Karnataka High Court
The State Through Wadagera vs Manayya @ Mounesh S/O Tehanna @ Chejanna ... on 13 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 926
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JUNE 2019
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL APPEAL No.3638/2011
Between:
The State,
through Wadagera Police Station,
represented by
Additional State Public Prosecutor,
Gulbarga.
...Appellant
(By Sri Prakash Yeli, Addl. SPP)
And:
1. Manayya @ Mounesh
S/o Tejanna @ Chejanna Kambar,
Age 34 years, Occ. Agriculture.
2. Siddappa S/o Mudakappa Bagali,
Age 32 years, Occ. Manager of
Fair Price Shop.
3. Mallappa S/o Ninganna Bagali,
Age 30 years, Occ. Agriculture,
2
4. Devappagouda @ Devindragouda,
S/o Chandraya Gouda Biradar,
All are R/o Arjunagi, Tq. Shahapur.
...Respondents
(By Sri S.G.Math, Advocate for R1;
Sri Ayyangouda S.Patil, Advocate for R2 and R3 and
Sri Arunkumar Amargundappa, Amicus Curiae for R4)
This Criminal Appeal is filed under Section 378(1) and
(3) of the Code of Criminal Procedure, praying to grant leave to
appeal against the judgment and order of acquittal dated
01.04.2011 passed by the District and Sessions Court, at
Yadgir in S.C.No.08/2011 thereby acquitting the respondents-
accused of the offence punishable under Sections 143, 147,
341, 323, 324, 325, 302, 504 and 506 read with Section 149 of
IPC.; b) set aside the aforesaid judgment and order of acquittal
dated 01.04.2011 passed by the District and Sessions Court, at
Yadgir in S.C.No.08/2011 thereby acquitting the respondents-
accused of the offence punishable under Sections 143, 147,
148, 341, 323, 324, 325, 302, 504 and 506 read with
Section 149 of IPC and c) convict and sentence the
accused/respondents for the offences under Sections 143, 147,
341, 323, 324, 325, 302, 504 and 506 read with Section 149 of
IPC in the interest of justice.
This criminal appeal having been heard and reserved on
30.05.2019 for judgment and coming on for pronouncement of
judgment this day, K.N.PHANEENDRA, J., delivered the
following:
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JUDGMENT
The State being aggrieved by the judgment of acquittal rendered by the District and Sessions Judge, Yadgir in S.C.No.8/2011 dated 01.04.2011, preferred this appeal seeking re-appreciation of the material on record and for conviction and sentence of the accused persons for the offences under Sections 143, 147, 341, 323, 324, 325, 302, 504 and 506 and also under Section 302 of Indian Penal Code.
2. We have heard the arguments of the learned counsel for accused Nos.1 to 3. As the learned counsel for accused No.4 did not turn-up to argue the matter we appointed Sri Arunkumar Amargundappa, as Amicus Curiae for respondent No.4 to assist the Court in arguing on behalf of accused No.4 and thereafter the matter has been reserved for judgment, after hearing the Amicus Curiae.
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3. Before adverting to and appreciating the material evidence on record it is just and necessary for this Court to have the brief facts of this particular case.
A person by name Mallikarjun S/o Bhimayya Hadpad of Arjunagi Village in Shahapur Taluk, Kalaburagi District has lodged a report before Wadagera Police Station on 02.01.2009, making allegations that, the complainant has been residing in Arjunagi Village doing agriculture. On 02.01.2009 himself and his brother Basavaraj (deceased) had been to Deodurga and came back from the said village to Arjunagi Village and they were standing infront of a shed situated in their land Arjunagi Village, at that time all the accused persons including the absconding accused by name Sidda Veerappa who was arrayed as accused No.2 before the trial Court, forming into an unlawful assembly came to the land of complainant to the place where the complainant and his brother were talking with each other.
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It is further alleged that, all the accused persons started abusing the deceased Basavaraj on the ground that he has become a menace and vulnerable to the village and also abusing him with filthy language and by abusing in such manner accused No.1 assaulted the deceased Basavaraj with a club on the head of the deceased. Accused No.2 has in fact instigated the other accused persons to not to leave the deceased by saying so he also kicked the deceased Basavaraj on his back and making him to fall down on the ground. It is further alleged that at that time the complainant Mallikarjun tried to resolve the dispute, but accused No.3 Siddappa S/o Mudakappa has prevented the complainant from going to help the deceased and assaulted the complainant i.e., on his cheek, accused No.4 Mallappa S/o Ninganna has also assaulted the complainant with a club on his back and caused inside injuries, accused No.5 Devappagouda also abused the complainant and his brother Basavaraj with filthy language as 'bastards' and also hurled that the 6 complainant and his brother should be finished off on that day and threatened with dire consequence and by saying so he also assaulted on the backside of the head of the deceased with a club.
