Karnataka High Court
Basavaraj S/O Rudrappa Kulumi vs State Of Karnataka on 22 January, 2020
Bench: K.N.Phaneendra, Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF JANUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
CRL.A.NO.100166/2015
BETWEEN :
1. BASAVARAJ S/O RUDRAPPA KULUMI
AGE : 40 YEARS, OCC: AGRICULTURE,
R/O MADLUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
2. CHANDRAPPA S/O RUDRAPPA KULUMI,
AGE : 30 YEARS, OCC: AGRICULTURE,
R/O MADLUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
3. AJJAPPA S/O MALLAPPA KULUMI
AGE : 55 YEARS, OCC: AGRICULTURE,
R/O MADLUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
4. MANJAPPA S/O AJJAPPA KULUMI
AGE : 29 YEARS, OCC: AGRICULTURE,
R/O MADLUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
5. IRAPPA S/O AJJAPPA KULUMI,
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AGE : 31 YEARS, OCC: AGRICULTURE,
R/O MADLUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
6. MALLAPPA S/O KARIYAPPA MALLAPUR,
AGE : 45 YEARS, OCC: AGRICULTURE,
R/O MADLUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
7. SHANTAPPA S/O KARIYAPPA MALLAPUR,
AGE : 51 YEARS, OCC: AGRICULTURE,
R/O MADLUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
8. RUDRAPPA S/O BASAPPA KULUMI,
AGE : 70 YEARS, OCC: AGRICULTURE,
R/O MADLUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
9. GANESHAPPA S/O KARIYAPPA MALLAPUR,
AGE : 57 YEARS, OCC: AGRICULTURE,
R/O MADLUR VILLAGE, TQ: HIREKERUR,
DIST: HAVERI.
...APPELLANTS
(BY SRI SANJAY CHANAL, ADVOCATE &
SMT.MANJULA N.TEJASWI, ADVOCATE)
AND :
STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD,
THROUGH HAUNSBHAVI POLICE,
TQ: HIREKERUR.
...RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.)
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THIS APPEAL IS FILED UNDER SECTION 374 (2)
OF CODE OF CRIMINAL PROCEDURE, 1973 PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 28.08.2015 AND ORDER OF SENTENCE DATED
29.08.2015 PASSED IN S.C.NO.03/2010 BY II ADDL.
DISTRICT AND SESSIONS JUDGE AT HAVERI
(SITTING AT RANEBENNUR) AND TO ACQUIT THE
ACCUSED/APPELLANTS FOR THE ALLEGED OFFENCES
UNDER SECTIONS 143, 148, 452, 504, 506, 323 AND
302 READ WITH SECTION 149 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, K.N.PHANEENDRA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is preferred by the appellants who were arraigned as Accused Nos.1 to 9 in S.C.No.3/2010 challenging the judgment of conviction and sentence passed by the II Additional District and Sessions Judge, Haveri, sitting at Ranebennur, vide judgment dated 28.08.2015.
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2. The Trial Court has convicted the accused/appellants for the various offences and sentenced them to undergo simple imprisonment for a period of one month with a fine of Rs.500/- each with default sentence for the offence under Section 143 read with Section 149 of IPC, to undergo simple imprisonment for a period of three months with a fine of Rs.1,000/- each for the offence under Section 148 read with Section 149 of IPC, to undergo simple imprisonment for a period of one year with a fine of Rs.1,000/- each for the offence punishable under Section 452 read with Section 149 of IPC and also sentenced them to undergo simple imprisonment for a period of three months with a fine of Rs.500/- each for the offence under Section 504 read with Section 149 of IPC, and also sentenced them to undergo simple imprisonment for one month with a fine of Rs.1,000/- each for the offence under Section 506 :5: read with Section 149 of IPC, to undergo simple imprisonment for a period of one month with a fine of Rs.500/- each for the offence under Section 323 read with Section 149 of IPC. Further accused were also sentenced to undergo life imprisonment for the offence under Section 302 read with Section 149 of IPC with fine of Rs.5,000/- each with default sentence.
