Karnataka High Court
Vasudeva @ Vasu vs State Of Karnataka on 9 December, 2022
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No.1339 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
CRIMINAL APPEAL No.1339 OF 2018
BETWEEN:
1. VASUDEVA @ VASU,
S/O. LATE. KAVERAPPA,
OCCUPATION: PRIVATE SERVICE,
R/O. NO. 212, BEHIND GANESHA TEMPLE,
SIDDARTHA COLONY, MADIWALA,
HOSUR ROAD, BENGALURLU 560068.
2. MUNIRAJU @ RAJA,
S/O. LATE. THIMMARAYAPPA,
AGED 31 YEARS,
OCC: PRIVATE SERVICE,
R/AT NO. 167, BEHIND GANESHA TEMPLE,
SIDDARTHA COLONY, MADIWALA,
HOSUR ROAD, BENGALURLU 560068.
...APPELLANTS
Digitally signed by
MALATESH K C (BY SRI DEVARAJ, ADVOCATE FOR
Location: High SRI MOHAN KUMAR D., ADVOCATE FOR APPELLANT No.1;
Court of SRI N.R.KRISHNAPPA, ADVOCATE FOR APPELLANT No.2)
Karnataka
AND:
1. STATE OF KARNATAKA,
BY MADIVALA POLICE STATION,
BENGALURU CITY,
REP BY ITS STATE PUBLIC PROSECUTOR,
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CRL.A No.1339 of 2018
HIGH COURT BUIDLING,
DR. B.R. AMBEDKAR VEEDHI,
BENGLAURU-560 001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED
04.06.2018 AND ORDER OF SENTENCE DATED 05.06.2018
PASSED BY THE LXVI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-67) IN S.C.No.178/2015-
CONVICTING THE APPELLANTS/ACCUSED Nos.1 AND 2 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 341, 307 AND
302 R/W 34 OF THE INDIAN PENAL CODE.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The present Criminal Appeal is filed by the appellants /accused Nos.1 and 2 against the judgment of conviction dated 04.06.2018 and order of sentence dated 05.06.2018 passed in S.C. No.178/2015 on the file of the LXVI Additional City Civil and Sessions Judge, (CCH-67), Bengaluru City, sentencing the accused Nos.1 and 2 to undergo imprisonment for life and to pay fine of `25,000/- each, for the offence punishable under Section 302 r/w 34 of the Indian penal Code; to undergo -3- CRL.A No.1339 of 2018 imprisonment for a period of ten years and to pay fine of `10,000/- each for the offence punishable under Section 307 r/w 34 of the Indian Penal Code and to pay fine of `500/- for the offence punishable under Section 341 r/w 34 of the Indian Penal Code. Further, in default of payment of fine, accused Nos.1 and 2 were sentenced to undergo imprisonment for one year.
2. It is the case of the prosecution that, one V. Mohan Raju, S/o Venkateshappa, lodged a complaint dated 23.10.2014 to the Madivala police, stating that about 20 years back, Accused No.1-Vasu, S/o Gowramma, shifted to Mestri Palya from Adugodi and started to reside in a rented house.
Venkateshappa got them a house in Siddartha Nagara. In the said house Vasu was residing along with his mother Gowramma. During that time, Vasu murdered one Achukattu Manja and went to jail. Since Gowramma, Mother of Vasu requested Venkateshappa to get her son released from jail, Venkateshappa got Vasu released on bail by offering his house property as surety. In the year 2011, Vasu sold the said house and purchased house No.212 situated behind the house of -4- CRL.A No.1339 of 2018 Venkateshappa from one Vijayakumar and started to reside there along with his mother Gowramma and his sister Lakshmi. In the year 2012, while demolishing the said house to construct a new house, without any reason Vasu quarreled with complainant and his father Venkateshappa and assaulted the complainant, his wife and children. In that regard, on 25.01.2012, he had lodged a complaint against Vasu and his mother. The police had called Vasu to the Station and warned him not trouble them and released him by taking recognizance.
Vasu kept quiet for few days and later asked Venkateshappa to lend him `25,000/-. Since Venkateshappa refused to lend the money, Vasu quarreled with his father and gave life threat. In this regard, Venkateshappa lodged a complaint with the Commissioner of Police. During that time also, the police summoned Vasu to the police station and warned him. Vasu was not happy with Venkateshappa who was doing Social work in Siddartha Nagar and had gained some name and fame.
Vasu wanted to be the leader in the area.
3. It is further stated in the complaint that on 22.10.2014, when Venkateshappa engaged in some preparation work in the -5- CRL.A No.1339 of 2018 shop situated at Nagarajareddy building which was taken on rent by Madesha who used to be with Venkateshappa, to run the Transport Business, around 9.30 pm, Vasu asked the worker-Chinnaraju who was doing the work as to why he is working for his opponent. Vasu instructed said Chinnaraju not to work for Venkateshappa and abused him and left the place.
Chinnaraju informed the said fact to Madesha, who in turn informed it to Venkateshappa. Since it was night, Venkateshappa told Chinnaraju that they shall talk to Vasu in the morning. On 23.10.2014, at 12.15 in the midnight when Venkateshappa and Madesha were returning home, Vasu and his friend Raju, suddenly stopped them and tried to stab Venkateshappa with knife. In order to escape from the attack, when Venkateshappa ran towards home, neighbour Puttaraju who saw Vasu chasing Venkateshappa, informed the complainant. Immediately, the complainant rushed to the spot and by that time, Venkateshappa was murdered by Vasu by slitting his neck and his body was lying in the passage of 4th cross situated on the back side of the complainant's house and complainant saw, Vasu running with a knife in his hand and Raju followed him.
-6- CRL.A No.1339 of 20184. Based on the said complaint, the jurisdictional police registered a case at 3.00 am on 23.10.2014 in Crime No.1485/2014 against Vasu and Raju-accused Nos.1 and 2 for the offences punishable under Sections 341, 307 and 302 r/w 34 of the Indian Penal Code.
5. After investigation, the police filed the charge sheet.
Since the offence was exclusively triable by the Sessions Court, the case was transferred to the Court of LXVI Additional City Civil and Sessions Judge, Bengaluru City (CCH-67).
6. The learned Sessions Judge framed the Charge on 26.11.2015 against accused Nos.1 and 2 for the offences punishable under Sections 341, 307 and 302 r/w 34 of the Indian Penal Code and secured the presence of accused persons, read over the charge and explained in the language known to them, who pleaded not guilty and claimed to be tried.
7. In order to prove its case, the prosecution, in all examined 31 witnesses as P.Ws.1 to 31 and marked the documents Exs.P.1 to P.38 and material objects M.Os.1 to 9.
After completion of the evidence of prosecution witnesses, the -7- CRL.A No.1339 of 2018 statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure was recorded. The accused persons denied all the incriminating circumstances adduced against them and did not chose to lead any defence evidence.
8. Based on the aforesaid pleadings, the learned Sessions Judge framed the following point for consideration:
"(i) Whether the prosecution proves beyond all reasonable doubt that the accused Nos.1 and 2 have committed alleged offences punishable under Sections 341, 307 and 302 r/w Section 34 of the Indian Penal Code?"
9. Considering both oral and documentary evidence on record, the learned Sessions Judge, recorded a finding that the prosecution proved beyond all reasonable doubt that accused Nos.1 and 2 have committed offences punishable under Sections 341, 307 and 302 r/w 34 of the Indian penal Code and accordingly, sentenced them to undergo imprisonment for life and to pay fine of `25,000/- each, for the offence punishable under Section 302 r/w 34 of the Indian penal Code; to undergo imprisonment for a period of ten years and to pay fine of -8- CRL.A No.1339 of 2018 `10,000/- each for the offence punishable under Section 307 r/w 34 of the Indian Penal Code and to pay fine of `500/- for the offence punishable under Section 341 r/w 34 of the Indian Penal Code. Hence, the present Criminal Appeal is filed by the appellants/accused Nos.1 and 2.
10. We have heard the learned counsel for the parties.
11. Sri Devaraj, learned counsel for Sri Mohan Kumar, learned counsel appellant No.1 contended with vehemence that the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge convicting the accused persons for the offences punishable under Sections 341, 302 and 307 r/w 34 of the Indian Penal Code is erroneous, contrary to the evidence on record, cannot be sustained and liable to be set-aside.
12. Learned counsel further contended that the prosecution witnesses i.e., P.Ws.2, 3, 4, 5, 7, 8, 9 and 10 who are independent eye witnesses have turned hostile. Thereby, in the absence of any acceptable independent evidence on record, the guilt of accused No.1 can not be held to be proved by the -9- CRL.A No.1339 of 2018 prosecution beyond all reasonable doubt. Thereby, the learned Sessions Judge is not justified in convicting accused No.1. He further contended that, the incident occurred on 23.10.2014 at 12.15 am. There was no power supply at the time of the incident and in the absence of any Test Identification Parade conducted, only on the basis of the evidence of P.Ws.1 and 6 who are the interested witnesses, the learned Sessions Judge ought not to have convicted accused No.1 and therefore, the impugned judgment of conviction and order of sentence cannot be sustained. He further contended that the FSL report submitted by the Officer is negative and M.O.6-knife recovered was not sent to FSL and P.W.20/Manjunatha and P.W.23/Ramesh, panch witnesses to recovery of M.O.6-knife have turned hostile. Based on his own voluntary statement, the accused No.1 cannot be convicted. Utmost, the voluntary statement can be used for recovery of material objects.
Virtually, P.W.1 is an hear say witness and not eye witness.
