Karnataka High Court
The State Of Karnataka By Nanjangud Town ... vs Rajakumar @ Udayakumar @ Singapur ... on 16 January, 2013
Bench: K.L.Manjunath, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JANUARY, 2013
PRESENT
THE HON'BLE MR.JUSTICE K L MANJUNATH
AND
THE HON'BLE MR.JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL NO.1215/2007 (A)
BETWEEN
THE STATE OF KARNATAKA
BY NANJANGUD TOWN POLICE ... APPELLANT
(BY SRI.P.M.NAWAZ - ADDL. SPP)
AND:
1. RAJAKUMAR @ UDAYAKUMAR
@ SINGAPUR RAJKUMAR
@ RAGHURAM
S/O NATARAJA THEVAR SINGAPUR
AGED ABOUT 37 YRS
R/AT HOUSE NO.32 THILLAINAGAR
1ST CROSS KRISHNARAJANAGAR, VADAVALLI
COIMBATORE DIST TAMILNADU
2. NOORJAN @ BABY @ SULEKHA
D/O ALIMOHAMMAD W/O A1- RAJKUMAR
@ UDAYAKUMAR @ SINGAPUR RAJKUMAR
@ RAGHURAM NO.32 KRISHNARAJANAGAR
HOSATHILLIANAGAR VADAVALLI COIMBATORE
TAMILNADU ... RESPONDENTS
(BY SRI.S J CHOUTA - AMICUS CURIAE FOR R-1 & R-2)
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CRL.A. FILED U/S. 378 (1) & (3) CR.P.C, PRAYING TO
GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGEMENT DT.03.04.2007 IN S.C.NO.321/2003 ON THE
FILE OF THE III ADDL. DIST & SESSIONS JUDGE,
MYSORE- ACCQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S. 302 AND 307 AND R/W SEC.
34 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, KEMPANNA J., DELIVERED THE FOLLOWING:
JUDGEMENT
The State has preferred this appeal challenging the legality and correctness of the judgment and order dated 3.4.2007 acquitting the respondent/accused of the offences punishable under Sections 302 and 307 r/w.34 of IPC.
2. The brief facts of the case are :-
The respondents/accused and two others by name Gnashekar and Shree Vidya @ Sumathi the absconding accused were involved in several crimes committed in and around Coimbatore and neighbouring districts. They were facing trial in Crime NO.688/2000 of Udumalpet police station at Udumalpet. They were in judicial custody in the said case at Central jail, Coimbatore. They were being taken to the court at 3 Udumalpet on the dates they were required to be produced before the court for taking their trial.
2.1. It is further the case of the prosecution on 11.4.2000 all the four accused had been taken to the court at Udumalpet. After the day's trial when they were being brought to Coimbatore Jail in the jeep, the driver of the jeep stopped on the way to drink water. At that time they managed to over power the escorting police, snatched 9 mm pistol (MO1) which was with PW26, a reserve Sub-Inspector of police and threatened them with dire consequences. Thereafter they drove the jeep to some distance in which they were being escorted, abandoned the same and escaped from the said place. In respect of the said occurrence a case in Crime No.261/01 had been registered by Podanoor police for various offences and investigation had been taken up. The said police and also Udumalpet police were in search of the accused persons including the respondents. Such being the position on 14.8.2001 at about 10.00 a.m, PW27 the police inspector of Podanur police station received a credible information from an 4 informant by name Pandyan to the effect that the first respondent had asked him to meet near Nanjundeshwara temple at Nanjangud, Mysore Dist.
