Karnataka High Court
Mr Jithendra @ Jithu vs State Of Karnataka on 9 February, 2018
Bench: Ravi Malimath, H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9th DAY OF FEBRUARY, 2018
PRESENT
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE DR.JUSTICE H. B. PRABHAKARA SASTRY
CRIMINAL APPEAL No.936 OF 2012
C/w. CRIMINAL APPEAL No.1147 OF 2012
In Crl.A.936 of 2012
BETWEEN:
Jithendra @ Jithu
S/o. Shekar,
Aged about 20 years,
R/at No.168, Behind
Muneshwara Temple,
NGR Layout, Roopena Agrahara,
Bengaluru-560 068. ...Appellant
(By Sri. Hashmath Pasha, Advocate)
AND:
State of Karnataka,
By Madiwala Police Station,
Bengaluru City-560 058.
(Represented by Learned
State Public Prosecutor) ...Respondent
(By Sri. P.M. Nawaz, SPP-I)
Crl.A.No.936/2012
C/w. Crl.A.No.1147/2012
-2-
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment and order of
conviction dated 07.07.2012 and sentence dated
09.07.2012 passed by the P.O., FTC-XVII, Bangalore City in
S.C.No.181 of 2011 - convicting the appellant/accused for
the offence punishable under Section 302 r/w Section 149
of IPC. The appellant/accused is sentenced to undergo life
imprisonment and to pay fine of Rs.2,500/- and in default
of fine, he shall undergo S.I. for a period of 6 months for
the offence punishable under Section 302 r/w Section 149
of IPC.
In Crl.A.1147 of 2012
BETWEEN:
Sathish Babu @ Ayyappa
(real name is Harish V.)
S/o. Venkatamuni,
Aged about 21 years,
R/at 7th Cross, Opp:Mosque,
Kaverinagar,
Kodichikkanahalli Road,
Hongasandra,
Bangalore. ..Appellant
(By Sri. Hashmath Pasha, Advocate)
AND
State of Karnataka
By Madiwala Police Station,
Bengaluru City - 560 068.
(represented by Learned
State Public Prosecutor) ..Respondent
(By Sri. P.M. Nawaz, SPP-I)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment and order of
Crl.A.No.936/2012
C/w. Crl.A.No.1147/2012
-3-
conviction dated 07.07.2012 and sentence dated
09.07.2012 passed by the P.O., FTC-XVII, Bangalore City in
S.C.No.181 of 2011 - convicting the appellant/accused
No.1 for the offence punishable under Section 302 r/w
Section 149 of IPC. The appellant/accused No.1 is
sentenced to undergo life imprisonment and to pay fine of
Rs.2,500/- and in default of fine, he shall undergo S.I. for
a period of 6 months for the offence punishable under
Section 302 r/w Section 149 of IPC.
These Criminal Appeals having been Heard and
Reserved for Judgment on 16.01.2018 and pronounced this
day the Dr. H.B.PRABHAKARA SASTRY, J., delivered the
following:-
JUDGMENT
Being aggrieved by the judgment of conviction and order on sentence passed by the Presiding Officer, Fast Track Court-XVII, Bengaluru, (hence forth for brevity referred to as the 'Sessions Court') in S.C. No.181 of 2011, dated 07.07.2012, convicting them for an offence punishable under Section 302 read with Section 149 of Indian Penal Code and sentencing them to undergo life imprisonment and to pay a fine of Rs.2,500/- each and in default of payment of fine, to undergo simple imprisonment for a period of six months, the accused Nos.1 and 2/appellants have filed these appeals. Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012 -4-
2. In their memorandum of appeals, the appellants have taken the contention that accused Nos.4, 5 and 7 have been acquitted in the matter and that there is no finding that accused Nos.1 and 2 had formed an unlawful assembly with other accused or any other person. Therefore, the conviction of accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code, is illegal. The case of the prosecution is based on the part testimony of PWs-1, 4 and 10. However, their evidence lost any consistency, as such, they are not trustworthy. The narration of the incident as given by the prosecution witnesses does not tally with each other. No Test Identification Parade was conducted to fix the identity of the appellants. With these, the appellants have prayed for allowing the appeals, by setting aside the judgment of conviction and order on sentence passed against them.
