1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 28 TH DAY OF JANUARY 2011 PRESENT THE HON’BLE MR.JUSTICE K. SREEDHAR RAO AND THE HON’BLE MR. JUSTICE C.R.KUMARASWAMY CRL.APPEAL NO. 2819/2009 BETWEEN: 1. Siddappa Appayya Aganappanavar, Age: 26 years, 0cc: Agriculture. 2. Adivappa Yellappa Dasappanavar, Age: 21 years, 0cc: Agriculture. 3. Siddappa Bhimappa Aganappanavar, Age: 26 years, 0cc: Agriculture. 4. Siddalinga Laxman Sanadi, Age: 22 years, 0cc: Agriculture. 5. Chennpa Fakirappa Aganappanavar, Age: 21 years, 0cc: Agriculture. 6. Yallapa Kallappa Aganappanavar, Age: 22 years, 0cc: Agriculture. All are R/o Karalkop, Tq: Gokak, Dist: Belgaum. ...Appellants (Sri. Ashok R. Kalyanashetty, Advocate for A.1 and A.2, Sri. Srinand A. Pachhapure, Advocate for A.3 to A.6) 2 AND: The State of Karnataka, By its State Public Prosecutor, High Court Building, Dharwad. .. Respondent (By : Sri. V.M. Banakar, ASSP.) This criminal appeal is filed U/s. 374(2) of Cr.P.C., by the Advocate for the appellants seeking to set aside the Judgement passed by the learned Prl. Sessions Judge, Belgaum in S.C.No.196/2007 dated: 14-10-2009 / (15-10-2009) and acquit the appellants from the charges leveled against them. These appeal coming on this day for final hearing, Sri. C.R. Kumaraswamy, J., delivered the following: - JUDGMENT 1. This Criminal Appeal is filed U/s.374(2) of Cr.P.C., by the Advocate for the appellants seeking to set aside the Judgment passed by the Principal Sessions Judge, Belgaum in Sessions Case No.196/2007 dated 14-10-2009 and acquitting them from the charges levelled against them. 2. The brief facts of the prosecution case is that one Revappa Yallappa Duradundi, aged about 28 years, resident of Kalarakoppa, Taluk: Gokak gave a complaint before the PSI of Gokak Police Station on 03-10-2006 at 11.00 hours. 3 3. The contents of the complaint is that one Satteppa, Yallappa, Gurusiddappa and deceased-Basappa are all his brothers. They are living separately. His elder brother Basappa was carrying on milk vending business. He has purchased the land belonging to Fakirappa Siddappa Agasappanavar and Sheemappa. In that land he has constructed a house and he was residing along with the family. Hanumantappa Siddappa Aganapa’s lands were adjacent to the land of Fakirappa. It is alleged that A.1 has illicit connection with Ningavva, wife of Hanumantapa Siddappa Aganappa and the complainant’s brother-Basappa has also developed illicit connection with Ningavva. The said illicit connection was known to Siddappa Appayya Aganappanavar. 4. It is also stated in the complaint that yesterday there was annual festival. The complainant’s brother Basappa wanted to go to Mill to prepare Kari powder and he went on a Motor Cycle bearing Reg.No.KA-30-H-3341 and said Basappa took A.1-Siddappa Appayya Aganappanavar 4 and A.2-Advappa Yallappa Dasappanavar on his Motor Cycle and they were followed by A.3 to A.6 in a different Motor Cycle. Today on 03-10-2006 Tuesday, the complainant’s mother-Ningavva went to sell the curd to Gokak and when she returned back to the Village she was crying and she narrated that near the land situated at Kalaburgi she saw the dead body of Basappa on the road and a Motor Cycle was lying on his dead body. Immediately, neighbours and their family members went to the spot and they saw that the complainant’s brother-Basappa has sustained injuries and his private part was also severed. Then they discussed about who might have committed this crime. PW.19- Siddappa Kallappa Goudappanavar narrated about the incident. He has stated before them that on 03-10-2006 in the night at about 1.00 am, the accused Nos.1 to 6 formed an unlawful assembly with common intention to commit murder, assaulted the deceased-Basappa by means of Chopper and Axe and committed murder of Basappa. Then he proceeded to Gokak. Since the deceased was having illicit connection with Ningavva and due to sexual jealousy, 5 this crime was committed. In this regard PW.5-Revappa Yallappa Durdundi lodged a complaint. On the basis of this complaint Crime No.205/2006 was registered against the accused Nos.1 to 6 for the offences punishable under Sections 143, 147, 148, 302 nw 149 of IPC. The incident occurred at 1-00 hour on 03-10-2006. The crime was entered in the general dairy on 3-10-2000 at 11-00 hours. 