Karnataka High Court
Shivappa S/O Chinnappa Bellad vs The State Of Karnataka on 9 July, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JULY 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
Criminal Appeal No.100150/2018
BETWEEN:
SHIVAPPA S/O CHINNAPPA BELLAD
AGE:39 YEARS OCC. FARMER
R/O BENAKANAVARI, HUNGUNDA TALUK
DIST. BAGALKOT
... APPELLANT
(By Sri. JAGADISH PATIL, ADOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH AMINAGAD POLICE STATION
R/BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA BENCH
AT: DHARWAD
... RESPONDENT
(By Sri. V.M. BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET-ASIDE THE CONVICTION AND
SENTENCE IMPOSED BY PRL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT IN S.C.NO.78/2015 BY HIS JUDGMENT AND ORDER
OF SENTENCE DATED 09.04.2018 AND 10.04.2018
RESPECTIVELY FOR OFFENCE U/SEC. 302 OF IPC AND ACQUIT
THE APPELLANT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, M.G.
UMA J., DELIVERED THE FOLLOWING:
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JUDGMENT
Heard the learned advocate for the appellant Sri.Jagadish Patil and the learned Additional State Public Prosecutor for the respondent-State.
2. Brief facts of the case as made out by the prosecution is that about two years earlier to the incident, the deceased- Hanamant had accidentally called Smt. Gouramma, wife of the accused over phone, even though it was a call on wrong number, the accused started suspecting that the deceased was having illicit relationship with his wife and in that regard there was ill-will between the accused and the deceased. The accused was proclaiming that he will finish the deceased on one day or the other. In this regard, there was a panchayat in the village held by the elders who have advised the accused and pacified him. On 18.05.2015 the deceased along with his friends Basavaraj, Siddappa and Hanamantagouda went to bayalu Rangamandira at about 10.00 pm and all of them had slept there. On the intervening night of :3: 18/19.05.2015 at 00.30 hours, the accused had assaulted the deceased Hanamant with an axe on his neck, head and other parts of the body and caused his death. It is stated that the accused had committed the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the 'IPC', for short) suspecting that the deceased was having illicit relationship with his wife. The informant Rayappa, the father of the deceased Hanamant, lodged the first information on 19.05.2015 at 8.30 am and the same was registered in Crime No.57/15 at Amingad Police Station and FIR was registered as per Ex.P-21. The Investigating Officer after holding investigation, filed charge sheet against the accused for the offence punishable under Section 302 of IPC. The committal Court took cognizance of the matter and after securing the presence of the accused and after following the procedure contemplated under Section 207 and 208 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.') committed the matter to the :4: Principal District and Sessions Court, Bagalkot (hereinafter referred to as the 'trial Court') by passing an order as required under Section 209 of the Cr.P.C. The trial Court secured the presence of the accused and framed charge for the offence punishable under Section 302 of IPC. The accused pleaded not guilty and claimed to be tried.
The prosecution examined 21 witnesses and got marked 26 documents and identified 17 material objects in support of its contentions. The statement of the accused under Section 313 of Cr.P.C. was recorded and the accused denied all the incriminating materials available on record but has not chosen to lead any evidence in support of his defence.
The trial Court, after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 302 of IPC and proceeded to sentence him for imprisonment for :5: life with fine of Rs.25,000/-, in default of payment of fine, to undergo simple imprisonment for three months.
Aggrieved by the said judgment of conviction and order of sentence, the accused has preferred this appeal on various grounds.
