IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MAY, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRL.A. NO.691/2014 C/W CRL.A. NO.690/2014 (C) IN CRL.A. NO.691/2014 BETWEEN:
1. K. S. PARAMESHA @ PARAMESHAGOWDA S/O SOMEGOWDA AGED ABOUT 68 YEARS R/AT KARAGURU VILLAGE YESALUR HOBLI SAKALESHAPURA TALUK 2. UDAYA @ UDAYAKUMAR S/O K. S. PARAMESH AGED ABOUT 33 YEARS R/AT KARAGURU VILLAGE YESALUR HOBLI, SAKALESHAPURA TALUK 3. SHIVEGOWDA S/O CHANNEGOWDA @ CHANNAPPAGOWDA AGED ABOUT 55 YEARS R/AT KARAGURU VILLAGE YESALUR HOBLI SAKALESHAPURA TALUK–573 201 … APPELLANTS (BY SRI. HASHMATH PASHA, SENIOR ADVOCATE) AND:
STATE OF KARNATAKA BY YESALUR POLICE SAKLESHPURA TALUK HASSAN DISTRICT – 573 201 … RESPONDENT (BY SRI. I. S. PRAMOD CHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 04.08.2014 PASSED BY THE FTC AND ADDITIONAL DISTRCT AND SESSIONS JUDGE, HASSAN IN S.C.NO.69/2008 – CONVICTING THE APPELLANTS/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 143, 147, 148, 114, 302 READ WITH 149 OF IPC AND SECTION 25 OF ARMS ACT.
******* IN CRL.A. NO.690/2014 BETWEEN:
1. VASANTHA @ VASANTHAKUMAR S/O PARAMESH GOWDA AGED ABOUT 35 YEARS OCC. ADVOCATE NATIVE OF KARAGURU VILLAGE YESALUR HOBLI SAKALESHAPURA TALUK NOW R/AT NO.22 MANJUNATH NILAYA NEAR KALA HOSPITAL 5TH CROSS, TRIVENI ROAD YESHWANTHPUR BENGALURU – 560 022 2. SMT. KAVERAMMA W/O PARAMESH GOWDA AGED ABOUT 60 YEARS R/AT KARAGURU VILLAGE YESALUR HOBLI SAKALESHAPURA TALUK 3. JITHENDRA S/O S. C. SHIVEGOWDA AGED ABOUT 33 YEARS R/AT KARAGURU VILLAGE YESALUR HOBLI SAKALESHAPURA TALUK … APPELLANTS (BY SRI. HASHMATH PASHA, SENIOR ADVOCATE.) AND:
STATE OF KARNATAKA BY YESALUR POLICE, SAKALESHPUR TALUK, HASSAN DISTRICT … RESPONDENT (BY SRI. I. S. PRAMOD CHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 04.08.2014 PASSED BY THE FTC AND ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN S.C.NO.69/2008 – CONVICTING THE APPELLANTS/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 143, 147, 148, 114, 302 READ WITH SECTION 149 OF IPC AND THE APPELLANTS/ACCUSED NOS.4, 5 AND 6 ARE SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 3 MONTHS EACH AND TO PAY A FINE OF RS.500/- EACH FOR THE OFFENCE PUNISHABLE UNDER SECTION 143 OF IPC. IN DEFAULT OF PAYMENT OF FINE AMOUNT SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 10 DAYS EACH.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.04.2019 COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT, THIS DAY K.N. PHANEENDRA, J., MADE THE FOLLOWING:
JUDGMENT These two appeals are arising out of the common judgment of conviction and sentence dated 4.8.2014 in SC No.69/2008 passed by the Presiding Officer and Addl. District and Sessions Judge, Fast Track Court, Hassan. Therefore, both the appeals are taken up together for disposal.
2. Criminal Appeal No.690/2014 is filed by accused Nos.4 to 6, whereas Criminal Appeal No.691/2014 is filed by Accused Nos.1 to 3. The learned trial Judge by the impugned judgment of conviction and order on sentence has convicted and sentenced the accused persons as under:
“Accused Nos.1 to 6 are sentenced to undergo simple imprisonment for 3 months each and to pay a fine of Rs.500/- each for the offence punishable under Section 143 of IPC, in default of payment of fine amount sentenced to undergo simple imprisonment for 10 days each.
Further, accused Nos.1 to 6 are sentenced to undergo simple imprisonment for one year each and to pay fine of Rs.1,000/- each for the offence punishable under Section 147 and 148 of IPC. In default of payment of fine amount sentenced to undergo simple imprisonment for one month each.
Further, accused Nos. 1, 4 and 5 are sentenced to undergo simple imprisonment for 2 years each and to pay fine of Rs.1,500/- each for the offence punishable under Section 114 read with Section 149 of IPC in default of payment of fine amount sentenced to undergo simple imprisonment for two months each.
Further, accused Nos.1 to 6 are sentenced to undergo imprisonment for life for the offence punishable under Section 302 read with 149 of IPC.
Further, accused No.1 is sentenced to undergo simple imprisonment for 3 years and a fine of Rs.5,000/- for the offence punishable under Section 25 of Arms Act. In default of payment of fine amount sentenced to undergo simple imprisonment for two months.
All the sentences shall run concurrently.”
3. We have heard the arguments of Sri Hashmath Pasha, learned senior counsel for the appellants, and also Sri I.S. Pramod Chandra, learned SPP-II for the respondent – State. We have also carefully examined, the entire oral and documentary evidence on record and also the judgment of the Trial Court.
4. Before adverting to the rival contentions raised before this court by the learned counsel for the appellants and the learned SPP-II, we feel it just and necessary to have the brief factual matrix of the case:
A person by name Chandru @ Mohan Kumar.S of Karagoor village in Yesalur Hobli, Sakleshpur Taluk, Hassan District, has lodged a report stating that, on 30.9.2007, the said complainant Mohan Kumar was not feeling well and in order to go to Hospital, he was waiting for the bus at Karagoor Kudige bus stand (a junction place). As he did not get the bus, he went to the house of Hoovannagowda (deceased) and stayed there for some time and thereafter, he along with Hoovannagowda and others by name Subramanya, Shankara and Tejaswi, were all proceeding towards the house of the complainant which is situated at Karagur village. At about 10.00 p.m., when they reached near a coffee estate of K.S.Govindegowda on a tar road, they observed a pick up vehicle, was coming from the opposite direction, which touched the left hand of one of the witnesses Shankara, and the said vehicle went ahead and stopped. From the said vehicle, accused Nos.1 to 6 got down. Accused No.1 in fact told other accused that Hoovannagowda is also here, and further told accused No.2 to finish off Hoovannagowda on the ground that he is the person who is always raising quarrel about the landed property of accused Nos.1 and 2. Accused No.1 by saying so, gave a Gun to accused No.2 and in turn accused No.2 shot the Gun towards Hoovannagowda, who sustained an injury to his right chest and he ran away to some distance by screaming and thereafter fell down and died at the spot. Accused No.3 Shivegowda, took the Gun from the hands of accused No.2 Udaya and attempted to shot the another witness by name Subramanya and in fact Subramanya escaped from the said shot. At that time, accused No.5 Kaveramma and accused No.4 Vasantha in fact, instigated the other accused persons to do away with the life of Hoovanagowda and others. Accused No.6 Jitendra was driving the said vehicle at that particular point of time. After this incident, in order to avoid further damage, one of the witnesses by name Shankara snatched the Gun from the hands of Shivegowda. Immediately, at about 2.00 a.m., the complainant (PW-4) went to the nearby Police Station and lodged a complaint between 30.9.2007/1.10.2007. The Yelasuru police have registered a case in Crime No.89/2007 for the offences punishable under Sections 143, 147, 148, 324, 302, 114 read with 149 of IPC and also for the offence punishable under Section 25 of the Indian Arms Act. After registration of the case, the Police have investigated the matter and laid a charge sheet against the accused persons for the above said offences. The accused were arrested in connection with this case and some of the accused were released on bail during the pendency of the trial. The learned Sessions Judge after committal proceedings and after securing the presence of the accused persons to the court has framed charges for the above said offences and recorded the plea of the accused. As the accused persons have not pleaded guilty, they were put on trial.
