Karnataka High Court
State Of Karnataka By Harohalli Police vs Annaiah Uppaiah on 14 December, 2010
Bench: V.G.Sabhahit, S.N.Satyanarayana
« IQ .« 03" IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE M' DAY OF DECEMBER, 201'd'>I. PRESENT THE HONBLE MR JUSTICE v.G.SABHA'EIT'_ "' AND THE IIONELE MR JUSTICE Sfixz S'A*I":IA'NA-IRATANA _ CRL.A.NO.1768/a'2Qf}--1A' BETWEEN: STATE OF I<ARNATAI<A'*--. _ 1 BY HAROIIALLI POLICE '- APPE3LLA1\§T (BY SR1 P M NATEAZ, ADDLEPP-}.,°'~°'_j_w~. I A AND: ANNAIAH--"U«PF'IAI!\§i,.,,,,_ -- ' 25 YRS, HARIJAN ,, " _ COOLIE, SI.DDI'DEv.ARAHALLI MARALAWADI NOBLE 4; ' KANAKAPURA TALUK « A IEAIIGAIAH @'HRAAJU " _ S./O YELAVAIAH 25'~v¥RS';~-EARILIAN ." COOLIE', SIDDEDEZVARAHALLI MARAFLAWADI HOBLI E" KANAKAPURA TALUK DASAIAII S/O KEMPAIAH 36 YRS, HARIJAN COOLEE, SIDDIDEVARAHALLI l\J MARALAWAD1 HOBLI KANAKAPURA TALUK 4 VENKATESH S /O VANDIR @ MUTHAIAH 23 YRS, HARIJAN COOLIE, SIDDIDEVARAHALLI MARALAWADI HOBLI KANAKAPURA TALUK «§R'ETSII>'OI$§DENTSVV: _ (BY SRI V LAKSHIVHKANTH RAO ANDE SRI M SATISHA, ADVS) THIS APPEAL IS FlLED'*.LJI*§DE§R-VjS1é§CTI0N 378(1) 85 (3) Cr.P.C. PRAYING TO GRANT AN APPEAL AGAINST THE".~_ILI1'DGI£zIEI§I*:i'..«:AND~v%'IQRDE'R OP ACQUITTAL DATED "PjAS 'S.ED--" I:BY__~ THE LEARNED H ADDL.DI_STRI§:-T EANGALORE RURAL DISTRI_cT_, - SVANGA'LOR«E:"'-I.N A S..c.No.74 / 1999 ACQUITTING THE RESPONDE_N*IiS_ ;'--~..Acc'USED NOS.1 TO 4 FOR THE OEPENcE"~..PUNIS.IIAI3L~E7' UNDER SECTION 302 R/w ._ SE.C§TIOI~: 34 IPO; I _ _ A3{'P'EAL HAVING BEEN HEARD AND RESERVED FOR JUD_G;MENT, COMING ON FOR PRONOUNCEMENT THIS..DAY, SABHAHIT, J., DELIVERED THE FOLLOWING: '\.;J JUDGMENT
This appeal is filed by the State being aggriev_ecl_byi~the judgment of acquittal by order dated _ the Court of 11 Additional District 85 .Se'svsio_ns"=:J'udge,"= Bangalore Rural District, I-3ang'a41or:e*..i--n *,Se'ss'i'on'slif-..CEi:e.e No.74/1999 wherein accuseld'«--..uNos.ll1-._ V4 ijeF=..pon_tl;lente._:llf» herein, have been acquitted of committed offence punishable under r,{_bvi'..fl_bb34
2. The materialiit7act5:"0fi--.ltlie lc'a.lse':lw-il'eading up to this appeal are If stood charged before the trial :'--,_Courtidt}.iat_vl'eon'.._ii2'8§1.191998 at 10.30 a.m. near le,'l with the common intention, Maralairadi » villa accused NoS;1_llto committed murder of Venkatesha or knowingly by causing the death of said .ilb3.t"'stabbing him with knife and assaulting him with C_;lubs«l"'on his head and thereby committed the offence punishable under Section 302 r/w Section 34 IPC.
3. It is the case of the prosecution as unfurled in the H complaint filed by P.W.1 -- Basavaraju, s/o Durgaiah that Venkatesha (deceased) had illicit relationship with Kempamma, d / o Munimaraiah of Sididevarahalli about 4.00 p.m. on 27-11-1998 there was Venkatesha (deceased) and Annaiah -3 regarding the said relationship.
