Karnataka High Court
Sri Somesha H M @ Putta vs State Of Karnataka on 18 November, 2022
Author: K. Somashekar
Bench: K. Somashekar
CRL.A.1962/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL No.1962 OF 2017
BETWEEN:
SRI SOMESHA H. M. @ PUTTA
S/O H.M. CHANDRAIAH,
AGED 30 YEARS
R/AT VADERAHALLI VILLAGE,
TALUK AND DISTRICT: DAVANGERE,
NOW R/AT DEVARAJ URS BADAVANE,
HOUSE NO.32/1, III CROSS,
BEHIND NEW COURT, DAVANGERE,
TALUK AND DISTRICT: DAVANGERE. ...APPELLANT
(BY SRI C.H. JADHAV, SENIOR COUNSEL FOR
SRI L. SRINIVAS BABU)
AND:
STATE OF KARNATAKA
REP. BY SUB INSPECTOR OF POLICE,
HADADI POLICE STATION, HADADI
TALUK AND DISTRICT: DAVANGERE,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
CRL.A.1962/2017
2
BENGALURU-560001. ...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION DATED 03.11.2017 AND IMPUGNED ORDER OF
SENTENCE DATED 04.11.2017 PASSED BY I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN S.C.
NO.69/2014 - CONVICTING THE APPELLANT/ACCUSED NO.1 FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302, 201 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.09.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and order of conviction passed in S.C.No.69/2014 by the Court of I Additional District and Sessions Judge, Davanagere dated 03.11.2017/04.11.2017 convicting the accused of the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment of life and pay a fine of Rs.15,000/-, in default he shall undergo simple imprisonment for 6 months. Further, convicting him of the offence punishable under Section CRL.A.1962/2017 3 201 of IPC and sentencing him to undergo simple imprisonment for 2 years and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for 15 days.
2. The appellant herein was accused before trial Court.
3. The case pleaded by the prosecution is that one Ramarao (in short the deceased) was fighting land dispute with one H.M.Chandraiah(A2) who is the father of accused no.1, in respect of Sy.No.5/1A1 of Vaderahalli village of Davanagere. In this connection suit in O.S.No.427/2013 was pending on the file of Additional Civil Judge, Davanagere. There are many criminal complaints filed to the police in this connection. These disputes prompted ill-will between them. In prosecution of ill-will, on 8.11.2013 at about 7.00 a.m., when the deceased was milking the cow in front of cattle shed situated in disputed land, with sole intention to commit CRL.A.1962/2017 4 his murder, accused no.1/Somesha @ Putta, H.M. Chandraiah(A-2), Sudha(A-3), Veeresh(A-4) and Rudresh(A-5), who are the family members came near the cattle shed of the deceased, on the abetment and instigation of accused Nos.2 to 5 to commit the murder of the deceased, the accused no.1 inflicted injuries on the back of the head and other parts of the body of the deceased with a chopper, as a result of which, the deceased succumbed to death. In order to screen the act of murder with an intention to cause disappearance of the evidence, accused no.1 thrown the chopper into a nearby well and thereby the accused escaped from the spot.
4. PW-7 Ramababu, PW-8 Shrikara and PW-9 Basanna who were working inside the cow shed came to rescue the deceased. At that time, accused No.1 committed criminal intimidation against them with dire consequences to their life if they disclose the alleged CRL.A.1962/2017 5 incident to anybody. Son of the deceased i.e., PW-1 Renugopala Krishna came to know about the incident, has set the law into motion by presenting Ex.P.1 - complaint to Hadadi Police. Case in Crime No.179/2013 was registered and investigation was takenup.
5. PW-21 - M.G. Pampapathi, CPI investigated the matter, arrested the accused, inspected the spot, conducted inquest and spot panchanama, subjected the dead body for autopsy, arrested the accused, seized the weapon of the offence as per his voluntary statement and also seized the clothes on the dead body, recorded evidence of witnesses, subjected seized articles to FSL examination, received the reports and on completion of the investigation, filed the final report against accused No.1.
6. Learned JMFC-II Court, Davanagere registered case in C.C.No.316/2014, after complying CRL.A.1962/2017 6 Section 207 of Cr.P.C., committed the case to the Court of Sessions acting under Section 209 of Cr.P.C. Learned Principal District and Sessions Judge, Davanagere registered the case in S.C.No.69/2014 and assigned it to I Additional District and Sessions Judge, Davanagere. In the meantime, the Investigating Officer also secured the remaining accused and filed separate charge sheet. It was registered in C.C.No.820/2014 and after following the formal procedures, committed the case to court of Sessions. The committal court registered in S.C.No.20/2016 and assigned it to I Additional District and Sessions Judge, Davangere. Both the cases were clubbed and common trial was conducted by the trial court.
7. Before the trial Court, the State is represented by the Public Prosecutor and accused were represented by their counsel. The Trial Court after hearing both sides framed the charge under Section 302, 201, 114 and 506 CRL.A.1962/2017 7 of IPC. As the accused pleaded not guilty, the prosecution examined PW-1 to 22, marked Exs.P.1 to P.38 and M.Os.1 to 6.When the accused were questioned under Section 313 of Cr.P.C., they denied the incriminating circumstances pointed against them and they did not produce the defence evidence under Section 233 of the Cr.P.C. The trial Court after hearing both sides passed the impugned judgment holding that accused No.1 is guilty of Sections 302, 201 of IPC and acquitted accused nos.2 to 5 of charges. Accused no.1/appellant has assailed the impugned judgment and order of conviction.
