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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF APRIL 2015
PRESENT
HON’BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR
AND
HON’BLE MR. JUSTICE PRADEEP D. WAINGANKAR
CRL.A.NO.147 OF 2010
BETWEEN:
1. SONNEGOUDA S/O. LATE NARAYANASWAMY AGED ABOUT 32 YEARS OCC: BUSINESS
R/A. 1ST MAIN ROAD HEBBAL KEMPAPURA BANGALORE – 560 024.
2. MAHESH
S/O. LATE G. MUNEGOUDA AGED ABOUT 33 YEARS OCC: BUSINESS R/A. VENKATEGOUDA EXTENSION HEBBAL – KEMPAPUR BANGALORE – 560 024.
3. KITTI @ KRISHNA
S/O. BORANNA AGED ABOUT 38 YEARS OCC: CQAL EMPLOYEE R/A. VENKATEGOUDA EXTENSION HEBBAL – KEMPAPUR BANGALORE – 560 024.
4. KISHORE @ MUNNA
S/O. VITTAL NAYAK
2
AGED ABOUT 28 YEARS OCC: MECHANIC
R/A. NEAR PRESIDENCY COLLEGE HEBBAL – KEMPAPUR BANGALORE.
5. ANJINEGOUDA
S/O. LATE CYCLE SHOP NARAYANAPPA AGED ABOUT 45 YEARS OCC: BUSINESS R/A. KODIGEHALLI BANGALORE.
6. ANJINAPPA
S/O. RAMAIAH AGED ABOUT 42 YEARS OCC: BUSINESS (PROVISION STORE) R/A. KAVERI NILAYA NEAR AYYAPPA TEMPLE HEBBAL – KEMPAPUR
BANGALORE.
7. SRINIVAS @ CYCLE SHOP SRINIVAS S/O. MUNIYAPPA AGED ABOUT 38 YEARS
OCC: BUSINESS (CYCLE SHOP) R/A. NEAR BHUVANESWARI TEMPLE VERMA LAYOUT, KEMPAPURA BANGALORE.
8. M. UMESH
S/O. MADHU AGED ABOUT 29 YEARS OCC: BUSINESS R/A. DASARAHALLI MAIN ROAD HEBBAL – KEMPAPUR BANGALORE – 560 024. …… APPELLANTS
(BY SRI. H.S. CHANDRAMOULI, ADV., FOR APPELLANTS SRI. RAVI B NAIK, SR. COUNSEL FOR SRI. AMAR CORREA, ADV., FOR A2 AND A3)
3
AND:
THE STATE OF KARNATAKA BY THE POLICE OF HEBBAL POLICE STATION BANGALORE CITY. …. RESPONDENT ( BY SRI.VISHWESHWARA, HCGP) THIS CRL.A. IS FILED U/S 374(2), CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED:3/4.2.2010 PASSED BY THE P.O., FTC-IX, BANGALORE IN S.C.No.365/2007 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S. 143, 147, 148, 302 R/W 149 AND SEC. 120-B OF IPC ETC.,
THIS CRL. APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT THIS DAY, PRADEEP D. WAINGANKAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of
conviction and order of sentence dated 3.2.2010 passed in
S.C.No.365/2007 on the file of Presiding Officer, Fast
Track Court –IX at Bangalore. By the impugned judgment,
accused Nos.2 to 4 and 6 to 10 were tried and convicted
for the offences punishable under Sections 143, 147, 148,
120-B, 302 r/w 149 IPC and have been sentenced to
undergo imprisonment for a period of six months and to
pay fine of Rs.1,000/- each and in default to undergo
4
imprisonment for one month for the offence punishable
under Section 143 IPC, to undergo imprisonment for a
period of one year and to pay fine of Rs.2,000/- each, in
default to undergo imprisonment for two months for the
offence punishable under Section 147 IPC, to undergo
imprisonment for a period of two years and to pay fine of
Rs.3,000/- each, in default to undergo imprisonment for
three months for the offence punishable under Section
148 IPC, to undergo imprisonment for a period of six
months and to pay fine of Rs.1,000/- and in default to
undergo imprisonment for one month for the offence
punishable under Section 120-B IPC and to undergo
imprisonment for life and to pay fine of Rs.10,000/- each
for the offence punishable under Section 302 IPC r/w 149
IPC.
