IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 24 th DAY OF NOVEMBER, 2011 PRESENT THE HON’BLE MItJUSTICE MOHAN SHANTANAGOUDAR AND THE HON’BLE MR.JUSTLCE RAVI MALIMATH CRIMINAL APPEAL NO.2694/2009 BETWEEN: State of Karnataka Old Hubli Police Station Rep. by Additlon& State Public Prosecutor Advocate General Office High Court Circuit Bench Unit Dharwad .. APPELLANT (By Sri V.M.Banakar, Addl.SPP) AND: 1. Durgappa 5/odrappa Korawar Aged 21 years, 0cc: Fruit Vendor Res: Old Hubli, Anandnagar Old Hubli 2. Durgappa S/o.Heggappa Korawar Aged 26 years, 0cc: Business R/o,Doni Gram Mundaragi Taluk, Now at Keshwapur, Hubli Near Jammi High Schooi 3. Irappa S/oShivappa Korawar Aged 25 years 0cc: Shepherd, Res: Doni Gram Mundargi Taluk, Gadag Dist. RESPONDENTS (By Sri Vidyashankar Dalwai, Adv,) This criminal appeal is filed under Section 378(1) & (3) Cr.P,C. by the advocate for the appellant praying that this Hon’ble Court may be pleased to grant leave to appeal against the judgment and order of acquittal passed by the learned 1 Additional District Sessions Judge, sitting at Hubli, in SCNo.2$/2O07 dated 28I12008 the respondents-accused for the offence punishable under Section 302 r/w. Section 34 of IPC. This criminal appeal coming on for hearing, this day MOHANSHANTANAGOUDAR, 3, delivered the following: JUDGMENT Th judnmert and order of acquittal dated 29IL2O0S, passed by the I Additional Sessions Judce, Hubli, in SCNo28!2007, is called in question ‘S -3- 2. The case of the prosecution is that the deceased and PW.25 are the husband and wife. PW.8 is the brother of accused No.1. Accused are not related inter se. The complaint lodged by PW.25 states that she and her deceased husband were sleeping in the hut on 9.10.2006 at about 8.30 p.m. However, the deceased came out of the hut because of uncomfortable sultry atmosphere within the hut. He slept outside the hut. The complaint reveals that PW.25 heard the barking sound of the dogs on the Street and came out of the hut. At that point of time, she found that her husband had died. A big stone was lying by the side of the dead body. Her deceased husband had sustained crush injury on the head. On seeing the same, she cried loudly. The neighbouring persons gathered there. A beat Police came to the spot. Ultimately, an information reached the police station. Consequently, -4- police arrived at the spot and recorded the complaint of PW.25 as per Ex.P21. During the course of investigation, the panchanams were conducted and the statements of various witnesses, including alleged eye witnesses are recorded. The body was subjected to postmortem examination. After completion of the investigation, police laid the charge sheet against all the three accused for the offence punishable under Section 302 of IPC. 3. In order to prove the case, the prosecution in all examined 30 witnesses and got marked 31 Exhibits and 10 Material Objects. On behalf. of the defence, no witnesses are examined and no documents were produced. The Trial Court on evaluation of the material on record and upon hearing, acquitted the accused on the ground that the evidence of PWs.25, 26 and 27 so called eye witnesses is not worthy to be believed. -5- 4. Sri Banakar, learned Additional SPP has taken us through the entire material on record. He mainly relies upon the evidence of PWs.25, 26 and 27 to argue that the prosecution has proved its case against the accused for the offence punishable under Section 302 of IPC. According to him, the evidence of PWs..25, 26 and 27 is consistent and reliable. The appeal is opposed by the learned advocate appearing on behalf of the respondents. 5. PW5.1 to 7 are mahazar witnesses for various panchariams, such as scene of offence panchanama, inquest panchanama, seizure panchanama, etc. All of them have turned hostile. PW.8 is the younger brother of accused No.1. He was supposed to depose the alleged extra judicial confession made by accused No.1 and about the motive. PW.8 has turned hostile. PWsS to 14 are the neighbours of accused and the deceased. It is oN -6- relevant to note that the house of the deceased and the accused are nearer to each other. Consequently, accused and deceased are neighbours PWs 9 to 14 have turned hostile. PWs.15, 19, 20, 22, 23 and 24 are the police officials who have participated in the investigation. PW.16 is the Engineer who drew sketch of the scene of offence as per Ex.P15. PW.17 is the Engineer of Electricity Board who has deposed about the supply of electricity during the relevant time and date. PW.18 is the photographer who took the photographs of the deceased as per Ex.P1 7 to Ex P20 PW 21 is the Police Constable who scribed the complaint as per Lx P21 and inquest pan bantma at Fx P2 PWs 23 and 24 ire the police offic als ncharge o qnd hugh dg re fnoo te ce h e P ne cmpaii a HE fh c a lat p -7- of the complainant and accused. They are the eye witnesses. They have supported the case of the prosecution. Their statements were recorded on 21.10.2006. PW.28 is the Doctor who conducted the postmortem examination. He has opined that the death is due to respiratory failure consequent upon injury to brain. PW.29 is another mahazar witness, who turned hostile. PW.30 is the Investigating Officer. 6. From the above, it is clear that P.Ws.25, 26 and 27 are the important witnesses whose evidence needs to be scrutinised in this matter. 