8. We have heard the arguments of Sri. C.H. Jadhav, learned Senior Counsel representing Sri. L.Srinivas Babu and Sri.Vijayakumar Majage, learned Additional SPP for the State and also perused the impugned judgment, evidence led by the prosecution and other relevant papers placed before us. CRL.A.1962/2017 8
9. PW-1 - Renugopala Krishna, is the son of the deceased, his testimony shows that his father was residing in the farm house situated at Vaderahalli village and the accused persons too residing nearby. Since 2013 accused disputing that the land belonging to them and there was quarrel in this regard. Seeking protection on 2-3 occasion deceased had filed complaints to Hadadi Police, also sent letters to the Chief Minister, Opposition Leader, Higher Police Officials. On 08.11.2013 at 7.00 a.m. he received phone call from PW-7 Ramababu who informed him about the incidence. From Davangere he came to the spot, saw the dead body of his father lying near cow shed with the injuries on the neck, back, chest with one finger cut. He also saw the presence of PW-7 to 9 at the spot. He filed Ex.P.1 - complaint to Hadadi police, later police arrived at spot, drawn Ex.p2 mahazer between 9.00 a.m. and 9.45 a.m. and collection of sample bloodstains soil and sample soil at M.O.1 and 2 CRL.A.1962/2017 9 by taking photograph at Ex.P.3. Later police have conducted inquest mahazar on the body of the deceased at 12.00 noon by taking the photographs at Ex.P.4. He also speaks about presence of PW-2 - Ravi K., PW-12 - S.B. Marulasiddappa, PW-4 - Datturaj, PW-5 - Venkatesh, PW-13 - Bhavani and his another sister Rekha during so. Exs.P.19 to 24 are the documents pertaining to the letter received from the Chief Minister's Office, DIG's Office, Tahasildar's Office, Report of the village accountant and endorsements issued by the Hadadi Police marked through him.
10. PWs-7 to 9 are said to be the eyewitnesses to the incident. PW-10 and 13 are said to have knowledge about the incident, who are the star witnesses, the prosecution relied.
11. The testimony of PW-7 - Ramababu shows that on 08.11.2013 at about 7.00 p.m. he, PW-8 - Srikara CRL.A.1962/2017 10 and PW-9- Basanna while working inside the cow shed of the deceased, he was milking the cow outside, they heard the sound outside, went out, saw the accused no.1 with a machete inflicting injuries on the back, neck, chest and light leg of the deceased, the deceased was laying on the ground. When he, PWs-8 and 9 attempted to pacify, accused No.1 threatened them. He saw the other accused standing near their house and instigating the accused No.1. The accused no.1 along with machete at M.O.6 left the spot in a motorcycle. According to him, the assault was in connection with the land dispute.
12. The testimony of PW-8 - Srikara shows that he is a relative of the deceased, an ITI student studying at Davanagere. He along with PW-7 and 9 were working in the land of the deceased. On 08.11.2013 between 6.30 and 7.00 a.m. he, PW-7 and 9 while working in the cow- shed the deceased, he was milking the cow outside. They heard sound, came out and saw the accused no.1 CRL.A.1962/2017 11 with M.O.6 - machete inflicting injuries on the back, neck, chest and right knee of the deceased. The deceased having sustained injuries succumbed to the death at the spot. When they attempted to pacify, accused no.1 threatened them and thereafter carried M.O.6 along with him in his motorcycle. He saw the other accused standing near their house, were persuading accused no.1 not to spare the deceased and prompting him to inflict injuries with machete.
13. The testimony of PW-9 - Basanna shows that he was working as labourer with the deceased as and when called. 3 years ago at about 7.00 a.m. when he had gone near the cow shed, saw the dead body of the deceased with bleeding injuries. He was not aware who had inflicted the injuries. He has given clear goby to the prosecution version, denying his previous statement as per Ex.P.13. He did not speak anything except seeing CRL.A.1962/2017 12 the dead body inflicted with bleeding injuries near the cow-shed.
14. PW-10 - Sathyanarayana is a fellow villager of Mudadi village. His testimony shows that PW-7 and 8 were working in the cow shed of the deceased, situated near the house of the accused. In connection with land dispute he was witness for several quarrels between accused and the deceased. He was on pilgrimage about 2½ years ago, after return came to know the news of murder of the deceased. He was not aware who the person responsible for death of the deceased. He too has given clear goby to version of the prosecution and resiled from his previous statement at Ex.P.14. He was also now not aware of presence of PWs-7 and 8 at spot when the incident took place. He resides half a kilometer away from the house of the deceased and accused persons were residing at Devarajaurs layout at Davanagere.
CRL.A.1962/201713
15. PW-13 - Smt. Bhavani is the daughter of the deceased. Her testimony goes to show the land dispute between her father with the accused prior to the incident. There was a frequent quarrel between both and several cases were also filed. She knew accused no.7 to 9 works under her father in the disputed land. On 08.11.2013 at 7.30 a.m. she received information about the incident from her sister and death of her father. She along with her husband reached the spot at 9.15 a.m. saw the dead body of her father with injuries on the neck, with cut in foot finger. She speaks about the presence of the Police, making enquiry about how incident had happened, PW-7 to 9 informing the Police about cause of death of her father and particularly about accused no.1 and the instigation by other accused.
