Karnataka High Court
Parasappa Durgappa Madar vs The State Of Karnataka on 28 June, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
CRL.A No. 100377 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28th DAY OF JUNE, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100377 OF 2019 (C)
BETWEEN:
1. PARASAPPA DURGAPPA MADAR
AGE: 34 YEARS,
OCC: FARMER (NOW IN JC),
R/O: VAJJAL,
TQ: HUNGUND.
...APPELLANT
(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ILAKAL POLICE STATION,
REPRESENTED BY
-2-
CRL.A No. 100377 of 2019
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO CALL FOR THE RELEVANT
RECORDS AND ALLOW THIS CRIMINAL APPEAL BY SETTING
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE RECORDED BY THE LEARNED PRINCIPAL
DISTRICT AND SESSIONS JUDGE, BAGALKOT, IN S.C.
NO.27/2015, DATED 20.08.2019, THEREBY CONVICTING
THE APPELLANT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC AND SENTENCING HIM TO SUFFER
IMPRISONMENT FOR LIFE AND TO PAY A FINE OF
RS.25,000/- WITH DEFAULT CLAUSE OF 6 MONTHS.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING ON 01.06.2022 AND THE SAME HAVING BEEN
HEARD AND RESERVED FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY M.G.S.KAMAL J., DELIVERED THE
FOLLOWING:
-3-
CRL.A No. 100377 of 2019
JUDGMENT
1. Present appeal is filed by the appellant/accused No.1 being aggrieved by the judgment and order dated 20.08.2019 passed in Sessions Case No.27/2015 on the file of the Principal District and Sessions Judge, Bagalkot (hereinafter referred to as 'the Trial Court') by which the Trial Court has convicted accused No.1 for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'IPC') and sentenced him to undergo imprisonment for life and pay fine of Rs.25,000/- and in default of payment, to undergo simple imprisonment of six months and has acquitted accused No.2 of the said offence.
2. The case of the prosecution is that; the deceased Malakajagouda had illicit relationship with the wife of accused No.1 namely Smt.Gangavva. That on 08.11.2014 at about 12.45 a.m. near Dyamavvana Katte, in the land bearing R.S.No.40 belonging to the complainant situated in Vajjal village, accused No.1 in furtherance of his common intention along with accused No.2 murdered Malakajagouda by assaulting him with an axe on the backside of his neck and head while he was sleeping in the land.
-4-CRL.A No. 100377 of 2019
3. The prosecution examined 21 witnesses as PWs.1 to 21 and exhibited 27 documents marked as Exs.P1 to P27 and produced 11 material objects as MOs.1 to 11. On recording the statement under Section 313 of Cr.P.C., accused Nos.1 and 2 denied all material evidence produced against them and examined one Sunita Arun Kathari as DW1 and produced document Ex.D1 in their defence evidence.
4. The Trial Court on appreciation of evidence passed the impugned judgment and order convicting accused No.1 of the offence punishable under Section 302 of IPC and acquitting accused No.2 as above. Being aggrieved by the same, the appellant is before this Court in this appeal.
