Karnataka High Court
The State By Police vs D C Natesh on 20 March, 2018
Equivalent citations: 2018 (4) AKR 428, (2018) 4 KANT LJ 805
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO. 854 OF 2012
C/W
CRIMINAL APPEAL NO. 255 OF 2013
IN CRIMINAL APPEAL NO. 854 OF 2012
BETWEEN:
THE STATE BY POLICE
CIRCLE INSPECTOR
SAKALESHPUR RURAL POLICE
HASSAN DISTRICT ...APPELLANT
(BY SRI. VIJAYAKUMAR MAJAGE., ADDL.SPP)
AND:
1. D C NATESH
S/O LATE CHANDREGOWDA
AGED ABOUT 46 YEARS
DONAHALLI VILLAGE
HANUBALU HOBLI
SAKALESHPURA TALUK
HASSAN DISTRICT 573 134
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2. D R ENITHRAJ
S/O LATE D C RAVI
AGED ABOUT 25 YEARS
DONAHALLI VILLAGE
HANUBALU HOBLI
SAKALESHPURA TALUK
HASSAN DISTRICT 573 134
3. RAMESH @ SANNA
S/O RAMASHETTI
AGED ABOUT 31 YEARS
DONAHALLI VILLAGE
HANUBALU HOBLI
SAKALESHPURA TALUK
HASSAN DISTRICT 573 134
4. D C LOKESH
S/O CHANDREGOWDA
AGED ABOUT 35 YEARS
DONAHALLI VILLAGE
HANUBALU HOBLI
SAKALESHPURA TALUK
HASSAN DISTRICT 573 134 ...RESPONDENTS
(BY SRI. DINESHKUMAR K. RAO, ADV.FOR
SRI. R.B.DESHPANDE, ADV.FOR R1 TO R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) & 3 OF CR.P.C PRAYING TO GRANT LEAVE TO FILE
AN APPEAL AGAINST THE JUDGEMENT AND ORDER OF
ACQUITTAL DATED 19/4/2012 PASSED IN S.C. NO.26/2011
BY THE FTC-II & SESSIONS JUDGE, HASSAN - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCES
P/U/SS.448, 302 & 109 OF IPC R/W 34 OF IPC
3
IN CRIMINAL APPEAL NO. 255 OF 2013
BETWEEN:
SMT CHAITRA
W/O LATE D.C.SUBBEGOWDA,
AGED ABOUT 28 YEARS,
RESIDENT OF DONAHALLI VILLAGE,
HANABALU HOBLI,
SAKALESHPUR TALUK,
HASSAN DISTRICT. ...APPELLANT
(BY SRI SANDEEP N. ADV. FOR
SRI P.M.SIDDAMALLAPPA, ADV.)
AND:
1. SRI D C NATESH
S/O LATE CHANDREGOWDA,
AGED ABOUT 48 YEARS,
RESIDENTS OF DONAHALLI VILLAGE,
HANABALU HOBLI,
SAKALESHPUR TALUK,
HASSAN DISTRICT.
2. SRI D.R.ENITHKUMAR
S/O LATE D.C.RAVI,
AGED ABOUT 27 YEARS,
R/AT OF DONAHALLI VILLAGE, HANABALU HOBLI,
SAKALESHPUR TALUK,
HASSAN DSTRICT.
3. SRI RAMESH @ SANNA
S/O RAMASHETTY,
AGED ABOUT 33 YEARS,
RESIDENT OF DONAHALLI VILLAGE,
HANABALU HOBLI,
SAKALESHPUR TALUK,
HASSAN DISTRICT.
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4. SRI D.C.LOKESH
S/O LATE CHANDREGOWDA,
AGED ABOUT 37 YEARS,
R/AT DONAHALLI VILLAGE,
HANABALU HOBLI,
SAKALESHPUR TALUK,
HASSAN DISTRICT.
5. STATE OF KARNATAKA
REPRESENTED BY
SAKALESHPUR RURAL POLICE,
SAKALESHPUR,
HASSAN DISTRICT. ...RESPONDENTS
(By SRI DINESHKUMAR K. RAO ADV. FOR
SRI R.B.DESHPANDE, ADV.FOR R1 TO R4.