3. The respondent is being represented by State Public Prosecutor-I. Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012 -5-
4. Lower Court records were called for and the same are placed before us.
5. Since both these appeals have arisen out of a single judgment passed by the Sessions Court, both these appeals are taken as connected appeals and heard together.
6. Perused the material placed before us, including the memorandum of appeals, impugned judgment and the lower Court records.
7. The summary of the case of the prosecution is that on 26.9.2010, in the evening hours, in an orchestra arranged in connection with Ganesha festival, accused No.1-Ayyappa was doing some galata with some other persons. At that juncture, deceased-Dinesh intervened and pacified their quarrel and also gave a slap on accused No.1 and sent him back. Due to this developing ill-will and rivalry, the accused No.1, joined by other accused, with an intention to take revenge against the deceased Dinesh, on 27.9.2010, at about 7.45 p.m., went in a group to the place Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012 -6- at 6th Main, 7th Cross, Hongasandra, Balaji Layout, where the deceased Dinesh, joined by his friends, was removing the shed (pandal) and picked up quarrel with him and further assaulted and stabbed the deceased Dinesh with deadly weapon like knife on his chest and other parts of the body and thereby caused his death intentionally. Charge sheet was filed against the accused for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. The Sessions Court framed the charges against accused Nos.1, 2, 4, 5 and 7 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code. Accused No.3 was stated to be dead and case against accused Nos.6, 8 and 9 was split up. The Sessions Court by its judgment of conviction and order on sentence dated 9.7.2012, convicted accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code and sentenced them to undergo life imprisonment and also to pay a fine of Rs.2,500/- each, and in default of payment of fine, to undergo simple imprisonment for a period of six months. Accused Nos.4, 5 and 7 were acquitted for the alleged Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012 -7- offences. It is against the said judgment of conviction and order on sentence, accused Nos.1 and 2 have preferred these appeals.
8. The appellants have not disputed that the death of deceased Dinesh was a homicidal death and that he died on 27.9.2010 at 7.45 p.m. due to the injuries inflicted upon him. The said aspect can be further confirmed by the evidence of the Medical Officer i.e., PW-11, coupled with evidence of PWs-1, 4 and 10. Besides the evidence of these witnesses, the Inquest mahazar at Ex.P-3 also shows that the panchas too have opined that the death of the deceased was a homicidal.
9. PW-11 - Dr.Dilip Kumar, in his evidence has stated that he has conducted the autopsy over the dead body of Dinesh at the request of complainant police on 28.9.2010. He noticed the following injuries on the deceased :
1. Incised wound meag. 5 cms x 0.5 cms x subcutaneous deep obliquely placed present over the outer aspect of upper Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012 -8- part of left arm situated, 5 cms below the tip of shoulder.
2. Stab wound 1.5 cms x 0.5 cms x underneath tissue deep, obliquely placed over centre of chest situated 16 cms below the stemal notch, Margins are clean cut, Upper outer end is blunt, inner lower end is sharp. The wound shows tearing from inner lower end for a length of 5 cms towards left side of chest. On further dissection it is observed that weapon after cutting skin, subcutaneous tissue underlying muscle and slit the underlying bone, stemum at its middle. The wound is directed backward, downward and outward towards right, for a depth of 6 cms, blood effused around.
3. Stab wound 2 cms x 0.5 cms x underneath tissue deep vertically placed present on the left side of chest at mid clavicular line situated 18 cms below the mid clavicle.
Margins are clean cut. Lower end is sharp. Upper end is blunt. On further dissection, it is observed that weapon after cutting the skin, subcutaneous tissue underlying muscles, has pierced between 6th and 7th Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012 -9- ribs, pericardium and cut the left ventricle on its surface for whole thickness. The wound is directed upwards, backward and inward for a depth of 10 cms, Blood effused around.
4. Stab wound 1.5 cms x 0.5 cms x muscle deep, Vertically placed, present over the front and lower abdomen on left side.
Situated 16 cms away from umbilicus 6 cms below the costal margin. Margins are clean cut, upper end is sharp, lower end is blunt. The wound is directed upward backward inward for a depth of 6 cms. Blood effused around.