5. After the investigation, the Police laid a charge sheet. It is stated in the charge sheet that accused No.1 was having illicit connection with CW.19, i.e. PW.17- Ningavva, and said CW.19/PW.17 was also having illicit connection with deceased-Basappa. Due to this illicit connection and also due to financial transaction, the accused Nos.1 to 6 took the deceased-Basappa on a Motor Cycle bearing Reg.No.KA-30-H-3341 and also another Motor Cycle bearing Reg.No.KA-23-H-4453 towards Gokak, where the accused assaulted Basappa by means of Chopper and axe and severed his private part and thereby they alleged to have committed the offences punishable under Sections 143, 147, 148, 364, 342, 120(B) and 302 nw 149 of IPC. 6 6. PW.19-Siddappa Kallappa Goudappanavar, is the material witness and he is an eye witness to the incident. He has stated in his evidence that he was working as a coolie and his native place is Kalarakoppa Village. When there is annual festival in the Village, his brother used to visit the house. That on 03-10-2006 there was annual Chamundeshwari Festival at about 8-45 pm., he came from Goa to Gokak. Since there was no bus facility he borrowed a Motor Cycle belonging to Maruti Gudagannavar then he proceeded on the said Motor Cycle and was stopped the same at Ram Bhavan Hotel in order to consume water. He saw accused Nos.1 to 6 were sitting in the Hotel along with deceased-Basappa. He asked Basappa to accompany with him, for that he stated that Siddappa, Adaveppa are all with him. When he came out, he saw Siddappa Appayya Aganeppanavar, Adaveppa Yallappa Dasappanavar and Basappa Yallappa Duradundi were there and other four accused came in a Motor Cycle from behind. He also went behind them near Kalaburgi, there was a channel and Motor Cycle was stopped and Basappa started screaming and the 7 accused assaulted him by means of Chopper and Sickle and he fell on the ground. Thereafter the accused saw him, he turned his Motor Cycle and returned. The motor Cycle was made to fall on Basappa. It was 1-30 am and there was moonlight. In that moonlight, he saw the accused persons and he knows accused Nos.1 to 6. He also knows Basappa. He identified the Sickle and Axe and they were marked as M.Os.1 to 4. When Police showed the Sickle and Axe, the accused Nos.1 to 4 were present and accused Nos.5 and 6 showed to him on the next day and he identified them. During his cross-examination he has stated that after he came from Gokak, he took Motor Cycle at 11-30 pm, and went to Ram Bhavan Hotel to have water. He also states at para 6 of cross-examination that he saw the accused assaulting the deceased-Basappa at about a distance of 15 to 20 feet. When he followed the accused, at that time he was proceeding on a Motor Cycle at a distance of 200 feet. In the night the accused assaulted the deceased. He turned the Motor Cycle and came back and heard Basappa was 8 shouting. When he reached the Village, it was 1-45 am. The witness has voluntarily stated that at 1-45am he went to Gokak and slept in Yallamma’s Temple. In para 8 of his cross-examination when he returned from Gokak, he did not think he should report the matter to the Police. He did not also narrate this incident to Maruti Gudagannvar or to any other person. When he went to his house at 8-30 am he narrated about the death to one of his family member. The Police met him at 3.00 pm. He also stated during his cross- examination that all the four accused went in another Motor Cycle. 7. The evidence of PW.5-Revappa Yallappa Duradundi is in the same line as of the contents of complaint. PW.5 has stated in para 10 of his cross examination that rests of five accused were sitting at Kalarakoppa cross. He has not enquired Siddappa Aganappanavar about where they were taking his brother Basappa. During his cross-examination he has stated that the Police themselves written the complaint. PW.2 is the 9 scribe of the complaint. He has stated in his evidence that as per narration of complainant-PW.5, he wrote the complaint, which is marked at Ex.P.3. Though this witness was cross-examined, but nothing is elicited to disbelieve his evidence. PW.3 is the Photographer, who has taken the photographs of the dead body of the deceased-Basappa. Ex.P.4 to 7 are the photographs. 8. PW.4 is the medical officer, who conducted P.M. examination on the dead body of deceased Basappa. He has stated in his evidence that the deceased Basappa is aged about 35 years. He conducted P.M. examination on the dead body at Mortuary of General Hospital, Gokak between 4-00 pm and 5-00 pm. On examination he found seven injuries on the dead body, which are as under: 1. Penis was amputated and scrotum was ruptured, both testicles were present. 2. Lacerated injury over the left side of face measuring 4” x 1/2” 3. Lacerated wound over right ear measuring 1/2”, and bone depth. 4. Lacerated wound over the right eyebrow. 10 5. Lacerated wound over left elbow, measuring 8” x 3” and bone depth. 