IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE l2 DAY OF DECEMBER, 2011 PRESENT THE HON’BLE MR.JUSTICE MOHAN SHANTANAGOUDAR AND THE HON’BLE MRJUSTICE RAVI MALIMATH CRIMINAL APPEAL NO.223/2006 BETWEEN: State by Hukkeri Police, Taluk-Hukkeri, Belgaum District ... Appellant (BY Sri.V.M.BANAKAR, ASPP) AND: 1. Raju Shankar Dang, Age: 28 years, Rio Shlrahatti B.K., Hukkerl Taluk. 2. Ramappa Avagudi Halatti, Age: 42 years, Rio Shirahatti aK., Hukkerl Taluk.d ... Respondents (BY Sri.Santosh B.Malagoudar, Amicus Curiae) This Criminal Appeal is flied u/s 378(1) & (3) Cr.P.C. seeking to grant leave to file an appeal against the judgment dt27905 on the file of the III Addi, SJ, Belgaum in SCNo31/02 acquitting the respondents/accused for the offences p/u/s 302, 504, 506(2), 201 & 452 r/w Sec34 of 1PC and etc. This Criminal Appeal coming on for hearing, this day, Mohan Shantanagoudar J, delivered the following: JUDGMENT The judgment and order of acquittal passed by the III Additional Sessions Court, Belgaurn in Sessions Case No31/2002 is called in question in this appeal by the State. 2. The respondents/accused were tried for the offences punishable under Sections 302, 452, 504, 506(2), 201 read with Section 34 of IPC. 3. The case of the prosecution as made out in the complaint ExP4 filed by PW4 (daughter of the deceased) is that the deceased was suspectina that accused No, I was having illicit relationship with the wife of the deceased SmtLagamavva; in that regard, there used to be frequent 3 quarrels between the deceased and the accused No.1; the deceased in retaliation used to tell that he will develop illicit relationship with the wife of the accused No.1- Sangeeta; panchayaths were held to pacify such disputes and, disputes were pacified about one year prior to the incident In question. However, on the date of the incident I.e. on 11.09.2001 at about 10.00 to 10.30 p.m., accused No.1 came along with the accused No.2 to the house of the deceased and called him out of the house; the deceased did not come out of the house; hence the accused themselves trespassed into the house of the deceased and dragged him from inside the house and brought him to the front yard of the house where he was assauited with jambia (chopper and sickle) mercilessly. Thereafter, the injured was taken to the well situated near the land of the deceased and was thrown into the well; the accused took the deceased by passing through the maize crop, which was grown on the way to the well, while assaulting and while taking away the injured, the accused threatened the Inmates of the house PWs.1 to 3 with dire consequences of tA 4 taking away their lives in case If they intervened in the matter. Being feared of the aforementioned incident, PWs. 1 to 3 did not come out of their house throughout the night of ii”’ September 2001 but came out of the house in the morning i.e., on the next day 12 th September 2001. After searching, they found the dead body of the deceased in the well. PW-1 went to police station at Hukkerl and lodged the complaint as per Ex.P1, which was registered by PW-19 in Crime No.86/2001. The police after investigation laid the charge sheet. 4. In order to prove the case, the prosecution has examined in all 20 witnesses and got marked Ex.P1 to Ex.P21 and 9 materIal objects. The Trial Court on evaluation of the material on record and after hearing acquitted the accused on the ground that the versions of PWs.1 to 3 are unbelIevable. 5. PW-1 is the daughter of the deceased who lodged the complaint and she Is the eyewitness to the V S Incident in question. PW-2 Is the sister of the deceased. She is also eyewitness. PW-3 is the second wife of the deceased and eyewitness to the incident in question. PW5.4 and 5 are the eyewitnesses to the alleged incident, who have turned hostile. PWs.6, 7 and 8 are the elderly persons In the village who participated In the panchayat of pacifying the quarrel between the accused No.1 and the deceased and they have turned hostile. PWs.9, 10, 11 and 12 are the mahazar witnesses for the scene of occurrence — Inquest panchanama. Except PW-12, all of them have turned hostile. PWs.13 and 16 are the mahazar witnesses for seizure of clothes found on the dead body of the deceased and they have turned hostile. PWs.14 and 17 are the mahazar witnesses for seizure of the material objects such as jambla, sickle etc., and they have turned hostile. PW-15 Is the eyewitness who was supposed to speak about throwing the dead body of the deceased in the well by accused Nos. 1 and 2 and he has turned hostile. PWs.18 is the doctor who conducted the postmortem exercise. Postmortem report is at Ex.P15. PW-19 Is the V2 6 PSI, who registered the complaint based on Ex.P1. PW-20 is the inspector who completed the investigation and laid the charge sheet. 