and had requested to give him Rs.5,000/-. PW27 passed on the said information to PW19-Deputy Superintendent of Police. Thereafter, they discussed and prepared an action plan to nab A1 along with his companions at Nanjundeshwara Temple at Nanjangud, Mysore Dist. Accordingly PW27 Police Inspector informed Pandyan, the informant, to start from Coimbatore on 15.8.2001 by taking a bus at 4.30 a.m. and reach Nanjangud by about 9.00 or 9.30 a.m. On the same day he also contacted the Superintendent of police, Mysore and requested him to provide the assistance to Dy.SP, Nanjangud- PW29 to complete the operation. In response to the same, Superintendent of Police, Mysore, contacted PW29 Dy.SP Nanjangud and instructed him to provide all necessary co-operation with his staff to complete the operation in nabbing A1 and his companions. On the same day PW19 Dy.SP of Podanur division and four police inspectors left 5 Coimbatore and reached Nanjangud at about 5.00 a.m. Thereafter PW19 and his colleague officer discussed the plan of action with PW29 Dy.SP of Nanjangud and his companion officers. In pursuance of the same at about 9.00 a.m. all the police officers and police personnel involved in the operation took their positions at different places along the road leading from Chamarajnagar to Nanjangud and Nanjangud to Mysore at a distance of about a kilometer from Nanjundeshwara temple situated at Nanjangud. They were all in the informal/civil dress. At the same time, PW27-Dhanaraj, followed Pandyan who had boarded Coimbatore-Mysore bus in Tata Qualis vehicle and they both reached the destination Nanjundeshwara temple at about 9.30 a.m. and took their respective positions near and around the temple by the side of Chamarajnagar and Nanjangud road.
2.2. It is further the case of the prosecution at about 10.00 a.m. a blue Maruthi Esteem van came from Chamarajnagar side and stopped near Pandyan who was standing in front of the temple. A1 who was in the 6 car lowered the glass pane of the door located to his side in order to talk to Pandyan. At that point of time the police personnel who were in their civil dress started moving slowly around the car. Realising the same A1 opened fire from MO1- 9 MM pistol, took the car in the reverse direction turned it fast towards Chamarajnagar side and sped away avoiding the fire opened from AK-47 rifle by Tamilnadu police. It is further the case of the prosecution on account of the fire opened by the accused from MO1- 9 MM pistol, an innocent boy by name Ningaraju who was standing near the bus stop situated at the said place sustained injury apart from PW20 police constable. Both were immediately removed to Nanjangud general hospital for treatment. In the meantime police officer who had taken their respective positions near about the spot chased the Maruthi Esteem Van, but they were unable to intercept or trace the same.
2.3. It is further the case of the prosecution thereafter PW19 Dy.SP of Podanur police filed his first information as per Ex.P11 before CW66- Sub Inspector 7 of police, Nanjangud police station. CW66 on the basis of Ex.P11 registered the case, issued FIR as per Ex.P12 to the Jurisdictional Magistrate and thereafter proceeded to the spot of occurrence along with PW19 and there he seized AK 47 rifle, four empty cartridges, one live cartridge, blood stained mud, sample mud from the scene of occurrence under a panchanama. On the same day PW29 Dy.SP of Nanjangud Sub division took over further investigation and visited the hospital where the two injured had been taken for treatment. There he seized the blood stained banian-MO5 of Ningaraju produced by the medical officer under the panchanama- Ex.P3 and on the same day, he also recorded the statements of the two eye witnesses viz. PW4-Lokesh PW5-Ravi and other police officials who were involved in the operation. Later on 17.8.2001 PW19 seized shirt, nicker and pant of Ningaraju at BM Hospital Mysore under panchanama Ex.P22. On 19.08.2001 PW29 recorded the statement of the injured Ningaragu in the presence of the Medical Officer as per Ex.P23. It is further the case of the prosecution thereafter on 8 17.9.2001 the injured Ningaraju expired at B M Hospital while undergoing treatment. PW17 PSI of Nanjangud police station on receipt of the death intimation of the deceased Ningaraju as per Ex.P4 prepared an additional report as per Ex.P14and forwarded the same to the jurisdictional magistrate with a request to add Section 302 of IPC in the case registered earlier in their police station. Thereafter PW29 proceeded to the hospital and there he held inquest over the body of Ningaraju and drew up inquest panchanama as per Ex.P26 and also recorded the statements of the parents namely viz. Channajamma- mother and Siddaraju-father. Thereafter PW29 continuing the investigation recorded the statements of the witnesses examined on behalf of the prosecution and also cited in the charge sheet and also obtained permission from the District Magistrate to proceed against the accused for the offence punishable under the Indian Arms Act 1959. He also sent seized articles in the case to FSL office for subjecting the same to Chemical Examination. In the meantime, he also made 9 efforts to trace the accused who were absconding till such time.
