Karnataka High Court
Halappa Laxman Adinavar vs The State Of Karnataka on 13 December, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
Crl. A No.100006/2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.100006/2017
BETWEEN:
1 . HALAPPA LAXMAN ADINAVAR,
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O: MANNAPUR,
TAL: GOKAK,
DIST: BELAGAVI.
2 . UMESH SIDDAPPA PUTANI,
AGE: 24 YEARS,
OCC: AGRICULTURE,
R/O: NIMBAL,
TQ: INDI,
DIST: VIJAYAPURA.
3 . DHAREPPA SAIBANNA BIRADAR,
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O: NIMBAL,
TQ: INDI,
DIST: VIJAYAPURA.
4 . APPASAB SIDDAPPA SALIGAON,
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O: NIMBAL,
TQ: INDI,
DIST: VIJAYAPURA.
... APPELLANTS
Crl. A No.100006/2017
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(BY SHRI.M.B.GUNDAWADE AND
SHRI A.M.GUNDAWADE, ADVOCATES FOR A2 AND A4,
APPEAL AGAINST A1 IS ABATED VIDE ORDER
DATED 24.09.2021)
AND:
1. THE STATE OF KARNATAKA,
THROUGH CIRCLE POLICE INSPECTOR,
MUDALAGI,
DIST: BELAGAVI,
THROUGH STATE PUBLIC PROSECUTOR,
DHARWAD.
... RESPONDENT
(BY SHRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C., PRAYING TO THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, BELAGAVI, IN SESSIONS CASE NO. 202 OF 2011 ON
03.11.2016 AND THEREBY CONVICTING THE APPELLANTS FOR THE
OFFENCE UNDER SECTION 302 READ WITH 34 OF IPC AND
SENTENCING THEM TO UNDERGO IMPRISONMENT FOR LIFE AND
TO PAY FINE OF RS.50,000/- EACH AND IN DEFAULT TO UNDERGO
RIGOROUS IMPRISONMENT FOR ONE YEAR. FURTHER PUNISHMENT
OF SENTENCING THE APPELLANT TO UNDERGO IMPRISONMENT
FOR LIFE AND EACH SHALL PAY RS. 25,000/- AND IN DEFAULT OF
PAYMENT OF FINE TO UNDERGO RIGOROUS IMPRISONMENT FOR A
PERIOD OF SIX MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 307 READ WITH SECTION 34 OF IPC. FURTHER
PUNISHMENT OF SENTENCING THE APPELLANTS TO UNDERGO
RIGOROUS IMPRISONMENT FOR 10 YEARS AND EACH SHALL PAY
FINE OF RS.5,000/- AND IN DEFAULT OF PAYMENT OF FINE THEY
SHALL FURTHER UNDERGO RIGOROUS IMPRISONMENT FOR THREE
MONTHS FOR THE OFFENCE UNDER SECTION 34 IPC., BE SET
ASIDE AND THE ACCUSED/APPELLANTS KINDLY BE ACQUITTED.
THIS APPEAL COMING ON FOR FINAL HEARING ON
17.11.2021 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGEMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:
Crl. A No.100006/2017
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JUDGMENT
1. The appellants are before this Court challenging the judgment of conviction and order of sentence passed by the II Additional Sessions Judge, Belagavi, in S.C.No.202 of 2011 on 03.11.2016 and thereby convicting the appellants for the offence under Section 302 read with Section 34 of IPC and sentencing them to undergo imprisonment for life and to pay fine of Rs.50,000/- each and in default to undergo rigorous imprisonment for one year. Further punishment of sentencing the appellant to undergo imprisonment for life and each shall pay Rs.25,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 307 read with Section 34 of IPC and further punishment of sentencing the appellants to undergo rigorous imprisonment for 10 years and each shall Crl. A No.100006/2017 4 pay fine of Rs.5,000/- and in default of payment of fine they shall further undergo rigorous imprisonment for three months for the offence under Section 34 IPC., be set aside and the accused/appellants kindly be acquitted.
2. S.C.No.202/2011 was initiated on account of the Circle Inspector of Police, Mudalagi, having charge- sheeted the accused who are appellants herein and certain others for the offences punishable under Sections 143, 147, 148, 120-B, 302, 212 and 307 read with Section 149 of IPC. In the said incident Yallappa and Lakshman were murdered and there was an attempt to murder PW-2 -
Nabisab Junglesab Mulla.
3. By way of the impugned judgment dated 03.11.2016, Accused No.2 to 4, 6 to 10, 12, 15 and 17 are found not guilty for the offences punishable Crl. A No.100006/2017 5 under Section 143, 147, 148, 120(B), 302, 307 and 212 read with Section 149 of IPC. Acting under Section. 235(1) of Cr.P.C accused No.2 to 4, 6 to 10, 12, 15 and 17 are acquitted for the offences punishable under Section 143, 147, 148, 12(B), 302, 307 and 212 read with Section 149 of IPC.
4. Accused No.1, 11, 13 and 14 were found guilty for the offences punishable under Section. 120(B), 302 and 307 read with Section 34 of IPC. Acting under Section 235(2) of Cr.P.C accused No.1, 11, 13 and 14 are convicted for the offences punishable under Section. 120(B), 302, 307 read with Section 34 of IPC.
5. After hearing the convicted accused on 07.11.2016, the following order of sentence was passed:
Accused No.1, 11, 13 & 14 sentenced to undergo imprisonment for life and each shall pay a fine of Rs.50,000/- and in default of payment of fine, each shall Crl. A No.100006/2017 6 further undergo rigorous imprisonment for a period of 1 year for the offence punishable u/sec 302 R/w 34 of IPC.
Accused No.1, 11, 13 & 14 each are sentenced to undergo imprisonment for life and each shall pay a fine of Rs.25,000/- and in default of payment of fine, they shall further undergo rigorous imprisonment for a period of 6 months for the offence punishable u/sec 307 R/w 34 of IPC.
Accused No.1, 11, 13 & 14 each are sentenced to undergo rigorous imprisonment for a period of 10 years and each shall pay a fine of Rs.5,000/- and in default of payment of fine, they shall further undergo rigorous imprisonment for a period of 3 months for the offence punishable u/sec 120 (B) R/w 34 of IPC.
The substantial sentence of imprisonment shall run concurrently.
Accused No.1, 11, 13 & 14 are entitled for set off under section 428 of Cr.P.C. during the period when they are in judicial custody.
Out of the fine amount the legal heirs of deceased Yallappa are entitled for Rs.1,50,000/- and legal heirs of Laxman are entitled for Rs.1,50,000/- as compensation under section 357 of Cr.P.C.
6. The case of the prosecution is that accused No.1 and deceased Yallappa were not in good terms due to various issues. In this background, accused Nos.1 to 16 had hatched a plan and conspiracy to murder Yallappa in such a way that it should not appear to be a murder, they had finalized on a plan to kill Crl. A No.100006/2017 7 Yallappa by way of a road accident. In furtherance of the said conspiracy on 23.09.2010 the accused dashed Trax vehicle against the two wheeler and when they fell down assaulted and caused the death of Yallappa and Lakshman as also grievous injuries to PW-2 Nabisab with an intention to cause his death. The wife of Yallappa had lodged a complaint which was registered as Cr.No.150/110 at 4:00pm on 23.09.2010 at Kulgod Police Station.
7. On investigation being completed a charge-sheet was laid on 22.12.2010 in the Court of JMFC, Gokak, against the accused for the offences punishable under Sections 143, 147, 148, 302, 307, 120B and 212 read with Section 149 of the IPC.
8. The JMFC, Gokak, took cognizance and registered a case in CC No.2025/2010. Thereafter, committed the case to the Court of Sessions after splitting up Crl. A No.100006/2017 8 the case against accused No.16 since accused No.16 was absconding. The split-up charge sheet was registered against accused No.16 as C.C.No. 1167/2011 in JMFC Court at Gokak.
9. Upon committal, it came to be registered as S.C.202/2011 and made over to the Court of II Additional District and Sessions Judge, Belagavi.
10. Initially, the charges were framed on 02.12.2011 by inadvertence there being an error in the charges framed, a fresh set of charges came to be framed on 17.08.2012. The charges framed read as under:
"Firstly, that you all, two months prior to the death of deceased Yallappa Pujeri were parties to a criminal conspiracy to commit murder of Yallappa Pujeri in front of the house of you accused No.1 Halappa Adinavar, at Mannapur Village, within the limits of Kulgod Police Station and thereby committed offence punishable U/s. 120B of Indian Penal Code and within the cognizance of the Court of Sessions.
Secondly, that you all on 23.9.2010 at Mannapur Village formed an unlawful assembly with a common object to commit murder of deceased Yallappa Pujeri and thereby committed the offence punishable U/s.143 of Indian Crl. A No.100006/2017 9 Penal Code and within the cognizance of the Court of Sessions.
