Karnataka High Court
State Of Karnataka vs Kenchappa Shivarayappa Yettinagudda on 28 March, 2024
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CRL.A No. 100234 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100234 OF 2019 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
SAVADATTI POLICE STATION,
BELAGAVI DISTRICT,
TROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY M.B. GUNDAWADE, ADDL. SPP.)
AND:
1. KENCHAPPA SHIVARAYAPPA YETTINAGUDDA,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
2. VEERESH KENCHAPPA YETTINAGUDDA,
Digitally
signed by
AGE: 43 YEARS, OCC: AGRICULTURE,
YASHAVANT
NARAYANKAR R/O: MATOLLI-591111.
Location:
HIGH COURT
OF
KARNATAKA
3. SOMALING KENCHAPPA YETTINAGUDDA,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
4. PRAKASH KENCHAPPA YETTINAGUDDA,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
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CRL.A No. 100234 of 2019
5. SHIVARAYAPPA KENCHAPPA YETTINAGUDDA,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
6. SHIVANAND S/O. SHIVARAYAPPA YETTINAGUDDA,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
7. SURESH SHIVANAND YETTINAGUDDA,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
8. FAKKIRAPPA RAMANINGAPPA NARAGUND,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
9. MAHADEV SOMAPPA MAKI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
10. SURESH MUGAPPA ARAVALLI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
11. NAGAPPA VITTHAPPA INGALAGI @ BELAVALI,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: MATOLLI-591111.
...RESPONDENTS
(BY SRI. H.M. PATIL AND SRI. M.H. PATIL, ADVOCATES FOR R1 TO
R9 AND R11; APPEAL AGAINST R10 DISMISSED AS ABATED)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378 (1) AND
(3) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO GRANT
SPECIAL LEAVE TO APPEAL AND SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 07.02.2019 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT BELAGAVI IN
SESSIONS CASE NO.374/2011 AND CONVICT AND SENTENCE THE
RESPONDENTS / ACCUSED NO. 1 TO 6 AND 8 TO 12 FOR THE
OFFENCES PUNISHABLE UNDER SECTION 147, 148, 504, 506, 341
AND 302 R/W SECTION 149 OF IPC AND UNDER SECTION 3 (1)(X),
3(2)(V) OF SC AND ST POA ACT 1989, IN THE INTEREST OF JUSTICE
AND EQUITY.
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CRL.A No. 100234 of 2019
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
28.02.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal arises out of the judgment of acquittal passed in Sessions Case No.374/2011 dated 07.02.2019 by the III Additional District and Sessions Judge, Belagavi filed by the State represented by learned Additional State Public Prosecutor.
The facts leading to this appeal in brief are as under:
2. That the Deputy Superintendent of Police, Belagavi, filed the charge sheet against accused Nos.1 to 12 alleging that, these accused persons have committed the offences punishable under Sections 143, 147, 148, 302, 341, 504 and 506 read with Section 149 of the Indian Penal Code, 1860 (for short, hereinafter referred to as 'IPC') and Sections 3(1)(x), 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, hereinafter referred to as 'SC & ST (POA) Act').-4-
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3. It is the prosecution case that, one Manjunath Shidleppa Talawar, resident of the address so stated in the complaint filed by the complainant stating that, in his house his parents i.e., Shidleppa, Rukmavva, along with his sisters Sarita, Shaila, Pavitra and Netravati all together are residing. He is a student of PUC I year studying at KLS College, Bailhongal and used to travel from his village to attend the college.
4. It is the allegation of the complainant that, his younger sister Netravati used to attend her school. Whenever she used to go to her school and return from the school, one Shivarayappa Kenchappa Yettinagudda of his village used to force her to love him. So also, his father-Kenchappa Shivarayappa Yettinagudda used to come to the house situated by the side of his house and whenever said Kenchappa come to the neighbour's house, he used to speak in vulgar language to the mother of the complainant by name Rukmavva and used to abuse her. Kenchappa and his children i.e., Shivarayappa and -5- NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 Somappa belong to Lingayat Caste. They used to abuse by taking the name of the caste of complainant's family as Hindu-Madar and used to abuse them with their caste and give life threat to them. Even the said Kenchappa threw stones on the house of the complainant and tried to outrage the modesty of his sister Netravati. To this effect his mother lodged a complaint against the said accused persons on 21.05.2010 before the Savadatti Police Station. Based upon the said criminal complaint, the trial was conducted before the Special Court, Belagavi and the said case was ended in acquittal, though most of the witnesses supported the case of the prosecution. The acquittal order was passed on 18.07.2011. It is alleged that, thereafter his father was preparing to prefer an appeal on the said judgment and was collecting documents. Because of this preparation made by his father, the aforesaid Kenchappa Shivayarappa Yettinagudda and his children had become angry on the family of the complainant. -6-
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a) It is further alleged that, on 29.07.2011 at about 10.00 a.m., in the morning when all the family members of the complainant were in the house, at that time, 1)Kenchappa Shivarayappa Yettinagudda, 2) Veeresh Kenchappa Yettinagudda 3)Somaling Kenchappa Yettinagudda 4)Prakash Kenchappa Yettinagudda
5)Shivarayappa Kenchappa Yettinagudda 6)Shivanand Shivarayappa Yettinagudda 7)Bheemarayappa Shivarayyappa Yettinagudda 8)Suresh Shivanand Yettinagudda 9)Fakkirappa Ramaningappa Naragund
10)Mahadev Somappa Maki 11)Suresh Mugappa Aravalli and 12)Nagappa Vitthappa Ingalagi, together came on the road situated in front of the house of the complainant and started abusing stating that, though the complainant's family knew about the result of a criminal case filed against them, even if the complainant's family prefers an appeal nothing will happen and if the appeal is preferred they will take the life of complainant's family. They shouted at the complainant's family. Thereafter, went away. The neighbours like Irappa Basappa Adaki -7- NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 (Huddar), Suresh Gangappa Talawar, Mallappa Budarkattti, Ningappa Gangappa Talawar, witnessed the said incident.
b) It is further stated that, thereafter the complainant, his father Shidleppa Gangappa Talawar, his mother Rukmavva and Mallappa Irappa Angadi together wanted to go to Belagavi for the purpose of preferring an appeal by taking all the required papers. Therefore, by walk together all went towards Matolli cross and sat there waiting for the vehicle/bus. At that time, the uncle of the complainant by name Suresh Gangappa Talawar also joined them.
c) It is specifically alleged by the complainant that, at 12.00 noon on that day, all the aforesaid 12 accused persons forming themselves an unlawful assembly came towards Matolli cross and abused the complainant and his family members as "sule makkala" and shouted at them as why they are going to prefer an appeal against them and they will see that, how they will go to prefer -8- NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 appeal. They also abused Mallappa Angadi stating that, though he has given evidence against them in a Special Case but again he is accompanying the complainant's family to prefer appeal. By saying so, they gave a life threat stating that, they are going to kill them and abused the complainant's family members by taking their caste name. They assaulted by pelting stones on the parents of the complainant and the said Mallappa.
d) At that time, his mother Rukmavva scared of the same started running towards Matolli village. Kenchappa Yettinagudda, Somaling Yettinagudda and Shivarayappa Yettinagudda chased his mother, made her to fall down by catching her and assaulted her on her head and face by stones.
e) Likewise, his father Shidleppa and Mallappa Angadi started running towards Munnolli Road. The remaining accused also chased Shidleppa and Mallappa. One Veeresh Yettinagudda, Prakash Yettinagudda, Shivanand Yettinagudda, Bheemrayappa Yettinagudda, -9- NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 chased Mallappa Angadi and caught hold him, made him to fall down and assaulted him with stone on his head and face.
f) Similarly Suresh Yettinagudda, Fakkirappa Naragund, Mahadev Maki, Suresh Aravalli, Nagappa Ingalagi @ Belavali chased his father Shidleppa, caught hold him, made him to fall down and assaulted him on his face and head by using stone. The aforesaid all 12 accused together gave a threat stating that if anybody give evidence against them in the village, they will look at them. By shouting so and also abusing, they went away from the said place. The complainant scared under the impression that, the said accused may chase him. He ran away from the said place.
g) It is further stated that, by that time his uncles Suresh Gangappa Talwar, Ningappa Nagappa Talawar came there. All of them went to see the mother of the complainant, his father and also Mallappa Angadi. They noticed that, all the aforesaid three persons died on the
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 spot because of the injuries sustained by them on the head and face and blood was oozing. Thereafter, complainant and his uncles went to the elderly persons of the village and thereafter they gave a complaint before the police. In the meantime, on information police came to the spot.
h) Thus, in the complaint, it is alleged that, all the accused persons were under the impression that, the complainant would file an appeal against acquittal of the accused persons, by taking their caste abused the complainant's parents and Mallappa Angadi and they have caused the murder of his parents as well as Mallappa Angadi.
5. PW.30- Maruti Gurusiddappa Marihal the then Head Constable of Savadatti Police Station, on getting information arrived at the scene of offence. He received a complaint from the complainant and went to the police station.
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6. PW.28-Iqbalahmad Abdulrajak Sarakaji being the S.H.O. of the Savadatti Police Station on 29.07.2011 based upon the said complaint, registered the same in Crime No.318/2011 and set the criminal law in motion. The said complaint is marked in evidence as Ex.P.1.
7. During the course of investigation the Investigating Officer visited the scene of offence, prepared the panchanama of the scene of offence, conducted the inquest panchanamas on the dead bodies, sent the dead bodies for post mortem, arrested the accused persons, recovered the MOs' so marked in this case, recorded the statement of the witnesses. Sent the MOs' for forensic examination. Obtained the P.M. Reports. After completion of investigation by following all the procedure of investigation, filed the charge sheet against the accused persons for the aforesaid offences.
8. The Trial Judge framed the charges for the aforesaid offences. The Accused Nos.1 to 12 pleaded not guilty and claimed to be tried.
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9. The records of this appeal reveal that, during the pendency of the trial, accused No.7 was reported to be dead. The case against him stood abated. During the pendency of this appeal, accused No.10 is reported to be dead. Therefore, appeal against him also stands abated.
10. To prove the guilt of the accused, prosecution in all examined 34 witnesses as PW.1 to PW.34 and got marked documents at Ex.P.1 to P.94 with respective signatures thereon and also marked M.O. Nos.1 to 59.
