement of accused persons i.e., Arvind Naroni, 48 Chandrakant Bhusnoor, Gangadhanr, Shantappa Naroni and Shrishail Naroni and accused No.2 - Chandrakant Bhusnoor stated in his voluntary statement that he has hidden the knife and he will produce the same at the spot. He went to the said place with two punchas namely CW.28-Shamrao and PW.16- Parameshwar and as per the say of accused No.2, himself and punch witnesses went in the jeep nearby Koralli cross and below the bridge, the accused No.2 took out one blood stained knife and produced in the presence punch witnesses and he has seized it and prepared the seizure mahazar from 10.00 a.m. to 11.00 a.m. as per Ex.P21 and his signature is at Ex.P21(a). The knife, which was seized under Ex.P21 was MO.10. Then, he came to the police station. He has obtained the finger impressions and the photographs of those five accused persons. On 20.08.2005, he sent the finger impressions of 10 accused persons to the police inspector Gulbarga, Fingerprint Bureau for examination and report. On 31.08.2005, he sent 15 seized articles to FSL Naganhalli at Gulbrga. On 12.09.2005, as he was transferred from Aland, he handed over the charge to CPI Mane. During his investigation time, he asked Basavaraj Sirurmath to take the 49 chance finger prints from the jeep - MO.17 and accordingly he took the same in his presence. In the cross-examination, he has denied the suggestion that on 05.07.2005 in the midnight and on 06.07.2005 at 1.00 a.m., himself, complainant - Lingaraj and Beeranna -PW.4 all together deliberated and false case is registered. He denied the further suggestion that while handing over the further investigation to CW.35, he created all the documents as per his convenience. He denied the suggestion that accused No.2 - Chandrakant has not at all given voluntary statement, nor produced the knife - MO.10 and he himself has planted the same. He admitted as true that whenever the arrested accused were produced before the Court, he has to produce the case diary but, in this case, he has not produced the case diary. Basavaraj Sirurmath - PW.11, the Finger Print Expert is an Officer belonging to their department. He admitted that with regard to he making a request to PW.11 to come to the spot and to take the chance finger prints and to examine the same, he has mentioned the same in the case diary, but he has not produced the case diary before the Court. From Aland Police Station, he informed PW.1 - Finger Print Expert. Even about that also, he 50 has not produced the case diary before the Court. He has sent requisition in writing to PW.11. He admitted as true that generally, whenever such written requisition is sent, its copy will be retained in the file. He denied the suggestion that himself and his superior officers with an intention to examinePW.11 - Basavaraj Sirurmath in this case, have created the documents. He admitted as true that whenever he is investigating any case and a person injured took treatment in the hospital, he has to secure the documents from the Medical Officer. During his investigation, he came to know that deceased Madhavrao Patil took the treatment at Gulbarga and Hyderabad Hospitals, but he has not obtained the documents about the treatment of Madhavrao Patil. He has also admitted as true that in medico legal cases, being the investigating officer, he has to conduct the inquest panchnama at the place where the person is dead. He admitted as true that in Ex.P1 - complaint, it is mentioned that there is a suspicion in respect of totally 8 persons. During his investigation, in respect of accused No.11, he has not recorded the statement of any witnesses. It is true that in Ex.P2 - inquest mahazar of Revanasiddappa, it is mentioned that there is a suspicion about the said incident in 51 respect of the persons mentioned in column No.13. He denied the suggestion that in both the inquest mahazars under Exs.P2 and P13, he has not seen the dead bodies and those mahazars were prepared subsequently. He admitted as true that in Ex.P13 - inquest mahazar in the last page, the time mentioned for commencement of the inquest mahazer at 22.30 hours has been over written. After seizing the jeep - MO.17, he informed his staff to take it to Aland and then he went to Gulbarga. He admitted as true that whenever he seized any object and asked some other persons to take it to the particular place, there will be the finger impressions of the said person on the said object. On that day, himself and PW.11 - the Finger Print Expert together have not at all inspected the vehicle. CW.3 - Jalandhar and PW.2