10. The said witness has also identified the Post Mortem Report said to have been issued by him at Ex.P-4. He has also opined that the death of the deceased was due to shock and hemorrhage as a result of stab injuries sustained on the chest. He has further stated that death of the deceased could be caused by the use of weapon like MO.1. He has withstood the test of cross-examination. Thus, the evidence of the doctor who conducted the autopsy and his report at Ex.P-4 and the Inquest Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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panchanama at Ex.P-3, coupled with the evidence of PWs-1, 4 and 10, who have stated that the deceased was assaulted and stabbed to death, clearly establishea that the death of Dinesh on the date 27.9.2010 was homicidal.
11. The next question would be as to whether the prosecution has proved beyond reasonable doubt that it is the present appellants/accused Nos.1 and 2 being the members of an unlawful assembly have committed the said murder of deceased-Dinesh on 27.9.2010? In that regard, the entire case of the prosecution is mainly based upon the evidence of PWs-1, 4 and 10, who are stated to be the eye witnesses to the incident. However, in order to prove the other circumstances pertaining to the case, the prosecution in total has examined 17 witnesses.
12. PW-1 Shravana Kumar, who is undisputedly the brother of the deceased-Dinesh and also the complainant in this case, has in his evidence stated that on the date 26.9.2010, there was an orchestra on the occasion of Ganesha festival. At that point of time, at about 9.30 p.m., Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
- 11 -
accused No.1 - Ayyappa was found in that place, creating some disturbances (making galata with others). The same was objected to by deceased-Dinesh, the brother of PW-1, who pacified the galata and also gave a slap on accused No.1. On the next day evening i.e., on 27.9.2010, while himself (PW-1) along with his deceased brother Dinesh and their friends i.e., PW-4 Naveen Kumar and PW-10 Manjunath, were removing the shed (pandal) erected for the installation of Ganesh idol, the accused No.1, along with his associates, came to the said place at 7.45 p.m. and picked up a quarrel with deceased by questioning as to why he had bet him on the previous evening. Accused No.1 assaulted the deceased with hands and also instigated the other members of the assembly who were with him, not to spare the deceased alive. At that time, accused No.3 assaulted his brother with hands on his face. Accused No.2 and one Prabha and Jopadi attacked his brother. Accused No.2 stabbed his brother on the chest with knife, Prabha stabbed his brother on the stomach with knife, Jopadi stabbed his brother with knife on hands and all the assailants assaulted his brother with their legs also. After Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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assaulting him and on crying by the injured, all the accused ran away from the spot. He (PW-1) could not rescue his brother. Then he took his injured brother to Kavya Nursing Home, where the doctor advised him to take the injured to a bigger hospital. As such, he took the injured to Sagar Apollo Hospital, but his brother succumbed to the injuries on the way to the hospital. Thereafter, he went to the police station and lodged a complaint as per Ex.P-1. On the very night at 11.30 p.m., the police visited the place of offence and drew the spot mahazar (scene of offence panchanama) as per Ex.P-2. But, the respondent police could not seize any material objects in the place of incident.
13. It is also the evidence of PW-1 that on 28.9.2010, the police called him to the police station, where he identified accused Nos.1 to 5. On 8.10.2010, he was once again called to the police station where he identified accused No.7. The witness also stated that accused No.2 stabbed his brother with knife, accused No.1 bet on his cheek, accused No.3 assaulted his brother with his fist and Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
- 13 -
other accused also bet his brother, but he could not observe the activities of other accused. The witness also identified the knife at MO-1, stating that the same was in the hands of accused No.2. He was subjected to a detailed cross-examination from the accused side.
14. PW-2 Venkatesh, the father of the deceased though has stated that his son Dinesh was murdered, but he has made it clear that he is only a hearsay witness and does not know who has caused the murder of his son. Same was the evidence with respect of PW-3 - Bhagyamma, the mother of the deceased.