13. Learned counsel further contended that the learned Sessions Judge failed to notice that the statements made by any charge sheet witnesses under Section 164 of the Code of
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CRL.A No.1339 of 2018Criminal Procedure, would not assume the characteristic of an evidence within the meaning of the provisions of Indian Evidence Act. Such statements would only remain as statements of charge sheet and cannot be described as admissible unless the maker of the statement deposes about the incident before the Court at the time of recording his evidence. Admittedly, in the instant case, the alleged injured eye witness-P.W.6 though states that he suffered injuries, he has clearly stated in his evidence before the Court that he has not seen accused Nos.1 and 2 assaulting the deceased. The said aspect has not been considered by the learned Sessions Judge.
14. Learned counsel further contended that P.Ws.20 and 21 were examined by the prosecution to prove the alleged recovery of the weapon from the possession of the accused No.1. A perusal of the evidence of P.Ws.20 and 21 clearly indicates that they have not supported the case of the prosecution. Thus, the prosecution has failed to prove even the recovery of M.O.6-knife. He further contended that the learned Sessions Judge, relied upon the evidence of P.W.25-Doctor who
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CRL.A No.1339 of 2018deposed that the injuries caused on the body of the deceased are caused by the weapon produced by the prosecution.
However, the learned Sessions Judge failed to appreciate that there is no acceptable evidence on record to indicate that accused No.1 was the actual assailant. In the absence of any oral evidence to show the involvement of the accused No.1 in the offence, any amount of medical evidence is of no use to prove the guilt of the accused No.1.
15. Learned counsel further contended that, it is an undisputed fact that the accused No.1 requested the deceased for loan of `25,000/- and admittedly, deceased refused to lend that money. During that time, the deceased has used some unconstitutional words against the mother of the accused No.1 and thereby, the accused No.1 in a sudden provocation, assaulted the deceased. Thereby, utmost accused No.1 may be convicted under the provisions of Section 304 Part I and not under Section 302 of the Indian Penal Code. Therefore, sought to allow the Criminal Appeal.
16. Sri N.R.Krishnappa, learned counsel for the appellant No.2/accused No.2 contended that the entire case of the
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CRL.A No.1339 of 2018prosecution is based on the circumstantial evidence. P.W.1 who is the complainant, in his evidence, has only deposed against accused No.1 and stated that accused No.2 was just standing with accused No.1. P.W.5-Puttaraju has not supported the case of the prosecution and has turned hostile.
P.W.6- Madesha, injured eye witness has also turned hostile.
P.W.9-Chinnaraj, also turned hostile. Absolutely there is no material to link accused No.2 to the offence. He further contended that merely because the accused No.2 was working under accused No.1 who was a mason, it cannot be construed that accused Nos.1 and 2 had common intention to eliminate the deceased. In the absence of any direct evidence or medical evidence, accused No.2 cannot be convicted for the offence punishable under Section 302 of the Indian Penal Code.
17. Learned counsel further contended that, based on a stray sentence in the evidence of P.W.1 that accused No.2 was standing at the scene of offence, the learned Sessions Judge proceeded to convict accused No.2. The learned Sessions Judge also placed much reliance on Ex.P.14-statement of P.W.6
- Madesha recorded under Section 164 of the Code of Criminal
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CRL.A No.1339 of 2018Procedure, but failed to notice that P.W.6 turned hostile, and absolutely there is no material against the accused No.2 to implicate him in the homicidal death of the deceased. He further contended that accused No.2 had no enmity either with the deceased or with P.W.6- Madesha and therefore, the provisions of Section 34 of the Indian Penal Code would not attract. Therefore, he sought to allow the Criminal Appeal.
18. Per contra, Sri Vijaykumar Majage, learned Additional State Public Prosecutor, while justifying the impugned judgment of conviction and order of sentence, contended that P.W.1-V.Mohan Raj, eye witness to the incident and P.W.6- Madesha -injured eye witness deposed on oath in categorical terms with regard to involvement of accused Nos.1 and 2 in the homicidal death of the deceased. He further contended that P.W.31- M.M.Prashanth, Investigating Officer who recovered the blood stained clothes and M.O.6-knife at the instance of accused No.1 and the further investigation made by P.W.30- G.Nagaraj, clearly depicts the involvement of accused Nos.1 and 2 in the homicidal death of the deceased. Prior to the instant incident, the accused No.1 had assaulted and had
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CRL.A No.1339 of 2018threatened the deceased with dire consequences and a complaint was lodged in this regard. By advising the accused to mend his behaviour, the case was closed as is evident from Ex.P.8-endorsement dated 30.04.2012 issued by the Police Inspector, Madivala Police Station.
19. Learned Additional SPP further contended that the evidence of P.W.25-Dr.Betty Alben clearly depicts that there were 18 injuries on the dead body of the deceased and Ex.P.27-post mortem report clearly depicts that death was as a result of shock and haemorrhage as a result of multiple stab injuries. He further contended that in the statement of P.W.6- Madesha, recorded by the learned Magistrate under the provisions of Section 164 of the Code of Criminal Procedure marked as Ex.P.14, he has stated regarding the involvement of accused Nos.1 and 2 in the crime. In the absence of any material produced or in the absence of any authority produced, the statement made before the learned Magistrate under the provisions of Section 164 of the Code of Criminal Procedure, cannot be ignored. In the said statement, the witness has clearly deposed regarding involvement of accused Nos.1 and 2
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CRL.A No.1339 of 2018in the homicidal death of the deceased. He further contended that P.W.26-Manoj Kumar, Assistant Executive Engineer and P.W.1-Mohan Raj, have categorically deposed that at the date and time of the incident, there was power supply. Thereby, he contended that accused Nos.1 and 2 are involved in the homicidal death of the deceased.
20. Further, to show the antecedents of the accused No.1, learned Addl.SPP filed the Memo in the open Court enclosing the report furnished by the Madivala Police showing the criminal cases in which accused No.1 had involved, which depicts that there were 13 cases registered against accused No.1. Among them, in three case, accused No.1 was charged for the offence punishable under Section 302 of the Indian Penal Code. Out of 13 cases, accused No.1 has been acquitted in 11 cases, one case is bound over and in the instant case i.e., S.C.No.1485/2014, he has been sentenced to undergo imprisonment for life. The said memo is placed on record.
21. In view of the rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in the present Criminal Appeal are:
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(i) Whether the accused No.1 has made out a case to interfere with the impugned judgment of conviction and order of sentence, convicting him for the offences punishable under Sections 341, 307 and 302 r/w 34 of the Indian Penal Code?
(ii) Whether the accused No.2 has made out a case to interfere with the impugned judgment of conviction and order of sentence, convicting him for the offences punishable under Sections 341, 307 and 302 r/w 34 of the Indian Penal Code, in the facts and circumstances of the present case?
22. This Court being the appellate Court, in order to re-
appreciate the oral and documentary evidence on record, it is relevant to reconsider the evidence of the prosecution witnesses and the documents relied upon.
(i) P.W.1-V.Mohanraj, deposed that deceased Venkateshappa is his father, residing at 4th Cross, Siddarth Colony and was indulged in social work.
Any social problem in the locality, his father used to solve those problems and he knows accused in this case. Accused No.1 is Vasudeva, Accused No.2 is Muniraju. Accused No.1 was residing at
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CRL.A No.1339 of 2018Mestripalya for the past 20 years. Thereafter his father fetched a house at Siddartha Colony. In the year 2011 accused No.1 and his associates murdered one Achukattu Manja. In that case accused No.1 was sent to judicial custody and on request of mother of accused No.1 deceased offered surety to accused No.1 for his enlargement on bail. Accused No.1 sold the house already purchased and purchased another house from one Krishnappa and he was planning to demolish the old house and to build a new house in that site and said Krishnappa was his neighbourer and there was misunderstanding between themselves and accused No.1, in building the house for which accused No.1 and his associates came near his house and assaulted Venkateshappa and his family members and caused them injuries for which he had lodged complaint against accused No.1. Madiwala police based on complaint called accused No.1 to police station and got executed a bond for keeping peace and good behaviour in the society and also duly warned accused No.1 not to indulge in any criminal activities.
P.W.1 further deposed that accused No.1 demanded `25,000/- from Venkateshappa. When Venkateshappa failed to meet the said demand, accused No.1 scolded the complainant that due to
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CRL.A No.1339 of 2018his father (Venkateshappa) the name of accused No.1 has been spoiled in the locality and Venkateshappa is gaining name and fame in the locality though accused No.1 intended to become leader in that locality and threatened. The deceased had lodged complaint before Madiwala police station contending that there is life threat from accused No.1 and accused No.1 intimidated PW1 that before his daughter's marriage he will be murdered. Further deposed that CW2-Madesha was intending to commence travels business in the Nagarajreddy building prior to Deepavali of that year and one Chinnaraju was working with CW2. On 22.10.2014 at about 10 p.m. accused No.1 scolded Chinnaraju not to work with CW2 Madesha and he told Chinnaraju to work with him. Same was informed by Chinnaraju to CW2. CW.2 in turn informed Venkateshappa. Since it was late night, Venkateshappa told CW2 that he would talk to accused No.1 on next day. On the very day at about 11.45 p.m. when his father Venkateshappa and CW2 were walking from the shop of CW2 towards their house, accused Nos.1 and 2 came there, among them accused No.1 scolded Venkateshappa that due to his activities his name has been spoiled in the locality and immediately dragged a knife and stabbed Venkateshappa all over the body
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CRL.A No.1339 of 2018and caused grievous injuries and when accused No.1 attempted to slit throat of CW2 he escaped from the spot, by that act of accused No.1 CW2 has sustained injuries on waist and other parts of the body and thereafter he took treatment at St. John's hospital.