SRI VIJAYAKUMAR MAJAGE, ADDL.SPP FOR R5.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
19/4/2012 PASSED IN S.C.NO.26/2011 BY THE FTC-II &
SESSIONS JUDGE, HASSAN - ACQUITTING THE
RESPONDENT/ ACCUSED FOR THE OFFENCES P/U/SS.448,
302, 109 R/W 34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING
THIS DAY, BUDIHAL R.B., J., DELIVERED THE FOLLOWING:
JUDGMENT
Since these two appeals are in respect of the judgment and order of acquittal passed by the learned Sessions Judge, Hassan in S.C.No.26/2011, they are taken together to dispose of them by this common judgment.
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2. Crl.A.No.854/2012 is preferred by the State and Crl.A.No.255/2013 is preferred by complainant as against the respondents-accused Nos.1 to 4.
3. By the impugned judgment and order of acquittal passed by the Court below, the respondents 1 to 4 in both the appeals were acquitted for the offences punishable under Sections 448, 302, 109 r/w Section 34 of IPC.
4. Brief facts of the prosecution case as per the complaint averments are, P.W.1 is the wife of the deceased. She has stated in the complaint that she married the deceased D.C.Subbegowda in the year 2000 and they are having a daughter by name Mahanya. The father-in-law of the complainant was having five sons. The husband of the complainant is the second son. Eldest is one D.C.Ravi, who is no more. The husband of the complainant and his brothers D.C.Natesh, D.C.Jagadish and D.C.Lokesh all are married. The property of the father-in-law of the complainant is already divided. Husband of the complainant was 6 cultivating the properties fallen to his share and also the share of D.C.Jagadish P.W.6. D.C.Natesh and D.C.Lokesh Accused Nos.1 and 4 herein were staying together and were enjoying their properties together. Accused Nos.1 and 4 on the ground that the partition effected is not proper, were having enmity and often making galata against the husband of the complainant. Accused No.2 being the son of elder brother of the deceased was making galata with his mother that she has to execute power of attorney in his favour in respect of the properties, for which, the husband of the complainant had helped the mother of accused No.2 and due to that reason, accused No.2 was having enmity as against the husband of the complainant. As the complainant was carrying pregnancy she was in her parental place at Bharathi Bylu, Belagodu village. On 8.7.2010 in the morning at 10.00 a.m. one A.K.Ravi of Avarekadu village, relative, called her over phone and informed about the murder of her husband and that his body is lying on the bed in the bedroom. Immediately the complainant, her father and her three uncles went to Donahalli to the house of the deceased at 12.00 noon 7 and saw that her husband was lying dead on the cot. When they enquired with A.K.Ravi she was informed that P.W.2 Gurava, the line worker came near the house at 7.00 a.m. and called the husband of the complainant, as he did not hear anything from him, he became panic and called P.W.10 Appanna Gowda and informed about the same. Then P.W.10 also came to the house of the deceased and he also called the husband of the complainant and since he did not receive any reply, he peeped through the window and saw that husband of the complainant was lying on the bed as if he is sleeping and on being perplexed, he informed the relatives of the complainant over phone. Then the complainant and her relatives came along with them. Even P.W.10 Appanna Gowda also came to the spot at that time. They noticed that the lock put to the door was open and the key was inside the lock and the door was latched from inside. Pawan A.R. went inside the house through the passage and also opened the latch put to the front door and they all went inside the house and noticed that husband of the complainant was lying dead on the bed. They have also noticed injuries on his right hand 8 little finger, elbow and also on the neck. They also came to know that P.W.4 Sumathi when she came for cleaning at about 6.30 a.m. in front of the house of the complainant D.C.Natesh-accused No.1 and D.R.Enithraj-accused No.2 went from the said place holding bags in their hands. She has informed that the jeep of accused No.1 always supposed to be in front of the house, but on that day it was not there and Shakuntala, the wife of accused No.1 was also not in the house. It is stated by the complainant that when her husband returned from Hanubalu club after having dinner on 7.7.2010 at 10.30 p.m., accused Nos.1 and 2 caught hold of him and dragged him to the room and committed his murder on the bed. D.C.Lokesh, accused No.4 has instigated the accused persons for committing the alleged murder of the husband of the complainant. Hence, she requested to take appropriate action in the matter.