16. PW-3 - Sudha is another daughter of the deceased. She is the inquest as well as spot panch. Her testimony shows the purchase of land in Sy.No.5/1A1 by CRL.A.1962/2017 14 her father, dispute between her father with accused, accused quarrelling with her father claiming that land belongs to them resulting registration of several cases. In the year 2013 after attending deepavali festival she went to house of her brother at Davanagere. On 08.11.2013, her brother received phone call from the fellow workers at her father's land informing about the incident. She and her brother/PW-1 had rushed to the farm house, saw her father was lying dead with injuries on the neck, front portion of the chest. Police visited the spot drawn spot mahazar at Ex.P.2, inquest on the dead body of her father as per Ex.P.6 and they have taken the photograph at Ex.P.3. She states the land dispute was the reason for the incident and she shown her finger towards accused no.1 has committed murder of her father at the instance of the other accused. She also speaks about presence of PW-1, PW-7 and others during mahazars conducted by the police.
CRL.A.1962/201715
17. PW-22 - L. Rajashekhar, was the PSI of Hadadi Police Station at relevant point of time. He has given evidence about registering of FIR/Ex.P.28 on receipt of Ex.P.1/complaint from PW-1 on 08.11.2013 at 8.30 a.m. He also speaks about apprehending of the accused from near the Ranganatha Swami temple of Hallur village of Hirekerur Taluk and his production before IO on 13.11.2011 under his report/Ex.P.31.
18. PW-20 - Veereshappa S., is Police constable of Hadadi Police Station. On oath he speaks about carrying FIR to the Court.
19. PW-4 - Datturaj is a panch witness to the inquest of the deceased. His evidence shows that on 08.11.2013 he heard about the incident, visited the spot, saw the dead body of the deceased inflicted with machete injuries. He also speaks about drawing of mahazar by the police in presence of PW-1, PW-3, PW-7 CRL.A.1962/2017 16 and PW-8 between 9.30 and 10.00 a.m. and taking of photographs/Exs.P.3 to 5. He saw from the gathering taking about the land dispute was cause for the death of the deceased in the hands of accused No.1 at the instigation of other accused.
20. PW-12 - S.B. Marulasiddappa is panch witness to collection of blood stained soil samples by the IO at the spot. His testimony points out that 3 years ago at about 8.30 a.m. Police drawing the mahazar near the house of the deceased by taking Ex.P3/photograph in respect of collection of M.O.1 and 2/samples in the presence of PWs-1, 2 and 3.
21. PW-2 - Ravi is also pancha. His testimony points out that he was called near cow shed on 8.11.2013, where he had seen plastic mug, milking can. Police have drawn the mahazar/Ex.P2 between 9.30-9.45, collected sample of bloodstained soil as per CRL.A.1962/2017 17 M.O.1 and 2 in presence of PW-1 and PW-12. He also speaks about the inquest drawn by the Police on the dead body of the deceased between 10.30 and 11.00 a.m. PW-1, PW.12, PW-4, PW-3 were present and police have taken the photo of the dead body at Ex.P.3. During so he heard nexus between the incidence with accused no.1 and his brothers in connection with the land dispute.
22. PW-14 - Gangappa is the Assistant Engineer. His testimony points out that on 26.11.2013 Hadadi Police took him to spot to prepare the sketch. After visiting the spot he has prepared Ex.P.15 - sketch noting the topography of the spot and given to police.
23. PW-18 - Chandrakumar, is police constable of Hadadi Police Station. His testimony points out that as per the instructions of Investigating Officer, he has guarded the dead body of the deceased, after autopsy CRL.A.1962/2017 18 handed over the dead body to the family members and also carried the clothes on the dead body at M.Os.3 to 5 and produced it before the Investigating Officer and its seizue under Ex.P7/mahazar in presence of PW-5 - Venkatesh and CW-7 - Anil Kumar.
24. PW-5 - Venkatesh is panch witness to Ex.P.7. His testimony points out that 3 years ago he was called to the office of the CPI between 4.30 to 5.00 p.m., one police constable had produced M.O.3 to 5 - clothes said to be of deceased and it was seized under Ex.P.7/mahazar in presence of CW-7 - Anilkumar.
25. PW-15 - Manjunatha is the person who knew the purchase of the disputed land by the deceased. His testimony points out that the deceased purchasing 3 acres of land in Sy.No.5/1B and it was under the supervision of Shivanandappa. On the date of incident CRL.A.1962/2017 19 he was out station, he came to know about the incidence on his return and death of the deceased.
26. PW-16 - Dr.Nagaveni is the Medical Officer of Chigateri Hospital, Davanagere and she is an eye surgeon. She speaks about PW-18 handing over the request of the Investigating Officer for conducting autopsy on the dead body of the deceased on 08.11.2013. On the very day between 2.00 and 4.00 p.m. she conducted the autopsy. During so, she noticed the injuries on the dead body of the deceased as under:
"External injuries:
1) There is an oblique cut throat injury extending from right ear lobe to the left sternovleido mastoid oblique measuring 13 cms X 3 cms X 4 cms trachea and esophagus are cut at the level of the hyoid bone, carotid and jugular veins on both sides of the neck.
2) Cut wound from the right side of the neck measuring 13X3X5 cm.
3) Cut wound over the left side of the chest at the end of clavicle and second rib 4 x 1 x 1 cm.
(i) Second oblique cut measuring 4X1X3 cms, cut wound over the occipital area measuring 7 inches length 4 cm depth.CRL.A.1962/2017 20
4) Abrasion and cut wound over the left elbow joint measuring 4 x 2 cm.