10.30 a.m. he was talking totihi__s brother--in--1,aw'gV~--::Nagaraju.:0", and Venkatesha and at that 1 4 came and asked Venkatesha by having illicit relationship up quarrel with him, 1 him on his stomach the knife which he was holding assaulted Venkatesha with the head, accused No.3 -- Dasaiah had» caught of lfenkatesha and Raj, s/o Vandari ' gais"sa'ul--ted"Venkatesha with hands. Thereafter, Venkatesha went to separate Venkatesha from the aCcused,lli'li7?ltli' that time, accused No.2 threw the club and accu"se_d~ No.1 ran away with knife which he was holding and wother accused also ran away from the spot. Thereafter, ?Venkatesha succumbed to the injuries and died. 2:
E =: 1 V-,/3
4. On the basis of the said written compiaint fi1_-ed by P.W.1, P.W.12 who was working as PSI, Harohaiii"-.iFf0ii'ce Station received the said complaint as "
Thereafter he went to the spot and -prepa 'I'E.'C"i_,' the iiV1'iq:L16iS1; as per E)x.P--2 and during inquest, of the witnesses who were ipr.efse_nt there.' thew FIR as per EX.P--8 andodurién-g--* he i has aiso seized M.Os.8 82; 9 -- blood stained mud from the place where d.e<ad body' ihody was sent to post -to Officer, Primary Health. .. 7: «i iimpifw. 10 -- Dr.Shi\/aputhra Guru:i3--asa}'§pai "i conducted post mortem examinatiori mortem examination was over, ciotitievsiiand aopareis which were on the body of the deceased ~ .}:3roVd1iced by him and were seized under Ex.P--3 and 'ftirther'iiivestigation in the case was handed over to P.W.13 -- KR)' Ptititathimmegowda who was working as CPI, Harohalli.
who was working as CPE, Harohalli verified the i"w.:iiiv'estigation already conducted on 30-11-1998 and at 7.00 "ip.m. accused Nos.1 to 4 were produced before him. He K fé. < fl'
-.; =.» .-.
.4 recorded their voluntary statements. On l~12--1998, accused No.1, on the basis of his voluntary staterne1Jt,".led them and panchas -- P.W.14 and another and took _ ~ M.C).1 by the side of Maralavadi road ._ seized under panchanama ~ i=.Ex.§?~--ilf%3 i*riar1.dthe'reaft.er Investigating Officer has recorded further stat'crne_nt of tiiejifi witnesses. He received post iimortem examination report Ex.P~6 from P.W. 10. ii£.e.':Vsen'--f.i the vseiVzed"~articlesi for chemical examination. Tghereafterthe-.Vcoifn1olete~di investigation and filed a charge isihegettg "--ia'*g.g1,1rsed. Thereafter he received the c'h_e;mical'e.2§ar1:ination}rej:>ort as per E3x.P--14. The case».}iVa,sii'ctoirnrnitted to the Sessions Court as the offence was tr_ianle' Court of Sessions. The learned Sesisiion~s Judgeframed charge against accused Nos.1 to 4 of . ihagvinvg iconirnitted the offence punishable under Section 302 IPC. All the accused pleaded not guilty and cliaimvrto be' tried. The prosecution, to bring home the guilt of is the accused, examined P.Ws.1 to 14 and got marked the i"'._iid'o*cuments EXs.P--1 to 14 and produced M.0s.l to 9. The statements of the accused under Section 313 Cr.P.C. were recorded. The defence of the accused is one of total denial and it is their case that a false complaint has been fo:i's.ted against them. The accused did not lead evidence.