5. Sri.Neelendra D. Gunde, learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submitted that the entire case of the prosecution is based on circumstantial evidence and the same has not been established beyond the reasonable doubt; prosecution has not established the motive being alleged illicit relationship which the deceased purportedly had with the wife of accused No.1, PW1-brother of the deceased, PW5-mother of the deceased and -5- CRL.A No. 100377 of 2019 PW6-the uncle of the deceased have pleaded ignorance about the said allegation of illicit relationship; that PW7-Prashant, PW8-Basavaraj, who claim to have been sleeping beside the deceased at the time of the incident have not seen the accused assaulting the deceased, their evidence is therefore of no use for the prosecution; there are inconsistencies in the versions of the prosecution as on the one hand it is claimed that the accused were allegedly identified in the light from the Durgamma temple, while PW1 has stated that they were identified in the light of the torch; that in the sketch at Ex.P22, there is no mention of existence of light pole, thus, the very theory of identification of the accused at the scene of offence is doubtful; there is also inconsistency in the evidence of PW9 and PW10 who claim to have seen accused holding the weapon prior to the incident, in that, PW9 states that accused No.2 was holding the axe whereas PW10 states accused No.1 was holding the axe while only one axe has been recovered by the prosecution; that when the Trial Court acquitted accused No.2 for want of evidence against him, there was no reason or justification in convicting accused No.1 on the same set of facts and circumstances when there is no eyewitness or direct -6- CRL.A No. 100377 of 2019 evidence in the matter; that the Trial Court has not appreciated the line of defence adopted by the accused in bringing forth the possibility of deceased having animosity with the other residents of the village more particularly of Mahalingavva and her husband Fakirappa Chalavadi on the issue of the deceased raped Mahalingavva and a case in that regard having been filed against the deceased; that the Trial Court has not appreciated the conduct of PWs.7 and 8 who though claim to be present at the scene of offence not having tried to either take the deceased to the hospital or catching the accused. Hence, seeks for allowing of the appeal.
6. On the other hand, Sri.V.M.Banakar, learned Additional State Public Prosecutor justifying the judgment and order passed by the Trial Court submitted that the prosecution has established the guilt of the accused beyond reasonable doubt. All the witnesses have supported the case of the prosecution thereby the chain of events got completed pointing out the only possibility of the accused having committed the offence. PW7 has specifically spoken about the illicit relationship the deceased had with Gangavva even before the marriage and continuing to have the same after the marriage -7- CRL.A No. 100377 of 2019 show the grave circumstance of motive which led the accused to commit the offence; that the medical evidence is consistent with the ocular evidence and that the said evidence not having been impeached, the prosecution has thus established the case beyond reasonable doubt and that the appellant has not made out any ground warranting interference. Hence, sought for dismissal of the appeal.
7. Heard the learned counsel for the parties. Perused the records. The point that arises for consideration is that;
"Whether the trial Court justified in passing the judgment and order, convicting and sentencing accused No.1 for the offence punishable under Section 302 of IPC, even while under the same facts and circumstances of the case, the trial Court acquitted accused No.2."
Cause of Death:
8. There is no dispute with regard to the fact that the death of the deceased was a homicidal. It is useful at the beginning to refer to the deposition of PW21-Dr.Naveenkumar. Originally postmortem examination report at Ex.P24 was prepared by one Dr.A.T.Kiragi, who is stated to have been passed away. Consequentially PW21 who was acquainted with the handwriting and signature of deceased-Dr.A.T.Kiragi, has been examined by the prosecution. The postmortem report is -8- CRL.A No. 100377 of 2019 produced at Ex.P24. The injuries found on the dead body as noted in the postmortem report are as under:
1. Cut lacerated wound in the occipital area of the head, horizontal in direction, clotted blood present around the wound.
Size 5 inch x 3/4th inch. Edges are smooth, regular and contused. They are retracted and gaping present underlying muscles cut and occipital bone exposed. There is transverse of the occipital bone, with spiracles of bone pierced inside. Meninges torn and occipital lotre of brain was torn, ecchymosed.
2. Cut lacerated wound on the nape of the neck. Horizontal, extending from middle of the neck to the posterior boarder of left stern mastered muscle, clotted blood present in the wound, size 5 inch X 3/4th inch. Underlying muscles torn. Underlying 7th vertebra was fractured. Spinal cord congested."
9. The opinion as to the cause of death stated in the postmortem report is "shock as a result of injuries sustained on the head and neck (and to the brain). The time lapse since death is around 6-24 hours. The injuries may be caused by sharp weapon."
10. Ex.P6 is the report of examination and opinion regarding the seized weapon. The Senior Specialist has found that the injuries mentioned in the postmortem report of Malakajagouda, could be caused by an axe which is produced as per MO.10 and it can cause the death.
11. From the aforesaid evidence of PW21 supported by the postmortem report Ex.P24 and opinion as per Ex.P26, it is -9- CRL.A No. 100377 of 2019 clear that the death of deceased - Malakajagouda was a homicidal.