6. Sri.V.M.Banakar, learned Additional State Public Prosecutor submits that the evidence of PWs. 1 to 3 is consistent, cogent and reliable; their presence cannot be doubted on the scene of offence inasmuch as, they are the inmates of the very house wherein the deceased was living; the incident has occurred during the night of ll” September 2001 and therefore, the presence of the eyewitnesses (PW5.1 to 3) is natural during the relevant period; since PWs.1 to 3 were frightened by utterances of the accused taking away their iives by dire consequences, the witnesses - PWs. 1 to 3 dId not lodge the complaint during the night. The Trial Court has not assigned any valid reasons for acquittai of the accused inasmuch as, It has given more weight to the minor variations in the evidence of the prosecution. According to him, the minor variations In the evidence of the witnesses will have to be vs 7 Ignored Inasmuch as, such minor variations will not create suspicion in the case of the prosecution. 7. Srl.Santosh B.Malagoudar, learned Amicus Curiae taking us through the material on record has assisted the Court with all seriousness. He brings to the notice of the Court that the conduct of PWs.1 to 3 In keeping quite all through the night of the Incident Is very much unnatural inasmuch as, they being the daughter and sister of the deceased should have Intimated the elders of the village and should have Intimated the police over phone at least; the complaint - Ex.P1 lodged by the complainant is under suspicious circumstances inasmuch as, PW-1 Is uneducated and she could not have signed the complaint; the scene of offence is changed by the prosecution witnesses; according to PW-1, the scene of offence Is within the house and whereas according to PWs.2 and 3, the scene of offence Is either the front yard or the farm house of the deceased; the motive as alleged by the prosecution cannot be believed Inasmuch as, so IA 8 called ill-will between the deceased and accused No.1 was pacified and their misunderstanding were solved one year prior to the incident; that the deceased had got number of enemies in the village and the complicity of one of such enemies cannot be ruled out; PW5.1 to 3 could not have seen the Incident at all In view of the fact that their version is quite contrary to eaéh other and are contrary to other material on record. Based on these among other submissions, he prays for confirmation of the judgment and order passed by the Court below. 8. The incident has occurred between 10.00 to 11.00 p.m. on 11.09.2001. The complaint is lodged by PW.1, the daughter of the deceased at 2.00 p.m. (i.e. 14.00 hours) on 12.09.2001 i.e., on the next day of the Incident in question. The complaint is not lodged through out the night on ll September 2001. She did not even venture to lodge the complaint up to 2.00 p.m. on the next day. The only explanation offered by PW-1 in lodging the complaint belatedly is that herself and PWs.2 and 3 were 9 frightened by the threatening words of the accused and therefore, they did not move out of their house during the night. According to PW-1, they started searching for the deceased on the next day and found the dead body of the deceased in the well at about 10.00 a.m. Thereafter, she went to the police station along with her brother who was studying in Beigaum and lodged the complaint. Such an explanation offered by PW-1 cannot be accepted. It is very easy for any eyewitness to depose that she was frightened. There was no reason as to why she did not come out of the house to intimate the same atleast to the elders in the village or her relatives In the village about the incident in question. 9. The complaint — Ex.P1 bears the signature in Kannada. However, PW-1 complainant has stated at the first instance that the complaint bears her thumb impressIon. But when confronted, she comes out with a different version that the complaint-Ex.P1 contains her signature inasmuch as, she knew signIng during the I I0 relevant period, However, she admits in the cross examination that she has not studied and that she is uneducated It is relevant to note that she has put her thumb impression on her depositions recorded during the course of trial If she really knew signing, she would not have put her thumb impression. Having regard to her first version that the complaint bears her thumb impression coupled with the fact that her deposition contains the thumb impressions on every page, we are of the opinion that she is not the author of the complaint—ExP1. Aforementioned observations of us finds support from the admission of PW I herself that she does not know as to who wrote the ompla nt Even accordina to her she presented written con plaint that s p e Aritten omplaint t Is perti ent note that t e mplainant herself doe ot k o i o repa I e pla n ftn m 0 o h prepared tF e ompla t nd is nte t then t nnot e a ha p e 3 II that PW-1 deposed as per the version contained In Ex.P1 and version of Ex.P1 is the version of some other person. 