Karnataka High Court
Keshava @ Choni vs State Of Maharastra Reported In on 6 May, 2021
Author: B. Veerappa
Bench: B. Veerappa
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF MAY, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
CRIMINAL APPEAL No.1128/2016
C/W
CRIMINAL APPEAL No.1616/2016
C/W
CRIMINAL APPEAL NO.871/2016
IN CRL.A. No.1128/2016:
BETWEEN:
1. KESHAVA @ CHONI
AGED ABOUT 23 YEARS,
S/O JAYA POOJARY,
RESIDING AT BACKSIDE OF
SOMESHWARA RAILWAY STATION,
SOMESHWARA,
MANGALORE-575 023.
2. PREETHESH @ PREETHU
AGED ABOUT 20 YEARS
S/O DAYANAND POOJARY
2
RESIDING AT MANTE PADAVU
MANE, NARINGANA VILLAGE,
BANTWAL TALUK,
PIN CODE-575 018.
(NOW IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR COUNSEL A/W
SRI KARIAPPA, N.A., ADVOCATE)
AND:
STATE OF KARNATAKA BY
ULLAL POLICE, D.K.,
MANGALORE
PIN CODE-575 020.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
HIGH COURT OF KARNTAKA,
BENGALURU.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTIN AND ORDER OF SENTENCE
DATED 22/23.04.2016 PASSED BY THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K., MANGALORE IN S.C.NO.117/2012
AGAINST THE APPELANTS/ ACCUSED NO.1 AND 3 CONVICTING
THEM FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
143,147, 148,447,448 AND 302 READ WITH SECTION 149 OF IPC
AND CONSEQUENTLY ACQUIT THEM FOR THE SAID OFFENCES.
3
IN CRL.A. No.1616/2016:
BETWEEN:
STATE OF KARNATAKA,
THROUGH POLICE INSPECTOR,
ULLAL P.S.,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, BANGALORE - 1.
...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
AND:
1. KESHAVA @ CHONI,
AGED ABOUT 27 YEARS,
S/O JAYA POOJARY,
R/AT BACK SIDE OF SOMESHWAR,
RAILWAY STATION, SOMESHWARA,
MANGALORE - 575 023.
2. NISHANTH @ NISHU
AGED ABOUT 24 YEARS,
S/O LATE NITHYANANDA KAVA,
R/AT NITHYANANDA KRIPA,
NEAR THOKKOTTU OVER BRIDGE,
ULLAL VILLAGE, MANGALORE TALUK - 575 020.
3. PREETHESH @ PREETHU
AGED ABOUT 24 YEARS,
S/O DAYANANDA POOJARY
R/AT MONTE PADAV MANE
NARINGANA VILLAGE,
BANTWAL TALUK - 574 211.
4. BHUSHAN
AGED ABOUT 26 YEARS,
S/O THULASIDAS ACHAR,
R/AT FAKEERA GATTY COMPOUND,
4
SHARADA KATTE, KOLLYA,
SOMESWARA VILLAGE,
MANGALORE TALUK - 575 023.
5. SANDESH @ SANDU
AGED ABOUT 24 YEARS,
S/O SUBRAMANYA CHETTIYAR,
R/AT BEHIND SOMESHWARA RAILWAY STATION,
C/O CHANDRASHEKAR'S RENT HOUSE,
MANGALORE TALUK - 575 023.
6. SURAJ,
AGED ABOUT 27 YEARS,
S/O KRISHNA
R/AT NEAR THE HOUSE OF HARISH RAJ,
MADYAR PARASHAKTHI TEMPLE ROAD,
MANDYAR, KOTEKAR VILLAGE,
MANGALORE - 575 023.
7. CHETHAN @ CHETHU
AGED ABOUT 29 YEARS,
S/O J. NARAYANA,
R/AT SARASWATHY COLONY,
DWARAKA NAGAR,
KOLLYA, MANGALORE TALUK - 575 023.
8. AVINASH BAJILAKERI
AGED ABOUT 29 YEARS,
S/O PRABHAKAR NAYAK,
R/AT ASHA NILAYA, DEVINAGAR
KINYA POST, TALAPADY VILLAGE,
MANGALORE TALUK - 575 023.
9. RAJESH,
AGED ABOUT 34 YEARS,
S/O LATE SUNDAR SHETTY,
R/AT SANTHOSH NAGAR,
KUTHAR, MUNNAR VILLAGE,
MANGALURU TALUK - 574 199.
5
10 . GURUPRASAD @ GURU
AGED ABOUT 32 YEARS,
S/O LATE SUNDAR
R/AT SHIVAGIRI NAGARA,
NEAR DEEPA FARM HOUSE
HOSABETTU, KULAI,
MANGALURU - 575 019.
11 . CHANDRAHAS NARAYANA POOJARY @
CHANDRA, AGED ABOUT 42 YEARS,
S/O NARAYANA POOJARY,
R/AT SOMESHWARA, SOMANATHA COLONY,
KOTEKAR POST,
MANGALURU TALUK - 575 022.
...RESPONDENTS
(BY SRI HASHMATH PASHA, SENIOR COUNSEL ALONG WITH
SRI N.A. KARIAPPA, ADVOCATE FOR R1 & R3;
SRI TOMY SEBASTIAN, SENIOR COUNSEL ALONG WITH
SRI RAVINDRA GOWDA, ADVOCATE FOR R8;
SRI SUYOG HERELE E., ADVOCATE FOR R2 & R9;
SRI MUZZAFFAR AHMED, ADVOCATE FOR R4, R5, R7, & R11;
SRI VISHWANATH POOJARY, ADVOCATE A/W
SRI PRASANNA V.R., ADVOCATE FOR R6;
SRI LOKESHA K., ADVOCATE FOR R10)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 22/23.04.2016 PASSED
BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE IN S.C.NO.117/2012 IN SO FAR AS ACQUITTING THE
RESPONDENTS/ACCUSED No.1,3 AND 8 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 120-B READ WITH 149 IPC AND
ACQUITTING A2, 4 TO 7 AND 9 TO 11 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143,147,148,447,448, 120B,75
AND 302 READ WITH SECTION 149 OF IPC AND CONVICT AND
SNTENCE THE ACCUSED FOR THE SAID OFFENCES.
6
IN CRL.A. No.871/2016:
BETWEEN
SRI. AVINASH BAJILAKERI,
S/O PRABHAKAR NAYAK,
AGED ABOUT 25 YEARS,
R/AT ASHA NILAYA,
DEVINAGAR, KINYA POST
TALAPADI VILLAGE,
MANAGALORE TALUK,
D.K.DISTRICT-576233.
(NOW CONVICTED AND UNDERGOING
LIFE IMPRISONMENT
AT DHARWAD CENTRAL PRISON)
...APPELLANT
(BY SRI TOMY SEBASTIAN SENIOR COUNSEL ALONG WITH
SRI RAVINDRA GOWDA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ULLALA POLICE STATION,
D.K.DISTRICT, MANGALORE,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 22/23.04.2016 PASSED BY THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K., MANGALORE IN S.C.NO.117/2012 IN
7
SO FAR AS CONVICTING AND SENTENCING ACCUSED NO.8 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 143,147,148,447,
448 AND 302 R/W 149 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
These Criminal Appeals are arising out of the common Judgment and Order dated 22/23.04.2016 made in S.C. No.117/2012 on the file of the III Addl. District & Sessions Judge, D.K., Mangalore, whereby the trial Court convicted and sentenced Accused Nos.1,3 and 8 for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and acquitted Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w Section 149 of IPC and Accused Nos.2,4 to 7, 9 to 11 for the offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC.
2. Criminal Appeal No.1128/2016 is filed by Accused Nos.1 and 3 praying to set aside the impugned judgment and order 8 passed by the trial Court in so far as convicting and sentencing them for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and consequently acquit them for the said offences.
3. Criminal Appeal No.871/2016 is filed by Accused No.8 praying to set aside the impugned judgment and order passed by the trial Court in so far as convicting and sentencing him for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and consequently acquit him for the said offences.
4. Criminal Appeal No.1616/2016 is filed by the State praying to set aside the impugned judgment and order passed by the trial Court in so far as acquitting Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w 149 of IPC and Accused NOs.2, 4 to 7, 9 to 11 for the offences punishable under Sections 143, 147, 148,447, 448, 120B, 75 and 302 r/w 149 of IPC and convict and sentence the accused for the said offences. 9
I. BRIEF FACTS OF THE CASE
5. It is the case of the prosecution that there was animosity between accused No.1 and deceased Sandeep Shetty in connection with the real estate business and money transaction. The accused Nos. 1 to 10 on account of assuming that deceased Sandeep Shetty had given information about them to the police, had grudge against him. On 31.10.2010, they conspired with accused No.11 after knowing that he will come to Kankanady Railway Station, met him in the said Railway Station and also in Jail, Mangaluru and formed unlawful assembly, with common intention and hatched plan to kill Sandeep Shetty and made preparations. Later on 13.11.2011, at about 10.10 p.m., during night hours, at the place called Sowmya Compound, near Someshwara Railway Station, accused Nos. 1 to 10 were being the members of unlawful assembly found with rioting, holding deadly weapons namely talwars and iron rods, criminally trespassed by entering into the house of CW1 Hemachandra with intention to commit the murder of Sandeep Shetty. Afterwards, the accused Nos.1 to 6 being members of unlawful assembly with common intention caused the death of 10 Sandeep Shetty by assaulting him by means of talwars and iron rods, caused grievous injuries on his head, neck, waist and other parts of the body. Thus, the accused No.11,who has been convicted in CC No.97/PW/2010, had hatched plan with accused Nos. 1 to 10 to commit the murder of Sandeep Shetty.