It is also alleged that at that time, one Shekharayya S/o Sharanayya, Alisab S/o Bavasab, Khatalsab S/o Balesab, Shankar S/o Nagappa came to that particular spot and resolved the dispute and all the accused persons went away from that particular spot. The deceased Basavaraj has lost his consciousness and was lying on the ground.
4. On the basis of the above said report the Wadagera Police Station have registered a case at about 3.00 p.m. for the offences under Sections 143, 147, 323, 324, 341, 325, 504 and 506 read with Section 149 of Indian Penal Code in Crime No.1/2009 and started the investigation. Subsequently the said Basavaraj who was admitted to the hospital at Kalaburagi and he was being 7 shifted to Solapur on the way he succumbed to the injuries sustained by him. On the further information given by the complainant the police have requested the learned Judicial Magistrate First Class, Shahapur to add the provision of Section 302 of Indian Penal Code. On the basis of the above said allegations the police have investigated the matter and submitted the charge-sheet against the five accused persons out of them the accused No.2 was split-up as he was not available for the trial. The Trial Court proceeded with other accused persons.
5. During the course of investigation as the police found sufficient materials having filed the charge-sheet, the jurisdictional Magistrate has committed the case to the Court of Sessions. After securing the presence of the accused persons the Trial Court proceeded to frame charges against the accused for the above alleged offences and the accused pleaded not guilty, they were put on trial. 8
6. The prosecution in order to bring home the guilt of the accused examined 21 witnesses as PWs.1 to 21 and got marked exhibits Exs.P1 to P22 documents and also got marked M.O.Nos.1 to 9 material objects.
7. The accused were also examined under Section 313 of Criminal Procedure Code apart from denying the case of the prosecution. The accused persons have also examined particularly accused No.3 examined DWs.1 to 3 and got marked Exs.D1 to D4 and closed their side.
8. After hearing in detail and after appreciating the oral and documentary evidence on record the learned Sessions Judge came to the conclusion that though the prosecution has produced certain materials the same were not sufficient to draw a conclusive inference that, the accused Nos.1, 3 to 5 have committed an offences as alleged by the prosecution granting the benefit of doubt all the circumstances including doubtful presence of PWs.1 9 and 6, the Court has acquitted the appellants herein vide the impugned judgment.
9. The learned Additional State Public Prosecutor strenuously argued before the Court that, the Trial Court has committed serious error in appreciating the oral and documentary evidence on record. Of-course though the independent witnesses who were cited as eye witnesses and as well as all the mahazar witnesses have turned hostile to the prosecution, nevertheless the injured eye witness PW1 and another eye witness PW.6 have fully supported the case of the prosecution. Their evidence has been ignored by the Trial Court without proper appreciation.
10. It is also contended that, though there are some contradictions and omissions in the evidence of the prosecution witnesses but all those contradictions and omissions do not go to the root of the prosecution case, but the trial Court in fact ignored the basic principles and 10 considered the minor contradictions and omissions for the purpose of acquitting the accused persons. Though the core of the prosecution has not been disturbed even by the defence evidence, the trial Court has not properly considered the same.
11. It is also contended that though the witnesses who were panch witnesses for spot mahazar and recovery of M.O.Nos.2 and 3 at the instance of the accused have turned hostile, but the Investigating Officer who is uninterested has specifically spoken about the recovery and particularly M.O.No.1 has actually connected the crime committed by the accused persons and in fact PWs.1 and 6 have categorically identified these material objects before the Court, that has been used by the accused persons at the time of commission of the offence. The Trial Court has also not properly appreciated the motive factor which is glaring on the face of the record with reference to the accused and the deceased Basavaraj, the same has not been properly taken into consideration 11 along with other materials on record by the Trial Court. Relying upon some decisions the learned Additional State Public Prosecutor pleaded for re-appreciation of the evidence and for setting aside the judgment of the trial Court and consequently sought for conviction of the accused persons for the offences alleged against them.