5. On the basis of the said complaint, case was registered in Crime No.194/2010 for the offences punishable under Sections 302, 114 r/w Section 34 of IPC. The 9 investigation officer after conducting investigation filed charge sheet against accused Nos. 1 to 4 for the offences punishable under Sections 448, 342, 302, 109 r/w Section 34 of IPC.
6. The learned Sessions Judge framed charges against accused Nos.1 to 4 for the said offences and when the charge was read over and explained to the accused, they pleaded not guilty and claimed to be tried in the matter and accordingly, charge was framed and their plea was recorded and the matter was set down for trial.
7. The prosecution in support of its case in all examined P.Ws.1 to 38 and got marked documents Exs.P1 to P34, so also, the material objects M.Os.1 to 13. The accused persons were examined under Section 313 of Cr.P.C. and their statement came to be recorded. On the side of the defence, no witnesses were examined, but during the course of cross- examination of prosecution witnesses defence got marked the documents as Exs.D1 to D8. After hearing the arguments on both sides and after considering both oral and documentary 10 evidence, ultimately, the learned Sessions Judge has held that prosecution has failed to prove its case beyond all reasonable doubt and has acquitted accused Nos.1 to 4 from the charges.
8. Being aggrieved by the judgment and order of acquittal and also challenging the legality and correctness of the judgment and order of acquittal, the State as well as the complainant are before this Court, in these two appeals, on the grounds mentioned in their respective appeal memorandums.
9. We have heard the arguments of learned Addl. SPP in Crl.A.No.854/2012 and also the learned counsel appearing for the complainant in Crl.A.No.255/2013, so also, heard the learned counsel appearing for respondent nos.1 to 4 in respect of both the appeals.
10. Learned Addl. SPP has submitted that though the prosecution has placed cogent and acceptable material by 11 way of oral and documentary evidence in the case, it was not properly appreciated and considered by the learned Sessions Judge. He has submitted that P.Ws.5 and 32 examined before the trial Court are the eyewitnesses to the incident. In their evidence they have consistently deposed that accused Nos.1 to 3 are involved in committing the murder of the deceased D.C.Subbegowda and at the time of commission of the said offence, there was sufficient light in the room through which they have seen the incident. He has submitted that the role played by each of the accused persons, out of accused Nos.1 to 3 is spoken to by the eyewitnesses P.Ws.5 and 32. The learned Sessions Judge has disbelieved their evidence only on the ground that the investigation officer has admitted in his evidence in the remand application filed before the Court that C.Ws.2 to 4 are the eyewitnesses to the incident and the names of C.Ws.6 to 8 (P.Ws.5 and 32) were not mentioned as eyewitnesses to the incident. Learned Addl. SPP has submitted that there may be some discrepancy in making such entries in the remand application, but rejection of evidence of P.Ws.5 and 32 only 12 on that ground is not correct. Further, the evidence of P.W.1 was disbelieved by the learned Sessions Judge only on the ground that she has stated in her evidence that the incident took place during the night on 6.7.2010, but she has lodged the complaint on the next date i.e., on 7.7.2010. When the material placed on record shows that the incident was during the night of 7.7.2010 and when it is not anybody's case that the incident was on 6.7.2010, the observation of the learned Sessions Judge in disbelieving the evidence of P.W.1 only on that ground is also not correct. He has further submitted that accused Nos.1 to 3 gave their voluntary statements as per Exs.P24 to P26 and pillow was recovered at the instance of accused No.1, one shirt was recovered at the instance of accused No.3 and keys of the tractor and the documents pertaining to the tractor and gunny bag were recovered at the instance of accused No.2. He has submitted that seizure of the pillow at the instance of accused No.1 assumes importance since death is caused by accused persons by smothering with a pillow, so also, by throttling and putting poison into the mouth of deceased D.C.Subbegowda, which 13 aspect is totally ignored by the learned Sessions Judge. The witnesses have deposed before the Court that in the morning they have seen accused Nos.1 and 2 leaving the place by holding bags in their hands and going towards the field. It is his contention that the conduct of the accused persons in leaving the place on the very next date of the incident is also material since accused No.1 is the brother and accused No.2 is the nephew of the deceased person. As such, the learned trial Judge ought to have accepted the evidence of the prosecution witnesses.