- Channaveer in their statements have not stated that the jeep dashed to the cycle motor from behind. He denied the suggestion that in Exs.P2 and P13 at column No.11, purposely he has mentioned that the motorcycle was dashed from behind with the jeep and the person made to lie on the ground and thereafter, assaulted with stone and clubs and caused the grievous injuries and committed the murder of Revanasiddappa and Madhavrao 52 Patil has been severely injured and it appears clearly and he himself made such a writing. He admitted as true that in Exs.P2 and P13 - inquest mahazars, there is no mention that knife has been used to assault. So also in Ex.P1 - complaint it is not mentioned that the assault was made with the reaper raptors. In this case, during the investigation, he has not referred the clubs to the Medical Officer so as to ascertain the possibility of a person sustaining injuries after assault with such clubs and reaper raptors. Similarly, he has not referred the knife to the Medical Officer. He admitted as true that the place from where MO.10 - knife has been seized is a public place and there is a possibility of any person coming to the said place. On 06.07.2005 in the evening, he recorded the statement of PW.3 - Sidramappa at Kadganchi village and according to him, after the incident, the person who has seen Madhavral Patil is, Sidramappa - PW.3. In this connection, the mention made in column No.10 of Ex.P13 is true and because of that reason only, in column No.13 of Ex.P13, the names of all the 11 accused persons are not shown. He denied the suggestion that in column No.13, purposely he has mentioned that there is a suspicion against those 11 persons. Immediately after 53 Ex.P2 and P13, he has not sent those documents to the Court. In the complaint lodged by Lingaraj, neither in the complaint nor in his statement, it is mentioned that at the spot, the broken indicator and the pieces of fiber in respect of the indicator and the damaged motorcycle were lying. Similarly, in the complaint and in the further statement, it is not mentioned that at the said place, the stone - MO.1 having the bloodstains was also lying. It is also not mentioned in the complaint and the further statement of the complainant that two reaper raptors and one Jali club were lying at the spot. So also one knife. It is not mentioned in the complaint or in the further statement that broken headlight pieces of the jeep, broken radiator and indicator pieces were lying at the spot. It is not mentioned that at the said place, there were bloodstains. It is not mentioned that at the said place, broken indicator and sari guard of the motorcycle were lying. PW.2 - Channaveer stated before him as per Ex.D1, but he has not stated in his statement before him that accused Chandrakant assaulted on the upper limbs of Revanasiddappa with knife. In his statement, PW.2 has not stated that at Kadaganchi, coconuts are costly and to purchase the coconuts, he had been to Aland. He has not stated in his 54 statement that on that day, behind Revanasiddappa Denki, he also followed from Aland on his motorcycle. He has not stated in his statement that when the incident took place, it was 5.30 p.m.
24. Even PW.2 has not stated in his statement that when he was near Aland check-post, the jeep of Arvind Naroni came from Aland from his behind and went away by overtaking his two wheeler. He has not stated in his statement that the said jeep was stopped after proceeding 1 k.m., nearby the Kankar machine and himself after crossing the spot, stopped his motorcycle towards Gulbarga side, at the distance of 10 ft. and sitting on the motorcycle, they have witnessed the incident. PW.3-Sidramappa has stated before him as per Exs.D2 to D7. He has not stated in his statement that he had been to Aland Government Hospital for treatment so also he has not stated that at the spot, the knife was lying. He has not stated that at the spot one Jali stick, two reaper rafters were lying and one stone was also lying. PW.4 - Beeranna Vaggi has stated before him as per Exs.D1 to D15. In the cross- examination by the learned counsel for accused Nos.7 to 11, he deposed that they have maintained the logbook in respect of the vehicle of CPI office. Whenever he visits the police stations, 55 within his jurisdiction, the same will be entered in the station house diary about the date of his visit and the time. When his writings in Ex.P13-Inquest Panchanama, he has to mention the date of the earlier diary writings but, he has not written the same. In Ex.P13-Inquest Panchanama of Madhavrao Patil, as there was no complete information, it has mentioned that there was suspicion on the persons whose names are mentioned in column No.13. It is true that in the anticipatory bail order of accused No.11, this Court has mentioned that the Investigating Officer has not collected any material in respect of conspiracy said to have been made by accused No.11. He denied the suggestion that during the investigation in his presence, accused Nos.6 to 11 have not at all given their voluntary statements.