Thirdly, that you all, on the above said date, being members of above said unlawful assembly used violence on deceased Yallappa Pujari and CW.25 Nabisab Mulla and thereby committed the offence punishable U/s.147 of Indian Penal Code and within the cognizance of the Court of Sessions.
Fourthly that you on all on the above said date time and place, in the course of same transaction, being members of above said unlawful assembly used Tempo Trax Vehicle bearing No.KA-23-M-4122 and Iron Rods, while using the violence on deceased Yallappa Pujeri and CW.25 Nabisab Mulla and thereby committed the offence punishable U/s.148 of Indian Penal Code and within the cognizance of the Court of Sessions.
Fifthly that you all, on the above said, date, time and place, at 11.50 a.m, in the course of same transaction and in the prosecution of your common object, near the land of Chapati Lakshemeshwar on Kulgod-Mannapur road, at a distance of 2 to 3 KMs away from Kulgod, intentionally caused death of deceased Yallappa Pujari, when he was proceeding on the Motor Cycle of CW.25 Nabisab Mulia, by dashing your Tempo Trax vehicle bearing No.KA-23-M-4122 and after Yallappa Pujari fell down from the Motor Cycle, by assaulting him with Iron Rods causing his spot death and thereby committed the offence punishable U/s. 302 R/W.Sec.149 of Indian Penal Code and within the cognizance of the Court of Sessions.
Sixthly, that you all, on the above said date, time and place, in the course of same transaction and in prosecution of your common object, assaulted CW.25 Nabisab Mulla with Iron Rods and caused grievous injuries to him, with such intention and under such circumstances that, if by that act, you had caused the death of CW.25 Nabisab Mulla, you all would have been guilty of murder and thereby committed the offence punishable U/s.307 R/W. Sec.149 of Indian Penal Code and within the cognizance of the Court of Sessions.Crl. A No.100006/2017 10
Lastly, that, you accused No.10 Appasi Pujari and Accused No.17 Malappa Pujeri on the above said date, harboured or concealed the other accused persons of this case, at P.M. Budni Village in your farm house knowingly that all of them had committed murder of deceased Yallappa Pujeri and had attempted to commit murder of CW.25 Nabisab Mulla, with an intention of screening them from legal punishment and thereby committed offence punishable U/s. 212 of Indian Penal Code and within the cognizance of the Court of Sessions.
And I hereby direct that you be tried by this Court on the above said charges."
11. On the charges being read over to the Accused they pleaded not guilty and claimed to be tried.
12. Prosecution in order to prove its case examined 86 witnesses as PWs-1 to 86, 216, 216 documents were marked as Ex.P.1 to 216 and 48 properties were marked as material objects M.Os.1 to 48.
13. There being an error in M.O.Nos.42 and 43 being marked twice, was rectified by the trial Court. The Station House Diary was summoned at the instance of the accused and marked as Ex.C.1. Though Crl. A No.100006/2017 11 several other documents had been summoned, they were not marked.
14. After the closure of evidence of the prosecution, accused Nos.1 to 4, 6 to 15 and 17 were examined under Section 313 of the Cr.P.C and their answers recorded. The accused did not lead any evidence and filed written submissions.
15. After hearing Arguments the aforesaid order of conviction and sentence was passed.
16. Shri Gundawade, learned counsel for the appellants has submitted that:
16.1. The complaint of PW - 1 is typed and not written. The Station House Officer ought to have written down the complaint himself instead of delegating it. The typing of the complaint gives rise to a doubt that the same Crl. A No.100006/2017 12 was prepared earlier and not in the words of the complainant.
16.2. The Police were at the scene of the crime and making enquiries even before a complaint was lodged, hence investigation having been commenced even prior to the lodging of the complaint is bad in Law.
16.3. Even assuming but not conceding the story of the prosecution to be true there is no motive established on the part of accused Nos.11, 13 and 14, who are strangers.
16.4. Initially PW - 1 had complained against 10 persons whereas chargesheet had been filed against 17 hence the additional seven persons have been falsely roped into the matter.
16.5. There are 16 mahazars that had been
conducted between 23.09.2010 and
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13
18.10.2010 have been witnessed by only two witnesses namely PW -52 and PW -53 who are stock witnesses and who have not supported the case of the prosecution.
16.6. All the voluntary statements of the accused are also in violation of Sections 26 and 27 of the Indian Evidence Act and inasmuch as the voluntary statements are in detail recording the commission of the offence and as such, only portions of the voluntary statements have been permitted to be marked by the Sessions Court. He submits that the portions marked do not in any manner establish the complicity of the accused in the crime.
16.7. There is no evidence that is placed on record to establish that the accused after the accident of the Tempo Trax went on foot. He further Crl. A No.100006/2017 14 submits that the testimony of PW - 2 cannot be accepted since PW -2 is an interested witness and there is no other independent witnesses examined who have spoken of the accused having committed the offence there is no proof of the said offence having been committed.
16.8. The circumstantial evidence needs to be fully established to result in a conviction. He submits that in criminal matters, more particularly where offences alleged are under Section 302 of IPC for murder, the said offence has to be proved beyond reasonable doubt and if there are two views possible, then the beneficial view has to be taken in favour of the accused. In this regard, he relies upon the decision of the Apex Court in the case of BASHEERA BEGAM VS. MOHAMMED Crl. A No.100006/2017 15 IBRAHIM AND OTHERS reported in 2020 AIAR (CRIMINAL) 818, more particularly, paragraphs 189, 193 and 195 thereof which are reproduced hereunder for easy reference:
189. It is well settled that under the criminal jurisprudence prevalent in this country an accused is presumed innocent, unless proved guilty beyond all reasonable doubt. As held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [1973 (2) SCC 793], "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." For conviction on the basis of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should fully be established. The circumstances should be conclusive. The circumstances established should definitely point to the guilt of the accused, and not be explainable on any other hypothesis. The circumstances should exclude any other possible hypothesis except the one to be proved.
193. At the cost of repetition, it is reiterated that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If upon analysis of evidence two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and order of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the Court might reverse an order of acquittal if the Court finds that no person Crl. A No.100006/2017 16 properly instructed in law could have upon analysis of the evidence on record found the accused to be 'not guilty'. When there is circumstantial evidence pointing to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.
195. Before a case against an accused can be said can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of the guilt of the accused. There has to be a chain of evidence so complete as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
16.9. The evidence of various witnesses are contradictory in nature and when there is such contradiction, the benefit of doubt has to be extended to an accused. In this regard, he relies upon the decision of the Apex Court in the case of IMRAT SINGH AND OTHERS VS.
STATE OF MADHYA PRADESH reported in [2020 AIAR (CRIMINAL) 168], more particularly, paragraph 18 thereof which is reproduced hereunder for easy reference: Crl. A No.100006/2017 17
"18. The villagers who were first told about this incident by Lakhan Singh (PW-10) and Ram Singh (PW-11) have not been examined. The Head Constable who is alleged to have not recorded the FIR and said that he would wait for the SDOP has not been examined. The SDOP/Deputy Superintendent of Police has not been examined. The FIR has been recorded admittedly after visiting the spot by the police and, therefore, there is a possibility that the story could have been concocted after seeing the site and conferring with all the villagers. It has come on record that Gajraj Singh was not a very popular man. He had a lot of enemies. It has also come in evidence that almost all the witnesses have some criminal antecedents and some cases are pending against them. It may be true that there was enmity between the two sides. Enmity, as is often said is a double edged sword. It can be the motive but it can also be a reason to falsely implicate the other side. In the present case, keeping in view the various contradictions pointed out above and the fact that in view of the contradictions it is difficult to rely upon the statements of Lakhan Singh (PW-10) and Ram Singh (PW-11) as well as Somati (PW-6) and Raghubir (PW- 7), we are of the view that a doubt has been cast and the benefit of doubt has to be given to the accused."
16.10. PW - 2 could not see or depose on the actual injuries caused on the deceased and that the statement made by PW - 2 is contradictory to the postmortem reports.
Crl. A No.100006/201718 16.11. The deposition of single eyewitness PW - 2 is completely unreliable and cannot be considered by this Court by relying upon the decision of the Apex Court in the case of AMAR SINGH VS. THE STATE (NCT OF DELHI) reported in 2021 AIAR (CRIMINAL) 51, more particularly, paragraphs 17, 24 and 32 thereof which are reproduced hereunder for easy reference:
"17. This case primarily hinges on the testimony of sole eye witness, Parminder Singh PW-1, brother of the deceased. As already discussed above conviction can be based on the testimony of a single eye witness so long he is found to be wholly reliable. In the light of the settled legal principles we proceed to examine the testimony of Parminder Singh PW-1 and also his conduct at the time of the incident.