11. During the course of cross examination on behalf of defense, Ex.D.1 is marked.
12. On hearing the arguments and on perusal of the oral and documentary evidence on record, the learned Trial Judge found the accused not guilty and acquitted all the accused persons for the aforesaid offences.
13. Being aggrieved and dissatisfied of this judgment of acquittal, the State has preferred this appeal.
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14. Respondents-accused persons pursuant to the notice appeared before this Court through their counsel. The records of the Trial Court is secured.
15. It is submitted by the learned Additional State Public Prosecutor Shri. M. B. Gundawade, that in this case there are three deaths i.e, one Rukmavva, her husband Shidleppa and Mallappa Angadi.
a) He submits that, accused Nos.1 to 12 are the main cause for the death of aforesaid all three persons. Because of the assault on the persons of these three persons by using stones, the said three persons suffered homicidal death. As per the P.M. Reports, multiple injuries have been caused by these accused persons on the persons of the deceased.
b) He further submits that, there was enmity between accused Nos.1 to 12 and parents of the complainant and Mallappa Angadi.
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c) He further submits that, as the accused Shivarayappa and his family members abused the complainant's family by taking their caste, therefore, a criminal complaint was filed under the provisions of SC & ST (POA) Act. It was tried by the Special Court at Belagavi. The said case ended in acquittal inspite of witnesses supported the case of the prosecution. Therefore, the father of the complainant Shidleppa was preparing to prefer appeal on the said acquittal.
16. The aforesaid accused persons on the day of incident at about 10.00 a.m., came on the road situated in front of the house of the complainant and abused them in filthy language by taking their caste. There was a threat that, if the appeal is preferred, they are not going to leave the complainant's family. They shouted at the complainant's family members. Thereafter, they went away.
17. On the same day itself, at 12.00 noon when the complainant and his parents and Mallappa Angadi were
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 sitting at Matolli Cross, all these accused persons forming themselves an unlawful assembly came and gave a threat to the parents of the complainant stating that if they prefer appeal, they will not leave them.
18. They shouted at Mallappa Angadi stating that, he has given evidence against them in a Special Court but, even then they were acquitted.
19. Mallappa Angadi was accompanying the parents of the complainant to prefer an appeal. They gave life threat to him. By saying so, they started pelting stones on the parents of the complainant and Mallappa. All the three persons ran away from the said place to save their life but, these accused chased them and assaulted with stones on their heads and faces and caused their murder.
20. It is submitted that, PW.1 being the complainant-eyewitness has spoken in line with the contents of the complaint and he showed the scene of offence to the Investigating Officer.
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a) He further submits that, at the instance of the accused persons, the blood stained clothes worn by them at the time of incident are recovered. According to his submission, the witnesses so examined in this case supported the case of the prosecution and the evidence of PWs.1, 2, 3 and 5 being eyewitnesses inspire confidence that, they have witnessed the incident. It is accused who have committed the offence of murder of aforesaid three persons.
b) He further submits that, the learned Trial Court without appreciating the evidence in proper perspective has disbelieved the evidence of eyewitnesses and has acquitted the accused persons.
c) According to his submission, the said judgment of acquittal suffers from illegality, perversity and requires interference by this Court.
d) In support of his submission, he relied upon both oral and documentary evidence adduced by the prosecution. He submits that, when lengthy cross
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 examination is directed to the witnesses, some minor contradictions discrepancies are bound to come in the cross examination. Therefore, according to him such contradictions, discrepancies have to be discarded.
e) He further submits that, the grounds made out in the appeal memo clinchingly establish the infirmities in the judgment of the Trial Court. Therefore, he prays to allow the appeal, set aside the impugned judgment and prays to convict the accused for the aforesaid offences.
21. As against this submission, Shri. H. M. Patil, learned counsel for accused Nos.1 to 6, 7 to 9, 11 and 12 being respondents in this appeal submits that, the very cross examination directed to PW.1 falsifies the enmity. There was no motive established by the prosecution. PW.1 is the created and a concocted witness.
a) He further submits that, in view of the evidence of PW.1 spoken in the cross examination, there was no necessity for this PW.1 to accompany his parents. He is a
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 college going boy. The evidence spoken to by PW.1 has defeated the motive.
b) He further submits that, the cross examination directed to PW.2 also falsifies the very case of the prosecution. His evidence is improbable. According to him, except the self-serving interested testimony of the witnesses, there is no acceptable evidence adduced by the prosecution. No independent witness was examined by the prosecution.
c) Furthermore, the FSL report is not obtained and produced in this case. So far as, the trial of the Special Case before the Special Court in Special Case No.171/2010 is admitted. There is no opinion from the Forensic Laboratory that, the blood stains found on the so called clothes, alleged to have been produced by the accused tallied with the sample blood collected by the Investigating Officer at the time of conducting the panchanama.
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d) He further submits that, the evidence spoken to by any of the witnesses do not help the case of the prosecution in bringing home the guilt of the accused. According to him, on proper appreciation of evidence and on its evaluation the learned Trial Court has acquitted the accused of all the offences.
e) He further submits that, as the judgment of acquittal is challenged by the State, the Appellate Court must be very slow in interfering with the judgment of acquittal, unless the impugned judgment suffers from infirmities, perversities, the Appellate Court cannot reverse the findings of acquittal.
f) In support of his submission, he relied upon the following judgments:
i) Gajoo Vs. State of Uttarakhand reported in (2012) 9 SCC 532
ii) State of Gujarat and Others Vs. Arvindkumar T. Tiwari and Another reported in (2012) 9 SCC 545
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22. We have given our anxious consideration to the arguments of both the side. Meticulously perused the records. With the assistance of learned counsels for both the sides, we have scrutinised the entire evidence in depth.
23. In view of the rival submissions of both the side, the following points arise for our consideration:
i) Whether the judgment of acquittal of the accused passed by the Trial Court suffers from infirmities, perversity, illegality and without proper appreciation of evidence?
ii) If so, whether the impugned judgment of acquittal requires interference by this Court?
24. Evidently, this appeal is filed by the State challenging the acquittal of the accused persons of the aforesaid offences. So far as powers of the Appellate Court in dealing with such appeals is well decided by the Hon'ble Apex Court.
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25. In a recent judgment of the Hon'ble Apex Court in Criminal Appeal No.1162/2011 decided on 12.02.2024 in between Mallappa and Others Vs. State of Karnataka, certain principles are laid down. In paragraph No.36 of the said judgment, the principles which come into play while deciding an appeal from acquittal are summarized as under:
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary;
ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
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iv) If the view of the Trial Court is legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
v) If the appellate Court is inclined to reverse the acquittal in appeal on a re- appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;
vi) In a case reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."
26. Thus, it is settled principles of law that, there is presumption of innocence in favour of accused unless proved guilty. It is also settled that, presumption continued at all stages of the trial and finally cumulates into facts when the case ends with acquittal. It is also settled that, presumption of innocence gets concretized when the case ends in acquittal.
27. The Trial Court on appreciation of evidence on record when finds that accused was not guilty, presumption gets strengthened. To rebut the said presumption, it is for the prosecution to rebut the same.
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 This Court being the first Appellate Court can very well re- appreciate or re-visit the evidence on record and it is a qualified power, especially when order under challenge is of acquittal.
28. Now let us evaluate the evidence led by the prosecution to ascertain that, whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt.
29. As it is a session's trial wherein we find that, there are three alleged murders i.e., of Shidleppa Talawar- father of the complainant, Rukmavva-wife of Shidleppa Talawar and Mallappa Angadi. In a case of present nature it is bounden duty of the prosecution to prove the homicidal death of these three persons.
30. To prove said homicidal death of these three deceased, prosecution relies upon the evidence of the complainant, so called eye witnesses i.e., PWs.2, 3 and 5 so also evidence of inquest panchas and the doctor who has conducted the post mortem on the death bodies of
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 deceased i.e., PW.25-Dr. Ravindrakumar Nagappa Jakkanur.
31. PW.1-the complainant speaks about assault on the deceased persons by using stones on their head and face. According to him, because of this assault on the deceased persons by using stones they died on the spot. The scene of offence panchanama prepared by the police do suggest that, where exactly the dead bodies were found. The said panchanama is marked at Ex.P.7. At the time of preparing the panchanama, police have taken the photographs as per Ex.P.8. So also police have prepared the inquest panchanamas on the dead bodies of deceased as per Ex.P.2-Rukmavva Talawar, Ex.P.3-Mallappa Irappa Angadi and Ex.P.5-Shidleppa. Photographs are marked at Ex.P.4, P.6 and P.8 to show that where the dead bodies of Mallappa, Shidleppa and Rukmavva were lying respectively. The P.M. Reports are produced by the prosecution as per Ex.P.35, 38 and 41 respectively of Rukamavva, Mallappa and Shidleppa.
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32. On scrupulous reading of P.M. Reports of all three deceased, they had sustained the following injuries:
Injuries sustained by Rukmavva:
Crushed wound of all part of the face and head and fracture of all bones of face and head and expulsion contents of cranial cavity.
Injuries sustained by Mallappa:
1) Fracture of left side occipital part of bone and expulsion of contents of cranial cavity measuring 14x8 c.m.
2) Opened suture line of temporal parietal and paris occipital part of left side part skull measuring 10 c.m.
in length.
Injuries sustained by Shidleppa:
1) Opened suture lines of temporal parietal and paris occipital part of left side part of skull
2) # left temporal parietal part of skull bone and expulsion of brain matter measuring 10x4 c.m.
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3) # of frontal part of skull and expulsion of brain matter measuring 6x4 c.m.
33. After conducting the post-mortem, it was the opinion of the doctor that, death was due to head injury. In all the aforesaid P.M. Reports it was opined by the doctor that, because of the injuries so mentioned in the P.M. Reports all the three persons died. The fact of homicidal death is not denied by the defence. Their case is of total denial.
34. So, on reading the complaint allegations with regard to the death of aforesaid three persons, inquest panachanamas, P.M. Reports coupled with the other documents and the evidence of Investigating Officer do establish, that the said Rukmavva, Shidleppa and Mallappa had suffered homicidal death. Therefore, it can be stated that, prosecution is able to establish the homicidal death of all these three persons.
35. Merely because prosecution is able to establish the homicidal death of the deceased persons, it can never
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 be stated that, it was accused Nos.1 to 12, who have committed the offence of murder of these three persons. Commission of a murder is a serious crime on the human body. The heavy burden lies on the prosecution to prove that, it was accused Nos.1 to 12 who have committed the offence of murder of these three persons.