3. It is the contention of the appellant accused that the trial Court has committed an error in forming an opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The impugned judgment of conviction and order of sentence is perverse, illegal and the same is liable to be set aside. It is his submission that, admittedly, the incident had taken place in the mid night on a New Moon day. The prosecution has not placed any material to prove that there was any source of light at the scene of offence. Under such circumstances, the witnesses identifying the accused is most improbable. The version of PWs.6 to 8-the so called eye-witnesses, is also doubtful. There are material contradictions in the evidence of these witnesses with regard to the time of offence and also the :6: manner in which the offence had taken place. The conduct of these witnesses is also suspicious, in the sense, they have not made any attempt either to prevent the accused from committing the offence or to catch him immediately after the incident. It is the version of all the eyewitnesses that there was a bed on which the deceased had slept and it was blood stained after the incident. But no such blood stained bed was seized by the Investigating Officer. Even according to the prosecution itself there are several houses nearby the scene of offence, but no independent eyewitnesses from the locality are examined. It is his further submission that even according to the eyewitnesses and the Investigating Officer, the police were present at the scene of offence within an hour after the incident but no FIR came to be registered immediately, thereafter. The FIR came to be registered belatedly at 7.30 am. Therefore, it is clear that there is embellishment and possibility of false implication of the accused cannot be ruled out.
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Learned advocate further contended that the motive on which the prosecution is relying is very strange one. According to the prosecution, the deceased had called the wife of the accused about two years earlier to the incident and for that trivial reason, the accused had committed the offence under Section 302 IPC, that too, after two years, cannot be believed even for a moment. There are material contradictions in the evidence of PWs.9 to 12, who are said to be the elders who advised the accused. Their version cannot be believed in view of the material contradictions. The trial Court has ignored all these deformities in the case made out by the prosecution and instead of giving the benefit of doubt to the accused, proceeded to convict him without any basis. Therefore, he submitted that the appeal has to be allowed by setting aside the impugned judgment of conviction and order of sentence passed by the trial Court and the accused has to be set at liberty, in the interest of justice.
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4. Per contra, learned Additional State Public Prosecutor submitted that the prosecution is successful in placing all the relevant materials before the trial Court. The prosecution has proved that there was motive for the accused to commit the offence as he was suspecting that the deceased was having illicit relationship with his wife. In this regard, PWs.9 to 12, who are the elders in the village, had advised the accused but in spite of that, on the date of incident, the accused assaulted the deceased with an axe and caused his death. PWs.6 to 8 are the eyewitnesses, who have slept with the deceased on the fateful day. If all these materials are taken into consideration, it is clear that it was the accused who committed the offence by assaulting the deceased with an axe causing his death. The version of the eyewitnesses is also supported by the medical evidence. Both the postmortem report and the RFSL report along with the evidence of the Doctor, who conducted the postmortem examination, clearly disclose :9: the homicidal death of the deceased by assault with an axe.
He further submitted that the prosecution has relied on one more circumstance i.e., recovery of the material object i.e., the axe-M.O.16. The same was recovered at the instance of the accused under seizure mahazar-Ex.P-14. PW-2 and the Investigating Officer categorically stated regarding the accused leading the panchas and the Investigating Officer to the sugarcane field and producing the axe-M.O.16 which was used for the commission of the offence. There is absolutely no denial with regard to this clinching material relied on by the prosecution. He further submitted that minor discrepancies bound to happen in any criminal case for that matter. No material contradictions or omissions are pointed out by other side and under such circumstances, there is absolutely no reason to suspect the version of PWs.6 to 8, who are the eyewitnesses to the incident. Therefore, he submitted that no good grounds are made out to interfere with the impugned : 10 : judgment of conviction and order of sentence and accordingly prays for dismissing the appeal.
5. After hearing both the counsel representing the parties, we have given our thoughtful considerations to the materials on record including the trial Court record.
The prosecution examined PW-1-father of the deceased, who lodged the first information as per Ex.P-
1. The incident in question had occurred at 00.30 hours on the intervening night of 18/19.05.2015. The first information came to be lodged on the same day at 7.30 am. This witness speaks about the incident where his son Hanamanth had accidentally called the wife of the accused over phone and the accused picking up quarrel suspecting something. He further states that PWs.6 to 8 are the eyewitnesses to the incident, as they had slept with the accused on the date of the incident.