Evidence Produced by the Prosecution:
12. The prosecution having established the cause of death as above being homicidal is required to prove the guilt of the accused in committing the offence beyond reasonable doubt. In that, the prosecution has examined PW1- Mr.Siddanagouda Patil-the brother of the deceased who lodged the complaint at Ex.P1 before PW19. In his deposition, PW1 has stated that on 07.04.2014 at about 10.00 p.m., his elder brother Malakajagouda after having his dinner, went to his lands to guard the harvested onion. PWs.7 and 8 had already gone to lands. PW1-his mother and his sister-in-law were at home. In the night at 1.00 a.m., PW8 came rushing to his house and informed him that the accused had assaulted the deceased on the backside of his neck and head and caused severe blood injuries. Upon hearing the same, PW1- his mother and PW6-Doddanagouda, his uncle, who resides opposite to the house of the deceased, went to the land. At that time, Malakajagouda was screaming. He had sustained the injuries
- 10 -
CRL.A No. 100377 of 2019 on account of assault by an axe behind his neck and to his head. On enquiry, PW7 informed him that he was asleep and woke up to the screaming of Malakajagouda. When he saw accused No.1 was running away with axe in his hand along with his brother Kempanna-the accused No.2. Both of them ran through the Durgamma temple. That PWs.7 and 8 had seen the accused with the torch light and also in the light from Durgamma temple. Thereafter, PW1 along with others took the injured in a cruise vehicle to Ilakal and on the way he passed away at 1.30 a.m. on 08.11.2014. PW1 further states that he heard from the villagers about his brother having illicit relationship with the wife of accused No.1, which was the reason for the accused to commit the murder of his brother. PW1 identified the material objects such as blood stained pillows, jamkhana, white and black underwear, white baniyan, lungi, shirt marked as MOs.1 to 6. He also identified a pair of chappal of his brother marked as MO.7. In the cross- examination, he has admitted that there is one Fakirappa Chalavadi in the village and that there was a case against the deceased brother Malakajagouda for having raped the wife of
- 11 -
CRL.A No. 100377 of 2019 said Fakirappa Chalavadi. However, he has deposed that his brother was acquitted as he was found innocent.
13. PW2 is the witness to the inquest panchnama at Ex.P2. In the cross-examination, the said witness has stated that he had gone to the hospital on hearing the death news of the said Malakajagouda. He is not aware as to what the Police had written and he has not read the contents of the panchanama.
14. PW3 is the witness to the spot panchanama Ex.P4, for panchanama of recovery of clothes at Ex.P6 and recovery of MOs.1, 2, 7 to 9. The said witness in the cross-examination stated that piles of onion were about 80 feet away from Dyamavana Katte and if one stands on the other side, it was not possible to see the movement of people towards the northern side. He has stated that he has not read the contents of the panchanama.
15. PW4 is the witness to panchanama Ex.P7 drawn while recovering the axe-MO10 apparently at the instance of accused No.1. Before the trial Court, the said witness pointing out at accused No.2 has identified him to be accused No.1.
- 12 -
CRL.A No. 100377 of 2019
16. PW5 is the mother of the deceased. She has reiterated the contents of the complaint. The said witness has pleaded her ignorance with regard to the deceased- Malakajagouda having illicit relationship with the wife of accused No.1. She has also expressed her inability to name the persons who had spoken about the illicit relationship between the deceased and the wife of accused No.1.
17. PW6 is a relative of deceased. In the cross- examination, the said witness has deposed that he had no personal information regarding the deceased having illicit relationship with the wife of accused No.1 and that he learnt about the same through the Police.