15. PW-4 Naresh Kumar, was projected as an independent eye witness by the prosecution. In his evidence he has stated that on 27.9.2010, at 7.45 p.m. along with the deceased, while he was engaged in removing the shed (pandal) erected for the purpose of Ganesh festival, PWs-1 and 10 were also with him. At that time, accused No.1 joined by three to four persons, came there and picked up quarrel with the deceased. Two of Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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them held the deceased and accused No.3 assaulted the deceased. Himself, joined by PWs-1 and 10, tried to rescue the deceased, but they could not. Further, one Prabha stabbed the deceased and other three to four persons assaulted the deceased with their legs. When the deceased started crying, all the accused ran away. Therefore, the deceased was taken to Kavya Nursing Home and then to Sagar Apollo Hospital, where the deceased was declared as dead on the way to the hospital. The witness also stated that in view of the previous night's incident at the orchestra, the accused No.1, joined by other accused, have committed the murder of deceased Dinesh. This witness also stated that he has identified accused Nos.1 to 5 and 7 in the police station. He stated that accused No.1 had an intention to finish the deceased. Accused No.1 and one Prabha stabbed the deceased with knife, accused No.7 and one Tirupati were holding the deceased at that time. Other accused were also beating the deceased. He has identified the knife at MO-1 stating that the same was in the hands of accused No.2. He was also subjected to a detailed cross- examination from the accused side.
Crl.A.No.936/2012C/w. Crl.A.No.1147/2012
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16. PW-5 Kumar, the maternal uncle of the deceased though has stated that the deceased was murdered, but admittedly he is a hearsay witness and says that he learnt about the incident.
17. PW-6 Prashant, has stated about the alleged incident dated 26.9.2010. He has stated that on the said day, in the evening, he too was one among the audience in the orchestra, wherein accused No.1 Ayyappa was doing some galata (disturbance/nuisance) and as such, deceased Dinesh slapped him. Though this witness has not stated that he has seen the next day's incident of alleged murder of Dinesh, but, stated that after hearing about the incident, he went to Sagar Apollo Hospital and saw the dead body of the deceased. Thus, his evidence would help in understanding the incident said to have occurred in the evening of 26.9.2010, where the deceased is said to have given a slap to accused No.1, but it does not help in knowing the details of the incident said to have occurred on 27.9.2010.
Crl.A.No.936/2012C/w. Crl.A.No.1147/2012
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18. PW-7 Babu, in his evidence though has stated about he visiting the Kavya Nursing Home based on an information given to him by CW-4 and thereafter, he visiting Fortis Hospital and coming to know about the death of the deceased, but his evidence is silent about the alleged incident dated 27.9.2010, where the deceased was said to have hacked to death.
19. PW-8 A.B.Krishna, has spoken about drawing of scene of offence panchanama (spot mahazar) in his presence as per Ex.P-2.
20. PW-9 Krishna Murthy, has stated about the police drawing inquest panchanama as per Ex.P-3 on the dead body of deceased Dinesh in his presence.
21. PW-10 Manjunath, was projected as another eye witness to the incident by the prosecution. He has stated in his evidence to the effect that on 27.9.2010, at about 7.45 p.m., while he was removing the shed erected for Ganesha idol, along with deceased, PW-1 and PW-4, the accused No.1, along with seven to eight persons, came there and Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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picked up quarrel with the deceased and bet him with hands. Accused No.3 and accused No.7 held the deceased and accused No.1 instigated others to finish the deceased, for which, one Prabha stabbed deceased with knife, accused Nos.4 and 5 assaulted the deceased with their legs. Thereafter, all the accused ran away from the spot. He has identified accused Nos.1, 2, 4, 5 and 7 in the police station as the assailants. He was subjected to a thorough and searching cross-examination from the accused side.
22. PW-12 Syed Mushafa, Police Constable, has spoken to the effect that in this case, himself, joined by other Constables, at the instruction of his superiors, apprehended accused No.1 and accused Nos.2 to 5 and 7.
23. PW-13 is the Police Constable who brought the clothes of the deceased from the Victoria Hospital after conducting autopsy on the body of the deceased and producing it before the Investigating Officer.
24. PW-14 Raghu, has stated that recovery of the knife at MO-1 was made at the instance of accused No.2 in Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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his presence and that a panchanama as per Ex.P-7 was drawn in his presence. The witness has identified both the panchanama, as well as the weapon at MO-1. Denial suggestions made to him in his cross-examination was not admitted as true by him.
25. PW-15 Niyothi Mani, a Woman Police Constable, has stated that it was she who has carried the seized four articles to the Forensic Science Laboratory as per the order of her superiors and submitted the same at the laboratory.