6. Lacerated wound over the right elbow, measuring, 41/2 x 2’/2” and bone depth. 7. Lacerated wound over left leg, measuring 2”xl” and bone depth. 9. PW.4 also stated in the evidence that the cause of death of deceased-Basappa is due to severe hemorrhage, due to multiple injuries. Time since death was 10 to 12 hours prior to P.M. examination. He has issued P.M. Report as per Ex.P.12. 10. He further deposed that on 22-11-2006 he examined two sickles and two axes, which are marked as M.O.Nos.1 to 4. The injuries mentioned in Ex.P.12 might have been caused by M.O.Nos.1 to 4. He has issued opinion report of weapons as per Ex.P.14. During his cross-examination PW.4 has stated that semi digested food particles found in the stomach within 2 to 3 hours, after consuming food. He also states in his cross-examination that M.O.Nos.1 and 2 have got sufficient 11 bends. Injuries 1 and 2 present on thorax and injuries 2 to 7 i.e., lacerated wounds over face and left leg have not been caused with the edges of M.O.Nos.1 and 2 and they might have caused by the tip of those sickles. 11. PW.6-Shivananda Tippanna Nayak is the Manager of the Hotel. He has turned hostile to the side of prosecution. PW.7-Siddappa Kallappa Kanavi is the panch witness for five panchanamas namely inquest, spot, seizure of apparels of the deceased, seizure of diary, and seizure of Motor Cycle produced by PW.8. 12. PW.8 is the owner of the Motor Cycle bearing Reg.No.KA-23-H-4453. He has turned hostile to the side of prosecution. PW.9 is the son of the deceased. He has deposed that he knows all these accused and on 03-10-2006 his father was murdered. He further deposed that at 10-00 pm, his father-Basappa went on Motor Cycle along with Siddappa and Adiveppa and 4 members namely Siddalingappa, Channappa, Yallappa, and Sanna Siddappa went in another Motor Cycle. He also shouted to stop the 12 vehicle, in spite of it, they did not stop the same. His mother came at 1030 pm. During his crossexamination he has stated at para 10 that his house is situated, adjacent to his house. There were sugarcane crops grown. In front of his house there are thorny trees. The distance between his house and Kalarakoppa is half km. There are no streetlights in front of his house. 13. PW.9 is a minor son of the deceased. He is a child witness. He has deposed that accused No.1 to 2 took his father on the motor cycle. The motor cycle belongs to his father. 14. PW.10 is the seizure panch witness for M,O.Nos.1 to 4, which were used for commission of offence. 15. PW.11 is mother of the deceased. She has deposed that she saw dead body of her son at about 7-00 pm., when she went for selling curds. She also stated about loan transaction taken place between the accused and deceased and also stated about illicit intimacy between PW.17-Ningavva and deceased and due to this the accused 13 suspected and committed murder of her son-Basappa. She has omitted to state before the Police that Ningavva was a mistress of her son. 16. PW.12 is the wife of the deceased. She speaks about the loan transaction between the deceased and accused. She has produced three diaries, which are pertaining to statement of accounts maintained by the deceased. 17. PW.13 is the elder brother of the deceased. He deposed that Siddappa and Adiveppa took his younger brother-Basappa on Motor Cycle of his brother. During his cross-examination he stated that he has omitted to state before the Police that Siddappa Appayya Aganappanavar were having illicit connection with Ningavva-PW.17. 18. PW.14 has deposed that in Basavanna Temple, the accused-Siddappa Appayya Aganappa and other five persons were discussing that they were fed up with giving interest to Basappa, therefore, they decided to kill him and accused No.1 threatened him that if he discloses this fact 14 his life will be in danger. Then Basappa came there, then Siddappa and Adiveppa went along with Basappa on Motor Cycle belonging to Basappa. During his cross-examination he has admitted that he is close relative of PW.5 and PW.13 and also deceased. 19. PW.15 is formal witness. He has deposed that he has carried PW.11-Ningavva to Gokak. PW.16 is the carrier of FIR. PW.17 has stated that she was not having any illicit connection with Siddappa Appayya Aganappanavar and she does not know about accused Nos.1 to 6 and Basappa. She has further stated that the Police have not recorded her statement. This witness has turned hostile to the side of prosecution. 