In the meantime PW29 had also taken steps to get the body of the deceased subjected to post mortem examination. In response to the same Dr.Shenoy conducted autopsy and issued post mortem report as per Ex.P21. He had also obtained wound certificate in respect of deceased Ningaraju and PW20 Shekar from the hospitals where they were treated which are at exhibits P1 & P27. PW29 thereafter had also taken steps to forward the seized fire arms along with the live cartridge and empty cartridges seized from the spot for getting them examined by Ballistic expert. In response to the same PW18 - Ballistic expert on examination of the fire arms and ammunitions, live cartridges and empty cartridges sent to him, issued the certificate as per Exs.P15 and 16. Thereafter car bearing KA03 N4527 in which respondent/accused had sped away which was found abandoned at a place situated on Arakalgood- Hassan road was seized.
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It is further the case of the prosecution in the meantime on 21.09.2001 A1 i.e. first respondent and A3
- second respondent in the case were apprehended by the Sub Inspector of Police of Kasargod Town Police station Kerala State near Kasargod - Chandragiri Bridge and as they were unable to explain their presence satisfactorily and produce the documents of the car and 9MM pistol found in their possession took them to his custody. Thereafter on the requisition of Tamilnadu Police the respondents/accused were handed over to them. On learning about the same PW13 Dy.S.P of Nanjangod Sub-division who had taken charge from PW29 obtained body warrant from the jurisdictional magistrate, to secure the presence of A1 and A3 who were in Coimbatore Central Jail. Accordingly on 17.2.2003 A1 and A3 were produced from Coimbatore Central Jail before the JMFC Nanjangud, the jurisdictional magistrate who remanded them to police custody till 19.2.2003 on the request made by PW 13 subsequently on they being produced he remanded them to judicial custody. On the same day PW30 11 recorded the statements of the witnesses for the purpose of identity of the accused.
PW30 who had taken up investigation, as already pointed out, thereafter secured the relevant documents from the concerned authority and on completion of the investigation as A2 and A4, the two other accused, were not traced submitted a final report against the respondent/accused before the Jurisdictional Magistrate showing the other two accused viz. A2 and A4 as absconding in the case. After the final report came to be filed, the learned Magistrate split up the case of A2 and A4 and committed the case of the respondent/accused to the court of sessions. The court of sessions on receipt of the records secured the presence of the respondent/accused, framed charges against them for the offences u/s.302, 307, 332 r/w.34 of IPC only. The accused pleaded not guilty to the said charges, but claimed to be tried.
The prosecution in support of their case examined in all PWs 1 to 30, got marked exhibits P1 to P27 and MOs 1 to 8. The accused during the course of 12 examination of the prosecution witnesses got marked exhibits D1 and D2.
The accused during the course of examination under Section 313 Cr.P.C. denied all the incriminating circumstances put to them found in the evidence of the prosecution witnesses and also submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
The learned trial Judge on considering the oral and documentary evidence on record came to the conclusion that the prosecution has failed to establish the charge for the offence u/ss.302, 307 r/w.34 of IPC but has established the charge against the accused for the offence punishable under Section 332 r/w.114 of IPC and accordingly, by his judgment and order dated 3.4.2007 acquitted the respondents/accused 1 & 3 for the offence punishable under Section 302, 307 r/w.34 of IPC, but convicted them for the offence punishable under Section 332 R/W.114 of IPC and sentenced A1 to undergo R.I. for 2½ yrs. and to pay fine of Rs.15,000/- I.D. to undergo R.I. for 6 months and further sentenced 13 A3 to undergo RI. for one year and to pay fine of Rs.10,000/- I.D. to undergo S.I. for three years.
The State being aggrieved by the judgment and order of acquittal of the accused of the offences punishable under Sections 302, 307 r/w.34 of IPC is in appeal before this Court.