12. Per contra the learned counsel appearing for accused Nos.1 to 3 and 4 have categorically submitted before the Court that, the trial Court in fact taken much pains to appreciate the evidence of PWs.1 and 6 who are only the witnesses available to the prosecution. Except PWs.1 and 6 all other witnesses have not supported the case of the prosecution. Particularly, PWs.1 and 6 are close relatives of the deceased and the other eye witnesses have totally turned hostile to the prosecution. In this background the evidence of PWs.1 and 6 have to be appreciated meticulously and their evidence has to be scanned very carefully to ascertain whether their evidence can be safely accepted as a gospel truth.
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13. They also contended that the very presence of PWs.1 and 6 is doubtful the trial Court after appreciating each and every circumstances came to the conclusion that the presence of PWs.1 and 6 is doubtful and further their evidence consisting of glaring and unexplained contradictions and omissions. Therefore, the trial Court has rightly acquitted the accused persons. The prosecution has not proved any recovery at the instance of accused No.1 and the material object M.O.No.1 alleged to have been seized from the spot and when the presence of PWs.1 and 6 is doubtful the using of any material object by the accused persons cannot be believed. Even otherwise the evidence of defence witnesses clearly establishes that appellant No.3 was not at all at the spot and he was elsewhere and same has been proved by the evidence of DWs.1 to 3 by means of preponderance of probabilities. Therefore, when the absence of appellant No.3 is falsified and when PWs.1 and 6 speak about the presence of appellant No.3 the false implication of 13 appellant No.3 is apparent. Therefore, the Court cannot believe the evidence of PWs.1 and 6 as gospel truth and benefit of such doubt also should be extended to other accused persons as rightly done by the trial Court. Therefore, for all these reasons the learned counsels pleaded for confirmation of the judgment of the Trial Court and consequently for dismissal of the appeal.
14. In the wake-of of the above said submissions made by the learned counsels the Court has to examine the evidence lead by the prosecution both oral and documentary before the trial Court. Before appreciating the material evidence on record, we would like to have the brief cursory look at the evidence of prosecution witnesses.
15. PW.1 Mallikarjun is the complainant and he is none other than the elder brother of the deceased. P.W.2 Basavarajappagouda and PW.3 Khasimsab are the panch witnesses to Ex.P.2, which is the spot mahazar they have 14 not supported the case of the prosecution. PW.4 Khatalhussain and PW.5 Alisab are the eye witnesses to the incident they also totally turned hostile to the prosecution. PW.6 Neelamma is none other than the elder brother's wife of the deceased who has supported the case of the prosecution. We will discuss the evidence of PWs.1 and 6 little later. PW.7 Rajeshwari is the wife of the deceased Basavaraj who came to know about the incident later and she went to the hospital and came to know that the deceased died while transporting him to Solapur Hospital and also she came to know about the incident from other persons. Therefore, she is a hearsay witness to the incident. PW.8 Bismillasab was examined to prove the motive, but he also not supported the case of the prosecution. Likewise PW.9 Yankappa is also examined for to prove the motive he has supported the case of the prosecution only to some extent but not to the fuller extent. PW.10 Dr.Asha Anwar, who was working as a Doctor at Government Hospital, Yadgir who has examined 15 the complainant Mallikarjun and gave a wound certificate as per Ex.P.10. PW.11 Miraj-ul-huk who was working as a Junior Engineer at Shahapur Sub Division, at the request of the police has visited the spot and prepared the sketch of scene of offence as per Ex.P.12. PW.12 Hafeez is the person who carried the first information report to the jurisdictional Magistrate after registration of a case against the accused, who is the formal witness and in fact no much cross-examination has been adverted to him. PW.13 Dr.Sanjeevkumar, who was working as Senior Specialist in District Hospital, Kalaburagi has conducted the post mortem examination on the dead body of the deceased Basavaraj on 03.01.2009 and gave his report that, the death of the deceased Basavaraj was due to asphyxia as a result of shock and hemorrhage due to grievous injury to vital organ brain and scalp. PW.14 Shreshail is only a formal witness who was working as a Police Constable at Hunasagi Police Station. He only guarded the dead body of Basavaraj and after inquest he 16 shifted the dead body to the hospital for post mortem examination and thereafter brought the clothes of the deceased and produced the same before the Investigating Officer which are already marked at