TN THE HIGH COURT OP KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 05” 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. 429/2008 BETWEEN: Gokulpur Anjinaiah @ Anjinappa S/o.Durgappa Age: about 31 years. 0cc: Agriculture. RIo.Ramsagar village. Sandur Taluk, Bellary District. Appellant. (By Sri.T.Hanuma Reddy & Sri S.G.Rajendra Reddy, Advs.) AND: The State (Torangallu P.S.) Represented by S.P.P., High Court of Karnataka, Bangalore. Respondent. (By Sri.V.M.Banakar. HCGPJ 4$ F, This Criminal Appeal is filed u/s.374(2) of Cr.P.C. by the Advocate for the appellant praying that this Ho&ble Court may be pleased to allow the criminal appeal and be pleased to set aside the impugned judgment of conviction and order of sentence dated 20/12/2007 passed by the learned Prl. Sessions Judge at Bcllary. in S.C.No.105/2005 and acquit the appellant from all the charges with which he is held guilty. This Criminal Appeal coming on for final hearing this day. Sreedhar Rao. J., delivered the following: JUDGMENT The material facts of the prosecution case disclose that, one Jayaram is the deceased. The appellant/accused was suspecting that the deceased had illicit relationship with his wife. The accused earlier to the incident, had unsuccessfully trespassed into the house of the deceased to cause his murder with a sharp edged broken bottle. The deceased and his wife woke up. The accused fled away from the scene. A panchayat was also held in that connection. One S.Lingappa-PW.10. one Manda Ramanna-PW.6 had mediated in the matter. The grouse of the accused against the deceased did not subside by the panchayat. . 3 2. On 111512005 at 09-00 a.m. the accused came to Shree Durgamma Temple in the village. On the platform of the Temple one Chinnappa-PW.2 was vending mangoes. Manda Ramanna-PW.6, Bhimappa-PW.7 and Rogada Chittaiah-PW. 11 and Gachhinamani Maranna-PW. 12, were also sitting on the platform of Shree Durgamma Temple. The accused who was at the temple, took out the knife and suddenly stabbed the deceased. PW.2 and others who were present at the scene tried to catch the accused. But the accused fled away towards Lakkanahalli road while running his chappals fall near Shree Kolluramma Temple, which is nearby Shree Durgamma Temple. The deceased succumbed to the injuries at the spot. 3. PW.2 lodged complaint before the police on the same day at 01-30 p.m. as per Ex.P.3. The police conducted spot mahazar as well as inquest mahazar. The statements of all the above said witnesses are recorded. The accused was arrested on 03106/2005. At his voluntary instance, the knife M.O.l0 used for commission of offence is recovered under 4 mahazar. M.O.10 do not have any incriminating evidence like blood stains as per FSL report. The accused is charged for committing an offence u/s. 302 of IPC. 4. In the trial the eye witnesses PW.2, 6. 7. 11 and PW. 12 have all turned hostile. They do not support the case of the prosecution with regard to the motive and also deny the fact that they are eye witnesses to the incident.. The Trial Court, for perverse and legally untenable reasons, which is stated infra convicted the accused:. i) In para 14 of the judgment, the Trial Court observes that “in the inquest mahazar in column No.4 the presence of PW.1 to 3, 5,6, Il and 12 at the time of incident is mentioned. The inquest panchanama is marked at Ex.P. I. The I.O.-PW.20 has given evidence with regard to the conduct of the inquest as per Ex.P. I .“ Notwithstanding the above witnesses being hostile, the Trial Court finds that the contents of inquest panchanama disclose the presence of the eye witnesses at the scene at the time of the incident. The trial court on the basis of the contents in the inquest 5 mahazar infers the presence of the above said eye witnesses at the time of the incident. ii) The trial court holds that the scene of offence recorded in Ex.P.2- the spot panchanama is shown by PW2. Therefore, in para-14 of the judgment makes the following observations and infers that PW2 was present at the scene and an eye witness. “When the contents of these two documents are not disputed by the accused, it has to be held that PW-2. PW-6. PW- 1 I and PW- 12 were present at the scene of occurrence at the time of the incident and immediately after the incident also. The only suggestion made to PW-1 is that the family members of Jayaram and himself are friends and therefore he is deposing falsely. But it is not shown how he is interested in getting the conviction of the accused. This witness states that in the village all are friends to each other.” iii) In para 15, the Trial Court makes an observation that PW.2 admits his signature on Ex.P.3- complaint. Notwithstanding that PW.2 has not supported the lodging of complaint and the contents of it, in view of his signature on Ex.P.3 1 6 infers that PW2 was present vending mangoes and that he is an eye witness to the incident. iv) The trial court infers that PW3-One Gidda Ramanna-. PW6 and PW12 were present at the scene and that PW.3 who comes to the spot immediately after the incident and that . PW.2 informs PW3 that the accused had stabbed and fled away. The Trial Court comes to the said opinion on the basis of the contradiction version marked in the statement of the evidence of PW2 and PW3 recorded by the police u/s 16 1(3) of the Cr.P.C. v) One Smt.Kashamma-PW.5 is the wife of the deceased. In her evidence she states that she heard the news about the murder of her husband, she goes to the spot. She found PW.2, 11 and PW. 12 were at the scene. Later on people had gathered. In view of the said evidence, the trial Court infers that PW2,PW6,PWI1 and PWI2 are witnesses to the incident. 