3. Sri.Nawaz, learned Addl. SPP assailing the impugned judgment and order contended that the trial Judge without properly appreciating the evidence of PW4, PW20 and the investigating officers has come to an erroneous conclusion in holding that the prosecution has failed to establish the charge for the offences u/s.302, 307 r/w.34 of IPC. In this connection he submitted that the evidence of PW4, PW20 coupled with the medical evidence of PW2 & PW28 and that of the ballistic expert PW18 would clearly go to show that the deceased Ningaraju and PW20 the injured have sustained injuries at the hands of A1 on account of shooting them with the pistol MO1. Their testimony has not been diluted in any manner in their cross 14 examination. Apart from the same it is further fortified from the evidence of the investigating officers more particularly PW19 and PW29. He further contended the trial Judge having come to the conclusion that the prosecution has established the charge for the offence punishable under Section 332 r/w.114 of IPC has failed to take into consideration that in view of the injuries sustained by PW20, the respondents/accused should have been convicted for the offence u/s.307 of IPC. Having not done so, the impugned judgment and order passed by the trial court acquitting the respondents/accused for the aforesaid offence cannot be sustained.
He also further contended the evidence on record clearly reveals deceased Ningaraju and PW20 have sustained injuries on account of A1 firing at them with the pistol MO1. The evidence of PW20 and PW4 clearly discloses that it is A1 who has fired which has resulted in injuries to them. This piece of evidence has not been considered and appreciated in its proper perspective. He also further contended the evidence of PW29 reveals 15 that he recorded the statement of the deceased Ningaraju as per Ex.P23 while he was undergoing treatment in the hospital. That statement-Ex.P23 of deceased Ningaraju also reveals that he sustained injuries at the hands of A1. The said statement of deceased Ex.P23 has not been considered by the trial Court at all.
He also further submitted the evidence of PW4 and PW20 is fortified from the testimonies of other police officials, examined in this case, who had been involved in nabbing the accused at the spot of occurrence. Their evidence has also not been considered in the right perspective which is corroborated from all angles.
Therefore, the impugned judgment and order of acquittal of the accused/respondent of the offences punishable under Sections 302, 307 r/w.34 of IPC cannot be sustained, it be set aside and the respondent/accused be convicted for the said offence and sentenced according to law.
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4. Countering the submissions of the learned Addl. SPP Sri.Sandesh Chouta, learned Advocate appearing as Amicus Curiae for the respondent/accused submitted, the evidence on record does not reveal that the deceased Ningaraju or PW20 have sustained injuries on account of the shot fired by A1 from the pistol MO1. The medical evidence on record is in direct conflict with the ocular testimony of the witnesses examined on behalf of the prosecution. He also further contended the testimony of the eye witnesses viz. PW4 and PW20 among whom PW20 is injured is also not corroborated from the evidence of PW18 the ballistic expert whose evidence does not disclose that MO1 is the pistol from which shots have been fired. In this connection he also submitted that the certificate Exs.P15 and 16 issued by PW18 does not support the theory of the prosecution inasmuch as the shots have been fired from the pistol MO1. He also submitted that the evidence of all the witnesses examined including that of the police officer does not disclose that A1 had fired from the pistol MO1 either at 17 the deceased Ningaraju or at PW20 Shekar. Drawing our attention to the evidence and mahazars he contended having regard to the position in which the deceased and PW20 were standing on either side of the road, it is unthinkable that A1 would have shot at the deceased from the pistol MO1, on the other hand as the evidence reveals that A1 had drew the car in the reverse direction immediately on seeing the police personnel at the spot, the police have opened fire which shot must have landed resulting in injuries to them. Taking from any angle, the evidence on record does not disclose that the deceased Ningaraju or PW20 have not sustained injuries from the shot fired from the pistol MO1. He also further submitted that the car that was found at the spot has not been seized from the custody of the accused. There is no nexus brought on record to show that the car that has been seized in the case is the one in which the accused had come near the spot of occurrence. The identity of the accused at the spot of occurrence is also not established by reliable and cogent evidence. As the evidence of the direct witnesses is in 18 conflict with the witnesses examined and is also not fortified from the evidence of the ballistic expert, the trial Judge has committed no error in acquitting the respondent/accused of the offences punishable under Sections 302, 307 r/w.34 of IPC.