36. It is settled principles of law that, in criminal cases prosecution is under obligation to prove its case beyond all reasonable doubt. That means, even a slightest doubt arises in the case of prosecution, that benefit of doubt has to be extended to the accused persons.
37. Now let us examine the evidence spoken to by the witnesses.
38. PW.1-the complainant reiterated the allegations made in the complaint. As per his evidence, it was accused No.5 who used to tease his younger sister Netravati and address her as belonging to Scheduled Caste. He was forcing her to love him; otherwise, he threatened that he is going to pour acid on her. This
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 evidence spoken to by PW.1 does not find place in the complaint. His sister informed the said fact to her father.
39. It is also stated by PW.1 that, often accused No.1 used to come to the neighbours house of the complainant's family. At that time, he used to insult the mother of the complainant stating that, these Scheduled Caste women have got too much ego. Because of this conduct of the accused No.1, it was informed to the elderly members of the village by name Mallappa Angadi (deceased) and Irappa Adaki. There was an enquiry and it was advised to him. But accused No.1 did not give any respect to the elderly advise.
40. It is further stated by him that, after two days of the said incident, accused No.5 dragged the hands of sister of the complainant.
41. It is further stated that, to that effect a complaint was lodged before the Saundatti Police Station. The said criminal case in Special Case No.171/2010 was tried by the Special Court at Belagavi wherein, accused
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 Nos.1, 3 and 5 arrayed in this case were the accused in the said Special Case were acquitted vide judgment dated 26.07.2011.
42. He further deposed with regard to the preparation of an appeal by his father and to that effect complainant, his parents and Mallappa Angadi were preparing to go to Belagavi for the purpose of filing appeal. He also deposed about the incident that has taken place on 29.07.2011 at 10.00 a.m., of which no complaint was lodged by them. He speaks that, the incident that has taken place at 12.00 noon on 29.07.2011. According to his evidence all the aforesaid persons came to Matolli bus stand at 11.00 a.m. Even his uncles also joined there. As there were no buses they came to Matolli Cross and sat waiting for bus. The evidence so spoken to by PW.1 that, at 11.00 a.m., all of them going to Matolli bus stand does not find place in the complaint. According to him, at 12.00 noon when they were sitting at Matolli Cross all the accused came and abused in filthy language taking their
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 caste and gave a threat that, they will kill them and see that, how they would prefer an appeal. By saying so, they addressed Mallappa Angadi that, he has given evidence against them in the Special Case and he is taking the complainant's parents to file an appeal. By shouting so, they started pelting stones. His mother having scared started running away towards Matolli village, his father started running away towards Munnoli road.
43. He further states that accused Nos.1, 3 and 5 chased his mother, the other accused chased his father and Mallappa. He states that all the accused persons thereafter, using the stones killed his parents as well as Mallappa. According to him, accused Nos.1, 3 and 5 killed his mother, though his mother requested to leave her. According to him on seeing the said murders, he could not understand where to go. Further he states that, accused Nos.2, 4, 6 and 7 killed Mallappa Angadi by assaulting him on his face and head. Mallappa requested to leave him. Likewise, accused Nos.8 to 12 chased his father and killed
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 him. His uncles followed them and requested them not to kill them. By that time, CWs.15 and 20 came there. But CW.15 went away from the said place on seeing the murder of his brother Mallappa.
44. Further he states that, after commission of murder of deceased persons accused No.6 on motorbike went towards Bailhongal and other accused went towards Matolli by crossing the landed property. When the complainant went to his mother, father and Mallappa, he noticed that, all these three were dead. Thereafter, he himself and his uncle came near Matolli cross. By that time, on getting information police reached there. According to him CW.15 informed the police. PW.1 was unable to write as he was scared therefore, CW.18 wrote the complaint as per the say of PW.1. He identified the complaint as Ex.P.1.
45. If the aforesaid evidence spoken to by PW.1 is meticulously compared with the contents of Ex.P.1, there
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 are lot of improvements in the evidence. Some recitals do not find place in the complaint.
46. He further states that, the Dy. S.P., Belagavi came to Matolli corss. He showed scene of offence to him. He took the police to the place where his mother's dead body was lying. Blood was fallen there and even broken bangle pieces and stones. The Court papers were also fallen there, police have seized them. Thereafter, he took the police to the place where dead body of Mallappa Angadi was lying. There were two stones, one plastic oil can, one towel, one hand bag and 100 rupee note. Blood was fallen there. Police after inspection seized them.
47. Further he states that, they went to the place where dead body of his father was lying. There were stones and lime box. Police seized them. Police conducted inquest panchanamas on the dead bodies. He identified all these articles including chappal which were marked at M.O. Nos.1 to 35.
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48. He was directed with intensive and searching cross examination by the defense counsels. It is his evidence that, Matolli village is 2½ k.ms., away from Matolli cross. From Matolli bus stand his house is situated at 200 feet away. The house of accused No.1 is situated at 200 feet away from his house. He also speaks with regard to the houses of other accused persons.
49. It is his evidence that, said Mallappa Angadi and his brothers were also residents of Matolli but their presence in a village was interdicted by the villagers. For the first time in the evidence he speaks such evidence. He admits that, accused No.11 was a witness on behalf of the prosecution in a complaint lodged by his mother and they tried to give evidence in the said case. He admits that in the said criminal case there were no allegations against the present accused Nos.4 to 12. He admits that, his parents and others had thought of filing an appeal against the said acquittal by having lengthy discussion. He admits that, no charge sheet was filed against accused Nos.2 and
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 4 being the sons of Kenchappa as the complainant's family were not having any enmity against them.
50. Further he states that, accused No.9 is the son- in-law of accused No.1. He is running a Tanga from Matolli to Bailhongal. Accused No.9 is having his residential house by the side of Matolli bus stand. He admits that, with regard to the murder of these three persons news appeared in the news paper. He further admits that, for using abusive words by the accused persons to the family of the complainant, no complaint was filed against the accused persons in the police station. He further admits that, in the relationship, his uncles are in cordial terms. He has studied SSLC in M.J. High School, Bailhongal. The said High School is a reputed School.
51. He further states that, if he remains absent in the school the teacher used to beat. After SSLC he took admission to KLS College, Bailhongal and he was very much regular to his college. His college used to start at 11.00 a.m. From his village, 15-20 college students used
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 to travel to Bailhongal. To attend the college he had to leave the house in between 9.45 a.m., and 10.00 a.m. He denied the suggestion that, he was regular to his college but says that, whenever he has work, he used to remain absent.
52. He admits that, in the complaint he has not recited or stated that, why he remained absent to his college on that day. He being a boy of just 18 years, what was the necessity for his parents to take along with them to Belagavi on that ill-fated day is not stated either in the complaint or in the evidence of PW.1. He states that, Mallappa Angadi was informed to accompany them to Balagavi on the previous day. He admits that, all the three persons have sustained similar injuries. He admits that, when the dead bodies were kept in the hospital, there was rigor mortis and a clot in the blood.
53. It is elicited from the mouth of PW.1 that, when they were sitting in the Matolli cross, nobody was informed that, accused persons were coming towards them. All the
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 accused persons were holding the stones in their hands. He has not counted the number of stones pelted. He has not sustained any injuries, and he denied suggestions that, accused have not thrown the stone so as to hit his parents.
54. He admits that, in the complaint he has written that, accused may also assault him therefore, he ran away from the said place by that time, his uncles came there. If this evidence is compared with the contents of the complaint, it is very much doubtful that, whether he is a real eyewitness or not. He further admits that, whenever a case is registered under the provisions of SC & ST (POA) Act, the compensation is awarded and he has taken compensation of Rs.4,00,000/-. They also have taken compensation of Rs.1,50,000/- because of registering previous case stated above. According to him, he himself has dictated the terms of the complaint. His uncles also went towards the dead bodies where they were lying. According to him at a distance of 400 feet away from
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 Matolli cross his mother's dead body was lying. Small shrubs were there in between. According to him as police asked him to give complaint, therefore he filed a complaint.
55. PW.2-Suresh Gangappa Talawar is the uncle of PW.1. According to the case of the prosecution he is a eyewitness. He states that, the incident of murder of three persons took place in between 12.00 noon and 1.00 p.m. According to him he was in the house at 12.00 p.m. He says, all the accused came and abused him in filthy language taking caste name and gave a threat that, if appeal is preferred they are going to kill them.
56. He further states that, on the said day itself at about 11.00 a.m., they came towards Matolli cross. At about 12.00 noon all the accused persons came there and abused them in filthy language stating that, if they are going to prefer appeal and if the appeal is preferred they will take their life. At that time, these persons i.e., deceased, he himself were sitting at Matolli Cross. It is his
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 evidence that, all the accused persons started pelting stones on them. Rukmavva being scared started running towards Matolli village and Shidleppa and Mallappa started running towards Munnoli road. Himself and CW.14 tried to rescue Shidleppa from the clutches of the accused and started chasing. Four accused amongst 12 accused chased Mallappa and assaulted him by holding his shirt with stone on his face and head. Shidleppa was chased by five accused persons. This PW.2 and CW.14 followed them. Shidleppa was made to fall down and he was assaulted with stone on his head and face. Accused Nos.9 and 11 caught hold the legs of the Shidleppa. Accused No.12 caught hold two hands of Shidleppa. Accused Nos.8 and 10 by holding stones in their hands assaulted shidleppa on his face and head. PW.2 shouted as accused gave life threat to him, having scared he went away from the said place. Thereafter, all the accused went away by giving life threat stating that, if the complaint is filed, they will repeat similar act. Accused No.6 ran away on two- wheeler towards Bailhongal and other accused ran away
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 towards Matolli by crossing the landed property. Thereafter, he went to see the aforesaid three deceased persons. He noticed the dead bodies of three persons at different places. Thereafter, he came to Matolli cross and informed the said fact to his brother through telephone. So also informed to the family members of CW.15.
57. He also narrates about the incident of teasing and assaulting the daughter of Shidleppa by accused No.5. He identifies M.O. Nos.1 to 35.