25. PW.22 - Druvaraj, PSI deposed in his evidence, in the examination in chief that on 05.07.2005, at 6.00 p.m., when he was in the police station at Aland, he received the information over the phone that nearby the Kankar machine, on Gulbarga road, two persons were severally injured and out of two, one person was dead and another one injured was still alive. Immediately, he along with his staff went to the spot. He has seen one Hero 56 Honda motorcycle bearing No.KA-32/E-6614 was lying there in damaged condition. The people were visiting the said place and came to know the dead persons name as Revanasiddappa and the person lying injured name was Madhavrao Patil. Immediately, he shifted the injured Madhavrao Patil to Gulbarga hospital for treatment. At the spot, he has seen stone, clubs and he came to know that it was murder. By that time, as there was possibility of traffic jam, as many number of people are gathering there, he informed the same to the superior officers and immediately sent the dead body to Aland Government Hospital. On that day, during the night at 8.00 p.m., when he was in the police station PW.1-Lingraj, the brother of the deceased Revanasiddappa came to the police station and lodged the written complaint as per Ex.P1 and his signature was at Ex.P1(b). He registered the case and sent the FIR as per Ex.P22 to the Court and Ex.P22(b) was his signature. In the cross-examination by learned counsel for Accused Nos.1 to 6, he denied the suggestion that on 05.07.2005, he has received the information at about 2.30 to 3.00 p.m., informing that at the said place one person was dead and another one was lying injured. On that day, PW.20- Shivanand, who 57 carried the FIR along with original complaint to the Court did not came back and he has not asked PW.20 about the same. In the complaint as per Ex.P1, he has not mentioned that when he had been to the spot, he has seen the damaged motorcycle, bloodstained stone, two reaper rafters and one club lying on the ground. The complainant has not mentioned in Ex.P1 that at the spot, the knife was lying. In Ex.P1, it is not mentioned by the complainant that at the spot, he has seen the blood. In Ex.P1, the complainant has not mentioned that at the said place, he has seen the damaged motorcycle and broken pieces of the indicators of the jeep were lying and he has seen the same. In the cross- examination by learned counsel appearing for accused Nos.7 to 11, he has deposed that on that day, when he was in the police station, in the evening, he got the phone message and then he had been to the spot and came back to the police station at 8.15 p.m. and he has not mentioned the same in the station house diary.
26. PW.23 - Prabhudev, Dy.S.P. deposed in his evidence in the examination in chief that on the date of the incident, he took further investigation of this case from PW.21-Shivashankar and he visited the spot, which was near the Kankar machine on Aland 58 Gulbarga road. On 13.09.2005, he visited Kadaganchi village and recorded the statements of PW.8-Somayya, CW.1- Shivasharanappa, PW.7-Shantappa, CW.19-Basavaraj and PW.20- Shivanand, police constable. On 26.09.2005, he obtained the sketch map of the spot from PWD Engineer as per Ex.P16. On 28.09.2005, he received the FSL report and as there was sufficient material against the accused, he filed the charge sheet against the accused. On 14.10.2005, he obtained the Finger Print Report Ex.P5 and produced to the Court. In the cross-examination by learned counsel for accused Nos.1 to 6 he denied the suggestion that after he took the charge of further investigation of the case, he has created all the documents according to his convenience. During his investigation, PW.11-Basavaraj Sirurmath has not taken the Finger Impressions and Chance Prints in his presence and not done any examination in his presence. He denied the suggestion that PW.4-Beeranna Vaggi was belonging to his community and he was having information about the same. He admitted as true that the Investigation Officer whatever he has done in the investigation, he has to mentioned about those things in the case diary. He cannot say that Chance Prints were taken on 59 which date, at what time, at what place and who has taken the same. In the cross-examination by learned counsel for accused Nos.7 to 11, he admitted as true that as per the investigation done by PW.21, he has not received the documents or the statements of the witnesses about the conspiracy made by the accused. When he submitted the charge sheet before the Court, he was not having about PW.11-Basavaraj Sirurmath taking the Chance Prints and about his report.
