Karnataka High Court
Sri Santhosh M B vs State on 27 June, 2014
Bench: Mohan.M.Shantanagoudar, C.R.Kumaraswamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JUNE 2014
PRESENT
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE C.R. KUMARASWAMY
Criminal Appeal No.393/2010,
c/w
Criminal Appeal No.337/2010,
Criminal Appeal No.470/2010,
Criminal Appeal No.605/2010.
Criminal Appeal No.393/2010:
BETWEEN:
Sri Santhosh M.B
S/o Balanna Gowda
Aged: 20 years
R/o Mudiyal House
Delampady Village
Kasargod District
Kerala State
..Appellant
(By Sri B. Lethif, Adv.,)
2
AND :
State by
Sullia Police Station
Rep. by State Public Prosecutor
High Grounds Building
Bangalore
..Respondent
(By Sri B.T. Venkatesh, SPP-II.,)
This Criminal Appeal is filed under Section 374 (2)
CR.P.C by the Advocate for the appellant praying to set
aside the Judgment and order of conviction dated
25.2.2010/3.3.2010 passed by the Presiding Officer, Fast
Track Court, Puttur, Dakshina Kannada in S.C.No.59/2007
convicting the Appellant/ Accused No.3 for the offences
punishable under sections 307, 326, 120-B R/w Sec.34 of
Indian Penal Code; The Appellant/Accused No.3 sentenced
to undergo R.I. for 10 years for the offence punishable
under section 307 of IPC.
Criminal Appeal No.337/2010,
BETWEEN:
Sri K.S. Narayana
S/o K.B.Sheshappa
Aged 34 years
Korambadka House
Sampige Village
Sullia Taluk
Dakshina Kannada District
..Appellant
(By Sri Shashikanth Prasad .K., Adv.,)
3
AND :
State of Karnataka
Represented by its Public Prosecutor
High Court Building
Bangalore-560001
..Respondent
(By Sri B.T. Venkatesh, SPP-II.,)
This Criminal Appeal is filed under Section 374 (2)
CR.P.C by the Advocate, for the appellant praying to set
aside the Judgment and order of Conviction dated
25.2.2010/3.3.2010 passed by the Presiding Officer, Fast
Track Court, Puttur, Dakshina Kannada in S.C.No.59/2007
convicting the Appellant/Accused No.2 for the offences
punishable under sections 307, 326, 120-B R/w Sec.34 of
Indian Penal Code; The Appellant/Accused No.2 is
sentenced to undergo R.I. for 10 years for the offence
punishable under section 307 of Indian Penal Code.
Criminal Appeal No.470/2010,
BETWEEN:
Sri B.K. Usman
S/o Late Mohd. Kunji
Age: 42 years, Occ: Business
R/o Chettikallu House
Sompaje Village
Taluk: Sullia, Dist: D.K.
..Appellant
(By Sri Sandesh J. Chouta, Adv.,
for Sri B.L. Acharya, Adv.,)
4
AND :
The State of Karnataka
By Sullia Police Station
..Respondent
(By Sri B.T. Venkatesh, SPP-II.,)
This Criminal Appeal is filed under Section 374 (2)
CR.P.C by the Advocate, for the appellant praying to set
aside the Judgment and Order dated 25.2.2010/3.3.2010
passed by the Presiding Officer, Fast Track Court, Puttur,
Dakshina Kannada in S.C.No.59/2007 convicting the
Appellant/Accused No.1 for the offencea punishable under
sections 307, 326, 120-B r/w Sec.34 of Indian Penal Code;
The Appellant/Accused No.1 is sentenced to undergo R.I.
for 10 years for the offence punishable under section 307 of
Indian Penal Code.
Criminal Appeal No.605/2010:
BETWEEN:
The State of Karnataka
By Circle Inspector of Police
Sullia Police Station
Dakshina Kannada District
..Appellant
(By Sri B.T. Venkatesh, SPP-II.,)
5
AND :
1. B.K. Usman
Aged about 45 years
S/o Late Mohammed Kunji
R/o Chattekallu House
Sampaje Village
Sullia Taluk
Dakshina Kannada District
2. K.S. Narayana
Aged about 34 years
S/o K.B. Sheshappa
Korambadka House
Sampaje Village
Sullia Taluk
Dakshina Kannada District
3. Santhosh M.B.
Aged about 23 years
S/o Balanna Gowda
Mudiyar House
Delampady Village
Kasaragod District
Kerarla State.
..Respondents
(By Sri Sandesh J. Chouta, Adv., for Sri B.L. Acharya,
Advocate; Sri Shashikanth Prasad, Adv. for R-2;
Sri B. Lethif, Adv. for R-3)
This Criminal Appeal is filed under Section 377 CR.P.C
by the State Public Prosecutor praying to enhance the
sentence imposed by the Judgment and Order of conviction
dated 25.2.2010/3.3.2010 by the Presiding Officer, Fast
Track Court, Puttur, Dakshina Kannada in S.C.No. 59/2007
6
convicting the respondents/accused for the offences
punishable under Sections 307, 326, 120-B r/w 34 of IPC.
These appeals having been heard and reserved for
Judgment, coming on for pronouncement of Judgment this
day, MOHAN .M. SHANTANAGOUDAR .J., delivered the
following.
JUDGMENT
These appeals are directed against the Judgment and Order dated 25.2.2010/3.3.2010 passed in S.C. No.59/2007 by the Fast Track Court, Puttur, Dakshina Kannada District. By the said Judgment and Order, Accused Nos.1 to 3 are convicted for the offence under Section 307 IPC and sentenced to undergo imprisonment for 10 years; Accused NO.1 was directed to pay compensation of Rs.2,00,000/- to PW-2 and in default of payment of fine, Accused No.1 is directed to undergo imprisonment for 3 years in addition to 10 years of Rigorous Imprisonment. The compensation, if recovered is ordered to be disbursed to PW. 2 (the injured). 7
Accused No.4 is absconding all through. His whereabouts are not traced. In view of absconding of Accused No.4, the trial of S.C. No.59/2007 proceeded only against Accused Nos.1 to 3 by splitting the case as against Accused NO.4.
2. Criminal Appeal No.393/2010 is filed by the convicted Accused No.3; Criminal Appeal No.337/2010 is filed by the convicted Accused No.2; Criminal Appeal No.470/2010 is filed by convicted Accused No.1; In these three appeals, the convicted accused have prayed for their acquittal. Whereas Criminal Appeal NO.605/2010 is filed by the State praying for enhancement of sentence. Since all these appeals arise out of the very Judgment and Order of conviction and sentence, they are clubbed, heard and decided together.