PW-2 is the pancha for the inquest panchanma- Ex.P-4, spot panchanama-Ex.P-5, seizure panchanama- : 11 : Exs.P-6, 8, 10, 12 and 13 and also the recovery panchanama as per Ex.P-14. This witness supported the case of the prosecution with respect to all these documents and also stated that it was the accused who had lead him and the Investigating Officer to the sugarcane field and produced the axe. He further stated that the accused had also produced his baniyan and lungi, which were also blood stained and all these materials were seized under mahazar-Ex.P-14.
PW-3 is the wife of the deceased, who also speaks about the motive for the accused to commit the offence.
PWs.4 and 5 are the hearsay witnesses.
PWs.6 to 8 are the material witnesses to the case of the prosecution, who are projected as eyewitnesses. All these witnesses have fully supported the case of the prosecution.
PWs.9 to 12 are said to be the elders in the village, who are said to have advised the accused when he picked up quarrel with the deceased suspecting some : 12 : foul play with his wife. All these witnesses have fully supported the case of the prosecution.
PW-13 is the scribe, who wrote the information Ex.P-1, as per the say of PW-1.
PW-14 is the doctor, who conducted the postmortem examination on the dead body of the deceased and issued the postmortem report as per Ex.P-
16. As per the postmortem report, the death of the deceased was due to hemorrhagic shock, following throat injury. The Doctor had noticed in all 3 external injuries on the dead body.
PW-15 is the PDO, who issued the extract relating to the scene of the offence.
PW-16 is the Police Constable who shifted the dead body for postmortem examination and produced the clothes of the deceased before the Investigating officer which are as per M.Os.7 and 8.
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PW-17 is the carrier of the material objects for RFSL examination.
PW-18 is the Police Constable in the Dog Squad. PW-19 is the Police Inspector, who received the first information and registered the FIR as per Ex.P-21.
PW-20 is the Investigating Officer, who investigated into the matter and filed the charge sheet.
PW-21 is the Assistant Executive Engineer, PWD, who had drawn the sketch relating to the scene of offence which is as per Ex.P-24.
6. The learned advocate for the appellant accused contended that there is inordinate delay in lodging the complaint. The incident in question, according to the case made out by the prosecution, had occurred on 00.30 hours on 19.05.2015 and the first information came to be lodged on the same day at 7.30 am. The first informant is none other than the father of the deceased, who stated that immediately after the : 14 : incident, he received the intimation about the murder of his son by the accused and rushed to the spot. Subsequently, he lodged a complaint as per Ex.P-1.
7. Looking to the sequence of the events that occurred as per the case made out, we do not find any inordinate delay in lodging the complaint.
8. The learned advocate for the appellant drawn our attention to the evidence of various witnesses including the Investigating Officer, who have stated that PWs.19 and 20 have visited the spot in the night itself, after knowing about the incident. The pertinent question that was raised by the learned advocate for the accused is as to why the Investigating Officer could not register the FIR regarding the commission of a cognizable offence immediately after knowing about the same. His further submission is that the very fact that the Investigating Officer waited till 7.30 in the morning to register the FIR, creates doubt about the genuinity of the first information. In that regard, he submitted : 15 : that there are chances of embellishment and there is possibility of false implication of the accused.
9. We have given our thoughtful consideration to the submission made by the learned counsel.
10. PW-1 is the first informant. PW-19 is the Police Inspector, who registered the FIR and PW-20 is the Investigating Officer. Even though all these witnesses have categorically stated regarding the role played by them, nothing has been suggested to them during cross-examination to contend that there was deliberate delay either in filing first information or in registering the FIR. It is also not suggested that the informant and the Investigating Officer colluded with each other, gained time and falsely implicated the accused. Under such circumstances, it cannot be concluded that there was any inordinate delay or embellishment or false implication of the accused as tried to be projected during the argument. It is true that PWs-19 and 20 and also other witnesses examined by the prosecution have categorically stated that the : 16 : police have visited the spot at about 1.00 of 1.30 in the night i.e. within an hour after the incident. PWs.19 and 20 have stated in their evidence that they had received information about the commission of the gruesome act and therefore, they had visited the village and they were there till early in the morning and asked the persons present there to file a complaint. There is absolutely no unnaturality in the evidence of these witnesses. Simply because a cryptic message is received regarding the commission of the cognizable offence, the police officer is not bound to register the FIR on the basis of such incomplete information. Of course on such information, PWs.19mand 20 have visited the spot but it does not mean to say that they had started the investigation without registering the FIR. Even after going through the materials on record, it cannot be concluded that the investigation was tainted in any manner. Therefore, this contention of the learned advocate for the accused cannot be accepted.