5. The prosecution in order to bring home the guilt of the accused examined 14 witnesses as PWs.1 to 14 and got marked Exhibits P-1 to P-22 and also during the course of cross examination, Exhibits D-1 to D-4 were also got marked; Material Objects MOs.1 to 8 were also got marked by the prosecution. After completion of the prosecution evidence, the trial court recorded the statement of the accused persons by examining them u/s.313 of Cr.PC. Thereafter, called upon the accused to enter into defence evidence if any. However, the accused did not choose to lead any defence evidence, as such, after hearing both the sides, the Trial Court has arrived at a conclusion that the prosecution has proved the case beyond reasonable doubt and accordingly, convicted and sentenced the accused persons as detailed supra.
6. The learned senior counsel appearing for the appellants strenuously contends before this court that if the evidence of PWs.1 to 4 who are the eye- witnesses to the incident, are taken into consideration that itself gives two versions to the prosecution case. PWs.1 to 3 in fact have sticked on to the FIR contents as narrated. However, PW-4, the complainant who lodged the report has not supported the case of the prosecution, but he has given a different story which is totally contradictory to the story given by PWs.1 to 3. Therefore, none of the stories can be believed by the court. When two views are available on the same set of facts and circumstances, the view which is favourable to the accused, has to be taken into consideration and the Trial Court ought to have acquitted the accused persons. He has further contended that there is absolutely no evidence adduced by the prosecution to prove any motive. Even according to the prosecution, the said incident has happened in a spur of movement and not due to the pre-meditated act of the accused persons. He has further contended that the story of PWs.1 to 3 is not supported by any medical evidence as well as experts evidence i.e., Ballistic Expert’s evidence. The evidence of the said witnesses are totally contradictory to each other. The nature of injuries sustained by the deceased does not tally with the story narrated by PWs.1 to 4. He has further contended that there are improved versions in the evidence of PWs.1 to 3. If those improved versions in their evidence are removed, nothing remains for the prosecution to prove the evidence of PWs.1 to 3. Further, he has submitted that recovery of a Gun at the instance of one of the eye witnesses by name Shankara is also doubtful. Further, he has stated that PWs.1 to 3 never disclosed at the earliest point of time before police that they are the eye-witnesses and even the said Shankara has not produced the said Gun even though the police present at the spot immediately after the incident. Further, there is long delay in recording the statement of these eye- witnesses which has not been properly explained either by the witnesses or by the Investigating Officer. Therefore, the said aspect itself is sufficient to discard the evidence of PWs.1 to 4. There is also long delay in sending the articles to FSL as about 40 days delay occurred which is also not properly explained by the Investigating Officer. The Post Mortem examination report and the Ballistic Expert’s report are not tallying with each other with reference to the removal of WAD from the body of the deceased and even some important material objects i.e., which was sent to FSL have not been traced and produced before the court for identification by the doctor and as well as the Ballistic Expert’s report. These are all the aspects which are not properly taken into consideration by the Trial Court and thereby wrongly directed in holding that, the prosecution has proved its case beyond reasonable doubt. Therefore, the learned counsel for the appellants pleads for acquittal of the accused persons in toto.
7. Learned SPP-II while arguing the matter submitted that, though there are certain discrepancies in the evidence of PWs.1 to 3, but the core of the prosecution case has not been disturbed. Further, though they have made some improvements during the course of evidence before the court but those improvements are proved from the evidence of the Investigating Officer, and even removing such improved versions in their evidence, the remaining portion fully corroborated with each other. PW-4 also in fact has admitted the presence of PWs.1 to 3 though PW-4 has given different story from that of PWs.1 to 3. But the core of the prosecution has not been altered. He has further contended that though there is some discrepancy with regard to the injury, but looking to the entire surrounding circumstance, it clearly goes to show that accused Nos.1 and 2 have actually fired at the deceased and due to which the deceased died. There is no dispute by the accused with regard to the ownership of the Gun which is seized in this case. The evidence of the doctor and the Ballistic Expert’s Report are tallied with the evidence of PWs.1 to 3. Though there are certain discrepancies with regard to, the explaining the measurement of the injuries on the deceased, but the same is not sufficient to discard their evidence. He has further contended that though there is some delay in recording the statement of the eye-witnesses, but the circumstances disclose that the dead body was found in the forest area abutting to a road and the Investigating Officer was very much tensed because he suspected about law and order problem. Therefore, under such circumstances, he was busy in shifting the dead body to the Hospital, or such he might not have recorded the statement of the eye- witnesses at the spot itself. Therefore, mere delay in recording the statement of the eye-witnesses is not fatal to the prosecution. There is no explanation by the accused with regard to the Gun being recovered in connection with this case. There is no denial with regard to the recovery but they say that Gun was recovered from their house nevertheless they did not dispute the ownership of the Gun. Considering the Ballistic Expert’s Report and the evidence of PWs.1 to 4, the prosecution has established that the pellets and the WAD belonged to the Gun of accused Nos.1 and 2 which were found in the body of the deceased. Therefore, the chain of circumstances, coupled with the evidence of the eye-witnesses, the prosecution was able to prove the guilt of the accused persons beyond reasonable doubt. Therefore, there is no reason to interfere with the judgment of conviction and sentence passed by the Trial Court.
8. In the wake of the above said submissions, before adverting to the material evidence for appreciation, we just have to glance the evidence of the prosecution witnesses.
9. PWs.1 to 4 are the eye-witnesses to the incident. Though there are some divergent stories told by PWs.1 to 3 on one side and PW-4 on the other side, but their evidence is required to be considered by this court in detail. Therefore, we will consider the evidence of these witnesses little later.