5) There is a cut of 4th digit of left hand
6) cut wound over the right knee joint measuring 14 x 2 x 3 cm patella detached from tendon.
She also noticed injuries organ-wise (i) fracture of second and third ribs on the left side of the chest and
(ii) cut throat injury over the trachea and esophagus cut at the level of thyroid cartilages. She is of the opinion that, the death of the deceased was 6 to 7 hours prior to autopsy. She has given her opinion as to cause of the death was due to hemorrhagic shock, as a result of injuries to trachea, esophagus, carotid, jugular vessels and head injury. She has issued autopsy report at Ex.P.17. On 03.05.2014 she had examined M.O.6 - long (machete), compared it with the corresponding injuries on the dead body of the deceased and gave her opinion at Ex.P18 that injuries found on the dead body was possible if an assault with M.O.6.
CRL.A.1962/201721
27. PW-21 - Pampapathi is the Investigating Officer. His testimony goes to shows that on 08.11.2013 after taking over the investigation from PW- 22, he has visited the spot, secured the presence of PW- 2-K. Ravi, PW-12- S.B. Marulasiddappa by issuing notice. In their presence conducted the spot inspection, saw the dead body of the deceased with injuries on the neck, backside, chest and fingers. He also collected samples of blood stained soil and control soil as per M.O.1 and 2 between 9.00 to 9.45 a.m. under Ex.P.2 - Mahazar and taken Ex.P.3 and P.4 photographs. He has further conducted Ex.P.6 - inquest on the dead body of the deceased and recorded the statements of PW-3 - Sudha and PW-4 - Datturaj and sent the dead body for autopsy through PW-18. PW-18 after autopsy brought and produced M.Os.3 to 5 and was seized under Ex.P.7 in presence of PW-5 - Venkatesh and CW-7 - Anil Kumar.
CRL.A.1962/201722
28. His testimony further shows arrest of accused, recording of his voluntary statement at Ex.P.31 on 13.11.2013 on his production by PW-22 under Ex.P.32/report. On the next day 10.00 a.m. he has secured PW- 6 Siddeshaiah and PW-11 - Manjunath Rathod to his office introduced the accused no.1 to them. Accused No.1 took them to farm house of the deceased and shown the well near the cow-shed that he has thrown weapon of offence. Well was filled with water, it was dewatered, accused no.1 get down and produced M.O.6 - machete. On its examination observed bloodstains on it, hence, it was seized under Ex.P.8 - mahazar between 10.00 a.m. to 4.00 p.m. and photographs Ex.P.9 and 10 was also taken. After collecting petition filed to the Chief Minister and others as per Ex.P19 to P24, records pertain to the land, land dispute, the previous complaints filed to Police as per Ex.P34 to P38, Ex.P.27 - FSL report, opinion report of CRL.A.1962/2017 23 Doctor as per Ex.P.18 and filed the charge sheet against accused No.1. The other accused since obtained stay from this Court, after its vacation, filed separate charge sheet against them.
29. PW-6 - Siddeshaiah and PW-11 - Manjunath Rathod are panch witness to the seizure of M.O.6. Their testimony shows that, they were summoned to the Hadadi police station, PW-11 visiting first to the police station and later PW6. They saw the presence of the accused no.1, who in police jeep took them to Vaderahalli village, to the land of the deceased. The accused No.1 went near the well and told them that M.O.6 was thrown inside the well. Water was in full brim, Police after dewatering, accused no.1 got into the well, brought M.O.6 and produced it. It was seized under Ex.P.8 - mahazar by taking the photograph at Exs. P.9 to 12.
CRL.A.1962/201724
30. PW-17 - Manjunatha, is the police constable. His version of evidence on oath shows he carrying seized articles to FSL on 23.11.2013 and bring them back on 30.11.2013.
31. PW-19 Dr.Lingegouda N.L. is the scientific Officer of FSL, Davanagere. His testimony shows that on 30.11.2013 Hadadi police have brought six items in M.O.1 to 6 in connection with Cr.No.179/2013. He has examined them scientifically and observed blood stains on M.O.3. Such stains were of human 'O' group. In this regard he has issued Ex.P.27 report and returned M.O.1 to 6 to police.
32. It has been argued by the learned Senior Counsel Sri.C.H.Jadhav that presence of PWs-7 to 9 at the time of incident is highly improbable. In spite of neighbours are present just 200 feet away from place of incident, none of them were cited as witness. PW-7 has CRL.A.1962/2017 25 referred the presence of one Prasanna at the time of incident but Investigating Officer did not choose to record his statement without recording any reason. PW- 6 speaks about the arrival of several people at the spot one and half hour after the incident. Such being so, the very presence of PW-7 is doubtful. PW-8 is unreliable witness because of his unnatural conduct elicited in the cross-examination. It is also brought out from the cross- examination of PW-9 that after seeing the dead body, he brought PWs-7 and 8 to the spot, then how safe it is to relay on the evidence of PW-7 to 9. It is also canvassed referring to the evidence of PW-16 - Dr. Nagaveni explained that she being the eye surgeon, inexperienced in conducing autopsy. She has assessed the time since death was 6-7 hours prior to the time of autopsy. It is contrary to medical jurisprudence as the assessment of time since death shall be in the intervals of within 12 hours, 12 to 24 hours and thereon.