3. Before adverting to the evidence on record, it is just and necessary for us to have brief factual matrix of the case.
4. The case of the prosecution as per the entire charge-sheet papers are that the complainant/Veerabhadrappa has been residing in Madlur in Hirekerur Taluk, Haveri District along with his family members. His father Veerabhadrappa has got a brother by name Rudrappa. They were separated and residing :6: separately. There has been lot of dispute with reference to the properties with the uncle of the complainant by name Rudrappa and there are civil and criminal cases lodged between the parties in various courts. In this background, it is alleged that on 03.09.2009 in the morning at about 10.00 a.m., when the complainant, Veerabhadrappa had been to his garden land, at that time, some of the accused persons by name Chandrappa, Basappa, Mallappa and Shantappa were indulged in cutting a tree. In that context, the complainant told them not to cut the tree till the partition takes place with regard to the said property.
5. In the above said backdrop, it is further alleged that on 04.09.2009 in the morning at about 10.00 a.m. accused persons along with other three persons went to the house of the complainant/Veerabhadrappa and started abusing him with filthy language and also threatening him :7: with dire consequences of killing him. By doing so, they entered the house of the complainant. The accused persons were holding clubs, sickles and stones in their hands and assaulted the complainant, his mother Gouramma on various parts of their body and thereafter, they all went to a cattle shed situated near their residential house in order to assault the deceased-Umesh, the bother of the complainant. It is further case of the prosecution that all the accused persons have mercilessly assaulted the deceased, Umesh, who was there in the cattle shed and caused severe injuries, who succumbed to the injuries on the spot itself. At that time, the village people had gathered and saw the incident. On the above said allegations, the police have registered a case in Crime No.94/2009 for the offences punishable under Sections 147, 148, 323, 324, 326, 452, 504, 506 and 302 r/w 149 of IPC, as per Ex.P1 and :8: dispatched the FIR to the jurisdictional Court. After thorough investigation, the police have laid charge-sheet against the accused Nos.1 to 9 before the Trial Court. As they found no materials so far as other accused persons, they were not charge-sheeted. The Trial Court also secured the presence of the accused persons, tried them before the Court for the above said offences, after framing of charges but the accused persons have denied the charges leveled against them and claimed to be tried.
6. In order to bring home the guilt of the accused persons, the prosecution has examined as many as 28 witnesses as P.W.1 to P.W.28 and got marked documents at Ex.P.1 to 47 and material objects as per M.Os.1 to 11. The accused were also examined under Section 313 of the Code of Criminal Procedure, and their statements have been recorded. Accused were also called upon to :9: enter their defence evidence, but they did not chose to do so. However, along with their 313 statement, they have produced several documents for the consideration of the Trial Court. In fact, accused No.1 has also filed his written statement along with the documents. After appreciation of oral and documentary evidence on record, the Trial Court arrived at a conclusion that the accused/appellants are the persons, who have committed offences alleged against them. Hence, it recorded the judgment of conviction and passed the sentence as noted supra.
7. The learned counsel for the appellants strenuously contends before the Court that except P.W.1 and 26, all other witnesses have turned totally hostile to the case of the prosecution. Therefore, the only evidence available to the case is the evidence of P.W.1 and P.W.26, who are the close relatives of the deceased as P.W.1 : 10 : (complainant) is the brother and P.W.26 is the mother of the deceased. Therefore, their evidence has to be very carefully scrutinized by the Court. The learned counsel also contended that so far as recovery of some of the incriminating articles at the instance of the accused i.e. two sickles, five clubs and three stones were sent to FSL, but the FSL report is in the negative as the bloodstain alleged to have been there on the articles, which were discriminating and there was no occasion of using of those weapons by the accused. It is also submitted by the learned counsel for the appellants that the evidence of P.W.1, if it is carefully scrutinized, though he has supported the case of the prosecution in the examination-in- chief, but he turned totally volte-face during the course of cross-examination. Whatever he has stated in the cross-examination exonerating all the accused persons, the same has not been subjected : 11 : to re-examination or cross-examination by the public prosecutor. Therefore, the said witness, who supported the case of the prosecution in examination-in-chief and supported the case of the accused during the course of cross-examination his evidence cannot be treated as trustworthy for acceptance. She also contends before the Court that the evidence of P.W.26 who is no other than the mother is full of contradictions, omissions and improvements. Her evidence is not at all corroborated by any other materials on record. Her statement is omnibus in nature and in fact, she has shifted the scene of offence. Therefore, there was absolutely no contents of she witnessing any of the accused assaulting the deceased. Therefore, except the above said materials, no other evidence is available. Hence, pleaded for acquittal of the accused on the ground that the Trial Court has not properly appreciated the oral and documentary : 12 : evidence on record, but fully persuaded morally on the evidence of P.W.26 observing that P.W.26 is the mother of the deceased, who has last seen the accused and she has falsely implicated the accused persons other than the real culprits. Therefore, the observation of the Trial Court is not based on legal evidence, but it is only a moral conviction. Hence, the same is liable to be set-aside and accused are entitled for the benefit of doubts and they are entitled to be acquitted.