6. The learned Addl.Sessions?Judge, the contentions of learned counsel appearing for"~.ther~parties'* and after appreciating; the oral i:a_r1dii"document.aIy'§ evidence produced before him, 11-9-2001 held that the evidence of «Varieieye witnesses to the the case of the iicoritrddictions and there are of incident, about the overt-
acts, accused in the complaint has not been clriargeiA'sheeted----Vandthe person who is charge sheeted as ' _a'ccused.pNoi.'4. _-- Venkatesh is not the person who is referred "tor-.rln'Vth"_e--._ complaint; that there is material contradiction the evidence of P.Ws.l,5 81. 8; P.Ws.6 8:. 7 have not 'upported the case of the prosecution and even recovery has been proved in accordance with law and therefore, he if has held that accused are entitled to benefit of doubt as the 9
9. The learned counsel appearing for the respondents submitted that the trial Court has rightly held4.tha't:'i.t_he evidence of P.Ws.1,5 81; 8 is not truthful, cogent _ in view of the inconsistency in their evidence»;v--._rfeco'v¢ry Inasa. not been proved in accordance with l,avuj:and 'view'vV.of contradictory statements of P:.W__s. 1, ane:1"i':/review evidence of P.Ws.6 85 7 who hlavediot supported case of the prosecution, the the trial Court is justified. Healso=subrIiitte'd:.ltii.at.shaving regard to the limited' against acquittal, the judgment: does not require any interi.erenceL"T[_.. N 10l]..I;~Iiaving.regai'd_l_.'to the above said contentions, the points that arise for our determination in this appeal are:
Whether the finding of the trial Court that ii-v.~i"the prosecution has failed to prove beyond reasonable doubt that the accused have committed the offence punishable under Section 304 r/W Section 34 IPC is justified or calls for interference in this appeal? (2) What order?
10
We answer the above points for determination as under":
(1) The finding of the trial Court is justiiieidiyaiid does not call for interference;
(2) in view of answerv-to'point7_;No_V.ii4{ii1");"aiipeal is liable to be disriii..ssei_d " "fo£'~._t:1+iei" f.'c31j'i¢,~.Afi:':g.
P63801183
11. The learned' it ns through the evidence of Pv.Wds..1' the documents -
E3xs.P-1 to. P.Ws.1,5,6,7 82; 8 are.thci"e§:?e However, P.W.6 8:5 7 have not s11;§po1=ted_t1*1eA c'ase'of the prosecution. M 12. Basairaraju is the complainant. P.W.5 -- &N"agar?aj.u,"l-AP.W.t3"#~""Sadashivappa, P.W.7 -- Nagaraju and Channamaraiah are the eye witnesses to the iir_1_clident.iii: - Krishnappa is a pancha for the inquest -- P.W.3 -- Muniyamma is the mother of the deceased she has spoken to about illicit relation of accused No.1 with Kempamma and she is not an eye witness to the \,_ . \ "Cm? \:
. _?_ , .33 ll incident. P.W.4 -- Rangappa is the elder brother of deceased Venkatesha and he has been examined to prove the_rnoittiv_e. P.W.9 -- Chikkaningaiah is a pancha for the inque_st"¥ _ P.W.1O -- Dr.Shivaputhra Gurubasappa is the doctor who conducted post rnorterneAj}eXarninationV.__ and.' submitted the report as per .E3x..__P--6. has in evidence about external and on the body of the deceased 'opinedithat death was due to shock and Nos. 1,2,3,4 81, 6 and the right lung. All in nature. He has issuediioosti as He has given his opinion' the body of Venkatesha could be caused l\/1.0.1 as per E3x.P--7. Nothing has been elicited in this cross examination to disbelieve his i'_v',7en1<atesha suffered homicidal death or to prove thatithe contents of post rnortem report -- Ex.P--6 is false: _Iti~ is only elicited in the cross examination of this rxvitness that injuries found on the body could not be caused i by M.O.1 and the facturn of homicidal death is not disputed . -7' 'xi, ' '3:/"ix 1'7
5.' and therefore, the evidence of P.W.1O clearly proves beyond reasonable doubt that the deceased Venkatesha suffered homicidal death. P.W.l1 -- Ramaiah is the police constable who apprehended accused Nos.Z to 4 on 30-1 p.m. P.W.l2 ---- Doddarnadaiah and Puttathirnrnegowda are the Inv.estiigati.nig_ evidence has been discussed whileinai'--ratingbithe. 'faL:ts";o.f"theg case. PM/.14 -- Ramaiah is iagpiancha recovery of knife on the basis of..voluntary.:staiternent ofiiaccused No.1 and he also identified tiiioffl the body of the deceased.
i't_A13.= It frio'1I1_:VVt'he "above said material on record that theiiproseciution proved beyond reasonable doubt ii\/ienkateshayv suffered homicidal death. However, to . 'bring_Vho.m.ei'*the guilt of the accused, the prosecution must ._fu'rther it was accused Nos.1 to 4 who caused hoinicidal'vdeath of Venkatesha and thereby committed the A.offence"' punishable under Section 302 r/w 34 IPC and the i "'._ipr'usecutior1 is relying upon the evidence of P.Ws.1,5 82; 8 as it " ~'eye witnesses and P.Ws.6 8:, '7 who are eye witnesses have *2 7.