11. In so far as C.Ws.6 to 8 the alleged eyewitnesses are concerned, it is the contention of the learned Addl. SPP that, the Investigating Officer who was present at the spot on 8.7.2010 even before conducting inquest mahazar proceedings, was not aware that all the three witnesses are present at the said place. Simply because their names have not been mentioned at the first instance in the remand application that they are the eyewitnesses to the incident, it will not take away the entire case of the prosecution. He has 14 submitted that the approach of the learned Sessions Judge in reading the prosecution material is perverse and capricious and not in accordance with the materials placed on record. Therefore, illegality has been committed in coming to such conclusion that the prosecution has failed to prove its case beyond all reasonable doubt. The materials clearly show that prosecution has proved its case to the satisfaction of the Court. Hence, submitted to allow the appeal and to set aside the judgment and order of acquittal passed by the Court below and to convict respondent Nos.1 to 4 for the charges framed as against them.
12. Learned counsel appearing for the appellant- complainant in Crl.A.No.255/2013 has submitted that he would adopt the arguments advanced by the learned Addl. SPP.
13. Learned counsel appearing for respondent Nos.1 to 4 in both the appeals submitted that the story of the prosecution that C.Ws.6 to 8 are the eyewitnesses to the 15 incident itself is a falsity in the case. In this connection he drew our attention to the entire material, deposition of witnesses and also the documents produced and submitted that P.W.34, the investigation officer himself has admitted in his cross examination that in the remand application it is mentioned that C.Ws.2 to 4 are the eyewitnesses to the incident and he has also admitted that in the remand application he has not specifically mentioned that C.Ws.6 to 8 are the eyewitnesses to the incident. It is his contention that only to overcome this, subsequently the statements of C.Ws.6 to 8 were created by anti-dating the said statement by the investigation officer. Even for the sake of appreciation if it is taken that P.Ws.5 and 32 are the eyewitnesses in the case, there is no consistency in the evidence of P.Ws.5 and 32. As per the evidence of one of the witnesses, accused No.3 was putting poison in the mouth of deceased D.C.Subbegowda whereas, another witness has deposed that accused No.3 was throttling deceased D.C.Subbegowda. Further, according to some of the witnesses on the side of the prosecution C.Ws.6 to 8 were very much present at the spot even before lodging of 16 the complaint and in spite of that their names are not shown as eyewitnesses in the inquest mahazar proceedings conducted subsequently. In this connection he drew our attention to the cross-examination of P.W.12, one Prakash.M.L. and submitted that the said witness has deposed that the persons who came to cut plantain crop were very much present and after they told about the incident C.W.1 has lodged the complaint. He further referred to the evidence of P.W.15 regarding the presence of these persons. P.W.15 is the scribe by name one B.R.Mahesh. In the examination-in-chief he has deposed that on 9.7.2010 his statement was recorded. He himself wrote the contents of the complaint as told by C.W.1 and at that time C.Ws.6 to 8 were also present there. His statement clearly shows the falsity of the entire case of the prosecution. This has been discussed by the learned Sessions Judge in detail and ultimately, the learned Sessions Judge has not accepted the theory of the prosecution that C.Ws.6 to 8 are the eyewitnesses to the incident.