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11. Mere lapse on the part of the police officials i.e. PWS.19 and 20 in registering the FIR about the commission of the congnizable offence immediately after it was brought to their notice and in spite of they proceeding to the scene of offence and waiting for lodging of the formal information, the same cannot be a ground to acquit the accused. The accused will not stand to gain from such lapses unless it is shown the same is fatal to the case of the prosecution. It is trite of law as reiterated by the Hon'ble Supreme Court in the case of Krishnegowda and others v. State of Karnataka1, wherein at para 38 it has observed as under:
" 38. It is settled law that mere lapses on the part of the investigating officer itself cannot be a ground for acquitting the accused. If that is the basis, then every criminal case will depend upon the will and design of the investigating officer. The Courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record."1
(2017) 13 Supreme Court Cases 98 : 18 :
12. The prosecution has placed the materials such as inquest mahazar, postmortem report, inquest panchanama and the evidence of the Doctor, who had conducted the postmortem examination. As per postmortem report-Ex.P-16, the deceased had sustained the following 3 injuries:
1. Cut throat injury measuring about (l) 7 cm x (w) 3 cm x
(d) bone deep on the anterior part of the neck more so on the right side cutting the underlying trachea, esophagus and bilateral common carotid arteries and muscles at the level of lower border of the thyroid cartilage. Wound was filled with blood clots.
2. Chop wound measuring about (l) 11 cm x (w) 3 cm x (D) bone deep on the right side of the nape of the neck extending from the back of the right ear obliquely downwards and medially up to the middle of the lower end of the nape of the neck, cutting the underlying tissues and muscles causing the evulsed fracture of the right mastoid process of the skull.
3. Chop wound measuring about (l)13 cm x 2cm(w) x (D) muscles deep on the outer aspect of the upper part of the left arm extending from the upper end of the shoulder joint down to the lower end of the left deltoid muscle.: 19 :
13. The author of this report is examined as PW-
14. During his evidence, he categorically stated that those injuries mentioned in the postmortem report could be caused with the axe-M.O.16. Of course M.O.16 was not sent to PW-14 during investigation and his opinion on the said weapon was not sought. But it will not help the accused in any manner to discredit the evidence of PW-14. An attempt was made during cross- examination of PW-14 that M.O.16 is a blunt object and that the witness has deposed falsely. There is absolutely no reason as to why PW-14 has to depose falsely. The version of PW-2-the inquest mahazar witness, PWs.6 to 8-eye witnesses and PW-14-the doctor, who conducted the postmortem examination, lead to the conclusion that the deceased died a homicidal death. The tenor of cross-examination of the witnesses also do not seriously dispute the fact that the deceased died homicidal death.
14. When the prosecution is successful in proving that there was homicidal death of the deceased, : 20 : the next question arises as to who is the author of the crime. To prove this fact, the prosecution is relying on the evidence of PWs.6 to 8, who are eyewitness to the incident. All the 3 witnesses have consistently deposed before the Court that they were accompanying the deceased on the fateful night and all 4 of them were sleeping together on the katta of Bayalu Rangamandira and the accused came and assaulted the deceased with the axe and after inflicting fatal injuries, he ran away towards the field. During cross-examination, nothing has been elicited to disbelieve their version. It is pertinent to note that there is no delay in lodging of the first information in the present case. In the first information-Ex.P-1, the names of these witnesses, PWs.6 to 8 is specifically mentioned that they are eyewitnesses to the incident. Accordingly, they have deposed fully supporting the case of the prosecution. Even though these witnesses were subject to searching cross-examination, nothing has been elicited from them to disbelieve their version.