24. This in itself casts serious doubts of shadow on the prosecution story that two brothers of the deceased, namely, Parminder Singh PW-1 and Amar Singh PW-11 were present on the spot and accompanied the injured in PCR Van to AIIMS. Had it been so, naturally, they would have given the name of the deceased and their own names which would have been recorded in the MLC Ex. PW-17/A at the first instance. Doctor Romesh Lal PW-17/A who prepared the MLC stated in his evidence that one dead body was brought in the casualty of AIIMS by Crl. A No.100006/2017 19 Head Constable Dharam Singh having multiple sharp deep injuries all over the body and he prepared the MLC PW- 17/A.
32. The conviction of the appellants rests on the oral testimony of PW-1 who was produced as eye witness of the murder of the deceased. Both the Learned Sessions Judge, as well as High Court have placed reliance on the evidence of PW-1 and ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the in corroborated testimony of the sole eye witness. Similar view has been taken by a Three Judge Bench of this Court in the case of Selvaraj V/s The State of Tamil Nadu [1976 (4) SCC 343]. Wherein on an appreciation of evidence the prosecution story was found highly improbable and inconsistent of ordinary course of human nature concurrent findings of guilt recorded by the two Courts below was set aside."
16.12. On all the above basis, he submits that the appeal filed by accused Nos.11, 13 and 14 is required to be allowed and the conviction and sentence be set aside.
17. Shri Banakar, learned Addl. SPP appearing for the respondent/State would submit that Crl. A No.100006/2017 20 17.1. The police can visit any site where an offence has been committed even prior to a complaint being lodged, more so when the offence is a cognizable one by relying upon the decision of the Apex Court in the case of ANIMIREDDY VENKATA RAMANA AND OTHERS VS.
PUBLIC PROSECUTOR, H.C. OF A.P. reported in 2008 (2) Crimes 63 (SC), more particularly Paragraph 10 thereof which is reproduced hereunder for easy reference:
"10. The dead body of the deceased was brought down from the bus and taken to the house. The conductor of the bus sent an information to the Depot Manager of the State Road Transport Corporation at Tuni. The investigating officer was also informed. A report to that effect might have been noted in the general diary but the same could not have been treated to be an FIR. When an information is received by an officer incharge of a police station, he in terms of the provisions of the Code was expected to reach the place of occurrence as early as possible. It was not necessary for him to take that step only on the basis of a First Information Report. An information received in regard to commission of a cognizable offence is not required to be preceded by a First Information Report. Duty of the State to protect the life of an injured as also an endeavour on the part of the Crl. A No.100006/2017 21 responsible police officer to reach the place of occurrence in a situation of this nature is his implicit duty and responsibility. If some incident had taken place in a bus, the officers of the Road Transport Corporation also could not ignore the same. They reached the place of occurrence in another bus at about 1 a.m. The deceased and the injured were, only then, shifted to the Tuni hospital."
17.2. In answer to the contention of Shri Gundawade, learned counsel for the appellants, that there is no motive established on the part of accused Nos.11, 13 and 14, Shri Banakar, learned Addl. SPP submits that once there is an eyewitness testimony as regards the commission of the offence, motive becomes irrelevant by relying upon the decision of the Apex Court in the case of SUBODH NATH VS. STATE OF TRIPURA reported in AIR 2013 SC 3726, more particularly, paragraph 13 thereof which is reproduced hereunder for easy reference: Crl. A No.100006/2017 22
"13. Once we find that the eye witness account of PW-13 is corroborated by material particulars and is reliable, we cannot discard his evidence only on the ground that there are some discrepancies in the evidence of PW-1, PW- 2, PW-13 and PW-19. As has been held by this Court in State of Rajasthan v. Smt. Kalki and Another [(1981) 2 SCC 752], in the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses. Learned counsel for the appellants is right that the prosecution has not been able to establish the motive of the appellant no.1 to kill the deceased but as there is direct evidence of the accused having committed the offence, motive becomes irrelevant. Motive becomes relevant as an additional circumstance in a case where prosecution seeks to prove the guilt by circumstantial evidence only."
17.3. In this regard, he also relies on the decision in the case of YASHWANTH BHANDARY VS.
STATE OF KARNATAKA reported in ILR 2004 KAR 3785, more particularly paragraph 20 which is reproduced hereunder for easy reference.
"20. The aspect of motive is amply deposed to by P.Ws 2 & 3. They deposed in specific terms that the accused used to tease the deceased frequently and Crl. A No.100006/2017 23 the same was complained to by the deceased to her aunt P.W.3, who in turn had warned and abused the accused. Being enraged by such reprimand, the accused has committed the murder of the deceased. On the contrary, the case of the defence is that the accused and deceased were loving each other and wanted to marry. Thus there is no occasion for the accused to commit the murder of the deceased. That the Jamath Committee members who were enraged by such love affair wanted to eliminate the said affair between the accused with the deceased. As such, the Jamath Committee people took away the deceased in a car to an unknown place and murdered her and thereafter thrown the dead body on the present scene of offence. We do not find any force in the aforesaid defence and the same is not supported by any material on record. Be that as it may, the material on record discloses that the accused had got some inclination towards the deceased. The defence version as spoken to by D.Ws. 1 & 2 discloses that there was opposition from Jamath Committee people & relatives of deceased in the love affair. Therefore, the deceased might not have reacted positively in favour of the accused, which might have enraged the accused to commit the offence in frustration. If the material available on record is considered in its entirety, it can be safely said that the prosecution is able to show that there was some ire on the part of the accused against the deceased for committing the murder. The motive is always hidden in the mind of the offenders of the crime and it is almost impossible for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. A reference can be had in this connection to the Judgment of the Apex Court in STATE OF HIMACHAL PRADESH v. JEET SINGH, 1999 SC (Crl) 539 wherein it is observed thus:
"When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in Crl. A No.100006/2017 24 the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
Taking the clue from the observations and the principles laid down by the Apex Court in the aforesaid pronouncement, in our view, the possibility of some ire on the part of the accused being enraged towards the conduct of the deceased and her family members is apparent. There is every possibility of he being angered of such negative attitude of the deceased and the abuses by P.W.3."
17.4. In answer to the contention of Shri Gundawade, learned counsel, that initially PW
- 1 had complained against 10 persons whereas chargesheet had been filed against
17. He submits that it is upon investigation that the charge-sheet came to be filed against 17 accused persons because they were involved in the incident. CW - 2 in his statement having imputed allegations against certain other accused than that named by PW
- 1 they have also been made as accused. He Crl. A No.100006/2017 25 further submits that a First Information Report cannot be an encyclopedia of all facts. It is upon competition of the investigation that the complicity of various accused can be verified and identified. The same having been done by the Investigating Officer, no fault can be found by addition of additional accused nor can the accused derive any benefit from the same. 17.5. By relying on the medical evidence on record, he submits that all the injuries which have caused the death of Yallappa and Lakshman have resulted from the use of iron rods as could be seen from Ex.P.114 being postmortem report of Yallappa, Ex.P.127 being the postmortem report of Lakshman and Ex.P.138 being the wound certificate of PW - 2 Nabisab.
Crl. A No.100006/201726 17.6. Relying upon the Apex Court decision in the case of BALESHWAR MAHTO VS. STATE OF BIHAR reported in (2017) 3 SCC 152, more particularly, paragraph 12 thereof he submits that when an eyewitness is also an injured person due credence to his version needs to be accorded.
"12. Here, PW-7 is also an injured witness. When the eye-witness is also an injured person, due credence to his version needs to be accorded. On this aspect, we may refer to the following observations in Abdul Sayeed vs. State of Madhya Pradesh2:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881], Malkhan Singh v. State of U.P. [(1975) 3 SCC 311], Machhi Singh v. State of Punjab [(1983) 3 SCC 470], Appabhai v. State of Gujarat [1988 Supp SCC 241], Bonkya v. State of Maharashtra [(1995) 6 SCC 447], Bhag Singh [(1997) 7 SCC 712], Mohar v. State of U.P. [(2002) 7 SCC 606] (SCC p. 606b-c), Dinesh Kumar Crl. A No.100006/2017 27 v. State of Rajasthan [(2008) 8 SCC 270], Vishnu v. State of Rajasthan [(2009) 10 SCC 477], Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546] and Balraje v. State of Maharashtra [(2010) 6 SCC 673].
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719] , where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459]. Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below."Crl. A No.100006/2017 28
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
17.7. He relies on the decision of the Apex Court in the case of PADMANABAN VS. STATE reported in (2009) 15 SCC 108 more particularly paragraph 23 thereof which is reproduced hereunder for easy reference.
"23. No doubt lodging of a First Information Report at the earliest possible opportunity is desirable. But, the courts cannot also ignore the ground realities that the relatives of the deceased would give priority to the treatment of a severely injured person. All attempts would first be made to save his life. The action on the part of the prosecution witnesses, in our considered opinion, in giving priority to the treatment to the injured was wholly justifiable."