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14. Regarding the seizure of pillow said to be at the instance of accused No.1 on his voluntary statement is concerned, learned counsel for respondents 1to 4 submitted that there is no material on the side of the prosecution firstly to show that there were two pillows on the cot. In the absence of such material it is difficult to believe that the pillow which is marked in this case is recovered at the instance of accused No.1. He drew our attention to the spot mahazar. There also there is a mention that there was one pillow along with other articles. If there was only one pillow there is no possibility of accused No.1 producing the same by bringing it from his house. Regarding the voluntary statement of accused No.2 and the materials said to have been recovered from him is concerned, learned counsel submitted that they are totally irrelevant to the case on hand to prove the charges as against the accused persons. The learned counsel has submitted that all these aspects were extensively considered by the learned Sessions Judge in detail, no illegality has been committed nor there is any perverse or capricious view taken by the learned Sessions Judge in 18 coming to the conclusion. He has submitted that since it is an appeal against acquittal, even if there is another view possible on the factual aspects of the case, that itself is not a ground for this Court to interfere into the judgment and order of acquittal. In this regard, he has relied upon the decision of the Hon'ble Apex Court reported in 2007 AIR SCW 1850 in the case of Chandrappa and Ors. Vs. State of Karnataka. Accordingly, on these grounds, he has sought for dismissal of the appeals.
15. We have perused the grounds urged in the appeal memorandum in both the appeals, the judgment and order of the Court below, oral evidence of P.Ws.1 to 38 and the documents Exs.P1 to P34, so also, the documents at Exs.D1 to D8. We have also considered the oral submissions made by the learned counsel on both sides at the bar and the decision relied upon by the learned counsel for the respondents 1 to 4 in respect of both the appeals. 19
16. The wife of the deceased is the complainant in this case. According to her complaint, the motive for the accused persons to eliminate her husband is partition of the properties. Since accused Nos.1 and 2 were not happy with the partition effected, often they used to make galata with the husband of the complainant. In the oral evidence also the complainant has deposed about the said aspect and that was the reason for the accused Nos.1 and 2 to commit the murder of the deceased. We have perused the evidence of P.W.6, the brother of the deceased. He has also spoken about the partition of the properties between the sons of father-in-law of the complainant and regarding the accused persons picking up quarrel with the deceased in connection with the division of the properties. No doubt, regarding the motive as alleged by the prosecution, these two witnesses i.e., complainant P.W.1 and brother of the deceased P.W.6 have deposed in their evidence that accused Nos.1 and 2 were often picking up quarrel with the deceased on the ground that division of the properties were not properly done. In this regard, let us 20 examine the other material placed on record by the prosecution by way of oral as well as documentary evidence.
17. Complainant is not an eyewitness to the incident. She is hear say witness. She was informed about the death of her husband and accordingly, she came to the place and after seeing the dead body she lodged the complaint. According to the prosecution case, C.Ws.6 to 8 are the eyewitnesses to the incident. They are the persons who were used to be called by the deceased for cutting the plantain crop and they used to stay in the shed. We have perused the evidence of P.Ws.5 and 32, the eyewitnesses to the incident.
18. P.W.5 one Lakshman has stated in his evidence in the examination in chief that on 7.7.2010, himself, C.Ws.6 and 7 went to the house of Subbegowda at 8.00 p.m. and on the same day at about 7.00 p.m. they met Subbegowda at Hanabalu and Subbegowda asked them to cut plantain crop as he would come late. When they saw Subbegowda on that day, he was wearing blue colour shirt and black colour pant. 21 Accordingly, they came and slept in the shed in front of the house of the deceased. During that night it was raining. After sometime, the jeep of Subbegowda came and they heard galata from the house of Subbegowda. They saw accused No.1 holding pillow in his hand and pressing it on the face of Subbegowda. Accused No.2 held the lower limbs of Subbegowda and accused No.3 was holding one bottle in his hand. There was light in the said room. They were able to hear the sound. As they felt frightened, they went into the garden and slept there. In the morning they went to the parental house of C.W.1, since there was nobody and they came to know that they all went to Donahalli, they came back to Donahalli and it was 1.00 p.m. and number of people had gathered there including the accused persons in front of the house of deceased Subbe gowda and C.W.1 was also present there. When she came outside, they narrated what has happened during the last day night. They noticed injuries on the dead body of Subbegowda on the face, neck and also to the little finger. The wrist watch chain was cut and lying, one pillow and one bottle was found near the deadbody. They 22 have stated before the police about all these aspects. They have also identified the clothes of Subbegowda and his pant is marked at M.O.11.