58. This PW.2 is directed with cross examination by the defence. According to him on that day, he heard the abusive words of accused persons and to that effect no complaint was lodged. He says that, accused were not knowing that, at what time his brother and himself would leave to Belagavi for the purpose of preferring appeal and accused were not knowing about the same. He further admits that, when the accused were abusing them the neighbouring people were there. He deposed ignorance that, whether his brother has brought any paper on that
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 day. He says that, whenever the criminal case is schedule for evidence, Rukmavva and Shidleppa used to attend the Court. He has studied upto 10th standard. According to him, in the month of July, every agriculturist has got too much work in the agricultural land. He himself is cultivating his land. He further states that, for the purpose of preferring an appeal his presence was not required. He is eking his livelihood by doing agriculture. The fact of abusive words used by the accused was not informed to the Saundatti Police Station by him. In the said street there are 20 houses and there is a small concrete road in front of his brother's house. The house of accused No.11 is situated in front of the house of his brother and there is no dispute between him and accused No.11.
59. According to him, on that day, all the accused came in a group. He admits that, from his village, students go to Bailhongal, Hosur, Murgod to attend their respective High Schools. He admits that, at Matolli cross
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 five roads join from different places. There exists one old Saundatti road. He admits that, at the said cross two wheelers, four wheelers, eight wheelers ply. He admits that, at the northern side, there exists a shed and from the said shed the people board the bus. He admits that, in the bus stand 'shed' always people are available. According to him, from his village 10-15 students go to High School. Likewise, 10-12 students attend the college. All the students go to their respective schools and colleges at different time. He says that, if any students miss the bus or any people miss the bus they come to Matolli cross and board the bus/vehicle. Within 10-15 minutes they came to Matolli cross on that day. According to him suddenly all the accused came there. At that time, they were talking with each other. Therefore, they did not see the arrival of accused persons.
60. He says that, for two minutes they threw the stones but said stone did not hit them. All of them were sitting together. Further he states that, he had shown the
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 stone to the police. For fifteen minutes no vehicle came there. There were exchange of words in between accused persons and themselves when the accused threw the stones. He has stated before the police stating that, they requested the accused not to throw the stones.
61. It is his further evidence that, he has not seen the assault on the person of Rukamava. He saw the accused chasing Rukmavva from at a distance of 200 feet. Further he states that, when Mallappa and Shidleppa were running away, Shidleppa was ahead and Mallappa was following him. When Mallappa was caught hold, he was chasing him. He has not made any attempt to rescue Mallappa. He gave the reason that, brother was ahead therefore, he did not rescue Mallappa. They abused him by taking his caste. But this fact was not informed by him to the police. Further he states that, dispute is in between his brother and accused Nos.1, 3 and 5. The houses of other accused are situated at different places.
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62. If the evidence of this PW.2 is compared with that of PW.1, we find much contradictions and discrepancies and improvement in the evidence of both these witnesses. If the evidence of PW.1 is accepted with regard to his presence at the spot, then the evidence of PW.2 cannot be believed as truthful evidence. If such an evidence is placed on record by the prosecution as rightly submitted by the learned counsel for the accused, it requires corroboration.
63. PW.3-Ningappa Gangappa Talawar is the brother of the deceased Shidleppa was also a person who accompanied Shidleppa, Mallappa and Rukmavva as per his evidence. But the presence of this PW.3 is not stated by PW.2. Simply it is stated by PW.1 that, his uncles accompanied him. He also speaks about the incident that has taken place on that day in between 9.30 a.m., and 10.00 a.m. To that effect no complaint was lodged. According to his evidence all these persons were moving towards Belagavi and first they came to Matolli bus stand.
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 As the bus did not come there, therefore, they went to Matolli cross. According to PWs.1 and 2 the accused persons started pelting stones on them. But PW.3 states that, when accused Nos.1 to 12 threw stones in between 11.30 a.m., to 12.00 noon, they all were standing. He further states that, they were threatening and throwing the stones therefore, all of them ran away helter-skelter. Thereafter, Mallappa Angadi, Rukmavva were chased by accused. Rukmavva was running towards Matolli village, accused Nos.1, 3 and 5 chased her. Mallappa ran away towards Munnoli road, accused Nos.4 and 7 chased him. Shidleppa was running towards Munnoli road, accused Nos.8, 9, 11, 12 chased him. He himself and his brother PW.2 Suresh tried to rescue but accused did not leave them. All the five accused persons killed them. Accused Nos.9 and 11 were found caught hold Shidleppa's legs. Accused No.12 caught holds his hands. Accused Nos.8 and 10 assaulted his brother on his head. Though he, and his brother requested the accused persons to leave them but
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 they did not heed to their request. He and PW.2 ran away from the said place.
64. According to him after committing murder all the accused came towards Matolli cross. Himself and others followed them. There was an apprehension that, something may happen to PW.1. At that time PW.15 arrived there. Accused abused all these persons stating if evidence is given against them they are not going to leave them.
65. In the further cross examination he states that, he is not residing at the street where his brother Shidleppa was residing. He is doing fishing business. Whenever agriculturists call him, he goes for a coolie work. He has not given statement before the police. He admits that, as per the request of his brother on 29.07.2011 he accompanied his brother. He states so, for the first time in the Court. He was not a witness in the case in respect of his brother's daughter. He has not attended the Court in that case. He catches fish at Malaprabha river. He goes to
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 catch fish everyday at 7.30 a.m., and in the month of July also he has gone to catch the fish. He is having 12 fish nets.
66. He states that, his brother and his brother's wife used to reside separately and used to take care of their affairs. He admits that at Matolli cross five roads join. Further he states that, no stone was hit on him, and PWs.1 and 2. According to him, some stones were fallen there. Accused were at a distance of 10-15 feet at that time. He cannot say the size of the said stones used by the accused. He has not witnessed that, on which part of the body of his brother he was assaulted. According to him, Mallappa was rescued from the clutches of the accused by him. When he was rescuing Mallappa, blood did not stain him. He caught hold the hand of Mallappa. He did not try to rescue Rukmavva. Shidleppa's dead body was found fallen at a distance of 1 k.m., away from Matolli cross. He has not made an attempt to rescue him by catching the accused persons. He further admits that,
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 prior to the previous Special Criminal Case, there was no dispute between his family and accused and they were in cordial terms. The said Special Case was against some accused only. The other accused were not the accused in the previous case and there was not enmity between them.
67. If the evidence of PW.3 is scrupulously perused and compared with the evidence of PWs.1 and 2, we find quiet inconsistent, discrepant and improved evidence spoken to by PW.3. On reading the evidence of PW.3, it clearly goes to established that his presence in the scene of the offence at the time of incident itself is doubtful.
68. PW.4-Smt. Neelawwa Shankarappa Janti was examined by the prosecution to prove the contents of Ex.P.2-inquest panchanama on the dead body of Rukmavva. According to her evidence, she was called by the police on 29.07.2011 to the place where dead body of Rukmavva was lying. She noticed the facial and head injuries on the person of the deceased Rukmavva. It was
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 PWs.1 to 3 showed the scene of offence. In her presence police conducted the inquest panchanama and seized M.O. Nos.4, 7 and 8. She has been cross examined by the counsel for the accused. According to her she has not given statement before the police. When she went to the scene of offence, she noticed the lying of dead body of Mallappa and by the left side of his dead body Rukmavva's dead body was lying. She says that, M.O. No.18 is a stone consisting of red and white colour. She further states that, such stones are available at Arbhavigudda.
69. On reading the evidence of this PW.4 it do suggest that, she was very much present when inquest panchanama was conducted by the police as per Ex.P.2 in her presence. So also seizure of M.O. Nos.4, 7 and 8. But she says that, she noticed the lying of a dead body of Mallappa and on left side of Mallappa's dead body, dead body of Rukmavva was lying. This evidence is quite contrary to the evidence of Pws.1 to 3.
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019
70. PW.5-Gangappa Irappa Angadi is none other than the brother of Mallappa Angadi. According to him, he also accompanied his brother to Matolli cross on that day at 11.30 a.m. At that time, he noticed running of Rukmavva by shouting herself towards Matolli village. He saw her when he was near the agriculture land of Murgeppa and Shankareppa. According to him, accused Nos.1, 3 and 5 were chasing her. Near the land of Dodamani they made Rukmavva to fall down and assaulted her on her face and head. He heard the voice of his brother Mallappa. He noticed that, his brother Mallappa was moving towards Munnoli road and accused Nos.2, 4 and 6 were chasing him.
71. He further states that, accused Nos.6 and 7 caught hold his brother's legs and accused Nos.2 and 4 assaulted him on his face and head by using stones. His brother was bombarding and blood was oozing. Being scared he was standing in the land.
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72. He further states that, the other accused Nos.8 to 12 were chasing Shidleppa. Thereafter, he came towards Matolli cross. By that time, all the accused by shouting themselves came near them and gave a threat. Accused No.6 went away towards Bailhongal on a two wheeler. They went towards Rukmavva Talawar, Mallappa and Shidleppa and noticed their death. The incident has taken place at 12 noon on that day. Police came to the scene of offence at 1.00 p.m. Because of Netravati, the said murders have taken place.
73. He has been intensively cross examined by the counsel for accused. He admits in his cross examination that, his father was doing Gundagiri (rowdisum) and he was fired and killed. After selling their property at Hosur village they came to Matolli. He further states that, his brother Mallappa was accompanying Shidleppa and Rukmavva to go to Belagavi. It is elicited that, whether they had a talk with accused persons, but he says that, he did not talk with them. He says that, from his house one
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 has to walk 2 k.m., to reach Matolli. He has not come to Matolli cross at 10.30 a.m., on that day and sat. He admits that, at the said cross the people of 7-8 villages used to come. Even from Munnoli-Bailhongal road two wheelers, four wheelers also ply on the said road. He admits that, at Matolli cross generally people are available. According to him, when Rukmavva was assaulted he was in the land of Madiwaleppa Gaddi. He noticed oozing of a blood from the injuries sustained by Mallappa. He admits that, in between the place he standing and the place of assault there exist small shrubs. Even there is some land on the upper side.
74. On reading of the evidence of this PW.5 it shows that, at one breath, he says that he has seen the assault on Rukmavva, Mallappa and Shidleppa who ran away from the said place helter skelter. Is it possible to a person to see all such events at the same time which took place in his presence of assault of these three persons at different places is a mystery. When his brother was being
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 assaulted as per his evidence, the concentration obviously would be on the said alleged assault. The evidence of this PW.4 appears to be full of embellishments, exaggerations and improvement. Even he states that, accused Nos.10 and 11 have no nexus to the first crime. He further admits that, on the Munnoli-Bailhongal road there exists trees on either side of the road, in the landed properties the crops were grown. He cannot say from what distance he noticed the said assault. He admits that, by standing in the land of Murgeppa one cannot see Munnoli road. At a small distance from the place from where Shidleppa's dead body was lying there exists a channel. Thus, the evidence of this Pw.4 is full of contradictions, omissions and discrepancies. If such evidence is placed on record, it requires corroboration.