18. PW7 is also a relative of the deceased, who claims to have been present at the place of incident. The said witness has stated that since Gangavva the wife of accused No.1 was working in the lands of the deceased, he knew about her relationship with the deceased and that the said matter was known to the villagers. That accused No.1 had also seen the deceased and Gangavva together. The said witness has stated that on 07.11.2014, he and Basavarj-PW8 went to the land at
- 13 -
CRL.A No. 100377 of 2019 9.00 p.m. and Malakajagouda came there at about 10.00 p.m. and they slept by the side of deceased and at about 12.30 a.m., he and PW8 woke up to the screaming of Malakajagouda and heard accused Nos.1 and 2 saying that they had assaulted the deceased and that he would die. That PW8 had used his torch and they saw accused Nos.1 and 2 going towards the village in the light from Durgamma temple. That he asked PW8 to go home and inform about the incident and while he remained at the spot to look after the injured Malakajgouda. He further stated that because of the illicit relationship which the deceased had with the wife of accused No.1, they had assaulted him. In the cross-examination, the said witness has stated he went to the land at 10.00 p.m. Malakajgouda came there at 11.00 p.m. All three of them slept towards the east west direction. Malakajgouda slept on his right hand side and PW8 slept on his left hand side. Malakajgouda was sleeping at a distance of about 3 to 5 maaru. Malakajgouda had brought a bed to sleep. That he had a torch and he neither used his torch and nor did he try to catch the accused. That they slept about 20 to 30 feet away from Durgamma temple from where there was sufficient light to the place where they were sleeping and
- 14 -
CRL.A No. 100377 of 2019 that there was no need for any other light as everything was seen from the temple light. That he learnt about the illicit relationship of Malakajgouda with Gangavva from villagers. That Police did not enquire him in the station and that he had not given any statement about he having seen the accused going away after assaulting the deceased. That he has not stated about he having seen the accused in the light of Durgamma temple.
19. PW8 is the driver of the deceased, who has also spoken about the deceased having relationship with the wife of accused No.1 and accused No.1 being aware of the same. His deposition is also in the lines of the deposition of PW7. In the cross-examination, the said witness has stated that he and PW7 went to the land of the deceased at 8.00 p.m. after finishing their dinner. Deceased Malakajgouda was already in the land. They were talking and slept at about 01.00 a.m. Malakajgouda slept at a distance of one maaru. Deceased slept between him and PW7. That pile of onion was up to the knee level and that a person coming from Durgamma temple had to cross the pile of onion to reach the spot where Malakajgouda was sleeping. Malakajgouda was sleeping on manure bag. That
- 15 -
CRL.A No. 100377 of 2019 except him nobody had a torch. The light from the Durgamma Temple was sufficient to see the people moving around. He has stated that the torch which he used to see the accused is still with him at his home.
20. PW9 is a witness who has claimed to have last seen accused Nos.1 and 2 at about 8.00 p.m. on 07.11.2014. He has stated that at about 8.00 p.m. he, PW10 and one Muttappa Sangappa along with the accused persons were sitting and talking on the Durgamma temple katte. He also stated to have seen accused No.2 carrying the axe. He has pleaded ignorance about the reason for the murder. In the cross-examination, he has stated that everyone has to pass through the Durgamma temple to go towards the land of Malakajagouda. That he has not seen Malakajagouda and his relative Prashantgouda-PW7 and Basavaraj Madar-PW8 going towards the land of Malakajagouda.
21. PW10 is another witness who also has stated that on the date of the incident, he along with PW9, Muttappa Sangappa and the accused persons were sitting and talking upto 9.30 p.m. Thereafter he went to his home and the accused
- 16 -
CRL.A No. 100377 of 2019 persons went towards the land. He has stated to have seen the axe in the hands of accused No.1. In the cross-examination, the said witness stated to have seen Malakajagouda going towards his land at about 11.00 p.m. He further states that he has not seen Prashantgouda-PW7 or Basavaraj-PW8 going towards the land. He has further stated that after finishing their talks, he went to his home and accused went towards the land.