17.8. Merely because certain of the witnesses have turned hostile, the same would not negate the Crl. A No.100006/2017 29 act of commission of offence by the accused in as much as PW - 2 being the eyewitness, has specifically deposed as regards the complicity of the accused, that not being controverted and being corroborated by other circumstances, merely because certain other witnesses have turned hostile, no benefit of doubt could be extended to the accused, in this connection he relies upon the decision of the Apex Court in the case of KARTIK MALHAR VS. STATE OF BIHAR reported in (1996) 1 SCC 614, more particularly paragraphs 2, 3, 11 and 21 thereof which are reproduced hereunder.
"2. The well-known maxim that "Evidence has to be weighed and not counted" has been given statutory placement in section 134 of the Evidence Act which provides us under :
"134. No particular number of witness shall in any case be required for the proof of any fact."Crl. A No.100006/2017 30
3. This section marks a departure from the English law where a number of statutes still prohibit convictions for certain categories of offences on the testimony of a single witness. This-difference was noticed by the Privy Council in Mahamed Sugal Esa Mamasah Rer Alalah v. The King, [A.I.R. (1946) P.C, 3] wherein it was laid down as under :
"It was also submitted on behalf of the appellant that assuming the unsworned evidence was admissible the court could not act upon it unless it was corroborated. In England, where provision has been made for the reception of unsworned evidence from a child, it has always been provided that the evidence must be corroborated in some material particularly implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it; corroboration unless required by statute goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworned but, this is a rule of prudence and not of law."
17.9. He submits that merely because the recovery witness has turned hostile would not negate the recovery of any item and in that regard the statement of the Investigating Officer could be relied upon to prove recovery. In support thereof, he relies upon the decision of Crl. A No.100006/2017 31 the Apex Court in the case of MALLIKARJUN VS. STATE OF KARNATAKA reported in 2019 (5) KCCR 338 (SC) more particularly paragraph 23 thereof which is reproduced hereunder for easy reference:
"23. As pointed out earlier, based on the disclosure statement of accused No.1, MO-1-dagger which was kept hidden in the haystack of fodder in the loft of the cattle shed behind the house of accused No.1 had been seized under Ex.-P9- Panchnama in the presence of panch witnesses PW-8- Chandrappa and PW-9-Mahadevappa Needgera. The said panch witnesses have not supported the prosecution case and turned hostile. MO-2-dagger and MO-3-handle of the axe were recovered from the scene of occurrence under Ex.-P7-spot panchnama. On behalf of the accused, learned senior counsel contended that the evidence of PW-17-PSI as to the recovery of MO-1-dagger at the behest of accused No.1 is doubtful and when PWs 8 and 9 have turned hostile, no weight could be attached to the alleged recovery of MO-1-dagger. There is no merit in the contention that merely because the panch witnesses turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the Investigating Officer can be relied upon to prove the recovery even when the panch witnesses turned hostile. In Rameshbhai Mohanbhai Koli v. State of Gujarat and others (2011) 11 SCC 111, it was held as under:-
"33. In Modan Singh v. State of Rajasthan (1978) 4 SCC 435 it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, Crl. A No.100006/2017 32 the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra (2001) 9 SCC 362.
34. In Anter Singh v. State of Rajasthan (2004) 10 SCC 657, it was further held that: (SCC p. 661, para
10) "10. ... even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated."
35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh case.)" PW-17-PSI has clearly spoken about the recovery of MO-1- dagger at the behest of accused No.1 and MO-2-dagger and MO-3- handle of the axe from the scene of occurrence and his evidence cannot be discarded merely because panch witnesses have turned hostile." 17.10. Once an eye witness has given his testimony and the same is corroborated by facts, the same cannot be discarded only on the ground that there are some other discrepancies in the evidence of some other witnesses.
Crl. A No.100006/201733 17.11. It is not necessary for the prosecution to prove motive in all cases, if the prosecution were to establish that there is a possibility of a particular reason being in existence for the commission of the offence, the same would suffice.
17.12. Based on all the above, Shri Banakar learned Additional SPP submits that the judgment of the trial Court is proper and does not require any interference.
18. Since the above is a criminal appeal, the evidence on record would have to be re-appreciated in order to ascertain if the order of conviction passed by the trial Court is proper and correct.
19. PW-1-Rukmavva Yallappa Pujari, who is the wife of the deceased Yallappa and the complainant has stated that she knows other deceased Lakshman Crl. A No.100006/2017 34 and injured PW-2 Nabisab. She states that there were several disputes between her husband and accused Nos.1 to 12 namely political enmity as her husband's group and the group of accused No.1 supported different political parties/candidates.
20. It is further alleged that the younger brother of accused No.1 by name Mallappa Adinavar had been murdered in the year 2009, accused No.1 and members of his family believed that deceased Yallappa had a hand in the murder of Mallappa Adinavar and as such, accused No.1 wanted to take revenge against the said deceased Yallappa.
21. Accused No.13's elder sister was married to the deceased Mallappa Adinavar who had been murdered by Jadappa and others, accused No.13 also believed that deceased Yallappa had a hand in the murder of Mallappa Adinavar. Accused Crl. A No.100006/2017 35 No.13 was residing with his sister in Mannapura and had promised his sister that within one year of the death of Mallappa Adinavar, he would kill Yallappa.
22. Accused Nos.4 and 12 are stated to own land abutting the land of deceased Yallappa. In this regard, there was a boundary dispute between them as regards which complaints and counter complaints had been registered against each other. On this basis, accused Nos.4 and 12 had also developed enmity towards the deceased Yallappa.
23. Accused No.1, accused Nos.4, 12 and 13 had various reasons to be enemical to deceased Yallappa and had a motive to cause his murder.
24. She has spoken of how injured Nabisab had come to the house of the deceased, informed about his purchase of the new vehicle and request made by Crl. A No.100006/2017 36 him to the deceased Yallappa and Laxman to accompany him for registration.
25. She has stated about how at around 10 to 12 o' clock her brother-in-law, Yamanappa (PW-66), brother of deceased Yallappa had been informed by Bheemappa Yallappa Ajjanakatti-PW 10 about the incident that had occurred and the death of her husband Yallappa and injuries caused to Laxman and Nabisab, PW66 informed her about the same and both went to the spot at 12:30 p.m., on the way they saw the Tempo Trax toppled with iron rod in it.
26. When they came to the spot a crowd had gathered.
Yallappa was lying dead with wounds on his chest and forehead, Lakshman had wounds on his head and right portion of his chest, Nabisab had injuries on his head, chest and leg, she has also stated Crl. A No.100006/2017 37 about one iron rod lying near deceased Yallappa's body and the other near the bike. She has stated about the ambulance which had been called for by PW-10 having arrived and taken Lakshman and Nabisab to Gokak. At 3:30 p.m. she came to know about Laxman having expired.
27. She states that thereafter she came to the police station to give a complaint at 4 o'clock.
28. She recognized the clothes of her husband which were marked as M.Os.1 to 5, the iron rods lying near her husband and bike was marked as M.O.6, the Tempo Trax was marked as M.O.9.
29. All the suggestions which were made by counsel for accused during the course of cross-examination have been denied by her. It was suggested to her that accused No.1's brother was murdered two Crl. A No.100006/2017 38 to three years back which she denied by stating that it is one year back.
30. She has denied that she has given a false complaint, there were further allegations made that her husband was carrying on an illicit affair and it may be possible that his paramour's family could have murdered her husband, in that she has denied both the illicit affair and the possibility of murder from them.
31. She has denied that the complaint was initiated at the behest of another locally powerful politician Bheemappa Nadagouda. In essence, she has supported the complaint and has withstood the test of cross-examination.
32. PW-2, the injured Nabisab who is the eye witness has stated about how he had requested the deceased Yallappa and Lakshman to accompany him Crl. A No.100006/2017 39 for registration of the vehicle and supports the statements made by PW-1. In addition, he states that accused No.13 who was driving the Tempo Trax dashed against the motorcycle at high speed in order to cause the death of all three persons on the bike. On such dashing, all of them fell down to the ground. He states that at that time, accused No.13 stepped out of the Trax, pointed out to Yallappa and directed accused No.14, who was also in the Trax, to assault and kill him, pursuant thereto, accused Nos.14 and 16 assaulted Yallappa with iron rods and thereafter assaulted Lakshman and PW-2 Nabisab so as to get rid of the witnesses to the crime.
33. PW-2 has also withstood the test of cross-
examination and has clearly identified accused Nos.11 to 14 and 16. He states that he identified accused Nos.13 and 14 at the station. He has also stated about the enmity between deceased Yallappa Crl. A No.100006/2017 40 and the family of accused No.1. He reiterates the statements made by PW-1 in respect thereto. He denies that he has been tutored by Nadagouda to depose falsely.