6. Accordingly, PW.1 (father-in-law of the deceased) lodged a complaint - Ex.P1 on 14.11.2011 between 00.30 a.m. and 1.30 a.m. On the basis of the complaint, the Police Inspector - PW.33 registered Crime No.355/2011 in Ullal Police Station for the offences punishable under Section 143, 147, 148, 447, 448, 302 r/w 149 of IPC. After completion of investigation, the Police filed the charge sheet against the accused persons. The learned JMFC has taken cognizance and committed the case to the District & Sessions Judge, Mangalore. The learned District Judge framed the charges, read over and explained to the Accused Nos.1 to 11 in the language known to them. They pleaded not guilty and claimed to be tried.
11
7. In order to prove the guilt of the accused persons, the prosecution examined PWs.1 to 39 and got marked the material documents - Ex.P1 to Ex.P56 and the material objects - Mos.1 to 39. On behalf of the defence, no witness was examined, but got marked the documents - Ex.D1 to Ex.D6.
8. After completion of evidence of the prosecution witnesses, the statement of the accused persons as contemplated under Section 313 of the Code of Criminal Procedure were recorded. The accused persons denied all the incriminating circumstances adduced against them by the prosecution.
II. FINDINGS OF THE TRIAL COURT
9. The learned Sessions Judge based on the material on record, has formulated four points for consideration, which are as under:
1) Whether the prosecution is able to prove that, the accused Nos. 1 to 10 met accused No.11 who was convicted in CC No.92/2010, at Railway Station, 12 Kankanady and also at jail at Mangaluru by accused No.8 and criminally conspired to commit the murder of Sandeep Shetty and thereby, the accused Nos. 1 to 10 have committed the offence punishable under Section 120B read with 149 of IPC and accused No.11 has committed the offence punishable under Section 75 of IPC?
2) Whether the prosecution is able to prove that on 13.11.2011, accused Nos. 1 to 10 formed unlawful assembly with common intention, found with rioting by holding deadly weapons and accused Nos. 1 to 6 criminally trespassed into the house of CW1 Hemachandra in order to cause the murder of Sandeep Shetty and thereby they have committed the offence punishable under Sections 143, 147, 148, 447 and 448 read with Section 149 of IPC?
3) Whether the prosecution is able to prove that accused Nos. 1 to 6 after criminally trespassed into the house of CW1 with common intention to cause the death of Sandeep Shetty, deadly assaulted him by means of talwars and iron rods, caused grievous injuries, from which, he died subsequently and thereby, they have committed the offence 13 punishable under Section 302 read with Section 149 of IPC?
4) Whether the prosecution is able to prove that the accused Nos. 1 to 11 have committed the offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 read with Section 149 of IPC?
10. Considering both the oral and documentary evidence on record, the learned Sessions Judge answered the 1st point in the negative holding that the prosecution failed to prove beyond reasonable doubt that the Accused Nos.1 to 10 have committed the offence punishable under Section 120B r/w 149 of IPC and Accused No.11 has committed the offence punishable under Section 75 of IPC and answered the 2nd, 3rd and 4th points partly in the affirmative.
11. Accordingly by the impugned judgment of conviction and order of sentence, the trial Court convicted Accused Nos.1,3 and 8 for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 of IPC r/w 149 of IPC. By the very impugned judgment, 14 the trial Court acquitted the Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w 149 of IPC and the Accused Nos.2,4 to 7, 9 to 11 for the offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC. Hence, Criminal Appeal No.1128/2016 is filed by Accused Nos.1 and 3 and Criminal Appeal No.871/16 is filed by Accused No.8 against the impugned judgment of conviction and order of sentence and the State filed Criminal Appeal No.1616/2016 against the impugned judgment of acquittal passed by the trial Court.
12. We have heard the learned counsel for the parties. III. ARGUMENTS ADVANCED BY SRI HASHMATH PASHA, LEARNED SENIOR COUNSEL FOR ACCUSED NOS.1 AND 3
13. Sri Hashmath Pasha, learned senior counsel for the appellants/Accused Nos.1 and 3 in Criminal Appeal No.1128/2016 has contended that the impugned judgment of conviction and order of sentence passed by the trial Court against Accused Nos.1 and 3 for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC, is erroneous and contrary to the material 15 on record and cannot be sustained. He would further contend that the trial Court having rightly held that the conspiracy not proved under the provisions of Section 120B r/w 149 of IPC, proceeded to convict Accused Nos.1,3 and 8 erroneously. He would further contend that the evidence of PWs.4,5,6 and 7 who deposed about conspiracy turned hostile. He would further contend that the incident and the presence of Accused Nos.1 to 6 not proved and evidence of PWs.1 and 2 cannot be believed as they are interested witnesses. He also contended that no Test Identification Parade was conducted to identify the accused as no source of light was available. He would further contend that in Ex.P1 - complaint, the names of Accused Nos.2 to 6 not mentioned. Therefore, the evidence of PWs.1 and 2 is defective and cannot be relied upon. He would further contend that because Accused Nos.1 to 6 were shown to PWs.1 and 2 when they were in the Police Station, they deposed against them. Therefore, the evidence of PWs.1 and 2, who are the alleged eye witnesses to the incident which had taken place in the house during the night time, cannot be relied upon. He would further contend that though the evidence of PWs.30, 31, 33, 35 and 36 - Police Officers depicts that the deceased was 16 murmuring as "Choni Choni" (name of Accused No.1) on the way to the hospital, the said aspect was not recorded at the earlier point of time i.e., in the FIR or before the doctor. In the absence of any documentary evidence, same cannot be relied upon. He would further contend that the oral dying declaration of the deceased as to whether the deceased was in sound state of mind, has not been proved. PW.1 deposed that when the deceased fell on the ground, he was unconscious and the doctor - PW.38 deposed that the deceased was unconscious when he was brought to the hospital.
14. The learned counsel would further contend that PW.17 - doctor deposed that because of the nature of injuries sustained by the deceased, he might have been unconscious. Hence, the evidence of PW.1 and the evidence of PWs.38 and 17 is not consistent and cannot be relied upon. Therefore, the learned Sessions Judge was not justified in convicting the accused persons. He would further contend that the recovery of weapons MOs. 4 to 9 under Ex.P19 and clothes of Accused NOs.1 to 6 i.e., MOs.27 to 38 under Ex.P20 - mahazar not proved because all the panch 17 witnesses have turned hostile. He would further contend that the accused Nos.1 to 6 were in police custody from 14.11.2011 to 17.11.2011. He would further contend that the charge sheet filed is defective and recovery made after 24 hours, is invalid as the same is artificial recovery. He would further contend that considering the serious lacuna in the evidence of PWs.1 and 2, the trial Court ought to have extended the benefit of doubt in favour of the accused persons. He would further contend that when the common charge was made, in the absence of identification of the accused persons, when the trial Court has acquitted Accused Nos.2, 4 to 7, 9 to 11 for the offences punishable under the provisions of Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC and acquitted Accused Nos.1,3 and 8 for the offence under Section 120B r/w 149 of IPC, ought to have acquitted Accused Nos.1,3 and 8, who are similarly situated persons. He would further contend that admittedly, the deceased Sandeep Shetty was a rowdy sheeter and involved in many heinous offences and the same has been ignored by the learned Sessions Judge while passing the impugned judgment against the accused persons. 18
15. The learned senior counsel would further contend that the deceased Sandeep Shetty has earned so many enemies viz., Manoj, Vidyadhar, Chandra, Dixith including Accused NO.1 and somebody might have involved in the homicidal death of the deceased and not Accused NOs.1,3 and 8 or other accused persons. He would further contend that though the appeal filed by the State against acquittal of some of the accused persons for certain offences, the State has not made out any ground to interfere with the impugned judgment of acquittal passed by the trial Court based on the oral and documentary evidence on record. He would further contend that the scope of the appeal filed by the State against the judgment of acquittal is very limited. He also contended that even if two views are possible, the view expressed by the trial Court in favour of the accused persons acquitting them, has to be accepted. Therefore, he sought to allow the appeals filed by Accused Nos.1,3 and 8 and dismiss the appeal filed by the State.
16. In support of his contentions, learned senior counsel for the appellants/Accused Nos.1 and 3 relied upon the following judgments:
19
1. Rajesh v. State of Haryana reported in (2021)1 SCC 118 (Paragraph Nos. 43, 43.4, 43.8)
2. Mohd. Iqbal M Shaik V. State of Maharastra reported in (1998)4 SCC 494 (Paragraph Nos.15,17,19)
3. Mohanlal Gangaram Vs. State of Maharastra reported in (1982)1 SCC 700 (Paragraph Nos.19, 20)
4. Atmaram Ziingaraji vs. State of Maharastra reported in (1997)7 SCC 41 (Paragraph No.6) IV. ARGUMENTS ADVANCED BY SRI TOMY SEBASTIAN, LEARNED SENIOR COUSNEL FOR ACCUSED NO.8
17. Sri Tomy Sebastian, learned senior counsel for appellant/Accused No.8 in Criminal Appeal No.871/2016 has contended that the charge sheet filed by Police only against Accused Nos.1 to 6 and there is no whisper in the complaint or in the evidence of PWs.1 and 2 against Accused No.8. Therefore, the impugned judgment of conviction passed by the trial Court convicting Accused No.8 for the charges levelled against him along with Accused Nos.1 and 3, is erroneous and contrary to the material on record and cannot be sustained. He would further contend that 20 the charge under Section 120B against Accused NOs.1 to 8 is based on the statements under Section 161 of the Code of Criminal Procedure by PW.4 to 7 (Ex.P3 to Ex.P6) and the evidence of PWs.18 and 19. Admittedly, the conspiracy not proved as held by the trial Court. Therefore, he would contend that the conviction of Accused NO.8 is erroneous and contrary to the material on record and cannot be sustained. He would further contend that the further statement of PW.1 is only against Accused NOs.1 to 6 and recovery of MOs.4 to 7 - Talwars and MOs.8 and 9 - iron rods under Ex.P19, is not at the instance of Accused NO.8. He would further contend that PW.37 has deposed only against Accused Nos.1 to 6. In the cross-examination, PW.37 has stated about Accused No.7. Only at paragraph-37 of his evidence, a stray sentence was made against Accused NO.8. He would further contend that examination-in-chief of PW.1 depicts against Accused Nos.1,2,3,4,7 and 8 and the evidence of PW.2 is only against Accused NOs.1,2 3 and 10. Therefore, the learned Sessions Judge is not justified in convicting Accused No.8 alongwith Accused NOs.1 and 3 for the charges levelled against him. He would further contend that point NO.1 raised by the trial Court under Section 120B against Accused Nos.1 21 to 11 and point No.2 under Sections 143, 147, 148, 447, 448 r/w 149 of IPC raised only against Accused NOs.1 to 6. On the basis of the wrong identification of Accused NO.8, the trial Court proceeded to convict Accused No.8 without any basis. While adopting the arguments advanced by Sri Hashmath Pasha, he would further contend that though the appeal filed by the State against acquittal of some of the accused persons for certain offences, the State has not made out any ground to interfere with the impugned judgment of acquittal passed by the trial Court based on the oral and documentary evidence on record. Therefore, he sought to allow the appeal filed by Accused No.8 and dismiss the appeal filed by the State.