26. PW-16 E.I.Sirajuddin, the Police Sub-Inspector of the complainant police station has stated that on 27.9.2010, at 10.15 p.m. CW-1 appeared before him and lodged a complaint as per Ex.P-1, which he registered in there station Crime No.1118/2010 and submitted FIR to the Court as per Ex.P-8.
PW-17 Purushotham M.L., the Police Inspector has stated about the investigation said to have been done by him in this matter and filing the charge sheet against the accused after completion of the investigation. He has given Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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the details of his investigation, which includes visiting the scene of offence and drawing of scene of offence panchanama, recording of the statement of witnesses, drawing inquest panchanama and arresting the accused and recording voluntary statements said to have been given by them and also recovery of incriminating articles at the instance of the accused and based upon their alleged voluntary statement in the presence of panchas. He has also stated about sending the seized articles to Forensic Science Laboratory through his staff and getting the opinion of the doctor who conducted the autopsy and also getting the opinion from him about the relationship of the injuries found on the deceased with the weapon said to have been seized by him during the course of investigation. He was subjected to a detailed cross-examination, however, he adhered to his original version given in his examination-in- chief.
27. From the above details of the evidences of the witnesses, what can be seen is that it is only PWs-1, 4 and 10 who are very important and material witnesses in Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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this case. All the three of them have claimed themselves to be the eye witnesses to the alleged incident.
28. A reading of the evidence of PW-1, who is also the complainant, go to show that he has seen accused No.1 of scolding the deceased and also assaulting him once. However, he has not alleged any overt act against accused No.1 in his complaint lodged by him. In his complaint, he has only stated that accused No.1 shouted that Dinesh (deceased) should not be spared. The allegations of assaulting the deceased were all made against other accused by the witnesses. Therefore, the evidence of PW-1 to the effect that accused No.1 assaulted is an improvement.
Secondly, PW-1 in his complaint at the first instance has stated that one Vasu @ Wale Vasu and one more person stabbed the deceased near his chest and abdomen with knives they were possessing. No where in his complaint he has identified as to who that `other person' was. On the other hand, he has stated in his evidence that it was accused No.2 and one Prabha stabbed the deceased Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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with the knives. No where he has stated as to how come he came to know about the name of accused No.2. Even the Investigating Officer also has not stated as to how PW-1 came to know the name of that `other person' as Jitendra (accused No.2). As such, in the absence of any evidence or material to show that the person shown as another person who stabbed the deceased was accused No.2 - Jitendra and that identity was subsequently came to the knowledge of PW-1, it cannot be taken that PW-1 knew accused No.2. Thus, initially accusing one of the assailant without name and subsequently replacing that person with accused No.2 in his evidence amounts to an improvement made by PW-1. Interestingly, the very same witness who has stated in his complaint that among the two persons who are said to have stabbed his brother Dinesh, apart from unnamed person, the other was specifically named as Vasu @ Wale Vasu, who is accused No.3. However, in his evidence as PW-1, he introduced accused Prabha and accused Jopady as two other persons along with accused No.2 who stabbed the deceased with knives. Therefore, the evidence of PW-1 on the very important aspect of the alleged overt acts of the Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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accused clearly proves to be an improvement made by him in his deposition. As such, it is not safe to rely upon such improvement.
29. With respect to the evidence of PW.4-Naresh Kumar is concerned, as already observed, he also claims to be one of the eye witnesses to the alleged incident. The said witness in his examination-in-chief has stated about the presence of accused No.1 at the time of commission of offence and another assailant with the name Prabha. He has not named other accused, including accused No.2/appellant in Criminal Appeal No.936/2012. Even though he has stated in his examination-in-chief that accused No.1/appellant in Criminal Appeal No.1147/2012, stabbed with a knife, he has no where whispered about the alleged overt act of accused No.2 in his evidence. Interestingly, though he claims to be an eye witness to the alleged incident, in his examination-in-chief, he has made a statement that he came to know that on the previous day of the incident, in an orchestra, deceased had given a slap on accused No.1 Ayyappa and in vengeance to the same, Ayyappa and others have killed Dinesh. That is, had he Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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really been an eye witness to the incident, he would not have used the word "came to know". Further, he himself has stated that he has seen accused Jitendra, Ayyappa, Vasu, Ishwarappa, Madesh in the police station. Even according to the Investigating Officer, accused were shown to PW-4 in the police station, that means, no Test Identification Parade was conducted by the Investigating Officer. When PWs-1 and 4 have not named accused No.2 in their statement, nor they have disclosed about the identify of the said accused, by which, the accused could have been easily identified, in such a situation, it was required for the Investigating Officer to get the accused identified by these witnesses in a Test Identification Parade. On the contrary, the Investigating Officer has directly shown the accused in this case to the witnesses and said to have got identified by them.