75. PW.6-Dundappa Shidalingappa Bashetty was inquest pancha to Ex.P.3 conducted by the police in respect of deceased Mallappa. This fact is not denied by the defense. According to his evidence, when he went to
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 the scene of offence, he noticed the dead body of Mallappa. He further says that, on that day Rukmavva and Shidleppa also died. He further states that, behind the dead bodies of Mallappa and Shidleppa there were grass and the lands were similar. So also behind the dead body of Rukmavva the similar land is situated. According to him, at the same and one place all the three dead bodies were there. He has not identified his thumb impression on Ex.P.3. He further states that, the people were talking there that there was an accident. At the instance of police he put his thumb impression. The evidence of PW.6 if compared with the evidence of PWs.1 to 5, we find quite inconsistent evidence with that of other witnesses.
76. PW.7-Mallikarjun Mahadevappa Kiragi, is also pancha to the Ex.P.3. As per his evidence he signed Ex.P.3 as pancha and in his presence M.O. Nos.11 to 13 were seized. According to him, deceased Mallappa was his uncle and he signed the panchanama at the instance of the police. To the extent of his presence at the scene of
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 offence at the time of conducting the panchanama, his evidence is to be accepted.
77. PW.8- Ashok Vasant Kalageri is pancha to Ex.P.5 in whose presence inquest panchanama of the dead body of Shidleppa was conducted. M.Os' were seized. According to him, police first conducted the inquest panchanama on the dead body of Rukmavva and further he says that, for the purpose of preparing panchanama only he went there. The factum of preparation of panchanama is not denied by the defence.
78. As per the evidence of PW.8 on 13.07.2011 in between 10.00 a.m. and 11.00 a.m., police called him to Matolli cross and conducted the panchanama as per Ex.P.7 the place where Rukmavva was murdered. Seized MO No.2 and 8 in his presence. At the same place, he noticed presence of plastic bag, green bangles, saree, blood stained soil, dry soil, two stones. Likewise, he was taken to the place where Mallappa was murdered. He noticed the presence of blood stains at the place where the dead
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 body was lying, dry soil, three stones, towel, plastic bag and etc. They are marked at M.O. Nos.9 to 13. Thereafter, they were taken to the place where the Shidleppa was murdered there they noticed the stones, dry soil, blood stained soil etc. The police seized the same which are marked at M.O. Nos.15 to 19. At the same day they prepared panchanama and snapped four photographs marked at Ex.P.8. On the same day itself he was taken to Saundatti Police Station at about 1.00 p.m., and prepared the panchanama there. There the police took the complaint regarding threat given by the accused to Shidleppa. He was also taken to Matolli near the house of deceased Shidleppa Talwar. There the police prepared panchanama of the scene of offence of threat and seized the clothes of Rukmavva, Mallappa and Shidleppa as per M.O. Nos.20 to 22, 25 and 26. Police also seized the payjama of Mallappa, a Nehru shirt, towel and Rs.100/- which are marked at M.O. Nos.28, 23, 31, 24 respectively. So also seized M.O. Nos.32 to 34. The clothes of
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 Shidleppa which are shirt, pant, half pant, baniyan were seized under panchanama as per Ex.P.10.
79. Though this witness has been cross examined by the defense, but he is consistent about seizure of the articles in his presence by the police. Thus, his evidence can be accepted to the extent that, he was very much present when the aforesaid M.Os' are seized by the police so also in his presence the above stated panchanamas were prepared. To that extent we believe his evidence.
80. PW.9 - Bhimappa Basappa Muttennavar is pancha when accused Nos.2 to 4 lead the police to the house of accused No.2 and produced a blood stained pant and shirt and thereafter, accused No.3 lead the police to his house and produced his blood stained pant and shirt before the police. So also accused No.4 lead the police to his house and produced his blood stained pant and shirt. To that effect, police prepared the panchanama as per Ex.P.11.
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019
81. It is further stated by him that, even accused No.2 also produced the half sleeve shirt, chocolate pant before the police. The said MOs' have been seized by the police under Ex.P.12. At that time, police snapped the four photographs as per Ex.P.14. This witness identified the said clothes as MO Nos.37 to 40. He too has been cross examined by the defense. According to his evidence, he cannot say that, why he alone was called by the Saundatti Police Station. He is doing motor rewinding work and has studied upto 9th standard. To show that, he was not present when the aforesaid panchanamas were prepared and MOs' were recovered certain questions were directed to this witness. But as per his evidence, it was accused Nos.2, 3, 4 led the police to their respective houses and produced aforesaid MO Nos.32 to 37. Whether such a recovery of MOs' like the blood stained clothes alleged to have been worn by the accused persons were really recovered as per the provisions of Section 27 of the Indian Evidence Act, 1872 (for short, hereinafter referred to as 'the Act, 1872), there is no evidence placed on record
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 by the prosecution. That means, very recovery of these MOs' show that, the police were knowing about the said concealment of the said MOs' and they themselves took these accused persons and recoveries were made. Thus, unless the said MOs' are recovered at the instance of the accused by following the strict provisions of Section 27 of the Act, 1872, such a recovery cannot be stated to be recovery as contemplated under the provisions of the Indian Evidence Act, 1872. Mere presence of PW.9 when the said MOs' are recovered is not sufficient unless there is a legal recovery. Such aspect is missing in this case.
82. PW.10 - Mallikarjun Sundar Kelageri is another pancha. According to his evidence, on 12.08.2011 himself and one Bhimappa Ramageri went to Saundatti and they went to the Police Station about 10.00 a.m., on that day as police called them. As per the statement of accused No.12, as he has told that he will show the clothes, they went to Murgod via Yaragatti from Saundatti and went near Ajjana Bridge cross road leading to Bailhongal. At a
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 distance of 50 feet away from the said place there was a hut. From there accused No.12 produced blood stained Nehru shirt and payjama. Police seized the said MOs' under Ex.P.15 which were marked as MO No.42 and 43. Evidently, the said place is a public place where the said hut is situated 50 feet away from the Ajjana Bridge. From that place the said MOs' are seized. Whether said hut was locked and where those MOs' were concealed by the accused No.12 is not stated by this PW.10. He has been thoroughly cross examined by the defense. Though he states with regard to his presence, but as it is a public place, it is argued that anybody must have kept the said MOs' in the said hut. Therefore, such a recovery of MO No.42 and 43 cannot be stated to be proved by the prosecution. There is some substance in the submission of counsel for the accused. It is elicited that, in the said hut nobody was there and even this PW.10 is unable to give the boundaries of the said hut. Even he states that, he did not notice any person working in the agriculture land
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 surrounding the said hut. So this evidence goes against the case of the prosecution.
83. PW.11 - Nagappa Basappa Kalabhavi, is another witness who was working as a driver on Cruiser vehicle under one Mallikarjun Penter. He used to ply the said cruiser vehicle to Bailhongal. According to him, when the aforesaid murders were took place, he was at Hubballi at that time. He has been turned hostile. Nothing worth is elicited from his mouth. Therefore, his evidence will not come to the aid of the case of the prosecution.
84. PW.12 - Somaningappa Siddappa Kelageri is another pancha to Ex.P.7 under which MO Nos.1 to 19 and 24 were seized from the place where the panchanama was conducted as shown by Manjunath Siddappana. He also speaks of snapping photographs as per Ex.P.8. The said panchanama was conducted in front of the house of deceased -Shidleppa. He identifies panchanama at Ex.P.10 to the place where the clothes were seized. This witness is cross examined at length. As per his evidence, at about
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 6.30 a.m., in the morning on 30.07.2011, the police came to his house and went to the place where dead body of Rukmavva was fallen at Matolli cross. He speaks that, at Matolli cross the five road approaches and near the Matolli cross itself there was a place where the dead body was fallen. It is stated by him that, to go to another place where another dead body was fallen, one has to cross from the Matolli cross. According to him, police started writing the panchanama from the place where Rukmavva's dead body was fallen and thereafter, went to other places where the dead bodies of Mallappa and Shidleppa were fallen. They seized the articles. According to him, to the place where the dead bodies were lying, two chappals were found as if they were kept there. They went to the place where the dead body of Mallappa was fallen and seized articles. Likewise, he has stated about seizure of the MOs' from the place where the dead body was found. To the extent of his presence when the panchanama was conducted, his evidence is to be accepted.
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85. PW.13 - Netravati Shidleppa Talawar is the daughter of deceased Rukmavva and Shidleppa. As per the case of the prosecution it was she who was responsible for the incident. According to her evidence, in the year 2011 she was studying 10th standard at M.K.C.R. School, Bailhongal and she used to attend the college by travelling in a bus. When she was so travelling, accused - Shivarayappa used to tease her and used to force her to love him and gave a threat that, she belongs to lower caste and he will not permit her to marry other persons and abused her by taking name of the caste. He also gave a threat to her stating that, if she fails to love him he will throw acid on her and kill her. Because of this threat, she informed the said fact to her parents. In turn it was informed by her parents to the elderly persons of the village i.e., Irappa Adike and others. The said elderly persons of the village called accused No.1 and advised him not to continue such illegal acts against this witness. But, before the elderly persons accused No.1 has told that, he has not committed any mistake and it was informed to her
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 parents that this Netravati herself is not correct. Accused Nos.1 and 5 gave a threat to the parents of this witness stating that, they will see that how they will perform the marriage of this witness. After eight days of this incident, this witness had gone to a shop for the purpose of bringing sugar and rice. When she was returning, accused No.5 catch hold her hands and clothes, dragged her and forced her to love him. He also touched her person. She started bombarding. At that time, her mother and Irappa Adike came there and by seeing them accused No.5 ran away from the said place. When her parents are thinking of filing of a complaint, at that time, accused No.12 came to her parents and told that, they belong to Schedule Caste and they will see that, how they would file a complaint. At that time, all the accused persons pelted stones on the house of the parents of this witness and also damaged the ceiling and caused loss. Therefore, her mother went to Saundatti Police Station and lodged a complaint. It is her further evidence that, in the said criminal case, herself, sister, Mallappa Adike and her parents gave evidence
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 against the accused but the said criminal case ended with an acquittal. It is her further evidence that, as the case was acquitted her parents thought of filing of an appeal. It is her further evidence that, on 29.07.2011 at about 10.00 a.m., when her parents were in the house, all the 12 accused came and made galata. They gave a life threat. Thereafter went away. Her parents went to Belagavi for the purpose of preferring appeal. At 12 noon her brother Manjuanth telephoned her stating that, all the 12 accused have caused the murder of her parents and Mallappa Angadi at Matolli cross and asked her to come along with inmates. Accordingly, all the inmates of the house come to Matolli cross and noticed the dead bodies and aforesaid MOs'. Her brother narrated the said incident to her.