\<\"'\g,.<::§-' ' 1.3 not supported the case of the prosecution and also recovery of M.O.1 as per the voluntary statement given by accused No.1 as per Ex.P--9.
14. P.W.l M Basavaraju has stated in his examination- in~chief that he knows deceased Venkatesha _ Kemparnrna. He has seen the accused. Tl';1;e'reV.was" "il.liCit". relationship between Venkatesha and.Kemipantufri-a"and'_i_sheis ' the sister-in-law of accused No.2 an_d"'ireliat.i_Ve..'of Nos.l,3 85 4. He has furtIiier""depos'ed thati..Q'n':._Vtl'ive..date of' incident i.e., on 28-} 1_--1998Aa.tfla"oout 10.230' --a,rn,,Enear cross circle ieading to kereb'eed--i., near the shop and t¥all<:'ingiandfjatilthat__.tim'e,' accused came there; accused No.3 -- Dasajah' cat1.gh.ti"_.'hold of Venkatesha, accused No.2 assaulted oni"t'h.e head of Venkatesha, accused No.1 stabbed . "J,en1<atesha'~four to five times with knife and accused No.2 -- them by saying that they should not leave Venka.tes'h'a. Prior to the assault, there was Verbal quarrel .2 is between accused and Venkatesha and on 27-11-1998 also there was quarrel between Venkatesha and accused and ":after the incident, Venkatesha fell down. Accused No.2 M 14 threw the club there itself, accused No.1 carried the knife and went away. Venkatesha died at the spot. Thereiafterv he went to Harohalli Police Station and lodged the per Ex.P--1. He has identified thenlcnife.4"l\fl--.i{}.yIl"'us'ed ,_t§y~q accused No.1 for assaulting Venka.tesha,.. i' It is elicited in his cross..__exa:rriinatior1 that he is_}doingl* masonry work. His house Dyoddamlaralayladi colony which is at a distancielof 'the scene of offence. At theytime VA place, he was present there. to'l"worlc:on that day. He did not \l/evnliatesha to the hospital.
He as description of the dress whichlithue He has deposed before the police who"a_re.the eye" witnesses who were present and e.pyersor1lsi""had assembled at the scene of offence. came near the spot, neighbouring shops and at the time of galata, C.Ws.11 and 12 were '*pi"iC'tsent at the spot and nobody else was present. It is elicited that he has written the complaint by himself and he has written whatever he knows about the incident. r Q,' '« =,..'s/:« \ (, 15 He had been to the police station earlier on several occasions. He has not given any further statementvreg.ar:ling the accused Raja. The persons who had assern.l§5:led"it}1fg§;;;g not come and separate the accused from*"v'e=nl}<ate's.ha. Hen did not try to bring the doctor to finrjli3out.ia.sl"-to"' Venkatesha was alive or dead.-.___He lsh.ow;.1i't'h__e. _c__1Hub_:l§t0 lithe' ; police when police had Com(#\,d,//£§\:\\:/tn? had been used by Rangaiah -- ffihe.accusedvthemselves told him aboutgthe gg1at'g,.VV any complaint regarding the He has not seen the is the house of Kernpamrna.
He \_/elnlitatesha had several enemies in theli'vil1a.ge.' a suggestion that on the early morning ot"?,S-1.1}19'98is.orne person had caused the murder 0";i":..l:/en-lvzatvegsha an'd"thrown the dead body and that he has 'filed. a"-false' complaint against the accused. ]...':"3._ -- Nagaraju is another eye witness to the incident. He has deposed in his examination--in--chief that he it P.W.1 -- Basavaraju. He knows Venkatesha -- the deceased. He has seen the accused and he knows accused 16 Nos.1 to 4. He has deposed that on the date of incident, one Saturday at about 10.00 or 10.30 am. the incident had occurred at the circie near the bus stand of Maralavadi village. At that time, P.W.1 was standing there. He 'went to the said spot from his house. Venkatesha was in front of the shop of Nagaraj and he was talking that time, accused Nos.l to 4 came,there.'toge-ther,'*ac'cused No.3 ~« Dasaiah caught hold of Rangaiah assaulted Venkatesha. with'~aclub oni'h;jvs...head and * accused No.1 -- Annaiah stabhed,:iVenaktes.ha'With knife on his chest, on his stoinach ion"-.h~i.s"back seven to eight times, assaulted ii/enkatesha with his hands and Ve'nl<ateshaVifeiiV.do':xin"and died. Himself and P.W.1 got frigh.renediian,d they virereiistanding by the side of the place of thieii'inc£.de'n.t andi"B'aisavaraju -- P.W.1 fiied the compiaint.