M.O.Nos.4 to 7. PW.15 one Mr.Suresh, Police Constable of Wadagera Police Station who was deputed to apprehend the accused persons and in fact on 03.01.2009 he apprehended the accused No.1 and produced before the Investigating Officer with a report Ex.P.16. No cross-examination was adverted to so far as arrest of the accused No.1 is concerned. PW.16 Ningappa and PW.17 Basavaraj both are the witnesses to Ex.P.17 under which the police alleged to have recovered two clubs at the instance of accused No.4. These two witnesses have also not supported the case of the prosecution. PW.18 one Mr.Galeappa who was working as Police Sub Inspector has submitted a charge-sheet against accused No.3 Siddappa S/o Mudakappa and Mallamma W/o Shankargouda, on the previous occasion in connection 17 with Crime No.100/2007 for the offences under Sections 3 and 7 of the E.C.Act. This document has been relied upon by the prosecution to prove the motive factor. PW.19 Rajkumar, was working as CPI, Shahapur Rural Police Station and in fact investigated the matter and he speak about voluntary statements of accused Nos.1, 2 and 3 and also recovery of the clubs at the instance of accused No.4 and he has stated that he has actually investigated the matter. PW.20 Bharat was working as a Police Sub- Inspector during that time at Wadegera Police Station. He in fact stated about the registration of Crime No.100/2007 against the accused No.3 and others on the allegation that they were illegally selling kerosene and therefore, they have arrested accused No.3 in connection with the said case. Even this factum is also relied upon by the prosecution to establish the motive factor. PW.21 Hanmanth a Police Sub Inspector at Wadagera Police Station. He speaks about the registration of Crime No.1/2009 in connection with this case for the offences 18 initially under Sections 143, 147, 148, 323, 324, 325, 341, 504 and 506 read with Section 149 of Indian Penal Code as per Ex.P.1 lodged by PW.1 and he visited the spot and conducted the spot mahazar as per Ex.P.2 and during that course he has also seized one club which was stained with blood and also the unstained mud and blood stained mud from the spot and he also recorded the statement of some of the witnesses in connection with this case.
16. Apart from the prosecution evidence the accused have also examined three witnesses DWs.1 to 3. These three witnesses were examined in order to establish that actually on the date of incident accused No.3 was not at the place of incident but he has attended a training course (workshop) with reference to growing of chilly and other agricultural produce held by District HOPCOMS and Horticulture Department at Bhimrayanagudi from 11.00 a.m., up to 5.00 p.m. Therefore, accused No.3 pleads alibi that he was falsely implicated in the crime by PWs.1 and 6.
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17. On the basis of the above said evidence the trial Court has acquitted the accused persons for the above said offences. This Court has to re-look into the materials on record to find out whether the judgment of acquittal rendered by the Trial Court is also a plausible and possible view taken by the Trial Court. It is well established principle of criminal jurisprudence that, unless and until prosecution proves the case against the accused beyond all reasonable doubt. The accused shall be treated as a innocent person. When the trial Court acquitted the accused on appreciating the oral and documentary evidence on record holding that, the material produced before the Court is not sufficient to convict the accused. In such an eventuality the innocence of the accused is further strengthened by the judgment of the Trial Court. In such a circumstance the Appellate Court should always be slow in reversing the judgment of the Trial Court and convicting the accused. For the purpose of reversing the judgment of the trial Court there must be a 20 strong, cogent and convincing materials on record. So that the Appellate Court can come to the conclusion that the view taken by the Trial Court is wrong and the view that is taken by the Appellate Court is only the possible view on the basis of the materials on record.
18. As it is contended by the learned counsel, the evidence of PWs.1 and 6 is only available to this Court because all other witnesses by turning hostile gave a death blow to the prosecution as we have already referred to their evidence including the panch witnesses to the recovery mahazars. Only the evidence of investigating agency is available. Further added to that, the independent panch witnesses PWs.4 and 5 who are alleged to be the neighbors of the land of the deceased Basavaraj, they also not supported the case of the prosecution. In this background the Court has to examine the evidence of PWs.1 and 6 whether their evidence is trustworthy and credible for acceptance. If the answer is 21 in the affirmative then only the Court can draw an inference of guilt against the accused.