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3. The case of the prosecution in brief is that PWs.1 and 2 are advocates practicing at Sullia; PW-2 is the husband of PW-1; that on 27.2.2007 at about 10 p.m. Accused Nos.2 to 4 came on motorcycle bearing Registration No.KA-21/J-5881 to the house of PWs.1 and 2 on the guise of taking legal advice; Accused No.2 remained on the bike with its engine on i.e., the vehicle was in the starting position; Accused Nos.3 and 4 came to the house of PWs1 and 2 and called PW-2; at that point of time, PW-2 was taking bath after returning from office; PW- 1 opened the door and told them that PW-2 is taking bath and asked them to come inside the house thinking that they are clients of PW-2; Accused Nos.3 and 4 however did not come inside the house of PWs.1 and 2, but remained outside the house; Accused No.3 was standing near the step of the house of PWs.1 and 2, whereas Accused No.4 was standing just in front of the house near the pillar; the accused No.3 and 4 requested PW-1 for water to drink; 9 consequently PW-1 went inside the house for getting water; at that point of time, PW-2 came from inside the house near the door; suddenly Accused No.3 instigated and told Accused No.4 to splash acid on PW-2; Accordingly, Accused No.4 splashed acid which he had brought in plastic can on PW-2; Suddenly PW-2 dragged PW-1 inside the house and bolted the main door of the house from inside; Accused Nos.3 and 4 ran way from the house of PWs.1 and 2 and sat on the motorcycle which was in a starting position; Accused No.2 who was on the motorcycle went away on the motorcycle alongwith Accused Nos.3 and 4; the skin of PW-2 started burning because of the acid thrown by the accused; PW-1 also sustained certain injuries; PWs.1 and 2 raised hue and cry; on hearing the hue and cry, their neighbours PWs.4,5, 13 and one Mr. Ganapathy came to the house of PWs.1 and 2 who were told by PWs.1 and 2 about the incident; PW-2 changed his burnt dresses and went to Government Hospital, Sullia alongwith PW-1; 10 The doctors at Government Hospital, Sullia provided first aid to PW.1 and thereafter he was referred to KVG Medical College Hospital, Sullia, wherein PWs.1 and 2 were treated; At about 00.15 hours intervening between 27.2.2007 and 28.2.2007 the Police came to the KVG Medical College Hospital wherein PW-1 gave first information - Ex.P1. The doctors at KVG Medical College Hospital, Sullia told PWs.1 and 2 that they should take further treatment at AJ Hospital, Mangalore and consequently PWs.1 and 2 got themselves admitted to A.J. Hospital, Mangalore with the help of younger brother of PW-1 and Mr. Nalin Kumar (PW-
18).
The first information was registered by the Head Constable (PW-28) who was then the Station House Officer of Sullia Police Station, at about 00.30 hours on 28.2.2007. The FIR reached the jurisdictional Magistrate at 7 a.m. on 28.2.2007 through P.C. No.1931 of Sullia Police Station. The first information was against three unknown persons. 11 The Police after investigation laid the charge sheet against four accused for the offences under Section 307 r/w Section 34, Section 326 r/w Section 34 and Section 120-B of IPC against four accused. The charge sheet reveals that the offence has taken place at the behest of Accused No.1 who had criminal conspiracy with Accused Nos.2 to 4 for throwing acid on PW-2.
Motive for commission of the offence as sought to be made out by the prosecution is that PW-2 was the advocate of Accused No.1 since long time; however of late, PW-2 started appearing against Accused No.1; there was civil litigation between one Mr. Khalid and Accused No.1; in such litigation, PW-2 appeared against Accused No.1 and in favour of said Mr.Khalid and thoroughly cross-examined Accused No.1 by putting certain embarrassing questions to him; On coming out of the Court, the Accused No.1 had 12 threatened PW-2 with dire consequences and in that regard there was animosity between Accused No.1 and PW-2.
Further motive as sought to be made out by the prosecution is that PW-2 had obtained Rs.6,00,000/- from Accused No.1 and the same was not repaid by PW-2 to Accused No.1 and in that regard, Accused No.1 got issued notice from the temple to PW-2 and PW-16 (Mr. Khalid). Consequently, PW-2 had grouse against Accused No.1.
4. In order to prove its case, the prosecution in all examined 33 witnesses and got marked 48 Exhibits and 12 Material Objects. On behalf of the defence, two witnesses were examined and 14 documents were got marked. The trial Court on evaluation of the material on record has concluded that Accused No.1 has conspired with Accused Nos.2 to 4 for committing the murder of PW-2; Consequently Accused Nos.2 to 4 went to the house of 13 PW.2 and Accused No.4 splashed acid on PW-2 at the instigation of Accused No.3 on the spot. Accordingly, the trial Court convicted the accused Nos.1 to 3 for the offence punishable under Section 307 of IPC and sentenced them as mentioned supra.
5. Sri Sandesh Chouta, learned advocate for the convicted Accused No.1 i.e., the appellant in Criminal Appeal No.470/2010 submitted that Accused No.1 is not involved in the incident in question; he was not at the spot at all; only three persons had come to the house of PW-2; the trial Court has convicted Accused No.1 merely on conjectures and surmises and the appreciation of the evidence by the Court below for convicting Accused No.1 is not proper and correct. He submits that all the eight circumstances which are sought to be proved by the prosecution against the Accused No.1 are not proved and consequently the Accused No.1 needs to be acquitted. He 14 has taken us through the entire material on record and tried to answer each one of the eight circumstances found against the Accused No.1. It is further argued by Mr. Chouta that though extra judicial confession is allegedly made by Accused No.1 before PW-6, he did not disclose till 4.3.2007 i.e., till Police recorded his statement; the evidence of PW-8, the so called worker of the petrol bunk who allegedly sold the battery acid to Accused No.1 cannot be believed inasmuch as the owner of the petrol bunk viz., Sri Krishna Mohan (DW-1) has clarified that PW-6 has never worked in his petrol bunk and that the bill said to have been issued by the petrol bunk (photo copy of the duplicate of the bill for having purchased the battery acid) is not issued by the petrol bunk inasmuch as it does not tally with the records maintained by the petrol bunk; the details regarding calls made by mobile phone of Accused Nos.1 and 2 did not tally with each other; the Police have not secured the call details from BSNL relating to the mobile of Accused 15 No.2. Accused No.2 being the driver of Accused No.1 would have talked with Accused No.1 on phone in the normal course of work; there is nothing unnatural if Accused NO.1 calls Accused No.2 over phone or Accused No.2 calls Accused No.1 over phone inasmuch as there was master and servant relationship between them; and that the alleged conduct of Accused NO.1 prior to the incident enquiring with PW-19 at the office premises of PW-2 in the afternoon on the date of the incident also cannot be said to be unnatural. On these among other grounds, Sri Sandesh Chouta prays for acquittal of Accused NO.1.
Sri Shashikanth Prasad, learned advocate appearing on behalf of the convicted Accused No.2 submits that no document is secured by the prosecution to show that the bike was hired by Accused No.2 on the date of the incident; the call details relating to Accused NO.2 allegedly made to the mobile phone of Accused NO.1 do not tally with call 16 details of Accused NO.1; No Test Identification Parade was conducted to identify Accused No.2 though Test Identification Parade was conducted to identify Accused No.3; since Accused No.2 was not known either to PW-1 or PW-2 and as the rider of the motorcycle was allegedly sitting on the motorcycle at a distance from the house, PWs.1 and 2 would not have seen the person who was sitting on the motorcycle at the time of the incident. He further submits that merely on assumptions, the Court below could not have convicted Accused No.2.