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It is pertinent to note that these witnesses have specifically stated that even their clothes were stained with blood. PW-6 identified the blood stained shirt- M.O.10 as that of his shirt, PW-7 identified M.Os.12 and 13 i.e., blood stained lungi and blood stained banian, as of his clothes and PW-8 identified the blood stained lungi-M.O.11 as that of his. There is absolutely no cross-examination about these incriminating materials identified by these witnesses. It is also pertinent to note that M.Os.10 to 13 identified by these witnesses were sent for chemical examination and the RFSL report at Ex.P-25 discloses that these clothes were stained with 'B group human blood'. Therefore, we do not find any reason to disbelieve the version of these witnesses when their ocular evidence is consistent with other materials placed before the Court. Even with regard to the injury sustained by the deceased, the witnesses have given the details of the assault and the injuries sustained.
15. The learned advocate for the accused contended that there are contradictions regarding the : 22 : part of the body where the deceased had sustained injuries and therefore version of these witnesses is to be discarded. When we have gone through the evidence of these witnesses, they have consistently stated that the accused had assaulted the deceased on his neck and head. There is no glaring inconsistency regarding the assault on the part of the body by the accused. The injury sustained by the deceased as mentioned in the inquest panchanama-Ex.P-4 and also postmortem report-Ex.P-16, also corroborate the version of these witnesses.
16. Learned advocate for the appellant tried to point out various discrepancies and contradictions in the version of these witnesses. According to the learned advocate, all these witnesses including the Investigating Officer have stated regarding the presence of a bed which was in the scene of offence and the mere fact that the bed was not seized by the Investigating Officer, gives raise to a reasonable doubt in the case of the prosecution. In this regard, we may have to refer to the : 23 : material objects identified by the prosecution before the trial Court. M.Os.1 and 2 are the pillows, M.O.3 is the blanket, M.O.4 is the quilt and M.O.5 is the jamakhana which were specifically identified and all these material objects were stained with 'B group human blood' as per the RFSL report-Ex.P-25. Under such circumstances, it cannot be said that these witnesses were referring to a sophisticated bed which was used by the deceased while sleeping on the katta and we do not find any inconsistency, which is material and which will go to the root of the matter.
17. In any criminal case, when several witnesses are examined, discrepancies in their version is bound to happen. When the witnesses are asked to depose before the Court after lapse of some time, minor contradictions in their version is quite but natural. Only when such contradictions are material in nature and go to the root of the matter, the version of the witnesses are to be doubted or the court may look for corroboration in the case of a single eyewitness. : 24 :
18. The Hon'ble Apex Court in Thoti Manohar v. State of Andhra Pradesh2 reiterated the said proposition of law that minor discrepancies in the evidence of the prosecution witnesses is to be ignored. The Hon'ble Apex Court at paras 38 and 39 held as under:
" 38. The learned counsel for the appellant has endeavoured hard to highlight certain discrepancies pertaining to time, situation of the land, number of persons, etc. but in our considered opinion, they are absolutely minor in nature. Minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hypertechnical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored. This has been so held in State of U.P. v. M.K. Anthony3, Appabhai v. State of Gujarat4, Rammi v. State of M.P5., State of H.P. v. Lekh Raj6, Laxman Singh v. Poonam Singh7 and Dashrath Singh v. State of U.P8.
39. No evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Thus, the 2 (2012) 7 Supreme Court Cases 723 3 (1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48 4 1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696 5 (1999) 8 SCC 649 : 2000 SCC (Cri) 26 : AIR 1999 SC 3544 6 (2000) 1 SCC 247 : 2000 SCC (Cri) 147 7 (2004) 10 SCC 94 : 2004 SCC (Cri) 1514 8 (2004) 7 SCC 408 : 2004 SCC (Cri) 1932 : 25 : duty of the court is to see with the vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh9, where H.R. Khanna, J., speaking for the Court, observed thus:
" 23. A Criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
19. The Hon'ble Apex Court again reiterated this position of law in Krishnegowda (supra) and at para 27 has observed as under:
" 27. Generally in the criminal cases, discrepancies in the evidence of witnesses is bound to happen because 9 (1974) 3 SC 277 : 1973 SCC (Cri) 886 : AIR 1973 SC 2407 : 26 : there would be considerable gap between the date of incident and the time of deposing evidence before the court, but if these contradictions create such serious doubt in the mind of the court about the truthfulness of the witnesses and it appears to the court that there is clear improvement, then it is not safe to rely on such evidence."