10. PW-1 Thejaswi B.S. is also a panch witness to Ex.P-1 Seizure Mahazar. PW-2 Subramanya is also panch witness to Ex.P-2 and P-3 Spot Mahazar and Seizure Mahazar, which were drawn for the purpose of recovery of a Gun etc., PW-4 Mohankumar, is the complainant through him Ex.P-4 complaint was marked and he is also a witness to Exhibits P-1 to P-
3. PW-5 one Mr. Sanjeeva Shetty is a panch witness to seizure of pick up vehicle belonged to Accused No.1 i.e., Mahendra pick up vehicle bearing Registration No.KA-46/238 and the same was seized under mahazar Ex.P-7. PW-6 Dubashigowda is a panch witness to inquest proceedings which was held on 1.10.2007 between 2.30 p.m., to 5.00 p.m., on the dead body of Hoovanagowda under Ex.P-8. PW-7 Dr.
B.H. Ganesh, was working as a Medical Officer has conducted the Post Mortem examination on the dead body of the deceased Hoovanagowda and gave his Post Mortem examination report as per Ex.P-9, stating that, the death was due to shock and hemorrhage on account of the Gun shot injuries to the vital organ of the deceased. He has also given Final opinion as per Ex.P-10 (after perusal of FSL report) confirming the earlier opinion with regard to the cause of death of the deceased. PW-8 Veerappa is a Retired Police Constable who carried the FIR to the Magistrate as per Ex.P-11 and he delivered the same at 10.50 a.m., on 1.10.2007. PW-9 Diwakar.R, PSI who received the information about lying of the dead body at the place of incident on 30.9.2007 between 10-11 p.m., and immediately he rushed to the spot and informed the same to his higher officials. He has further deposed that, on 1.10.2007, he apprehended one of the accused Kaveramma from her house and produced her before the Investigating Officer PW-14. PW-10 N.G. Prabhakar, is the Ballistic Expert examined MO-2 Gun seized in this case and gave his Certificate of Firearms examination as per Ex.P-15, through him Ex.P-16 one invoice of the article and Ex.P-17 specimen sample seal of the laboratory are marked;
and methods of examination are got marked as per Ex.P-18. PW-11 Yeshwanth, Police Constable-161 of Sakaleshapura City Police Station, has carried these items to the FSL, Bangalore on 12.11.2007. PW-12 Kashinath, Addl. Deputy Commissioner, Hassan, has stated that, he has given Certificate Ex.P-14 confirming that, the said Gun MO-2 belonged to accused No.1.
11. PW-13 Krishnappa, ASI, has deposed that while he was working as Head Constable at Yelasuru Police Station, he was the SHO on the date of the incident and he in fact received a report from PW-4 at 2.00 a.m., on 1.10.2007 registered a case in Crime No.89/2007 for the offence punishable under Sections 143, 147, 148, 324, 114, 302 read with 149 of IPC and dispatched the FIR to the court as per Ex.P-11. He has also assisted in apprehending accused No.5 Kaveramma from her house to and produce her before the Investigating Officer.
12. PW-14 M.Ramachandra Naik, while working as Circle Inspector has investigated the matter and laid the charge sheet against the accused persons.
13. On overall looking to the evidence led by the prosecution, the prosecution mainly relied upon the evidence of eye-witnesses PWs.1 to 4 and further homicidal death of the deceased, motive factor and recovery of the incriminating articles in this case particularly Gun and its connection with the crime. Further the prosecution has also relied upon the circumstance of expert’s evidence that is of Doctor and Ballestic Expert in order to prove that the said Gun was used by accused Nos.1 and 2 for the purpose of committing the offence.
14. In the wake of the above said factual aspects and the submissions made by the rival parties, now, we will proceed to consider the above said circumstances and the version of the eye- witnesses sequence-wise.
Homicidal death:
15. There is no much dispute by the learned counsel for the appellants with regard to the homicidal death of the deceased. The prosecution in fact has elicited from the evidence of the eye-witnesses PWs.1 to 4 with regard to the death of the deceased sustaining Gunshot injury to the right side of his chest. Though PW-4 has given a different story from that of PWs.1 to 3, but he has also categorically stated about the deceased sustaining gunshot injury to his right side chest. The inquest witness PW-6 has also stated as narrated above that he was present when the inquest proceedings were conducted and he has signed the inquest proceedings as per Ex.P-8(a) along with other witnesses by name Narayanagowda and Manjunatha, who have also signed the inquest Mahazar as per Exs.P-8(b) and (c). So far as this aspect is concerned, there is no cross examination by the defence counsel with reference to this witness participating the inquest proceedings and signing the Mahazars. The cross examination was concentrated with regard to the topography of the place of incident and the place where the dead body was lying and whether the dead body was visible from the road or not? Coupled with the above said evidence, the prosecution has also relied upon the evidence of PW-7 Dr. Ganesh who has conducted the Post Mortem examination on the dead body of the deceased Hoovannagowda. He has categorically stated that on examination of the dead body he found the following injuries:
(i) Deep lacerated wound over the right side of the chest 2 cm. to later edge of sternum and 2 cm. below the medial 1/3rd of color bone. Wound is oval in shape measuring about 2x3 inches with ragged edges and extrusion of the fat tissue. Skin around the wound is brownish black in colour.
(ii) The wound was dissected by me. On dissection, muscle beneath the wound found lacerated 4x3 inches. Muscles are reddish brown in colour with charring and blackening of the muscles at the edges of the wound, with the deeper dissection of the wound there found erosion of 3rd and 4th rib anteriorly for about 2 and half inches on each bone.
(iii) His right lung was lacerated.
(iv) Part of the liver was lacerated.
He has also deposed that some part of the pellets were found inside the liver and those pellets were removed and sent to I.O. He has given his opinion as per Exs.P-9 and P-10 stating that the death was due to shock and hemorrhage due to the injuries to the vital organs as a result of gun-shot injury. Again in the course of cross examination, the death of the deceased was due to gun-shot injury is not disputed. In fact the cross examination was concentrated on some other aspect which we would like to discuss little later.
16. From the above said evidence, it is crystal clear that apart from non-denial by the other side, the prosecution has also established that the deceased Hoovannagowda died due to gun-shot injury to his right side of his chest on 30.9.2007 in the night hours at about 10.00 p.m., Therefore, the prosecution has proved the homicidal death of the deceased.
MOTIVE:
17. The motive projected by the prosecution is that the accused persons and the deceased Hoovannagowda had some land dispute between themselves. Therefore, in order to wreck vengeance, with reference to the said land dispute, the accused persons had taken advantage of the situation to eliminate the deceased Hoovannagowda.