27. We have also perused the evidence of PW.5 -
Shivshankarappa, PW.6-Sharfoddin, PW.7-Shantappa, PW.8- Somayya, PW.9-Smt.Rajeshwari and PW.10-Sharanabasappa.
28. Perusing the materials, both oral and documentary produced during the course of trial, about which, we have made the reference above. PW.1-Lingraj was the brother of the deceased Revanasiddappa and he was not an eyewitness to the incident. Even looking the evidence of Investigating Officer, it has come in their evidence that he has not stated in his complaint Ex.P1 that at the spot, he has seen the knife-MO.10, bloodstained stone-MO.1, clubs-MOs.2 to 4 and the damaged motorcycle lying at the spot. Even, if he was not an eyewitness to the incident, but 60 after he went to the spot and what he has seen at the spot is very important aspect. Though, during the course of his evidence, he has stated that he has seen the knife, stone, sticks and the damaged motorcycle at the spot so also, he has seen the blood on the ground, at the spot, about these material facts there is omission to mention about the same in his complaint Ex.P1. The Investigating Officer and also PSI who was at the police station received the complaint at 8.15 p.m. during the night, admitted in their cross-examination that the complainant has not mentioned in his complaint about the material objects that they were lying at the spot. Therefore, in view of this evidence of the Investigating Officers, it is difficult to accept the evidence of the complaint that when he had been to the spot, he has seen those material objects were lying at the spot.
29. Even with regards to the evidence of PW.2 -
Channaveer, who claims to be the eyewitness to the incident, it has come on record in his evidence during course of cross- examination that in his statement before the police, he has not stated that Revanasiddappa was assaulted on the left side of neck with the knife. Even he has admitted that he has not stated in his 61 statement that two reaper rafters were used to assault. As per the case of the prosecution, one Jali stick and two reaper rafters were used to assault Revanasiddappa. But, looking to the evidence of this PW.2-Channveer, in his cross-examination, he deposed that according to him five persons were assaulting Revanasiddappa with clubs. So, this evidence of PW.2 also inconsistent with the case of the prosecution that three clubs were used to assault the deceased. PW.21 - Investigating Officer also deposed in his evidence that CW.3-Jalandhar and PW.2-Channveer have not stated in their statement that from behind, the motorcycle was dashed with the jeep. PW.21 also deposed in his evidence that PW.2 has not stated in his statement that in his presence accused Chandrakant assaulted on the upper-limbs of Revanasiddappa with the knife. He further deposed that PW.2 not stated in his statement that on that day, he also went on his motorcycle behind Revanasiddappa by following him and he has not stated in his statement that when the incident took place, it was 5.30 p.m. He further deposed that PW.2 has not stated when he was at the Aland check-post, the jeep of Arvind Naroni came from Aland side overtaking him, went ahead and proceeding at the distance of 62 1 k.m., the said jeep was stopped nearby the Kankar machine and after he crossing the spot, at the distance of 10 ft. towards Gulbarga side, he stopped the motorcycle and sitting on the motorcycle, they have witnessed the incident. To know whether really this PW.2 has personally witnessed the incident and he was really the eyewitness to the incident, another important material placed on record through the evidence of PW.21-Investigating Officer that he has recorded the statement of PW.2-Channaveer and CW.3-Jalandhar on 06.07.2005 in the evening time. If really the statement of PW.2 and CW.3 was recorded by PW.21- Investigating Officer on 06.07.2005 in the evening, then there was no necessity for PW.21 while conducting the Inquest Mahazar over the dead body of Madhavrao Patil as per Ex.P13, to mention that there was suspect against the accused persons, this is why because, the Inquest Mahazar under Ex.P13 was conducted at 20.30, till the end of that day. If really PW.2 and CW.3 already gave the statement in the evening itself about the incident and involvement of the accused in the said case, then the names of accused could have been mentioned in the Inquest Mahazar at Ex.P13 and there was no necessity to mention that there was 63 suspicion as against the accused persons. This itself creates reasonable doubt in the mind of the Court as to whether really the statement of PW.2 and CW.3 were recorded in the evening itself on 06.07.2005, earlier to the time conducting the Inquest Mahazar proceeding over the dead body of Madhavrao Patil and this also supports the probable defence of the accused that the police have created the papers according to their convenience. The other important material fact in this connection is also that when the further statement of the complainant - PW.1 was recorded on 06.07.2005, in the further statement also there is no specific mention that PW.2 informed about he personally witnessing the incident as it was admitted by the prosecution witnesses.