Sri Lethif, learned advocate for Accused No.3 submits that it was Accused No.4 who has splashed acid and that it is not Accused No.3; the allegation against Accused No.3 is that he allegedly instigated Accused No.4 to splash acid on PW-2, but he did not splash the acid; Though Accused No.3 was arrested on 3.3.2007, the identification parade was held to identify Accused No.3 by PW-1 on 13.3.2007 17 and by PW.2 on 21.4.2007; as per the version of PW-31, the container of the acid which was seized at the spot was having 1 mm thickness, whereas the Assistant Director of Forensic Science Laboratory - PW-26 has opined that the acid in question can be carried in the containers having minimum of 5 mm thickness; According to Sri Lethif, acid itself could not have been carried by the accused in the container having 1 mm thickness. Sri Lethif, further submits that only simple injuries are suffered by PW-2 because of the acid burns and therefore leniency may be shown in favour of Accused No.3 by releasing him treating the period already spent by him in custody as sufficient sentence.
Per contra Sri B.T. Venkatesh, learned State Public Prosecutor submits that the extra judicial confession made by Accused No.1 before PW-6 is crucial inasmuch as PW-6 was a panchayath member then; Accused No.1 was scared and therefore confessed at midnight on 2.3.2007 i.e., 18 immediately after the arrest of Accused No.2; PW-6 and Accused No.1 knew each other very intimately inasmuch as they are the members of the same political party. He further submits that the mobile phone having BSNL sim card of Accused No.2 (Mo.8) was seized under Ex.P28 from Accused No.2; so also the mobile phone of Accused No.1 having BSNL sim was also seized; the call details would clearly reveal that Accused Nos.1 and 2 have conversed with each other since morning of 2.3.2007 till about 2 days very frequently; the motive is very strong against Accused No.1; it was Accused No.1 who was responsible for commission of the offence inasmuch as he conspired with other accused to take away the life of PW-2. Though PW-2 initially suspected one Mr. Srinivasa, Bangalore, the Police did not file the charge sheet against him inasmuch as the Police after thorough investigation have found that assumption of PW-2 as against Mr. Srinivas is wrong. He further submits that Accused Nos.2 and 3 actually 19 participated in the crime by coming to the house of PWs.1 and 2 alongwith Accused No.4 on the motorcycle; PW-11, the owner of the canteen who was present in the canteen at about 11.00 to 11.30 p.m. after the time of the incident identified Accused No.2 in the Court; she has specifically deposed that she knew Accused No.2 from the beginning; while Accused Nos.2,3 and 4 were in the canteen of PW-11, they saw Police coming that side and on seeing the Police, they did not eat anything in the canteen and they got packed five eggs and fled from the canteen. PW-11 testified that the bike carrying Accused Nos.2 to 4 was having marune colour and it is Victor Motorbike; PW-17, the owner of the bike also identified the bike MO.11 as belonging to him and told that Accused No.2 took the bike on hire; He identified Accused No.2 in Court as the one who took the motorcycle on hire; PW-14 is the witness for the seizure mahazar of the bike and the bike was recovered at the instance of Accused No.2; PW-3 is the neighbour of 20 PWs.1 and 2 and on the relevant day, he has seen one person sitting on the bike whose engine was on. After all the three accused left the house of PW-2, PWs.1 and 2 also went out of the house hurriedly. The FSL report fully supports the case of the prosecution inasmuch as even the shirt of Accused No.3 which was stained with acid was also containing the same acid which was found on the body of PW-2. On these among other grounds, he argued that all the three accused are responsible for crime and therefore the trial Court is justified in convicting Accused Nos.1 to 3 for the offence under Section 307 of IPC.
6. PW-1 Smt. Champa V. Gowda is the injured and she is the complainant; complaint is at Ex.P1; Ex.P1 to Ex.P20 are marked in her evidence. PW-2 is another injured; He is the husband of PW-1. PW-3 is the neighbour of PWs.1 and 2; He saw the motorcycle which was standing on the road in front of their house and one person sitting on 21 the said motor cycle whose engine was on and at that point of time, two persons came from the house of PWs.1 and 2 and sat on the motorcycle and all the three fled away from the said place; He has seen the person sitting on the motorcycle with the help of light emanating from street light; Thereafter the car of PW-2 went away from his house; The people were talking that the acid was thrown on PW-2; He has identified Accused No.2 in Court Hall during the course of trial before the trial Court. PW-4 is the neighbour of PW-2; He accompanied PW-2 to the Government Hospital. PW-5 is also another neighbour of PW-2 and he also accompanied PW-2 to the Government Hospital. PWs.4 and 5 came to the spot after the incident. PW-6 is the person before whom extra judicial confession was stated to have been made by Accused No.1 on the midnight of 2.3.2007. PW-7 is the Marketing Executive of Airtel Mobile phone; He has also deposed about mobile sim number of Accused No.2 and call records pertaining to 22 the said sim. PW-8 is the worker in the petrol bunk; He has deposed about purchase of battery acid by Accused No.1 about one month prior to the incident; Petrol bunk is situated at Madikeri town. PW-9 is the photographer who took photographs of scene of offence etc.; Ex.P9 to P19 are the photographs; Ex.P20 are the negatives of the photographs; Ex.P23 and P24 are the cash receipts for having paid the amount to the photographer in order to take out photographs. PW-10 is the Sub-Divisional Engineer of BSNL; He has spoken of Ex.P25, the call records pertaining to the BSNL sim card belonging to Accused No.1. PW-11 is the owner of the canteen; she has deposed that Accused Nos.2 and 3 came at about 11 to 11.30 p.m. on 27.2.2007 and got packed 5 eggs from their canteen. PW-12 is an advocate by profession; He was working in the chambers of PW-2; He is the witness for spot mahazar Ex.P26. PW-13 is another witness for scene of offence panchanama Ex.P26. PW-14 is a mahazar witness 23 for seizure of mobile phones of Accused Nos.1 and 2 under Ex.P28 and Ex.P29. The evidence of PW-15 is on par with the evidence of PW-14 inasmuch as he is also one of the panchas to the seizure of mobile phone. PW-16 is the vegetable vendor; He is a client of PW-2; He had got dispute with Accused No.1 before the Court; He has deposed about the motive and threat given by Accused No.1 to PW-2 earlier in the Court premises. PW-16 is the accused in C.C. NO.704/2005; In the said case, PW-2 cross-examined Accused No.1 thoroughly and at that point of time, Accused No.1 allegedly threatened PW-2 of dire consequences. PW-17 is the owner of the motorcycle which was hired by Accused No.2 on the date of the incident; the said motorcycle was seized by the Investigating Officer at the behest of Accused No.2. PW- 18 - Nalin Kumar accompanied PWs.1 and 2 from KVJ Medical College Hospital, Sullia to A.J. Hospital, Mangalore. PW-19 is the owner of the electric shop and the said electric 24 shop is situated in the building in which the office of PW-2 is situated; according to him, accused No.1 came in the evening of the incident enquiring about PW-2 to know as to whether PW-2 was in the office or not. PW-20 is the doctor at A.J. Hospital; He treated PW-2 and issued the medical certificate as per Ex.P35. PW-21 is the doctor working in the Community Health Centre, Sullia; He treated PW-1 and issued Ex.P36, the Medical Certificate. PW-22 is the Revenue Inspector; He has issued Ex.P37, the House Extract of PWs.1 and 2 where the incident has taken place. PW-23 is the Secretary of the Panchayath who has issued Ex.P38, the house extract of the building belonging to Fathima (wife of Accused No.1). PW-24 is the doctor who treated Santosh (Accused No.3) at Community Health Centre, Sullia; The Medical Certificate is at Ex.P40. PW-25 is the Executive Engineer of MESCOM, Puttur; He has deposed that there was electricity supply at the Sullia town at the time of the incident; The said certificate is Ex.P41. 