The materials on record, in the light of the settled position of law with regard to the appreciation of evidence of the witnesses, we are of the opinion that, there are no material contradictions which go to the root of the matter to discard their evidence.
20. The prosecution contended that the accused is having motive to commit the offence. When there are eyewitnesses to the incident, the motive will play a very limited role to prove the guilt of the accused. But however, in the present case, since from the first information-Ex.P-1, the motive suggested by the prosecution is consistently spoken to by the witnesses. The prosecution examined PWs.1, 3 and 6 to 12 and all these witnesses have categorically stated regarding the motive for the accused to commit the offence. The : 27 : learned advocate for the accused contended that the motive suggested by the prosecution is with reference to an incident which had taken place about two years earlier to the incident and that cannot be considered as a motive for the accused to commit the gruesome murder of the deceased. But if the version of all these witnesses in the light of the first information-Ex.P-1 is considered, which specifically state that about two years earlier to the incident, the deceased had accidentally called the wife of the accused over phone but the accused who came to know about the same, started suspecting that his wife and the deceased are having illicit relationship and therefore, he started nurturing ill-will against the deceased. This version was categorically spoken to by all the witnesses and their version was not demolished during the cross- examination. PWs.9 to 12 have specifically stated that they had advised the accused in this matter but in spite of that, he had not heeded to their advise. It is also pertinent to note that the names of all these witnesses : 28 : find a place in the first information Ex.P-1 which came to be filed at the earliest point of time. Under such circumstances, we do not find any reason to form an opinion that there was no motive for the accused to commit the offence.
21. The next circumstance which was relied on by the prosecution is with regard to the recovery of Axe- M.O.16, which is stated to have been used by the accused in the commission of the offence. As per the version of PW-2, the accused lead him and the police by stating that he will produce the weapon-axe, baniyan and lungi which were worn by him at the time of incident and he took them to a sugarcane field near Siddanakolla road of Benakanavari village. From the sugarcane field, he took out the blood stained axe, banian and lungi before the police and the same were seized under Ex.P-14. This witness identified the blood stained banian, the axe and lungi produced by the accused as M.Os.15 to 17. During cross-examination nothing has been elicited from this witness to disprove : 29 : the recovery of these incriminating materials at the instance of the accused. On the other hand, it was suggested to this witness that the place where these materials were hidden, was visible to the general public. The said suggestion was denied by PW-2. In our opinion, this is the fatal suggestion made to the witnesses by the accused.
22. The Investigating Officer-PW-20 has also spoken to regarding the voluntary statement given by the accused after his apprehension, as per Ex.P-23(a) and volunteering to produce the blood stained clothes and the blood stained axe. He also spoke about the accused leading to the sugarcane field and producing all these material objects which were all blood stained. He stated that the mahazar as per Ex.P-14 was drawn and M.Os.15 to 17 were seized in the presence of panchas. Even though this witness was cross-examined at length, nothing has been elicited from him to disbelieve his version, except suggesting that he is deposing falsely in the matter of voluntary statement of the accused and : 30 : recovery of the incriminating materials at the instance of the accused. If the evidence lead by the prosecution regarding recovery of these incriminating materials under Ex.P-14 is considered, we are of the opinion that it clearly satisfies the requirement of Section 27 of the Indian Evidence Act. Therefore, we hold that the prosecution is successful in proving the recovery of the blood stained clothes belonging to the accused and also the blood stained axe which are as per M.Os.15 to 17 at the instance of the accused.