"Thei'ea'Eteir»v the 'police had come to the spot and he has given hi,siiistavteri'1i':j_'rit. He does not know as to why the accused assaulteid and caused the murder of Venkatesha. He has the mahazar Ex.P--3 regarding seizure of clothes iwhich were found on the body of the Venkatesha. He has 17 further deposed that M.O.2 -- lungi was worn by deceased Venkatesha at the time of incident and l\/1.0.3 was the Baniyan which Venkatesha was wearing, lVi.O.4 was hlissshirt and l\/1.0.5 was undergarment which Venkateshfiwiasweariflg and M.Os.2 to 5 were the appareks found orltheybodylofitliieyl deceased Venkatesh and were tziloodlistalined identified the same. He has furtherllstated tf_:alt'vhe c.;innot..y identify M.O.7 which is a broléenllpiece of._fubl§en'oangle. He' has identified 1\/1.0.1 a§.t_he kIlll;C'A§i1»7ll:'ilC:V.h.WES used"biy Annaiah , accused No. 1 for stabhiiig Vei'il<atesha}' It is eiicitefi irig hi_s--~crossl'elxaxnifnation that he has studied up {:3 gi:ra:"-stan,d'ard"'arid Venkateshaiah was his senior aunt's slon_.l He' was "dyo'_ing coolie work. The witness was as dxfiv-ervir1 the lorry. It is elicited that on the date . of _Vir;cidei1t:,hhe did not go to the police station and on the were seized, he had gone to the police station he had not gone to the police station on any nether day. He was not issued with notice regarding seizure l clothes. The police did not show him M.O.1 as the knife ":used by accused No.1. The club which was lying at the spot l\"+-- E:
18
was shown by him to the police and the police seized the same and he does not know what the police have done with the said club. P.W.1 went to lodge the complaint. 'Hhecdoes not know who accompanied him. P.W.1 had flit: spot earlier to him and after Venkatesh to spot, he went to the spot. On Safhurdiays, he goes to at about 10.00 or 11.00 a.m. and dateiiricident;.p1?iet.p was thinking of coming to his"fait"rl1er--in--l'a_\i_v'and had come to the spot. He did not'"In_ake.Vany'to secure°the doctor. He has stated that Venikiateshalhiadddied.it 'He did not try to take Venkate.s7na to tliie not stated before the police helipo'uredi_'vwaterin the mouth of Venkatesha and the same 'into his body. It is further elicited thathe was shown accused Nos.1 to 4 after their arrest. He w'asl'no't. shown anflymother person other than the accused. He 'i(;ani1ot'4.sa3r};_5to who else was present at the police station 'when vthiet'ii-ppaccused were shown to him. The deceased Venkate:-sha is related to him as he is his senior aunt's son. Basavaraju is his maternal uncle and he was also related to lp?\/enkatesha. He has denied a suggestion that he has not 'C 19 witnessed the incident and Venkatesha was murdered by somebody else and he is deposing falsely" agvainSt_i'~t.the accused. It is further elicited that he description of the knife to the police. The" was"tai«:__€n' from the spot by him and was hai=i.:ded-Aoyeritothe _ooli'ce. does not know whether anyci1n__ahazar_ was drawn4_VreggirdingVii~ seizure of the club.
16. P.W.8f-- Chennarnaraiah eye witness to the incident. the evidence of P.W.8 to lithe accused. He has deposVediiiiini"li1iiVsV that at about 10.30 a.rn, he had gone to the shop of Nagaraj ishat caristreet and Nagaraj was present in lie Idurchased the articles from the said shop.
astas present there. At that time, accused Nos.1 to canieiithelre and Venkatesha also came there. Accused No.3 '*-V~viijDasaiah caught hold of Venkatesha with hands, accused No.1 stabbed Venkatesha with knife on his chest, i ligack and other parts of the body and his clothes were \M\'_ .3."