2. The prosecution case in brief is as under:-
The complainant Manjunath PW-20 and deceased
Santhosh were friends. There was enmity between
accused No.1 and deceased Santhosh in connection with
milk business. In order to take revenge on the deceased,
5
accused No.1-Jagadeesh Gowda was waiting for an
opportunity. On 1.4.2006, at about 8.30 p.m.,
Manjunath PW-20 and Madhu-PW-21 had gone to Shakti
bar, Hebbal to have dinner. At that time, Praveen, Prakash
and deceased Santosh were there in the bar taking food.
PW-20 and PW-21 joined them. At about 11.00 p.m., after
taking food, all of them came out from the Shakti bar.
Prakash, deceased Santhosh and Manjunath went in
Pulsar motor cycle belonging to Santhosh. They dropped
Prakash at Hebbal and thereafter PW-20 Manjunath and
Santhosh came to Kempapura on Pulsar motor cycle.
Manjunath was riding the motor cycle. They came near
the shop of one Sridhar. Since he was not there, they met
Prakash and spent ½ hour in the company of Prakash.
Thereafter, PW-20 and deceased Santosh left for
Lingarajapura on Pulsar motor cycle. On the way, when
they reached near Coffee Board junction on main road, a
white qualis vehicle came from behind and dashed against
rear side of the motor cycle, as a result of the impact,
deceased Santosh fell down on the road and the rider
Manjunath fell down into a gutter alongwith the motor
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cycle. All of a sudden accused No.1 who was driving the
qualis vehicle stopped and all the inmates who were the
henchmen of accused No.1 suddenly got down from the
vehicle and armed with deadly weapons like long,
choppers and rod assaulted deceased Santosh mercilessly.
When PW-20 Manjunath requested them not to assault
the deceased, they assaulted Manjunath also. After
assault, accused No.1 drove the qualis vehicle over the
head of deceased Santosh causing his instantaneous
death. All the accused fled away from the scene of
occurrence. PW-20 who had suffered injuries contacted
Praveen over mobile and informed him about the incident.
Immediately, Prasad came on the motor cycle and saw
deceased Santosh who was dead. PW-20 was shifted by
Prasad and one Govind PW-31 to Baptist hospital for
treatment. Dr. Raghunath-PW-34 of Baptist hospital
forwarded the medico-legal intimation Ex-P11 to Hebbal
police station. Immediately, the Police Inspector-R Mohan-
PW-35 of Hebbal police station rushed to the Baptist
hospital and recorded the statement of PW-20 Manjunath
as per Ex-P10 in the presence of Dr. Venkat PW-12 and
7
registered the case in Cr.No135/2006 of Hebbal police
station against four to five unknown persons and
forwarded the FIR Ex-P40 to the jurisdictional Magistrate.
He visited the scene of occurrence, drew up spot
panchanama Ex-P17, whereunder he seized M.Os.9 to 15
bloodstained mud, sample mud, iron rod, blue colour
slipper, mudguard, blood stained blue pant respectively.
He conducted inquest proceedings as per Ex-P16 over the
dead-body of deceased Santosh and recorded statement of
witnesses viz., Anand and Ravi. He forwarded the dead-
body for post-mortem examination. He recorded further
statement of PW-20 Manjunath, wherein he disclosed the
name of all the accused Nos.1 to 10 as the persons who
committed murder of deceased Santosh and injuries to
him. He secured Ex-P9 the wound certificate of PW-20
from Baptist hospital, spot sketch Ex-P15 from PWD
engineer, PM report Ex-P12, IMV report Ex-P27. He
recorded the statement of PW-21 Madhu, Praveen,
Prakash, he secured information regarding the qualis KA-
04-D-7774(M.O.7) and seized the qualis at Attibele under
panchanama Ex-P39. The accused were apprehended at
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various places on different dates. He recorded the
voluntary statement of accused and at their instance,
recovered weapons used for the commission of the offence
which were concealed in a Maruthi car. He secured the
opinion of the finger print expert as per Exs-P23 to P25
and upon completion of all formalities of investigation,
charge-sheet came to be filed against accused Nos.1 to 10
for the aforesaid offences.