25 PW-26 is the Assistant Director of the Forensic Science Laboratory; His report is at Ex.P42; He has deposed that the burnt dhoti and green coloured towel i.e., the clothes of PW-2 and the acid burnt clothes of Accused No.3 were containing Sulphuric Acid. PW-27 is the Police Constable; He took the material for Forensic Science Laboratory for examination. PW-28 is the Head Constable; He was the SHO of Sullia Police Station during the relevant period; He registered the FIR as per Ex.P44; Crime No.33/2007 was registered in Sullia Police Station by PW-28. PW-29 is the Head Constable; He recorded the statement of PW-2 on 28.2.2007; He also recorded further statement of PW-1. PW-30 is the Taluka Executive Magistrate; He conducted Test Identification parade in respect of Accused NO.3; PWs.1 and 2 have identified Accused No. 2. PW-31 is the Sub-Inspector of Police; He has conducted part of the investigation and handed over to PW-33. PW-32 is the Plastic Surgeon at A.J. Hospital, Mangalore; He treated 26 PW.2 and issued the certificate as per Ex.P35. PW-33 is the Investigating Officer who completed investigation and laid the charge sheet.
7. The defence has also let in its evidence. DW-1 is the owner of the petrol bunk situated at Madikeri. He has deposed that PW-8 was not at all working in his petrol bunk and there was no sale of battery acid by anybody to Accused No.1 on the relevant date. He also submits that the document produced by PW-8 before the Court is not issued by his petrol bunk. DW-2 is an advocate by profession. According to him, he has scribed the complaint.
8. Accused No.4 who splashed the acid on PWs. 2 and 1 is absconding all through till this date. Therefore the Sessions Case was split up and the trial went on only against Accused Nos.1 to 3. As per the case of the prosecution, Accused Nos.2 to 4 came on the motor cycle 27 by conspiring with Accused No.1; Accused No.2 sat on the motorcycle keeping the engine of the motorbike on; Accused Nos.3 and 4 went to the house of PWs.1 and 2 and the Accused No.4 splashed acid on PWs.1 and 2, at which time Accused No.3 instigated Accused No.4.
9. So far as Accused No.3 is concerned, he is identified by both PWs.1 and 2 in the Test Identification Parade conducted in prison premises. PW-30 is the Taluka Executive Magistrate who conducted Test Identification Parade. He has in detail deposed as to how the Test identification parade was conducted. The Test Identification parade was conducted at 12 noon on 13.3.2007. He had intimated PWs.1 and 2 to come to the prison premises to participate in the Test Identification parade. However PW-1 alone had come on 13.3.2007. PW-30 on coming to know of Accused No.3 through the Jail Warden Mr. Ramesh, requested the Jail Warden to get 7 more persons of same 28 height and breadth as that of Accused No.3. Consequently such seven persons were brought and they were made to stand alongwith Accused No.3. PW-1 identified Accused No.3 as the 5th person from right side. Thereafter PW-1 was sent out. Once again all such eight persons including Accused No.3 were shuffled and their dresses were changed. Then PW-1 was called to identify Accused No.3 once again. She identified Accused No.3 as the person standing at serial No.3 from right side. The entire process commenced at 2.10 p.m. on 13.3.2007 and the same was completed at 2.55 p.m. The Test Identification Parade report is at Ex.P45.
10. One more direction came to be issued by the JMFC, Sullia on 11.4.2007 for getting the Test Identification parade of Accused No.3 - Santhosh. Accordingly, the Test Identification parade of Accused No.3 was again fixed on 16.4.2007. However such procedure could not be 29 conducted and the same was adjourned to 21.4.2007. Ultimately the same procedure as was followed while PW-1 identified Accused No.3 also followed when the Test Identification was conducted on 21.4.2007. At that point of time, PW-2 participated in the Test Identification parade after discharge from the hospital and he identified Accused No.3 on both the occasions. Ex.P46 is the Test Identification parade report. Despite the searching cross-examination by the defence, nothing is brought out in the cross- examination of PW-30 to discard his evidence.
11. The evidence of PW-30 is fully supported by the evidence of PWs.1 and 2 who also deposed about the procedure followed while identifying Accused No.3 in the Test Identification parade. Thus it is amply clear that PWs.1 and 2 have identified Accused No.3 in the Test Identification parade conducted independently. 30
PWs.1 and 2 have further deposed before the Court that Accused NO.3 was wearing the yellow coloured half shirt having checks on the relevant day; The same was identified by PWs.1 and 2 before the Court.
12. It is the case of the prosecution that while Accused Nos.2 to 4 were coming on the motorcycle to the house of PWs.1 and 2, the acid fell on the shirt of Accused No.3, consequent upon which the Accused No.3 sustained certain simple injuries as also his shirt which was stained with acid was burnt. The voluntary statement of Accused No.2 (Ex.P47) in that regard supports the case of the prosecution. The burnt shirt of Accused No.3 (Mo.5) was seized under the mahazar Ex.P30 on 3.3.2007 from the house of Accused No.2. It is relevant to note here itself that immediately after the incident, Accused Nos.2,3 and 4 came to the house of PW-2 and since the shirt of Accused No.3 was stained with acid and burnt, the shirt was 31 changed. Accused No.2 gave a different shirt belonging to him and all the accused went to the canteen of PW-11 and purchased five eggs. The said shirt Mo.5 belonging to Accused No.3 which was seized under mahazar Ex.P30 was a light yellow and cream coloured checks shirt and the same was sent to the Forensic Science Laboratory for examination alongwith all other articles which were seized under mahazar. The particulars of the shirt so seized by the Police tally with all the particulars given by PW-2 in the evidence before the Court.
The FSL report is at Ex.P42. Item No.7 sent to FSL is the burnt T.Shirt of Accused No.3 (MO.5). The report clarifies the presence of acid on the said shirt. Therefore it is amply clear that Accused No.3 actively participated in the crime.