22. PW11 is a witness who claimed to have seen accused Nos.1 and 2 after the incident at about 1.00 a.m. when he woke up to answer nature's call and he claimed to have seen the axe in the hands of accused No.1
23. PW12 is the wife accused No.1 who turned hostile.
24. PW13 is Dr.Radha who has spoken about having examined MOs.1, 2, 3, 5 to 9 and given the FSL report as per Ex.P11.
25. PW14 is Yallavva, a relative of the accused who has turned hostile. In the cross-examination by the prosecution, it is suggested that on 07.11.2014, when she was working in the land of the deceased, the deceased hugged her from back and
- 17 -
CRL.A No. 100377 of 2019 sought sexual favours and that she had screamed and escaped from him. The said suggestion is denied by her.
26. PWs.15, 16, 17 and 18 are the official witnesses who have spoken about carrying the FIR Ex.P14, the body to the hospital for postmortem and having received the report and preparing the sketch-Ex.P17, having taken the blood stained items to FSL, Belgaum and obtaining report at Ex.P18.
27. PW19 who has spoken about receiving the complaint on 08.11.2014 at 7.10 a.m. and registering the case in Crime No.144/2014 and having received the memo from the Investigating Officer to arrest the accused as per Ex.P20 and arresting of accused No.1 on 10.11.2014.
28. PW20 is the Investigating Officer who has spoken about the process of investigation, preparing the spot panchanama, inquest report, seizure of material objects, preparing the sketch of the spot, taking photographs, receiving postmortem report, receiving the report of FSL and recording the voluntary statement of the accused and recovering the axe at the instance and information provided by the accused etc. In the cross-examination, the said witness has admitted that in
- 18 -
CRL.A No. 100377 of 2019 Ex.P22, there is no mention with regard to the electricity pole. He has also stated that PWs.7 and 8 have not given any statement before him regarding them having seen the accused in the light of the torch. He has further stated that as per the investigation, the torch was with accused No.2 and accused No.1 did not have the torch. He further stated that as per investigation, PWs.7 and 8 did not have the torch with them. He has stated that he has taken the torch from one Laxman Jalgar who has not been cited as witness in the charge sheet.
29. After closing of the evidence, the Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. The accused in the defence, examined one Dr.Sunita, exhibited discharge card as Ex.D1. The said witness has deposed that on 10.10.2014 the wife of accused No.1 had undergone cesarean process for delivery and was discharged on 15.10.2014 and that the person undergoing such process would not be able to have any physical relationship for about 3 months.
Analysis:
30. Thus, on the basis of the above, the prosecution has attempted to establish the guilt of the accused. As noted
- 19 -CRL.A No. 100377 of 2019
above, there are no eye witnesses to the incident. As regards the motive, the prosecution has setup that deceased had illicit relationship with the wife of accused No.1 and accused No.1 having learnt about the same, had decided to kill the deceased and with that common intention, he along with accused No.2 assaulted the deceased with axe while he was asleep in his lands guarding onion crop. PWs.7 and 8, being the relative and the driver of the deceased claim to have been present at the time and scene of the offence. However, not having seen the offence.
31. In the above circumstances, it is imperative to have a close scrutiny of the evidence produced by the prosecution to prove the guilt of the accused. In the complaint at Ex.P1, there is no whisper regarding the motive of the accused persons for commission of the offence. There is also no reference with regard to overt act specifically attributing on the accused persons. There is no clarity as to which of the accused actually assaulted the deceased. PWs.7 and 8 purported to have seen the accused persons while they were allegedly going away after assaulting the deceased from the scene of offence in the light
- 20 -
CRL.A No. 100377 of 2019 from Durgamma temple. Except this, there are no other details mentioned in the complaint.
32. PW1 in his evidence apart from reiterating the contents at Ex.P1, has further stated that PWs.7 and 8 had informed him of they had seen the accused with their torch light and also in the light from Durgamma temple. Thus, there is an improvement with regard to PWs.7 and 8 seeing the accused with the torch light. As regards the motive, PW1 has stated that he learnt from the villagers that the deceased had illicit relationship with the wife of accused No.1 and for this reason, they had killed his brother. Thus, the said witness is merely a hearsay witness.