8. Per contra, the learned Additional SPP has argued before the Court that the evidence of P.W.26 though there are some contradictions, omissions and improvements and it is omnibus in nature, but still her evidence cannot be easily brushed aside. Her evidence and examination-in- chief of P.W.1, if it is taken together, they corroborate each other. Therefore, the Trial Court has rightly convicted and sentenced the accused : 13 : persons. Though recovery is not supported by the pancha witnesses, but it is established that those weapons were stained with blood. Therefore, there is connection between the said weapons and the incident as P.W.1 has categorically stated about using of those weapons by the accused persons. Though it is argued in the above said manner, he also brought to the notice of this Court that, during the course of cross-examination of P.W.1 there is a suggestion by the public prosecutor that the parties have compromised the matter and because of that particular reason, the witnesses have turned hostile to the prosecution. Therefore in the above said circumstances, he pleaded for dismissal of the appeal. Having heard the arguments and in the wake of the above said circumstances, the Court has to examine the evidence on record in order to find out whether the judgment of the Trial Court is proper and correct : 14 : in order to ascertain who are all the witnesses examined and whether the circumstances apart from the eyewitnesses version at least have been established by the prosecution to connect the link between one circumstance and another circumstance in order to complete the chain so as to implicate the accused persons. In this background, we would like to have a cursory look at the evidence of the prosecution witnesses.
9. P.W.1/Veerabhadrappa is the complainant. As we have stated that he has initially supported the case of the prosecution but gave a divergent view in the cross-examination. We would like to discuss the evidence of this witness in detail little later.
10. P.W.2 is one Mr.Shekhappa, who is pancha witness to Ex.P6 and P7. Under Ex.P.6, the clothes of P.W.1 were seized at M.O.5 and under : 15 : Ex.P.7, the clothes of the deceased were seized at M.O.6. However, the P.W.1 himself has not identified M.O.5 as belonged to him nor has he identified M.O.6 as the clothes belonged to the deceased. Nor it is confronted to P.W.26 for identification. Therefore, this witness will become a formal witness as there is no connection with regard to the seizure and to the crime. P.W.3/Shivappa is a pancha witness to the Mahazar/Ex.P.8 under which M.O.7 and 8 sickles were seized. Three clubs alleged to have been recovered at the instance of accused persons as M.O.5, but he has not supported the case of the prosecution to any extent. Likewise, P.W.4/Shivappa also is a pancha witness. He has also not supported the case of the prosecution. As we have narrated even accepting that those material objects were recovered at the instance of some of the accused persons, but there is no : 16 : further connectivity with those weapons to say that those weapons were used for commission of the offence as the FSL report marked at Ex.P.30, does not even mention that the bloodstains which were there on those material objects was that of human-being. Therefore, it is very difficult to draw any inference at this stage so far as this recovery is concerned. Added to that, this witness also not supported the case of the prosecution. Even during the course of cross-examination, nothing worth has been elicited except suggesting that the said recovery was made at the instance of the accused.
11. PW5-Parameshappa, PW6-Manjappa, PW7-Mukappa Guddappa Donner, PW8-Basavaraj, PW10-Siddappa, PW11-Mallappa, PW12-Ningappa, PW13-Basavanthappa, PW14-Thippanna, PW15- Nagarajappa, PW16-Gadigeppa, PW17-Kalavva, PW19-Kavita, PW20-Mukappa Shivappa Sudember and PW26-Gouramma are all cited as eyewitnesses : 17 : to the incident including PW1-Veerabhadrappa. It is worth to mention here that out of the above said eyewitnesses, PW1 is the brother of the deceased, PW8 is also the brother of the deceased who was an Advocate, PW19-Kavita is the wife of PW1 and PW26 is the mother of the deceased. It is also worth to mention here PW8-Basavaraj, brother and PW19-Kavita, wife of PW1 are also so close relative to the deceased, have totally turned hostile to the prosecution. Therefore, there is absolutely no evidence available to the prosecution from these eyewitnesses who are neighbours and relatives of the deceased.