34. PW-3-Bheemappa Siddappa Dhavaleshwar and PW-
4 Paravva Bheemappa Dhavaleshwar are also stated to be the eye-witnesses who had deposed that they were cultivating the land belonging to one Chapati and saw Yallappa riding the bike along with Lakshman and Nabisab when a Tempo Trax crashed into the bike, they have not identified the accused. Hence, they were treated as hostile and cross-
examined by the Public Prosecutor, but nothing supporting the case of the prosecution was elicited from them during the course of cross- examination.
Crl. A No.100006/201741
35. PW-5-Venkappa Uddappa Reddaratti and PW-6- Kareppa Yallappa Redaratti have also stated that they have witnessed the Tempo Trax toppling while working in their fields but have denied seeing any of the accused getting out of the said vehicle. They were also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from them during the course of cross-examination.
36. PW-7-Adiveppa Ningappa Balalavadar stated that he does not know anything about the matter. He was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross-examination.
37. PW-8-Shrishail Ramappa Patil denied that he had overheard accused No.1 and the other accused Crl. A No.100006/2017 42 conspiring to murder Yallappa. He was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross-examination.
38. PW-9-Bhimashi Siddappa Dhavaleshwar is the grandson of deceased Lakshman. He has stated about his visiting the spot, he identified the toppled Tempo Trax and that when he came to the spot Yallappa was dead, Lakshman and Nabisab were shifted to a hospital. In the cross-examination, however, he denied any enmity between accused and Lakshman. He has denied the intervention of Nadagouda in the matter.
39. PW-10-Bheemappa Yallappa Ajjanakatti has deposed that while travelling in a lorry, he saw a crowd near Chapati's land and when he came to the Crl. A No.100006/2017 43 spot, Yallappa was dead, Nabisab and Lakshman had sustained injuries. He immediately called PW- 66-Yamanappa and informed him about the incident and the death. He has further stated that accused No.1 and Yallappa had enmity and accused No.1 had got Yallappa murdered. PW-10 withstood the test of cross-examination.
40. PW-11-Singadeepa Mudukapa Pujari has deposed that deceased Yallappa had informed him about going to Gokak to get the bike registered. He came to know about the incident at 12:30 p.m. and when he went to the spot he saw toppled Tempo Trax, Lakshman and Nabisab were injured and Yallappa was dead. He also saw the iron rods laying around. He has also stated that accused No.1 had got Yallappa murdered since there was political differences. He has withstood the test of cross- examination.
Crl. A No.100006/201744
41. PWs- 12, 13, 14, 16, 17 and 18 are stated to be witnesses who heard the conversation of the accused at various points of time conspiring to murder Yallappa. But, they have turned hostile and nothing could be elicited from them during the course of cross-examination to support the case of the prosecution.
42. PW-15 - Mahadev Rangappa Ouradi had deposed that on the day of the incident at about 9:30 a.m. he overheard the conversation of accused speaking about the whereabouts of Yallappa and were keeping track of Yallappa's movements. He has supported the case of the prosecution and he has withstood the test of cross-examination.
43. PW-19 - Shivanand Shankar Hottiholi denied that the Tempo Trax belonged to his mother and/or that it was sold to PW-22. He was also treated as hostile Crl. A No.100006/2017 45 and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross- examination.
44. PW-20 -Bheemsheppa Hanamantha Hadimani denied that he had accompanied the accused on 08.09.2010 when he purchased the Trax along with PW-22. He was also treated as hostile and cross- examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross- examination.
45. PW-21 -Siddappa Mahantappa Bisaguppi had deposed that he saw a bike which had fallen down in the middle of the road. He called an ambulance at the request of the crowd who had gathered there. He was also treated as hostile. During the course of Crl. A No.100006/2017 46 cross-examination, he has admitted that the bike was lying in the middle of the road, one person was dead and two had been injured. He denied having seen the Tempo Trax.
46. PW-22 denied having purchased the Tempo Trax.
He was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross-examination.
47. PW-23 -Shanur Murasab Mulla denied that he had accompanied Nabisab in the ambulance. He was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross-examination.
48. PW-24 - Rudrayya Channamallayya Hiremath denied having performed pooja of the Tempo Trax Crl. A No.100006/2017 47 at the house of accused No.13 at the time of purchase. He was also treated as hostile and cross- examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross- examination.
49. PW-25 -Basappa Yallappa Malamani denied that accused No.13 had come to his house with a limp and some injuries. He also denied taking him to the hospital. He was also treated as hostile and cross- examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross- examination.
50. PW-26 - Anand Babu denied that accused Nos.1 to 9 were staying at accused No.10's house. He was also treated as hostile and cross-examined by the Crl. A No.100006/2017 48 Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross-examination.
51. PW-27 - Adiveppa Shankarappa Gidageri was also a hostile witness and nothing was elicited during cross-examintion.
52. PW-28 - Yamanappa Tippanna Patil has deposed that there was a political enmity between the deceased and accused No.1. He has stated that he saw Yallappa, Lakshman and Nabisab on a bike at around 10:30 a.m. going towards Gokak. Later, when he came to the spot, he saw Yallappa dead and Laxman and Nabisab injured, iron rods laying near Yallappa and the bike. He has also stated that he accompanied Lakshman in the ambulance to the KLE Hospital at Belagavi after being shifted from Dr.Umrani's Hospital. He has supported the case of Crl. A No.100006/2017 49 the prosecution and has withstood the test of cross- examination.
53. PW-29 - Mahadevi Shankar Hottiholi denied that the Tempo Trax belonged to her. She was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from her during the course of cross-examination.
54. PW-30 - Appasiri Hanamanthappa Ajjanakatti denied that he had lent an amount of Rs.1 lakh to accused No.1. He was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross- examination.
55. PW-31 - Dundappa Gurappa Madiwalar denied that he had transported accused Nos.11, 12, 13 and 16 Crl. A No.100006/2017 50 after the incident. He was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross- examination.
56. PW-32 - Dundappa Satteppa Kuri denied having filled up diesel in the vehicle in which PW-31, accused Nos.11, 12, 13 and 16 were traveling. He was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross-examination.
57. PW-33 - Rashid Umarsab Pendal denied that accused No.1 paid the repair charges. He was also treated as hostile and cross-examined by the Public Prosecutor during the course of cross-examination he admitted that he had repaired the vehicle and Crl. A No.100006/2017 51 that accused No.1 had got the Tempo Trax for repairs thereby linking the Tempo Trax to accused No.1.
58. PW-34 - Veerappa Maleppa Kambar denied that he had prepared four iron rods and gave it to accused No.1. He was also treated as hostile and cross- examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross- examination.
59. PW- 35 - Eashwar Shattaji Magamode denied having sold two iron rods to the accused. He was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross-examination.
Crl. A No.100006/201752
60. PW - 36 - Hussainsab Jangansab Mulla is the brother of injured PW-2. Though he turned hostile, during the course of cross-examination, he admitted that accused No.1 is his neighbor and that PW- 36 was in regular contact with accused No.9. He further identified the mobile number of accused No.9.
61. PW-37 - Venkappa Gulappa Karagod denied knowing the mobile number of accused No.6. He was also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from him during the course of cross-examination.
62. PW-38 - Laxman Shankarappa Kanti denied having provided the SIM card in his grandmother's name to accused No.12. He was also treated as hostile and cross-examined by the Public Prosecutor but Crl. A No.100006/2017 53 nothing supporting the case of the prosecution was elicited from him during the course of cross- examination.
63. PW - 39 - Sanjiv Kumar, the Manager of Karnataka Bank had produced the bank statement of accused No.15 marked as Ex.P.-40 which disclosed the withdrawal of a sum of Rs.2,50,000/-
64. PW- 40 - Hanamantha Bheemappa Kuppad being the Secretary of the Dhavaleshwar village panchayat from 2006 to 2011 has deposed that accused No.15 was a member of the panchayat till the year 2005 and subsequent thereto, his wife became the elected member. Ex.P.41 to Ex.P.44 in this regard have been marked.
65. PW - 41 - Narashima Sheturam Joshi admits to be the owner of the Tempo Trax bearing registration No.KA-16/M-1271 which was used by his driver PW Crl. A No.100006/2017 54
- 31 but denies having knowledge about the purpose for which the said vehicle was used.
66. PW - 42 - Venkavva Ramappa Patil was also treated as hostile witness. However, in her cross- examination, she has admitted that she knows few of the accused and that she contested the elections a few years back against the wife of accused No.15. But, however, denied that she gave a statement before the police as per Ex.P.45.
67. PW - 43 - Paigambar Makadum Gubbar was treated as hostile and he denied the statement given to the police as per Ex.P.46. Similar is the case with PW - 44 - Lalsab Nadim Mulla.
68. PW - 45 - Shivaji Tukaram More who is working as Superintendent at the ARTO office has deposed that he had received a letter requesting the information on the owner of the Tempo Trax at M.O.9 Crl. A No.100006/2017 55 which relates to the Tempo Trax vehicle that had been transferred from PW-29 to PW-22 with effect from 21.09.2010.
