IN THE HIGH COURT OE KARNATAKA CIRCUIT BENCH AT DHAPWAD DATED THIS THE 1st DAY OP AUGUST 2011 PR E S E N T THE HON’BLE MRJUSTICFZ F-Ii3ILLAPPA AND THE HON’BLE MR. JUSTICE ARALI NAGARAJ CRIMINAL APPEAL NO.21JQO5 BETWEEN: State of karnataka hroL1h the C. P. I. ()f Ahani, Be1aum Distriet, Appe lion I (By SriV.MBanakar, AcicIl.SPP) AND: I Bahu Bandru Bhosole, Age:58 years, 2. Srnt. (anwwa. \ki / a. B a b a B h a so 1 e, 3. Santosh Babu Bhosale, Ate: 22 years. 4. Suhhash Babu Bhosale, Age:25 years. 3. Ashok Babu Bhosale, Ake: 20 years. ii 6. Sunitha Babu Bhosale, Age: 35 years, 7. Sumitra W/o lshwar Kale, Age: 40 years, 8. Sushila Babu Bhosale, Age: 37 years, 9. Hemamalini W/o. Santosh Bhosale, Age: 25 years, 10. Kanchana W/o Subhash Bhosalc, Age: 20 years, All arc R/o Kohalli Village, Taluk: Athani, Belgaum District. Respondents (By Sri.R.B. Deshpandc. Advocate (absent)) This Criminal Appeal is filed U/s.378(1) & (3) of Cr.P.C. seeking to grant leave to file an appeal against the judgment and order of acquittal dated 22/5/2005 passed by the Fast Track Court-T, Chikodi, in Sessions Case No.265/2002, acquitting the respondents-accused for the offences punishable under Sections 143, 147. 148, 440, 436, 302 & 307 read with Section 149 of IPC. This Criminal Appeal coming on for Hearing this day, Arali Nagaraj, J, delivered the following: JUDGMENT This appeal is by the complainant-State in S.C.No.265/2002 on the file of the learned Presiding Officer, Fast Track Court-I (District and Sessions 1 iudge), Chikodi (hereinafter referred to as ‘Trial Court’ for short). The appellant-State has challenged in this appeal the correctness of the Judgment and Order dated 23/05/2005 passed in the said ease acquitting the accused Nos.1 to 10 therein (respectively respondent Nos.1 to 10 herein), of all the offenees under Sections 143, 147, 148, 448, 436 and 302 read with Section 149 of IPC with which they stood charged. 2. Stated in brief, the case of the prosecution as alleged in the complaint Ex.P58 dated 25/04/2002 filed by one Jayashri Bhosale, resident of Kohalli village. Chikodi Taluk. District Belgaum is as under: ‘(a) The complainant has been staying with the members of family at the said village. The deceased lshwar Bandru Bhosale and Smt. Limbabai lshwar Bhosale were brother-in-law and mother-in-law of the complainant. Deceased Smi. Devila, deceased Smt. Shivakka were the sister-in laws of the complainant. Deceased 4 Basappa, deceased Lingappa, deceased Hanamant terc the brother in laws of the complainant. Deceased child Laxmi aged about one scar was the daughter of the deceased Smt. Devala. To other deceased namel3 Smt. Tejamma and Awwakka and other members of the complainant’s famil>, and all the said deceased and the complainant were residing in the same house at the said illage. (b) Accused No.1 Babu Bandru Bhosale is thc elder brother of the deceased Ishuar Bandru Bhosale. One l{umari Kasturi. the daughter of accused was brought up by the deceased. She died thi1c she as under treatment in the hospital at Miraj. Accused No.1 babu Bandru Bhosale, his wife (accused No.2 Smt.Gangana) and accused Nos.3 to 10 who art’ the relatives of accused Nos. I and 2, threatened the deceased Ishwar Bandru Bhosale that they \VOUld not leave him and all the rimbers of his family alive, as th’v werc all responsible br the dcail ol the child kasturi by resorting to \vitchcratt practices. (c) Un 24.04.2002 at about n.30 p.m. while all the said ten deceased persons and also the complainant were in their house in the said vIllage, accused Nos. I to 10, along \vith two other persons from Desaratti and kudachi Bridge, came to the house of the complainant forming themselves into an unlawful assembly holding weapons like Axe, Knife and also kerosene oil, Match box and threatened the complainant and all the deceased that they would kill them all by setting the house on fire. Thereafter, accused No.2 Srnt. Gangawwa and accused No.6 Smt Sunita spilled kerosene on the doors and \vindows of the house, accused No.5-- C, Ashok lit fire to the house with the