In the cross-examination this witness has deposed that when they went to Donahalli there was no electricity. They slept and thereafterwards they do not know when they got back the electric supply, Then C.W.6 woke him up and also other persons and took them towards the house of Subbegowda and towards the garden. The witness has denied the suggestion that on 7.7.2010 they did not meet Subbegowda at Hanubalu, they did not go to Donahalli during night, none of the accused persons have committed any such act on Subbegowda and that they have not at all seen the alleged act and at the instance of police they are giving false evidence.
19. P.W.32, Shivamurthy, another alleged eyewitness also claims that he was present along with P.W.5 and C.W.6. He has also deposed that during that night they slept in the tractor shed. During night at about 10-10.30 p.m. 23 Subbegowda came to the house in a jeep and after seeing him again they slept. Thereafterwards as they heard screaming noise and as C.W.6 woke them up, they were taken nearby the window of the house of Subbegowda. When they peeped through the window, they saw that three persons were picking up quarrel with Subbegowda. One person sat on the chest of Subbegowda and another person was pressing the neck of Subbegowda with his both hands and another person was pressing the pillow by putting it against the face of Subbegowda. He did not know their names, but can identify them. He identified that accused persons present before the Court are the very persons present there. He further deposed that accused No.2 sat on the stomach of Subbegowda and caught hold his lower limbs tightly. Accused No.3 was pressing the neck of Subbegowda and accused No.1 was pressing the pillow against the face of Subbegowda. There was a light in the room and it was very much visible. As they felt frightened, they left the place and came to Hanubalu. They wanted to inform the incident to the complainant, but since they came to know that there is nobody in the said 24 place and complainant and others have gone to Donahalli, again they came back to Donahalli and saw number of persons gathered including the police in front of the house of Subbegowda. When they were there, there was no shirt on the body of Subbegowda, there were injuries to his little finger and also scratches on his face. The wrist watch was cut and lying there. There was one macchu, one pillow and one poison bottle lying by the side of the deceased. After some time they called P.W.1 and informed about what they have seen. Thereafterwards, they gave their statements about what they know in connection with the case.
During the course of cross-examination the witness has deposed that in front of the said shed where they slept, there is a window to the house of Subbegowda. They woke up after arrival of the jeep of Subbegowda and after some time on hearing the screaming and shouting noise, when they saw there was light in the house of Subbegowda. They heard the noise of Subbegowda as "bidi bidi (leave)" by standing nearby the said window. They observed the incident for about 20-30 minutes. But they did not hear the voice of the accused 25 persons as well as Subbegowda as there was a glass put to the said window. He further deposed that they informed P.W.1 about this fact after 2.30 p.m. Police were also present there. C.W.6 Jayanand told the names of these accused persons after two days. When they gave the statement before the police, they did not tell the names of accused persons. P.W.1 while giving the complaint, referred to the names of accused persons, then he came to know about the same. He has denied the suggestion put to him that during that night on 7.7.2010 himself and other two accused persons have not at all seen the accused persons and that the said accused persons have not at all done anything to the said Subbegowda and at the instance of police and after coming to know the names of accused persons through police, he is giving false evidence against accused persons.