12. PW9-Mahadevappa is another panch to Ex.P18-inquest and also Ex.P19-spot mahazar. There is no dispute with regard to the death of the deceased-Umesh sustaining injuries and the police conducting the inquest proceedings. Even accepting Ex.P19 and Ex.P18, it will not isolate in : 18 : any manner to prove the case of the prosecution. Therefore, these documents have to be taken note of while considering the evidence of PW1 and PW26.
13. PW21-Dr.Mallikarjun S.Patil in fact has examined PW1 and PW26 who are also the injured persons in the case and issued the Wound Certificate-Ex.P33 pertaining to PW26 and Ex.P34- Wound Certificate of PW1. PW22-Dr.G.S.Nataraj Sadishivayya conducted post mortem examination on the dead body of the deceased as per Ex.P35. PW23-Ramesh was the Head Constable working at that time who registered a complaint as per Ex.P1 and dispatched an FIR to the jurisdictional Court as per Ex.P36. PW24-Basavaraj Channabasappa Kalloammanavar has drawn rough sketch of the house and spot as per Ex.P37 and 38. We also discuss the drawing up of the sketch and topography of the situation while considering the : 19 : evidence of PW21 and PW26. PW25-Nagappa is also another panch to Ex.P6 and P7 along with PW2. He has also not fully supported the case of the prosecution. PW27-Basanagouda was working as Assistant Executive Engineer who has issued the spot sketch as per Ex.P40 and a letter Ex.P39. PW28-Shekharappa Circle Inspector of Police, who investigated the matter and submitted the charge sheet.
14. On careful perusal and evaluation of the entire evidence on record as rightly contended by the learned counsel for the appellants has also forfeited by the learned Additional State Public Prosecutor, the only evidence available to the prosecution are the evidence of PW1 and PW26. Therefore, the Court has to examine the evidence of these two witnesses with utmost care and consider whether the said evidence is sufficient to : 20 : conclusively hold that the prosecution has proved the case beyond all reasonable doubt.
15. Before adverting to the above said evidence of these two witnesses which has been relied upon by the Trial Court, we have to ascertain on what basis the Sessions Court has convicted the accused persons. It is worth to note here from Paragraph 14 to 22, the learned Sessions Judge has discussed about the evidence of these witnesses with other materials on record. Mainly on the ground that PW1 though turned hostile in the course of cross-examination, but he has stuck on to his evidence with reference to Ex.P1 filed by him before the police on which basis the police have investigated the matter and laid the charge sheet. Therefore, they are the last persons seen the real culprits. Being the brother of the deceased, he has supported the case of the prosecution, but in the course of cross- : 21 : examination he turned volte-face to the prosecution though he turned hostile, but he has corroborated portion in the examination-in-chief to be relied upon by the Court. Hence, the Court has drawn an inference on the basis of that material. Secondly, the evidence of PW26-Gowramma has also examined by the Trial Court and it is stated that the said witness is no other than the mother, she has been living with the deceased and she has categorically stated about the assault on the deceased and also assault on her and she sustaining some injuries. Therefore, the Trial Court has considered that this witness is an injured eyewitness and PW1 is also one of the injured witnesses. Therefore, their evidence though consisting of some contradictions and omissions, but the core of the prosecution has not been disturbed in their cross-examination. Therefore, the Trial Court has believed them to convict the : 22 : accused persons. Whether the above said observation of the Trial Court is based on any legal evidence has to be looked into by the Court. The moral convictions should not be supported or affirmed by the appellate Courts if the observations made by the Trial Courts only on the basis of morality without there being any sufficient legal evidence. It is also a fundamental basic principle of criminal jurisprudence that the appellate Courts have to test the adequacy of evidence placed before the Court in order to draw an inference that the case has been proved beyond reasonable doubt. There may be some evidence before the Court, but whether the same is adequate and whether it falls within the category of legal evidence is the aspect that is to be looked into by the appellate Courts while deciding an issue before the Court. In this background now we : 23 : would like to discuss the evidence of these two witnesses PW1 and PW26.