3. The accused having denied the charges levelled
against them, the prosecution in all examined 36
witnesses as PW-1 to PW-36, marked Exs-P1 to P60 apart
from M.Os.1 to 21. On behalf of the defence, sketch was
marked as Ex-D1. The learned Sessions Judge on
appreciation of evidence recorded a finding that the death
of deceased Santosh was homicidal and convicted the
appellants accused Nos. 2 to 4 and 6 to 10 for having
caused injuries to PW-20 and death of deceased Santosh,
since accused Nos.1 and 5 died during the pendency of
trial and thereby the case against them abated.
Questioning the legality and correctness of the judgment
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of conviction and order of sentence, accused Nos.2 to 4
and 6 to 10 have preferred this appeal.
We have heard Sri.H.S. Chandramouli, learned
counsel for the appellants and Senior counsel Sri. Ravi B.
Naik for Sri. Amar Correa for appellant Nos.2 and 3 and
learned Government Pleader for the State. Perused the
records and the judgment and order passed by the court
below.
4. Sri. Ravi B. Naik, learned Senior Counsel taking
us through the evidence on record has submitted that
there are no other eyewitnesses to the occurrence, except
PW-20-injured Manjunath, who lodged the complaint
against 4 to 5 unknown persons. Learned counsel
submitted that the prosecution failed to establish beyond
reasonable doubt that it is accused Nos.1 to 10 who
inflicted fatal blow upon the deceased Santosh and caused
injuries to PW-20. It is also submitted that there are
material contradictions in the evidence of PW-20
regarding the injuries suffered by PW-20 and as
such, it is not safe to place reliance on solitary testimony
10
of PW-20 to base conviction without corroboration, under
such circumstances, the learned Sessions Judge
committed grave error by convicting the accused. Hence,
the learned counsel sought to set aside the judgment of
conviction and order of sentence and to acquit all the
accused of all the charges levelled against them. The
learned counsel placed reliance on a decision of the
Supreme Court reported in (2003) 1 SCC 465 in the case
of Joseph Vs. State of Kerala to buttress his argument.
The learned Government Pleader on the other hand
referring to the evidence on record would submit that the
evidence of PW-20, who is an injured eyewitness to the
occurrence remained intact and as such his evidence
coupled with other circumstantial evidence surfaced from
the evidence tendered by the prosecution witnesses is
sufficient to hold that all the appellants guilty of
committing murder of the deceased and causing injuries
to PW-20. Supporting the judgment of conviction and
order of sentence, the learned Government Pleader would
further submit that the number of injuries inflicted on the
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deceased, injuries inflicted to PW-20, the nature of
weapon used, their modus-operandi in commission of the
crime establish beyond reasonable doubt that the
appellants with an intention of causing death assaulted
the deceased mercilessly and committed his murder. As
such, the learned Sessions Judge is fully justified in
convicting and sentencing all the accused-appellants.
Hence, he sought for dismissal of the appeals as devoid of
merits.
5. Before proceeding to appreciate the evidence of
the prosecution witnesses; it would be worthwhile to place
on record the gist of the evidence of each of the witnesses
examined by the prosecution.
PW-1 Ganesh is a pancha to the seizure
panchanama Ex-P1 under which qualis vehicle said to
have been used for commission of the crime was seized in
the presence of PW-1 and PW-33. But both of them have
turned hostile.
12
PW-2 R. Babu is a pancha to Ex-P2 for having seized
pieces of number plate of qualis vehicle bearing No.KA-04-
D-7774. He has turned hostile to the prosecution case.
PWs-3 and 4 Raju and Ravi are panchas to Ex-P3 in
respect of seizure of long(weapon) at the instance of
accused No.5-Srinivas. But both of them have turned
hostile to the prosecution case.