Further deposed that one Puttaraju informed him that accused No.1 has stabbed Venkateshappa with knife, by that time it was between midnight 12.05 to 12.10. Immediately, he rushed to the spot wherein he saw accused No.1 stabbing on the neck of his father and accused No.2 was running from the spot at a discernible distance. Venkateshappa died at the spot due to the injuries. One Anji was office bearer of DSS residing near that place and said Anji immediately informed ACP and DCP through phone. At about 3.30 p.m. he had lodged complaint about the incidence and his complaint is marked at Ex.P.1 and he identified his signature at Ex.P1(a).
He further deposed that police after receipt of the complaint visited the spot and in his presence conducted spot mahazar and collected blood stained mud in plastic box. He identified spot mahazar in Ex.P.2 and his signature at Ex.P.2(a). He identified the blood stained mud collected form incident spot in plastic box and clothes that were worn by his
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CRL.A No.1339 of 2018father at the time of incident i.e., T Shirt, one grey color pant and one full hand shirt and underwear they are marked as M.Os.1 to 5 and photos of his father deceased Venkateshappa are marked as Exs.P.3 to P.5 respectively. He identified the acknowledgment given by police for lodging complaint before police in Ex.P.6 and complaint lodged by Venkateshappa against accused as well as endorsement given by police are marked as Ex.P.7 and P.8. Further, previously when accused No.1 demanded `25,000/- from his deceased father Venkateshappa and when his father failed to give the said amount, accused No.1 had developed grudge against Venkateshappa and on that previous animosity accused No.1 along with accused No.2 murdered Venkateshappa. He identified accused through street light at the time of incident and he also identified them before the Court.
In his cross examination, PW1 deposed that the incident spot is located in between 15 houses from his house and further admitted that his house and incident spot are in different streets, near to incident spot there is no house having door No.215 and further deposed that his father was elder person in the locality and he used to solve number of problems between the persons in the locality. Since his father was social worker some people had
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CRL.A No.1339 of 2018grudge against him. He further deposed that when he visited the spot accused persons were at the spot and other neighbourers were standing in front of their houses near incident spot. When he reached incident spot his sister and mother were standing at a distance. He had seen the incident and his mother and his sister also revealed him that they have also seen the incident. When he was proceeding towards incident spot, injured Madesha told him that accused were assaulting Venkateshappa and said Madesha also sustained injuries in the incident and he was proceeding towards hospital for treatment. Thereafter said injured Madesha along with his wife and children had been to St. John's hospital in an autorickshaw. When he gave statement before the police he had stated that accused demanded `25,000/- with his father when he failed to meet their demand accused intimated injury to life of his father stating that they would assault him prior to marriage of his daughter. He further deposed that when he had given statement before police he has stated that one Chinnaraju is working with CW2 and incident has occurred around 12.15 a.m. At that time Puttaraju and Nishad informed him that accused were assaulting his father, when he came out of house he saw one Cheeta police vehicle was proceeding and he cannot recount whether
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CRL.A No.1339 of 2018Puttaraju and Nishad informed Cheeta Patrolling vehicle. Further deposed that soon after the incident at about 12.30 a.m DCP and ACP with Circle Inspector came to the spot and at that time police did not record his complaint.
(ii) P.W-2 Lakshman deposed that he knew deceased Venkateshappa. He was his neighbourer and he does not know accused and he came to know that somebody murdered Venkateshappa on that fateful night. Two years back one day at about 5 a.m. when he was preparing to go to work, his neighbourer told him that some miscreants have murdered Venkatashappa and he did not see the incident and he was not present at the time of incident and he denied his statement to the police as eye witness to the incident and turned hostile. During his cross examination prosecution failed to elicit any gainful evidence in favour of prosecution except marking his statement given to police as per Ex.P.9.
(iii) P.W.3-Jayamma deposed that she does not know accused persons and she knew deceased Venkateshappa and she was tenant in the house of Venkateshappa and she do not know whether Venkateshappa was murdered and she did not see the incident of murder and she denied her
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CRL.A No.1339 of 2018statement before police as eye witness to the incident and turned hostile. In her cross- examination the prosecution failed to elicit any gainful evidence in favour of prosecution except marking her statement as per Ex.P.10.
(iv) P.W.4-Susheela deposed that she knew Venkateshappa, now he is deceased and she do not know accused and she denied her complaint before the police regarding murder of her son against the accused as murderer. She did not see the incident. She also denied her statement before police as eye witness to the incident and turned hostile. In the cross examination, prosecution failed to elicit any gainful evidence in favour of prosecution except marking his statement given to police as per Ex.P.11.
(v) P.W.5-Puttaraju deposed that he does not know accused. But he knew deceased Venkateshappa and he came to know that during night hours some miscreants have murdered Venkateshappa and he did not see the incident of murder and he denied his statement before police as eye witness to the incident and turned hostile. During his cross examination prosecution failed to elicit any gainful evidence in favour of prosecution except marking his statement given to police as per Ex.P.12.
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CRL.A No.1339 of 2018(vi) P.W.6-Madesha deposed that he knew deceased Venkateshappa and accused persons. He was doing vegetable business and about 2½ years back one day at about 11.30 p.m. when himself and Venkateshappa were walking on the street at Siddarthnagar, and reached in front of his house where there is one alley and he had accompanied Venkateshappa in that alley. At that time there was no power in that locality and some strangers came and assaulted on his shoulder and his head and due to said assault he hit against the wall near by and sustained injuries. In the same way they also assaulted Venkateshappa as a result of which Venkateshappa fell on the ground and those persons also stabbed him with a knife on his waist and abdomen and caused him injuries. Immediately he ran away from the spot and with the help of his brother he had been to hospital for treatment. Thereafter he came to know that some miscreants have murdered Venkateshappa. He further deposed that since accused were residing in the same street they were known to him. He admitted that at the time of incident accused were not present and he cannot identify who had assaulted him at the time of incident. He cannot identify persons who have murdered Venkateshappa. Further deposed that when he was taking treatment in the St.John's
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CRL.A No.1339 of 2018hospital police came and recorded his statement. His statement is marked as Ex.P.13. His signature is at Ex.P.13(a). He had signed in Ex.P.13 in the hospital.
Further P.W.6 admitted that along with police he came to the Court and gave statement before the Magistrate and in that statement he had confessed about persons who had assaulted himself and Venkateshappa with knife at the time of incident and his statement given before the Magistrate is marked at Ex.P.14 and he identified his signature at Ex.P.14(a). Again he retracted that at the time of giving statement before Magistrate he has not stated names of particular persons. He also admitted that at the time of giving statement before police as per Ex.P.13 also he had not mentioned names of particular persons who had assaulted them and turned hostile.
In his cross examination, P.W.6 deposed that he does not know that there was differences between Venkateshappa, Mohanraj and accused No.1 with regard to building of the house. Again stated that on 23.10.2014 at about 12.15 a.m. at 4th cross when himself and Venkateshappa were walking on the road, some persons restrained them from moving further and assaulted them, but
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CRL.A No.1339 of 2018failed to recount their identity and he denied his statement before police against accused Nos.1 and
2. At the time of incident when he requested the miscreants that Venkateshappa is aged persons don't assault him, one person knocked down Venkateshappa and another person assaulted him with a knife and he do not know those persons and he denied that accused Nos.1 and 2 are the said persons and their involvement in the incident. After the incident he was taken to hospital. He does not know about the fate of Venkatehsappa he also failed to identify the knife. Through him prosecution got marked knife MO6 and clothes which he wore at the time of incident were marked as MOs 7 and 8. He denied several suggestions put by learned Public Prosecutor. Again when cross examined by learned defense counsel he deposed that he do not know whatever written in Exs.P.13 and 14 and he had signed Exs.P.13 and P.14 on the request of police. He does not know what was written in Exs.P.13 and P.14.
(vii) P.W.7-Venkatamma, deposed that deceased Venkateshappa is her husband and she does not know the accused persons. About 3 years back her husband was murdered at Siddartha colony and she did not see the incident. She does not know exact
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CRL.A No.1339 of 2018reason for murder of her husband. PW1 is her son and she does not know whether her husband had touch with accused and she denied her statement before police and turned hostile. During her cross examination the prosecution failed to elicit any gainful evidence in favour of prosecution except marking her statement given to police as per Ex.P.15.
(viii) P.W.8-Irshad, deposed that he knew deceased Venkateshappa and he does not know about the accused persons. About 2-3 years back, Venkateshappa was murdered by some miscreants and he did not see the incident. He does not know whether accused were present at the time of incident. He denied his statement before police that at the time of incident accused have assaulted Venkateshappa and P.W.6, and turned hostile. In the cross-examination, prosecution failed to elicit any gainful evidence in favour of prosecution except marking his alleged statement given to police as per Ex.P.16.
(ix) P.W.9-Chinnaraju, deposed that he knew accused and he does not know about deceased Venkateshappa and Madesha. He was doing masonry and at any point of time was not working as helper in Carpentry under Madesha and
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CRL.A No.1339 of 2018accused has not threatened him at any point of time not to work with Madesha and deceased Venkateshappa. He denied his statement before police and turned hostile. In the cross examination, prosecution failed to elicit any gainful evidence in favour of prosecution except marking his alleged statement given to police as per Ex.P.17.
(x) P.W.10-Narayana, deposed that he knows accused and deceased Venkateshappa and Madesha. Venkateshappa is no more and he does not know how he expired. He does not know anything about the incident. He also denied his statement before police. Accused did not intimated injury to his life and he does not know about the quarrel that took place between Venkateshappa and accused No.1 and he does not know who has murdered Venkateshappa and turned hostile. In his cross examination, the prosecution failed to elicit any gainful evidence in favour of prosecution except marking his statement given to police as per Ex.P.18.