16. PW1 has stated in his examination-in- chief as stated by him in Ex.P1, the complaint, which we have already referred to. It is stated by him that, all the accused persons, about thirteen persons, came to his house and accused Nos.1 to 9 were also present amongst them and accused Nos.1, 2 and 3 have assaulted him and accused No.2 has thrown him out of his house and accused No.1 assaulted on his left hand and also on other parts of the body. Accused No.8-Rudrappa assaulted him on his back and therefore, he fell down. Accused No.3 also tried to throw a stone on the head, but by that time, the father of PW1 came and rescued the complainant and thereafter the accused by name Manjappa Kulumi, accused No.4 assaulted on the hand of PW26 and she also suffered injuries. It is further stated that the : 24 : above said accused persons holding weapons in their hands like sickles, clubs and stones went to cattle shed, which is situated nearby the residential house, and PW2 and PW26 also went behind them and saw the accused persons inside the said cattle shed caught hold the deceased Umesh and accused Nos.1, 2, 3 and 9 have assaulted indiscriminately with the help of sickles on all parts of the body of the deceased, due to which, he succumbed to the injuries and died on the spot itself. Therefore, it is very clear that causing death of the deceased by the accused persons was actually taken place inside the cattle shed and PW1 was the witness to the same and thereafter he lodged a complaint as per Ex.P1.
17. This witness further stated in his examination-in-chief on 26.12.2014, about seventeen days after his examination-in-chief, perhaps, much water was flown in between. : 25 : Therefore, he has turned hostile during the course of his further examination-in-chief. In the further examination-in-chief, he was confronted with stones, clubs, sickles etc., and suggested that those weapons were used for the purpose of assaulting the deceased, this witness and PW26. The cloths of the deceased and PW1 were also confronted to this witness, but he denied the same and he never identified those articles. Very peculiarly enough to this extent, the prosecutor has treated the witness as hostile and in the course of cross-examination, it is suggested that the accused and the witnesses in the case have already compromised the matter. Therefore, he is deposing falsehood before the Court. Even in the course of cross-examination by the learned Public Prosecutor, he has not identified any of the articles said to have been seized and recovered in this particular case. The witness evidence has : 26 : been subjected to the cross-examination by the defence counsel. In the course of cross- examination, he not only turned totally hostile of the prosecution stating that he has not given any complaint as per Ex.P1, but he does not know who has drafted the said complaint and he has not dictated or given information to anybody to write such complaint. He has also stated that because of the ill-will between his family members and the accused persons, he has given false evidence before the Court. The witness not only deviated from examination-in-chief but he has accepted the some alternative story with reference to the death of the deceased suggested by the defence counsel. It was suggested that the deceased was a rowdy element and he has indebted with various persons and some four persons on two motorcycles on the day of the incident came to the house of this witness PW1 in order to demand with the deceased : 27 : the debt given to him. At that time, the deceased was in the cattle shed and these four persons went to the cattle shed and there was a galata in that cattle shed. In that context, the witness had been to cattle shed and saw that the said persons have assaulted the deceased due to which the deceased Umesh died. Thereafter, those four persons went away on motorcycles. Thereafter, police came to the spot and this witness has given false complaint to the police in order to wreck vengeance against the accused persons. These are all the suggestions made to this witness has been categorically admitted by him by totally giving a death blow to the complaint lodged by him and also the evidence given by him in the examination-in-chief.
18. Whenever a Court has to appreciate the evidence of a related witness or the partisan witnesses, inimically disposed of witnesses in such circumstances absolutely a proof is required for : 28 : the purpose of drawing an inference against the accused persons. It is categorically admitted and it is also the case of the prosecution that, there were long standing enmity between the accused and the prosecution witnesses i.e. the complainant and his family members. It is admitted by him in the complaint as well as in the evidence that there were cases pending between the complainant's family and the family of the accused persons. Therefore, there may be chances of each party seeking opportunity to take revenge against each other. In that context, there might be some incident had happened that the accused persons might have committed offences alleged against them by PW1 or in the alternative it may also be possible due to some other incident, PW1 and his family members wanted to falsely implicate the accused persons. Therefore, when two views are possible on the materials available on record in : 29 : such circumstances, when particularly the witnesses are close relatives of the deceased and there is partisanity in existence between the parties in such an eventuality the Court should normally prefer to accept the view, which is favourable to the accused persons. In this background, now let us examine the evidence of PW26 whether the evidence of this witness was trustworthy or credible for acceptance to draw the inference as drawn by the Trial Court.