30. We have also referred above while referring to the deposition of PW.2 about his conduct, when he has claimed that he has personally witnessed the incident along with CW.3, his natural conduct would be either immediately go to the police station to inform the police about the incident or to the relatives house to inform about the incident. But in this case admittedly and even according to PW.2, neither he went to the police station, which was nearer to the spot nor he informed the family members 64 of Revansiddappa about happening of the incident and personally witnessing the incident. Even he has not stated about the incident before his family members also i.e., wife and children, under these circumstances and looking to the abnormal conduct of PW.2, it is difficult for us to accept that really he was the eyewitness to the incident and his evidence was worth believable. In this connection learned counsel for accused Nos.1 to 6 has relied upon the decision of the Hon'ble Supreme Court referred in Crl.A.No.39/2002 dated 01.08.2002 in the case of Toran Singh Vs. State of Madhya Pradesh. Wherein, the Hon'ble Supreme Court laid down the proposition as under:
"1. PENAL CODE, 1860-Sec.302-Conviction and sentence for imprisonment of life -The only eye-witness being the son of the deceased, an interested witness-His evidence not corroborated on material aspects by the evidence of other witnesses- Conduct of eye-witness highly unnatural and improbable-Delay in lodging complaint-Serious infirmities and improbabilities of the prosecution case giving rise to grave doubts as to involvement of the appellant-Benefit of doubt.
2. CRIMINAL TRIAL -Case of murder-Appeal to Supreme Court-In normal course the Supreme Court does not disturb or upset the concurrent findings recorded by the trial Court 65 as affirmed by High Court-In the present case as there being no proper and objective appreciation of evidence by the trial Court and High Court, duty of Supreme Court to interfere so as to prevent miscarriage of justice."
31. We are also referring to another judgment of the Hon'ble Supreme Court reported in 1971(3) SCC 466 [Criminal Procedure Code, 1898 (5 of 1898) - Section 367 - Solitary witness
- Conduct of the witness. Evidence Act, 1872 (1 of 1872 - Section 137 - Re-examination - Purpose. Criminal Trial - Evidence Act, 1872 (1 of 1872) - Section 137 - Form of Question.] Wherein, there was solitary witness as per the case of the prosecution and their lordships of the Hon'ble Supreme Court have observed in para No.13 of the said decision as under:
"13. Two questions arise, first, whether Shangara Singh actually saw Chanan Singh fire twice at Mohinder Singh secondly, whether Shangara Singh told the truth. Shangara Singh's conduct after the occurrence appears to be abnormal. It was said on behalf of the prosecution that he ran away out of fear. There is no evidence whatever to suggest that Shangara Singh was struck by terror or fear. No one pursued or chased Shangara Singh. There was no threat to him. It would be strange to expect so many persons to stand silent and watch 66 Chanan Singh fire at Mohinder Singh and none would offer any resistence. Shangara Singh's slipping away unnoticed by the others particularly after the alleged shooting by Chanan Singh would be utterly unbelieveable. It appears unreal. The second surprising and significant feature in the evidence of Shanagara Singh is that at that hour of the night he went through the fields to his house. If Shangara Singh's evidence were at all true that he saw Mohinder Singh being shot twice by Chanan Singh and he also saw Chanan Singh and Kala Singh dragging Lachhman Singh inside the house, he would go at once to Lachhman Singh's house which was 25 karams, i.e., 75 feet away from the house of Chanan Singh. It would be normal and natural for Shangara Singh to run to Lachhman Singh's house immediately and inform the members of the house and get others to try to save the life of Lachhman Singh. The third reason why Shangara Singh's evidence is not believable is that if he saw