(xi) P.W.11-Vijayakumar @ Iyappa, deposed that about 3 years back, one day he had been to St. John's Hospital to see the dead body of deceased Venkateshappa and identified the dead body. At that time he had seen injuries on the dead body. He
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CRL.A No.1339 of 2018came to know that Venkateshappa was murdered. In his presence police conducted inquest mahazar and obtained his signature on the Inquest mahazar- Ex.P.19. In his cross examination he deposed that he does not know what is written in Ex.P.19.
(xii) P.W.12-Marappa deposed that he knew deceased Venkateshappa and, injured Madesha is his brother. He came to know that Venkateshappa was murdered. His brother had sustained injuries on his right thigh and there was abrasion on his left hand and he got treated his brother in the hospital. He does not know who had assaulted his brother at the time of incident and even not enquired his brother that who had assaulted him and, turned hostile. In the cross-examination he deposed that on 23.10.2015 Vasudev and Raju, at 4th cross, Siddarth Nagar due to old animosity with Venkateshappa had assaulted Venkateshappa and his brother with a knife and there was cry in his locality. Immediately he rushed to the spot and his brother had sustained bleeding injuries and was lying on the ground. Immediately with the help of other persons he took his brother to St. John's hospital in a autorickshaw for treatment. When he saw his brother, his brother had sustained injuries on his abdomen and thigh and on the same day police also brought dead body of deceased
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CRL.A No.1339 of 2018Venkateshappa to St. John's hospital. He also admitted that police recorded his statement. Again when cross examined by learned Public Prosecutor he deposed that he does not know whether accused has assaulted deceased Venakteshappa and his brother at the time of incident. He also denied his statement before police to that effect. He knew accused Nos.1 and 2 and he does not know whether they were involved in this case.
(xiii) PW13-S.Selvam, deposed that he does not know both the accused and they are unknown to him and he does not know about deceased Venkateshappa. One Selvi is his sister. There is difference with his sister with regard to property dispute and he does not know whether accused No.1 accompanied accused No.2 near his shop and he denied his statement before police and turned hostile. In cross examination, prosecution failed to elicit any gainful evidence in favour of prosecution except marking his statement given to police as Ex.P.20. Though he admitted his signature on Spot Mahazar-Ex.P.2 marked as Ex.P.2(b) and further admitted that same was signed in the police station.
(xiv) P.W.14-Shashirekha, deposed that deceased Venkateshappa is unknown to her and she does not
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CRL.A No.1339 of 2018know accused and she denied her statement before police. She deposed that they are having one SST Home Foods canteen and when Accused No.2 was in her canteen accused No.1 did not approached that spot with knife and accompanied accused No.2 and she denied her statement before police to that effect and turned hostile. During her cross examination prosecution failed to elicit any gainful evidence in favour of prosecution except marking her statement given to police as per Ex.P.21.
(xv) P.W.15-Shivakumar deposed that he knew deceased Venkateshappa and accused in this case. He has one vegetable shop in Madivala market. Accused No.1 was his neighbour. About 3 years back one day accused No.1 assaulted him for which he had lodged a complaint before police and deceased Venkateshappa intervened and compromised the matter amicably. Further deposed that on 22.11.2014 at about 7.15 p.m. when he was proceeding towards his house Venkateshappa and Madesha were standing near their newly opened office. Next day at about 8 a.m. one of his friend informed him about murder of Venkatesahppa and he had given statement before police. In his cross examination he deposed that based on his complaint, police have not registered any FIR against accused No.1. Except what he
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CRL.A No.1339 of 2018deposed in his examination-in-chief he has not stated anything before the police and he denied suggestion put by learned defense counsel.
(xvi) P.W.16-Muniraju, deposed that he knew accused Nos.1 and 2 and deceased Venkateshappa. At the time of incident he was residing at Madivala. He has one brother by name Chandrashekar and they were residing at Siddartha colony at Madivala. About 3 years back during the time of Deepavali his brother told him that accused No.1 assaulted him and on the same day Venkateshappa was murdered and he had given statement before police with regard to assault of his brother. In his cross examination he deposed that he had given complaint before the police against accused No.1 for assaulting his brother. Except that he had not given any statement before police at any time.
(xvii) P.W.17-R.Shivakumar, deposed that he knew deceased Venkateshappa and accused Nos.1 and 2. His house and house of accused No.1 is situated at Siddartha Colony of Madivala and deceased Venkateshappa was elder person in the locality. If there is any dispute or quarrel between the persons, Venkateshappa used to interfere and solve those problems. Accused No.1 was working as plumber. Further deposed that on 22.10.2014 at about 12.51
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CRL.A No.1339 of 2018a.m. Mohanraj, son of deceased Venkateshappa called him through telephone and informed him about murder Venkateshappa. Immediately he rushed to the spot and Mohanraj informed that one Vasu murdered Venkateshappa and that one Madesha who was injured in the incident was taking treatment in the St.John's hospital. Thereafter police came to the spot and took away body of Venkateshappa to St. John's Hospital for which he had given statement before police. In the cross examination, he deposed that he did not give any statement before police as to who has assaulted Venkateshappa and Madesha. Further he clearly admitted that he had given statement before police that on 22.10.2014 at about 12.51 p.m. Mohanraj son of Venkateshappa informed him about murder of Venkateshappa, the same way he had deposed before the Court and he does not know how Venkateshappa was murdered. He clearly admitted that Mohanraj had not informed him that one Vasu has assaulted and murdered Venkateshappa and injured Madesha and Madesha was taking treatment in the St. John's Hospital.
Again when re-examined by learned Public Prosecutor he deposed that on 21.06.2017 he had deposed before the Court that he can read and write Kannada language and he had signed his
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CRL.A No.1339 of 2018examination-in-chief after conclusion of his evidence. His deposition has been typewritten in the open Court. Further deposed that deceased Venkateshappa is his uncle and injured Madesha was known person to him and accused belong to his colony. He denied that due to fear he is not deposing against the accused persons. Again when cross-examined by learned defense counsel he has deposed that in his examination-in-chief he has given evidence as tutored by police except that he does not know anything about the incident.
(xviii)P.W.18-Anjaneya deposed that he has his house at Siddartha Colony. On 21.10.2014 police called him to the spot which is located at a short distance from his house. There is an alley in between 3rd and 4th cross wherein incident has occurred. Police collected blood stained mud in his presence and drawn spot mahazar-Ex.P.2 and he identified his signature at Ex.P.2(c). At that time he has also seen the dead body of deceased Venkateshappa and his body contained stabbed injuries. At that time one Selvam was with him. He identified blood stained mud collected in plastic box in M.O.1. In his cross- examination he deposed that when he had been to spot, Inspector Prashanth and writer Siddaraju were present and number of persons had gathered there.
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CRL.A No.1339 of 2018He denied several suggestions put by learned defense counsel.
(xix) P.W.19-Ganesh deposed that he does not know accused and deceased Venkateshappa. He is doing vegetable business under one Mani. He had own house at Siddarth Colony. At any point of time accused did not brandished knife and quarreled with him. On the day of incident accused had not met him and not intimidated injuries to his life and he denied his statement before police and turned hostile. During his cross examination prosecution failed to elicit any gainful evidence in favour of prosecution except marking his statement given to police as per Ex.P.22.
(xx) P.W.20-Manjunath deposed that on 24.10.2014 police accompanied him to the house of accused No.1. At that time one co-pancha Ramesh was also present. House of accused No.1 is located at Siddartha colony, Madivala. Accused No.1 produced one knife and T-shirt before the police and handle of that knife measured 4 inches and metal part of the knife was measuring 5 inches which was stained with blood and the half sleeved T-shirt produced had blue stripes. T-shirt also contained blood stains. Police drawn seizure mahazar in his presence and seized knife and T-shirt and obtained his signature.
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CRL.A No.1339 of 2018The seizure mahazar is marked as Ex.P.23 and he identified his signature at Ex.P.23(a). He identified the knife and T-shirt which are already marked as M.O.6 and M.O.2 respectively. Accused No.1 produced M.O.2 before the police stating that he has murdered Venkateshappa in that knife and Ex.P.23 was drawn in between 9 a.m. to 10 a.m. At that time co-pancha witness Ramesh was also present.
In his cross-examination he deposed that he has signed Ex.P.23 in the police station and he does not know what is written in Ex.P.23. He does not know accused before the Court. Police did not seize knife and T-shirt in his presence. But on 12.7.2017 he had deposed as per instructions of police, police did not seize knife and T-shirt in some other place. Himself and Ramesh signed Ex.P.23 in police station.
Again when re-examined by learned Public Prosecutor he deposed that on 12.07.2017 after deposing his evidence he signed in deposition. There is his signature in ExP.23 at Ex.P.23(a). Police did not seize M.O.2 and M.O.6 in his presence. He had signed on the request made by police. Again when learned Public Prosecutor suggested about seizure of knife and T-shirt
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CRL.A No.1339 of 2018belonged to accused No.1 in his presence, he answered that he has deposed in his examination in chief as per instructions of police and he denied several suggestions put by learned defense counsel.
(xxi) P.W.21-Shivalingappa.S.Sahukar, the Assistant Engineer deposed that since 2010 till 26.9.2015 he was working as BBMP Engineer in Koramangala Sub Division as Assistant Engineer. On 31.12.2014 the office of the Assistant Executive Engineer received one requisition from Madivala police, accordingly Asst. Executive Engineer instructed him as per request of police to go to incident spot and draw sketch. Accordingly, on 06.01.2015 along with Madivala police and his staff Shanthakumar had been to 4th Cross, Siddartha colony and in the incident spot he had drawn rough sketch and returned to office and drawn the final sketch of incident spot in accordance with scale and submitted before his higher authorities. Sketch prepared by him is marked as Ex.P.24 and he identified his signature at Ex.P.24(a). In his cross examination he deposed that the Asst. Executive Engineer has not instructed him in writing to draw sketch of the incident spot on 06.07.2014 he had been to Siddartha colony and police came there and
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CRL.A No.1339 of 2018disclosed the incident spot and he denied several suggestions put by learned defense counsel.