CRL.A.1962/201726
33. Learned Senior Counsel also referred to Ex.P.21 that he has given the extra judicial confession which is hit by under Section 25 and 26 of Evidence Act. PW-6 is brought as pancha witness to the seizure who is a resident of Bellodi village 31 kilometers away from the spot and interestingly he is friend of PW-1. There is no explanation offered why neighbours were not summoned as panchas. For this reason, evidence of PW-6 is unreliable. It is brought to our notice that soon after the incident, M.O.6 was thrown inside the well, and it was inside the water for a period of 5 days. The evidence of PW-19 FSL expert in the cross-examination did point out if the metal object with bloodstains was immediately put inside the water, bloodstains will vanish. Inspite of it, bloodstains were noticed and to even to the extent of grouping. Hence the FSL report is strange and for this reason, the FSL evidence is unreliable. CRL.A.1962/2017 27
34. Learned Senior Counsel taken us through the evidence of PW-1 about presence of Police at the spot before filing the complaint, if it is so, police have prior information even before filing of the complaint and they visited the sopt, this aspect is suppressed. Having regard to the civil and criminal disputes, conduct of the witnesses indicate that they are not genuine, the medical evidence is not worthy, the FSL report is unreliable and all the witnesses who are all working at different places have been brought in as eye witnesses. Therefore, the reasons recoded by the trial Court in accepting the doubtful evidence and in holding that accused no.1 is guilty is erroneous.
35. In support of his submission, learned Senior Counsel placed reliance on:
1) Bhimappa Jinnappa Naganur Vs. State of Karnataka reported in 1993 Supp (3) SCC 449:CRL.A.1962/2017
28
The Hon'ble Apex Court referring to behaviour of eye witness in a criminal trial held to what extent they can be relied at para 9, it thus reads as follows:
"9. It appears to us that the High Court did not meet with the reasoning of the trial court while rejecting the statement of eyewitnesses. It also appears to us that the behavious of PW 1, wife of the deceased, was not natural in the sense that she merely rests by offering water to her deceased husband who was breathing his last.
She does not try to nurse him or offer him any other help which would have shown her presence at the time of the death of the deceased at the site of the incident."
2) Shankarlal Vs. State of Rajasthan reported in (2004) 10 SCC 632:
The Hon'ble Apex Court while considering the sole eye witness in a criminal trial referring conduct of the witnesses and its appreciation laid down at para 5, which reads as under:
"Even according to the prosecution the only witness to the incident in question is PW-6 therefore as contended by learned counsel for the appellant we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to a village Upli for some work. From there he came back by bus at about 11 CRL.A.1962/2017 29 o'clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is about 4-5 miles and PW-6 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him therefore he came near the village square where he met PW-2 Khyali Ram. From the above evidence of PW-6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he reached the village and met Ram Rakh's wife he did not inform her about the incident and it is for the first time he informs about this incident to PW-2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination in chief that he saw only one assault on the deceased, in the cross examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross examination that when he met PW-2 Khyali Ram and told him about the incident in question but PW-2 supposedly told him that he had already come to know of the incident from PW-14.CRL.A.1962/2017 30
The prosecution has not found how PW-14 came to know of the incident. In this background if we appreciate the evidence of PW-6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5.4.1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the Police Station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW-6 then there is no other material to base a conviction on the appellant hence we are of the opinion that the appellant is entitled to the benefit of doubt therefore this appeal succeeds and is allowed. The judgment and order of conviction of the 2 courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so his bailbonds shall stand discharged."
3) State of Rajasthan Vs. Sampat Ram and Others reported in (2015) 13 SCC 115:
CRL.A.1962/201731
The Hon'ble Apex Court dealing with unnatural conduct of witnesses laid down at paras 8 and 9, which reads is under:
"8. We have gone through the record and considered the rival submissions, PW 3 Lalaram, having turned hostile, the matter completely hinges on the testimony of PW 4 Ramkaran. His behaviour in leaving the place of occurrence and not reporting the matter to anyone is extremely unnatural. The incident having occurred in the darkness and as accepted by PW 4 Ramkaran it was not in front of the tractor, the chance and opportunity for him to have sufficiently identified the assailants is also doubtful. There is nothing on record as to how "one child" who was on the tractor, has after investigation been found to be other than PW 5 Ramratan, aged about 22 years and a stout person.
9. In the circumstances, the view that has weighed with the High Court in reversing the order of conviction and acquitting the respondent-accused is definitely a possible view. In this appeal against acquittal, we do not see any justification to upset such view taken by the High Court. Consequently, this appeal fails and is dismissed."
4) State of Uttar Pradesh Vs. Om Pal and Others reported in AIR 2018 SC 2072:
CRL.A.1962/201732
The Hon'ble Apex Court while appreciating eyewitness to an incident if statement of one eyewitness contradictory and it is unreliable. At paras 11, 12 and 14, which is as follows:
"11. On the other hand, the conduct and statements of PW2 (Dharmendra) who was stated to be an eyewitness do not inspire confidence for the reason that his depositions under Section 161, Cr.P.C. were quite different to what he stated before Court in his examination- in-chief. He could not even give a satisfactory reason for his presence at the time and place of occurrence. Furthermore, he did not choose to lodge complaint with the police by himself even though he had witnessed the occurrence as admittedly the complaint was lodged by PW1 on the information provided by PW2. Apart from that, there were certain conflicting statements in his evidence as regards how the deceased got injuries, and also his conduct of not making a hue and cry and not disclosing to anyone about the occurrence on his way to the house of Naresh Pal, gives rise to suspicion on the credibility and trustworthiness of PW2. When the evidence of PW2 itself is unbelievable and jeopardizing the prosecution case, in no manner the evidence of PW1 could be given credence.