PW-5 Govind Reddy, PW-27 Shivanna and PW-28
Venkat Reddy are the panchas to Ex-P4 whereunder the
long and rod said to have been seized at the instance of
accused Nos.2, 3 and 6 on 16.4.2006 based on their
voluntary statements. But all of them turned hostile to
the prosecution case.
PW-6- C. Kumar and PW-26 Srinivas are panchas to
Ex-P5 panchanama whereunder long said to have been
seized at the instance of accused No.4 on 18.6.2006 at
Lumbini garden. But, they have also turned hostile.
PW-7 K.R. Harish was examined to speak about the
motive for the commission of the crime i.e., alleged dispute
13
that was going between accused and the deceased in
connection with milk business. But he has not supported
the case of the prosecution.
PW-8 Venkategowda was the previous owner of the
qualis car bearing No.KA-04-D-7774. He has been
examined to speak that he had sold the said vehicle to
accused No.7 due to financial difficulties and that accused
No.7 was using the vehicle. But, he has also not
supported the case of the prosecution. He has denied
having given any statement before the police as per Ex-P7.
PW-9 Ramakrishnaiah is a head constable working
in Hebbal police station, who carried FIR to the
Magistrate.
PW-10 Prabhakar is a police constable working in
Hebbal police station, who was deputed by the
Investigating Officer to trace the accused. Accordingly, he
traced and apprehended accused Umesh in Amar lodge,
Majestic and produced him before the Investigating
Officer.
14
PW-11 Dr. N.P. Prakash, Medical Officer, Baptist
hospital, Hebbal. He has deposed that on 2.4.2006 at
about 1.20 a.m., PW-20 was brought to the hospital by 2
to 3 persons with a history of assault. He examined him
and found that he had cut injury over the right or left arm
with bleeding and abrasions on the left leg and
accordingly, he issued wound certificate as per Ex-P9.
PW-12 Dr. Venkat working in Baptist hospital has
deposed that on 2.4.2006 at about 3.00 a.m. a police
constable from Hebbal police station came to hospital and
recorded the statement of injured Manjunath-PW-20 as
per Ex-P10 in his presence.
PW-13 Dr. Ranganath from Baptist hospital who
forwarded medico-legal intimation to Hebbal police station
as soon as injured Manjunath was brought to the hospital
with a history of RTA and assault.
PW-14 Dr. B.M. Nagaraj, Professor and HOD,
Ambedkar Medical college, Bangalore has deposed having
conducted post-mortem examination over the dead-body
15
of deceased Santosh in between 11.30 -1.00 p.m. on
2.4.2006. He has spoken about as many as seven
external injuries found on the dead-body, having issued
post-mortem examination report as per Ex-P12. He has
deposed having given opinion after examining M.Os.1, 2, 3
and 20 as per Ex-P13 stating that the injuries at Sl.No.1
to 7 shown in the P.M. report could be caused by M.O.1, 2
3 and M.O.-20 weapons.
PW-15 Shashidhar is the Executive Engineer who
has drawn sketch of scene of occurrence as per Ex-P15 as
directed by the Investigating Officer.
PW-16 Sridhar, is friend of deceased Santosh. He
has deposed that the deceased was known to him, he was
dealing money lending business, he used to come to his
shop oftenly and that is why the accused were enquiring
with him as to why the deceased was poking his nose into
the matters pertaining to Kempapura village. He has
deposed that on the date of the incident at about 9.30-
10.30 p.m., accused No.1 came to his house, enquired
about the whereabouts of the deceased and threatened
16
him to set fire to his car if he does not furnish the
information. Further, he has also deposed that accused
No.1 was accompanied by 30-35 persons including one
Umesh and Munna. He has deposed that he informed and
cautioned Santosh not to come towards his shop as there
is likelihood of quarrel, that the accused waited for
Santosh upto 12 ‘O’ clock and went away.
PW-17 B.R. Anand has deposed that deceased
Santosh was known to him since five years, he was his
distant relative, that there has been quarrel between one
Batra and Naveen Kumar in connection with milk contract
business three days prior to the murder of Santosh on
1.4.2006, in that connection Batra had approached him
for settlement, so also, deceased had approached him for
settlement, he called accused No.1-Jagadeesh Gowda over
phone, Jagadeesh Gowda asked them to come to his farm
house and accordingly, PW-17 went to Kempapura to the
farm house of accused No.1.