10. It Is further admitted by PW-1 that she went to the police station along with her brother and mother whereas the police Inspector-PW-19 who received the complaint and registered the case, has specifically in his deposition stated that the complainant alone came to the police station and lodged her pre-prepared complaint. She also does not know as to who prepared the complaint. Admittedly, her brother was studying in college at Belgaum. The complaint is lodged only after he arrived to the village. The brother of the complainant is not the eyewitness to the incIdent in question. Thus, in view of the aforementioned facts, the submission of learned Amlcus Curiae that the first information report i.e. Ex.P1 is created by the brother of the complainant assumes signiflcbnce. 11. With regard to the scene of offence, there are four versions before the Court, They are: a) The room of the house of the deceased Shivamurthy (version of PW4) b) Front yard of the house of the deceased (PW2) c) Farm house of the deceased (PW3) d) Land of the deceased (version of PW3 in her cross -cxa m in ation) Thus, it is clear that so called eyewitnesses are not sure about the place of incident. The evidence of PW-1 with regard to the scene of offence runs contrary to the version found in Ex.P1 comDlaint. The como1anant in her deposition has stated that the accused trespassed into the house and assau’ted the deceased inside the house whereas in Ex. P1, It is found that the accused dragged the deceased outside the house and he was assaulted on the front yard of the house. Different versions are forth coming with regard.. to the scene of offence in the evidence of PVVs.2 and 3 and in their crossexamInations. AccordinG: to PAIs. 19 and 20, the blood stained marks were found on ‘3 the leaves of maize crop and they could not be seized because of less number of stains were found. The police officials PWs.19 and 20 have also deposed that there were dragging marks and foot prints for about 80 feet i.e. from the house of the deceased till the weil. It Is aiso admitted. by the police officials that the body was dragged through• the agrlculturai land where the maize crop was standing. If such versions were true and correct, then there would have been number of other Injuries on the dead body. The entire skin on the backside of the deceased should have been pealed of. Thus, the case as made out by the prosecution appears to be artificial. 12. According to the complainant, the complaint was iodged at about 11.00 a.m. She reached the poilce station along with her brother and mother on 12.09.2001 and immediately thereafter lodged the complaint. As aforementioned she does not know as to who wrote the compiaint. However, she admits that a prepared complaint• ‘4 was lodged before the police. But according to PW-19, the police inspector who registered the complaint, PW-1 alone came to the police station along with the pre-prepared complaint Ex.P1 containing the signature and the same was lodged at 2.00 p.m. Immediately, thereafter, FIR was sent to jurisdictional Magistrate and the police visited the spot. We are at a loss to understand as to where the first version of the complainant, which was said to have been lodged at 11.00 a.m. was disappeared. If there is only one complaint, then either of the two, PW-1 or PW-19, are telling falsehood before the Court. In our considered opinion, there is no reason for the police to make wrong submission before Court and to make wrong entries in the records maintained In the police station. Thus, the timing of lodging the complaint at 2.00 p.m. on the next day of the Incident appears to be probable. Hence, the version of the complainant that she went to police station at 11.00 am. and lodged the complaint appears to be exaggerated. 