19. In the above said backdrop before adverting to appreciate the evidence on record i.e., the evidence of PWs.1 and 6. It is just and necessary to bear in mind some of the rulings cited by the learned Additional State Public Prosecutor. In the decision reported in AIR 1999 Supreme Court 3717 between Leela Ram (D) through Duli Chand vs. State of Haryana and another, has laid down certain principles with regard to appreciation of evidence. Wherein it has been held that -
"The Court shall have to bear in mind that different witnesses react differently under different situations wherein some become speechless, some start wailing while some others run away from the scene and thereafter some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of 22 evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases".
20. In another ruling reported in (2010) 1 Supreme Court Cases (Cri) 1342 between Govindaraju vs. State of Karnataka. Wherein the Apex Court has observed a general principle regarding "evidence of ordinary, not much educated and poor witness". It is the basic principle that, "When evidence is of an ordinary witness, who is not much educated and comes from a poor strata of society not having advantage of education, then evidence of such witness has to be appreciated as a whole - Court has to keep in mind all these aspects - Witness is not expected to remember every small thing, more particularly when he faces the shock of the untimely death of his near relative."
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21. Apart from the above said decisions it is also worth to refer so far as it relates to this case concerned a decision of the Apex Court reported in 1981 Crl.L.J 484 between Rann Ashrit and others vs. State of Bihar. Wherein the Apex Court has laid down the principle that, "When all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. In the absence of corroboration to the material extent in all material particulars. It was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses."
22. In the above said background the Court has to examine three aspects in this particular case, firstly, whether the eye witnesses version can be believed, secondly whether the recovery of incriminating articles at the instance of the accused connect the accused in any 24 manner to the crime and lastly whether the prosecution was able to establish a strong motive on the part of the accused to do away with the life of the deceased.
23. Now we will first to take the evidence of two eye witnesses i.e., PWs.1 and 6 for consideration. PW.1 is the complainant who lodged the complaint as per Ex.P.1. In the complaint in fact he has stated as to how the incident happened and also the presence of the eye witnesses by name Shekharayya, Alisab, Khatalsab and Shankar but he has not stated the presence of PW.6 at the time of incident. He has in fact categorically stated that accused No.1 assaulted the deceased on his head and accused Siddaveerappa kicked the deceased on his back and accused No.3 Siddappa S/o Mudakappa prevented this witness and also assaulted on the left cheek of this witness and accused Mallappa assaulted this witness with a club on his back and caused injuries and accused Devappagouda also assaulted the deceased on his 25 backside of his head with a club. Therefore, conspicuously this witness has not stated about the presence of PW.6.
24. In the evidence before the Court he has categorically stated about the incident reiterating the same factual aspects as stated in the complaint with regard to the overt acts of the accused persons. But in the evidence he has stated that PW.6 was also present who was cutting the fire wood near the said land. But in the evidence he has stated that when the incident happened this witness was present and after fifth accused Devappagouda assaulted deceased Basavaraj on the head in the meantime PW.6 came to the spot and he also stated that accused No.3 assaulted him on his cheek and he sustained bleeding injuries.
25. In the course of cross-examination it is suggested that the factum of accused Mallappa assaulted him on the back and accused No.3 assaulted him to his cheek, that fact, he has not stated before the police and 26 further it is suggested that he has not stated before the police about the presence of PW.6 and also the accused Siddaveerappa holding the hands of deceased Basavaraj. It is also admitted by him that on the previous day of the incident he had been to Bilar village and came to his village on the date of incident. He denied the suggestion that he had stated before the police that he had been to Deodurga on the date of incident and came back to the village on that day. The said portion has been marked as Ex.D1.
26. He has also stated in the course of cross- examination that due to the bleeding injuries to his lip the clothes of this witness also stained with blood and while transporting the deceased Basavaraj in an auto rickshaw his clothes were stained with blood. But this clothes were not seized by the police. So far as the topography of the incident is concerned he has admitted that the incident happened infront of jopadi or the hut of the deceased. He also admitted that, earlier there was quarrel between the 27 deceased and the fifth accused and therefore, for all these reasons there was some dispute between the parties. It is also suggested that a false case has been registered though this witness was not present at the time of any incident and he had been to Deodurga.