12. We are also not inclined to believe the conduct of PW3-- wife of the deceased, who was stated to be in a shock and not in consciousness for about a month after the death of her husband. We find no valid documentary or medical evidence on record in support of the claim of prosecution that PW3 was really in such unconscious state for about a month. Looking at the unnatural behavior of eyewitnesses PWs 2 & 3 and their contradictory statements, it cannot CRL.A.1962/2017 33 be said that their evidences are genuine so as to convict the accused.
13. x x x
14. The High Court, while appreciating the evidence of the three important witnesses i.e. PWs 1, 2 and 3, rightly disbelieved the presence of PWs 2 and 3 at the place of occurrence and discredited the evidence of P.W.1--complainant. Undoubtedly, the prosecution in its effort to establish the case with the support of evidences of PWs 1, 2 and 3, has miserably failed to prove the guilt of the accused beyond reasonable doubt. The High Court has, therefore, committed no illegality or manifest error in acquitting the accused giving them the benefit of doubt, under the circumstances. We express our concurrence with the findings recorded by the High Court for acquitting the respondents. For the aforesaid reasoning, we do not find any merit in this appeal calling for our interference under Article 136 of the Constitution."
36. On contrary, learned Additional SPP has submitted that entire case of the prosecution stands on the testimony of eye witnesses. There is a direct evidence to the effect that accused no.1 near cow shed inflicted fatal injuries on the person of the deceased with a machete - M.O.6 and the injuries found on the dead body is as noted during the autopsy corroborates to the statement of the eye witnesses. Even though PW-9 CRL.A.1962/2017 34 turned hostile, evidence of PW-7 and 8 is clear and inspiring confidence. The incident occurred at 7.00 a.m., complaint was lodged within 8.30 a.m. there was no delay. All the procedures have been followed in registering the complaint. The conduct of witnesses cannot be given much importance as it varies from person to person. PW-6 and also PW-11 have supported the seizure of weapon of offence as M.O.6 at the instance of accused no.1.
37. It is further submitted that PW-10 -
Satyanarayana deposed about working of PW-7 and 8 in the cow shed of deceased. As indeed other witnesses did not point out about the background of the dispute between the deceased and the accused, prosecution has established the motive by producing the documents as per Exs.P.13, 21, 23, 24 and the relative witnesses stand in support of it. Therefore, prosecution has placed CRL.A.1962/2017 35 positive evidence and therefore the order of conviction needs to be confirmed.
38. We have referred the evidence relied by the prosecution and persuasive submissions made by both sides to support their contentions.
39. Motive is a double edged weapon. It will cut either side, if it is established or not. In a case where entire case of the prosecution lies upon the direct evidence, motive loses importance and as such let us see whether the prosecution evidence so relied upon is trustworthy, reliable and whether the impugned judgment is sustainable as claimed by the prosecution or any secondary hypothesis is possible, give benefit in favour the accused is to be examined now.
40. Firstly let us see the aspect of homicidal death of the deceased. In this regard, we have already referred the evidence of prosecution witnesses' viz., CRL.A.1962/2017 36 PW-3/Sudha, daughter of the deceased, PW-4/Datturaj and PW-12/S.B.Marulasiddappa and also the evidence of PW-21/ M.G.Pampathi, the Investigating Officer. Ex.P6 is the inquest panchanama wherein the injuries mentioned in it is referred to supra; it takes corroboration from the oral evidence of PW- 16/Dr.Nagaveni. The quality of evidence relied makes it clear that the dead body of the deceased lying in front of the cow-shed in the farm-house with inflicted fatal injuries.
41. In the cross examination of PW-
16/Dr.Nagaveni, several irregularity is explained that what she committed during autopsy. Even such admissions she is not a full-fledged forensic expert, she is not aware of procedure of autopsy, keeping that apart, it is noticed there is no denial that she did not conducted autopsy. The injuries recorded in Ex.P17/postmortem report did not point out any CRL.A.1962/2017 37 secondary hypothesis give rises to inference of any other hypothesis. Hence, the prosecution evidence persuades us to accept it. We also perused by the finding recorded by the trial court with respect to the cause of death. We do not find any error in such findings. Hence, we have no hesitation to accept that the death of the deceased was homicidal.
42. The entire case of the prosecution rests upon the direct evidence. As we have evaluated the evidence, PW-1/Renugopal Krishna, son of the deceased, who came down to the spot, after seeing the dead body of his father, lodged the complaint/Ex.P1. PW-3/Sudha and PW-13/Bhavani are the daughters of the deceased, who are the chance witnesses, who came to the spot only after getting the information about the incident. PW- 10/Sathyanarayana is another important witness who did depose that the deceased had engaged the services of PWs-7 and 8 to work in his cow-shed. He speaks in CRL.A.1962/2017 38 respect of frequent quarrel between the deceased and the accused in respect of land dispute. PW-10 has turned hostile in the witness box, he resiled from his previous statement as per Ex.P14. He heard about the incident from others, he was not a witness to it. The cross-examination of PW-10 demonstrates that he was not aware the presence of PW-8 when the incident took place. He resides half-a-kilometer away from the house of the deceased wherein the accused persons were residing at Devaraja Urs Layout at Davanagere. From the testimony of PW-10, we can make out that he was not an eye-witness but he only speaks about PWs-7 and 8 working in the cow-shed of the deceased.