20. PW.18 is the author of the contents of diary Ex.P.19. He has turned hostile to the side of prosecution. PW.20 is the Police Constable, who carried the articles to FSL belonging to Crime No.205/2006. PW.21 is the Police Officer, who registered the case in Crime No.205/2006 for the offences punishable under Sections 143, 147, 148, 302 15 nw 149 of IPC. He has conducted inquest panchanama as per Ex.P.16. He also inspected the spot after securing panch witness and drew spot panchanama as per Ex.P.17. He also drew sketch of scene of offence as per Ex.P.32. In his cross-examination, nothing is elicited to disbelieve his evidence. 21. PW.22 is the panch witness along with PW.1. He has turned hostile to the side of prosecution. PW.23 is the Investigating Officer, who laid charge sheet against the accused after completion of investigation. During his investigation he has recorded the voluntary statements of accused Nos.1 to 4 and seized M.O.Nos.1 to 4, which are the weapons used for the commission of offence. 22. The statements of accused were recorded. The accused denied the prosecution allegations. 23. The sum and substance of the finding of the Trial Court is as under :- 16 “The Trail Court has observed that even though PWJ9, who is as per prosecution is said to be eye witness, failing to report to the police with regard to the incident upon seeing the incident on 3-10-2006 at 1 am or so, in view of decision of the Hon’ble Apex Court reported in 1985 Cri.L.J. 1862 is of the opinion that it is not unnatural on the part of the person who witnessed the ghastly incident not to set the criminal law in motion. It is but proper to extract Head Note (A) of the above decision, which reads th us”: (A) Evidence Act (1 of 1872), Sec.3 — Eye-witness Evidence of — Appreciation. It is not uncommon for persons when they see a ghastly and dastardly murder being committed in their presence that they almost lose their sense of balance and 17 remain dumb-founded until they are able to compose themselves”. “Merely because, therefore, the sole eye witnesses did not immediately disclose the names of the accused to the inmates of the family of the deceased when he went to the house, it could not be said that there was fatal defect in the prosecution case,” “The trail Court has observed that with regard to the motive for the commission of the offence, according to the prosecution, it was to- fold in nature. The first motive, as per prosecution, is that accused No.1 had taken loan Rs.50,000/- from the deceased Basappa and it was to be repaid with interest at 3% per month and that accused No.1 was paying interest on the said amount of loan and in view of the deceased demanding accused No.1 to repay the 18 amount of principal, accused No.1 had become angry, and accused No.1 in furtherance of the conspiracy with accused Nos.2 to 6 took steps to finish off the deceased”. “The trail Court has further observed that the second motive for the accused to commit the offence, as per the prosecution, is that accused No.1 had illicit intimacy with PW.17 and deceased Sri.Basappa Durdundi also had illicit intimacy with PW.17 and in that back drop, accused No.1 was angry with deceased Basappa Durdundi, and accused No.1 along with accused Nos.2 to 6 hatched conspiracy to finish off the deceased Sri Basappa Durdundi”. “The trail Court has also mentioned in its judgement that PWs, 5, 9, 11, 12, and 13 have spoken regarding loan transaction of 19 the deceased Basappa Durdundi with accused No.1. PW.5 has spoken regarding illicit intimacy of the deceased with PW.17, with whom accused No.1 had also intimacy”. The trail Court has also observed that M.O.2, M.O.3, M.O.1 and M.O.4, namely, sickle, axe, sickle and axe, respectively, were seized by PW.23 from accused Nos.1 to 4, as per panchanamas at Exs.P.24, P.26, P.25 and P.23, in pursuance of voluntary statements made by accused Nos.1 to 4 Exs.P.33, P.34, P.35 and P.36, respectively, in the presence of panchas PW.1O and a nother”. “The trail Court has also observed that PW.9 who is minor son of the deceased and who is as a child witness, has deposed with regard to accused Nos.1 and 2 taking his father on the motorcycle of his father. 