He also further contended the prosecution has not examined Pandyan who is alleged to have given the information about the accused coming near Nanjundeshwara Temple at Nanjangud, Mysore Dist. on 15.8.2001 for the reasons best known to them. In the absence of his evidence it is unthinkable that accused would have gone to the said place as projected by the prosecution. He also further contended it is the case of the prosecution that the accused was apprehended by Kerala police near Kasargod-Chandragiri bridge. At that time MO1, the car in which he was seen, was seized. But no mahazar for having seized MO1 and the said car has been produced and got marked through PW25 who according to the prosecution had apprehended the accused and seized MO1 at the said place. He also further contended the respondents/accused were 19 strangers insofar as deceased Ningaraju, PW4, PW5 the independent eye witness examined in the case. No steps have been taken by the investigating officers to hold the test identification parade. In the absence of the same it is also difficult to believe the testimony of PW4 that it was A1 who had fired at PW20 and the deceased Ningaraju.
Insofar as Ex.P23 dying declaration recorded by PW29 he submitted, admittedly it has been recorded on 19.8.2001 nearly four days after the occurrence while the deceased was undergoing treatment at Mysore. The medical officer, in whose presence the said dying declaration has been recorded at BM hospital, has not been examined in this case. It is not known whether the deceased at that point of time was in a fit condition to give statement or not and as accused were strangers to deceased it is unthinkable that he would have given the statement saying that he received the gun shot injuries at the hands of A1. Therefore, no reliance can be placed on Ex.P23 also.
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Therefore, the impugned judgment and order of acquittal of the accused of the said offence does not suffer from any infirmity or illegality calling for interference and therefore, the appeal be dismissed.
5. In the wake of the rival submissions, the evidence and the documents on record, the point that arises for our consideration is;-
'Whether the impugned judgment and order of acquittal of the respondents of the offences punishable under Sections 302, 307 r/w.34 of IPC calls for any interference?'
6. It is the case of the prosecution the respondent/accused along with two others on 15.8.2001 at about 10.00 a.m. near Nanjundeshwara Temple at Nanjangud, Mysore Dist. had fired at the deceased Ningaraju who was a stranger standing by the side of road near the bus stop and also at PW20 a police official when the police had prepared an action plan to nab the accused who had escaped from the custody 21 while they were being escorted to central prison at Coimbatore on 11.4.2001. It is the specific case of the prosecution that accused had fired at the deceased Ningaraju and PW20 Shekar with the pistol MO1 and caused them fire arm injuries. In order to prove the same, the prosecution has relied upon the direct testimony of PWs 4, 5 and 20 apart from the police officials who were involved in the nabbing operation of the accused. Among the said witnesses PWs 4 and 5 are two independent eye witnesses. PW5 has turned hostile. He has not stated in his evidence that it was A1 who fired shot with the pistol MO1 either at deceased Ningaraju or at PW20. Therefore, his evidence is of no avail to the prosecution to connect the accused with the alleged offence.
6.1. Insofar as PW4 is concerned, though he claims in his evidence that it was A1 who fired at deceased Ningaraju and also at PW20, police official of Coimbatore, his testimony cannot be believed for the reason that it is in direct conflict with the medical evidence and that of the ballistic expert PW18. The 22 evidence on record does not reveal, more particularly either that of PW2 or PW28 that the shots that have been fired from the pistol, which emanated pallets, were found in the body of the deceased and that there was an entry and exit wound. If according to the prosecution the deceased had been fired with the fire arm, pallets should have been found in his body. The absence of the same would go to show that it is difficult to believe the deceased had sustained injuries on account of the shot fired from the pistol of MO1. The evidence of PW28 does not clinchingly establish that the injuries found on the deceased were on account of the shots fired from the pistol. On the other hand, the evidence on record reveals at the time of nabbing operation, the police had also opened fire at the car of the accused. The material on record reveals the deceased was standing to the left side of the car in the direction in which it had been parked and the police officials were standing to the right side of the car. It is the specific case of the prosecution that A1 after opening the right side window pane of his car was talking to Pandyan, the informant. At that time, 23 noticing the police personnel surrounding the car, he opened fire from his pistol and took the car in the reverse direction. If this situation is taken into consideration, it is unimaginable as to how the deceased who was standing on the left side of the road would have sustained injuries on account of the shot fired by A1 from MO1.