86. In the cross examination it is elicited that, at the time of giving evidence before the Trial Court she was aged 22 years. As she is not an eyewitness to the said incident and came to know about the incident only through telephone by her brother, her evidence can be accepted to
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 the extent that she came to know about the incident only through her brother that to on telephone conversation. She states that, accused No.5 used to eve-tease her and forced her to marry. But this fact is denied by the defense. She admits that, when she gave statement before the police she has told to the police that at 10.00 a.m., on 29.07.2011 her parents, her brother and her sisters were in the house. According to her answer, on 07.05.2010 she did not attend her school. She has been cross examined at length.
87. According to the prosecution, because of the incident that has taken place with this PW.13 there was a initial complaint filed by the mother of this PW.13. Rukmavva which culminated in filing of a special criminal case. The said criminal case ended with an acquittal. Thereafter, when the parents of PW.13 along with deceased Mallappa and others were going to Belagavi for the purpose of preferring appeal on the judgment of acquittal, the said incident has taken place. In the cross
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 examination the other aspects are brought on record with regard to her education etc..
88. It is the specific defense of the accused that, on the previous night of the incident her parents and Mallappa were coming from Belagavi towards Matolli cross at that time, because of the mistake of the driver of the truck in which these three were travelling are because of sudden application of brake, all the three persons fell down from the truck and because of rolling the truck wheel on them, the said three persons died. But this defense so set up by the accused is denied by PW.13 and she has stated that, it is false to say that, they died because of truck accident. It is elicited that, when she went to Matolli cross already police were there. It is suggested that, as they were not knowing about the truck registration number which has caused the accident therefore to get the compensation a false complaint is filed against the accused persons. But this suggestion is denied by this PW.13. A lengthy cross examination is directed to this PW.13. But
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 with regard to said incident as she was not eyewitness to the said incident, no evidentiary value can be attached to the evidence of this witness with regard to murder of aforesaid three persons.
89. PW.14 - Irranna Mallapa Angadi is the son of deceased Mallappa and he speaks about eve-teasing by accused Nos.5 to PW.13 and also forcing her to love him. He also speaks that, he came to know about murdering of his father, Shidleppa and Rukamavva. On hearing this news, he went to Matolli cross and noticed the dead bodies of aforesaid three persons. He is a hearsay witness. As he arrived at the scene of offence only after hearing the news of alleged murders, his evidence cannot be accepted as the evidence connecting the accused persons that they have committed the offence in the manner stated by the prosecution.
90. PW.15 - Pundalik Gangappa Kammar is the brother of deceased Shidleppa and he knew the accused persons. He also speaks about eve-teasing the accused
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 No.5 to the daughter of Shidleppa. According to his evidence, there was advice to accused No.5 not to eve- tease the PW.13. He came to know about murder of the aforesaid three persons and thereafter, went to the said place. He is a hearsay witness and his evidence cannot be accepted. He has identified certain MOs' which were found at the scene of offence. He has been treated as hostile witness by the prosecution so also cross examined by the defense. He admits that, at the said Matolli cross there is growth of shrubs and he came to know about murdering of three persons from PW.1 and PW.5. According to him, he went to the places where the dead bodies were lying and noticed the presence of aforesaid MOs'. He being hearsay witness, much value cannot be attached to the evidence of this witness.
91. PW.16 - Prakash Gurappa Kammar is the photographer. According to him, 30.07.2011 at the instructions of Saundatti Police Station he was taken to Matolli cross and there he snapped four photographs as
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 per Ex.P.8. To the extent of snapping the photographs, his evidence is to be believed.
92. PW.17 - Somappa Yallappa Kalled is the neighbouring land owner situated by the side of Hosur- Munnoli road. But he do not know the survey number of his land. He deposed complete ignorance. He has been treated as hostile witness, but nothing worth is elicited.
93. PW.18 - Gangappa Neelappa Yenagi and PW.19
- Yallappa Bhimappa Kalled have been turned hostile. No evidentiary value can be attached to the evidence of these witnesses.
94. PW.20 - Girishprasad Venkatesh Prasad Revadi is the photographer who snapped the photographs as per Ex.P.20 to P.25 at Matolli cross after 2-3 days of the incident. So also snapped the photographs as Ex.P.12 to P.14 and P.26. He cannot say as per his evidence that, the said hut as scene in Ex.P.20 to P.25 belongs to whom.
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 He being a photographer, his evidence is to be believed to the extent of taking the photographs.
95. PW.21 - Aiyalappa Amalappa Kadarapur was an engineer at the relevant time. He drew the sketch as per Ex.P.29 as per the letter addressed by the Investigating Officer as per Ex.P.28. According to his evidence, he has not shown hand pump in Ex.P.29 to sketch. He states that, as per the instructions of the police he has prepared the sketch. He has not shown any shrubs situated by the side of the scene of offence. According to him, he noticed the presence of 6-7 feet height of sugarcane crop in a agriculture land situated surrounding the scene of offence. To the extent of preparing Ex.P.29, his evidence is to be believed.
96. PW.22 - Maruti Basappa Ajjankatti has produced the dead body of Mallappa Angadi before the doctor after conducting the inquest panchanama. To the extent of his role of producing the dead body, his evidence is to be accepted.
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97. PW.23 - Gouramma Shivanand Salimath was a WHC, at Saundatti Police Station at the relevant time. She produced the dead body of Rukmavva to the doctor for the purpose of conducting post mortem and in her presence MO Nos.20 to 26 were seized. This fact is not disputed by the defense.
98. PW.24 - Sharadha Chandrashekhar Kolkar was the Tahasildar Saundatti in between June-2009 and August-2012. She has issued the caste certificates as per Ex.P.31 to P.34 based upon the local inspection report and Revenue Inspector Report. These caste certificates are not disputed by the defense.
99. PW.25 - Dr. Ravindrakumar Nagappa Jakkanur has conducted the post mortem on the dead body of Rukmavva Shidleppa Talawar and noticed the following injuries on her person.
Injuries sustained by Rukmavva:
Crushed wound of all part of the face and head and fracture of all bones of face
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 and head and expulsion contents of cranial cavity.
100. So also conducted the post mortem on the dead body of Mallappa Angadi and noticed the following injuries no his person:
Injuries sustained by Mallappa:
1) Fracture of left side occipital part of bone and expulsion of contents of cranial cavity measuring 14x8 c.m.
2) Opened suture line of temporal parietal and paris occipital part of left side part skull measuring 10 c.m.
in length.
101. So also conducted the pm on the dead body of Shidleppa and noticed the following injuries no his person:
Injuries sustained by Shidleppa:
Opened suture lines of temporal parietal and paris occipital part of left side part of skull # left temporal parietal part of skull bone and expulsion of brain matter measuring 10x4 c.m.
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 # of frontal part of skull and expulsion of brain matter measuring 6x4 c.m.
102. According to the doctor, he examined the stones produced by the Investigating Officer for the purpose of examination and he identified the post mortem reports issued by him as per Ex.P.35, P.38 and P.41. He has been intensively cross examined by the defense. According to him, on examination of the stones examined by him he has given his opinion. In the cross examination he has stated about commencement of rigor mortis after death of the victims. According to him, in the month of July there is a cold environment. In line with the contents of PM Reports he has spoken in his evidence with regard to noticing of injuries and also cause of death have been stated by him in his evidence on oath. The homicidal death of these three persons is not in dispute. But the only defense of the accused is that, these three persons might have died because of accidental injuries and not by the assault as alleged by the prosecution. The evidence of
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 PW.25 is to be accepted to the extent that, he has conducted the post mortem and issued the PM Reports of the dead bodies. As per his evidence, the injuries so noticed in the PM Reports may be caused in a road traffic accident. He further denied all other suggestions.
103. PW.26 - Linganaik Siddanaik Naik was the constable at Munvalli out post, wherein after conducting the post mortem he collected the clothes and produced them before the Investigating Officer. To that extent his evidence is to be believed.
104. PW.27 - Ramesh Hanamantappa Chikkannavar has carried the First Information Report to the Court to a Special Court Judge and reached the same at 00.15 a.m., on 29.07.2011. First Information Report is at Ex.P.52. To the extent of carrying the First Information Report and reaching the same to the jurisdictional Sessions Judge, his evidence is to be accepted.
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105. PW.28 - Iqbalahmad Abdulrajak Sarakaji was ASI at the relevant time. He registered the crime in Crime No.18/2011 of Saundatti Police Station and set the criminal law in motion. Though lengthy cross examination is directed to him but, he denied all the suggestion directed to him.
106. PW.29 - Parashuram Narayan Tanjekar was the head constable at Saundatti Police Station at the relevant time. As per his evidence, on 07.09.2011 he carried MO Nos.1 to 42 to the FSL, Belagavi for the purpose of chemical examination and produced the same before FSL. To that extent his evidence can be accepted.
107. PW.30 - Maruti Gurusiddappa Marihal was the Head Constable at the relevant time of Saundatti Police Station. According to his evidence, on 29.07.2011 when he was in the Police Station CW.5 received the information regarding murder of three persons at Matolli cross. Immediately on receipt of information went to the said
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 place and CW.54 recorded the statement. To that extent his evidence is to be believed.
108. According to him, when he reached at Matolli cross on that day, it was about 12.45 p.m., to that effect he has reported to his superior office. He wrote the said complaint sitting in the Matolli bus stand. He received the complaint at about 1.30 p.m. He has denied other suggestions. To the extent of he taking the complaint his evidence is to be accepted.