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13. Accused No.3 instigated Accused No.4 to splash acid and consequently Accused No.4 splashed acid on PWs.1 and 2. PWs.1 and 2 have seen the face of Accused No.3 at the spot and consequently they have identified Accused No.3 in the Test Identification parade. Accused No.3 was standing just outside the house of PWs.1 and 2. Therefore we do not find any ground to disbelieve the version of the prosecution insofar as complicity of Accused No.3 is concerned. Consequently, the trial Court is justified in convicting Accused No.3 for the offence under Section 307 of IPC.
14. Insofar as the complicity of Accused No.2 is concerned, we find that the material is sufficient to conclude that Accused No.2 is also involved in the incident. He was riding the motorcycle on which Accused Nos.3 and 4 were sitting behind as pillion riders. Accused No.3 was carrying the acid. Accused No.2 actively helped Accused 33 Nos.3 and 4 in committing the crime. He brought Accused Nos.3 and 4 to the house of PWs.1 and 2 and stopped the motor cycle outside the gate with the bike engine on (i.e., keeping the bike in the starting position) with a view to save Accused Nos.3 and 4 after the incident. It is no doubt true that the Test Identification parade was not conducted insofar as Accused No.2 is concerned. However the material on record is sufficient to convict Accused No.2 also.
15. PW-17 is the owner of the motorcycle Mo.11. He has deposed that accused No.2 took the motorcycle on hire at 7 p.m. on 27.2.2007 i.e., just before the incident in question and he returned the motor cycle at 8.30 p.m. on 28.2.2007 i.e., on the next date of the incident. Ex.P34 is the mahazar relating to the seizure of motorbike bearing Regn. No.KA 21A 5881. PW-17 has identified Accused No.2 in the Court as the person who took the motorbike on 34 hire. He has deposed that Accused No.2 - Narayana took TVS bike bearing No.KA 21 A 588 on hire and at the time of taking the bike on hire, he was knowing Accused No.2 very well. He has further deposed that he has taken Rs.175/- towards rental charges. On 3.3.2007 the Police came and seized the said motorcycle at the behest of Accused No.2 inasmuch as Accused No.2 has lead the Police for the purpose of seizure of the motorcycle. At that point of time, the Police has seized the ledger book and in the said ledger book there was mention of hiring of the motorcycle by PW-
17. Ex.P34 is the Mahazar to that effect. The Ledger Book was marked as Mo.12. In the cross-examination, he deposes that RC book of the motorbike stands in the name of his brother and both of them are running the shop jointly. He has further admitted in the cross-examination that in the ledger relating to the motorbike bearing No.KA 21 A 5881, it is stated that the bike was given on hire to Subramanya. On the basis of this material, it is argued on 35 behalf of Accused No.2 that it was not Accused No.2 who took the bike on hire, but it was one Subramanya. Since the accused were taking the bike for illegal purpose, they must have given wrong address while taking the bike on hire. But the fact remains that PW-17, the owner of the bike knew Accused No.2 - Narayan and after knowing him only, the bike was given to him on hire. PW-14 is the witness for seizure mahazar relating to the bike. Ex.p47 is the voluntary statement of Accused No.2 and Ex.P34 is the seizure mahazar. The evidence of PW-14 coupled with Ex.P34 and Ex.P47 amply prove that the bike Mo.11 which was used for the commission of the offence is recovered at the instance of Accused No.2.
16. PW-3 is the neighbour of PWs.1 and 2. As aforementioned, he saw from his house that the two wheeler was standing in front of his house. He has specifically deposed that he has seen the face of the person 36 who was sitting on the motorcycle, the engine of which was on (i.e., in a starting position). He saw the face of rider of the motorcycle in the street light. He also identified Accused No.2 in the Court.
17. PW-11 is the owner of the canteen. She has seen three persons who came on bike at about 11 to 11.30 p.m. on 27.2.2007 i.e., after commission of the offence. PW.11 has clarified that she knew Accused No.2. When the accused was sitting in the canteen, they saw the Police coming that side. At that point of time, though PW-11 insisted the accused for taking the omelet, they went away hurriedly by getting 5 eggs packed. She has further clarified that the motorbike was of maroon colour and it was Victor motorbike. Accused No.2 was with other two accused at that point of time. It is relevant to note that seizure mahazar Ex.P34 relating to motorbike also specifies that the bike in question is a maroon colour bike and of 37 Victor brand. Thus the evidence of PW-11 fully supports the case of the prosecution in all material particulars, particularly insofar as complicity of Accused No.2 is concerned.
18. Ex.P47 is the voluntary statement of Accused No.2, under which he has stated that the shirt of Accused No.3 was stained with acid while coming on the motorcycle. Such stained burnt shirt of Accused No.3 is seized and marked as MO.5. The seizure mahazar is at Ex.P30. Such shirt was seized from the house of Accused No.2. As aforementioned, it was a light cream yellow coloured checks shirt. The material on record amply goes to show that Accused No.3 was wearing the very shirt on that date. Immediately after the incident, Accused Nos.2,3 and 4 came to the house of Accused No.2 and Accused No.3 changed his dress since his dress was stained with acid. Thus the acid stained shirt was removed from the person of 38 Accused No.3 and was kept hidden in the house of Accused No.2. Such shirt was recovered from the house of the accused No.2 based on his voluntary statement. As aforementioned, the said shirt was found to contain the acid as per the FSL report. All these factors clearly reveal that Accused No.2 actively participated in the crime. The trial Court in our considered opinion has rightly concluded that Accused No.2 alongwith Accused Nos.3 and 4 perpetrated the crime. Therefore the trial Court has rightly convicted Accused No.2 for the offence under Section 307 of IPC.
19. Now coming to the complicity of Accused No.1, we find that the evidence on record is not so definite so as to unerringly point to the guilt of Accused No.1. Admittedly, Accused No.1 was not at the scene of offence. Only Accused Nos.2,3 and 4 had gone to the house of PWs.1 and 2. According to the case of the prosecution, 39 Accused No.1 conspired with Accused Nos.2,3 and 4 and made them to commit crime in question.
20. Eight circumstances are relied upon by the prosecution against Accused No.1 viz.,
(a) Motive for commission of the crime;
(b) Extra judicial confession made by Accused No.1 before PW-6;
(c) Preparation for offence by purchase of battery acid;
(d) Discovery of mobile phones of Accused Nos.1 and 2 and call records;
(e) Conduct of Accused No.2 taking shelter after the incident in the building belonging to Accused No.1;
(f) Confession statement of Accused No.1 leading to discovery;
(g) Conduct of Accused No.1 going near the office of the injured PW-2 at about 4.30 p.m. (i.e., prior to the incident) and enquiring about PW-2:
(h) Accused No.2 is the driver of Accused No.1. 40
20. We shall deal with each of the aforementioned circumstances one by one:
(a) Motive for commission of the crime:
22. According to the prosecution, PW-2 was appearing before the Courts of law on behalf of Accused No.1; PW-16 and Accused No.1 are inimically disposed with each other since long time; PW-2, of late started appearing on behalf of PW-16 in Courts of law; On 6.10.2006 PW-2 cross-
examined Accused NO.1 in the case wherein PW-2 was appearing on behalf of PW-16 and against Accused No.1; In such cross-examination, certain pertinent questions were asked by PW-2 to Accused No.1 while he was in the witness box. Being embarrassed, Accused No.1 threatened PW-2 outside the Court premises on 6.10.2006. It is the further case of the prosecution that PW-2 had obtained money of about Rs.6,00,000/- from Accused No.1 and he did not repay the said amount to Accused No.1 and consequently 41 Accused No.1 got issued notice of the temple to PW-2 and PW-16 for the purpose of recovery of money. To prove the aspect of motive, the evidence of PWs.1,2 and 16 is relevant.