19. PW26 has stated in her evidence that about five years ago at about 9.00 to 9.30 in the morning all the accused persons came to her house and assaulted PW1 and this witness and also the deceased Umesh. Accused Nos.1 to 3 have assaulted PW1 and they have also assaulted her and she sustained injuries to her little finger. She also stated that, the accused persons have assaulted PW1 on his waist. She categorically and : 30 : candidly stated that the deceased Umesh was also there at the scene of offence and he was proceeding from the place of incident. At that time, all the accused persons chased him to a distance of 25 feet and assaulted him indiscriminately with the help of deadly weapons like stones, sickle and clubs and cut the legs and other parts of the body. Because of that reason, he died on the spot. She also admitted that, the village people who are all present have actually seen the said incident i.e. PW12 to 18. She also admitted the existence of the civil and criminal disputes between the parties. She has also taken treatment in the hospital. She has identified the weapons and the cloths of the deceased and PW1. She identified the photographs of the dead body of her son.
20. Before adverting to the cross-
examination of this witness, it is seen that there is : 31 : lot of contradictions in the evidence of PW1 and this witness. According to PW1, the death of the deceased occurred inside the cattle shed, whether those four strange persons went inside the cattle shed and assaulted the deceased or even accepting for a moment, the accused persons went inside the cattle shed and assaulted the deceased then in such an eventuality this witness never stated that she went inside the cattle shed and witnessed the incident. Therefore, whether the incident actually happened i.e. assault on the deceased by some strangers or the accused at the place where the dead body was found or whether it was inside the cattle shed is not clarified during the course of examination-in-chief of this witness. If at all the incident had happened inside the cattle shed when this witness has never stated that she followed the accused persons inside the cattle shed and saw the assault and in such an eventuality it cannot be : 32 : said that she was an eyewitness to the incident. Therefore, there is some improvement with regard to the place where the accused persons said to have assaulted the deceased. Further added to that in the examination-in-chief, PW1 has very meticulously stated about the name of each and every accused along with his overt-acts and the weapon held by each and every accused persons. But this witness has never spoken about overt-act of any of the accused persons and actually who assaulted her at least has not been stated though PW1 has stated that one Manjappa has assaulted this witness. Therefore, it also creates some doubt with regard to veracity of the evidence of this witness when the Court has confronted with the sole evidence of such related and partisan witness. In this background, the cross-examination of this witness has to be looked into. In the course of cross-examination, the whole cross-examination is : 33 : concentrated with regard to the suggestions suggesting that this witness has been deposing falsehood against the accused persons. But in the course of cross-examination, she has not specifically denied with regard to the conduct of her son Umesh. It is suggested that he has taken loans from three or four persons and he was not in the habit of returning the loan amounts, for that the witnesses has very vaguely answered that she has given a very free hand to the deceased. In this context, it is suggested that on that particular day of the incident when the victim was inside the cattle shed, some four persons who have given loan to the deceased joined to the cattle shed and assaulted him and ran away from the spot. This suggestion, of course, has been emphatically denied by this witness. However, the same has been accepted by PW1. Therefore, when PW1 and this witness are so closely related and partisan : 34 : witnesses so far as the accused persons are concerned, in such an eventuality which story narrated by the witnesses have to be believed is the question. As we have narrated that the story which is favourable to the accused has to be preferred always.