V. ARGUMENTS ADVANCED BY SRI VIJAYKUMAR MAJAGE, LEARNED ADDL. SPP FOR THE STATE
18. Sri Vijaykumar Majage, learned Addl. SPP, who filed Criminal Appeal No.1616/2016 against the impugned judgment and order of acquittal acquitting Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w 149 of IPC and Accused NOs.2, 4 to 7, 9 to 11 for the offences punishable under Sections 143, 147, 22 148,447, 448, 120B, 75 and 302 r/w 149 of IPC, has contended that the defect in framing charge is not a ground to acquit the accused persons in view of the provisions of Section 464 of the Code of Criminal Procedure. The acquittal order passed by the learned Sessions Judge is without any basis and liable to be set aside. He would further contend that in the complaint - Ex.P1, it is specifically stated that Accused NO.1 and five others i.e., Accused NOs.1 to 6 are involved in the homicidal death of the deceased Sandeep Shetty. He would further contend that the evidence of PWs.1 and 2 depicts that PW.1 knew all the accused persons, but could not spell out the names to identify Accused Nos.1 to 6 and therefore, the Test Identification Parade is not necessary. He would further contend that PW.37 - Investigating Officer recovered the weapons - Mos.4 to 7, 8 and 9 at the instance of Accused Nos.1 to 6. Though under Ex.P19 to 22 - seizure mahazars, PWs.24 to 26 turned hostile, the Investigating Officer reiterated the same. He would further contend that Ex.P1 clearly depicts that Accused No.1 and five others, who are known by face were involved in the commission of the offence. The evidence of PW.1 depicts about Accused No.1 to 5, 7 and 8 and the evidence of PW.2 depicts 23 about Accused NOs.1 to 3, 8 and 10. The evidence of PW.37 depicts the recovery of weapons at the instance of Accused Nos.1 to
6. In the cross-examination of PW.1 by Accused No.5, it is clearly stated about the existence of light on that day. He would further contend that Ex.P18 and Ex.P25 - sketches produced clearly depict the involvement of Accused Nos.1,3,8 and 10. He would further contend that the doctor - PW.17 has stated that on 24.11.2012, the Ullal Police have sent six packed and sealed covers along with six weapons and out of six weapons, 2 are sickles, 2 are talwars and 2 are iron rods. After detailed examination of the above weapons and on perusal of the post-mortem report, the doctor issued the report as per Ex.P12, wherein the doctor has opined that the injury Nos.1 to 54 could be caused by the weapon Nos.1,2,3,4 (F,G,H,I) mentioned in his report. He would further contend that as per the FSL report - Ex.P15 , the articles 5 to 10 (sealed cover containing long machus and iron rods) were stained with blood. He would further contend that as per the serology report, items B,C,F,G,H,I,J,K,L,M, N,O,Q,R,S,T,U,V and W were stained with human blood. Further, the blood group of the stains on the said items could not be determined because the results of the tests were 24 inconclusive. He would further contend that under Ex.P14 - seizure mahazar, MOs.7 and 28 recovered at the instance of Accused NO.1. PW.37 - Investigating Officer specifically stated in his evidence with regard recovery of clothes of Accused NO.1 and Accused Nos.2 to 6. He would further contend that the deceased murmured on the way to the hospital as "Choni, Choni" (name of Accused No.1) and the same coupled with the evidence of PWs.30, 33 and 35, clearly depict that Accused No.1 is involved in the homicidal death of the deceased. He would further contend that the doctor - PW.38 has stated in paragraph-5 of his examination-in-chief that the deceased was well built, aged about 30 years when he was brought to the hospital and he was breathing, but was unable to talk. As per his opinion, the injured might be able to speak for about 30 to 45 minutes after he sustained injuries. He would further contend that the evidence of the prosecution witnesses and the material documents clearly depict that the accused persons involved in the homicidal death of the deceased. Therefore, he sought to allow the appeal filed by the State and dismiss the appeals filed by the Accused Nos.1,3 and 8 and convict all the accused persons for the offences charged against them.
25
19. In support of his contentions, he relied upon the following judgments:
1. Balwan Singh vs. State of Chhattisgarh and another re reported in AIR 2019 SC 3714 (paragraph Nos.9 and 13 with regard to unlawful assembly)
2. Duleshwar and another vs. State of Madhya Pradesh reported in (2020)11 SCC 440 (paragraphs 14 and 15)
3. Raja and another -vs- State by the Inspector of Police and another reported in AIR 2020 SC 254 (with regard to Test Identification Parade not required) VI. REPLY ARGUMENTS BY SRI HASHMATH PASHA, LEARNED SENIOR COUNSEL FOR ACCUSED NOS.1 AND 3
20. In reply, Sri Hashmath Pasha, learned counsel for Accused Nos.1 and 3 while reiterating the grounds urged in his appeal, sought to dismiss the appeal filed by the State. He would contend that Accused No.3 was a student. PWs.1 and 2 have not stated anything about Accused No.3 that he is known person. In the absence of the same, the judgment relied upon by the learned counsel for the accused in the case of DULLESHWAR -vs- STATE OF M.P. reported in (2020)11 SCC 440 (para 21.5) support the case 26 of Accused No.3. He would further contend that none of the prosecution witnesses have whispered the names of Accused Nos.2 to 6. In the absence of any identity, the blood group as per the FSL report was necessary. In support of his contention, he relied upon the judgment of the Hon'ble Supreme Court in the case of KANSA BEHERA -vs- STATE OF ORISSA reported in (1987)3 SCC 480 ( paragraph- 12).
VII. ARGUMENTS ADVANCED BY SRI SUYOG E. HERELE, LEARNED COUNSEL FOR ACCUSED NOS.2 AND 9
21. Sri Suyog E. Herele, learned counsel for Accused NOs.2 and 9 while justifying the impugned judgment of acquittal passed by the trial Court against Accused Nos.2 and 9, has contended that the name of Accused NO.2 neither found in the FIR nor in the complaint. In the cross-examination, PW.1 has not identified Accused NO.2. Admittedly, the assailants were not identified and the Test Identification Parade was not conducted. He would further contend that absolutely there is no material against Accused Nos.2 and 9. Therefore, he would contend that the impugned judgment and order passed by the trial Court is just and proper. 27 Therefore, in exercise of the powers under Section 378(1) & (3) of the Code of Criminal Procedure, this Court cannot interfere with the impugned judgment of acquittal passed by the trial Court.
22. In support of his contentions, he relied upon the dictum of the Division Bench of this Court in Criminal Appeal No.572/2001 decided on 19.12.2008 (paragraph-16).
VIII. ARGUMENTS ADVANCED BY SRI MUZZAFAR AHMED, LEARNED COUNSEL FOR ACCUSD NOS.4,5,7 AND 11
23. Sri Muzzaffar Ahmed, learned counsel for Respondent Nos.4,5,7 and 11 (Accused Nos.4,5,7,11) while justifying the impugned judgment and order of acquittal, has contended that PW.1 has not deposed anything against Accused Nos.4, 5 and 7 and absolutely there is no material produced by the prosecution to implicate Accused Nos.4, 5 and 7 and therefore, the learned Sessions Judge is justified in acquitting Accused NOs.4,5 and 7. He would further contend that though iron rod was recovered at the instance of Accused No.5 by the Investigating Officer - PW.37 under Ex.P19 - mahazar, PWs. 24 and 25 (witnesses to the mahazar) 28 have turned hostile and therefore, the same cannot be relied upon. He would further contend that admittedly Accused No.11 was is in jail and as rightly held by the trial Court, conspiracy not proved. Therefore, he sought to dismiss the appeal filed by the State. IX. ARGUMENTS ADVANCED BY SRI VISHWANTH POOJARY, LEARNED COUNSEL FOR ACCUSD NO.6
24. Sri Vishwanath Poojary, learned counsel for Respondent No.6/Accsued No.6 while justifying the impugned judgment of acquittal, has contended that PW.1 has not identified Accused No.6 and under Ex.P19, MO.9 - iron rod recovered by PW.37 at the instance of Accused No.6, but the mahazar witnesses turned hostile and therefore, the same cannot be relied upon. The deceased never disclosed the name of Accused No.6 nor any of the prosecution witnesses. Therefore, the trial Court is justified in acquitting the accused No.6 for the charges levelled against him. X. ARGUMENTS ADVANCED BY SRI LOKESHA, LEARNED COUNSEL FOR ACCUSED NO.10
25. Sri Lokesha, learned counsel for Respondent No.10/Accused No.10 while justifying the impugned judgment of 29 acquittal, has contended that the name of the Accused NO.10 is not found in the FIR. PW.2 identified Accused No.10 first time in the Court. The statements recorded under Section 161 of the Code of Criminal Procedure do not whisper the name of Accused No.10. No material produced against Accused NO.10. Ex.P8 is the seizure mahazar relating to seizure of mobile phones and sim and the mahazar witnesses i.e, PWs.15, 27 and 28 turned hostile. Ex.P47 to Ex.P55 - call details not admissible for non-compliance of the provisions of Section 65B(4) of the Evidence Act. Conspiracy between Accused Nos.10 and 11 is not proved. Therefore, he sought to dismiss the appeal filed by the State.