PW-16 has admitted that there is ill-will between himself and Accused No.1 since four years prior to his deposition. He has also deposed about the pending litigation between Accused No.1 and PW-16 and in the said litigation PW-2 is appearing on behalf of PW.16 and against Accused No.1. He has also deposed about the threat meted out by Accused No.1 to PWs.2 and 16. It is the further say of PW-16 that at the time of such threat, PW-12 - Dinesh Ambekallu, the junior advocate practicing in the chambers of PW-2 was also present. Firstly, the threat, if any by Accused No.1 was not immediately prior to the incident in question. However it was the threat allegedly made by Accused NO.1 at an earlier point of time. If really either 42 PW-2 or PW-16 was scared by the threat of Accused No.1, they would have lodged the complaint against the Accused No.1 in that regard. However no such complaint is lodged by either PW-2 or PW-16. They have not informed about such threat to anybody. Though PW-12 Dinesh Ambekallu was stated to be present at the time of the alleged threat by Accused No.1 and though he was examined before the Court, he has not deposed about the so called threat by Accused No.1 to PW-2. PW-1, the wife of PW-2 has also deposed about the motive. She has also deposed that she suspected Accused No.1 because Accused No.1 had threatened PW-2 outside the Court premises as deposed by PW-16. She has also deposed that notice also came from Kanattur temple in the matter of money transaction between Accused No.1 and PW-2 and in that regard, PW-2 had asked Accused No.1 as to why he got issued notice from the temple. Apart from suspecting Accused No.1, PW.1 also suspected one Mr. Srinivas Rao of Bangalore. 43 Said Mr. Srinivas Rao had insisted PW-2 to get private complaint compromised. The said Srinivas Rao had filed private complaint against the client of PW-2 and in the said private complaint PW-2 was appearing on behalf of the accused and in that regard Mr. Srinvasa Rao was insisting to get the matter compromised by using his good office. Same is the version of Accused No.2 also.
As aforementioned, Mr. Dinesh Ambekallu who was examined before the Court and who is none other than the junior advocate practicing in the office of PW-2 has not deposed about the so called threat by Accused No.1 to PW.2. Neither PWs.1 and 2 nor PW-16 have informed about the threat to the 3rd party or to the Police at any point of time. They did not try to lodge the complaint against Accused No.1 in that regard. Moreover the alleged threat was not just before the incident in question, but it allegedly happened long back. The incident in question 44 had occurred on 27.2.2007, whereas the alleged threat by Accused No.1 was on 6.10.2006 i.e. about four months prior to the incident in question. Moreover merely because a notice was got issued by Accused No.1 from the temple for the purpose of recovering the amount from PW-2, Accused No.1 cannot be suspected in the crime. It is not uncommon to fight the litigation before the Civil Court. However in the matter on hand, the Accused No.1 has not approached the Civil Court, but he has approached the temple in which PW-2 as well as Accused No.1 have belief. Accused No.1 had requested the temple trustees for recovery of the amount from PW-2. Therefore mere issuance of notice by the temple authorities at the instance of Accused No.1 cannot be construed as the motive for ghastly offence of attempting to commit the murder. 45
(b) Extra judicial confession made by Accused No.1 before PW.6:
23. Accused No.1 allegedly made extra judicial confession before PW-6 who is a Taluk Panchayath Member on 2.3.2007. PW-6 has deposed that on the midnight intervening between 2.3.2007 and 3.3.2007 Accused NO.1 came to the house of PW-6 and at that time, he was frightened. Accused No.1 allegedly confessed before PW- 6 that he got the acid splashed on PW-2 since PW-2 was appearing against him in the cases against him. It is allegedly confessed by Accused No.1 that Accused No.2 is also involved in the incident of splashing acid. Further Accused No.1 allegedly requested PW-6 to get him exonerated from the Police papers. Though the alleged extra judicial confession was said to have been made by Accused No.1 before PW-6 in the midnight of 2.3.2007, he did not disclose the same to anybody till recording of his statement on 4.3.2007 at about 4 p.m. It is 46 unthinkable that PW-6 being the Taluka Panchayat Member and law abiding citizen could keep quite without disclosing the so called extra judicial confession made by Accused No.1 to anybody muchless the Police. Since PW-6 was a politician and Taluk Panchayat Member, he must be having lot of contacts of the public at large. He may be visiting number of offices everyday including the Police Station.
Absolutely no reason is forthcoming from PW-6 as to why he did not disclose the alleged extra judicial confession before anybody till his statement is recorded by the Police. If PW-6 has not disclosed to anybody including the Police, we are at loss to understand as to how the Police came to know about the alleged extra judicial confession stated to have been made by Accused No.1 before PW-6. There was no reason for Police inquiring PW-6 about the extra judicial confession. What made Police to enquire PW-6 about the extra judicial confession is not forthcoming. Admittedly, he is a friend of PW-2. It is relevant to note that Accused 47 No.1 was stated to have been arrested on 3.3.2007 itself at about 7.00 a.m. from his house. The same is admitted by the Police Sub-Inspector of Ullal Police Station (PW-31). In paragraph-6 of his evidence, the PSI admits that Accused No.1 was arrested from his house on 3.3.2007 at 7.00 a.m. However the suggestion is made to PW-31 that Accused No.1 was arrested on 1.3.2007 itself, but the same is denied. Accused No.1 in his statement recorded under Section 313 of Code of Criminal Procedure has denied that his arrest was on 3.3.2007. On the other hand Accused No.1 has filed the written statement wherein he has clarified that he was arrested on the night of 28.2.2007.
PWs.2 and 6 are active workers of the same political party and they were friends. As aforementioned, PW-6 has not disclosed about extra judicial confession to anybody till the Police came before his house for recording his statement. There was no reason for the Police to come to 48 the house of PW-6 if PW-6 had not disclosed about extra judicial confession to the Police till his statement is recorded by them. Therefore in our considered opinion, the prosecution has not proved the circumstance relating to extra judicial confession as per law. The material on record is not sufficient to conclude definitely that Accused No.1 made extra judicial confession before PW-6.
(c) Preparation for offence by purchase of battery acid:
25. It is the case of the prosecution that Accused No.1 went to petrol bunk situated at Madikeri on 21.1.2007 and purchased the battery acid from the said petrol bunk.