17
PW-18 Ramamurthy-younger brother of deceased
Santosh has deposed about inquest panchanama over the
dead body in his presence as per Ex-P16.
PW-19 Madhava has deposed that all accused and
deceased Santosh were known to him. Deceased Santosh
used to come to the mobile shop of PW-19 Madhav and
thereby he came in contact with Santosh, Naveen,
Lakshman, Seena, that he was aware of the enmity that
was going on between Santosh and Naveen in connection
with the milk contract. He has spoken about the
sequences of events that led to murder of deceased
Santosh. Further, he has deposed that on the night of the
incident, injured Manjunath came to his house and
knocked at his door. He had bleeding injuries and on
enquiry, he informed that some unknown persons
assaulted him and committed murder of deceased
Santosh and that he alongwith Govind shifted Manjunath
to Baptist hospital.
PW-20 injured Manjunath is the main witness for
the prosecution. He has deposed in conformity with the
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contents of Ex-P10 his statement recorded by the police
while he was in Baptist hospital, on the strength of which
crime came to be registered.
PW-21 Madhu has deposed that deceased Santosh,
Praveen, Prakash were known to him. All of them had
been to Shakti Bar, Hebbal; on the date of the incident to
have dinner; they were in the bar upto 10.45 p.m. and
thereafter, he alongwith Praveen went to the house and
deceased Santosh and Manjunath PW-20 went to drop
Prakash to his house on his Pulsar motor cycle and next
day morning at about 9.00 a.m. he came to know that
Manjunath has been admitted to Baptist hospital where
he went and saw PW-20 and from there, he went to
Ambedkar Medical College where he saw the dead-body of
deceased Santosh.
PW-22 B.K. Praveen Kumar has also deposed in
conformity with the evidence given by PW-21 Madhu. He is
also pancha to Ex-P18 in respect of seizure of clothes of
injured Manjunath.
19
PW-23 Dasappa was working as head constable in
Hebbal police station who shifted the dead body of
deceased Santosh to Ambedkar Medical College for post-
mortem examination and after post-mortem examination,
handed over the dead-body to relatives of deceased
Santosh.
PW-24 Puttabasavaiah is a Scientific Officer working
in Forensic Science Laboratory, Bangalore. He has
deposed on 24.4.2006 he examined Qualis No.KA-04-D-
7774(M.O.17). The bumper of the vehicle was missing. The
missing bumper was produced before him which correctly
fitted with the missing bumper of the Qualis and therefore
he opined that the bumper produced is the missing
bumper of the quails vehicle No.KA-04-D-7774 and
accordingly issued certificate as per Ex-P20. Though he
has been cross-examined, nothing has come out of it, so
as to disbelieve his evidence.
PW-25 K.B. Jayanna is the Finger Print Expert. He
had deposed that he examined three pieces of number
plate of vehicle, wherein there was sufficient finger prints.
20
He compared those finger prints with that of admitted
finger prints and found that the finger prints on the
number plate were that of right little finger prints of
accused Umesh and accordingly he gave opinion as per
Ex-P23.
PW-26 Srinivas is another pancha to Ex-P5
whereunder long was seized at the instance of accused
No.4 on 18.6.2006.
PW-29 V.S. Hiremath is the Motor Vehicle Inspector
who inspected pulsar motor cycle bearing No.KA-04-L-
9691 and qualis vehicle No.KA-04-D-7774 which were
seized by the police as they were involved in the crime. He
has deposed after examination of both the vehicles, he
gave report as per Ex-P27 wherein he opined that the
accident was not due to mechanical defect of both the
vehicles.
PW-30 Ravikumar. N, has deposed that deceased
Santosh was known to him, he met him on the date of the
incident while he was proceeding on a Bajaj Pulsar bike at
21
about 6.00 p.m. alongwith Manju, on the same night at
about 12(00 hours), he was informed by the family
members of Santosh that accused committed the murder
of Santosh. He is a hearsay witness.