13. Though the blood stains are collected from the spot, no serologist report is found on the record. It has 15 also come on record that the deceased had got number of enemies in the village and near the villages The sister of the deceased Neelavva was living with one Mr Peersab of Muslim community. Thus, the deceased was enraged by the same and had assaulted both of them and a criminal case was lodged against the deceased on that ground However, the deceased was acquitted in that criminal case 15 days prior to the incident in question. In this context, the learned Amicus Curiae is justified in arguing that the probability of others committing crime cannot be ruled out 14. It is relevant to note the evidence of PW 2 the elder sister of the deceased In her cross-examination in para 2 she has deposed that PW I 2 and 3 along with the deceased were sitting talking with each other in,ide the house Act jsd ame a d ailed the de eased a om it h h se abis Ith a qiaqe Ci jqec tric e eaea r s d the a cc rid oak a m t f a a s iaak y t I m t 16 know anything. She has further deposed that the accused had held the deceased tightly and PWs.1 to 3 did not try to rescue the deceased in whatsoever manner. Thereafter, the accused took the deceased in the agricultural land where the crop was standing. She has not deposed anything about the assault on the deceased by the accused. She has simply deposed that the accused took the deceased by holdlnô him tightly away from the house by passing through the agricultural land. She has further deposed that on the next day morning they saw the deceased fallen in the well. As PW-2 found that the deceased was not in the house even at the morning tea time, she searched for him. She was of the impression that the deceased must have gone near the well for keepIng watch on the implements used for the purpose of digging the well. On such assumptIon PW-2 and others went towards the well to bring back the deceased. When they went near the well they found the deceased in the well and they were of the impression that the deceased was simply sleeping in the well. She further admits that she wanted to know as to why the deceased did not come to the house for drinking tea in the morning. Her further admission before the Court is that she has not deposed before the police with regard to the accused assaulting and dragging the deceased on the date of the incident. Thus, the admission of PW2 completely takes away the case of the prosecution. Thus, the admission makes it amply clear that none of the eyewitnessesPWsJ to 3 have seen the incident in question and they were of the impression that the deceased have gone near the well for keeping watch on the implements which were used for digging the well, 15. The prosecution wants the Court to beHeve that the accused No1 m ust have committed murder of the deceased as the deceased was coming in the way of his lhcft relattonshp with the wLfe of the deceased. But the material on record clearly shows that such quarrel between the accused No1 and deceased were pac.ifie d one year rrlor to the incidert and no such quarrel took niace thereafter. This has to be viewed in the background of the J8 fact that the deceased had got number of other enemies In the village and outside the village. 16. Though the complaint is said to have been lodged at 2.00 p.m., the police have come to the spot at 10.00 a.m. PW-2 admits that the police arrived at the village at 10.00 a.m. In order to bring the police to the village, there should be some Information to the police with regard to the Incident in question. The said Information gathered by the police prior to lodging of the complaint Is suppressed by the police. No explanation is given by the prosecution about the presence of the police at 10.00 a.m. that is much prior to lodging of the complaint. 17. Ex.P11-panchanana of the well gives the Indication that the well Is having 45 feet depth. It Is further mentioned that to the extent of 1 feet, water was In the well. However, other evidence on record reveals that there was not water In the well. It is further clearly mentioned that there were crushed stones and materials ‘4 ‘9 used for digging the well. Even according to PW-2 the well was having the depth of about 34 mola (i.e. 1 mola = 1 ½ feet). Thus according to PW-2 also the well is about 45-50 feet depth. If really the body was thrown from the top of the well, then the body of the deceased would have been completely smashed. But the postmortem report and evidence of the doctor who conducted the postmortem does not support such a theory. 18. HavIng regard to the aforementioned material on record and the evidence of the eyewitnesses - PWs-1 to 3 who supported the case of the prosecution which Is unbelievable, the trIal Court Is justified In acquitting the accused. 19. Having regard to the totality of the circumstances of the case, In our considered opinion, the Trial Court Is justified In acquitting the accused. The view taken by the Trial Court while acquitting the accused cannot be said to be erroneous Inasmuch as, that is one of the possible views under the facts and circumstances of 20 the case. Hence no Interference Is called for. The appeal falls. Accordingly, the appeal is dismissed. We place on record the valuable assistance rendered by Sri.Santosh B.Malagoudar, learned Amicus Curiae. In recognition of his assistance, he shall be paid a sum of Rs.7,000/- as honorarium. Sd/a JUDGE Sd! 3tJDGE Prs*