33. PW5-the mother of the deceased in her deposition has stated that she was informed by PW7-Prashant about the incident. She has also stated that she learnt from the villagers about deceased having relationship with the wife of the accused being the reason for the murder. PW2 is also a hearsay witness.
34. PW7 in his cross-examination has stated that he as well as Basavaraj-PW8 had torch with them. In the cross-
- 21 -
CRL.A No. 100377 of 2019 examination, he has admitted that there was sufficient light from Durgamma temple and that there was no need for any other source of light. PW8 in his cross-examination has stated that except him, nobody had a torch.
35. It is pertinent to note as per the deposition of PWs.7 and 8, the heap of onion was up to the knee level. Durgamma temple was situated on the northern side of the place of the incident. PWs.7, 8 and the deceased were sleeping on the other side of the onion heap. According to PW8, light from the temple was not falling near the onion heap and to reach to the place of incident, one has to cross the onion heap. PW7 has stated that he and PW8 reached the land at 10.00 p.m. while deceased reached at 11.00 p.m. and deceased slept on his right hand side while PW8 slept on his left hand side at a distance of 2 to 3 maaru (the word "maaru" in Kannada means, measure of a man with extended arm. On an average, one maaru would be approximately 5 feet to 5½ feet). While PW8 in his deposition has stated that he and PW7 went to the spot at about 08:00 p.m. and deceased Malakajgouda was already there. According to PW8, they were talking and slept at about 01.00 a.m. That they were sleeping at a distance of about one
- 22 -
CRL.A No. 100377 of 2019 maaru and the deceased Malakajgouda slept between PWs.7 and 8. Further, according to PW7 deceased had brought a bed to sleep while according to PW8 deceased was sleeping on a manure bag. According to PW7, himself and PW8 had torch. While according to PW8, only he had a torch. According to PW7, he learnt about the illicit relationship from the villagers. Both PWs.7 and 8 have pleaded ignorance about the owner of the neighbouring lands.
36. From the aforesaid deposition of the PWs.7 and 8, a reasonable doubt that creeps in the mind is whether at all their version with regard to they seeing the accused while they were going away allegedly after commission of the offence can be relied upon. As seen above, there is contradiction and inconsistency with regard to the timings, situation, source of light and the direction of the scene of offence from the Durgamma temple. Though PW7 has stated that deceased had brought bed to sleep and PW8 stated that deceased was sleeping on a manure bag, but as per Crime Detail Form at Ex.P4, the Police seem to have found blood stained bed and pillow. However, while listing the material objects seized from the spot, the Police have mentioned about a blood stained
- 23 -
CRL.A No. 100377 of 2019 jamkhana and pillow. The onion heaps upto knee level which the deceased, PWs.7 and 8 were guarding on the date of incident is nowhere in site as could be seen in the photographs at Ex.P5, purportedly taken while drawing the mahazar at Ex.P5 no heaps of onion anywhere near the site.
37. As regards the theory of torch, PW1 in his complaint has not stated about PWs.7 and 8 having seen the accused in the torch light. PW7 in his deposition has stated that he and PW8 both had torch in their hand while PW8 states only he had the torch in his hand. Be that as it is, the prosecution has neither seized nor produced the torch which were apparently used by PWs.7 and 8 to see the accused. Both the witnesses have stated that they saw the accused in the light from Durgamma temple. The prosecution has not obtained any information/evidence from the concerned electricity supply company with regard to supply of electricity on the date of the incident particularly supply of electricity to Durgamma temple. It is necessary to note that as per the prosecution version, they seized a torch as per Ex.P9. In Ex.P9 it is stated that accused No.1 had handed over his torch to one Sri.Laxman Hanumappa Jalagar after the incident and that said Sri.Laxman Hanumappa
- 24 -
CRL.A No. 100377 of 2019 Jalagar had handed over the same in the Police Station on 11.11.2014. As seen above, all the witnesses, more particularly the last seen witnesses namely PWs.9 and 10 have stated that accused did not have torch in their hand. The said Laxman Hanumappa Jalagar has not been cited as a witness.