Chanan Singh fire twice at Mohinder Singh, Shangara Singh would normally go to Pishora Singh, brother of Mohinder Singh and tell him that Mohinder Singh had been shot by Chanan Singh. The fourth reason for not accepting Shangara Singh as a truthful witness is that his alleged statement to his father Suba Singh at about 11 at night that Chanan Singh had shot Mohinder Singh does not get any support from conduct. Neither Shangara Singh nor his father went to the police station. The first thing that would occur to Shangara Singh would be to go to the police station. He did not do that. His father also followed suit. The reason given by Shangara Singh was that his father did not 67 move out of fear of the accused. The aspect of fear is without any foundation and is not supported by any evidence of act or conduct. These features indicate the infirmities as to truthful evidence of Shangara Singh."
32. Therefore, looking to the principles annunciated in the said decisions also the normal conduct expected from PW.2 in this particular case that immediately he could have gone to the police station to lodge the FIR or atleast to the relatives of the deceased, which was not done in this case. It is no doubt true even there may be solitary witness, witnessing the incident and if the evidence of such witness is cogent, consistent and worth believable, the Court can rely upon such evidence to base the conviction. As per Section 134 of the Evidence Act, what is required is quality of the evidence and not the quantity of the evidence. The Court has to weigh the evidence and not to count the evidence. If the evidence of the eyewitness is said to be true and correct version, it can be relied upon by the Court. But, in the case on hand, looking to the serious infirmities in the evidence of PW.2 so also the evidence of PW.21-Investigating Officer, it will not inspire the confidence in the mind of the Court to accept the evidence of PW.2 as worth believable.
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33. The other circumstantial evidence on the side of the prosecution was the evidence of PWs.3 and 4 and about their evidence, we have already made detail reference above. PW.3 claimed that on the date of the incident, as he was not feeling well, he went to Aland Government Hospital for treatment. The doctor after treating him, gave the prescriptions and he purchased the medicine in the medical shop at Aland and at about 5.00 p.m., when he came to the bus-stand, Revinsiddappa along with Madhavrao Patil met him, who came on their motorcycle and he asked them that he also wanted to go with them to Kadaganchi village. But, Revansiddappa told that police will book the case because they are two in number and asked him to go by bus and when he was travelling in the bus on the road near the Kankar machine many vehicles were there and people gathered and the people in the bus were also get down to see what has happened. In his cross-examination, he has deposed that the receipt for purchasing the medicine at Aland, he has thrown there only and when he was asked about bus ticket, he deposed that he has not yet taken the ticket as the conductor was giving the tickets to the persons sitting in the front side. He has admitted in his cross- 69 examination that there are Government and private hospitals in his village Kadaganchi and normally the people of his village will take the treatment in those hospitals. In this connection, perusing the evidence of PW.21 - Investigating Officer, he deposed that in the statement of PW.3 he has not at all stated that he had been to Aland Government Hospital for taking treatment and Aland Government Hospital doctor gave the treatment; they gave the prescriptions and he purchased the medicine in the medical shop. He also deposed that PW.3 has not stated in his statement that at the spot, the knife was lying so also he has not stated that one Jali stick, two reaper rafters and one stone was lying at the spot. So, also perusing these materials on record, the evidence of this PW.3 is also not worth believable.