It is relevant to note that the battery acid contains Sulphuric acid. After mixing with water, it is allegedly used for commission of the offence. In that regard, the evidence of PW-8 is pressed into service by the prosecution. According to prosecution, PW-8 Mr. Balakrishna was the Salesman of the said petrol bunk during the relevant 49 period. He has deposed that on 21.1.2007 Accused No.1 came and purchased the battery acid from the petrol bunk and he has given the battery acid to Accused No.1. He has produced the photocopy of the duplicate of the bill dated 21.1.2007; Since the marking of such document is objected by the defence, the Court below has marked it as Ex.I-1. The duplicate of the bill dated 21.1.2007 which is maintained by the petrol bunk is not produced. What is produced is the photocopy of the duplicate of the bill. As aforementioned, the incident has occurred on 27.2.2007, whereas the alleged purchase of acid was on 21.1.2007, which means the battery acid was purchased about 37 days prior to the incident. It is not uncommon in this part of the State to purchase the battery acid. DW-1 who is the owner of the petrol bunk has admitted that in his petrol bunk, the battery acid was being sold to public at large. However it is not explained by PW-8 as to why and how he has preserved the photocopy of Ex.I-1 for clarifying the sale. Such 50 document i.e., duplicate of bill is not seized by the Investigating Officer from the petrol bunk. On the other hand photocopy of the duplicate of the bill was secured from PW-8 and produced before the Court. What made PW-8 to retain safely the said photocopy of the bill is not made known to the Court. PW-8 is neither the owner nor the Manager of the petrol bunk. He admits in the cross- examination that the custodian of the bill book was the Manager of the petrol bunk. He also admits that the bills are prepared by creating duplicate by keeping the carbon paper in between the two slips. It is the further evidence of PW-8 that he was working in the petrol bunk till one day prior to his deposition before the Court. It is also admitted that Ex.I-1 was seized by the Police without drawing panchanama. The said receipt does not contain either the name of Accused No.1 or the vehicle number of Accused No.1. It is clearly admitted by PW-8 that generally in the bills, the registration number of the vehicle is mentioned. 51 The bill book is not produced by PW-8. It is further admitted by PW-8 that for the purpose of selling battery acid, permission is necessary and that the register should be maintained at the time of selling the battery acid. However no such document is produced before the Court by the Prosecution either through Investigating Officer or through PW-8. Though it is deposed by PW-8 that 5 litres of acid is sold, it is not mentioned in the Photostat copy of the bill Ex.I-1 about the quantity of acid sold.
In order to show that the evidence of PW-8 is unbelievable, the defence has examined DW-1, the owner of the petrol bunk. The fact that DW-1 is the owner of the petrol bunk is not disputed by the prosecution. DW-1 has specifically deposed that PW-8 is not working in his petrol bunk. DW-1 has produced all the bill books maintained by the petrol bunk to show that such sale of acid has not taken place from the said petrol bunk. PW-33, 52 the Investigating Officer has admitted that no records of the petrol bunk are seized. Thus it is clear that PW-8 is the got up witness for the purpose of the case of the prosecution. The trial Court in its judgment at paragraph- 24 has also held that PW-8 is not the worker of DW-1. If it is so, the evidence of PW-8 cannot be believed at all. In view of the totality of the facts and circumstances, the evidence of PW-8 cannot be believed at all. Consequently, the circumstance relating to preparation for offence by purchase of battery acid by Accused No.1 is not proved by the prosecution.
(d) Discovery of mobile phones of Accused Nos.1 and 2 and call records:
26. The mobile phone of Accused NO.1 is having sim card of BSNL company and mobile number is 9448164611.
There are two mobile phones of Accused No.2; one containing BSNL sim card and another containing Airtel sim 53 card. BSNL Mobile Number of Accused No.2 is 9449546661; The Airtel mobile number of Accused No.2 is 9945071195. According to the prosecution, Accused No.2 is the driver of Accused No.1; they conversed with each other over phone, number of times prior to the incident in question and also after the incident in question. Ex.P28 is the mahazar relating to seizure of BSNL mobile phone of Accused No.2. Ex.P29 is the mahazar relating to seizure of BSNL mobile phone of Accused No.1. Such seizures are made in the Police Station. Ex.P22 is the call records of 9945071195 (Airtel mobile phone of Accused No.2). However the call records of BSNL mobile phone of Accused No.2 are not obtained from BSNL. The Airtel mobile of Accused No.2 was not seized by the Police. But only BSNL mobile phone of Accused No.2 was seized by the Police. However the call records of Airtel phone of Accused No.2 are produced before the Court. We have perused the call records produced before the Court pertaining to the mobile 54 phones of Accused Nos.1 and 2. One or two calls made by Accused Nos.1 and 2 match each other. But majority of the calls do not match each other. For example; if 'A' calls at 10 p.m. to 'B', corresponding entry should be found in the mobile phone of 'B' ; so also if 'B' calls at about 10.30 p.m. to 'A', corresponding entry should be found in the phone of 'A'. But in the matter on hand, the entries do not match with each other; only one or two entries match with each other. In that regard, Sri B.P. Venkatesh, learned SPP argues that whenever one person calls another person over phone at a particular time, there will be entry in the mobile phone of caller of the phone. If the person to whom the call was intended, has switched off the mobile, then there is every likelihood that there will be no entry in such person's mobile phone. But the Court cannot proceed on such assumptions. Moreover admittedly Accused No.2 is the driver of Accused No.1. It is not uncommon for a driver to 55 call his master or master to call his driver four-times in a day.
The prosecution has not examined any witness from BSNL to show that phone no.9449546661 belongs to Accused No.2; so also the call records maintained by BSNL in respect of 9449546661 are not produced. The call records found in Ex.P28 do not tally with the call records found in Ex.P25.
In relation to seizure of Airtel phone of Accused No.2 i.e., 9945071195, no mahazar is drawn. So also there is no recovery of the mobile phone on the basis of the voluntary statement. However PW-7, the Marketing Executive of Airtel, Sullia has deposed that Airtel mobile in question belongs to Accused No.2 inasmuch as its Airtel sim was sold to him. To show that BSNL phone No.9448164611 belongs to Accused No.1, the prosecution has examined PW-10 who is the officer of BSNL. However no documents 56 are produced to show that the said phone belongs to Accused NO.1. According to the Police, the said phone was seized at the behest of Accused No.1. Ex.P47 and Ex.P48 are the voluntary statements of Accused Nos.2 and 3, but those statements do not involve Accused No.1. From the aforementioned facts and circumstances, we are of the opinion that the call details as well as seizure of mobile phones are not perfect. The evidence in that regard is shaky. It would be hard for the Court to base conviction on such material relating to the aforementioned circumstance.
(e) Regarding Circumstance relating to Conduct of Accused No.2 taking shelter after the incident in the building belonging to Accused No.1:
27. Ex.P48 and Ex.P38 are relating to the building in which the Accused No.2 allegedly had stayed immediately after the incident. According to the case of the prosecution, the said building belongs to Accused No.1 and that therefore he had harboured Accused No.2 in the said 57 building. The aforementioned documents Ex.P38 and Ex.P48 reveal that the said building does not belong to Accused No.1. Moreover merely because the Accused No.2 had stayed in the building for one day after the incident or prior to the incident itself would not be sufficient to conclude that the owner of the building is responsible for harbouring the accused. The prosecution has to show criminal intention on the part of the owner of the building in providing shelter to the accused.