27. Looking to the above said evidence lot of contradictions have been elicited from the mouth of this witness with regard to sustaining of injuries to his back and also sustaining of any injury to his cheek but he only said that he sustained injury to the lips. He has also not specifically stated that at the time of the accused persons assaulting the deceased, PW.6 was present. The Trial Court has considered these contradictions and omissions and came to the conclusion that the presence of this witness is doubtful.
28. So far as the evidence of Investigating Officer PW.19 Rajkumar, he has stated that he has recorded the statement of PW.1 and PW.6 etc., In the course of cross- 28 examination he has admitted that PW.1 has not stated before him in his statement that, he has sustained any injury due to assault by accused No.3 on his cheek and that he has sustained any injury to his lips. Further PW.21 Hanmanth has stated that when PW.1 came to the police station he was alone and he never stated before him that accused No.2 to caught hold deceased Basavaraj with his hand and PW.6 came to the spot at the time of incident. It is also admitted that PW.1 has stated before the police as per Ex.D1 i.e., to the effect that he had been to Deodurga on that day. But in the evidence he denies that he never went to any village on that particular day. Therefore, this creates some doubt with regard to whether this witness is giving true version before the court or not.
29. Apart from that the evidence of this witness is not corroborated by the evidence of the Doctor who examined this witness. PW.10 Dr.Asha Anwar has deposed before the court that on 02.01.2009 at about 4.20 p.m. he examined the complainant Mallikarjun with 29 a history of assault. He only found a lacerated wound inside the lower lip measuring 1x0.5 cm with bleeding and the said injury was simple in nature. He has given the wound certificate as per Ex.P.10. Further in the cross- examination he stated that except the injury mentioned above the said Mallikarjun had not been suffered any other injuries when he brought to this witness. He also admitted that the injury found on the lip of Mallikarjun is not possible if slapped on the cheek. Therefore, the injury suffered by PW.1 does not tally with his oral statement. Because, according to him accused No.3 slapped him on the cheek and there is no injury to the cheek and according to the Doctor such injury to the lip could not be caused if there was any assault on the cheek. Consequently, PW.1 has stated that accused No.4 assaulted him on the back with a club and there is absolutely no corresponding injury or even pain to his back. Therefore, it also creates some suspicion in the conduct of this man.
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30. In this background the evidence of PW.6 has to be considered. PW.6 has stated that, she is the close relative of deceased Basavaraj who is none other than the husband's brother. PW.1 is none other than the brother of the deceased. She has also deposed that the accused No.1 Manayya assaulted on the head of the deceased and deceased Basavaraj fell down and accused No.5 again assaulted on the head of the deceased and accused No.2 Siddaveerappa kicked the deceased Basavaraj and PW.1 Mallikarjun came to rescue Basavaraj at that time fourth accused assaulted PW.1 on his back. Accused No.3 in fact assaulted PW.1 to his chin and therefore PW.1 sustained injury to his lip. This witness was standing at a distance of 20 feet and she also stated that PWs.4 and 5 and CW6 were also there at a distance of 50-60 feet watching the incident but they did not come near the place of incident and thereafter the accused persons ran away from the spot. She stated that, accused No.4 and 5 took away the clothes with them and accused No.1 throw the stick on 31 the spot itself. But this particular evidence shows the accused No.4 and 5 took away the clubs, accused No.1 threw the club is not stated by PW.1 and even in the complaint also this particular aspect is conspicuously absent.
31. She further stated that after the incident she went to the village, brought tum-tum rickshaw to the spot and PWs.4 and 5 along with PW.1 shifted the injured Basavaraj to rickshaw and took him to the hospital. This aspect is also not stated even by PW.1 as to what happened after the incident particularly PW.6 going to the village and brining the auto rickshaw to the spot. But he only stated that he alone shifted the injured to the hospital. PW.1 in his evidence has stated that, abutting to their land there is a road running towards Kandalli Village. PW.6 has stated in the course of cross- examination that she saw the incident at a distance standing on the said road i.e., Kandalli-Haligera Road. The said Kandalli-Haligera road as per the admission of PW.6 32 is situate at a distance of 70-80 feet. Therefore, this also creates serious doubt that, perhaps this lady must have been standing with PWs.4 and 5 near the said road and she could not able to witness the incident. Because she is a relative witness she must have said that she also witnessed the incident after coming to the spot late.