match stick. When house was on fire, the complainant and all the deceased persons who were inside the house, came out it with great difficulty and then accused No.3 Santosh ussaulted the deceased lshwar Bandru Bhosale with Axe and other accused recklessly assaulted the other deceased. As a result of which, the deceased sustained burn injuries and also other injuries due to assauls. All the said ten persons breathed their last at the spot of the incident only. 3. Thereafter, the complainant lodged her complaint before the P.8.1. of lgali P.S., and the latter registered the case, on the basis of the said complaint. in Crime No.46/2002 of the said P.S. against all the ten accused for the offences under Sections 143, 147, 148, 436. 440. 307 and 302 read with Section 149 of IPC and issued FIR. After the charge sheet was filed. 7 all the ten accused, who are respectively respondent Nos. 1 to 10 herein, were tried for all the said offences. 4. On appreciation of the oral evidence of PWs.1 to 41, the documents at Exs.P1 to P59 and MO Nos.1 to 37 and also after considering Exs.D1 to D4, portions of the statements of some of the prosecution witnesses, the Trial Court, by its impugned Judgment and Order, acquitted all the len accused, of all the said .offences. Therefore, the State has filed the present Appeal. 5. We have heaid the arguments of Sri. V.M.Banakar, learned Additional SPP, and perused the impugned judgment and order of acquittal and also the entire material found in the records obtained from the Trial Court. Sri. R.B.Deshpande, learned counsel representing the respondents-accused, is not prescnt. Therefore, his arguments are taken as heard. 6. Having heard the learned Additional SPP, the only point that arise for our consideration in this appeal is: K “Whether the Trial Court is justified in acquitting all the x2ccused despite PW.36- coinplo in ant Sin t.Jayashri supporting the prosecution case and despite there being no dispute that all the ten. deceased persons met with homicidal death on the said date. time and place? 7. In order to prove the charges leveleè against all the accused for the said offenees, the prosecution has placed reliance on the oral evidence of P.W.36, the complainant Jayashri, who actually witnessed the said incident and lodged her complaint-Ex.P58 and also the oral evidence of PWs.l1 to 16, who were examined as eve witnesses to the said incident. Unfortunattlv, PWs.lO to 16 have turned hostile to the case of prosecution. They have not supported its case to any extent. They have denied that they stated before the Investigating Officer during the investigation as per Exs.P.l8 to 24. Substance of these statements is that on the said date, time and place, all the accused Nos.1 to 10 formed into an unlawful assembly armed with deadly weapons like Axe, Knife and Clubs etc., and set the house of the complainant on fire with intent to 9 cause death of all the ten deceased persons, who were insidc it and that when all the ten deceased came out of the house along with the complainant, the said accused recklessly assaulted all the said deceased with the said weapons and thereby inflicted fatal wounds which resulted in their death. This being the nature of the evidence of all the PWs. 10 to 16. the I Trial Court has rightly disbelieved their evidence. 8. The eomplainant-Jayashri has been cxamincd as P.W.36. She has supported the prosecution case. She has stated in hcr complaint Ex.P.58 that her deceased father-in-law lshwar Bandru Bhosale was assaulted by accused No.3- Santosh. She has deposed in her evidence that it was accused No.1 Babu. who assaulted the said deceased. As to the assault on her, she has stated in the complaint that she was assa tilted by accused No. 1 Babu with the blunt portion of the Axe. She stated in her evidence that she was assaulted by accused No.4 with the blunt portion of Axe. Further, Ex.P53 wound certificate pertaining to this PW36 complainant reveals 10 that when she was examined by the Medical Officer, Primary Health Center. Igali. she was found sustained cut lacerated wound over left eye and another cut lacerated wound over left eyebrow and that, in the opinion of the said doctor, said injuries could have been inilieted on her b’ assaulting with sharp und hard object. The allegations in the complaint and her evidence as to the accused who assaulted her, the nature of assault and injuries, are quite contrary to the contents of the said wound certificate. 