XI. POINTS FOR DETERMINATION
26. In view of the rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in the present criminal appeals are:
i) Whether the trial Court is justified in convicting and sentencing Accused No.1 for 30 the offences punishable under Sections 143, 147, 148, 447, 448, 302 r/w 149 of IPC ?
ii) Whether the trial Court is justified in convicting and sentencing Accused Nos.3 and 8 for the offences punishable under Sections 143, 147, 148, 447, 448, 302 r/w 149 of IPC ?
iii) Whether the State in Criminal Appeal No.1616/2016 has made out a case to interfere with the impugned judgment and order passed by the trial Court insofar as acquitting the Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w Section 149 of IPC and Accused Nos.2,4 to 7 and 9 to 11 for the offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC, in the facts and circumstances of the case ?
31
27. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
XII. WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION
28. This Court being the appellate Court, in order to re- appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the material documents relied upon:
i) PW.1 - Hemachandra, who is the father-in-law of the deceased is the complainant and an eye witness to the incident. While reiterating the averments made in the complaint, he has stated that on the date of the incident, he has seen 10-11 members in an unlawful assembly assaulting the deceased and thereafter, 4 to 5 persons have entered his house and further assaulted the deceased. Ex.P1 is the complaint and Ex.P2 is the spot mahazar. He supported the prosecution case.32
ii) PW.2 - Asha, who is the mother-in-law of the deceased while reiterating the averments made in the examination-
in-chief of her husband (PW.1) has deposed on par with him. She supported the prosecution case.
iii) PW.3 - Soumya, who is the wife of the deceased has deposed that she learnt about the incident and involvement of Accused No.1 and others. She also deposed regarding the dispute between her husband and Accused Nos.1 and 11 on certain aspects. He supported the prosecution case.
iv) PW.4 - Loknath has deposed regarding conspiracy near Kankanadi Railway Station. He made contradiction - Ex.P3. He turned hostile to the case of the prosecution.
v) PW.5 - Vijay has also deposed regarding conspiracy near Railway Station. He made contradiction - Ex.P4. He turned hostile to the case of the prosecution.
vi) PW.6 - Padmanabh, who has General Store at Someshwara, has deposed that he knew Accused No.1, but Accused No.1 and others not came to his shop and he had not heard talks regarding conspiracy to kill the deceased. 33 He made contradiction - Ex.P5. He turned hostile to the case of the prosecution.
vii) PW.7 - Manoj has deposed about conspiracy and following to kill the deceased and made contradiction - Ex.P6. He turned hostile to the case of the prosecution.
viii) PW.8 - Sadananda Shetty, who is maternal uncle of the deceased, has deposed that on early hours at 3.00 a.m. on the night of the incident, PWs.1 and 2 came and informed about the incident and that Choni and others have assaulted Sandeep Shetty. Later, he went to A.J. Hospital and saw the dead body. He supported the prosecution case.
ix) PW.9 - Vikram Thudu, who is the Railway Station Master, Ullala, has deposed that on 13.11.2011 at 10.30 p.m., one aged person came and requested for telephone call to Police Station. He dialled to Ullal Police Station and given to him. He supported the prosecution case.
x) PW.10 - Ivan Rego, who is the panch witness to Ex.P7, has signed in the Police Station and not in A.J. Hospital. He turned hostile to the prosecution case.
34
xi) PW.11 - Nishith Kumar, who is another panch witness to inquest report - Ex.P7, has deposed that inquest mahazar not done in his presence in the hospital. He turned hostile to the prosecution case.
xii) PW.12 - Kiran , who is the witness to spot mahazar has deposed that he has not seen the scene of occurrence. No mahazar as per Ex.P2 was drawn in his presence. He turned hostile to the prosecution case.
xiii) PW.13 - Narayan, who is one of the witness to the spot mahazar - Ex.P2 has deposed that he has not seen the scene of occurrence and no mahazar as per Ex.P2 was drawn in his presence. He turned hostile to the case of the prosecution.
xiv) PW.14 - Vijay, who is one of the witness to the spot mahazar - Ex.P2 has also deposed that he has not seen the scene of occurrence and no mahazar as per Ex.P2 was drawn in his presence. He turned hostile to the case of the prosecution.
xv) PW.15 - Vasanth Bangera, who is the panch witness to Ex.P8 - mahazar regarding recovery of six mobile phones 35 and eight SIM cards at the instance of the Accused NO.8, has denied the mahazar and his presence at the relevant point of time. He turned hostile to the case of the prosecution.
xvi) PW.16 - Praveen Kumar is the owner of the alto car bearing No.KA-19-P-8418. Ex.P9 is the Police notice and Ex.P10 is the mahazar. He denied having given his car to Accused No.7 to use for escaping after commission of murder. He turned hostile to the case of the prosecution. xvii) PW.17 - Dr. Ullasa Shetty is the doctor of A.J. Hospital, who conducted post-mortem examination on 14.11.2011 over the dead body of Sandeep Shetty. Ex.P11 is the post-mortem report. He opined that the death was due to hemorrhage shock consequent upon multiple injuries sustained over the body. Ex.P12 is the opinion regarding weapons MOs.4 to 9. He supported the prosecution case. xviii) PW.18 - Parashuram Shivarudrappa Ambedkar is the Superintendent of Mangalore Jail. When he was working in Mangalore Jail, he was maintaining Visitors names in the Register. The Investigating Officer has asked him to 36 furnish Visitors Interview Register copy from 17.10.2011 to 5.12.2012. Accordingly, he has furnished Ex.P13, the copy of the said Register from pages 58 to 67.
Regarding Accused No.11 - Chandra, warrant of commitment was given as per Ex.P14. He supported the prosecution case.
xix) PW.19 - Kavitha is the Chief Warden of Mangalore Jail. He deposed regarding maintaining Visitors Book and Ex.P13 is the register of Visitors. He supported the prosecution case.
xx) PW.20 - Dr. Geethalakshmi is the Scientific Officer, FSL, Mangalore. She has deposed that on 12.12.2011, Laboratory has received articles from Ullal Police for analysis and after conducting test, she has issued chemical analysis report as per Ex.P15. Serology report is as per Ex.P16. She supported the prosecution case.
xxi) PW.21 - Vishwanath, who is the Gram Panchayath Officer, has deposed that he issued Demand Register of property bearing No.10-109A as per Ex.P17. He supported the prosecution case.
37xxii) PW.22 - Sharan Shetty is the panch to the inquest report
- Ex.P7. He has deposed that Ex.P7 - inquest report not conducted before him. He turned hostile to the case of the prosecution.
xxiii) PW.23 - K.T.Chandrashekaraiah, who is the Assistant Engineer, PWD has deposed that he prepared the sketch of scene of occurrence as per Ex.P18. He supported the prosecution case.
xxiv) PW.24 - Chittharanjan is the witness to Ex.P19 - mahazar regarding seizure of weapons - Mos.1 to 6. Ex.P20, Ex.P21 and Ex.P22 are mahazars regarding seizure of clothes of Accused Nos.1 to 6. He turned hostile to the case of the prosecution.
xxv) PW.25 - Praveen Kumar is the panch for recovery of weapons and clothes. Ex.P19 is the mahazar regarding seizure of weapons - MOs.1 to 6 from Accused Nos.1 to 6 and Ex.P20, Ex.P21 and Ex.P22 are mahazars relating to seizure of clothes of Accused Nos.1 to 6. He turned hostile to the case of the prosecution.
38xxvi) PW.26 - Manojraj Shetty is the witness to recovery of weapons and clothes. He is the witness to mahazar - Ex.P19 relating to recovery of MOs.1 to 6 from Accused NOs.1 to 6. Ex.P20 to Ex.P22 are mahazars regarding seizure of clothes. He turned hostile to the case of the prosecution.
xxvii) PW.27 - Gunavathi is mother of Accused NO.8. She has deposed that Accused NO.8 produced six mobiles and 8 Sims from house. He turned hostile to the case of the prosecution.
xxviii) PW.28 - Ganesh Acharya is the panch for seizure of six mobile phones - Mos.10 to 15 and 8 SIMS - Mos.16 to 23 under Ex.P8. He turned hostile to the case of the prosecution.
xxix) PW.29 - Dayanda .K is the P.C. No.375 of Ullal Police Station. He has deposed that on 14.11.2011 at 7.00 a.m., he carried FIR - Ex.P23 and delivered to Magistrate at 9.10 a.m. He supported the prosecution case. xxx) PW.30 - Gangadhar is the P.C. NO.819 of Ullal Police Station. He has deposed that on 13.11.2011 at 10.10 39 p.m., he was in Police Station on night duty and then, the Police Inspector - Sanjeev Naik told to him and other staff and took in department vehicle to Someshwar village, where incident of assault has taken place. They all went behind Railway Station to house of Sandeep Shetty. The deceased was taken to A.J. Hospital and on the way, the deceased asked for water and when water was given, he was telling as 'Choni, Choni'. The deceased was got admitted for treatment, but died at 11.00 p.m. Distance was 4 to 5 kilometers. He supported the prosecution case.
xxxi) PW.31 - Kiran Kumar is P.C. No.2211 of Ullal Police Station. He has deposed that on 13.11.2011 at 10.10 p.m., he was in Police Station on night duty and then the Police Inspector - Sanjeev Naik told him and other staff and took in department vehicle to Someshwar village, where incident of assault has taken place. They all went behind Railway Station to house of Sandeep Shetty. The deceased was taken to A.J. Hospital and on the way, he has asked for water and when water was given, he was 40 telling as 'Choni Choni'. The deceased was got admitted for treatment, but died at 11.00 p.m. Distance was 4 to 5 kilometers. He supported the prosecution case. xxxii) PW.32 - Ravindra K is the P.C. No.314 of Ullal Police Station. He has deposed that on 3.12.2011, he carried 24 parcels to FSL, Mangalore and delivered and mud sample taken to Bangalore FSL. He supported the prosecution case.