PW-31 Govindraju was to depose about the motive
for the commission of murder of the deceased, but he has
turned total hostile to the prosecution case stating that he
does not know anything about the incident, Manjunath
was not known to him and he never went to the spot of
the incident.
PW-32-Satish is a photographer, who has deposed
about the photographs of the spot and the dead-body
taken by him as per Exs-P29 to P38.
PW-33-K. Srinivas was to speak about the seizure of
qualis car M.O.17 at the Attibele checkpost, wherein
accused Nos.1 to 3, 6, 8 and 9 were returning to
Bangalore on 15.4.2006. But he has not supported the
case of the prosecution.
22
PW-34 G.H. Ranganath has deposed for having seen
qualis vehicle bearing No.KA-04-D-7774 on 4.4.2006 at
Railway Layout main road having no bumper and the hind
number plate was broken. The police prepared
panchanama as per Ex-P39 for having seized the car and
obtained his signature.
PW-35 Mohan Kumar is the police inspector of
Hebbal police station, who went to Baptist hospital upon
receipt of Medico-legal intimation from the hospital and
recorded the statement of injured Manjunath as per Ex-
P10, registered the case in Cr.No.135/2006, arrested the
accused, recorded their voluntary statement, seized the
incriminating articles and upon completion of all other
formalities of investigation, filed charge-sheet against 10
accused persons.
The Medical Officer Dr. B.M. Nagaraj(PW-14) who
conducted autopsy over the deadbody of deceased
Santosh on 2.4.2006 stated that he found as many as
seven deep cut injuries of various sizes over the head and
on the face inflicted by blunt and sharp edged weapon. On
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dissection of the dead-body, he noticed internal injuries
corresponding to external injuries Nos.1, 4 and 7 shown in
the post-mortem report Ex-P12. The medical officer has
opined that the injuries were anti-mortem in nature and
the death was caused due to shock and hemorrhage as a
result of multiple homicidal injuries sustained. Thus the
evidence of PW-14-Medical Officer coupled with Ex-P12-
post-mortem report is sufficient to hold that deceased
Santosh died a homicidal death.
6. The next aspect to be probed into as to whether
the appellant-accused committed murder of Santosh and
caused injuries to Manjunath-PW-20.
7. From the perusal of evidence of all the
eyewitnesses examined by the prosecution, it is evident
that PW-20 Manjunath being injured was the only eye-
witness to the incident as the incident occurred late
night at 12 ‘0’ clock. Immediately after the incident,
Manjunath was shifted to Baptist Hospital by his
friends where his statement was recorded in the
24
presence of the Doctor as per Ex-P10, on the basis of
which, crime came to be registered. It is relevant to note
in his statement Ex-P10, he has stated four to five
unknown persons came in qualis car, dashed against
the motor cycle wherein deceased Santosh and
Manjunath were proceeding from behind and when both
of them fell down from the motor cycle, they mercilessly
attacked Santosh and committed his murder, they also
assaulted Manjunath caused injuries. It is also borne
out from Ex-P10 that Manjunath requested the
assailants not to assault Santosh when they were
assaulting deceased Santosh with long, rod etc., and at
that time, the assailants also assaulted him. This shows
that Manjunath had sufficient opportunity to look at the
assailants who according to him were four to five
unknown persons. If the assailants were known
persons, there was no difficulty for Manjunath to
identify them and disclose their names in Ex P-10. The
very fact that he did not disclose the names of
assailants in his earliest statement Ex-P10 gives an
25
impression that the assailants were not accused
persons Nos. 1 to 10. He implicated the accused No.1
to 10 in his further statement recorded on 3-4-2006 in
the Police Station. That itself creates doubt in the mind
of the Court as to the very involvement of the accused in
the murder of deceased Santosh and injures caused to
Manjunath.