5. Sri.V.M.Banakar. SPP fairly submitted that the material eye-witnesses to the case have turned hostile. The -7 7 prosecution has proved the circumstance of motive by the evidence of PW3 and PW5 and that the death is homicidal by medical evidence. The PW2,PW6,PWI 1 and PWI 2 who are eye witnesses to the incident of murder examined by the prosecution have turned hostile and they tleny their presence at the scene at the time of incident. The statements of .the said witnesses recorded by the police u/s 161(3) of Cr.P.C. The contradictions in the said statement of the said witnesses have been marked by the prosecution. It is a settled proposition of law, that the omissions and contradictions which are marked in evidence u/s 162 of Cr.P.C. can only be used by the defence for contradicting the witnesses. The prosecution cannot use the same for corroboration or to prove the said contradictions as substantive evidence to prove the guilt. Th learned Sessions Judge. strangely relies upon the said contradictory portions of the statements of the eye witnesses marked in evidence to hold that the accused is guilty. 8 6. The learned Sessions Judge in para 23 and 24 of the judgment has made (he following observations which smacks the pervert understanding of law and on obvious inadmissible material convicts the accused: 23. Then the other eye witness is PW- 12. This witness goes to the extent of saying that he does not know the cause of death of Jayaram and to his knowledge none was murdered at Durgamma Katta of his village. At the cost of repetition, it has to be mentioned that the presence of this witness is established by the evidence of PW-2. Ex.P-3 and the evidence of PW-3 and PW-6. Except the suggestions to the Investigating Officer PW-20, nothing worth is elicited in his cross examination to suspect his evidence that PW-2, PW-6, PW-ii and PW-12 have given statements before him as per Exs.P-3. P-4, P-b and P-il respectively. PW-2 and PW-iO have stated in their evidence that there are only 80 houses in their village. It is not disputed by the defence counsel also. Therefore it goes to show that the village of the accused and the deceased is a tiny village. It is the suggestion of the prosecution to PW-2. PW-6, PW- 11 and PW- 12 that to help the accused they are deposing falsely. One can assess without any obstacle that in such a small village of tiny population, independent witnesses will not come forward to give evidence about the commission of thc crime as they were in no way interested in the deceased and as they will not be interested in incurring wrath of the accused or his family members, as the accused alone is in J.C. and 9 other family members are living in the village. Apart from that if the culprit was someone else. there was no reason for the blood relatives of the deceased i.e., PW-3 to PW-5, the father, brother and the wife to spare or shield the real assailant and falsely implicate the accused. The only suggestion made to these witnesses in the cross examination is that there was boundary dispute between the accused and the deceased, therefore they are giving false evidence against him and they have falsely implicated the accused in this case. In fact the accused himself in his 313 statement has not taken such contention. The said suggestions have remained only suggestions on record without explanation of the accused or any material on record to that effect. It is not even elicited in the evidence of other witnesses that there was any such boundary dispute or ill- will between the accused and the deceased. Apart from that at the first instance the complaint is filed by PW-2 as per EX.P-3 implicating the accused and not by the blood relatives of the deceased. Therefore it can not be said that they have implicated the accused in this case falsely. 24. Then as already pointed out, PW-6 in his cross examination by the prosecution states that immediately after the incident, at the scene of occurrence, the people were telling that it is the accused who stabbed Jayaram. In such a small village if the assailant was someone else, either the hostile witnesses or the relatives of the accused i.e., PW-9 the brother of the accused could have pointed out towards such culprit. It is not their case that Jayaram died accidentally or someone else stabbed him or done him to death. Therefore all the material on record points out the accused as the culprit. Merely because, C Jo PW-2. PW-6. PW-1 I and PW-12 have turned hostile the whole case of the prosecution need not be disbelieved or turned down. Now there is radical change in the approach of assessment of the evidence of hostile witnesses. lf the court finds that they are the eye witnesses and their admissions corroborated with the other evidence on record sustain the charges brought against the accused, then the court can convict the accused for such charges. Therefore, the court is satisfied that the prosecution has proved beyond reasonable doubt the charge brought against the accused. Hence this point is answered in the affirmative. 7. The order of conviction recorded by the Sessions Judge is without any legal basis. The order of conviction is evidently illegal and the accused has made to suffer almost six years of imprisonment from the date of conviction till date. If the learned Sessions Judge continues to have this type of mind-set, it would seriously jeopardize the liberties of the people. The learned Judge should learn the basic tenets of appreciation of evidence. We. therefore direct that the judgment should be kept in ACR of the learned Sessions Judge for taking proper action. ‘I ‘It. 11 8. For the reasons and discussions made above, the appeal is allowed. 9. The accused is directed to be set at liberty forthwith. if he is not required to he detained in any other case. The fine amount to he refunded. 10. The copy of this judgment to be sent to the Sessions Judge to take note of the observations and for proper future guidance. 11. The operative portion of this judgment shall be sent to the learned trial court as well as the Jail authorities. Mrk/