xxxiii) PW.33 - Sanjeeva Naik is the Police Inspector. The oral version of deceased heard and registered FIR on the basis of Ex.P1. He conducted further investigation. He supported the prosecution case.
xxxiv) PW.34 - B. Puttabasavaiah, who is the Assistant Director, FSL, Bangalore has deposed that on 2.2.2012, he received mobile through PW.32. He supported the prosecution case.
xxxv) PW.35 - Damodhar is the Head Constable. He deposed that Police Inspector took him and PW.33, PW.30 and PW.31 to the scene of occurrence. He carried the articles. He supported the prosecution case. 41 xxxvi) PW.36 - Raveesh S Nayak is the Police Inspector of Jappina Moguru Police Station. He has deposed that he received control room message on 13.11.2011 at about 10.20 p.m. to 10.30 p.m. in respect of incident near Railway Station. He also went and taken injured to the hospital. Later, on 17.11.2011, he assisted for apprehension of Accused No.8 and from his house, six mobiles and 8 SIMs were seized under mahazar - Ex.P8. He supported the prosecution case.
xxxvii) PW.37 - Manjunatha Shetty, who is the Police Inspector of Ullal Police Station has deposed that on 14.11.2011, he took up further investigation from PW.33 and on 17.11.2011, Accused Nos.1 to 6 were produced and he arrested them. He recorded their voluntary statements as per Ex.P34 to Ex.P39. He conducted further investigation and filed the charge sheet. He supported the prosecution case.
xxxviii) PW.38 - Dr. Sunil Jathanna, who is the Casualty Medical Officer of Father Mular Hospital, has deposed that 42 on 13.11.2011 at 11.20 p.m. when he was in hospital, a patient - Sandeep Shetty was brought to Casualty for treatment. He supported the prosecution case. xxxix) Pw.39 - Shyam Sundar is the PSI of CCB Police, Mangalore. He has deposed that as per the direction of PW.37 - Investigating Officer, he contacted the office of Commissioner through e.mail and secured call details of mobile phones of accused as per Ex.P47 to Ex.P55. He supported the prosecution case.
Based on the aforesaid oral and documentary evidence on record, the trial Court proceeded to convict Accused Nos.1,3 and 8 for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and acquitted them for the offence punishable under Section 120B r/w 149 of IPC. By the impugned judgment, the trial Court also acquitted Accused Nos.2, 4 to 7, 9 to 11 for the offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC.
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XIII. CONSIDERATION
29. It is relevant to consider the gist of the complaint - Ex.P1 lodged by PW.1 - father-in-law of the deceased, wherein it is stated that about three years prior to the incident, the deceased Sandeep Shetty married his daughter - Sowmya and out of their wedlock, they have a son, who was aged two years at the relevant point of time. That, on 13.11.2011 himself and his wife alongwith his son-in-law and daughter attended naming ceremony function of relative of the deceased at Jappina Mogirivu village and after completion of function, himself and his wife returned to their shop in the afternoon and their son-in-law came to their shop at about 9.30 p.m. and his daughter and grand-son (wife and daughter of the deceased) remained in Jappina Mogirivu village. After closing the door of the shop, himself (complainant), his wife and son-in-law came back to their house in a car. At about 10.10 p.m. deceased Sandeep Shetty received a phone call and went to the vardanah of the house, where he was speaking and immediately, they heard the screams from the verandah and when they went there, they saw Choni @ Keshava (Accused No.1) and five others, 44 who were known by faces, assaulting and beating the deceased. When the deceased came inside the house screaming with pain, the accused No.1 and others followed the deceased and mercilessly assaulted the deceased with talwar haphazardly on right and left knee joint and left hand was cut off and also caused certain grievous injuries and chop wounds. Subsequently, Accused No.1 and others ran away towards Railway Station. Thereafter, he went to Railway Station and informed the Ullal Police through Railway Station Master. Accordingly, the Ullal Police came to his house and taken the injured Sandeep Shetty to the A.J. Hospital and subsequently, he came to know that the deceased died in the hospital without responding to the treatment. The complainant further stated in the complaint that there was animosity between Choni @ Keshava (Accused No.1) and the deceased in real estate business and also in some financial transactions and out of enmity, the incident has occurred. It is also stated in the complaint that he has seen the accused and the weapons used for commission of the offence with the help of the electric lights inside and outside the house and he will identify if they are shown to him. Therefore, he sought for taking suitable action against the accused. 45
30. At this stage, it is relevant to consider the evidence of some of the important witnesses meticulously, in detail.
31. PW.1 - Hemachandra, who is the complainant has stated in his examination-in-chief that on 13.11.2011 at about 10.10 p.m. his son-in-law - deceased Sandeep Shetty received a phone call and went to the vardanah of the house, where he was speaking and immediately, they heard the screams from the verandah and when he saw from the window, about 10-11 persons were assaulting the deceased with clubs and talwars. Thereafter, the deceased ran into the house and fell in the hall. At the same time 4-5 persons followed him and assaulted by means of talwars on his legs, hands, head and face and caused chop wounds and grievous injuries. All the persons after assaulting the deceased, ran towards the Railway Station. Immediately, he went to the Railway Station and through Railway Station Master informed the Police. Thereafter, the Police came to his house and took the injured Sandeep Shetty to the hospital. The doctor has stated that he was brought dead. He further deposed that Choni @ Keshava (Accused No.1) and many others were there and he does not know their names, but he can 46 identify them by their faces. He further deposed that there was animosity between the deceased and Accused No.11 - Chandra in some real estate business and if the assailants were shown to him, he will identify them. Accordingly, he lodged a complaint to the jurisdictional Police. PW.1 has also deposed that Accused No.1 himself has arranged marriage between his daughter and the deceased and the marriage took place in the Police Station. He further deposed that the deceased Sandeep Shetty himself has stated before the Police before he died as to who assaulted him. He has also stated that he has seen the assailants in the Police Station and he will identify if they are shown to him. He has further stated that the Police have shown him Accused nos.1,7 and 5 and other four to five persons in the Police Station. He further stated that accused, who are before the Court, had assaulted the deceased on the date of the incident. He identified Accused No.1, who is before the Court as Keshava @ Choni. Showing another accused before the Court, he has stated that his name is Chetan (Accused No.7) and he also identified Accused No.3. He has also identified the other accused and then the said accused told his 47 name as Nishanth. He has identified Accused No.8 and Accused No.4 and then the said accused mentioned their names.
32. In the cross-examination, PW.1 has admitted that the deceased and Accused No.1 are good friends. Till he reached the Police Station, except Accused No.1, he did not know the names of others. Ex.P2 - spot mahazar does not indicate the light. In the cross-examination by counsel for Accused No.2, PW.1 had admitted that he came to know from others that the deceased was involved in the rowdy activities and further he came to know the names of accused persons only when the Police apprehended and published their names in the newspaper. At the time of the incident, as his eyes were blocked out (blurred) and also due to shock, he was frightened and could not do anything. He further admitted in the cross-examination that the photos reflected in the newspaper were in the Police Station. On 14.11.2011 the Police shown to him 4 to 5 persons, who are unknown persons to him. He also admitted that in the complaint lodged before the Police, he has not given the particulars of the assailants and their identity and the clothes worn by them, but they were wearing pants. He further stated that on 48 17.11.2011 the Police shown to him 10 persons not mixed with any other persons. He further admitted that he did not know the gang members of Accused No.1.
33. From the evidence of PW.1, it is clear that in the absence of any Test Identification Parade conducted, PW.1 has identified when the accused themselves mentioned their names and when the Police stated that the assailants have been arrested. A careful reading of the examination-in-chief and cross-examination of PW.1, it clearly depicts that PW.1 identified only Accused No.1 and he could not identify the other persons. As admitted by him, they are unknown persons to him. He has identified 4 to 5 persons only after the Police shown to them that those persons are involved and their names and photos published in the newspaper. PW.1 identified 4 to 5 persons not on his personal knowledge, but on account of the paper publication and at the instance of the Police people alone. The entire incident took place within five minutes or so and he came to know the names of other persons only after the Police shown to them and therefore, there is no identification of other accused persons from the personal knowledge of PW.1. 49
34. PW.2 - Smt. Asha (wife of PW.1) has deposed that in their house, PW.1 (her husband), PW.3 (her daughter), the deceased Sandeep Shetty (son-in-law) and the grand son were residing. Her son-in-law's friend viz., Choni and others used to come to their house for dinner. The deceased Sandeep Shetty and accused used to converse over phone. She further deposed that when they reached the house after naming ceremony function on the date of the incident, the deceased received a call over mobile phone and he went outside to speak, at that time, he was attacked by a group of about 11 people and 4 people entered inside the house and assaulted the deceased. She has witnessed the incident and the persons who have entered and assaulted the deceased were Choni (Accused No.1), Preetesh (Accused No.3), Avinash (Accused No.8) and Guruprasad (Accused No.10). All these people came inside the house and assaulted the deceased. She also stated that when the Police came to the spot, the deceased himself informed the Police as to who assaulted him. When she asked her son-in-law, he informed that Choni and gang assaulted him. She further deposed that when they were on the way to their house, she has seen Accused No.1 and others in an 50 unlawful assembly. She further deposed that there was financial transaction between the deceased and Accused No.1. She further deposed that the accused assaulted the deceased with the weapons
- Mos.4 to 7.