18. The learned senior counsel appearing for the appellants has strenuously contended that though the prosecution has projected the above said motive, but no materials have been placed before the court to exactly show what was the dispute between the parties and whether there was any civil cases or other Criminal cases are pending between the parties with reference to any land dispute. In the first information report, in fact, there is no mention of any details with regard to the existence of any land dispute between the parties. It is only in one sentence, it is stated that accused persons at the time of committing the offences have hurled that the deceased has been causing some inconvenience to the land of the accused, therefore, the accused No.1 handed over a Gun to accused No.2 directing him to shot down deceased Hoovannagowda. This particular statement in the FIR is not translated into evidence by PW-4 who actually gave the FIR to the Police. As per the case of the prosecution in fact, PW-4 has turned hostile to the prosecution and as we have already narrated that he has given a total different story parallel to the story narrated by PWs.1 to 3. PW-4 in his evidence has not even stated anything about this motive factor as stated in the FIR in one line. There is absolutely not even a whisper in the evidence of this witness with regard to the existence of any land dispute between the accused and as well as the deceased Hoovannagowda. This witness was treated as hostile and even in the course of cross examination, by the learned SPP-II, not even a single suggestion has been made as to why the accused persons have committed such an offence on that particular day.
19. PWs.1 to 3 are the eye-witnesses to the incident as per the case of the prosecution. PW-1 in his evidence so far as this motive factor is concerned, at paragraph 13, has stated that the accused and Hoovannagowda were having ill-will against each other. Therefore, accused No.1 handed over the Gun to accused No.2 to shot down Hoovannagowda. Except that, he has not stated anything about the land dispute between the parties. In the course of cross examination at paragraph 37, he pleads his ignorance that whether the parties have got any land dispute between themselves in any court of law or not. Further, he says that one civil case is pending between the parties. It is suggested that, there was no civil case or any dispute between the parties for that the witness has accepted the same in his evidence. Except this, nothing has been elicited either in the examination in chief or in the cross examination as to what was the actual dispute between the parties to take such a drastic step to eliminate deceased Hoovannagowda. In a similar fashion, PW-2 has stated with regard to the land dispute. But, there is no details given by this witness also. In the course of cross examination so far as this motive aspect is concerned, nothing has been elicited except suggesting that the accused have not committed such an offence.
20. Likewise, PW-3 has differently stated with regard to the motive at paragraph 11 of his evidence stating that accused No.1 on that day after seeing the deceased Hoovannagowda told others that, Hoovannagowda is the main cause for all the problems. Therefore, they have to eliminate that man. Therefore, there are no allegations or no evidence elicited with reference to the existence of any land dispute between the parties. In the course of cross examination also, nothing has been forthcoming with regard to the existence of any land dispute established before the court. Therefore, we are of the opinion, the motive as pleaded by the prosecution is not established at all.
21. Mere non-existence of motive is not sufficient to completely throw away the case of the prosecution. The existence or non-existence of motive, only enables the court to ascertain as to what is the gravity of the offence committed by the accused persons. Even in the absence of any motive if other materials or other decisive circumstances are established or by means of the evidence of the eye- witnesses if the case is established before the court, in such an eventuality, the motive takes the back seat. Therefore, with this observation, we are of the opinion the court has to further proceed to evaluate the other evidence on record to find out whether the prosecution has proved its case against the accused.
EYE WITNESSES VERSION, DOCTORS EVIDENCE AND EXPERT’S EVIDENCE:
22. While cursory examining the evidence of the prosecution witnesses, we have already observed that there are two types of eye-witnesses examined in this case. PWs.1 to 3 are one set of eye witnesses, who have spoken to about the story of the prosecution as projected in the charge sheet. However, PW-4 has given a total go by to the case of the prosecution as projected and he has given a different story, but still implicating accused No.1 only to the crime excluding others. In this background, this court has to examine meticulously the evidence of these witnesses PWs.1 to 3 and independently the evidence of PW-4 to consider which one of the version has been established by the prosecution or both the versions are to be disbelieved. Therefore, we would like to take up the evidence of PWs.1 to 3 in this regard for consideration in detail.
23. PW-4 in fact is the person who lodged the complaint as per Ex.P-4. He has narrated the prosecution story sought to be proved in Ex.P-4 that, on 30.9.2007, PW-4 was not well and he came to Karagoor kudige bus stop waiting for a bus. As the bus did not come, he went to the house of the deceased Hoovannagowda and thereafter, at about 10.00 p.m., PWs.1 to 4 along with the deceased Hoovannagowda were all proceeding towards the house of the complainant situated at Karagoor village. At that time, Mahendra pick up vehicle was coming from the opposite direction bearing its No.KA- 46/238 and in fact, it touched the left hand of PW-3 Shankara and thereafter, the said vehicle went ahead for about 10 feet and stopped and thereafter, all the accused persons who were in the said vehicle got down from the vehicle and in fact, accused No.1 who was holding a Gun in his hand stated that Hoovannagowda, the deceased was always interfering with their landed properties, therefore, instigated accused No.2 to shot at Hoovannagowda by handing over a Gun to accused No.2. Accused No.2 inturn aimed at the chest of Hoovannagowda and pulled the trigger of the Gun and the bullet went off landed on the chest of Hoovannagowda and thereby, Hoovannagowda sustained severe gun-shot injury and died at the spot itself. At that time accused No.3 Shivegowda took the same gun and attempted to shot towards PW-2 Subramanya. At that time, all the other accused persons have instigated to kill all the witnesses who were there at the spot. Thereafter, PW-3 Shankara has snatched the said gun from the hand of Shivegowda and thereafter all the accused persons went away from the spot, at that time A-6 Jitendra was the driver of the said pick up van.
24. This particular allegation in the charge sheet has been in fact supported by PWs.1 to 3. PWs.1 to 3 have invariably stated with some contradictions and omissions here and there in the examination in chief, that accused Nos.2 & 4 are the sons of accused No.1 and accused No.5. Accused No.5 is the wife of accused No.1. Accused No.3 Shivegowda belonged to the same village and accused No.6 Jitendra is the son of accused No.3 Shivegowda, and they are all residents of Karagoor village. They have further stated that the house of accused Nos.1 & 2 are situated very near at a distance of about 1 furlong from the house of the deceased Hoovannagowda. On the date of the incident at about 5.00 p.m., PW-4 Mohan Kumar came to the house of PW-1 Tejaswi pleading that he was not well and he intended to go to the Hospital at Shanivara Santhe or at Sakleshpur and thereafter both of them had been to the bus stand near the house of accused No.1, but they did not get the bus upto 8.00 p.m., Therefore, both of them had been to the house of Hoovannagowda (deceased). At about 9.30 or 9.45 p.m., the other witnesses by name Subramanya PW-2 and Shankara PW-3 were also came to the house of Hoovannagowda. Subramanya’s house is also situated at Karagoor road near the house of Hoovannagowda, wherein house of Shankara is situated at Karagoor village. It is further stated by these three witnesses that PW-4 Mohankumar told that as he is suffering from fever, he would like to go back to his house as he did not get the bus to go to the Hospital. As he was suffering from fever, all the witnesses i.e., PWs.1 to 3 as well as the deceased accompanied PW-4 Mohankumar to leave him to his house.