7. The complaint — Ex.P-21 nowhere reveals the motive and the names of the accused. At the time of lodging the complaint, the complainant has not suspected anybody. Admittedly, the complaint is lodged at about 04:00 a.m. on 20.10.2006. The incident has occurred somewhere in between 09:00 p.m. and 01:00 a.m. during the intervening night between 19.10.2006 and 20.10 2006. The complaint reveals that the complainant came out of the house, after heanng barking sound of the dogs on the Street After coming outside, she found the dead body of her husband and a big stone was lying by the side of the dead body. After seeing the dead body, she cried loudly. On heanng the cries, the neighbounng witnesses came to the spot. Though the names of four neighbouring witnesses are mentioned in the complaint, who came to the spot after hearing the cnes of the complainant, the name of 27 is not mentioned. Thereafter, the Beat Police came to the ,pot The factum of death of the de%eased ai nformed by the complainant to the Beat Police In r Beat o cesenta esag toMe oie ta th I wet ane sin th A 1 F deotn onplainta e F P t04 006 n the 3 di -9- 20. 10.2006, none of the persons, including the complainant was knowing about the names of the assailants. The motive of commission of murder was not forthcoming In the compliant. However, in her evidence, P.W.25 (complainant) has deposed that she was threatened by the accused and thereafter, she did not inform to anybody about the complicity of the accused, which means, P.W.25 has not informed to any of the witnesses, including P.Ws.26 and 27. She has not narrated the incident to Beat Police alongwith P.W.20 — the Police is an Independent official of the State Government. He was entrusted with the duty of maintaining Law and Order. Therefore, it cannot be believed that the complainant did not inform the Beat Police also, as she was threatened. There was no hurdle as such for her to inform the incident to Police, who came to the spot immediately. - 10 - 8. P.W.20 in his evidence has stated that he did not enquire anybody, who were present near the dead body and he did not ascertain the names of the persons, who had assembled there. However, he informed the Police Station by walkie-talkie and flashed the message to Police Control Room. P.W.20 has noticed gathering of people near the house of the deceased — Mallesh. 9. We find that the evidence of P.Ws.26 and 27 is artificial and not natural. According to them, they came out of the house, even prior to the offence for answering the calls of nature. At that point of time, both of them saw the three accused marching in front of the hut of the deceased. The accused allegedly threatened P.Ws.26 and 27 and told them to go inside their house. Accordingly, P.Ws.26 and 27 came inside the house, but watched the Incident by staying in the house. They saw accused Nos.1 and 2 throwing a big stone on the head of the deceased who was sleeping — 11 — and at that point of time, accused No.3 was watching here and there; because of the serious injuries suffered, the deceased prior to his death cried loudly, after hearing the cries, P.W.25 came out of her house and saw the dead body. If the evidence of P.Ws.26 and 27 is believed, then P.W.25 is not the eyewitness. More over, the complaint itself is silent about P.W.25 seeing the incident. As aforementioned, the complaint does not even mention the name of P.W.27. In the cross-examination, P.Ws.26 and 27 have deposed that they did not try to apprehend the accused; there was no threat by the accused to P.Ws.26 and 27 that they should not inform to anybody. Despite the same, P.Ws.26 and 27 did not inform about the incident to anybody, much less, to the Police and the wife of the deceased about the act of the accused. The statements of P.Ws.26 and 27 are recorded on 21.10.2006, that is, after one day of lodging of the complaint. They are the neighbours of the deceased. - 12 - The statements of all the neighbouring witnesses are recorded on the very day of lodging of the complaint. There is no reason as to why the statements of these two witnesses were not recorded on that day. 10. Be that as it may, the conduct of P.W.26 and 27 in not informing anybody, including the Police would seriously create the doubt on the case of the prosecution. The natural human conduct is to inform atleast to the Police and the wife of the deceased. If really P.Ws.25, 26 and 27 are the eyewitnesses, their names would have found in column No.11 of the inquest panchanama. We are conscience of the fact that inquest panchanama is prepared to find out the particulars relating to the death and the dead body. Column No.11 of the inquest panchanama, as aforementioned, does not even mention the motive as well as the names of the eyewitnesses. The inquest panchanama was prepared in between 08:30 a.m. and 10:00 a.m. on 10.10.2006. Thus, it is clear that till -13- a. that time, atleast nobody saw the incident and consequently informed the Police about the actual assault by the accused. 11. As aforementioned, the complaint does not disclose any motive of the incident. However, P.W.25 In her deposition has stated that the accused were jealous of the deceased, as the deceased was thriving in his business of selling broomsticks. However, the said motive is given go by the prosecution. Later, subsequently, another motive, that is, the second version of the prosecution relating to motive came into picture, that is, some days prior to the incident, the deceased tried to strangulate P.W.8 — younger brother of accused No.1 and with that grudge in the mind, all the accused murdered the deceased. P.W.8 has turned hostile. Both these motives are not found in the complaint. The case of the prosecution was being improved from time to time and stage to stage. The trial Court has rightly found that the evidence of -14- P.Ws.25, 26 and 27 is highly suspicious and their version is unbelievable. 12. In our considered opinion, the trial Court is justified in acquitting the accused under the facts and circumstances of the case. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. The view taken by the trial Court under the facts and circumstances of the case, cannot be said to be erroneous. On the other hand, such a view Is one of the possible views under the facts and circumstances of the case. Hence, no interference is called for and accordingly the appeal is dismissed. ‘Sd; JUDGE [) Sd! JUDGE