6.3. Further, the evidence on record reveals the shots have been fired from AK47. The evidence further reveals that 9 rounds were fired from AK47 by Ponnusamy-PW14. But it is unthinkable only 9 rounds have been fired by PW14 after A1, according to the prosecution, opened fire at PW20 and also the deceased who were standing on the side of the road. The possibility of both PW20 and the deceased having sustained injuries on account of the shot fired by PW14 in the facts of the case cannot be ruled out. At any rate there is no clinching evidence on record to show that the injuries found on the deceased and PW20 were on account of the shot fired from the pistol MO1. This is 24 further fortified from the evidence of PW18, the ballistic expert also who in his evidence does not specifically say that the shots have been fired from the pistol MO1 and the certificates Exs. P15 and 16 also does not disclose to that effect.
6.4. Further, according to the prosecution the accused had come in Blue Maruthi Esteem Car. Shots have been fired by PW14 from AK47 rifle. As rightly pointed out by Amicus Curiae, the car which has been seized in this case, which has been seized at S.Thattekere village situated on Arkalgod-Hassan road, does not bear any shots having been fired at the car which has damaged the body or any part of the car. This is another pointer which goes to show that the accused had come in the car and he had fired either at PW20 or deceased Ningaraju.
6.5. Further, the evidence of PW4 discloses that the occurrence took place at 9.00 a.m. whereas, the evidence on record reveals the actual occurrence has 25 taken place at about 10.00 a.m. as it was the instruction of PW19 to Pandyan that he should reach the place at about 9.30 a.m. 6.6. The prosecution for the reasons best known has also not examined the informant Pandyan who had informed PW19 that accused had asked him to pay Rs.5,000/- and therefore, he is proceeding to Nanjangud to pay the said amount to accused. The records do not reveal that the said Pandyan has been cited as a charge sheet witness at all. Even more so, it is unthinkable that accused could have requested Pandyan to come to Nanjangud and pay him Rs.5,000/- Apart from the same Pandyan is a resident of Coimbatore which is at a distance of about 499 kms. from Nanjangud. Therefore, in the normal circumstance it is unthinkable that the accused would have directed the said Pandyan to come to Nanjangud and pay him Rs.5,000/- as there is no other evidence to show or brought on record as to what is the capacity of Pandyan and what is his relationship with that of the accused. 26 In the absence of the same and in view of the direct testimony being in conflict, which is also not fortified from the evidence of the ballistic expert to show that MO1 is the weapon with which A1 has fired at PW20 and the deceased, the trial Judge in our view has committed no error in coming to the conclusion that the prosecution has failed to prove his case for the offences punishable under Sections 302, 307r/w.34 of IPC.
6.7. However, Sri.Nawaz, vehemently contended the trial Judge having convicted the accused for the offence under Section 332 r/w. 114 of IPC, could not have acquitted them for the offence punishable under Section 307 of IPC.
In this connection, as already pointed out that it is the specific case of the prosecution that PW20 has sustained injuries at the hands of A1 from the shot which he has fired from the pistol of MO1. The evidence on record does not reveal that the injuries sustained by PW20 were on account of the shots fired from the pistol MO1.
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6.8. A perusal of Ex.P27 wound certificate issued in respect of PW20 reveals that he has sustained simple injuries on his person. Further, PW25 is the police official who has apprehended the accused while he was in his car near Kasargod. He has also seized MO1 pistol at that time. No mahazar has been drawn up to show the said seizure at Kasargod and PW25 does not say in his evidence to that effect. In the absence of any mahazar having been drawn up regarding the seizure of MO1 from the possession of A1, in the light of the evidence that is on record, it is difficult to hold that PW20 had sustained injuries on account of the shot fired by A1 from the pistol MO1. On a perusal of the evidence and the documents on record, we are of the view the trial Judge on appreciation of the evidence has come to the right conclusion in holding that the prosecution has failed to establish the charge for the offences u/s.302 307 r/w.34 of IPC and the same having been based on facts and fortified by law, there is no infirmity or illegality calling for interference in this 28 appeal. Hence, there is not merit in the appeal and it is accordingly, dismissed.
As Sri.Sandesh Chouta, learned counsel, has been appointed as Amicus curiae in this case, we fix his remuneration at Rs.10,000/-.
Sd/-
JUDGE Sd/-
JUDGE rs