38. It is also pertinent to note that Ex.P22 is a rough sketch, in that there is no mention with regard to existence of any light or electricity pole near the place of incident. Contrary to the same, Ex.P17 is sketch prepared by PW17 in which two electricity poles are shown, one on the north eastern direction and one on the north western direction from the place of incident. There is no mention of Durgamma temple in Ex.P17. It is also pertinent to note that the distance between the electricity pole shown on the north eastern side and the place of incident is 42.52 metres. (about 140 feet) and between the electricity pole shown on the north western side and the place of incident is 48.80 metres (about 160 feet). The rough sketch at Ex.P22 and sketch at Ex.P17 do not corroborate with the evidence of PWs.7 and 8. Further PW17 in his cross- examination has stated that he has not seen if there were bulbs in the electricity poles shown by him in the sketch and that if
- 25 -
CRL.A No. 100377 of 2019 the light from the said bulbs would reach up to the place of incident. This aspect of the matter is very crucial for determination of the guilt of the accused as this is the only strong circumstance which would establish the identity of the accused as per PWs.7 and 8 who claim to have seen the accused from the light of the temple. The chain of circumstances would probably get completed only on the prosecution furnishing the acceptable evidence on this aspect of the matter.
39. The Trial Court however at paragraphs 21 and 22 of its judgment though has dealt with the evidence of PWs.7, 8, 17 and 23 with regard to the theory of PWs.7 and 8 seeing the accused while they were going away after commission of offence in the light from Durgamma temple states that they are the minor discrepancies liable to be brushed aside as they do not go to the root of the case. In our considered opinion, the entire case of the prosecution revolves around the evidence of PWs.7 and 8 who claim to have seen the accused as narrated above. But for their evidence, the further story of prosecution cannot be built upon. As already noted, in the complaint and in the evidence, PW1 has not whispered anything about the
- 26 -
CRL.A No. 100377 of 2019 motive. Which theory also appears to be an improved version of the prosecution. It is to be noted that PWs.7 and 8 were apparently with the deceased to guard the onion crop in the lands which postulates PWs.7 and 8 to be completely alert. It is therefore beyond the comprehension that PWs.7 and 8 woke up only to the screaming of the deceased after accused assaulting the deceased and that too when they were going away near the temple which is about 50 to 60 feet away from the place of incident. This further gives rise to serious doubt with regard to the very possibility of the accused assaulting the deceased as claimed by the prosecution.
40. The last seen witnesses namely PWs.9 and 10 have claimed that they were talking with the accused persons and have seen the axe in the hands of both accused Nos.1 and 2. PW9 in the cross-examination has stated that they were talking up to 8.00 p.m. and thereafter went to his home for dinner. He has stated to have seen axe in the hands of Kenchappa (accused No.2). He has stated that he has not seen Malakajgouda, Prashant (PW7) or Basavaraj (PW8) going towards the land. PW10 on the other hand has stated that all of them were talking up to 9.30 p.m. and he has seen axe in the
- 27 -
CRL.A No. 100377 of 2019 hands of accused No.1. In the cross-examination, he has deposed that he has seen Malakajgouda going towards his land and he was empty handed and it was about 11.00 p.m. He further states that he has not seen Prashant (PW7) or Basavaraj (PW8) going towards the land. This contradiction in the versions of PWs.9 and 10 gives rise to serious doubt with regard to the truth of their claim. Besides it is difficult to believe that person intending to commit an offence would sit with his known people and talk for hours with the weapon in hand and thereafter go and commit the offence.
41. PW11 claims to have seen the accused person at about 1.00 a.m. while he was awake to attend the nature's call. He claims to have seen axe in the hands of accused No.1. As per PWs.7 and 8, they were talking and awake up to 1.00 a.m. This evidence of the purported last seen witnesses, even if it is accepted, the same would not complete the chain of events justifying holding the accused No.1 guilty of offence of murder. Needless to mention the inconsistency in the versions of the witnesses creating extreme doubts on their reliability. This contradiction in their version gives rise to a serious doubt with regard to the last seen theory propounded by the prosecution.