109. PW.31 - Prashant Suresh Nayak was the PSI Saundatti Police Station at the relevant time. On getting information on 29.07.2011 he went to the Matolli cross along with his staff and received the written complaint from PW.1 and the same through a constable. He identified the complaint as per Ex.P.1. Thereafter, handed over investigation to Dy. S.P. According to his evidence, he arrested accused Nos.2 to 4 at Pacchapur at Hukkeri Taluk and produced before the Investigating Officer. He denied all the suggestion in the cross examination. It is
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 elicited that, he does not know whether the said complaint at Ex.P.1 was written by M. S. Madhav he has not enquired or questioned the PW.1. To the extent of receiving the complaint his evidence is to be accepted. He admits the contents of complaint stating that, PW.1 ran away from the said place because of fear. Though lengthy cross examination is directed to him but he has withstood the test of cross examination.
110. PW.32 - Malagouda Shankargouda Naikar was CPI at the relevant time of Saundatti Circle and he arrested accused Nos.1, 5, 10 and 11 at Anigol - Bailhongal and produced the report as per Ex.P.62 before the Investigating Officer. To that extent his evidence is to be believed.
111. PW.33 - M. S. Ghori was the Dy. S. P., at the relevant time. On taking of the investigation, as per the orders of the Superintendent of Police, Belagavi, he went to the scene of offence i.e., Matolli cross. In the presence of panchas, he prepared panchanamas on the dead bodies
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 of the Rukmavva, Shidleppa and Mallappa and recorded the statements of the witnesses. He being the Investigating Officer in this case has completed the investigation by recording the statements of the witnesses, recovery of the material object, recorded the further statement of the complainant and other witnesses. At the instance of the accused persons as per his evidence, he has recovered the material objects i.e., clothes being worn by the accused persons at the time of incident and recovered the same. A lengthy cross examination is directed to this witness. He also has requested the engineer to prepare the sketch. He collected various documents, sent the recovered articles for the purpose of chemical examination and collected necessary documents. He has been cross examined by the defence. According to his evidence, as per the direction of Superintendent of Police he took up the investigation. He admits that, the inquest panchanama to Ex.P.2, P.3 and P.5 are the relatives of deceased persons. He admits that, Ex.P.2, P.3, P.5 there is a mentioning of the injuries
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 sustained by the deceased on their face and head. He states that, all the three dead bodies were found lying in a gross area being seen in the background of the photographs. He admits that Ex.P.8 by the side of the dead body of Shidleppa no stones are seen. So also by the side of dead body of Mallappa Angadi in Ex.P.4 no stones are seen. So also by the side of dead body of Rukmavva in the photographs at Ex.P.65, P.64, P.66 no stones are seen. It is not written in the panchanama where the said stones are lying. He has not seized any stones from the Matolli bus stand. According to him, there is wrong mentioning of the scene of offence in Ex.P.29 as situated in the middle of the Matolli cross. For rectification of the same, he has not taken any steps. He admits that, PWD engineer has shown the scene of offence as middle part of the Matolli road in the rough sketch. He admits that, in the said rough sketch the engineer has shown the said place as fighting spot. According to his evidence, PWD engineer has drawn the said sketch on 31.10.2011 but,
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 the incident has taken long back, he has denied all the suggestion directed to him.
112. In all criminal cases, panchas are the authors of the panchanama and the Investigating Officers are the supervisors of the investigation. Unless there is corroborative evidence to the evidence of the panchas and Investigating Officer, there evidence become formal in nature. Whatever the role they played with regard to the preparation of the panchanamas and investigation, there evidence is to be accepted. But it is the bounded duty of the Investigating Officers also to speak about the situation of the scene of offence, apprehension of accused persons, their arrest, and recording voluntary statements of the accused and at the instance of the accused recovery of incriminating articles. Unless these factors are proved in accordance with law, there evidence cannot be accepted as truthful evidence. No doubt the investigation is an official act, but there should not be any lapse in the investigation.
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113. PW.34 -Gadigeppa Yamanappa Havalappanavar is a coolie in his presence Ex.P.73, P.78, P.79 photographs are taken and Ex.P.22, P.25 have been taken. He has been turned hostile. According to his evidence, after handing over the clothes, the accused persons became naked and he cannot say that, on which date which accused produced the clothes. As he has been turned hostile, no evidentiary value can be attached to the evidence of this witness.
114. On perusal of such evidence placed on record by the prosecution, we find quite inconsistent evidence spoken to by the witnesses stated above.
115. So far as documentary evidence is concerned, as stated above prosecution much relied upon the documents which are marked at Ex.P.1 to P.94. So also material objects marked at M.O. Nos.1 to 59. Ex.P.1 is the complaint filed by the complainant - Manjunath, narrating about the incident prior to the so called incident of murder and thereafter. But, his evidence if looked into, it is full of improvements and embellishments. His very
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 presence at the scene of offence when the incident has taken place itself is doubtful in view of other evidence recorded by the prosecution. So far as photographs produced at Ex.P.4 shows about the place of lying of the dead bodies, so also the inquest reports and PM Reports. On reading of these documents, all the three victims in the said incident sustained similar injuries. The very falling of the dead bodies at various places as stated by the witnesses and also at the time of conducting the panchanama falling of the dead bodies at one place create doubts. Most of the panchanamas so marked in this case are not duly proved in accordance with law. Though there is a seizure of the clothes being worn by the accused persons stained with blood but, those material objects were recovered which were concealed in the landed property which is a public place. All the deceased sustained crush injuries. It is the defense of the accused that as these three deceased were travelling in the truck on the previous day of the incident and because of application of the brake they fell down from the truck
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 came under the wheel of the truck and sustained said injuries. Because of ill-will and animosity just to get the compensation, false case is foisted against the accused. The Trial Court have assessed the evidence and has come to the conclusion that the evidence placed on record by the prosecution do not inspire any confidence and hence, by holding that prosecution has failed to prove the guilt of the accused therefore, acquitted the accused persons.
116. It is submitted by the learned Additional State Public Prosecutor that, PWs.1, 2, 3 and 5 are the eyewitnesses and they have supported the case of the prosecution. PW.25 doctor has given opinion that, death was due to crush injuries. But, on scrupulous reading of evidence of these PWs.1, 2, 3 and 5 they are all the related witnesses to the deceased Shidleppa and Rukmavva. PW.1 is the son of deceased Rukmavva and Shidleppa and PWs.2 and 3 are the brothers of the deceased and PW.5 is the brother of deceased Mallappa.
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117. According to the prosecution, these three witnesses have seen the said incident. In an offence of present nature when prosecution relies its case on these eyewitnesses and when these eyewitnesses are very much present as per the case of the prosecution when the incident has taken place, the evidence of these eyewitnesses which is interested and inimical, their evidence has to be approached with a little caution. It is a case of triple murder. When the Trial Court has acquitted by assigning the reasons about non proving the guilt of the accused, the presumption of innocence of the accused is strengthened because of the acquittal by the Trial Court. The law is that, if two views are possible, the one taken by the Trial Court in favour of the accused should be retained.
118. In this case the entire prosecution version hinges on the evidence of PWs.1, 2, 3 and 5. The said witnesses are relatives of the deceased as stated above and accused belonged to the same village. A bare reading of the evidence of these witnesses however shows that, it
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 cannot be relied upon. They appear to be chance witnesses and have not been able to explain the circumstances which brought them to the place of incident. No attempt was made by PWs.2, 3, 4 and 5 to rescue the deceased persons from the clutches of accused persons and their evidence is that though they saw the chasing of the deceased persons by the accused but, they did not do any hue and cry. There is no evidence to that effect. One witness says that he was in the landed property and another witness states that he was away from the scene of offence at that time and saw the incident from at a distance. The conduct of these PWs.1, 2, 3 and 5 when they saw the incident is truly amazing. After the incident as per the evidence of PW.1, it was discussed with the elderly members of the village and thereafter filed a complaint. According to PW.1, he narrated the incident to another witness and he wrote the complaint.
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119. It is true, as has been contended by the learned Additional State Public Prosecutor Shri. M.B. Gundawade that, some allowance may be made by the fact that, the incident has split over to three size when the so called deceased tried to run away from the said place to save their lives but, the two witnesses stated supra had been so overtaken by fear on account of the accused holding the stones. But, there is no proper explanation offered by them. To our mind, the explanation offered by PWs.1, 2, 3 and 5 is unacceptable and they have tried to hide the real fact.
120. PW.1 has stated that, after confirmation of his relatives and uncles filed a complaint. Further he has stated in the cross examination that, when the accused were found assaulting his mother Rukmavva, father Shidleppa and Mallappa, he ran away from the said scene of offence to escape himself from the clutches of the accused on the ground that accused may also assault him.
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 He admits that all the deceased persons have sustained similar crush injuries.
121. Evidently the place of incident as per the case of the prosecution is situated at Matolli cross. It is a public place where the vehicles ply on the five approaching roads and also the people who intend to go to various places of their respective destinations come to the said Matolli cross. They wait for the vehicle. So may persons also get down from the vehicle. It has come in the evidence that surrounding the scene of offence and the Matolli cross there exists agricultural lands and the agriculturist usually work in their respective lands. As per the case of the prosecution the said incident took place at 12 noon in a broad day light. That means the vehicles must be moving on the said road and the people also must be there surrounding the area. As rightly agreed by the counsel for the accused, prosecution has relied upon the evidence of only PWs. 1, 2, 3 and 5. That means no such independent witness is examined by the prosecution. As per the
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 evidence of PW.1, his uncles P.Ws. 2 and 3 came to the spot after some time of the occurrence of the incident. That means, these PWs.2 and 3 can be branded as hearsay witnesses. As per the say of PW.1, they have deposed before the Court. As per the evidence of the PW.5 he too rushed to the stop after the incident.
122. It has come in the evidence that, as per the contents of the complaint, the accused persons made galata near the house of the Shidleppa in the morning at 10.30 a.m., and gave life threat to him so also Rukmavva and Mallappa. To prove the said fact though the neighbours of the deceased Shidleppa, Rukmavva and Mallappa were very much available at 10.30 a.m. near the house of the complainant who have seen the said incident but, the prosecution has not examined any of the independent witnesses. They would have been the best witnesses to prove about the incident i.e., alleged in the complaint at 10.30 a.m., on that day.
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123. As per the evidence of PWs.1 and 3 the dead bodies of all these three persons were lying on the side of the road. On scrupulous reading of the photographs showing the lying of the dead bodies, the background of all the dead bodies is one and the same. That means as per the evidence of PWs.1, 2, 3 and 5 deceased Shidleppa and Mallappa started running from Munvalli road and Rukmavva started running towards Matolli village. By chasing these three persons accused hacked them to death. If the version of PWs.1,2 3 and 5 is believed then how come the dead bodies were found in one place is not explained.