34. Another witness PW.4 - Beeranna is also not an eyewitness but, he deposed that on 05.07.2005, in the evening at about 6.30 p.m., when he was in his house, PW.3 phoned to him, informing that nearby the Kankar machine, the murder of Revanasiddappa took place and the people gathered there talking that Revanasiddappa met with an accident but, PW.3 informed him that he having the suspicion of the hand of A.1-Arvind 70 Naroni in the said murder. But, this is also not correct version because PW.3 deposed in his evidence in the cross-examination that he informed Beeranna through mobile phone only that there is a murder took place. So, this goes to show that it is the improved version of PW.4 that PW.3 informed him that he having suspicion that there was a hand of Arvind Naroni in the murder of Revanasiddappa and admittedly this PW.4 is not the person who witnessed the incident. Therefore, the evidence of this PW.4 will not help the case of the prosecution.
35. For the sake of appreciation of the case of the prosecution, even if, it assumed that PW.2 has personally witnessed the incident, admittedly according to the case of the prosecution, at the spot Revanasiddappa was lying dead and Madhavrao Patil was lying unconscious by sustaining injuries. Looking to the evidence of PW.2, it is his case that as if the incident started in his presence only, because of he deposed before the Court that at Aland check-post, the jeep of Arvind Naroni overtook his two wheeler vehicle and proceeded at about 1 k.m., stopped nearby the Kankar machine and he also followed it and reached the said place and then he saw that accused started 71 assaulting Revinsiddappa, making him to lye on the ground and assaulted with Jali stick, two reaper rafters, knife and stone. But, he has not stated anything as to how this Madhavrao Patil has sustained injuries. The entire case of the prosecution is silent about this aspect. When PW.2 said to be the eyewitness to the incident, he has to explain that how Madhavrao Patil has sustained injuries. Absolutely, no material on record to explain about the injuries sustained by Madhavrao Patil. So, this also goes to show and raises reasonable doubt about the presence of PW.2 along with CW.3 at the said place and witnessed the incident personally.
36. In this case, the prosecution examined two doctors as PWs.18 and 19 who conducted the postmortem examination over the dead body of Revinsiddappa and Madhavrao Patil respectively. We have made the reference of the evidence of these two witnesses in detail and it is the opinion of both the medical officers that there is no possibility of causing such injuries on the deceased Revanasiddappa and Madhavrao Patil, by using the material objects, relied upon by the prosecution. The doctors have admitted that the material objects were not referred to them for examination and to give their opinion so as to whether such 72 injuries could be caused by using such type of weapons. The doctors have also deposed before the Court that they are seeing the weapons i.e., knife-MO.10, stone-MO.1 and sticks-MOs.2 to 4 for the first time before the Court. In this connection, learned counsel for the accused has relied upon the decision reported in 2002 CRL.L.J. 2970, wherein their lordships of the Hon'ble Supreme Court laid down proposition as under:
"Penal Code (45 of 1860), S.300 - Murder - Proof - Inconsistency between eywitness account and medical evidence - Number of injuries found on body of deceased caused by sharp edged weapon was two while prosecution case was that three accused assaulted deceased with sharp edged weapon - Seized weapons not shown to doctor for soliciting his opinion as to whether injuries on body of deceased could be caused by those weapons - Conviction of accused under S.300 - Liable to be set aside. Decision of Punjab and Hariyana High Court, Reversed."