69. PW - 46 - N.Ravish who is stated to be working at Indian Cane Power, Mudhol, has identified the signature in Ex.P.51 being a check for a sum of Rs.2,50,000/- which had been handed over to accused No.15, which has been drawn by accused No.15.
70. PW - 47 - Vithal Yallappa Dhavaleshwar is a witness of Yallappa's inquest who has supported the case of the prosecution.
71. PW - 48 - Jatteppa Chandrashekar Tadasaligi was treated as hostile. He has denied having given any statement before the police.
72. PW - 49 - Lakkappa Laxman Ouradi and PW - 50 -
Raju Hanumantha Uppar being the witnesses to the Crl. A No.100006/2017 56 inquest have also turned hostile. They have denied all suggestions during the course of cross- examination.
73. PW -51 - Shrimant Hanuman Neelappagol has denied that he was a panch witness for the clothes seizure panchanama of the deceased Yallappa.
74. PW - 52 - Siddarai Bheemappa Rabakavi and PW -
53 - Lakkappa Yallappa Ajjanakatti were Panch witness who has turned hostile, they have denied that they were present when the panchnama was conducted. They were also treated as hostile and cross-examined by the Public Prosecutor but nothing supporting the case of the prosecution was elicited from them during the course of cross- examination.
75. PW - 54 - Prakash Sigadeppa Pujeri was also a Panch witness who has turned hostile but however Crl. A No.100006/2017 57 during the course of cross-examination, he admitted to drawing of Ex.P.83 to Ex.P.86.
76. PW - 55 - Raghavendra Laxman Jambagi and PW -
56 - Mallappa Guruppa Adavi, other Panch witnesses have turned hostile.
77. PW - 57 - Basappa Pandappa Butannavar was another Panch witness who turned hostile and was cross-examined wherein he admitted the knowledge of and his signatures on the panchanamas.
78. PW - 58 - Ramappa Krishnappa Nadagatti, another Panch witness turned hostile and nothing was elicited from him during cross-examination.
79. PW - 59 -Imamsab Meersab Ansari deposed that he has taken a photograph upon the request of the police, which had been marked as Ex.P.94 to Ex.P.102.
Crl. A No.100006/201758
80. PW - 60 to PW - 65, the other 5 witnesses have been treated as hostile.
81. PW - 66 who is the brother of deceased Yallappa has deposed that there was enmity between accused No.1. and Yallappa. Accused No.1 was under the impression that his brother was murdered by deceased Yallappa. Accused No.13 is Mallappa's son-in-law. He has also stated that accused Nos.4 and 12 had land disputes with deceased Yallappa. PW-66 had seen Yallappa, Lakshman and PW-2 - Nabisab going to Nadagouda's house at 10 a.m. and thereafter going to Gokak for registration of the bike. PW - 66 and PW -1 went to the incident spot and on the way saw the Tempo Trax with iron rods in it. At the spot of incident he saw Yallappa's dead body, Lakshman and PW-2 injured. He described the kind of injuries on deceased and PW-2. He has identified the bike as M.O.6, iron rods lying next Crl. A No.100006/2017 59 to Yallappa as M.O.8 and M.O.14 and the and the Tempo Trax as M.O.9. PW - 66 has supported the case of the prosecution and nothing much was elicited from him during the course of cross- examination.
82. PW - 67 - Ismail Kutubuddin Danka has taken photographs at Ex.P.111 and Ex.P.112 at the request of the police as also at Gokak Government Hospital at around 3 p.m. In the cross-examination though he states that the photos do not show the date and time, he admitted that the Circle Police Inspector and Panch witnesses were present at that time.
83. PW - 68 - Dr.Santosh Ganiger conducted the postmortem of Yallappa on 23.09.2010. He has deposed that injury Nos.1 to 3 on Yallappa could have been caused if a person is assaulted with iron Crl. A No.100006/2017 60 rods such as M.Os.7, 8, 13, 14 and 33. PW - 68 has stood the test of cross-examination and supported the case of the prosecution.
84. PW - 69 - P.C.Pattara is an engineer in PWD, has prepared the sketch of the incident spot, has identified as Ex.P.122.
85. PW - 70 -Dr.M.H.Patil has deposed that accused No.13 was treated in B.M.Patil Medical College, Bijapur, from 24.09.2010 to 31.09.2010 as an out- patient.
86. PW - 71 -Dr.Mangala Maruthi Sanadi has conducted post mortem on deceased Lakshman and submitted a report stating that he had expired on account of hemorrhage and shock. She has stated that such injuries could occur on account of the assault from the iron rods marked in the matter. She further states that any assault by the iron rods could have Crl. A No.100006/2017 61 resulted in fatal injuries. PW - 71 has supported the case of the prosecution and nothing much was elicited during the course of cross-examination.
87. PW - 72 - Dr.Maheshkumar G.Umrani is the doctor who had examined Lakshman and PW-2 initially and had opined that Lakshman has to be taken to the KLE Hospital for further treatment. He has stated that Lakshman was alive at that time.
88. PW - 73 - P.M.Yadavannavar, a Village Accountant has given the certified copies of sketch of Sy.No.82/2 on which the house was located. He has supported the case of the prosecution and nothing is elicited from him during the course of cross- examination.
89. PW - 74 - S.N.Halacheri is the Head Constable who has taken the body of Yallappa for Post Mortem. He has supported the case of the prosecution but Crl. A No.100006/2017 62 nothing was elicited during the course of cross- examination.
90. PW - 75 - Santosh Ramachandra Bevinakatti being the scribe of the complaint has stated that the complaint was typed out on the basis of the statement made by PW-1 which was read over to PW-1 and her LTM affixed.
91. PW - 76 -D.B.Shinde is a technician working in the office of the Superintendent of Police, Belagavi. He has obtained and provided the call records and details of 14 members which were marked as Ex.P.146 to Ex.P.159.
92. PW - 77 - Keshav Yallappa Kadleppagol, is the Assistant Sub Inspector of Kulgod Police Station who had arrested accused No.13 and presented him before the Magistrate on 11.11.2010. Crl. A No.100006/2017 63
93. PW - 78 - Basanagouda Eranagouda Patil carried the 18 sealed properties to Regional Forensic Science Laboratory.
94. PW - 79 - L.P.Hampiholi, delivered the blood stained soil, which was collected from the spot of incident, to the FSL, Bengaluru.
95. PW - 80 - Ramesh Krishnagouda Somanagoudar had handed over the FIR and the report to the Magistrate on 23.09.2010.
96. PW - 81 - Balappa Shrimantha Channikuppi was tasked with finding the accused No.16 who was not found and declared an absconder.
97. PW - 82 - Muttanna Saravagola had collected the iron rods and sent it to the medical opinion of the FSL.
Crl. A No.100006/201764
98. PW-83 S.R.Kattimani, Circle Inspector of Police, Gokak, has deposed that he took up further investigation, inquest of the body of Lakshman was conducted in the presence of witnesses as per Ex.P,56 and was sent to the Government Hospital at Gokak for post-mortem. The post-mortem report is as per Ex. P127. PW-83 went to the hospital where PW-2 had been hospitalized, enquired with the Medical Officer about the fitness of PW-2 and on being informed that a statement could be recorded, he recorded the statement of PW-2.
99. PW-83 seized the clothes found on the dead body of Yallappa by conducting a mahazar as per Ex.P.67, clothes found on the dead body of Lakshman under a mahazar at Ex.P.68. Thereafter, the bodies of the deceased were handed over to their respective relatives.
Crl. A No.100006/201765
100. PW-83 recorded the statement of witnesses and various other persons. As per his instructions, repeated follow up of accused yielded in arrest of all the accused, except accused No.16 who was absconding. PW-83 recorded confession statement of all the arrested accused, seized their mobile phones after conducting a mahazar, he collected the CDRs of the mobile phones from the service provider as per Ex.P.146 to 149, the post- mortem report of Yallappa at Ex.P.114, Lakshman at Ex.P.127 and wound certificate of PW-2 at Ex P 138 and 140. PW-83 came to know that accused Nos.11, 13, 14 and 16 had also sustained injuries when the Tempo Trax toppled and that they had taken treatment at BLDC Hospital in Bijapur. Hence, he visited the said hospital and collected the wound certificates of the said accused from the said hospital and handed over the file to PW-82 for Crl. A No.100006/2017 66 further investigation. PW-83 collected all the documents from the experts including FSL and thereafter handed over the investigation to PW-85.
101. PW - 85 - Kareppa Shivappa Hatti had collected the report from the FSL and RFSL and submitted them to the Court, he has deposed that he completed the investigation and submitted a charge-sheet on 22.12.2010 in the Court of JMFC, Gokak, against the accused for the offences punishable under Sections 143, 147, 148, 302, 307, 120B and 212 read with Section 149 of the IPC.
102. PW - 86 - Smt.Sahinaz Fatima is the Scientific Officer of the FSL who has deposed that the blood found on the iron rods is that of a human.