25. In the above said background, it is further deposed by them that, at about 10.00 p.m., when they were proceeding towards Karagoor village in the forest area, a Mahendra pick up van was coming from the opposite direction of Karagoor village. Accused No.6 Jitendra was driving the said vehicle and the said vehicle was bearing No.KA-46/238 belonged to accused No.1. All of them have stated that, the said vehicle touched the hand of PW-3 Shankara and all the accused persons got down from the said vehicle. Accused No.1 was holding a gun in his hand and in fact the said vehicle was stopped at a distance of 10 feet from the place where PWs.1 to 4 were going along with the deceased. Accused No.1 who was holding a gun in his hand handed over the same to accused No.2 and because of the previous ill-will and hatred-ness with respect to land dispute accused No.1 told accused No.2 to shot at Hoovannagowda. Accordingly, accused No.2 shot at Hoovannagowda which caused severe gun-shot injury to the right chest of Hoovannagowda. After sustaining the injury, he ran towards forest area and fell down and died at the spot. Thereafter, accused No.3 Shivegowda, snatched the said gun from the hand of Shivegowda and thereafter all the accused persons ran away from the spot. They have stated that, the incident happened between 10 to 10.30 p.m., All these witnesses in fact have identified the material object i.e., MO-1 which is a Gun and also identified all the accused persons before the court.
26. As we have already stated there is no need to independently discuss the examination in chief of these three witnesses because their evidence so far as these aspects are concerned is consistent; except here and there some contradictions and omissions and improvements which we will discuss while discussing the cross examination of these witnesses.
27. Now, coming to the evidence of PW-4, who has deposed by giving a total go by to his earlier statement and as well as the contents of Ex.P-4. According to him, the incident happened in a different manner. He admitted the death of deceased Hoovannagowda. But according to him, accused No.1 alone has shot down Hoovannagowda. The story of the prosecution is that this witness was not well on that particular day and he went to the bus stand and waited for the bus and then went to the house of Hoovannagowda and all the witnesses had been to the house of Hoovannagowda are all denied by him. He also further denied that all of them were proceeding towards Karagoor village and that a pick up vehicle was coming from the opposite side and it touched one of the witnesses Shankara and that all the accused persons got down from the said vehicle.
He further, denied that, the accused No.1 had handed over the said Gun to accused No.2 and instigated Accused No.2 to shot at the deceased Hoovannagowda, accordingly, accused No.2 shot at Hoovannagowda and he sustained injury, fell down and died. He denied the entire case of prosecution in his evidence. However he narrated the story differently. According to him the deceased and these witnesses had been to a petty shop situated at Karagoor Kudige and they were waiting for the jeep belonging to one Dubashigowda. At that time, the witness Tejaswi told that accused No.3 Shivanna was proceeding in front of the house of Parameshagowda. On hearing, about A-3, Hoovannagowda chased accused No.3 Shivanna though this witness and other witnesses Tejaswi, Subramanya and Shankara adviced Hoovannagowda not to chase Shivanna. But in spite of that Hoovannagowda chased accused No.3. After some time, accused No.1 Paramesha was proceeding towards Karagoor on the road on seeing him Hoovannagowda, again took a firewood which was lying by the side of the road and chased A.3 Shivannagowda and accused No.1. In the above said scenario, it is further stated by this witness that, accused No.1 Parameshagowda went on a small hillock like place (Dibba - an upper ingredient by the side of the road) holding a gun in his hand and threatened Hoovannagowda and directed him not to go near accused No.1. In spite of that Hoovannagowda, by saying that first he would assault accused No.1, he went towards accused No.1 Parameshgowda. In that context, the said Parameshgowda accused No.1 fired at Hoovannagowda and therefore, Hoovannagowda sustained injury and fell down and died.
28. On seeing this incident, this witness lost his consciousness and thereafter, he went to the Police Station there in the station one Puttaswamygowda was already present and told this witness to put his signature and accordingly he put his signature in the Police Station on Ex.P.4. On the next day also, the police have taken several signatures of this witness on some papers. Therefore, looking at the above said evidence of PW-4, it is clear that he has not supported the story of the prosecution as projected, but he has given a different story. He never implicated any of the other accused persons i.e., accused Nos.2 to 4 in any manner and even he has not spoken to about the presence of those other accused.
29. In the above said background, first we will take up the evidence of PW-4 for consideration in his cross examination. The prosecution has treated this witness as hostile and cross examined the witness. In the course of cross examination, in fact, he identified the Gun as MO-2 which was in the hand of accused No.1 on that particular day. But, he denied the contents of Ex.P-4 complaint/FIR lodged before police. On the other hand, he has admitted his signature in the said document. He has further stated that he has not given any statement before police as per Ex.P-4, but he has given his statement as stated by him before the court to the COD police. It is also suggested to him that he has not given any statement before police as deposed by him before the court in his examination-in-chief. In the course of cross examination it was further suggested that, at the time of lodging the complaint, he knew about the story stated by him in the examination-in-chief. It is suggested that he has not stated the said story before police but he has concocted the said story before the court in order to save the accused. The said suggestions have been denied. It is also suggested to him that, because there was a case against him filed by accused No.1 and the said case was compromised, therefore, he is giving a different story in order to help the accused. Though he has admitted the case between accused No.1 and this witness being compromised, but he has denied that he has given false evidence before the court. He has further re- iterated that he has stated before police the real story as he has deposed before the court in his examination-in-chief. It is suggested to him that he has given false evidence before the court in order to help the accused though the story stated by him in Ex.P-4 is the real story, he has given a total go by to the said story and he has given false evidence before the court.
30. However, at paragraph 12 of his evidence, it is elicited that PWs.1-3 were present at the time of the incident when accused No.1 fired towards the deceased, but he states that the story stated by PWs.1 to 3 is not proper and the story told by him is the real story. In the course of cross examination, by the learned counsel for the accused, he has stated that one Puttaswamygowda and one Ramesh @ Ramachandra had visited to the spot on that day and they all went to the Police Station to lodge a complaint and in fact the said Puttaswamygowda and Ramachandra have drafted the complaint and he only signed Ex.P-4. He denied the contents of Ex.P-4 and he admitted that he did not see accused No.3 Shivegowda in the night on that particular day. Prior to the incident also, he did not see accused No.1 as to from where he came from.
31. Therefore, looking to the above said evidence of this witness, the prosecution itself has denied the story projected by this witness. The suggestion made to this witness that this witness is giving a false evidence with regard to the story stated by him and on the other hand the witness has denied the story as stated by him in Ex.P-4 and he never supported the case of the prosecution. The prosecution itself disowned the evidence of the witness before the court which is the substantive piece of evidence and further, the contents of Ex.P-4 is virtually not translated into evidence. Though Ex.P.4 has been spoken to the Investigating Officer, but in view of the hostility of the witnesses giving a different story for any reason, the evidence of this witness cannot be accepted as a truthful evidence before the court in order to implicate any of the accused persons including accused No.1 32. As we have observed that this witness has not even whispered about the presence of any other accused persons as stated in Ex.P-4. However, we have to see whether the evidence of this witness is in fact supported by any other materials on record so as to believe or not to believe the evidence of PWs.1 to 3. However, we are of the firm opinion that the evidence of this witness cannot be relied upon because he changed his colours like a chameleon before the court giving a death blow to the earlier story alleged to have been spoken to by him before police as per Ex.P-4.