37. PW.19, who conducted post mortem examination over the dead body of Madhavrao Patil is also of the opinion that without seeing the documents for the treatment given to Madhavrao Patil prior to his death, he cannot gave the correct opinion as to the cause for death. Even PW.21 has deposed in his 73 evidence during the course of cross-examination that during his investigation, he has not received the documents from the hospital about the treatment given to Madhavrao Patil. Therefore, looking to the evidence of PWs.18 and 19, they are totally inconsistent with the oral evidence of the prosecution witnesses. In this connection, learned counsel for accused Nos.1 to 6 has relied upon the decision reported in 1975 CRL.L.J. 1500 = 1975 AIR 1727, wherein their lordships laid down the proposition as under:
"Penal Code (1860), S 302-Murder-
Appreciation of evidence - Injuries caused by lethal weapon - Prosecution evidence inconsistent with medical evidence and that of ballistic expert-Accused are entitled to acquittal. Criminal Appeal No. 778 of 1973 D/- 19-2-1974 (Punj & Har) Reversed (Evidence Act (1872), S 3; Evidence-Appreciation of)"
38. Therefore, looking to the evidence placed on record and also the decisions and principles annunciated in the said decisions, it is difficult for this Court to say that the prosecution has proved its case beyond all reasonable doubt. 74
39. No doubt, it is the contention of the prosecution that accused No.2 - Chandrakant gave his voluntary statement and produced the knife MO.10 in the presence of the punch witnesses. But, during the course of cross-examination, it is the contention of the defence that accused No.2 has not at all given such voluntary statement and has not produced the knife in the presence of punch witnesses before the Investigating Officer. PW.21 has admitted in his cross-examination that the place from where MO.10-knife was seized was the public place, there was possibility that anybody can go to the said place. Therefore, in view of this evidence of PW.21 and the contention of the defence, it cannot be said that there is a discovery of the fact of hiding the knife MO.10 and its seizure by the Investigating Officer at the instance of accused No.2. Therefore, the said seizure is not in accordance with and in compliance with the requirement of Section 27 of the Evidence Act. Even if it is accepted that MO.10 knife seized as per the voluntary statement of A.2 again it is contrary to evidence of PWs.1 to 3 that knife was lying at the spot and it was seized under the spot mahazar.
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40. With regards to the evidence of PW.11 Finger Print Expert and his report at Ex.P5, PW.21 has clearly admitted that he has not issued any requisition to PW.11 in writing in connection with taking chance print and the finger impressions of the accused to compare and to submit his report. Though, at one stretch he admitted that he has issued the requisition to PW.11 and also admitted in his cross-examination that in case if any such written requisition is sent, normally he will retain one copy in his file but no such copy was produced before the Court. Even with regard to the talks, he had with PW.11 Finger Print Expert over the phone also he has not made any mention in the case diary nor he has produced the case diary before the Court. It is the contention of the defence and it is also admitted by the prosecution that PW.11 was also attached to their Police Department. PW.21 - Investigating Officer also admitted that when he went to the place, he seized the jeep MO.17 and asked his colleague to take that jeep to Aland as he was going to Gulbarga. He has admitted in his cross-examination that whenever he seized such article and entrusted to other person to carry to a particular place then there will be impressions of such persons over that object and he also 76 admitted in his cross-examination that on that day he himself and PW.11 together have not at all inspected the jeep MO.17. Therefore, in view of these infirmities in the evidence of Investigating Officer PW.21 so also the evidence of Finger Print Expert PW.11 also will not inspire the confidence in the mind of the court to accept it.
41. Perusing the prosecution material, it is also come on record that so far as accused No.11-Veerbhadra is concerned, the Investigating Officer admitted that he has not collected any material to show the conspiracy of A.11 with other accused persons and even while granting bail to accused No.11 also the Court has observed that till then no material is collected to show that A.11 was involved in the conspiracy with such accused persons to commit the alleged offences. Looking to the material both oral and documentary, they goes to show that the case was registered as against the persons only on the basis of suspicion, looking to the previous enmity in connection with previous incidents of murder on both sides. But, suspicion however strong it may, it cannot take the place of proof. Unless and until the prosecution places the cogent and worth believable material to 77 establish the charges against the accused persons, it cannot be said that the prosecution has proved its case beyond all reasonable doubt. Therefore, the learned Trial Judge has considered each and every aspect of the matter and rightly acquitted the accused persons. No illegality has been committed, nor any perverse or capricious view taken by the Trial Judge.
42. In view of the oral and documentary evidence, which we have re-appreciated and also the principles annunciated in the decisions relied upon by the learned counsel for the accused, we are of the opinion that there is no merit in the appeal and hence, the same is hereby dismissed. The judgment and order of acquittal passed by the Trial Judge is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE Cs/Srt/LG