(xxii) P.W.22-Ranjeeth, deposed that about three years back one day Madivala police called him to police station and obtained his signature. He failed to recount for what purpose police obtained his signature. At that time no public were present there. Police have not seized any metal object in his presence. But he identified his signature on Ex.P.25 at Ex.P.25(a) and he failed to recount material objects shown to him. He also clearly admitted that CW2 is unknown to him and turned hostile. During his cross-examination prosecution failed to elicit any gainful evidence in favour of prosecution.
(xxiii)P.W.23-Ramesh, deposed that about 3 years back, one day police called him to police station. At that time C.W.25 was also present. At the same time 4-5 public were also present in the police station. Police did not accompany him to any other spot. He has not seen M.O.6 the knife at any point of time. He also failed to identify the T-shirt with blue stripes. He identified his signature in Ex.P.23 at P.23(b) and deposed that same he had signed at police station and turned hostile. During his cross- examination, prosecution failed to elicit any gainful evidence in favour of prosecution.
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CRL.A No.1339 of 2018(xxiv)P.W.24-Y.Venkataswamy deposed that deceased Venkateshappa is known to him, and Accused No.1 is also know to him. But accused No.2 is a stranger. He came to know that Venkateshappqa was murdered. He does not know who has murdered Venkateshappa. He does not know whether accused No.1 is rowdy sheeter and he was demanding money in and around Madivala area in business establishments. But he came to know that in locality of Venkateshappa one person is interfering in his business and same was revealed to him by Venkateshappa and he does not know that person and he does not know anything about the accused and he denied his statement before police and turned hostile. During his cross-examination by learned Public Prosecutor prosecution failed to elicit any gainful evidence in favour of prosecution except marking his statement given to police as per Ex.P.26.
(xxv) P.W.25-Dr. Betty Alben, the tutor in Forensic Medicine and CMO of St. John's hospital who conducted post mortem of dead body of Venkateshappa deposed that on 23.10.2014 at about 11.50 a.m she received requisition from Madivala police station for conducting postmortem on the dead body of Venkateshappa. Accordingly,
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CRL.A No.1339 of 2018she had examined external features of dead body of Venkateshappa. The dead body was of a male aged about 70 years moderately built and nourished measuring 6 ft. in height. Rigor mortis was present all over the body. Faint post mortem staining seen over the back and is fixed. Tattoo mark of snake design over inner aspect of right fore arm. Tattoo mark of Swastika design and GHK over inner aspect of left fore arm. Dried blood stains over front of chest. Abdomen, left upper limb and right hand. Hyper pigmentation seen over left ankle and dorsum of the left foot. On further examination she has notice and found 18 external stab injuries and incised injuries and abrasion injuries on the body of deceased Venkateshappa. On dissection of dead body in injury No.5, the weapon had penetrated inter coastal space between 2nd and 3rd rib cutting costal muscles pleura and entered left lung upper lobe measuring 2 cm. x 0.5 cm. Thereafter, the wound directed upper backwards and to left wound track measuring 12 cms in depth. Thereafter she has dissected injury Nos.7 and 8 those injuries also penetrated in to ribs, pleura and pericardium and cutting 3rd and 4th ribs, pleura and pericardium and pericardium cavity also contained 75 ml. of blood clots and also damaged ventricle and atrium measuring 2 cm x 0.5 cms
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CRL.A No.1339 of 2018 each and wound track of injury No.7 measures 18cms in depth. On dissection of injury No.8 she had noticed the weapon penetrated right inter coastal space between 4th and 5th cutting pleura on right side middle lobe of lung measuring 2.5 cms. x 0.5 cms. The wound is directed backward and downwards, the wound track measures 12 cms in depth.
Further she opined that death was due to shock and hemorrhage as a result of multiple stab injury sustained and accordingly she has issued postmortem report of Venkateshappa which is produced and marked as Ex.P.27 and she identified her signature at Ex.P.27(a). She opined that if a person is assaulted with M.O.6 the injuries shown at Sl.Nos. 1 to 18 and internal injuries shown in post mortem report Ex.P.27 may occur. She further deposed that on same day at about 1.30 a.m. she had examined one Madesha, aged about 36 years with alleged history of assault on 23.10.2014 at about 12.45 a.m. at back side of Ganesha Temple , Siddartha nagar. She had found two injuries on his body. Injury No.1 penetrating injury to left side lower chest 9th intercostal space measuring 4 cm x 2 cm. muscle deep CT abdomen done no significant abnormality detected in the abdomen. CT Thorax plural spaces are normal. Injury No.2 is penetrating
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CRL.A No.1339 of 2018injury to left glutal region measuring 3 x 2 cm in to muscle deep in her opinion the above said injuries were simple in nature and fresh and accordingly she has issued wound certificate to injured as per Ex.P.28 and she identified her signature on Ex.P.28(a). Thereafter on 02.01.2015, the Investigating Officer has produced M.O.6 to compare and furnish opinion as to the weapon used and injury caused to deceased Venakteshappa and injured Madesha. Accordingly she had compared weapon in M.O.6 and injuries sustained by Venkateshappa and Madesha and she gave opinion to Investigating Officer in respect of M.O.6 and injuries caused. Opinion is marked at Ex.P.29 and her signature is marked at Ex.P.29(a).
P.W.25 in her cross-examination deposed that injuries shown in Ex.P.27 may occur if a person accidentally falls on multiple sharp objects. Further she deposed that injury Nos.5, 7, 8, 9, 10, 12, 13 and 18 are main injuries which resulted in death of Venkateshappa. Further deposed that in Ex.P.28 she has not mentioned the name of assailant because injured Madesha has not mentioned name of assailant and she has not enquired Madesha about who has assaulted him and she has not enquired the person who accompanied Madesha as
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CRL.A No.1339 of 2018to history of injuries caused and she denied several suggestions put by learned defense counsel.
(xxvi)P.W.26-Manojkumar, the Assistant Engineer, BESCOM deposed that Siddaratha colony of Madivala comes under Koramangala Sub Division which was within his jurisdiction. There are documents to show that when power is supplied and shut down in his jurisdiction. Further deposed that on 15.12.2014 Madivala police has written a letter to his office to furnish report with regard to power supply in Siddartha colony in between 22.10.2014 - 7 p.m. to 23.10.2014 - 7 a.m. Accordingly based on available documents he has furnished information to Madivala police on 05.01.2015. Further deposed that on 22.10.2014 from 7 p.m. to 7 a.m. on 23.10.2014 there was no power shut down in Siddartha colony and his report is marked as Ex.P.30 and he identified his signature at Ex.P.30 (a).
In the cross examination he deposed that he has not furnished certified copy of log book to Investigating Officer because Investigating Officer has not requested for furnishing certified copy of log book but they have only sought information whether on that alleged night there was variation in
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CRL.A No.1339 of 2018power supply and he denied suggestions put by learned defense counsel.
(xxvii) P.W.27-Dr. Gundamma Patil, the incharge Assistant Director of FSL, Madivala, Bengaluru, deposed that she joined duty as scientific Assistant on 04.02.2011 in the department of Toxicology, FSL, Bengaluru. On 05.11.2014 she received two sealed articles from laboratory and on examination she found that seals were in tact and tallied with sample seal two sealed articles contained one blood and another preservative. These two articles were chemically examined and certificate was issued by her and in her opinion she opined that the residues of volatile poison and pesticides, barbiturates, benzodiazepine group of drugs, toxic metal ions and anions were not detected in all the above stated articles. Through her prosecution got marked certificate in Ex.P.30 and her signature at Ex.P.30(a).
In her cross-examination she deposed that, in her certificate she has not mentioned that blood is of deceased Venkateshappa. But in her certificate she has written as atopsy sample of deceased Venakteshappa, since she is concerned only with regard to detection of any poison in the blood the
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CRL.A No.1339 of 2018question of determining group of blood does not arise for consideration.
(xxviii) P.W.28-Siddaraju.G, the then Head Constable attached to Madivala police station deposed that on 23.10.2014 he had been deputed to St. John's hospital as escort to dead body of Venkateshappa and at about 10.30 a.m. he was provided with post mortem examination form, after post mortem of dead body, body was handed over to his son Mohan and obtained acknowledgment and produced the same before Investigating Officer. On 03.11.2014 he has received the clothes of deceased Venkateshappa and post mortem report in a sealed manner from St. John's Hospital and produced them before the Investigating Officer. Report is marked at Ex.P.33. In the cross examination he deposed that he does not know the contents of sealed cover and admitted that in Ex.P.33 date has been corrected and he denied several suggestions put by learned defense counsel.
(xxix)P.W.29-Ramalingegowda, Head constable attached to Madivala police deposed that on 23.10.2014 the police Inspector Prashanth M.M. deputed him to trace and arrest and produce accused required in Crime No.1485/2014 of his Police Station for the offences punishable under Sections 341, 307 and
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CRL.A No.1339 of 2018302 r/w 34 of IPC along with P.C. No:9148-Salim Pasha. Accordingly, they have contacted informers and police informers disclosed presence of Vasudeva @ Vasu, Muniraju @ Raju who are required in this case at Silk Board Junction , Hosur road. Immediately they arrested them. At that time it was 6.45 a.m. Thereafter they produced both accused persons before police Inspector at about 7.30 a.m. He identified both the accused.
In the cross-examination he deposed that on 23.10.2014 at about 6 a.m. they were deputed to trace and arrest accused persons required in this case, since they are in crime wing of police station. They have to work round the clock but at the time of deputing them Investigating Officer has not furnished them the physical makeup of accused persons. They patrolled around Hosur road by walking and he admitted that the distance between Silk Board Junction and Madivala police station is walkable distance of 5 minutes.He denied several suggestions put by learned defense counsel.