21. Apart from the above said divergent evidence adduced by the prosecution from the mouth of PW1 and as well as PW26, the topography of the property as per the said sketch, which is marked at Ex.P37 and 38. Ex.P37 shows the existence of the house of PW1 and the house of one Mahadevappa and house of one of the accused by name Rudrappa. In this particular sketch, the existence of cattle shed is not at all shown in order to ascertain what is the distance between the house as well as the said cattle shed. Ex.P38 shows that the existence of cattle shed and nearby the cattle shed, the house of one of the : 35 : accused or the house of PW1 have not been shown. Again in order to ascertain the real distance, the dead body was shown to be on the road situated in front of the cattle shed belonging to the complainant. Therefore, it is evident from these two documents as well as the documents Ex.P2 to P5, they also disclosed the dead body was not inside the cattle shed, but it was on the road and lot of people gathered there were witnessing the dead body. In this background, the spot mahazar drawn which is marked at Ex.P19 discloses that, the distance between the cattle shed and as well as the house of the complainant was about 50 meters i.e. about more than 150 feet. Therefore, it is not a small distance, but according to PW26, the incident happened at about 25 feet from the house. But according to this particular document and the evidence of PW1, the incident happened inside the cattle shed which was situated at a : 36 : distance of 50 feet from the house. Therefore, this discrepancy is also not fully clarified during the course of evidence of PW26 or from any other materials on record. If at all PW26 has sustained injury near her house and she has seen the incident at a distance of 25 feet from her house, it creates a serious doubt whether actually she had been to cattle shed to witness any of the incident as stated by PW1 in his examination-in-chief even accepting the evidence of PW1 that the incident happened inside the cattle shed. Therefore, considering all the important aspects, it is very difficult to draw an inference that the injured PW26 is an eyewitness to the incident. Though she has sustained some injuries, which is also supported by the evidence of Doctor and also the Wound Certificate as already noted above, but she never stated so as to point out who was the person actually assaulted her. Therefore, in the above : 37 : said facts and circumstances, we are of the opinion that it cannot be said that the prosecution has proved the case beyond all reasonable doubt. It is also worth to refer in this context a decision of the Apex Court reported in 1981 Criminal Law Journal, 484, between Ram Ashrit and others v. State of Bihar, wherein the Apex Court has observed in the following manner.
"When all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. In the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses.": 38 :
22. The above said ruling is aptly applicable to the present facts and circumstances of the case. Because even according to the prosecution case itself there were lots of cases pending against the complainant group and the accused group. The partisanity is apparent on the face of the record. PW1 and PW26 are close relative to the deceased and not only they are related but they are partisan witnesses. Further added to that, it is established during course of evidence of Investigating Officer that the deceased was a rowdy element. Further, PW1 has filed his written statement and produced certain documents to show the existence of dispute between the parties and as well as in one of the cases, deceased Umesh was convicted along with other prosecution witnesses. Further, it is admitted by PW1 as well PW26 that the accused was a free man wandering around the village and he has indebted certain amounts from some : 39 : persons and particularly PW1 stated that some other four strange persons came and assaulted the deceased. When such circumstances are available merely because PW26 is the mother of the deceased and she has stuck on to her 161 statement, that itself is not sufficient to draw an inference that her evidence is so credible and trustworthy for acceptance. Therefore, we are of the opinion that the Trial Court has committed serious wrong in accepting the evidence of PW26 without any corroboration with any other proof or any other circumstance to bring home the guilt of the accused persons.
23. Under the above said facts and circumstances, we are of the opinion that the view taken by the Trial Court may also be possible view, but another view as narrated by us is also possible and plausible view on the basis of the evidence on record. Therefore, we prefer to substitute our view : 40 : on the principle that the view which is favourable to the accused has to be preferred. With these observations, we proceed to pass the following:
ORDER The appeal is allowed. Consequently, the judgment of conviction and sentence passed by the II Additional District and Sessions Judge, Haveri, sitting at Ranebennur, dated 28 t h day of August, 2015 in S.C.No.3/2010 for the offences punishable under Sections 143, 148, 452, 504, 506, 323, 302 r/w 149 of IPC is hereby set aside. The appellants/accused are hereby acquitted of the charges levelled against them for the above said offences.The appellants-accused Nos.1 to 5, 7 and 9
who are said to be in jail shall be released forthwith, if they are not required in any other case.
As accused Nos.6 and 8 are already on bail, their bail bonds and the surety bonds executed by their sureties are hereby cancelled.: 41 :
Fine amount, if any, already deposited by the accused, before the Trial Court, shall be refunded on proper identification and acknowledgment.
The rest of the order passed by the Trial Court with reference to the properties are concerned is not disturbed.
Registry is directed to communicate the operative portion of the judgment to the concerned jail authority for release of accused Nos.1 to 5, 7 and 9 forthwith, if they are not required in any other case.
In view of disposal of the appeal, pending applications, if any does not survive for consideration and accordingly disposed of.
SD/-
JUDGE SD/-
JUDGE EM/YAN/CLK