23. All the material objects which were seized by the Investigating Officer were sent for chemical examination and the report of the RFSL is as per Ex.P-
25. As per this report, 16 material objects were sent for examination along with the sample blood which was drawn from the body of the accused at the time of the postmortem examination. This report speaks that articles 1 to 16 were stained with 'B group human blood' and only the sample blood was disintegrated and its origin could not be determined. From these material, : 31 : it is clear that the blood stains found on all the 16 articles mentioned in Ex.P-25, 'B group human blood was found and it supports the version of the prosecution to a great extent. There is absolutely no reason to disbelieve the version of the witnesses examined by the prosecution. As a result, the oral and documentary evidence placed before the Court by the prosecution unmistakenly lead to the conclusion that it was the accused who is the author of the crime which has resulted in the homicidal death of the deceased.
24. Another contention taken up by the learned advocate for the appellant is that the incident had taken place in the midnight at about 00.30 hours on a new moon day. He further submit that the eyewitnesses have stated that there was no light at the scene of offence, even though they speak about the lights in the Basavanna temple which is at a quite distance. Under such circumstances, the eyewitnesses-PWs.6 to 8, identifying the accused is most improbable. Therefore, : 32 : it is his contention that the accused is falsely implicated in the matter without there being any basis.
25. We have given out thoughtful consideration to this contention taken up by the learned advocate for the appellant.
26. All the prosecution witnesses admitted that the incident had taken place in the mid night on the new moon day. Even though it was suggested during cross-examination that there were no lights at the scene of offence, the witnesses have stated that there were lights at a distance in the temple and also near by the bayalu Rangamandira. Of course, the spot sketch prepared by the Investigating Officer and also the Assistant Engineer, PWD, do not refer to any electric pole or electric light at the scene of offence. In this regard, we have considered the evidence of PWs.6 to 8 who are the eyewitnesses, who are said to have identified the accused as the author of the crime. It is not the contention of the accused or the prosecution that the accused is a stranger to PWs.6 to 8. It is not : 33 : suggested during cross-examination of these witnesses that 'in the absence of electric light at the scene of offence, they could not identify the accused' or to the effect that 'there was mistaken identity'. When it is the contention of the prosecution that PWs.6 to 8 were familiar with the accused, it is quite natural for these witnesses to identify the accused even in the darkness i.e., on the new moon day. There is absolutely no cross- examination to all these material witnesses to disbelieve their version regarding identifying the accused at the scene of offence, at the time of commission of the offence. No case of mistaken identity was either suggested or probablised. Under such circumstances, we do not find any merit in this contention taken on behalf of the accused.
27. In view of the discussions held above, we do not have a slightest doubt in our mind about the commission of the offence by the accused as contended by the prosecution. Under such circumstances, we hold that the prosecution is successful in proving the guilt of : 34 : the accused beyond reasonable doubt. We have to mention here that the accused was examined before the trial Court under Section 313 of Cr.P.C by putting all the incriminating materials to him. The accused has denied all such incriminating materials but has not chosen to lead any evidence in support of his defence. Even during cross-examination, the accused has not taken any specific defence. An attempt seems to have been made to contend that the deceased died due to bite by a fox. But it is only a half hearted attempt on the part of the accused. No such suggestion was made to the doctor-PW-14 to the effect that the injuries found on the dead body could be caused by such a bite by fox. The suggestions put to eyewitnesses in this regard was categorically denied by the witnesses. Under such circumstances, we are of the opinion that the accused has not probablised his defence. Therefore, we are of the opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and : 35 : the accused is liable to be convicted for the offence punishable under Section 302 of IPC.
28. We have gone through the impugned judgment of conviction and order of sentence passed by the trial court. After, taking into consideration all these materials on record, the trial Court has come to a right conclusion and convicted the accused for the aforesaid offence. We do not find any infirmity or irregularity in the impugned judgment of conviction and order of sentence. Hence, the same is liable to be confirmed.
In view of the discussion held above, we proceed to pass the following:
ORDER Appeal is dismissed as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE kmv