(xxx) P.W.30-G.Nagaraj, the then Police Inspector of Madivala police station deposed that on 09.01.2015 he received case papers from Police Inspector Raghavendra incharge police Inspector , Madivala
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CRL.A No.1339 of 2018police station and perused investigation so far conducted by his Predecessor and on 10.01.2015 he received report from Asst. Executive Engineer, Electrical Department to show that whether there was power supply or not as per Ex.P.30 and he identified his signature at Ex.P.30(b). On 12.01.2015 he received sketch of incident spot from AEE, BBMP, Koramangala as per Ex.P.24 along with covering letter, covering letter is marked as Ex.P.32 and on the same day he received FSL report as per Ex.P.31. Again on 09.01.2015 received wound certificate of Madesha from St. John's hospital. On 16.01.2015 he has recorded statement of C.W.8 Puttaraju and Puttaraju has given statement before him as per Ex.P.12. Further deposed that so far investigation conducted by them there was prima facie case against accused hence they have filed charge sheet against them on 17.01.2015 and on 08.06.2015 he submitted requisition letter to Court to include FSL scientific analyst Smt.Shahanaz Fathima as one of the charge sheet witnesses.
In the cross examination he deposed that his predecessor had issued requisition to AEE, Electrical department, Koramangala, to provide report with regard to power supply on the date and time of incident and he received report through proper
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CRL.A No.1339 of 2018channel. Previously there was letter correspondence between BBMP and his predecessor with regard to drawing of the sketch and he also received FSL report through proper channel and he received wound certificate of injured Madesha through tappal. He clearly admitted that in Ex.P.31 Gundamma Patil is shown as Assistant Director, Toxicology but not Shahanaz Fathima. He has not made Gundamma Patil as charge sheet witness. He denied several suggestions put by learned defense counsel.
(xxxi)P.W.31-Prashanth.M.M. the then Police Inspector of Madivala police station deposed that on 23.10.2014 at bout 3 a.m. complainant Mohanraj, S/o Venkateshappa lodged written complaint and he registered that complaint in Cr.No.1485/2014 of his police station and submitted FIR before this court. On the same day early morning at about 3.30 a.m. he had visited the spot and in the presence of Pancha witnesses Selvam and Anjaneya drawn spot mahazar between 3.30 to 4.15 a.m. At the same time he also collected blood stained mud from the incident spot in plastic box. Thereafter he had sent dead body of deceased Venkateshappa through escort office staff to St. John's Hospital. Thereafter he returned to police station and entered seized object in PF 295/2014 and reported to court.
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CRL.A No.1339 of 2018Further deposed that on the same day at about 8 a.m. he has visited mortuary of St. John's hospital and in the presence of pancha witnesses C.W.14, C.W.23 and C.W.24 he has drawn inquest mahazar between 8.00 a.m. to 10.30 a.m. and also recorded statements of Smt.Venkatamma, Marappa. He handed over the dead body for post mortem and also directed C.W.36 to hand over dead body to the heirs of deceased after completion of post mortem and on the same day he had recorded statements of C.W.4 to 7, 9, 11 and 12 to 19 separately. Further deposed that on 24.10.2014 C.Ws.34 and 35 arrested accused Vasudeva and Muniraju at Silk Board Junction Hosur road at about 6.45 a.m. and produced them before him at about 7.30 a.m. along with a report. He arrested both the accused and kept in police lock up and on the same day he had subjected both the accused for investigation and recorded the voluntary statement as per Exs.P.34 and P.35. Accused No.1 Vasudeva in his voluntary statement has stated that if Investigating Officer accompany him, he would produce to him knife which is used for commission of offence and T- shirt which he worn at the time of incident. Accordingly based on voluntary statement of accused No.1 he invited Manjunath and Ramesh to the police station and informed
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CRL.A No.1339 of 2018about the incident and for their co operation. When they accepted to co-operate them in the investigation process accused No.1 himself and his staff and pancha witnesses had been to house of accused No.1 situated at Siddartha colony wherein accused No.1 Vasudeva went to his house and produced a knife and T shirt and he seized them in the presence of pancha witnesses by drawing seizure mahazar between 9 a.m. to 10 a.m. as per Ex.P.23 and he identified his signature at Ex.P.23(c). He entered material objects in the PF form and submitted before the court. He produced both the accused before the court along with remand application. On 24.10.2015 he had recorded statement of one Salim Pasha and on 25.10.2014 he had sent requisition letter to Medical Officer, St. John Hospital to furnish information with regard to medical fitness of injured Madesha and based on information received same day he had been to St. John hospital and recorded statement of injured Madesha and on the same day he had recorded statement of Ganesh. Further deposed that on 29.10.2014 injured Madesha discharged from hospital and produced his clothes which he worn at the time of incident in the police station and he seized clothes of injured Madesha in the presence of pancha witnesses Ranjith and Raghu by drawing
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CRL.A No.1339 of 2018seizure mahazar between 11 a.m. to 1.45 a.m. that seizure mahazar is already marked at Ex.P.25 and he identified his signature at Ex.P.25(b). He entered blood stained clothes of Madesha in PF No.309/2014 of his police station and submitted before the court.
Further deposed that on 03.11.2014 he had deputed C.W.36 to collect post mortem report of deceased Venkateshappa and accordingly C.W.36 had been to St. John's hospital and produced post mortem report of Venkateshappa and also produced the clothes of deceased Venkateshappa collected on the body of deceased Venkateshappa at the time of conducting post mortem. Same he entered in PF No.313/2104 and submitted before the court and C.W.36 also furnished report to that effect. Post mortem report already marked as Ex.P.27 and he got marked report filed by C.W.36 in Ex.P.32. On 05.11.2014 he had sent C.W.36 to FSL along with things collected during the course of investigation for forensic analysis. At that stage he was transferred from Madivala police station hence, he handed over case file to Police Inspector-Nagaraj for further investigation.
He further deposed that complaint lodged by complainant is at Ex.P.1 and he got his signature at
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CRL.A No.1339 of 2018Ex.P.1(b) and FIR marked at Ex.P.36 and he identified his signature at Ex.P.36(a). Spot Mahazar is already marked at Ex.P.2 and he identified his signature at Ex.P.2(d) and he identified blood stained mud collected in plastic box in MO1 and inquest mahazar in Ex.P.19 and he identified his signature at Ex.P.19(b). Report submitted by CW34 marked as Ex.P.37 and he identified his signature at Ex.P.37(a) and things seized by him through mahazar were serially marked as MOs 2 to 9.
Further deposed that P.W.2 had given statement as per Ex.P.9, P.W.3 has given statement as per Ex.P.10, P.W.4 has given statement as per Ex.P.11, P.W.5 has given statement as per Ex.P.12, PW.6 has given statement as per Ex.P.13, P.W.7 has given statement as per Ex.P.15, P.W.8 has given statement as per Ex.P.16, P.W.9 has given statement as per Ex.P.17, P.W.10 has given statement as per Ex.P.18. Further deposed that P.W.13 has given statement as per Ex.P.20, P.W.14 has given statement as Ex.P.21, PW.19 has given statement as per Ex.P.22, P.W.24 has given statement as per Ex.P.26. He also identified accused through video conference who were produced before him through C.Ws.34 and 35.
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CRL.A No.1339 of 2018In the cross- examination he deposed that he had deposed his evidence partly through his memories and partly by referring case file only in order to refresh his memory he has brought case file to the court. Further deposed that on that night at about 12.15 a.m. the incident had occurred but from 2.15 a.m. to 3 a.m. nobody informed about the incident. The persons who had seen the incident and neighbourers from the spot have not informed the police about the incident. They have registered a case only after P.W.1 lodged complaint since P.W.1 has informed his friends and relatives about the incident, he approached police station at about 2 a.m. After this incident even night beet police have not informed about the incident. He came to incident spot only after ten minutes after registering the complaint. Soon after registration of complaint he had deputed his staff to hand over FIR to the court. He clearly admitted that P.W.1 is not an eye witness to the incident. He also admitted that deceased Venkateshappa was doing social service. He also clearly admitted that in Exs.P.38 and P.28 there is no mention of name of assailant. Further deposed that distance between incident spot and house of C.Ws.1 is 10 minutes walking distance. He also denied that soon after the incident at about 12.30
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CRL.A No.1339 of 2018p.m. ACP, DCP, PSI and circle Inspector visited the spot and he clearly admitted that he had received complaint from P.W.1 in the police station and also recorded statements of witnesses in the police station. He denied several suggestions put by learned defense counsel.
23. A careful perusal of the evidence of P.W.1 depicts that accused No.1 was holding a knife in his hand and stabbed the deceased. Accused No.2 was standing along with accused No.1. P.W.5-Puttaraju deposed that the accused persons are not known to him. He came to know that some body killed Venkateshappa and he does not know anything about the incident and turned hostile. P.W.6-Madesh, in the statement recorded by the Magistrate under Section 164 of the Code of Criminal Procedure, has specifically stated that, between 11.30 to 11.45 pm on 22.10.2014, when himself and deceased Venkateshappa were going in an alley, suddenly accused No.1 came and pushed his shoulder. Accused No.1 also pushed the shoulder of Venkateshappa due to which Venkateshappa fell down. P.W.6 requested accused No.1 not to assault Venkateshappa. In spite of the same, accused No.1 took out
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CRL.A No.1339 of 2018the knife-M.O.6 and stabbed on the chest of Venkateshappa.