2.0 stained with blood. At that time, since people started to assemble, accused ran away. Venkatesha fell down and died. Accused Nso.2 assaulted Venkatesha with reapier He has identified the knife which was used by "to stab Venkatesha. It is further stated that scerleiiof at a distance of 10 feet from the ishoipof 'l'he1'ei'is road in front of the shop and persohsiigoing to would be moving near the saidv._s1::ogt. It is elicited in Vthe crossiie'xamiina:_tion that 'he is doing coolie work. He goes to co.oliei'work at 'a.rn. and returns He has not limahazar regarding seizure of clothes found on" _body thejdeceased. His statement was not recoérdeed duriiidg..invqueVst. P.W.5 is related to him and he had . 'a«head_to the spot. He has not stated before the police Niagavrajfliwas present at the spot when he went to the soot arid he has not informed the police as to who else was present and he does not know as to why murder was caused. '._li\E"o';3ody tried to separate the accused from Venkatesha. The 71
5..
poiice had not shown him the knife. He has denied a suggestion that he is deposing falsely against the accused.
17. It is clear on appreciation of evidence of 85 8 that all of them are related to each other _ also related to deceased Venkatesha. Howe.ver.,.: fact .y that they are relatives would not by.Higtsksllf-_>b:d_iEi--. gitouanide. disbelieve their evidence ifgtheir evi_dence found "to"be", truthful and reliable.
18. It may be at_'lit'heiVioul.te.et'that in complaint filed by Basavaraju -- is described as Raja and :statejd«V..itl1a_t Raja, s/o Vandari assaulted Venkatesha witlriiiands,.y_ffiovirever, charge sheet has not been filed _yagain'st_:l R.aja, Vandari and accused No.4 is V' dc-scri7t;':ed'ii-as Venklatesh, s/o Vandari. There is no material 'ehow that accused No.4 -- Venkatesh, s/o iVa_ndari..iar_ndl; Raja, s/o Vandari mentioned in the complaint are oneiiand the same and no witness has deposed regarding .tl'1e'sarne and Investigating Officer has not made any effort to 'find out the said fact. Further, it is clear that overt--act has am, not been attributed against accused No.4 by P.W.1. What he states is that Raja, s/o Vandari instigated other accused to finish off Venkatesha and Raja s/o Vandari is not charge sheeted. Similarly, the evidence of P.Ws.5 8:, 8 is aiso not helpful to show that it is the accused No.4 M Vandari who participated in the incident accused No.4 - Venkatesh whereasgthe iisvagainsti Raja.
19. Further, so far as .aiceused."NVo.2_isgco'ric'erned, no-' overt act is attributed agapins:t"».hi'rn. 'According to the prosecution, accused 'No2 i'ass:a1.i1tie*di:t Xfenkatesha with the c1uband~ stated that they handed over the club which wasfiyiing spot to the poiice. However, the said club used, according to the witnesses, to assauit . :'Je_n1;atesha"*~.by accused No.2 has not been seized nor got the Court. The Investigating Officer has pi.e'ade.d.Co'rnp1ete ignorance as to What happened to the said Aiclub found at the spot and as evidence of F'.Ws.5 85 8 is i specific that club was lying at the spot and they handed over "the club to the Investigating Officer.
"=£= gt ( ,5 ix.) ca
20. Further, it is aiso clear that there is inconsistency in the evidence of P.Ws.i, 5 86 8 regarding iiacxt attributed to accused Nos. 3 81. 4, as accordiing.:to:
accused No.3 caught hold of Venkatesha and.aiccused-:iNo;*2 assaulted with the club and instigating the other aCCLlS€Cl;..__:ACCO1'CllI1g itogaccusedi' Nos.l to 4 came together No.l3"cauAght hold of Venkatesha, accused the hands and accused No.1_ eight times and Venkatesha' died' No.2 assaulted with i'\7.an};riitesha. P.W.8 has deposed to th:é.._Aov'ert accused No.1 and has stated that Veinkateshia and died and thereafter accused it assaultied._\/enaktesha with reaper. He has not . :attVr1butedov~ert--act to accused Nos.3 85 4. it is clear from the evidence of P.Ws.1,5 85 8i.itha'ti:the.re is inconsistency as to the place where the V teincident took place i.e., regarding scene of offence itself, as according to the evidence of P.W.1, the place of incident is » 1 24 near the circle while going to kerebeedi; according to .P.W.5, the place of incident is near circle at bus stand of M.araE_ai:adi village and Venkatesha was standing in front Nagaraj and according to P.W.8, the ir1cid_e~:1*tv-- 2 front of the shop of Nagaraj which c:ar.T street of Maralavadi villager:-_1nd of zisiigatii distance of about 10 feet froinjithe sh'opfofv':Nagaraj and therefore there is discreipancyfregardirlgthe spotiof incident.