43. Apart from these witnesses, star witnesses to the case are PW-7/Ramababu, PW-8/Srikara and PW- 9/Basanna. As found from the evidence of PW-10, PWs- 7 and 8 were engaged by the deceased, insofar as PW-9 CRL.A.1962/2017 39 working with the deceased is concerned, it can ascertain from the evidence of PW-8.
44. In the cross-examination, PW-8 has categorically stated that the deceased has engaged the services of PW-9 to work as labour one year prior to the incident and to this extent; he has also given a statement before the Police. In the cross-examination he did not deny this aspect.
45. As seen from the evidence of PW-8, he admitted that he is the close relative of the deceased, though the children of deceased did not admit it. The reason can be inferred that they want to project PW-8 as an independent witness. The evidence of PW-8/Srikara indicates that he was an ITI student studying in Davanagere and he resides at Kunduwada. PW-8 cannot be a labour as he is an ITI student and relative of the CRL.A.1962/2017 40 deceased. Keeping this in mind, let us appreciate the evidence of PWs-7 to 9.
46. We have analyzed the testimony of PW-7 to PW-9. In his cross-examination PW-7 admits that though he was present at the spot, witnessed the incident, he did not show any reflexion to the act of the accused while assaulting the deceased, even he had not gone near, he did any attempt to rescue the deceased, he did not offer first aid to the deceased, even after the accused left the spot he has not attempted to feed water to the deceased or tried to shift the deceased to the hospital to save his life. If really PW-7 was present and witnessed the incident, his conduct shows his unnatural behaviour of a person even after seeing such an incident. He did not shout for help nor has raised hue and cry, to alert neighbours to rush to the spot and even PWs-8 and 9 did anything according to him. CRL.A.1962/2017 41
47. As seen in the cross-examination of PW- 8/Srikara, while witnessing the incident, he did not cry, shout or call for any help from the public, inspite of the houses are situated nearby, he did not intervene with the accused, he did not rush to the spot to rescue the deceased, he has not made any attempt to provide first aid or feed water to the deceased even after the accused left the spot. He too admits that neither he nor PWs-7 and 9 made any attempt to save the life of the deceased. They did not care to ascertain whether the deceased was dead or alive. Even he did not do any effort to carry the deceased to the hospital at Davanagere. This is an unnatural conduct of PW-8 as a human being and the close relative of the deceased. The conduct of PW-8 is identical to that of PW-7, as such; presence of PW-8 has to be ascertained now.
48. Let us analyse testimony of PW-9/Basappa. His service was engaged by the deceased since one year CRL.A.1962/2017 42 prior to the incident. PW-9 speaks about his arrival to form house of the deceased at 7.00 a.m. in the morning, saw the deceased lying in front of the cow-shed with injuries and found dead. He has not seen the incident, he did not make any attempt to rescue the deceased, as he was already dead. He has not given Ex.P13 statement before the Police. In his cross-examination, it is brought out that he alone came to the house of the deceased and saw the dead body of the deceased and thereafter went and brought PWs-7 and 8 to the spot to show the dead body of the deceased. From the said version of PW-9 it is clear that he was the first person, who saw the dead body of the deceased and the absence of PW7 and 8 is prominent. His evidence explains PWs-7 and 8 behaving in such a manner, it is not expected from a prudent man even after seeing such a ghostly incidence taking place under their eyes probabalise their absence prominently. It stands in CRL.A.1962/2017 43 support of PW9 to infer the absence of PWs-7 and 8 during incidence. If they are not present at the spot naturally there was no occasion for them to behave in this manner. This goes to establish that PWs-7 to 9 were not eye witness to the incident. Hence the proposition of the prosecution has to fall on the ground of direct evidence.
49. The other circumstance that could be gathered is only from PW-1/Renugopal, son of the deceased, PW- 3/Sudha and PW-13/Bhavani, the daughters of the deceased, they came to know about the incident from others, the reason for referring the names of the accused was the land dispute. It is brought out in the cross examination of PW-10 that the disputed land originally belongs to the accused, they pledged to one Muddappa Master as security to loan. The deceased has grabbed the said land forcing Muddappa Master to part with the said land. It is also brought out that the CRL.A.1962/2017 44 deceased was faced trial as accused for having committed murder of said Muddappa Master. Under these circumstances the deceased and the accused came inside the civil and criminal litigation resulting frequent quarrel between them. These aspects is not denied by the son and daughters of the deceased in their cross examination. Thus, it is clear that the disputed land was already soaked with blood and it was repeated again.
50. In this background if we consider the events, the direct evidence is not available to the prosecution, now the case rest on the circumstantial evidence. It is the arrest, voluntary statement and recovery of weapon of offence at the instance of the accused. In this regard, the prosecution has relied upon the evidence of PW- 6/Siddeshaiah and PW-11/Manjunath Rathod. CRL.A.1962/2017 45
51. As regarding apprehension of the accused is concerned, the evidence of PW-21/ M.G.Pampapathi and the evidence of PW-22/L.Rajashekar, PSI did point out that on 13.11.2013, he has apprehended the accused near Ranganathaswamy temple of Halloor village of Hirekerur taluk at about 9.00 a.m. with the assistance of his staff and he was produced before the Investigating Officer under Ex.P32/report. In the cross-examination, though it has been denied, the production of accused under Ex.P32/report by PW-22 has been deposed by PW-21/Pampapathi, the Investigating Officer.