20 PW.13 has deposed that accused Nos.1 and 2 took the deceased on the motorcycle”. “The trail Court has also observed that according to ExP.41, items SI No.2,3,4 and 5 were stained with human blood, stains in item No.1, namely, mud, was disintegrated, hence their origin could not be determined, and stains in items No. 6,7,8 and 9, which are 2 sickles and 2 axes, were not sufficient for serological examination”. “The trail Court has mentioned in its judgement that evidence of PW.19 to the effect that he was coming to his village form Goa to attend the Jatra, and there being Jatra on 3-10-2006, is not disputed by the defence. What the defence contends is that the presence of PW.19 at the alleged time and at the place of occurrence is doubtful. But on perusal of evidence of 21 PW.19, who is neither relative of the complainant nor of the deceased, there is no reason for PW.19 to falsely implicate accused Nos. 1 to 6”. “The Trial Court has observed at para 230 of its Judgment that PW.5, who is the complainant and brother of the deceased Basappa, has deposed that at 7-00 am, on 03.10.2006, his mother Smt. Ningavva PW.11, told to him and others with regard to the death of her son Basappa. She saw the dead body while she was proceeding in Jeep to Gokak for the purpose of selling of curds, the jeep was driven by PW.15.” “At para 234 of its Judgment the Trial Court observed that even though PW.19, who is as per prosecution is said to be an eye witness, failing to report to the Police 22 with regard to the incident upon seeing the incident on 03-10-2006 at 1-00 am”. “The Trial Court has also observed that the accused No.1 was taken loan of Rs.50,000/- from deceased-Basappa and it was not paid with interest at 3 % per annum. One of the motive for the crime is accused No.1 is having illicit connection with PW.17, and deceased also having illicit connection with PW.17 and in this background the accused No.1 angry with deceased-Basappa and accused No.1 has conspiracy to finish Basappa. The Trial Court has also observed that PW.5, PW.9, PW.11, PW.12 and PW.13 speak with regard to loan transaction between deceased Basappa and accused No.1”. “The Trial Court has also observed at para 255 of its Judgment that “PW.5 who is 23 complainant, has deposed that on 02-10- 2006, during night, accused Nos.1 and 2 took the deceased-Basappa on Motor Cycle, and on another Motor Cycle, accused Nos.3 to 6 left the place following the Motor Cycle on which accused Nos.1 and 2 and the deceased-Basappa were proceeding. M .Os.5 and 6 are the Motor Cycles of the deceased and PW.8.” The Trial Court has also observed at para 264 of its Judgment that “It is for the accused to explain as to how and in what manner the deceased, who was in the company of accused Nos.1 to 6, disappeared or sustained such severe injuries as is depicted in Ex.P.12.” It is also observed at para 265 that “Evidence of PW.19 to the effect that he was coming to his Village from Goa to attend the Jatra, and there being Jatra on 03.10.2006, is not 24 disputed by the defence.” PW.19 is the circumstantial witness”. “The Trial Court considered the evidence of PW.5, PW.9, PW.13, PW.14 and PW.19 and came to the conclusion that the evidence of PW.9 is consistent with the medical evidence i.e., P.M. Report-Ex.P.12.” “The trail Court held that accused No.1 to 6 guilty of the offences under Sections 143, 147, 148, 363, 342, 302 read with Section 149 of I.P.C. and under Section 120-B of IPC”. 24. Feeling aggrieved by the same, the accused Nos.1 to 6 preferred this appeal. 25. We have heard both the counsel for the appellants as well as Additional State Public Prosecutor for the State and perused the Trail Court records. 25 26. The learned counsel for the appellants submits that the motive for the commission of crime is inconsistent. In the complaint, the transaction regarding loan has not been mentioned. The motive has not been established. The contents of the diary has not been spoken by any of the witnesses, even who acquainted this fact have turned hostile. The evidence of PW.5 is that the accused No.1 alone came to the Village and other accused Nos.2 to 6 were waiting at Kalarakoppa cross about 2 Kms away from Kalarakoppa Village. This version is inconsistent with the contents of complaint. The version of complainant-PW.5, the brother, PW.12-wife of the deceased, and PW.9-the son of the deceased are not consistent. There were no streetlights from Kalarakoppa Village to Kalarakoppa Cross. There are no lights in the house of the deceased and his house is situated 30 feet away from the street, it is covered with sugarcane crop. In and around the house of the deceased there were thorny trees. Therefore, the version of PW.9-son of the deceased that he has seen the accused proceeding with the deceased is not believable. PW.22 has 26 stated in the evidence that there was big luggage tied to the Motor Cycle, but this has not been mentioned in complaint. If that is the case, three persons going on the Motor Cycle with luggage is not believable. PW.14 speaks about conspiracy and stated about proceeding deceased Basappa along with accused, but thereafter, he does not narrate this fact to any person. The conduct of eye witness-PW.19 creates a doubt. The evidence of PW.19 is that he waited at Ram Bhavan Hotel between 11-30 pm and 1-45 am without proceeding to his