- 28 -
CRL.A No. 100377 of 2019
42. In the light of the aforesaid facts and circumstances of the case, the theory of illicit relationship between the deceased and the wife of the accused No.1 not proved beyond reasonable doubt. In the cross-examination, the defence has suggested about the deceased having been charged of rape of one Mahalingavva wife of Fakirappa Chalavadi and a case in S.C. No.67/2005 having been filed against him. The motive circumstances of deceased having illicit relationship with the wife of accused No.1 is being stated only by PW8 who as noted above is the interested witness. In view of the contradiction and unreliability of their version of they having seen the accused after the incident, their version regarding the motive also becomes unreliable.
43. As regards recovery of the weapon, the prosecution has produced Ex.P7 the mahazar drawn, while seizing the axe allegedly used by the accused for committing the offence, purportedly upon the information given by the accused in their voluntary statement. As per the said mahazar, the accused went near a place called Hirehalla and picked up the axe from a thorny bush. The said mahazar is drawn in the presence of PW4 and another witness by name Venkateshgouda. Photographs
- 29 -
CRL.A No. 100377 of 2019 taken while drawing the said mahazar is at Ex.P8. PW4 in his evidence has stated that the said axe was buried in the mud and the accused removed it and handed over to the police in his presence. PW4 in the cross-examination pointed at accused No.2 identifying him to be Parasappa-the accused No.1. The deposition of PW4 read in the light of the contents of Ex.P7 and the photographs as seen in Ex.P8 do not inspire the confidence of the very story of recovery of axe at the alleged information given by the accused No.1.
44. It is settled law that when the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the Police and there are large number of contradictions in his evidence not on mere matters of detail but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the case of the accused (Namdeo Daulata Dhayagude and others vs. State of Maharashtra reported in AIR 1977 SC 381). As noted above, it is not mere omission or contradiction but the very essence of the case of the prosecution.
- 30 -
CRL.A No. 100377 of 2019
45. The Trial Court on the same set of charges and evidence has thought it appropriate to acquit accused No.2 for the reasons of there being no incriminating material evidence against accused No.2 justifying his conviction. This being so, it is incomprehensible that the Trial Court thought it appropriate to convict the accused No.1 on the same set of charge and evidence. This is particularly in view of the fact that none of the witnesses have spoken attributing any specific overt act either on the accused No.1 or accused No.2. Therefore, the reasoning and conclusion arrived by the trial Court holding accused No.1 guilty of murder of the deceased by assault with axe on the backside of his neck and head becomes extremely doubtful.
46. The ocular evidence has to be corroborated with the medical evidence, if there are inconsistency, the prosecution cannot rely only on the medical evidence to establish the guilt of the accused. In the instant case, though the medical evidence and the opinion as per the forensic report would indicate that the injuries sustained by the deceased could have been caused by the axe as per MO.10, it is not possible to link the offence to the accused as the deposition of witnesses and the material evidence produced by the prosecution is not
- 31 -
CRL.A No. 100377 of 2019 sufficient enough to prove the guilt of accused No.1 besides there being serious doubts on their reliability.
47. For the aforesaid reasons, we are of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and the trial Court is not justified in passing the judgment and order convicting accused No.1 for the offence punishable under Section 302 of IPC. Consequently, the following:
ORDER Appeal is allowed.
The impugned order of conviction and sentence passed against the appellant/accused No.1 for the offence punishable under Section 302 of IPC is hereby set aside.
Appellant/accused No.1 is acquitted of the charge for the offence punishable under Section 302 of IPC. Accused No.1 shall be set at liberty forthwith, if his detention is not required in any other case.
The fine amount deposited if any by accused No.1, shall be refunded to him.
The rest of the order is maintained.
- 32 -CRL.A No. 100377 of 2019
The Registry shall communicate this order forthwith to the Trial Court and the concerned Jail Authorities.
Pending interlocutory applications stood disposed off.
Sd/-
JUDGE Sd/-
JUDGE KGK/RSH