52. The manner of apprehending the accused and production before PW-21 may be doubtful, but the evidence of PWs-21 and 22 did point out the presence of the accused was secured on 13.11.2013. According to PW-21, the first accused has given voluntary statement as per Ex.P31 and as per such statement, he secured PWs-6 and 11 as panchas, the accused led them to the CRL.A.1962/2017 46 place of incident and shown the well where the alleged weapon of offence/M.O.6 was thrown and it was seized under Ex.P8.
53. The evidence of PWs-6 and 11 read conjoiontly, did point out the Investigating Officer securing them to the Police Station, introduced them with the accused, he taking them to the place of incident, shown the well, after dewatered, he went in and brought M.O.6/machete and same was produced under Ex.P8. Said procedure was captured in Exs.P9 to P12 photographs.
54. We have carefully considered the evidence of PWs-7 and 8 that the accused soon after the incident carried M.O.6 along with him in the motor cycle. If that is so, from the scene of offence the accused carried away M.O.6; it was not thrown to the well. Contrarily M.O.6 has been seized from inside the well. CRL.A.1962/2017 47
55. We have also perused the photograph at Exs.P9 and P10. They clearly point out that, accused, Investigating Officer and panchas' are all inside the well, where the machete was in the hands of the accused, it was not soaked with water or the accused. It MO6 was carried away by the accused, how it came inside the well-cast a cloud of doubt in the version of the prosecution. FSL evidence supports our inference as found from testimony of PW-19/Dr.Lingegowda, bloodstains on M.O.6 to the extent of grouping. In the cross-examination PW-19 did admit that immediately after the incident, if M.O.6 was thrown inside the well, there is chance of bloodstains being washed away. Interestingly M.O.6 was seized five days after the incident, during so it was inside the well. As one can see from the photographs at Exs.P9 and P10, that M.O.6 was dry and not at all soaked with water and therefore, the seizure as stated by PWs-6, 11 and Investigating CRL.A.1962/2017 48 Officer, is found artificial. Under these circumstances we are persuaded to opine theory of seizure as proposed is make believe and it is hard to accept the evidence in this regard.
56. As regarding the evidence of PWs-6 and 11, it has been contended that they are not the local witnesses; they are all very interested and brought from outside. As seen from the evidence, PW-6 hails from Bellodi village, 25 kilo meter away from the place of incident. PW-11 who is a friend of PW-1 was working at Mangalore and he was brought in as a panch witness, inspite of the neighbours and local respectable people are readily available to the Investigating Officer. A person unknown to the locality is ropped in by the Investigating Officer as panch witness. It clearly point out the cleverness of the Investigating Officer in citing the selective witnesses excluding local persons also CRL.A.1962/2017 49 explain the conduct of the Investigating Officer and quality of investigtion.
57. Now coming to the evidence of remaining witnesses, who are all formal in nature, PW- 15/Manjunath, whose evidence did point out the background of the deceased acquiring the land and the dispute between the parties? The others are official witnesses are formal in nature.
58. As we have analysed the evidence of the prosecution, it comes out that, there was an incident on 8.11.2013 in the morning, the deceased was succumbed to the fatal injuries in front of his cow-shed, PW-9 came to work in the morning seen the same, brought PWs7 and 8 to the spot. Thereafter the incident was informed to PW-1, PWs-3 and 13, the children of the deceased, police were also rushed to the spot without making any delay, investigation was done and later law was set into CRL.A.1962/2017 50 motion. The reason for the accused to be brought in was the dispute in respect of the land.
59. As seen from the records, we do not find any material evidence explaining how the deceased suffered injuries. Even if M.O.6 is accepted as the weapon of offence, the seizure at the instance of the accused is highly doubtful; FSL evidence did explain that the seizure of M.O.6 is to make believe. Even the circumstantial evidence is not available in to prosecution to bring home the guilt of the accused.
60. We have perused the impugned judgment; the trial court did fail to evaluate the evidence of the prosecution in the context of admissibility. Inspite of the lack of legal evidence, the trial court has come to the conclusion that the prosecution has proved its case. In view of our analysis of the prosecution evidence in the light of the settled law there is a secondary hypothesis in the prosecution evidence, which was not appreciated CRL.A.1962/2017 51 in favour of the accused. When two views are possible, the view in favour of the accused has to benefit him. We are persuaded to extend benefit of doubt in favour of the accused holding that prosecution failed to place legal evidence in support of its proposition. Having regard to weight of the evidence conviction will not sustain. The impugned judgment calls for our interference. In the result, we proceed to pass the following:
ORDER The appeal is allowed.
Consequently judgment dated 03.11.2017 and order of conviction dated 04.11.2017 passed in S.C.No.69/2014 by the Court of I Additional District and Sessions Judge, Davanagere in convicting the accused of the offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment of life and pay a fine of Rs.15,000/-, in default he shall undergo simple imprisonment for 6 months and convicting the accused CRL.A.1962/2017 52 of the offence punishable under Section 201 of IPC and sentencing him to undergo simple imprisonment for 2 years and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for 15 days is hereby set-aside.
Whereas accused is acquitted of the offence punishable under Section 302, 201 of IPC.
The accused shall be set at liberty forthwith, if he does not require in any other case.
Fine amount if any deposited by the accused shall be returned to him with due identification.
Office to communicate this order to concerned jail authority forthwith where the accused is now in incarceration.
Sd/-
JUDGE Sd/-
JUDGE KNM/-