103. The trial Court has acquitted all other accused since the prosecution was unable to prove conspiracy, which has not been challenged. What we are Crl. A No.100006/2017 67 concerned in this appeal is only as regards the conviction of accused Nos.1, 11, 13 and 14.
104. Thus, from the perusal of the evidence recorded, it is seen that PW-1 and PW-66 have clearly and categorically stated about the enmity between the deceased Yallappa and Accused No.1 and what they found at the spot of crime.
105. PW-2 Nabisab who is the injured eye-witness to the incident has deposed about the enmity between Yallappa and accused No.1 and also enmity with the other accused. He has also categorically stated about how accused Nos.11, 13, 14 and 16 got down from the Tempo Trax which was driven by accused No.13. Accused No.13 instructed the other accused to assault and kill Yallappa and thereafter to kill Lakshman and PW-2. He has identified accused Nos.11, 13, 14 and 16. His evidence being as an Crl. A No.100006/2017 68 injured eye-witness evidence is the best evidence on record, as has been taken into consideration by the trial Court at the time of convicting the accused. The enmity is only attributed with Yallappa and there is no personal enmity between PW-2 and accused No.1 or other accused. The accused who had committed the overt acts has been identified by PW-2 who being an eye witness has deposed of their acts and this testimony has not been shaken during the course of cross- examination. In that he has stood the test of cross-examination and nothing was elicited from him by the accused.
106. PWs-1, 2,10,28 and 66 have deposed as regards the enmity between Yallappa and accused No.1 on the one hand and enmity with accused No.4, 12, and accused No.15 on the other hand.
Crl. A No.100006/201769
107. As aforesaid, the deposition of PW-2- Nabisab is clear and categorical as regards the involvement of accused Nos.1, 11, 13 and 14, accused No.16 having absconded. The said Tempo Trax M.O.9 was also found at the spot. Neither PW -29 nor her son PW - 19 were able to explain the presence of Tempo Trax there. However, PW -2 has deposed about Accused 11, 13, 14 and 16 having travelled in the said Tempo Trax.
108. The Station House Dairy and certain other documents were summoned at the instance of the accused. However, they had only marked the Station House Diary dated 23.09.2010 as per Ex.P1.
109. The trial Court has considered the FIR and charge-
sheets produced by the police in as much as FIR in Cr.No.143/2008 registered by the Kulgod Police Station and under Section 107 of the Cr.P.C. against Crl. A No.100006/2017 70 Bheemappa Siddappa Dhavaleshwar and 12 others. The said complaint having been filed by deceased Yallappa alleging that there was a boundary dispute between him and the accused.
110. FIR in Cr.No.144/2008 registered with the Kulgod Police Station under Section 107 of Cr.P.C against deceased Yellappa and 8 others by Siddappa Bheemappa Dhavaleshwar wherein it is alleged that Siddappa Bheemappa Dhavaleshwar and deceased Yallappa had fought with each other and filed cases and counter cases. Cr.No.153/2009 was registered against Jadappa Siddappa Davaleshwar and two others for murdering Mallappa Laxmappa Adinavar on 24.09.2009.
111. FIR in Cr.No.126/2008 was registered by the Kulgod Police Station against Bheemappa Siddappa Crl. A No.100006/2017 71 Davaleshwar and Siddappa Bheemappa Davaleshwar and 6 others wherein they are said to have fought with Rukmavva, wife of deceased Yallappa and assaulted her with deadly weapons and when Lakshman sought to rescue her, he also sustained injuries. A complaint came to be registered for offences punishable under Sections 143, 147, 148, 323, 324, 504 and 506 read with Section 149 of IPC. Accused Nos.4 to 12 herein were also accused in that case. After completion of investigation, charge-sheet had been filed and Yallappa and Lakshman were shown as witnesses to the said cases.
112. FIR in Cr.No.127/2008 registered by Kulgod Police Station against deceased Yallappa, deceased Lakshman and 7 others at the instance of Siddappa Dhavaleshwar for the offences punishable under Sections 143, 147, 148, 323, 324, 504 and 506 Crl. A No.100006/2017 72 read with Section 149 of IPC. As regards the very same event FIR in Cr.No.126/2008 had been registered.
113. This being the complaints and the counter complaints, the evidence of PW-1 including cross- examination as also the unmarked exhibits in terms of FIRs in various crime numbers having been produced, the evidence of PW-1 is believable, she having stood the test of cross-examination and the unsuccessful attempts by the accused to confuse her. In that there were suggestions made to PW- 1 that Mallappa had been murdered two to three years prior to the incident. However, PW-1 has categorically stated that it was one year prior to the incident which could be seen in Cr.No.153/2009 which states that Mallappa was murdered on 24.09.2009. They also sought to confuse her by making suggestions that there were Crl. A No.100006/2017 73 no disputes between deceased Yallappa and accused No.1, which was denied by her. She has stuck by her complaint and the evidence that her deceased husband and accused No.1 were supporting opposing parties and there was rivalry between them during election times. Suggestion was also put across as if to contend that the lands of the deceased Yallappa and that of accused Nos.4 and 12 were not next to each other which has also been denied by PW-1. Suggestion was also put across to her that complaint was prepared at the instance of one Nadagouda who was a local politician in whose group Yallappa was, and that Nadagouda had enmity with another group headed by one Mr.Desai in whose group accused No.1 was and as such, it was suggested the complaint was malafide at the instance of Nadagouda and there are no offences Crl. A No.100006/2017 74 made out against the accused which has also been made out.
114. As regards the complaint given by PW-1 having been typed and not written. PW-75 who has typed out the complaint in the computer has categorically stated that the said typing has been made as per the information supplied by PW-1. Hence, we are of the considered opinion that the typing of the complaint by using of a computer does not take away the veracity of the complaint as such.
115. PW-2 Nabisab is the material eye-witness to the incident. He has spoken about the purchase of his new motorcycle on 22.09.2010, he wanted to register the motorcycle in RTO office at Gokak and requested Yallappa and Lakshman to accompany him for the same and the presence of accused No.3 with these aspects had been discussed. He has Crl. A No.100006/2017 75 stated about how at 10 a.m. he went to the house of Yallappa where Lakshman was also present. Thereafter, all the 3 went to the house of Nadagouda. Lakshman and Yallappa had gone inside and had some discussion with Nadagouda. Thereafter, all the 3 returned to Yallappa's house, had lunch and thereafter left to go to Gokak on the new motorcycle which was ridden by Yallappa. Lakshman was sitting in the middle and PW-2 - Nabisab was sitting in the last. He has also deposed of how a Tempo Trax came at a high speed and though Yallappa tried to avoid the Tempo Trax, it dashed against them which resulted in certain injuries being caused to them, the driver of the Tempo Trax being accused No.13 came out of Tempo Trax followed by accused Nos.11, 12 and 16 holding iron rods, accused Nos. 11 and 13 pointed to Yallappa and asked accused No.14 and 16 to kill Crl. A No.100006/2017 76 him and that they assaulted Yallappa with iron rods. PW-2 has also deposed that after killing Yallappa, they attacked Lakshman and PW-2 and thinking that all the three were dead they left the spot. He has stated that thereafter the villagers came to the spot, lifted Lakshman and himself into an ambulance and took him to the hospital of Dr.Umrani. He later on came to know of Yallappa having died at the spot and Lakshman having died on the way to KLE Hospital. He has spoken about the fracture of his right leg, injuries on his head etc., PW-2 has identified accused No.11, 13 and 14. He has also referred to and spoken of the dispute between Yallappa and accused No.1 as regards the elections and certain other matters including the boundary disputes. Though, in the cross- examination several suggestions were put across, he has denied all of them and stood the test of Crl. A No.100006/2017 77 cross- examination. One of the suggestions which had been put across is that the complaint was filed at the instance of Nadagouda and he was deposing at the instance of Nadagouda which has been denied. One of the aspects which gives credence to the deposition of PW-2 is that he has only deposed about the enmity of the accused with deceased Yallappa. He has not stated about any enmity of the accused with himself. Further more, he has only deposed insofar as accused Nos.1, 11, 13, 14 and 16 and not against the other accused i.e., to say that he has only deposed against the persons who are stated to have carried out overt acts in the crime.
116. PW-3 being another eye-witness has deposed that at 10 a.m. when he was cultivating his land with his wife, he saw a Tempo Trax coming from Kulgod side and colliding with the motorcycle coming from Crl. A No.100006/2017 78 Mannapur side ridden by Yallappa. However, since he did not say anything further he was treated as hostile witness and cross-examined. Similar is the deposition of PW-4, wife of PW-3. We are in agreement with the conclusion drawn by the trial Court that PWs- 3 and 4 have deposed falsely inasmuch as though they have contended that they saw the accident, they had not gone forward to help Lakshman who was the uncle of PW-3 and had identified him before the accident had occurred. It cannot be believed that PW-3 would not have gone to assist his uncle who was involved in a serious accident like the one which he has stated to have occurred resulting in his death. Though PWs- 3 and 4 have denied having given the statements at Ex.P.3 to 5, in view of the above discussion, we are of the considered opinion that they had indeed given their statement to PW - 83 who had recorded Crl. A No.100006/2017 79 the statement which is more believable than the denial made by PWs- 3 and 4. There being several disputes between the parties which has resulted in violence, we are of the considered opinion that probably PWs- 3 and 4 wanted to avoid any further violent crime being committed against them and therefore, they have turned hostile.