20. According to the prosecution version these are two eyewitnesses to the incident. But as per the evidence of P.W.34 the investigation officer the story is otherwise. In his cross-examination, P.W.34 has deposed that on 8.7.2010 at 26 1.40 p.m. he took charge of the investigation of the case from C.W.49 and after completing the spot mahazar and inquest mahazar proceedings, he recorded the statements of C.Ws.6 to 8. He conducted the inquest mahazar proceedings from 2.30 to 5.00 p.m. He admitted that he has not recorded the statements of C.Ws.6 to 8 at the time of conducting the inquest mahzar proceedings. He admitted that when he took the charge of investigation C.Ws.19 to 21 were at the spot. When he has seen the dead body, in the bed and on the pillow there were no blood stains. He was not having the information that C.Ws.6 to 8 were at the spot itself. He further deposed that he has seen the remand application written by him. He admitted as true that in the said remand application C.Ws.2 to 4 were mentioned as direct eyewitnesses. But he has not shown C.Ws.6 to 8 as eyewitnesses. No doubt, he denied the further suggestion that till 10.8.2010 he went on showing C.Ws.2 to 4 as eyewitnesses to the said incident and denied further suggestion that thereafterwards created the statements that C.Ws.6 to 8 are the eyewitnesses. He denied further 27 suggestion that in order to overcome this, he falsely gave evidence that after completion of spot mahazar and inquest mahazar proceedings, he recorded the statements of C.Ws.6 to 8.
21. Even according to the evidence of P.W.34, the investigation officer, in the remand application he has not shown C.Ws.6 to 8 as eyewitnesses to the incident, but on the contrary, he has admitted that he has shown C.Ws.2 to 4 as eyewitnesses to the incident. If really, C.Ws.6 to 8 are the eyewitnesses according to the prosecution case there was no reason for the investigation officer to show C.Ws.2 to 4 as eyewitnesses in the remand application, which fact he has admitted during the course of cross examination. This fact shows that the learned counsel for respondent Nos.1 to 4 is justified in making the submission that C.Ws.6 to 8 have been projected by the prosecution subsequently by anti- dating their statements. This aspect has been considered by the learned Sessions Judge in detail and has disbelieved the 28 story of the prosecution that C.Ws.6 to 8 are the eyewitnesses to the incident.
22. Apart from that, for the sake of appreciation even if it is accepted that P.Ws.5 and 32 are eyewitnesses to the incident, but examining the oral evidence of these two witnesses, there is no consistency in their evidence. Though as per the evidence of one of the witness accused No.3 was holding poison bottle in his hand, but as per the evidence of other eyewitness he was pressing the neck of the deceased. Even with regard to the fact that accused No.1 was holding pillow is concerned, looking to the prosecution materials it raises reasonable doubt in the mind of the Court as to whether accused No.1 took that pillow to his house and subsequently, produced the same before the investigation officer, because, in the spot mahazar also there is a reference that there was one pillow lying at the spot and it is not the specific case of the prosecution that at the first instance before the incident took place, there were two pillows on the cot. In the absence of such material that there were two pillows on the cot and as per the material placed on record one pillow was seen while conducting spot mahazar and since it is the case of the prosecution that one pillow has been 29 produced by accused No.1 by bringing it from his house, the story of the prosecution creates doubt in the mind of the Court and it is not worth believable.
23. There is no consistency in the evidence of eyewitnesses, so also, P.W.34, the investigation officer. There is no cogent and acceptable material produced by the prosecution to prove the charges as against the accused persons. Even with regard to the instigation said to have been given by accused No.4 to the other accused persons and also for the charge under Section 109 of IPC is concerned, there is no material placed by the prosecution that accused No.4 really instigated accused Nos.1 to 3 for committing such offences. Apart from that, what has happened to C.Ws.2 to 4 who are said to be the eyewitnesses as per the prosecution case, is not at all explained during the course of trial by the prosecution. This aspect has been taken into consideration by the learned Sessions Judge. The learned Sessions Judge has properly considered the material placed on record and has properly come to the conclusion that prosecution has failed to prove its case beyond all reasonable doubt. While re- appreciating the matter by this Court, it will not inspire the confidence in the mind of the Court that C.Ws.6 to 8 are the 30 eyewitnesses to the incident and they have really witnessed the incident as projected by the prosecution.
24. We have also perused the decision relied upon by the learned counsel for the respondents 1 to 4 referred to above. In view of the principle enunciated in the said decision and looking to the entire materials on record, we are of the opinion that we do not find any illegality in the judgment and order of the learned Sessions Judge nor there is any perverse or capricious view taken. No justifiable and valid grounds for this Court to interfere into the judgment and order of acquittal passed by the Court below.
Accordingly, both the appeals are hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE bkp