33. Now, we would like to discuss the evidence of PWs.1 to 3 in this regard. The story narrated by PWs.1 to 3 as to how the incident happened is already explained. The cross examination of these witnesses have to be examined to ascertain the trust worthyness for acceptance.
34. In the course of cross examination of PW- 1, he has stated that the incident had happened at about 10.00 pm., in the night near the forest area. With reference to the incident, in the course of cross examination, it is elicited that on that day, all the accused persons got down from the pickup jeep within 5 minutes, the gun was handed over to accused No.2. The accused persons were at a distance of about 20 feet from these witnesses and Hoovannagowda was 12 feet ahead of this witness and from that distance accused No.2 has fired towards Hoovannagowda i.e., approximately at a distance from 8 to 10 feet and these witnesses have never made any attempts to stop.
35. Apart from explaining the above said incident being happened at a particular distance which is relevant so far as this case is concerned, he has also stated that after the incident, the police came to the spot. He has further stated that all the accused persons and the deceased Hoovannagowda and these witnesses who were all on the road. Hoovannagowda was also standing on the road. Accused No.2 was also standing on the road fired at the deceased.
36. He has further deposed before the court that they did not make any attempts to stop accused No.2 from firing, because the incident happened in a spur of movement. At paragraph 15, he has deposed that the police came to the spot at about 2.30 a.m., in the night itself, but the police have not recorded the statement of this witness, but was recorded on the next day. He has stated that, there was no light on the spot, but in the head light of the pick-up vehicle, he has identified the accused and as well as seen the incident. Therefore, it is clear that he has not stated anything before police on the night itself as to what had happened. So far as this aspect is concerned, in the course of cross examination, it is stated at paragraph 33 that he did not go to the Police Station on that day or on 1.10.2007 and that he has not seen the police between 6.00 a.m., to 10.00 a.m., on 1.10.2007. Also, he has stated that even in the early hours on 1.10.2007 between 2.00 a.m., to 6.00 a.m., he has not seen the police. He was also present on the night in between the intercepting night of 30.9.2007 and 1.10.2007 from night 10.00 p.m., to early morning 2.00 a.m., He was there on the spot where the deceased Hoovannagowda died. At that time, Mohan Kumar, Subramanya, Shankara were also present. He did not make any attempts to lodge any complaint and he has also not stated anything before police on that particular day or on the next day upto 11.00 a.m., in the morning. He has specifically admitted at paragraph 36 that though he had opportunity to tell the story before police, he did not tell anything though the police were inquiring about the incident with others at the spot. Though the cross examination is concentrated with regard to the motive and other factors and with regard to the denial of the story stated by this witness, the learned counsel has mainly relied upon the above said aspects to draw our attention that if at all this witness was an eye witness what made him not to disclose the said fact to the police on the spot itself when the police came and they were there for sufficient time.
37. Apart from the above, there are so many improvements made in the course of cross examination at paragraph 50. It is also elicited that due to the gun-shot injury, Hoovannagowda jumped to a distance of 10 feet and thereafter died. He has further stated at paragraph 52 that when police came to the spot, Shankara was also present and this witness do not know where the Gun was at that time. Therefore, it is suggested that the gun was in the house of accused No.1. Though the said suggestion was denied, the witness has not specifically stated that though Shankara was present at the spot, neither this witness nor Shankara have disclosed that Shankara has snatched the gun from the hand of accused No.3 Shivegowda and kept it in the forest area. Therefore, the evidence of this witness has to be tested from the other surrounding circumstance as doubt has been created with regard to the veracity of this witness as to why this witness has not disclosed to the police immediately though he had opportunity and he was very much present near the dead body of Hoovannagowda and as well he has not disclosed the same till the inquest report was prepared.
38. PW-2 Subramanya, has deposed in the similar fashion as deposed by PW-1. In the course of cross examination, he has also admitted that accused and deceased were standing on the road itself. The said Hoovannagowda was at a distance of 20 feet away and that accused persons shot towards Hoovannagowda and he fell down on the road at a distance of 50 feet and died. He has also admitted that on the same day at about 5.30 a.m., police came to the spot and he do not know who gave information to the police. The police once again came to the spot at about 8.30 a.m., on the next day when the police came, all these eye witnesses were very much present on the spot and the police on the next day also came and prepared the mahazar, collected blood stained earth and unstained earth. But none of them have disclosed that any of them are the eye witnesses to the incident and they were present at the time of the incident and also not narrated as to how the incident happened. PW.2 has further admitted that he was also present at the time of drawing up of the Mahazar Ex.P-3. But, at that time also, he has not disclosed that he is an eye witness to the incident. He also never stated before police that PW-3 has snatched the Gun from accused No.3 and kept the same in the forest area. In the course of cross examination, he has admitted that he is a close relative of Hoovannagowda, and also that Shankara, another eye-witness is also his brother. When such being the case, there is no reason for him as to why they have to keep quiet for such a long time without informing the real story to the police. He has also admitted that there is a slope in the road. The dead body of Hoovannagowda was lying in the forest area. He has categorically admitted that the incident happened on the tar road itself and at that time, all the accused and the deceased and these witnesses were standing on the tar road when accused No.2 shot towards the deceased. He has also stated that when accused No.2 shot towards Hoovannagowda. Hoovannagowda was at a distance of about 5 feet and these witnesses were standing at a distance of 10 feet away from the accused persons. They have also not made any efforts to caught hold the accused persons or nor prevented the accused persons from firing towards the deceased Hoovannagowda. He has further admitted that when the Police along with Circle Inspector of Police came to the spot, he has not given any statement, and even the police did not ask as to how the incident has happened, who fired at the deceased, from which distance the Gunshot was done and how the deceased sustained injuries. This witness has also not stated as to how the incident has happened when the Police were there for such a long time. He has also made lot of improvements in the course of cross examination with regard to the narration of the incident with reference to other accused.
39. So far as that aspect is concerned, PW.1 to 3 have made lot of improvements with regard to the abatement alleged to have been made by accused Nos.3 to 6. He has further admitted that he did not go to the Police Station on the next day also and the police also did not go to the village on the day of the incident in the night hours. All the eye-witnesses were present at the spot from 10.00 p.m., to 6.00 a.m., (on 3.09.2007 – 21.10.2007) one police man was also present along with them. Police were there for a period of more than one hour and leaving one PC, all of them went away. Therefore, this also creates a serious doubt as to why the police have not recorded the statement of these witnesses and registered any case on the spot itself.