The very same witness PW-4 in his cross-
examination, has clearly stated that he came to know about the name of accused No.1-Ayyappa on the next date of the incident and that he did not know the names of three accused who had accompanied Ayyappa. This leads to an Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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inference that according to this witness there were only four accused at the time of incident i.e., Ayyappa plus three others. If that were to be the case, Section 149 of Indian Penal Code won't find place in the case. Further the very same PW-4 in his cross-examination has already stated that he has seen accused No.2 in the police station and prior to that, he had not seen him anywhere. This also leads to an inference that among the accused i.e., Ayyappa plus three others, accused No.2 was not there and the total number of the accused also were four in number. In this way, the evidence of PW-4 also does not inspire confidence to believe.
30. The third important alleged eye witness is PW-10. As observed above, in his examination-in-chief, he has stated that he was an eye witness to the incident and has seen the occurrence of the incident. He has given the details of the incident also. However, a reading of his evidence goes to show firstly that no where in his evidence, he has alleged any overt act against accused No.2. Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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Secondly, in his cross-examination, he has categorically stated that he has seen accused No.1-Ayyappa for the first time in the police station. He has also stated that at the time of incident, in that place, there were about 30 persons. He does not know whether accused No.1 was also there among those 30 persons. Thus, his clear statement that he has seen accused No.1-Ayyappa for the first time in the police station and his second statement that he does not know whether accused No.1 was also there among the people who were there in the place of the incident, not only introduces a serious doubt about the presence of accused No.1 at the place of incident, but also about the trustworthiness of the evidence of PW-10. The said witness, who in his examination-in-chief, has categorically alleged over act against accused No.1 showing that accused No.1 was present in the incident, has made a quite contradictory statement in his cross-examination by making the statement as observed above.
Thirdly, this witness who has given the details of the incident, including the overt acts, in his cross-examination admitted a suggestion as true to the effect that he cannot Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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say as to who scolded whom and also who assaulted whom. This further introduces a doubt in his evidence.
Fourthly, the very same witness who claims to be an eye witness to the incident and speaks about the alleged act of stabbing the deceased in his presence, has, in his cross-examination, admitted a suggestion as true that till a telephone call came, he did not know as to how Dinesh died. This is very strange that a person who claims to be an eye witness for the alleged stabbing of deceased-Dinesh allegedly by the accused, in his cross-examination has stated that he does not know as to how the victim died. This further augments the suspicion in his evidence.
Lastly, this witness, who claims to be an eye witness and said to have given statement to the police to that effect taking the name of accused No.1, has in his cross-examination stated that he had been to police station only for once. Since Sharavana Kumar (PW-1) and Rajashekar shown him the accused as Ayyappa, he came to know about him. By stating so, he has further weakened his own statement made in his examination-in-chief. He Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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has shown his ignorance about identity of accused No.1- Ayyappa either at the time of the incident or immediately thereafter and it was the said other two persons showing the said accused and disclosing his identity in the police station. Therefore, the evidence of PW-10 is also not safe to rely upon.
31. Apart from the above, one more comparison between PWs-1, 4 and 10, who claims to be the eye witnesses, is also required to be made. The said comparison is with respect to their statement regarding the overt acts of accused Nos.1 and 2 (appellants herein) in the incident. According to PW-1, accused No.1 scolded the deceased and assaulted him once. He does not speak about accused No.1 stabbing the deceased with knife, whereas PW-4 in his evidence has stated that accused No.1 stabbed the deceased with a knife. PW-10 has not stated about accused No.1 stabbing the deceased, but he has only stated that accused No.1 assaulted the deceased. Thus, with respect to the alleged overt act of accused No.1 as against deceased is concerned, these three alleged eye witnesses have given different versions. Had they really Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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seen the incident, there ought to be uniformity in the evidence regarding overt acts of the accused. It is also because the alleged victim is only one person and alleged assailants are also not much in number, as such, each of the alleged eye witnesses was expected to see the incident clearly and their evidence was expected to come uniformly.