117. This has been the allegation in so far as accused Nos.1, 11, 13, 14 and 16 as regards their overt acts of committing the murder of Yallappa and Lakshman and attempting to murder PW-2 - Nabisab, the allegation made against each of the accused as regards the conspiracy. The conspiracy is attributed to the very same reasons as regards the enmity regarding boundary dispute etc., as alleged against accused Nos.1, 11, 13, 14 and 16. The witnesses who have been examined to establish this conspiracy are PWs-5, 6, 7, 8 and 9 who have Crl. A No.100006/2017 80 turned hostile. PW-10 has supported the case of the prosecution. PWs- 19 and 29 owners of the tempo tax have turned hostile.PW - 22 though has turned hostile, he has made an application for release of the Tempo Trax in his favour. In his deposition, PW
- 22 has stated that the Tempo Trax had met with an accident on 22.09.2010 in the evening and the vehicle was abandoned there. PW - 22 had not made any complaint to the jurisdictional police as regards the accident nor was any claim lodged for compensation. The application for release of the vehicle was made only after the charge sheet was filed without arraying PW-22 as an accused which improbableises the story of PW - 22.
118. PW - 21 who is said to have come to the spot of the accident and seen the injured has not supported the case of the prosecution entirely and hence he was treated as hostile and cross examined. During the Crl. A No.100006/2017 81 course of cross-examination, he has admitted that he had telephoned for the ambulance on 23.09.2010 at 11.50 a.m. He was going towards Mahalingapur on Kulgod Mannapur road when he saw a motorcycle fallen, a dead body near it and two other persons having sustained grievous injuries. This deposition of PW - 21 clearly and categorically establishes the time of the accident to be around 11.50 a.m. and not 10:00 a.m as suggested during the course of cross- examination by the accused.
119. PW - 28 has supported the case of the prosecution.
He has deposed as regards the enmity between the accused and deceased Yallappa. He is neither an eyewitness nor he has spoken about the incident except to identify the spot of the incident.
120. From the above, the following facts are established: Crl. A No.100006/2017 82
120.1. That there was enmity between accused No.1 and deceased Yallappa which arose on account of the elections to the Mannapur Gram Panchayat since the candidate of accused No.1 was defeated by the work carried out by Yallappa and his group. This being evidenced by the testimony of PWs - 1, 2 and 66 as also by un-exhibited documents namely the FIR in Cr.Nos.126/2008 and 127/2008.
120.2. PW - 42 - Venkavva Ramappa Patil has admitted that she knows few of the accused and that she contested the elections a few years back against the wife of accused No.15.
and the deceased Yallappa and his group had supported PW 42 and had defeated the candidate supported by Accused No.1 who was his relative.
Crl. A No.100006/201783 120.3. The boundary dispute has been established by the deposition of PWs -1, 2, 66 and by the unmarked documents in Cr.Nos.143/2008 and 144/2008.
120.4. The probable suspicion on the part of accused No.1 thinking that the deceased Yallappa was behind the murder of his brother Mallappa Laxman Adinavar is also established by the testimony of PWs - 1, 2 and 66 and the unexhibited documents in Cr.No.153/2009 which was registered against Jadappa Siddappa Dhavaleshwar and 2 others for murdering Mallappa on 24.09.2009 which was within one year of the murder of Yallappa. The enmity between Yallappa and accused Nos.1, 4 and 12 is clear from those FIRs filed. Crl. A No.100006/2017 84 120.5. PW - 83 being the Investigating Officer has seized the weapons and incriminating articles on the basis of the confessions of the accused. He has stated about recording the confession of the accused, seizure of weapons, blood- stained clothes, drawing the mahazar of different places where the Tempo Trax was found etc., 120.6. The seizure made by PW - 83 of various items including bloodstained clothes, chappals, iron rod, confession made in the presence of PWs - 52 and 53. The witnesses who have turned hostile, in the cross-examination by the Public Prosecutor have admitted the seizure of clothes and the iron rods which has not been displaced in the cross- examination conducted by the accused i.e., the seizure of the blood-
stained clothes and the iron rods is Crl. A No.100006/2017 85 established. Though several witnesses have turned hostile, the main witnesses have deposed in favour of the prosecution and have withstood the test of cross-examination. 120.7. Yallappa and Lakshman having expired on account of the assault made on them, PW - 2 - Nabisab being the eyewitness has categorically stated that accused No.13 was driving the Tempo Trax accompanied by accused Nos.11 and 12 who came out of their Tempo Trax and on a specific instruction given by accused No.13, all of them assaulted Yallappa with an intention to kill him and consequently, to leave no evidence assaulted Lakshman and PW -2 Nabisab with an intention to kill them. The best evidence is that of the eyewitness more so an injured eye witness who has suffered the crime. PW -2 having been grievously Crl. A No.100006/2017 86 injured and the injuries caused to him were threatening his life, there is no reason for us to doubt the testimony of PW - 2 more so as he having suffered such an assault would not impute the responsibility on a person other than those who had committed the assault. He has also deposed as regards the enmity between accused No.1 and deceased Yallappa which had resulted in the said assault and murder.
120.8. The post mortem report as per Ex.P.114 conducted by PW - 68 is also clear and categorical, in that the cause of death is stated to be haemorrhage which has been caused by fracture of the skull bone which in turn has been caused by usage of the iron rods seized at M.Os.7, 8, 13, 14 and 33. The doctor conducting the post-mortem has also opined Crl. A No.100006/2017 87 that the injuries which have been caused to the deceased Yallappa might have been caused by the said iron rods at M.Os.7, 8, 13, 14 and 33.
120.9. The post mortem report at Ex.P.127 issued by PW - 71 as regards the deceased Lakshman has also opined that the cause of death is hemorrhagic shock which has been caused on account of the various external injuries which have in turn been caused by usage of the iron rods as per the information of PW - 71. Medical opinions have stated that the use of the iron rods could have caused the injuries which ultimately resulted in the death of Lakshman, the case of the prosecution is also corroborated by the expert evidence of PW - 68 and PW - 71 which have not been Crl. A No.100006/2017 88 displaced during the course of the cross- examination by the accused.
121. In view of the above, the guilt of accused Nos.1, 11, 13 and 14 has been proved beyond reasonable doubt. All the circumstantial evidence adduced support the evidence of the injured eye witness - PW -2, the test and requirements as laid down by the Apex Court in BASHEERA BEGAM's case is satisfied.
122. On an examination of the evidence, it is clear that there is no contradiction as such which goes to the root of the matter affecting the guilt of accused Nos.1, 11, 13 and 14. The sole eye witness who is the injured eye-witness - PW -2 Nabisab has categorically stated events as they are said to have occurred, he has stood the test of cross- examination. There is nothing on record to imply Crl. A No.100006/2017 89 that his testimony is unreliable. If not anything, his testimony is most reliable in the present case.
123. The contention of Shri Gundawade, learned counsel that investigation had been commenced even before the complaint was lodged is completely misconceived. The police had come to the spot on receiving information of an accident as also the death of certain persons. It is only subsequently that PW -1 lodged the complaint on which basis the crime was registered and investigation commenced. The mere presence of the police at the scene of crime prior to lodging of the complaint would not amount to commencement of investigation as held by the Hon'ble Apex Court in ANIMIREDDY VENTAKA RAMANA's case.
124. The prosecution has also established the motive for the occurrence of the crime which has stood the test Crl. A No.100006/2017 90 of cross-examination of all the witnesses. The said motive is also borne out by the unexhibited documents as aforestated. Thus, in view of the above, applying the rule of the Hon'ble Apex Court in BALESHWAR MAHTO's case, PW-2 being the injured eye witness due credence to his testimony has to be afforded as held by the Hon'ble Apex court. The injury to the witness is an inbuilt guarantee both of his presence at the scene as also that he would not falsely implicate any third party for his injuries.
125. Thus, from the above discussion, it is clear that the learned Sessions Judge after discussing the oral and documentary evidence placed on record and having considered the same in detail has come to the correct conclusion that the charges levelled against the accused are proved beyond reasonable doubt. Our analysis and re-appreciation of the evidence Crl. A No.100006/2017 91 also indicate and supports the said finding. Hence, we pass the following:
ORDER The appeal as filed is dismissed.
(Sd/-) JUDGE (Sd/-) JUDGE Jm/-