32. In the above said background of the evidence of PWs.1 and 6 the document Ex.P12 sketch prepared by junior engineer, working in the office of Assistant Executive Engineer, Public Works Department, clearly shows that, the incident as per the prosecution case happened infront of a hut of the deceased. By the side of the said hut there is one shed and the said incident happened to the western side of the said hut. To the southern side of the said hut there is a shed and to the east there is another zinc sheet shed and to the further east of the said zinc sheet shed at some distance the Haligera-Kandalli road is situate. The distance between Kandalli- Haligera Road and the place of incident as per 33 the sketch is at about 20-60 meters i.e., as rightly stated by PW.6 is at a distance of 70-80 feet. She has not stated as to where exactly she was standing in the said road. On the middle portion of the said road if any person is watching he cannot witness the place of incident because the zinc sheet shed and the hut comes in between the said place of the incident and the road and is not visible. It is also stated that, all other witnesses were also on the Haligera-Kandalli road and they were cutting the fire wood. If at all PW.6 could see the incident PWs.4 and 5 also could have seen the incident but those two independent eye witnesses have turned hostile to the prosecution for the reasons best known to them. Therefore, the said discrepancies in the evidence of PWs.1 and 6 have been taken in to consideration and the Sessions Court doubted their presence because specifically when PW.1 could remember the presence of other eye witnesses as stated in the complaint in Ex.P.1 who have turned hostile but he conspicuously doesn't say 34 the presence of PW.6. On the other hand he ought to had named the presence of PW.6 because she is a very close relative of PW.1 her name should have been mentioned first if at all she was there at the spot. Therefore, considering the contradictions, omissions and these discrepancies the presence of these two witnesses have been doubted because the Doctors evidence also does not corroborate the evidence of PW.1.
33. Apart from the above, the Trial Court has not properly considered the evidence of defence witnesses DWs.1 to 3 with reference to the presence of accused No.3, who was somewhere else at the time of the incident. It is a fundamental basic principle of criminal jurisprudence that equal importance has to be given to the defence evidence, the Court has to weigh the evidence of the defence witnesses as if the Court examines and weighs the evidence of the prosecution witnesses. Even to some extent the Court has to give more importance to the defence evidence because the accused need not prove their 35 defence beyond reasonable doubt. If the accused able to prove their defence by preponderance of probabilities, the Court can give more weightage to such evidence.
34. In the above said backdrop now we would appreciate the defence evidence. DW.1 one Babu is the co-agriculturists of the accused No.3. He has stated that on the day of the incident i.e., on 02.01.2009 himself and accused No.3 Siddappa had been to Shahapur to attend a Horticulture meeting and they were there up to 4.00 p.m. since morning 11.00 a.m. In the course of cross-examination it is elicited that Shahapur is at a distance of 5-6 kilometers from their village and there were about 500-600 persons attended the said meeting but the Department has not given any attendance certificate and they have not issued any notice to attend the said meeting etc. Therefore, it was suggested that accused No.3 and this witness did not attend the meeting on that day. DW.2 is an official working as Assistant Horticulture Officer at Shahapur. He has stated that, they 36 have conducted a seminar with regard to the growing of chilly and other horticulture crops. They have called the farmers to give information in the said seminar and the said seminar started at 11.00 a.m. and went upto 5.00 p.m. He specifically stated that accused No.3 has attended the seminar. In the course of cross-examination of this witness it is admitted by him that they have not given any attendance certificate or any certificate to the persons who have participated in the seminar. Specifically there is absolutely not even a suggestion made that no such meeting was conducted or no such seminar was held. DW.3 Sharangouda is also another Assistant Horticulture Officer, he also deposed in the same manner with regard to conducting of a seminar on 02.01.2009 at Bhimarayanagudi in Shahapur Taluk. He stated that about 58 farmers have participated in the said seminar. He also identified the signature of accused No.3 Siddappa who attended the said seminar in a register maintained by them showing as to how many farmers have attended the 37 said meeting. The said document is marked as Ex.D.3 and the name and the signature of the accused No.3 is marked at Item No.31 in the said document. Though in the cross- examination it is elicited that they have given the serial number to the register and also page numbers to the said register and also they have to take their signatures of their official superior with regard to maintaining of the said register but such things have not been done in the said register. But though there is an irregularity in maintaining the register there is no suggestion made that such meeting has not been held and accused No.3 has not attended the said meeting at all and the said document Exs.D3 and 4 are not the true copies of register pertaining to the said meeting.