35. In the cross-examination by the defence, PW.2 has stated that her daughter - Sowmya and the son-in-law were in their house only. She stated that Accused No.1 is their relative. She further stated that when the quarrel took place and when the Police took the deceased to the hospital, neighbours not came to the spot and thereafter, they went to the Ullal Police Station. When they taken the deceased to the A.J. Hospital, herself and her husband followed them. She further stated that when they went to the hospital, PW.33 - Inspector was there. Again, after four days, they went to the Police Station. At that time, PW.33 did not accompany them. She further deposed that when she was in the hospital, she came to know that the deceased has died. She further stated in her evidence that at the time of complaint, the deceased Sandeep Shetty was alive, but he was not in a position to speak. The said evidence is contrary to Ex.P1 - complaint. She 51 further denied the suggestion that she has not stated before the Police that Accused Nos.1,3,8 and 10 have entered the house and assaulted the deceased. She further admitted that she is not aware as to whether she told before the Police that there was a quarrel between the deceased Sandeep Shetty and PW.26 (Manoj) and they are not in good terms. She further admitted that the deceased was doing real estate business.
36. The evidence of PW.2 clearly depicts that there is an improvement in her evidence from the averments in the complaint. There is inconsistency in the evidence of PWs.1 and 2. Except naming three persons, she has not spoken anything about the other accused persons.
37. PW.3 - Soumya, who is wife of the deceased Sandeep Shetty has stated in her evidence that Choni, Manoj, Chetan and other friends of her husband used to come to their house. Once there was a quarrel on some subject and since then, they were all not in talking terms with her husband. She further stated that her husband informed the Police about Chandra (Accused No.11) and therefore, he has animosity against her husband. She further 52 stated that on the date of the incident, after naming ceremony function, her parents left the place and her husband went back at about 9.30 p.m. towards shop in the car. Thereafter, her mother initially informed her that deceased Sandeep Shety met with an accident and admitted to the hospital. Thereafter, she was informed by her mother (PW.2) that Choni and his companions assaulted the deceased. She further deposed that Choni and his companions were wandering near their house and Railway Station. Prior to 2-3 months of the incident, when they were coming in a car, the said Choni and others had blocked the road by parking the vehicles in the road and her husband avoided the said road and proceeded in another road. She further deposed that she knows Vidyadhara and he is related to Accused No.11 - Chandra. In the murder case of Vidyadhra, her husband was accused and in view of the same, there may be animosity between the Accused No.11 - Chandra and her husband. There was also quarrel between her husband and Choni with regard to land and financial matters. She further deposed that her husband once informed her that Choni and gang tried to attack him. She identified Choni (Accused No.1) and Chetan (Accused No.7), who were present before the Court and 53 stated that only those two accused persons used to come inside their house and further stated that she is not able to identify the other accused persons. In the cross-examination by the counsel for the defence, she admitted that herself and her husband belonged to different caste and it was a love marriage. She further admitted that there were various cases relating to murder, robbery and dacoity registered against her husband. She further stated that her mother informed that Choni and gang attacked the deceased Sandeep Sheety, but the same was not informed to the Police.
38. By considering the evidence of PWs.1 to 3, it clearly depicts that except Accused No.1, there is no proper identification of other accused. The evidence of PWs.1 to 3 (father-in-law, mother-in-law and wife of the deceased) is inconsistent. PW.1 stated that he identified 4 to 5 persons only after seeing paper publication and after the Police apprehended them and on his own, he has not identified any of the accused persons except Accused No.1. Though PW.2 stated entirely different version than her husband, she is not in a position to identify any of the accused 54 except Accused No.1. PW.3 (wife of the deceased) also stated that she could not identify other accused persons except Accused Nos.1 and 7. Therefore, the evidence of the alleged eye witnesses, is not consistent. Admittedly, the prosecution has not conducted any Test Identification Parade to identify the accused persons. Only in so far as involvement of Accused No.1 in the homicidal death of the deceased, the evidence is consistent.
39. PW.17 - Dr. Ullasa Shetty conducted post-mortem examination on the dead body of the deceased Sandeep Shetty from 11.10 a.m. to 1.10 p.m. On external examination, the doctor has stated that it is the dead body of a adult male, aged 26 years, weighing 70 kilograms and measuring 175 centimeters in length. He has also stated that the body is cold and stiff (kept in cold chamber) and post-mortem lividity present on the back except over pressure areas. The whole body is pale, blood stains present all over the body and body showed 54 external injuries.
40. The doctor has further stated that on 24.11.2012, the Ullal Police have sent six packed and sealed covers alongiwth 55 weapons for examination and out of six weapons, two are sickles, two are talwars and two are rods. The doctor has opined that the deceased died due to hemorrhagic shock consequent upon multiple injuries over body. All injuries are ante-mortem in nature, fresh in duration. Injury Nos.1,2,3,5,6 to 10, 12, 13, 14, 16 to 19, 24, 25, 30, 31, 33 to 40, 43 to 50, 52 to 54 are caused by heavy sharp cutting edge weapon and injury Nos.4, 11, 15, 20 to 23, 26 to 29, 32, 41, 42 and 51 are caused by sharp cutting edge weapon with a pointed tip.
41. Though according to the prosecution witnesses, initially, 11 persons formed an unlawfully assembly and attacked the deceased and thereafter when the deceased came inside the house screaming with pain, 4 to 5 persons attacked, only two talwars, two sickles and two rods were recovered. There is no clarity in the evidence of the prosecution witnesses and the Investigating Officer
- PW.37 as to which of the weapons are recovered from which of the accused and none of the prosecution witnesses/eye witnesses identified the persons who were holding talwar. Unfortunately though the Investigating Officer recovered MOs.4 to 9 - talwars, 56 iron rods as per Ex.P19, PW.24 and 25, who are the witnesses to the seizure mahazars Ex.P19 to Ex.P29 have turned hostile.
42. PW.30, the Police Constable, who went alongwith PW.33 to the spot, has deposed that there were so many injuries on the head and other parts of the body of the deceased and the deceased was in the pool of blood. They went to the spot and taken the deceased to the A.J. Hospital. While going from the place of occurrence to the hospital, on the way, the deceased asked water and accordingly, they have provided water. When the Inspector - PW.33 enquired the deceased as to what happened, the deceased stated 'Choni Choni' about 2-3 times and thereafter, he died in the hospital at about 11.00 p.m. He withstood the cross-examination with regard to the information by the injured Sandeep Shetty in the jeep that he was assaulted by Choni. He further admitted in the cross-examination that he knows the deceased Sandeep Shetty even before his death and he was a rowdy sheeter of the Police Station and he was involved in so many murder, robbery and dacoity cases. He denied that the deceased has not stated in front of them as 'Choni Choni'.
57
43. PW.31 - Police Constable reiterating the averments made by PW.30, has stated that he also accompanied the Inspector to the spot and shifted the deceased in the department jeep to the hospital. On the way to the hospital, when the Inspector (PW.33) asked the deceased Sandeep Shetty as to who assaulted him, the deceased responded as 'Choni Choni' and they have given water near pump house and thereafter, he was admitted to ICU of A.J. Hospital and within 10-15 minutes, the doctor declared that he was dead.
44. PW.33 - Sanjeeva Naik, Police Inspector, Mangalore Railways, has deposed that when he was in the Police Station on 13.11.2011, at about 10.30 p.m., he received phone call to landline and when he received the phone call, the complainant stated that his son-in-law - Sandeep Shetty was assaulted by Choni and five others with talwar and thereafter, they ran away. Immediately, himself, Gangadhar, HC 842 and Kiran, PC No.2211 went in the department vehicle to the spot and noticed Sandeep fell down in the hall with chop wounds. With the help of his staff, the deceased was taken to A.J. Hospital in the department vehicle. 58 When they were on the way to the hospital, about 2-3 times, the deceased requested for water and water was given and then, he enquired as to who assaulted him, then he told that 'Choni Choni'.
45. Nothing has been elicited in the cross-examination of PWs. 30, 31 and 33, the Police officers to discredit their statement that while taking the deceased in the department vehicle, when enquired about chop wounds, he has stated that Choni Choni (Accused No.1) assaulted him.
46. PW.37 - Investigating officer has deposed that he has taken charge from PW.33 on 14.11.2011 and he verified all the enquiry documents and he has recorded the further statement of PWs.1 and 2. On 15.11.2011, the statements of PW.3, CWs.6 and 7 were also recoded and accordingly appointed the team to apprehend the accused persons and he has also requested CCB and taken all the efforts to arrest the accused. He further deposed that on 17.11.2011 CCB Inspector - Venkatesh and his staff apprehended Accused Nos.1 to 6 and produced them before him and he enquired Accused Nos.1 to 6 and their voluntary statements 59 were recorded as per Ex.P34 to Ex.P39. He has seized talwars and rods - Mos.4 to 9 produced by the accused persons as stated in their voluntary statements under mahazars. MOs.4, 5,6,7,8 and 9 were recovered from Accused Nos.1, 2, 3, 4,5 and 6 respectively. Pants and shirts of Accused Nos.2 to 6 marked as "N, O, P,Q, R,S,T,U, V and W" were also recovered as per MOs.29 to 38 as per Ex.P20 in presence of mahazar witnesses - PWs.24 to 26.
47. Ex.P12 is the report of the Dr. Ullas Shetty on the weapons. After detailed examination of the weapons and on perusal of the post-mortem report of Mr. Sandeep dated 14.11.2011, the doctor has opined that the injury Nos.1 to 54 could be caused by the weapon Nos,1,2,3,4 (F,G,H,I).
48. PW.20 - Dr. Geethalakshmi is the Scientific Officer, who after examining 23 articles which were sent to her, has given the report as per Ex.P15. The serology report - Ex.P16 issued by her shows that human blood found on items B,C,F,G,H,I,J,K,L,M,N,O,Q,R,S,T, U,V and W, which are lungi, blood mixed cement mud, four long machus, two iron rods, pant, shirt, 60 jeans pant, T.shirt, jeans pant, T. Shirt. The stains found on articles A and P, the underwear and jeans pant were not sufficient for serological examination. The blood group of the stains in items B,C,F,G,H,I,J,K,L,M,N,O,Q,R,S,T, U,V, W and I could not be determined because the results were inconclusive.