Seeing the said assault, P.W.6 fell at the feet of accused No.1 and requested him not to assault Venkateshappa. At that time, saying that P.W.6 will become the eye witness, accused No.1 assaulted on the head of P.W.6 due to which his head hit the wall. P.W.6 held him and lifted Venkateshappa who had fallen on the ground and accused No.1 stabbed on the rib cage of P.W.6. Raju-accused No.2 who had come there along with accused No.1 caught hold of P.W.6 from behind. Accused No.1 caught hold of the hair of Venkateshappa and slit his throat and randomly stabbed Venkateshappa. When P.W.6 tried to escape from the clutches of accused No.2, accused No.1 stabbed on his thigh. Later, Venkateshappa was shifted to the hospital where he was declared dead.
24. However, in his evidence, P.W-6 very strangely deposed that the incident occurred about two and a half years ago around 11.30 pm and at that time there were no street lights.
When himself and deceased Venkateshappa were going on the road, some unknown persons attacked and assaulted them. In the assault, Venkateeshappa died. He does not know who
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CRL.A No.1339 of 2018assaulted them and he could not identify M.O.6/knife. P.W.6 further deposed that he knows both the accused persons as they reside near his house. He deposed that the accused persons were not present at the scene of occurrence. P.W.6 further deposed that he gave statement before the Magistrate regarding the assault made on himself and Venkateshappa with knife-M.O.6 and he has put his signature to the said statement, marked as Ex.P.14 and his signature is marked as Ex.P.14(a).
He deposed that before the Magistrate he has not stated as to who assaulted him and Venkateshappa. In the cross-
examination, deposed that he is not aware of the contents of Exs.P.13 and 14. He signed the said documents since the police requested him to do so. He has not read the contents of Exs.P.13 and 14 while affixing his signature.
25. At this juncture, it is pertinent to note that the statement of the Madesha was recorded by the Magistrate under Section 164 of the Code of Civil Procedure, on 31.12.2014. He was examined as P.W.6 before the Trial Court on 22.04.2017.
Though P.W.6- Madesh turned hostile while giving evidence during trial, his statement recorded by the Magistrate under
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CRL.A No.1339 of 2018Section 164 of the Code of Criminal Procedure cannot be ignored.
26. The complaint-Ex.P.1 clearly depicts the names of accused Nos.1 and 2. In the entire complaint, there is no whisper regarding the assault made by the accused No.2. It is only stated that accused No.2 caught hold of P.W.6. It is not the case of the prosecution that the accused Nos.1 and 2 had common intention, prearranged plan and acted pursuant to the plan, committed the offence.
27. The evidence of P.W.1 discloses that there was enmity between the family of the deceased and accused No.1 and earlier there was a complaint lodged by the deceased against accused No.1 in the year 2012 and accused No.1 was also involved in other criminal cases including murder cases. In the entire evidence of P.W.1 or the complaint there is no specific overt act against accused No.2 except that he was standing with the accused No.1 and was holding P.W.6- Madesha who is also injured.
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CRL.A No.1339 of 201828. It is also not in dispute that P.W.6- Madesha has given evidence that he could not identify the persons who assaulted the deceased and himself, contrary to his own statement made before the Magistrate under Section 164 Cr.P.C -Ex.P.14. Even in Ex.P.14 and evidence of P.W.6- Madesha, no overt act is elicited against accused No.2. Since accused No.2 was holding P.W.6 at the time offence, he has facilitated accused No.1 to kill the deceased.
29. In order to attract Section 34 of the Indian Penal Code, it should be borne in mind that acts done by several persons in furtherance of common intention of all as contemplated under Section 34 of the Indian Penal Code has to be proved. If common intention is proved but no overt act is attributed to individual accused, Section 34 of IPC will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent Section 34 cannot be invoked. In other words, it requires a pre-arranged plan and pre supposes prior concert. Therefore, there must be prior meeting of mind. Common intention means, a prearranged plan and acting in concert pursuant to
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CRL.A No.1339 of 2018the plan. It needs be proved that the criminal act was done in pursuance to the prearranged plan. It needs to come into being prior to the commission of the act in point of time.
30. Admittedly, in the present case, a careful reading of the material evidence on record, including the complaint-Ex.P.1 lodged by eye witnesses, Mohan Raj-P.W.1 and the evidence of injured eye witness- Madesha -P.W.6, the prosecution failed to prove that there was a pre-arranged plan and pre supposes prior concert and there was prior meeting of mind of accused Nos.1 and 2 to eliminate the deceased. In the absence of common intention, pre arranged plan acting in pursuance of common intention prior to commission of the act, accused No.2 cannot be held to be guilt of the alleged offence. Therefore, convicting the accused No.2 invoking the provisions of Section 34 of Indian Penal Code for the offence punishable under Section 302 of the Indian Penal Code along with accused No.1, cannot be sustained.
31. The evidence on record clearly depicts that accused No.1 was working as a mason and accused No.2 was working under accused No.1 and always used to be with accused No.1. On the
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CRL.A No.1339 of 2018unfortunate day, both accused Nos.1 and 2 were together and accused No.1 stabbed the deceased and P.W.6. But accused No.1 first pushed P.W.6 and then pushed deceased, who fell down on the ground. He took out M.O.6 and assaulted the deceased. When P.W.6 tried to rescue the deceased, some injuries were inflicted on P.W.6 also. Therefore, it is clear that accused No.2 had no common intention to kill the deceased.
32. The material on record depicts that deceased Venkateshappa had gained some name and fame in the locality. Accused No.1 wanted to be the leader in that area.
Earlier some quarrel had taken place between the deceased and the accused No.1 In this regard, police complaint was also lodged and the police had warned accused No.1. So also, the accused No.1 was involved in some criminal cases as is evident from the memo filed by the learned Additional State Public Prosecutor. But, there is no whisper about the antecedents of accused No.2 or incidents of any quarrel between the deceased and accused No.2. Thereby, accused No.2 had no intention to kill the deceased. In the absence of any common intention and
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CRL.A No.1339 of 2018pre arranged plan to eliminate Venkateshappa, accused No.2 cannot be included in the murder of Venkateshappa.
33. It is evident from the records that P.W.6- Madesha had sustained injuries during commission of the offence. Ex.P.28- wound certificate issued by the doctor depicts the injuries sustained by P.W.6. The injuries are simple in nature. He has suffered penetrating injury to left side lower chest, 9th inter costal space measuring 4 cm x 2 cm, muscle deep. The other one is penetrating injury to left gluteal region measuring 3 cm x 2 cm x muscle deep. No significant abnormality was detected in the abdomen and plenral spaces were found to be normal.
The first injury is on the vital part of P.W.6. If the injury was deep, he would have died. Thereby, the offence under the provisions of Sections 341 and 307 of the Indian Penal Code would attract in so far as accused No.2 is concerned.
34. Though learned counsel for accused No.1 invited attention of the Court that all prosecution witnesses viz., P.Ws.2, 3, 4, 5, 6, 7, 8 and 9 turned hostile, the fact remains that the statement of P.W. 6 recorded before the Magistrate under the provisions of Section 164 of Cr.P.C. cannot be ignored. Apart
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CRL.A No.1339 of 2018from the evidence of prosecution witnesses, the material on record clearly depicts that Ex.P.7-complaint was lodged in the year 2012 by the deceased against accused No.1 and as per the endorsement dated 30.04.2012-Ex.P.8 the police advised the accused No.1 and closed the case.
35. P.W.1-Mohan Raj, son of the deceased identified M.O.6- knife, and blood stained clothes of the deceased. The same was adduced in the evidence of the Investigating Officer. After receipt of the complaint, the Investigating Officer recorded the statements of the accused persons as per Exs.P.34 and 35 and on the basis of the said statements, the material objects including the blood stained shirt wore by accused No.1 were recovered.
36. Though panch witnesses-P.Ws.20 and 23 turned hostile, the recovery of material objects at the instance of accused No.1 by the Investigating Officer is proved from the evidence of Investigating Officer and it is not the case of the defence that the Investigating Officer had any previous grudge against the accused persons. The material on record depicts that P.W.30- Nagaraj, Investigation Officer received the letter from the
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CRL.A No.1339 of 2018Assistant Executive Engineer to which depicts that on the date and time of the incident there was power supply. This clearly depicts that there was power supply at the time of offence.
P.W.26-Manoj Kumar, Assistant Executive Engineer has deposed that from 7.00 pm on 22.10.2014, till 7.00 am on 23.10.2014, there was no load shedding in Siddartha Nagar.
Though P.W.6-injured eye witness stated that there was no power supply, P.W.26-Assistant Executive Engineer who is the competent authority has issued the certificate as per Ex.P.30 which depicts that there was power supply during the date and time of the offence. P.W.1-complainant has also stated that there was power supply. Nothing has been elicited in the cross-examination of the witnesses to prove that there was no power supply on the date and time of the incident. P.W.1- complainant, in categorical terms deposed that when he rushed to the spot accused No.1 was assaulting deceased with a knife and accused No.2 had caught hold of P.W.6-injured eye witness.
37. The doctor-P.W.25 who conducted the post mortem on the dead body of Venkateshappa specifically deposed that 18
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CRL.A No.1339 of 2018injuries were found on the dead body and opined that the injuries tallies with M.O.6-weapon and that such injuries may be caused if a person is assaulted with M.O.6. The opinion of P.W.25 in respect of M.O.6 was marked as Ex.P.29. He opined that the death was due to shock and haemorrhage as a result of multiple stab injuries. The post mortem report-Ex.P.27 depicts that the following 18 extenral injuries were found on the dead body:
"1. Incised wound over front of neck right side, 3 cm in length subcutaneous deep, placed 1 cm below right angle of jaw.