8. Since PW-20 could not disclose the name of
even a single accused in Ex-P10 and Ex-P40 FIR, the
possibility of false implication of accused No.1 to
accused No.10 cannot be ruled out at the behest of
persons inimically disposed towards accused. It is
curious to note that on 3.4.2006, PW-20 goes to police
station and gives his further statement, wherein he
reveals the names of accused Nos.1 to 10, who
according to him came in qualis car and assaulted
deceased Santosh, caused his death and caused
injuries to PW-20. In his further statement recorded on
3.4.2006, he gives an explanation that immediately after
26
the incident, he went to the house of Prasad his friend
and informed him about the incident and came back to
the spot of the incident. In the mean-while, Prasad
came to the spot on two wheeler and from the spot,
Prasad and Govind PW-31 shifted PW-20 to Baptist
hospital. There was ample time for PW-20 Manjunath to
disclose the names of the accused at least to Prasad or
Govind, if not to police. But he did not. If we peruse the
evidence of Govind PW-31, he has denied having taken
PW-20 to Baptist hospital. He has been treated as
hostile witness by the prosecution. During the course of
evidence, it transpired that he alongwith Madhu @
Prasad shifted PW-20 to the hospital, but PW-31 has
denied for having stated so. A perusal of the statement
of PW-31 recorded by the Investigating Officer as per
Ex-P28 on 30.5.2006 would reveal that as soon as PW-
31 came to know about the incident of assault, he
rushed to Baptist hospital, he was there with PW-20
Manjunath till morning, when the police came to the
hospital and enquired with Manjunath as to who
27
assaulted him, he told four to five unknown persons
assaulted him and accordingly, he gave statement
before the Police. Further PW-31 has stated in his
statement Ex-P28 that he gave confidence to PW-20 and
asked him to disclose the names of the assailants
without fear and at that time, in the morning, in the
presence of other friends like Shridhar, he stated that
accused Nos.1 to 10 came in qualis car, attacked
Santosh and PW-20. If accused Nos.1 to 10 were real
assailants whose names were disclosed by PW-20 to
PW-31, as a prudent person, PW-31 would have
disclosed the names of accused Nos.1 to 10 to the
Investigating Officer in the morning of 2.4.2006 itself.
PW-31 did not disclose those names in the morning of
2.4.2006 though it is a case of murder. It appears only
after due deliberations on 3.4.2006, the accused Nos.1
to 10 have been implicated at the instance of persons
inimical disposed to accused. Be that as it may, having
regard to the conduct of PW-20 in not disclosing the
name of single accused in Ex P-10, it is not proper to
28
place reliance on the evidence of PW-20 a solitary
eyewitness to the incident. At this stage, it is relevant
to note that the Supreme court in (2003) 1 SCC 465 in
the case of Joseph Vs. State of Kerala has observed that
when the prosecution case is based on evidence of
solitary eye-witness, evidence must be fully reliable so
as to record conviction on that basis. Though witness is
an injured witness whose presence at the time and
place of occurrence may not be doubtful, but if his
evidence has to be in conformity with other evidence. It
would be unsafe to convict accused solely on the basis
of such witness. As such, in the light of the dictum laid
down by the Supreme Court in the aforesaid decision,
we deem it not proper to place reliance on the evidence
of PW-20 so as to base conviction.
9. If the evidence of PW-20 is not accepted and
relied upon, what remains behind is the evidence of
hearsay witnesses, recovery of weapon etc., But sofar
as, recovery of weapons and other incriminating articles
29
are concerned, the recovery panchas PWs-1 to 8 have
turned hostile to the prosecution case, meaning
thereby, recovery is also not proved. Though the
prosecution tried to establish the motive, the evidence
let in, to establish the motive does not inspire
confidence of the Court. Moreover, when there are
eyewitnesses to the incident, motive looses its
importance. The only circumstance that has been
proved is that the finger prints of right little finger of
accused No.8 Umesh were found on the number plate of
qualis car as deposed by PW-25-Jayanna Finger print
expert. From a stray circumstance, the guilt of the
accused cannot be proved. Thus from the closer
scrutiny of the evidence placed on record by the
prosecution, we are of the considered view that the
evidence is not sufficient to prove the guilt of the
accused beyond reasonable doubt.
10. Accordingly, we allow the appeal, set aside the
impugned judgment of conviction and order of sentence
Recommended