124. On reading the evidence of Investigating Officer, he categorically admitted that in the photographs so taken as per Ex.P.64, 65 and 66 the stones marked and other objects marked at M.O. Nos.5 to 7, 11, 12 , 17 and 18 are not seen. Even it is admitted by the Investigating Officer that the background of the said photographs is one and the same and were found lying on the road side. The
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 neighbouring land owners are not examined. That means except the evidence of PW.1 whose presence itself is doubtful at the scene of offence when the alleged incident has taken place, there is no further concrete evidence adduced by the prosecution to connect the accused person being the authors of the crime.
125. So far as medical evidence is concerned as the evidence of PW.5 - the doctor when he conducted the post-mortem, he noticed spreading of rigor mortis on the dead bodies. As per his evidence rigor mortis starts after the death of six hours and completes within 12-18 hours. As per the medical jurisprudence, it all depends upon the body temperature and surrounding. As per PW.1, the said incident of murder took place at 12.00 noon and post- mortem was conducted at 5.30 p.m., that is within 5-6 hours. When rigor mortis starts after six hours of the death, it completes within 12-18 hours then it shows that, the death must have been caused much prior to 12.00 noon.
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126. It is argued by the counsel for the accused that, in view of this discrepancy with regard to the time of death of deceased persons which is not properly explained by the prosecution gives room to draw adverse inference that, the death has not taken place as stated by PWs.1, 2, 3 and 5 in the manner stated by them.
127. It is submitted that the so called alleged incident took place in the month of July, being the rainy season and the climate was cold. As per the evidence of PW.25 the deceased sustained crush injuries on their persons. Similar injuries were sustained by all the three deceased persons.
128. It is submitted that as per the case of the prosecution these accused persons chased all the three deceased persons and hacked them to death. It is submitted that if these three deceased persons were chased and assaulted by the accused persons, was it possible to sustain similar injuries as noticed by the doctor while conducting the post-mortem? If a person is chased
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 and assaulted, it is quite natural according to the learned counsel for the accused that, the said victim would sustain the injuries on the other parts of the body. How come all these deceased sustained same injuries by different assailants is a mystery as per the augments of counsel for the accused. There is some force in the submission of the counsel for the accused.
129. When the scene of offence panchanama was conducted, the Investigating Officer took the photographs and drew the sketch stating that where exactly fighting spot is situated. To that effect the Assistant Engineer PWD was examined as PW.21 who has drawn a sketch. As per his evidence the dead bodies were lying in the lands shown in the sketch as per Ex.P.29. It has come in the evidence of the engineer i.e., PW.21, that he drew the sketch as per the say of the head constable. As per the directions of the Investigating Officer photographs were snapped. In this case as stated supra, the prosecution has examined only interested witnesses i.e., son of the
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 Rukmavva and Shidleppa and brothers of the deceased Shidleppa and Mallappa. The daughter's evidence is otherwise.
130. We find a material discrepancy between the testimony of PWs.1, 2, 3 and 5 and medical evidence and that of the Investigating Officer. The un-natural conduct of PWs.2, 3 and 5, the brothers of Shidleppa and Mallappa which we have noticed from the record is that, though they were present at the time of occurrence, no attempt was made by them to save their brothers and Rukmavva from the assault. PW.1 was a boy and he tried to explain in his examination-in-chief that, he scared of the said incident therefore, he ran away from the said place with a fear that he also would be assaulted by the accused. No attempt was made by these PWs.2, 3 and 5. There was no intervention by them. The assailants were armed with stones as per the case of the prosecution. Therefore, it seems very un-natural that two brothers of Shidleppa and one brother of Mallappa present at the spot will not even
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 make slightest attempt to intervene and try to save Shidleppa, Rukmavva and Mallappa being assaulted, merely on the threat extended by the assailants armed with only stones. This un-natural conduct is totally against natural human behaviour castes a serious doubt of shadow on the presence of eyewitnesses on the spot at the time of occurrence. Moreover, the facts stated by the PW.1 complainant - Manjunath in this regard, as already discussed above, has not been corroborated by other witnesses.
131. The other un-natural conduct of PWs.2, 3 and 5 is that, just after the incident again makes their presence on the spot extremely doubtful. One of the three witnesses stated above went away from the said place. No effort is alleged to have been made to either shift the injured to any hospital or even inform the police. It is highly un-natural that these three real brothers of Shidleppa and Mallappa respectively including PW.1 being a college going boy made no efforts to save the lives of
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 the victims who were severely injured if they were present at the place of incident. The police came thereafter, on getting information as per the evidence. This in itself castes serious doubts of shadow on the prosecution story that, these PWs.1, 2, 3 and 5 were present on the spot. They would have given the names of all the assailants. That means the facts discussed herein above makes the presence of PWs.1, 2, 3 and 5 at the place of occurrence all the more doubtful and highly improbable. Since there are serious doubtful aspects in the conduct of PWs.1, 2, 3 and 5, do not appear to be natural, and hence it would not be safe to accept their evidence without corroboration.
132. Further, there is material discrepancy between the eyewitness's evidence and medical evidence. In the facts and circumstances of the case, there is a serious lapse on the part of the Investigating Agency in conducting the proper investigation. Under the provisions of the Indian Evidence Act, 1872, the evidence of the witnesses is classified as wholly reliable and wholly unreliable. There
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 is exuberated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the facts situations and the peculiar circumstances of a given case. In a case of present nature we have to assess the quality of the evidence and not the quantity. In this case we find no quality and credibility in evidence produced by the prosecution. Prosecution has failed to establish the circumstances in which the accused assaulted the deceased persons. At the cost of repetition, as we are dealing with the appeals against acquittal, as discussed above way back in the year 2007, the Hon'ble Apex Court has laid down certain guidelines with regard to the appreciation of the evidence by the Appellate Court while dealing with such judgment of acquittal challenged before the Appellate Court in the case of Jai Singh and others Vs. State of Karnataka1, it is held as under: 1
(2007) 10 SCC 788
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 "Held, presumption of innocence is strengthened if an accused is acquitted by the TC - if two views were possible, the one taken up by the TC in favour of the accused should be retained."
133. The learned Trial Court has relied upon some judgments of the Hon'ble Apex Court with regard to the appreciation of the evidence of eyewitnesses, medical evidence etc. When there is a consistent evidence of PW.1 i.e, parents and Mallappa were waiting for the bus/vehicle at Matolli cross, these accused persons formed themselves as unlawful assembly and started plenting stones on them. At that time, all these victims started running to save their lives, but the accused chased and assaulted them with stones. At that time, this PW.1 ran away to save himself and thereafter he returned. Then he saw his mother, father and Mallappa died due to assault by the accused persons.
134. It is observed by the Trial Court that, the very presence of PW.1 at the time of incident is doubtful.
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 Though it has come in the evidence of PW.1 that, after the incident police came to the spot but there was no filing of a complaint immediately. He consulted his elders, uncles and gave complaint to PSI PW.31. One Shri. S. R. Madar, witness wrote the complaint as dictated by PW.1. The said Shri. S. R. Madar was not examined. It has come in the evidence of PW.1 that, for filing of initial complaint under the SC & ST (POA) Act, the family of the complainant had received Rs.1,50,000/- compensation and towards this incident they have received the compensation of Rs.4,00,000/- from the Government. That means, as per the arguments of the counsel for the accused for the sake of getting compensation from the Government, false complaints are filed by the family of the complainant. PW.1 admits that, his uncles and PW.5 were not present at the time of galata and they came thereafter. PW.13 being the daughter of Shidleppa and Rukmavva is not an eyewitness as discussed above. So also PW.14 is the son of Mallappa is not an eyewitness.
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135. It has come in the evidence of doctor that, the injuries so notice in the P.M. reports may be caused due to motor vehicle accident. The doctor has clearly admitted in his evidence that, the crush injuries found on the dead bodies may be caused due to road traffic accident. Except the injuries noticed in the P.M. Reports, no other injuries are found on the dead bodies. The doctor evidence is quite contrary to the evidence of the prosecution. The Trial Court has discussed all these aspects and has come to the conclusion that the evidence placed on record by the prosecution do not inspire confidence and has observed that, the offences under the provisions of Sections 147, 148, 341, 302, 504 and 506 read with Section 149 of IPC are not proved. So also to attract the provision of SC & ST (POA) Act, there is no evidence placed on record as rightly appreciated by the Trial Court. Thus, if we re-appreciate the evidence placed on record by the prosecution, threadbare, there are inherent improbabilities in the prosecution story and the conduct of PWs.1, 2, 3 and 5
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 eyewitnesses is inconsistent with ordinary course of human nature.
136. We do not think that, it would be safe to convict the accused persons upon the un-corroborated testimony of these eyewitnesses. This view has been taken by the Hon'ble Apex Court in the case of Selveraj Vs. The State of Tamil Nadu2 wherein, on an appreciation of evidence the prosecution story was found highly improbable and inconsistent of ordinary course of human nature, the benefit of doubt has to be extended to the accused.
137. On the facts of the present case, it can be said without hesitation that, prosecution has reasonably failed to prove the alleged offences beyond doubt by adducing cogent and trustworthy evidence. In view of the foregoing discussion, it can be stated that, the Trial Court has discussed the evidence at length and has rightly come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. 2 (1976) 4 SCC 343
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 Therefore, we are also of the considered view that, the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. The incident does not appear to have happened in the manner in which the prosecution wants the Court to believe it had happened.
138. Since, the prosecution has reasonably failed to prove the guilt of the accused beyond all reasonable doubt and then the accused/respondents therefore, must be given benefit of doubt. Under such circumstances, the appeal filed by the State fails and is liable to be dismissed. Accordingly, points for consideration are answered against the prosecution.
139. Resultantly, we pass the following:
ORDER
(i) The appeal filed by the appellant-State is dismissed.
(ii) The judgment of acquittal passed in Sessions Case No.374/2011 dated 07.02.2019 by the III Additional
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NC: 2024:KHC-D:5902-DB CRL.A No. 100234 of 2019 District and Sessions Judge, Belagavi, is hereby confirmed.
(iii) Bail bonds of accused/respondents on record, if any, stands cancelled.
(iv) Send back the Trial Court
records along with copy of this
judgment forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
SMM
List No.: 1 Sl No.: 30