40. PW-3 Shankara also re-iterated the same evidence as stated by PWs.1 and 2. In his cross examination, he has also admitted about the police coming to the spot at 2.30 a.m., in the night of the incident day. But, this PW-3 who was the person who snatched the gun from the hand of A3 Shivegowda kept the same in a bush in the forest area, but he has admitted that when the police came to the spot on that night, he did not disclose anything with regard to the above incident nor he snatching the Gun from accused No.3 and keeping the same in the forest area. He has further stated that on the next day at about 8.30 a.m., the police came to the spot and he handed over the gun to the police. He has also explained that, they never expected that the accused persons would got down from the vehicle and shot towards the deceased, therefore, they did not make any effort to stop the accused persons. It is also elicited in the course of cross examination that, the police were there on the spot from 2.00 a.m., to 5.00 a.m., in the morning on 31.07.2007 and the police in fact have enquired this particular person but in spite of that he did not tell anything before the Police, this conduct in fact creates a serious about the presence of this witness at the time of the incident and also with regard to the truth of the incident as narrated by PWs.1 to 3. He gives an explanation that between 2.00 a.m., to 5.00 a.m., the police did not ask for the Gun, therefore, he did not produce the Gun to the police. It is very difficult to accept this explanation because, how the police could know that this witness has kept the gun in the forest area to ask him. It is the witness who should have volunteered to tell about the story of the prosecution as to how the incident had happened and thereafter where he has concealed the gun. Therefore, in our opinion, the evidence of this witness is very difficult to be believed.
41. Moreover his evidence also contained lot of improvements with regard to the existence of the parking light to the vehicle involved and also dashing or touching of the said vehicle to PW-3 Shankara and also accused No.1 instigating accused No.2 to fire towards Hoovannagowda etc., and all these improvements have been proved. If these improvements are removed from the evidence of PWs.1 to 3, the other evidence available on record, in our opinion is very shaky and it will not create any confidence in the mind of the court. The indulgence of Puttaswamygowda, a politician who goes to the particular spot of incident at that particular point of time even as admitted by PW-4 also creates a serious doubt.
42. In this background, the evidence of PWs.1 to 3 though they have given a story much against the story given by PW-4, but they are one way or the other related and close to the deceased Hoovannagowda. Further added to the above, there are sufficient opportunity for them to disclose to the Police that they were the eye-witnesses to the incident. Even the common sense speaks that if a Police Officer goes to the spot which is in a forest area and found the dead body and also all the eye- witnesses who are present at that particular point of time, he should have examined the witnesses and if he comes to know that those are the eye witnesses to the incident atleast he would have made a note of the same and recorded their statement at the earliest point of time. Further, added to that, if the witnesses are really the eye-witnesses to the incident and they are the relatives and friends of the deceased and particularly PW-3 has snatched the gun from the hand of accused No.3 kept the same in the forest area, the whole of the incident was very much green in the mind of the witnesses at that time and they would have immediately divulged as to what happened at that particular point of time. None of the witnesses PWs.1 to 3 have stated as to what was the reason for them in not disclosing the said story before police. There is absolutely no evidence before the court that any one of the accused has threatened any of the eye witnesses not to disclose about the incident nor the witnesses were prevented in any other manner so that they would not have disclosed the said fact before police. It is also not stated by them that they were afraid of the accused or they were at grief or they were so much frightened after seeing the incident, therefore, they were spell bound so that they could not able to disclose the above said fact before police.
43. In this context, the learned counsel for the appellant has relied upon a decision of the Hon'ble Apex Court reported in 1994 Supp. (1) SCC 590 between State of AP and Punati Ramulu & Others, wherein it has observed that – “The police Officer deliberately not recording FIR on receipt of the information about cognizable offence - FIR prepared after reaching the spot and after due deliberations, consultations and discussions – Held, such a complaint could not be treated as FIR - It would be a statement made during the investigation of a case and hit by Section 162 of Cr.P.C. - Consequently it would be unsafe to rely on such a tainted investigation.“ It is further held that – “If the witnesses - related witnesses – Children of deceased and his relative – Relationship by itself is not enough to discard the testimony – Must, however, be scrutinized with care – Where bonafides of investigation successfully assailed it would not be safe to rely upon such witnesses in absence of strong corroborative evidence of clinching nature.”
44. In view of the above said decision, this court has very meticulously examined the evidence of PWs.1 to 4. In the absence of any sufficient explanation either by the Investigating Officer or by the eye-witnesses themselves as to why the Police Officer has not recorded the statement of the eye witnesses on the spot itself and not registered the case on the basis of the eye witnesses version and also the witnesses not giving any account as to why they did not disclose the same before police at the earliest point of time and what prevented them in not divulging the real incident. Such evidence of the witnesses in our opinion could not have been believed by the court as gospel truth particularly in view of the total different story narrated by PW-4 whose evidence was discarded by the Trial Court.
45. The evidence of the other witnesses have also to be looked into, in the above background. Whether evidence of PW.1 to PW.2 are corroborated.
46. The evidence of PW-14 Mr. Ramachandra Naik who was working as DYSP, has stated that while he was working as Circle Inspector of Police at Sakleshapura, on 30.9.2007 at about 11.00 p.m., he received information about the death of a person due to gun-shot at Karagoor Kudige village with reference to the land dispute, then he asked the Superintendent of Police about the same who has already there on the spot and he informed the same and he in fact told that he has sent one person to the Police Station for registration of a case. This witness further says that he had been to the spot and found many number of persons and he conducted the inquest proceedings between 2.30 to 5.00 a.m., on 01.07.2007 as per Ex.P-8 inquest report at the spot and he has also prepared the sketch of scene of offence as per Ex.P-
19. He came back to the Police Station. On the 01.07.2007 at about 10.00 a.m., again he went to the spot and recovered the Gun at the instance of PW-3 from the forest area. In the course of cross examination, he has stated that he visited the spot at about 12.30 a.m., on 01.07.2007 in the night itself even before receipt of Ex.P.4 and registration of a case and he has examined the persons who were there and received the information and then came back to the Police Station. He never stated anything about he making any enquiry with the eyewitnesses to the incident, who were present and that they have given any story as projected by the prosecution and he also never stated that he has recorded the statement of any person on the spot though he came to know that a case was registered in Crime No. 89/2007 at 2.00 am. He has further admitted that at the time of drawing up of the Mahazar and as well as inquest, he was there on the spot, but he has not recorded the statement of anybody who has spoken to about the death of Hoovannagowda as to how the death has occurred. Though he has stated that between 2.00 a.m., to 5.00 a.m., he has noted down who are all the persons, witnesses present and examined them but he has not recorded their statements because he never felt that their statements have to be recorded. Therefore, in our opinion this is a very ridiculous statement made by the Investigating Officer. It is much against to the prudent investigation by a prudent Investigating Officer. It is the fundamental duty of the Investigating Officer as early as possible, the statement of the eye-witnesses have to be recorded if they are available on the spot itself, but for the best known reasons to him, he has not recorded the statement of the witnesses though he has categorically admitted that all the eye-witnesses were present along with other witnesses on the spot. Though, he has stated that he has noted down in his case diary that between 2.30 a.m., to 5.00 a.m., with regard to the oral examination done by him on the witnesses, but he has not produced any such document before the court. He has not explained what made him in not recording the statement of those witnesses on the spot itself though he was recorded the inquest report and also the spot Mahazar. This also in our opinion, creates a serious doubt with regard to the veracity of the investigation done by the Investigating Officer and also registration of the case, preparation of the FIR on the same night itself. Registration of a case and dispatching of FIR at 2.00 am., on 01.07.2007 is also doubtful, because the FIR reached the Magistrate on the next day at about 11.00 a.m., Therefore, what was the reason for such delay in dispatching the FIR to the Magistrate is also not stated. Therefore, it is very difficult to draw an inference that the Police had any information about the eye-witnesses on that night or in the morning upto 8.30 a.m., perhaps only after 8.30 a.m., they must have registered a case and dispatched the FIR to the Magistrate after due deliberation with the witnesses and particularly after the involvement and indulgence of a politician Puttaswamygowda. When such a situation is there, in our opinion, this also creates a serious doubt with regard to the story projected by the prosecution through PWs.1 to 3.