2. Incised wound 1 cm below the above injury measuring 1-6 cm in length, subcutaneous deep.
3. Incised wound over front of neck over thyroid cartilage measuring 16 cm in length and subcutaneous deep.
4. Incised wound over left ear pinna measuring 3 cm x 0.5 cm cutting cartilage.
5. Obliquely placed stab injury over middle of chest placed 7 cm below suprasternal notch measuring 5.5 cm x 2.5 cm x chest cavity deep. Upper outer end round, lower inner end sharp and margins clean cut.
6. Horizontally placed incised wound over right side of chest 14 cm below middle of right collar bone measuring 2 cm x 0.6 cm x musle deep.
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7. Horizontal stab injury over left side of chest measuring 5.5 cm x 1.3 cm chest cavity deep placed 14 cm below middle of left collar bone, inner end sharp, outer end round and margins clean cut.
8. Horizontally placed stab injury over right side of chest, 12 cm below injury no.6 measuring 3.5 cm x 1.3 cm x chest cavity deep. Margins clean cut inner end sharp and outer end round.
9. Obliquely placed stab injury 1 cm below injury no.8 measuring 2.3 cm x 1.3 cm, chest cavity deep, upper end sharp, lower end rounded and margins clean cut.
10. Horizontal stab injury over left side of chest placed 6 cm below injury no.7 measuring, 2.5 cm x 0.8 cm x chest cavity deep, inner end sharp and outer end rounded and margins clean cut.
11. Obliquely placed incised wound over left side of chest 4 cm below injury no.10 measuring 1.5 cm x 0.5 cm x muscle deep.
12. Vertically placed stab injury 14 cm below right arm pit measuring 3.5 cm x 1 cm x chest cavity deep, upper end sharp and lower end rounded, margins clean cut.
13. Horizontally placed stab injury over right side of upper abdomen 5 cm below injury no.9 measuring 3 cm x 1 cm x chest cavity deep, inner end sharp, outer end rounded and margins clean cut.
14. Horizontal incised wound over right side back of thigh 18 cm above right knee joint measuring 1.5 cm x 0.5 cm x muscle deep.
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15. Incised wound over inner aspect of right elbow measuring 0.5 cm x 0.2 cm and subcutaneous deep.
16. Incised wound over palmer aspect of distal phalanx on left ring finger, crease of distal phalanx of left middle finger and left index finger measuring 2 cm, 0.5 cm and 0.5 cm in length respectively and all are subcutaneous deep.
17. Abrasion below left knee measuring 1cm x 1cm.
18. Horizontally placed stab injury over left side back of chest, 18 cm below left shoulder measuring 3 cm x 1 cm, chest cavity deep, outer end sharp and inner end rounded, margins clean cut.
On dissection of injury no.5 the weapon has penetrated inter costal space between 2nd and 3rd rib cutting inter costal muscles and pleura and entered left lung upper lobe measuring 2 cm x 0.5 cm. The wound is directed upper backwards and to left, wound track measures 12 cm in depth.
On dissection of injury no.7 the weapon has penetrated left inter costal space between 3rd and 4th cutting pleura and pericardium, pericardial cavity contained 75 ml of blood clots. Passed through right ventricle measuring 2 cm x 0.5 cm and penetrated right atrium measuring 2 cm x 0.5 cm. The wound is directed backwards, upwards and to right. The wound track measures 18 cm in depth.
On dissection of injury no.8 the weapon has penetrated right inter costal space between 4th and 5th cutting pleura and right side middle
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lobe of lung measuring 2.5 cm x 0.5 cm. The wound is directed backwards and downwards. The wound track measures 12 cm in depth."
38. It is also relevant to state at this stage that in pursuance of the order dated 16.06.2022 directing the learned High Court Government Pleader to secure the report regarding antecedents of accused No.1, the Additional State Public Prosecutor filed the Memo enclosing the report furnished by the Madivala Police to show the antecedents of accused No.1, which depicts that there were 13 cases registered against accused No.1. Among them, in three case, he was charged for the offence punishable under Section 302 of the Indian Penal Code. Out of 13 cases, accused No.1 has been acquitted in 11 cases, one case is bound over and in the instant case i.e., S.C.No.1485/2014, he has been sentenced to undergo imprisonment for life. This clearly indicates that accused No.1 is an habitual offender.
39. Though, Sri Devaraj, learned counsel for the accused No.1 contended that on the date of the incident there was no power supply as stated by P.W.6-injured eye witness. Thereby, Test Identification Parade was not conducted. Therefore, the contention that accused No.1 cannot be convicted, cannot be
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CRL.A No.1339 of 2018accepted as P.W.26-Assistant Executive Engineer has stated that there was power supply on the date and time of the incident and accordingly he issued the certificate-Ex.P.30.
When there was power supply and P.W.6 has seen the assault by accused No.1 on the deceased, question of conducting Test Identification Parade in respect of known persons does not arise. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of R.Shaji vs. State of Kerala reported in (2013) 14 SCC 266, wherein, at paragraph 58, it is held as under:
58. In Vijay v. State of M.P. [(2010) 8 SCC 191 :
(2010) 3 SCC (Cri) 639] this Court, while dealing with the effect of non-holding of a test identification parade, placed very heavy reliance upon the judgments of this Court in Santokh Singh v. Izhar Hussain [(1973) 2 SCC 406 : 1973 SCC (Cri) 828 :
AIR 1973 SC 2190] , State of H.P. v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC (Cri) 147 : AIR 1999 SC 3916] and Malkhansingh v. State of M.P. [(2003) 5 SCC 746 : 2003 SCC (Cri) 1247] and held that the evidence from a test identification parade is admissible under Section 9 of the Evidence Act, 1872. The identification parade is conducted by the police. The actual evidence regarding identification is
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that which is given by the witnesses in court. A test identification parade cannot be claimed by an accused as a matter of right. Mere identification of an accused in a test identification parade is only a circumstance corroborative of the identification of the accused in court. Further, conducting a test identification parade is meaningless if the witnesses know the accused, or if they have been shown his photographs, or if he has been exposed by the media to the public. Holding a test identification parade may be helpful to the investigation to ascertain whether the investigation is being conducted in a proper manner and with proper direction. (See also Munna Kumar Upadhyay v. State of A.P. [(2012) 6 SCC 174 : (2012) 3 SCC (Cri) 42] ).
40. Sri Devaraj, learned counsel for accused No.1 though contended that the unfortunate incident happened in the spur of the moment when the accused No.1 lost the power of self control since accused used bad words on the mother of the accused No.1 and therefore, the offence falls under Section 304 Part I of the Indian Penal Code, the said contention cannot be accepted as there was earlier enmity between accused No.1 and the deceased as could be seen from Exs.P.7 and 8 and as per the evidence of P.W.1, statement made by P.W.6 before
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CRL.A No.1339 of 2018the Magistrate under Section 164 of the Code of Criminal Procedure as per Ex.P.14. This clearly depicts that the incident has happened not due to sudden provocation but it was due to previous enmity between the accused No.1 and the deceased and thereby accused No.1 had motive to kill the deceased, so that, he can become the leader in the locality as stated by P.W.1 in his evidence. Therefore, it is not a fit case to modify the conviction and reduce the sentence in so far as accused No.1 is concerned.
41. A careful perusal of the material on record clearly depicts that accused No.1 is involved in the homicidal death of the deceased and also tried to attack P.W.6 and thereby has committed offences punishable under Sections 341, 307 and 302 r/w 34 of the Indian Penal Code.
42. As stated supra, accused No.2 was present with the accused No.1 at the time of the commission of the offence. But there is no whisper against accused No.2 by any of the prosecution witnesses to the effect that that he is involved in the offence or that he was holding the deceased so as to facilitate accused No.1 to stab the deceased. On the contrary,
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CRL.A No.1339 of 2018accused No.2 was holding P.W.6. Thereby, he facilitated accused No.1 to stab P.W.6 who sustained injuries as per the wound certificate-Ex.P.28. Absolutely there is no whisper about the involvement of accused No.2 in the murder of the deceased-Venkateshappa.
43. In the absence of any common intention and pre plan, accused No.2 cannot be convicted for the offence punishable under Section 302 of the IPC, but is liable to be convicted for the offence punishable under Sections 341 and 307 of the Indian Penal Code, as he facilitated accused No.1 to assault P.W.6.
44. In view of the above, the first point raised for consideration in the present Criminal Appeal is answered in the negative holding that the accused No.1 has not made out any case to interfere with the impugned judgment of conviction and order of sentence convicting him for the offences punishable under Sections 341, 307 and 302 of the Indian Penal Code.
45. The second point is answered partly in the affirmative holding that the accused No.2 has made out a case to interfere
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CRL.A No.1339 of 2018with impugned judgment of conviction and order of sentence convicting him for the offence punishable under Section 302 of the Indian Penal Code. However, accused No.2 has not made out any case to interfere with the impugned judgment of conviction and order of sentence convicting him for the offences punishable under Sections 341 and 307 of the Indian Penal Code.
46. In view of the above, we pass the following:
ORDER
(i) The impugned judgment of conviction and order of sentence convicting the accused No.1 for the offences punishable under Sections 341, 307 and 302 of the Indian Penal Code is hereby confirmed.
(ii) The impugned judgment of conviction and order of sentence convicting the accused No.2 for the offences punishable under Section 302 of the Indian Penal Code is hereby set-aside.
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CRL.A No.1339 of 2018(iii) Accused No.2 is acquitted for the offence punishable under Section 302 of the Indian Penal Code.
(iv) The impugned judgment of conviction and order of sentence convicting the accused No.2 for the offences punishable under Sections 341 and 307 of the Indian Penal Code is hereby confirmed.
(v) All sentences shall run concurrently.
(vi) Accused No.2 is entitled to the benefit of set off as provided under Section 428 of the Code of Criminal Procedure.
Sd/-
JUDGE Sd/-
JUDGE kcm