22. Therefore, Vhavirig hregardi; above said inconslstencyflir1::1ii"t'h.e .etridence'4_i'o:f fP.Ws".i1,5 85 8 regarding scene vo.fi..0fféptce,":*1::ivert~_acts 'attributed against the accused and also the .fac'r:'t--hiatcbaccused"No.4 before the Court is not accused 'i'=lo.4 vvnarnied "inf_.'evthe complaint and there is no magteiriatto showgthat Venkatesh s/o Vandari and Raja, s/o i:'Vanidar'i same person, non production of the club though A"'the'__sarr:e"=yizas'u'produced before the Investigating Officer by P.Ws.5 other materiai on record which is referred to ii."i"~._ii".'-tbOV€,z it clear that the evidence of P.Ws.1, 5 85 8 cannot be .i'i--said_i:i.to be truthful and reiiabie as to make the basis for i .V __convicting the accused.
, . , 2 U
23. So far as the recovery is concerned, though Investigating Officer has stated in his evidence tha't'~.a:c'C_used No.1 gave voluntary statement on 30-1 l--l998__-ails and on 1-12-1998 he led them and tpyroducediitlieiroii l{ni1'ei--?"
M.O.1 which was by the side seized the same under E'X.P.~l3, the has_* examined to support the said seit7,u1'e_-- P.V\:'«. has stated in his examinationsin~chi*e_i:f'that al;__:out».'y'ears back, Harohalli police had Cailed him to--t--h.e"pol--ice_ "the police showed him the cloth i{.1':1:'if€i_Oifido_i5€e1i3c'd'"VCI1aktCSha. He has identified itifiélifliiets he has stated that police brought the near the fence of Dasegowda and accused knife and it was recovered and it does not refer"t.o recovery made on the basis of voluntary . is«taterr1er1L--.4Vo'fraccused No.1 . Therefore, recovery is not . ~_pii'oved' ii1'_v».ac-ciordance with law. Even if recovery is proved, ser'o1ogist"1'"eport is not produced to show that the same was it is stained with blood with the group belonging to the deceased the evidence of this witness is not believed. It is clear 3 ' Q 2 gt. ,, 26 that user of the said weapon in committing the offence has not been proved.
24. Therefore, on re--appreciation of the entire material on record, We find that the finding arrived at by the triai Court on the basis of the above said material oi'1..:.i*ec'o_rd hoiding that the prosecution has faiied to prove-. the accused is justified. It is well_set,t_ied that i:'o_rii interference in appeai against acquittal'is'1irnite'd_:anid iexzen./.if a different opinion can be arrived at on the biasisfl 'of.rn1a1teriai.]' on record, the order of acquittafpassed trial Court is to be confirined.i'i'ii{.owever., thepresent case, having regard to theI_;rna,teriai'ori_,:reLcVoird:,i"the oniy inference that could be drawn is ithéat rproseciit'iofi'o'has failed to prove the guilt of the accused;
if -- ?53:'if4tiéC.(:).fi\iiUgiy, We hold that the finding of the trial tVb.at"ii--;;rosecution has failed to prove the guilt of the accusedlis justified and does not suffer from any error or i.11:ega1ity so as to call for interference in this appeal. E , \;,..1/x 27 Accordingly, we answer the points for determinatiqn and pass the foiiowing order:
ORDER The appeal is dismissed. Theb_judg1fie'I'1%:'Q1° aeq":,1itts,l""
dated 11-9-2001 passed by use as-:gi'1ta'cp.s1' Sessions Judge, Bangalore: Rxgrai "'D]:£3t1'iCt; m1:j:§tI71.ga1Q§I'€ S.C.No.'74/1999 is confirmed. s sd/.;
Sd/-3 JUDGE