(f) Regarding confession statement made by Accused No.1 leading to discovery:
28. Though the prosecution sought to rely upon the said circumstance, the prosecution has failed to produce before the Court the alleged confession statement of Accused No.1 leading to discovery. Such statement is neither produced nor marked. So also what was discovered under Section 27 of the Indian Evidence Act pursuant to 58 such statement is also not known. Ex.P29 is the mahazar relating to the seizure of mobile phone in the Police Station.
Such seizure of mobile phone in the Police Station does not amount to discovery or recovery under Section 27 of the Evidence Act. Therefore the said circumstance is of no help to the case of the prosecution.
(g) Regarding conduct of Accused NO.1 going near the office of the injured PW-2 at about 4.30 p.m. (i.e., prior to the incident) and enquiring about PW-2:
29. The case of the prosecution is that Accused No.1 went near the office of PW-2 at about 4.30 p.m. on the date of the incident and enquired about presence of PW-2 in the office. Such enquiry may be of no relevance inasmuch as such enquiry has taken place admittedly at about 4.30 p.m. The incident has taken place at 10.00 p.m. Admittedly up to 8.30 or 9.00 p.m. on the date of incident PW-2 was very much present in the office. PW-19 has also stated that PW-2 was very much present in the office at about 59 4.30 p.m. Since there is no proximity of time between the time of enquiry and time of incident and as there is lot of time gap between the two, such enquiry allegedly made by Accused No.1 with PW-19 may be of no relevance.
(h) Regarding Accused No.2 being the driver of Accused No.1:
30. Admittedly Accused NO.2 is the driver of Accused NO.1. Accused NO.1 specifically admits that Accused No.2 was his driver. Merely because Accused No.2 is the driver of Accused No.1, Accused No.1 cannot be suspected. The prosecution has to prove that Accused No.1 had conspired with Accused No.2 to commit the crime in question.
31. In view of our discussion made supra with regard to all the eight circumstances relied upon by the prosecution against the Accused No.1, we are of the clear opinion that those circumstances are either not satisfactorily proved or irrelevant.60
32. The conviction can be solely based on the circumstantial evidence if all the links in the chain of events are established beyond reasonable doubt. Suspicion or emotional considerations should not be allowed to take the place of legal proof. The established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof (see BALWINDER SINGH .vs. STATE OF PUNJAB - 1995 Supp (4) SCC 259} In order to constitute criminal conspiracy under Section 120-A of IPC there must be evidence to indicate that the accused was in agreement with the other accused 61 persons to do the act which was the ultimate object.
There is nothing on record to show that either Accused No.1 had conversed with other accused secretly or other accused had conversed with Accused No.1 secretly. Accused Nos.2 to 4 have kept themselves away from the company of Accused No.1 so also Accused No.1 was also away from Accused Nos.2 to 4. The most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal acts may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. The conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. However the Courts will have to rely upon circumstantial evidence to infer that the crime is committed in reference to their common intention. The Court must inquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The 62 former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor is it necessary to prove the actual words of communication. However the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict {see KEHAR SINGH .vs. STATE (DELHI ADMINISTRATION) - (1988) 3 SCC 609}.
Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the 63 accused, the benefit of any doubt that may creep in must go to the accused.
33. In the matter on hand, as aforementioned, none of the aforementioned eight circumstances (except probably the circumstance relating to motive) are proved by the prosecution satisfactorily. Even assuming that the evidence relating to the aspect of motive is believable, such single circumstance may not be made use of against the Accused No.1 to conclude that he had conspired with other accused. Merely because Accused No.1 has grouse against PW-2, it is not proper to infer that Accused No.1 had conspired with other accused to commit the crime. It is also open for the defence to contend that Accused No.1 is falsely implicated inasmuch as PW-2 had grouse against him.
The Court below has not properly appreciated the evidence on record while convicting Accused No.1. The trial 64 Court has ignored certain of the admissions and circumstances as aforementioned for coming to the conclusion that Accused No.1 has conspired with other accused for commission of the offence. The reasons assigned by the trial Court for convicting Accused No.1 are not just and proper and they cannot be accepted.
Be that as it may, having regard to the shaky material against Accused No.1, in our considered opinion, the benefit of doubt shall go in favour of Accused No.1. Consequently, he is entitled to be acquitted for the offence with which he is charged. To that extent, the Judgment & Order of conviction and sentence passed against Accused No.1 is liable to be set aside.
34. The trial Court while convicting Accused Nos.2 and 3 for the offence under Section 307 of IPC, sentenced them to undergo imprisonment for ten years. PW-2 has 65 sustained grievous injuries, whereas PW-1 has sustained simple injuries. The main offender who threw the acid on PWs.1 and 2 is still absconding. Accused Nos.2 and 3 have helped Accused No.4 for commission of the offence not only by instigation but also with their active participation. They went together for commission of the offence. Having regard to the totality of facts and circumstances, in our considered opinion, the trial Court is justified in imposing 10 years of Rigorous Imprisonment on Accused Nos.2 and 3 for the offence punishable under Section 307 of IPC. In addition to the sentence of imprisonment, they should also be imposed with fine of Rs1,50,000/- each. In default of payment of fine, Accused Nos.2 and 3 shall undergo further imprisonment for three years. In case if the fine is recovered, the entire fine amount so recovered shall be paid to PW-2 as compensation.
66Accordingly, the following order is made:
1. The Judgment and Order of conviction and sentence passed against Accused No.1 - B.K. Usman by the trial Court in S.C. No.59/2007 dated 25.2.2010/3.3.2010 stands set aside. Accused No.1 is acquitted of all the charges leveled against him.
The bail bonds of Accused No.1 stand cancelled.
Criminal Appeal No.470/2010 filed by Accused No.1 is accordingly allowed.
2. The Judgment and Order of conviction and sentence of imprisonment passed by the trial Court in S.C. NO.59/2007 dated 25.2.2010/3.3.2010 convicting Accused No.2 - K.S. Narayana and Accused No.3 - Santhosh M.B. stands confirmed.
Consequently Criminal Appeal No.337/2010 and Criminal Appeal No.393/2010 filed by Accused Nos.2 and 3 stand dismissed.
3. In addition to the sentence of imprisonment imposed by the trial Court, Accused Nos.2 and 3 shall be imposed with fine of Rs.1,50,000/- (Rupees one lakh 67 fifty thousand only) each. In default of payment of fine, Accused Nos.2 and 3 shall undergo further imprisonment for three years. In case if the fine is recovered, the entire fine amount shall be paid to PW.2 as compensation.
Criminal Appeal No.605/2010 filed by the State for enhancement of sentence in accordingly allowed in part.
Sd/-
JUDGE Sd/-
JUDGE Gss/-