49. In view of the aforesaid oral and documentary evidence produced and adduced by the prosecution, particularly the evidence of PWs.1 to 3 as well as the evidence of the Police officers and medical and scientific evidence, it is clear that PWs.1 to 3 have not identified other accused persons except Accused No.1. Admittedly, the learned Sessions Judge acquitted Accused Nos.1,3 and 8 for the offence under Section 120B r/w 149 of IPC and Accused Nos.2,4 to 7 and 9 to 11 of all the charges. Of course, the State filed Criminal Appeal No.1616/2016 against the acquittal of accused persons.
50. In so far as accused No.1 - Keshava @ Choni is concerned, in the complaint - Ex.P1 by PW.1, it is specifically stated with regard to the animosity between Accused No.1 and the deceased in view of land and financial disputes between them. 61 PW.1 in the complaint categorically stated that the Accused No.1 - Choni and others formed an unlawful assembly and attacked the deceased. PWs.1,2 and 3 have consistently stated in the categorical terms in their evidence with regard to the involvement of the Accused No.1 in the commission of the offence, though they could not identify other assailants. The averments of the complaint and the evidence of PWs.1 to 3 and 4 clearly depict that the motive for murder was the land and the financial disputes between Accused No.1 and the deceased. MOs.27 and 28 were recovered under Ex.P20, but the mahazar witnesses turned hostile. PW.37 recovered talwar from Accused No.1 on his voluntary statement. The evidence of the doctor - PW.17 coupled with the post-mortem report - Ex.P11 also clearly depict the involvement of Accused NO.1 in the commission of the offence. In the evidence of Police Officers
- PWs.30, 31, 33, 35 and 36, they have specifically stated that while taking the deceased from the spot to the A.J. Hospital in the departmental jeep, when PW.33 asked the deceased as to who assaulted him, the deceased has stated that 'Choni Choni' (Accused No.1) has assaulted him with talwar. 62
51. The oral and documentary evidence on record clearly depicts that the prosecution witnesses in their depositions identified only Accused NO.1 - Choni. The averments in the complaint - Ex.P1, evidence of PWs.1 to 3, evidence of PWs.30, 31, 33, 35 and 36 - Police Officials, medical and scientific evidence on record, clearly depict the involvement of Accused No.1 in the commission of the offence as there was a dispute between Accused No.1 and the deceased in respect of the landed property and the financial dispute. In the entire prosecution case, what is the role of the other accused persons and as to whether they have personal dispute with the deceased, is not forthcoming. Though PWs.1 and 2 stated that 11 persons formed an unlawful assembly and assaulted the deceased and again 4 to 5 persons entered the house and assaulted the deceased, they could not identify other assailants except Accused No.1. "As admitted by PW.1, except Accused No.1, the other assailants are unknown persons." PWs.1 and 2 came to know them only when their names and photographs published in the newspaper and on the basis of the information given by the Police. Thus, they identified the other accused with the help of the Police. As already stated supra, Test Identification Parade was not 63 conducted alongwith the others and the eye witnesses - PWs.1 and 2 have no personal knowledge of the other accused persons except Accused No.1. In the absence of the same, the contention raised by the learned Government Advocate that all the accused are involved in the homicidal death of the deceased cannot be accepted. Admittedly, the trial Court proceeded to convict accused Nos.1,3 and 8. As per the charge, Accused Nos. 1 to 4 were holding deadly weapons and Accused Nos.5 and 6 holding iron rods and there were seven charges. There is no clarity in the charge with regard to the weapons used by each of the accused persons. Admittedly, PW.1 says at the time of the incident, his eyes were blocked out (blurred) and he could not identify. The learned Sessions Judge has not considered all these aspects in the proper perspective while convicting Accused Nos.3 and 8. There is no proper identification of the accused. In the absence of the same, conviction of Accused Nos.3 and 8 by the trial Court cannot be sustained. Further, the blood group of the deceased was not identified as already stated supra and the FSL report was inconclusive.
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52. However, the findings of the trial Court with regard to conviction of Accused No.1 - Choni is supported by the averments made in the complaint - Ex.P1, evidence of eye witnesses - PWs.1 and 2, the evidence of PW.3, the evidence of Police witnesses - PWs.30, 31, 33, 35 and 36 and the medical and scientific evidence, which clearly depict the involvement of Accused NO.1 in the homicidal death of the deceased.
53. On the basis of recovery of weapons and clothes of the accused persons at the instance of Accused Nos.1 to 6 as per Ex.P19 and P20, they cannot be convicted without any corroborative evidence. Admittedly, the witnesses - PWs.24 to 26 turned hostile. Though on the basis of the voluntary statement, MOs. recovered, the witnesses to the mahazar have turned hostile. Merely on the basis of the voluntary statement and the recovery, Accused Nos.2 to 11 cannot be convicted for the alleged offences.
54. On careful perusal of the evidence of PWs.1 to 3 (PWs.1 and 2 are eye witnesses and PW.3 is wife of the accused) so also the evidence of PWs.30, 31, 32, 38 and other official witnesses and 65 mahazars - Ex.P19 and Ex.P20, under which MOs.4 to 9 and 29 to 38 were recovered (PWs.24 to 29, who are the witnesses to the said mahazars have turned hostile), it clearly depicts that two views are possible. It is well settled that there is no embargo on the appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
55. On meticulous examination of evidence on record, it is clear from the evidence of PWs.1 to 3 and PWs.30, 31, 32 and 38 that there are so many omissions and contradictions in the evidence of the prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes in respect of Accused Nos.2 to 11. It is true that due to passage of time, 66 witnesses do deviate from their Police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the Court has to take strict note thereof. On thorough reading of the aforesaid evidence of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves.
56. Further, the present case, the Test Identification Parade was not conducted by the Investigating Authority and the so called eye witnesses - PWs.1 and 2 have not identified the accused Nos.2 to 11 and in fact they have admitted in the examination-in-chief that they are able to identify Accused Nos.2 to 6 on the basis of the paper publication disclosing the names and photos and the information given by the Police. The purpose of conducting a Test Identification Parade is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory 67 of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eye witnesses to the crime.
57. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Rajesh v. State of Haryana, (2021) 1 SCC 118, wherein the Hon'ble Supreme Court held at paragraphs 43, 43.4 and 43.8 as under:
"Refusal to undergo test identification parade (TIP):
43. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinise the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which 68 have emerged from the precedents of this Court can be summarised as follows:
xxx xxx xxx xxx 43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.
43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration."
58. It is also not in dispute that PWs.1 and 2 were called to the Police Station when the accused persons were in Police lock up and the witnesses have been given an opportunity of seeing the accused in the Police lock up and based on the said source of information and on the basis of the paper publication, PWs.1 and 2 69 identified the Accused Nos.3 and 8. In the cross-examination of PW.1, he has admitted that at the time of incident, his eyes were blocked out (blurred) and he was frightened. Therefore, there are material omissions and variations in the evidence of PWs.1 and 2 and they do not know who are the real assailants. Hence, the impugned judgment of conviction passed by the trial Court against Accused Nos.3 and 8 cannot be sustained and the acquittal order passed by the trial Court in respect of Accused Nos.2, 4 to 7, 9 to 11 has to be upheld.
59. Our view is also fortified by the dictum of the Hon'ble Supreme Court in the case of Mohd. Iqbal M. Shaikh v. State of Maharashtra reported in (1998)4 SCC 494, wherein the Hon'ble Supreme Court held at paragraphs 17,19 and 20 as under:
17. The only other witness on whom the prosecution relied upon to bring home the charge against the accused persons is Krishna Harishchandra Kate, PW 10, who was also residing in Gandhi Chawl. He is the brother of PW 2 and his statement was recorded by the police for the first time on 29-1-1993. He has stated in his evidence 70 that he was called to the office of the Crime Branch where the police showed him 3 to 4 accused persons but he neither knows their names nor would be in a position to identify them in the Court even by face. It is his further evidence that he was called upon by the police 15 days thereafter and he was shown another accused person but he does not remember the name of that accused person nor is in a position to identify him in court. He also stated that he was called to the police station at Kandivili on 22-4-1993 where police showed him one accused but he does not know the name of that accused person nor can he identify the same by face. Though in the Court he had stated that between 6-12-1992 to 7-1-1993 the goondas of the locality were threatening them but he had not stated so in his earlier statement made before the police. In the Court he had also stated that he had never made any complaint on that score before. On being cross-examined he candidly admitted that he could not insert his head through the grill to see what was happening outside, and therefore, he climbed on a loft and from there he could see the incident through the window. But neither the investigating officer nor any other person has stated about the existence of such a loft. It was elicited in his cross-examination that he was sitting 71 inside the house from the time when the accused started pouring kerosene till the accused went away is not correct. A scrutiny of his evidence clearly indicates that it bristles with inconsistencies and improbabilities and the witness has contradicted from his statement made to the police which makes him thoroughly unreliable and it is difficult for us to place any reliance on the testimony of such a witness.
19. We are quite aware of the principle that in a country like India where it is difficult to find a witness who has not made any embellishment or exaggeration, and therefore, in such case court would be justified in separating the chaff from the grain and then act upon the grain. But where the evidence consists of only chaff as in the present case, the question of separating the chaff from the grain would not arise. Then again when all the eyewitnesses suffer from the same infirmities as has been discussed by us, the question of one corroborating the other would not arise. If a witness is partly reliable and partly unreliable then one may look for corroboration to the reliable part of the ocular version of a witness. But if a witness is wholly unreliable as has been assessed by us, the question 72 of corroboration does not arise. It is no doubt true that the incident with which we are concerned in the present case was a ghastly one and on account of communal frenzy several people belonging to one community were burnt alive by some others but unless and until the prosecution evidence conclusively establishes those others as the perpetrators of the crimes, it is not possible for a court of law to record conviction on mere conjectures and hypothesis.