9. Further, PW3b complainant Jayashri has stated in her evidence that after accused No.1 assaulted the deceased lshwar, accused No.4 Subhash assaulted her and consequently she fell to the ground, went unconscious, and regained consciousness some time thereafter. She has not stated anything in her evidence as to the assault by any of the other accused Nos.2 to 10 on any of the ten deceased persons. As to the accused setting the house on fire. she has stated in her complaint Ex.P.58 that accused No.2 Gangawwa and aecuseci No.6 Smt . Sunita spilled kerosene oil on 11 the house and then accused No.5 Ashok lit fire ‘ ith the niatc h stick. She lids stated in her evidence that it was accused Nos.e, to 10. who set the house on fire b spilling kerosene oil and lining firc. 10. Besides that the cry factuin of coming into existence of Ex. P.58 complaint said to have been recorded by the P.8.1. as narrated by P.W.3t, complainant Smt. Jayashri has become seriously doubtful. She has stated in her cross—examination that she narrated the incident in Marathi language known to her and the police recorded her complaint as per her narration in Marathi language only. She has further cia rifled in her eross—exaininat ion that her coinpia in t ias not written in Kannada language and she did not Put her signature on any such complaint as was ritten in Kannada Language. Therefore, it cannot be held that the contents of Ex. P.58 complaint ha e been proved by the prosecution through the oral evideiu e of P.W.3b (‘oniplainant-Jayashri. 11. Further. if it is the say of P.k .30 complainant that all the incriminating articles namely. e L the \Vm1pns. said to ha\e b’en used h\ th ((1s(l in the coinlaission at the olfenecs, were seized trolL Inc S (ne at olterie anl\ the case at the prosecition is h at t he said \\ ca pans (‘0 nw to be reeo ye red a he instance at the respective accused pursuant to their respecti\ e alleged disclosure statements. Even the alleged recoveries are also not pro ed b\ the prosecution. in as much as. all the panchas to the respective rceover\ panchanamas have turned hostile to the pro see ution. 12. In view of the above evidence of P.W. 1. who is the only \viiness, who supported the proseectioil case, the Trial Court has rightly recorded the Lading that the prosecution has failed to establish be\ und reasonable doubt, any of the charges leveled against all the accused. It is very painful that ten persons being members of the same famll\ were clone to death, in the village b\ confining them in the house and. setting the house on fire and also b\ brutall\ assaulting them a ith deadly weapons when the\ Liii tried to rescue themselves, from being burnt in the house. I,It U nfortunatel . i he ease c’ndecl in acquittal for Li at of legally acceptable evidence against the dceuscd. I 3. having regard to the nut tire of ‘he allegations in Ex.P.58 complaint and e idenee of the eomplainant(P.W..I6) and also in vie’s of the fact that the very coming into existence of Ex.P.58 eompluixt as narrated by P.W.3t, and the alleged recoveries of the weapons have become seriously doubtful, we hake no alternatie but to confirm the impugned judgment and order of acquittal passed by the Trial Court. 14. Therefore. hile answering the point raised fot our consiclerat ion in the AJfirnzc.rive’ and against the appellant—State, we pass the following: ORDER The present appeal filed by the complainant —State in S.C.No.2u5, 2002 on the file of learned Presiding Officer, Fast Track Court-I (District and Sesqions 1J udge). Chikodi. is hereby disniissr I as being detoid of merits. Cr 14 Th impugned judgmc and arch r of acqui(f is beret,1 confjrmg sal Sd/. JUDGE Rins