35. On careful perusal of Ex.D3 which discloses that not only the information about the workshop or the seminar conducted at Bhimarayanagudi in Shahapur but also it contains the information about conducting of such workshop at various other places on other dates. This 38 document contains the signature of accused No.3 who has attended the said meeting or workshop. As we have said that there is no total denial with regard to the conducting of such workshop but only the irregularities in maintaining the register is questioned in the course of cross-examination. Therefore, it probablises that the accused No.3 has established before the Court by means of preponderance of probabilities that he might have attended the said meeting on the date of incident.
36. If a doubt is created with regard to the presence of accused No.3 on the date of incident at the scene of offence, it becomes burden on the prosecution to prove beyond reasonable doubt that the accused No.3 was very much present at the scene of offence. No further evidence has been lead by the prosecution and no other materials have been placed before the Court to show that no such workshop has been conducted by the Horticulture Department and that accused No.3 did not attend the said workshop.
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37. Looking to the above said defence evidence presence of accused No.3 is doubtful. Therefore, in this background the Court has to examine the evidence of PWs.1 and 6. When they have specifically stated about the presence of accused No.3 and particularly alleging overt act against accused No.3.
38. If the accused No.3 shown to have not been there on the spot it goes without saying that there might have been false implication of accused No.3 by PWs1 and
6. This aspect will gain importance in the surrounding circumstances of the case that, all the witnesses except PWs.1 and 6 have turned hostile to the prosecution including inquest panchas and recovery panch pertaining to recovery of incriminating articles at the behest of accused No.4.
39. The motive factor that is pleaded is also very feeble, though some materials are produced before the Court through the evidence of PW.18. He has stated that 40 earlier he has registered a case against accused No.3 and a lady by name Mallamma in respect of the offences under Sections 3 and 7 of Essential Commodities Act in Crime No.100/2007 and he has filed a charge-sheet as per Ex.P.18. But on perusal of Ex.P.18 and the evidence of this witness, there is no name of deceased Basavaraj finds a place as a informant to the police making allegations against the accused No.3 and said Mallamma. Therefore, who has actually given a complaint against the accused is not forthcoming. Therefore, the case of the prosecution that the deceased Basavaraj had given a complaint to the police on the basis of which the police have registered a case against the accused No.3 for the offences under Essential Commodities Act and for that reason all the accused persons had some grievance against the deceased Basavaraj, therefore, in that context the incident happened. Thus, story of the prosecution is not substantiated by any material on record. 41
40. Last but not least the recovery of two clubs at the instance of accused No.4, the witnesses have turned hostile as we have already referred to. However, even this recovery is shown to have been proved but the Investigating Agency not sent these clubs to the forensic examination in order to assertion whether they contain any blood stains. There is no connectivity between the recovery and the offence being committed. When the evidence of PWs.1 and 6 are not so creditworthy or trustworthy mere recovery of these clubs is of no avail to the prosecution. It is the case of the prosecution that accused No.1 threw a club on the spot after the incident while running way from the spot. However, PW.1 in his evidence did not support this particular aspect nor he has stated in the complaint in Ex.P.1 that the accused No.1 has thrown away the stick or the club on the spot after committing the offence. Though this club was seized under a spot mahazar and same was sent to Forensic Science Laboratory examination and Forensic Science 42 Laboratory report also says that this contain the blood stains which tallies with the blood group of the deceased, but in the absence of recovery of the club at the instance of accused No.1 and in the absence of any material to show that accused No.1 has handled this club at the time of offence no inference conclusively can be drawn to implicate the accused No.1 to the crime.
41. Under the above said facts and circumstances, in our opinion when the evidence of PWs.1 and 6 is doubtful and not so trustworthy and creditworthy for acceptance and their presence itself is not so probablised on the basis of the evidence on record it is not safe to reverse the judgment of acquittal passed by the Trial Court. When it is shown to the Court that PWs.1 and 6 have falsely implicated accused No.3 to the crime it cannot be ruled out that the some tactics might have also been used to implicate the other accused persons. Therefore, giving benefit of doubt of all the circumstances, we are of the opinion that the trial Court has rightly acquitted the 43 accused persons. Hence, no interference is called for, as such the appeal preferred by the State is devoid of merits.
In the light of the above discussion, we proceed to pass the following ;
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE sn