Similarly, as observed above, PW-1 - the complainant who has not stated anything about the accused by name Prabha stabbing the deceased with knife, has only stated that one Vasu (accused No.3) and another person stabbing his brother Dinesh with knife. In his evidence, he has clothed that "another person" as accused No.2 - Jithendra. Thus, according to him, two knives that were used in the commission of crime were by accused No.2 - Jithendra and accused No.3 - Vasu. On the contrary, PW-4 attributes use of knife by accused No.1 Ayyappa and the second knife by another accused by name Prabha. More interestingly, PW-10 has attributed the overt act of stabbing the deceased with the knife only to accused Prabha, but neither to accused No.1 Ayyappa nor to accused No.2 Jiithendra. Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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Therefore, on this very important aspect of description of the incident, more particularly, the overt acts by the accused also, there is major variations in the evidence of PWs-1, 4 and 10. For this reason also, the evidence of these three witnesses are also not safe to be relied upon as eye witnesses.
32. Apart from the above, it is also cannot be ignored of the fact that the Sessions Court which has convicted accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code, has failed to frame a specific charge either for the offence under Section 142 and/or for the offence punishable under Section 148 of Indian Penal Code. Section 142 of Indian Penal Code is a substantive section which explains as to who is a member of unlawful assembly and Section 143 of Indian Penal Code is a punitive section for the same. Similarly, Section 148 of Indian Penal Code is a punitive section for the offence of rioting armed with deadly weapon. In the instant case, it is alleged that accused who were said to be more than five persons in Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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number, have formed an unlawful assembly and that they committed rioting duly armed with deadly weapons like knife. Thus, when framing the charges, the Sessions Court without framing separate charges for distinct offences, it clubbed both and framed a single bald charge for Section 302 read with Section 149 of Indian Penal Code against the accused.
33. The defence of the accused is that the deceased was a rowdy and he had quarreled with many persons, as such, in the incident, somebody has stabbed him. Thus, the accused have not denied the incident and the nature of the death of the deceased as homicidal, but have only disputed their alleged involvement and participation in the commission of crime.
34. The above analysis of the evidence clearly establishes that the death of the deceased Dinesh on the night of 27.9.2010 is established. It is also established that his death was a homicidal. However, the evidence of PWs-1, 4 and 10, who were the material witnesses of the prosecution proved to be not safe to be relied upon and Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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that barring their evidence, the evidence of other witnesses are only hearsay. Serious doubt which had erupted in the evidence of prosecution survives. As such, the benefit of doubt is naturally required to be given to the present appellants/accused Nos.1 and 2. The Sessions Court has not appreciated the evidence before it in a proper perspective. It has wrongly believed the evidence of PWs- 1, 4 and 10 as trustworthy and concluded that the prosecution has proved its case beyond reasonable doubt. The said finding of the Sessions Court in our considered view is perverse and erroneous. As such, the judgment of conviction and order on sentence under appeal passed against the present appellants/accused Nos.1 and 2 by the Sessions Court deserves to be set aside. Accordingly, we proceed to pass the following order:
ORDER Both the Appeals are allowed. The judgment of conviction and order on sentence passed by the Sessions Judge, Fast Track Court-XVII, Bengaluru, in S.C.No.181/2011, dated 7.7.2012, is set aside. Accused Crl.A.No.936/2012 C/w. Crl.A.No.1147/2012
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No.1 - Sathish Babu @ Ayyappa, s/o Venkatamuni, residing at 7th Cross, Opposite to Mosque, Kaverinagar, Kodichikkanahalli Road, Hongasandra, Bengaluru (appellant in Criminal Appeal No.1147/2012} and accused No.2 -
Jithendra @ Jitu, s/o Shekar, residing at No.168, Behind Muneshwara Temple, NGR Layout, Roopena Agrahara, Bengaluru (appellant in Criminal Appeal No.936/2012), are acquitted of the charges for alleged offence punishable under Section 302 read with Section 149 of Indian Penal Code. The jail authorities are hereby directed to set them free forthwith, provided the accused Nos.1 and 2 are not required to be continued in judicial custody in any other case/s.
Sd/-
JUDGE Sd/-
JUDGE bk/