20. As we have discussed earlier the investigating agency merely on suspicion have roped in the persons belonging to the other community who were residing in the locality and then somehow tried to get them identified through the witnesses who belong to the community from where the people were burnt alive and the learned Designated Court was swayed away by the so-called evidence of identification and based the conviction. We have already discussed as to how unreliable the evidence of these eyewitnesses is and no court on the basis of such unreliable evidence can base conviction, howsoever ghastly the crime may be. In the aforesaid premises we set aside the conviction and sentence passed by the learned Designated Court 73 under the provisions of TADA as well as under
different sections of the Penal Code, 1860 and direct that the appellants be set at liberty forthwith unless they are required in any other case.
60. The Hon'ble Supreme Court while considering the testimony of a witness who identified the accused for the first time in Court without knowing him before, in the absence of any Test Identification parade, held, would be valueless and unreliable. Admittedly in the present case, it is not the case of the prosecution that the eye witnesses have identified the accused persons before coming to the Court in the absence of any source or information or aid either from the Police or the newspaper cuttings. Therefore, the evidence of PWs.1 and 2 would be valueless and unreliable.
61. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Mohanlal Gangaram Gehani v. State of Maharashtra reported in (1982) 1 SCC 700, wherein the Hon'ble Supreme Court held at paragraphs 20 and 25 as under: 74
20. Thus, as Shetty did not know the appellant before the occurrence and no test identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr Heena when her evidence was true and straightforward.
25. The only other evidence against the appellant is that of PWs 3 and 4. So far as PW 3 is concerned his evidence also suffers from the same infirmity as that of Shetty. PW 3 (Shaikh) admits at p. 22 of the paper-book that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident. He further admits that the names of the accused were given to him by the police. In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the court, in the absence of a test identification parade the 75 evidence of PW 3 was valueless and could not be relied upon as held by this Court in V.C. Shukla v.
State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC (Cri) 561 : (1980) 3 SCR 500] where this Court made the following observations:(SCC p. 677, para
24) "Moreover, the identification of Tripathi by the witness for the first time in the court without being tested by a prior test identification parade was valueless."
62. It is relevant to state at this stage that in the statement recorded under Section 313 of the Code of Criminal Procedure, the Accused NO.1 has categorically denied the incriminating evidence adduced against him as false and further stated that there was no enmity between him and the deceased and he has not assaulted the deceased. Except the said statement, he has not offered any explanation when PWs.1 to 3 and PWs. 30 to 37 categorically stated the involvement of the accused NO.1 and the Police officials - Pws.30, 31, 33, 35 and 36 stated that the deceased himself has mentioned that 'Choni Choni' (Accused No.1) assaulted him with talwar. In the absence of any explanation offered, adverse 76 inference has to be drawn against Accused No.1 as held by the Hon'ble Supreme Court in the case of Prahlad -vs- State of Rajasthan reported in (2020)1 SCC (Crl.) 381, wherein the Hon'ble Supreme Court held at paragraph-11 as under:
11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.
63. Admittedly, the complaint does not disclose the names of Accused Nos.2 to 6 or other accused persons except Accused No.1. The prosecution proved beyond reasonable doubt the involvement of Accused No.1 in the homicidal death of the deceased so as to attract the provisions of Section 302 of IPC.
64. On re-appreciation of the entire oral and documentary evidence on record and in the light of the principles enunciated in 77 the judgments of the Apex Court stated supra, we are of the considered opinion that the trial Court is justified in convicting and sentencing Accused No.1 for the offences punishable under Sections 143, 147, 148, 447, 448, 302 r/w 149 of IPC and the prosecution failed to prove beyond reasonable doubt the involvement of the Accused Nos.3 and 8 in the commission of the offences. Therefore, the impugned judgment of conviction and order of sentence passed by the trial Court against Accused Nos.3 and 8 is liable to be set aside, in the facts and circumstances of the present case.
XIV. REGARDING THE CRIMINAL APPEAL FILED BY THE STATE
65. The State filed Criminal Appeal No.1616/2016 against the acquittal of Accused Nos.1, 3 and 8 for the offence punishable under Section 120B r/w 149 of IPC and acquittal of accused Nos.2, 4 to 7, 9 to 11 of all the charges levelled against them.
66. The learned Sessions Judge considering both the oral and documentary evidence, has recorded a finding that the 78 prosecution failed to prove beyond reasonable doubt the involvement of Accused Nos.2,4 to 7 and 9 to 11 in the commission of the offences and acquitted the said accused persons. The scope of the appeal filed by the State against the judgment of acquittal is very limited and unless this Court while considering the material on record finds that the findings of the learned Sessions Judge are perverse, this Court cannot interfere with the judgment of acquittal. This Court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial Court is found to be perverse judgment. Even if two reasonable conclusions are possible on the basis of the evidence on record, this Court should not disturb the finding of acquittal recorded by the trial Court. In the present case, the findings recorded, the reasons assigned and the conclusion arrived at by the trial Court for acquittal of the accused persons for the offences stated supra, are sound and proper.
67. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Arulvelu v. State reported in 79 (2009) 10 SCC 206, wherein the Hon'ble Supreme Court held at paragraphs 33 and 40 as under:
33. In Chandrappa v. State of Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] this Court reiterated the legal position as under: (SCC p.
432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the 80 reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
40. Unquestionably, the appellate court has power to review and reappreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be a perverse 81 judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallised by the aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court.
68. Our view is also fortified by the judgment of the Hon'ble Supreme Court in the case of Rajendra @ Rajappa and others - vs- State of Karnataka reported in 2021 SCC OnLine SC 262, wherein the Hon'ble Supreme Court held at paragraphs 9 and 10 as under:
9. The learned counsel for the appellants placed reliance on judgments of this court in the case of Shivaji Sahabrao Bobade {(1973)2 SCC 793}, wherein the scope of the appeal preferred against acquittal is considered by this Court. In the said case this Court has considered the scope of appeal against acquittal, as a matter of practice.82
Incidentally, in the said case, this Court has also held that while appreciating evidence in criminal trials, as far as the nature of depositions by rural witnesses is concerned, courts not to judge their evidence by same standard of exactitude and consistency as that of urban witnesses. In the judgment in the case of V.N. Ratheesh {(2006)10 SCC 617} power of the appellate court, in appeals against acquittal is considered by this court. Similarly in the judgment in the case of Kanhaiya Lal {(2013)5 SCC 655} this Court held has held that while dealing with appeals against acquittals unless there are substantial and compelling reasons and good and sufficient grounds and very strong circumstances, interference is not called for.
10. It is true that in various authoritative pronouncements, this Court has circumscribed the scope of the appeal under Section 378 of the Cr.PC, in cases where appeal is preferred against acquittal recorded by the trial Court. Further, it is also settled proposition that unless the view taken by the trial Court is not a possible view, normally the High Court should not interfere with the acquittal recorded by the trial Court. There cannot be any straight-jacket 83 formula to apply readily for the cases in appeals arising out of acquittal recorded by the trial Court. Whether the view taken by the trial Court is a possible view or not; whether the findings recorded by the trial Court are in conformity with the evidence or not; are the matters which depend upon facts and circumstances of each case and the evidence on record. By reappreciating evidence on record if appellate court comes to conclusion that findings recorded by the trial court are erroneous and contrary to law, it is always open for the appellate court, by recording good and compelling reasons for interference and overturn the judgment, of acquittal by converting the same to that of conviction.
69. On re-appreciation of the entire oral and documentary evidence on record and in the light of the principles enunciated in the dictums of the Hon'ble Supreme Court stated supra, we do not find any ground to interfere with the acquittal of Accused Nos.3 and 8 for the offence punishable under Section 120B r/w 149 of IPC and acquittal of Accused Nos.2, 4 to 7 and 9 to 11 of all the charges, in the facts and circumstances of the case.
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XV. CONCLUSION
70. For the reasons stated above, we answer the points raised in these criminal appeals as under:
i) The 1st point raised in these criminal appeals is answered in the affirmative holding that the trial Court is justified in convicting and sentencing Accused No.1 for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC, in the facts and circumstances of the case.
ii) The 2nd point is answered in the negative holding that the trial Court is not justified in convicting and sentencing Accused Nos.3 and 8 for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC, as the prosecution failed to prove beyond reasonable doubt the involvement of the Accused Nos.3 and 8 in the commission of the said offences.
iii) The 3rd point is answered in the negative holding that the State in Criminal Appeal No.1616/2016 has not made out a case to interfere with the impugned judgment and order passed by the trial Court insofar as acquitting the Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w Section 149 of IPC and Accused Nos.2,4 to 7 and 85 9 to 11 for the offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC, in the facts and circumstances of the case.
XVI. R E S U L T
71. In view of the above, we pass the following order:
i) Criminal Appeal No.1128/2016 is allowed in part.
ii) The impugned judgment of conviction and order of
sentence dated 22/23.04.2016 made in S.C.
No.117/2012 on the file of the III Addl. District & Sessions Judge, D.K., Mangalore in so far as convicting and sentencing Accused No.1 - Keshava @ Choni for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w Section 149 of IPC, is hereby confirmed.
iii) All the sentences in respect of Accused No.1 shall run concurrently.
iv) The accused No.1 is entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.
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v) The impugned judgment of conviction and order of sentence passed by the trial Court against Accused No.3 is hereby set aside.
vi) Accused No.3 is acquitted for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC.
vii) Criminal Appeal No.871/2016 filed by Accused No.8 is hereby allowed.
viii) The impugned judgment of conviction and order of sentence passed by the trial Court in so far as convicting and sentencing Accused No.8 for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w Section 149 of IPC, is hereby set aside and the Accused No.8 is acquitted for the said offences.
ix) Criminal Appeal No.1616/2016 filed by the State is hereby dismissed.
x) The impugned judgment and order passed by the trial Court in so far as acquitting the Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w Section 149 of IPC and Accused Nos.2,4 to 7 and 9 to 11 87 for the offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC, is hereby confirmed.
xi) The bail bonds in respect of Accused Nos.3 and 8, if any shall stand cancelled.
xii) The Accused Nos.3 and 8 shall be set at liberty forthwith, if they are not required in any other case, after following the Standard Operating Procedure, in accordance with law.
Copy of this judgment shall be sent to the concerned Jail Authorities forthwith.
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