47. In the above said back drop, the medical evidence and the expert’s evidence also in our opinion, play an important role:
PW-7 Dr.Ganesh B.H., has stated that, he has conducted the Post Mortem examination on the dead body of the deceased and found one deep lacerated wound over the right side of the chest, 2 cm to latter edge of sternum and 2 cm below the medial 1/3rd of colar bone. Wound is oval in shape measuring about 2x3 inches with ragged edges and extrusion of the fat tissue. He has deposed that he has dissected the wound and found parts of the pellets inside the liver. He has deposed that he has removed the pellets, collected them and sent them to Investigating Officer. He has not actually stated that he has collected any ‘WAD’ from the body of the deceased. He has also stated that other parts of the body were intact.
48. In the course of cross examination, he has admitted that if a person fires against another person from a distance of more than two meters, at that time, the pellets come out from the Gun and it will spread over and it will cause different types of injuries. The said suggestion has been admitted. The doctor has also admitted that he do not have much knowledge about Cartridges and pellets and he has specifically stated that only one injury was there and there are no other external injuries except the one injury which was stated in the prime mahazar report, and that too the said injury was in oval shape and that the said injury was gun-shot injury. There was no explanation by the doctor as to how the injury measuring 2 to 3 inches could be caused by the use of Gun like MO-2, which injury even exceeding the diameter of the barrel pipe of the Gun.
49. He has further stated that the injury caused on the chest of the deceased traveled downwards about 5-6 inches towards liver and there was no exit wound at all. It is also admitted that if any pellets fired through a gun, it should be inside the body if there is no exit wound. Therefore, from the evidence of this witness, it is clear that the direction of the injury was from upside down i.e., from the place of chest towards the liver and other parts of the body underneath the chest. Therefore, from the place of entry wound, the pellets traveled downwards in the body. Though he has not stated that he has collected any WAD from the body of the deceased, but in the Post Mortem examination report, he has categorically stated that he has collected a cartridge from the body of the deceased and he has seen the same along with the skin piece of the deceased inside the body and the same has been handed over to the Investigating Officer. In this regard, it can be inferred that there cannot be any cartridge going inside the body of the deceased because the expert who examined the Gun i.e., PW-10 has stated that the empty cartridge was still there in the Gun itself. Therefore, though this witness has confused himself and stated that the same was a cartridge instead of a WAD. Hence, it goes without saying that it is the WAD which was found inside the body and the same was handed over to the Investigating Officer. In fact, the Investigating Officer has also stated that he has sent the WAD and as well as the Pellets to the Ballistic Expert for examination.
50. The doctor has also stated that the pellets could not have caused the injury measuring 2x3 inches oval shape. Particularly he has not examined the Gun in order to ascertain the measurement of the end point of the barrel. At any stretch of imagination, it cannot be said that the barrel of the Gun particularly SBBL guns measure 2x3 inches. This also creates a serious doubt with regard to the causing of the injury on the body of the deceased.
51. What emerges from the evidence of the doctor is that causing of the injury only by means of pellets that too 2x3 inches wound, may not be possible, something more should have been done to the injury. Further, added to that the injury should have been caused while firing at the close range particularly putting the barrel touching the body of the deceased otherwise, the ‘WAD’ which was in side the Gun could not have traveled in to the body of the deceased and further deposed that if from some distance firing was done, the pellets would travel in the air first before they reach the destination and there are chances of pellets spreading over and causing different types of injuries and not the injuries as stated by PWs.1 to 3 and also the doctor PW-7 i.e., 2X3 inches oval shape wound on the chest of the deceased. Further added to that the evidence of the doctor also shows that the injury caused by the Gun shot was actually from upside down i.e., from the direction of the chest towards liver and pellets were also traveled from chest and down wards and trajectory was upside down.
52. If we compare the evidence of PWs.1-3 with that of the doctor, they never stated that accused No.1 was standing on the higher pedestal and the deceased was standing on the lower pedestal and the Gun was inclined towards the chest of the deceased and the end point of the barrel was touching the chest of the deceased so as to cause such injury on the deceased. This doubt created by PWs.1 to 3 and the doctor, has not been properly explained by the learned SPP-II as to how the incident could happened in the manner stated by PW.1 to PW.3. On the other hand, the evidence of PWs.1 to 3, if we re-look at the cost of repetition, it shows that all the accused and the deceased were standing on the main road itself when the incident had happened. Therefore, there cannot be any such injury could have been caused if accused Nos. fired towards the deceased who was on the same road at the same height and when the Gun was straight pointed towards the chest of the deceased. There could not have been inclined injury caused to the chest of the deceased as the pellets traveled from chest inclined downwards to the body of the deceased.
53. In the above said facts and circumstances of the case, the evidence of PW-10 N.G. Prabhakar, retired Ballistic Expert also play a dominant role in this case:
PW-10 has categorically stated that in connection with this case, he has received item Nos.3 to 10. He opened the same. Item No.4 is the full arm shirt. Item No.3 is the jerkin of the deceased. Item No.7 contain 12 bore gun having manufacturer’s name Kalsee gun works. The said gun contained one empty cartridge as per item No.7A, item No.1 was a small skin piece, item No.9 was the WAD and item No.10 was the preservative. On examination, he has further stated that he perused the opinion of the doctor and found that the pellets were found in the liver. He has also stated that the doctor has not referred about the existence of the WAD inside the body of the deceased. As we have already explained, the doctor has confused himself about the existence of the WAD to that of a empty Cartridge. This witness has further explained that, he has examined the Gun and other items and he has stated that item No.9 WAD and pellets may be from the Gun MO-2, but he has not given any specific and certain opinion that these items were definitely referable to the Gun MO-2. It is further stated that the marks found on item No.3 Shirt indicates that the injury to the body was caused at a hard contact range. This specific and candid evidence indicate that the barrel of the gun at the time of firing should have been put in contact with the shirt and after the fire the WAD as well as epidermis skin of the deceased due to the force went inside the body along with the pellets. Therefore, it is clear that the culprit must have fired against the deceased at a very close range that too at a hard contact range putting the gun exactly on the chest of the deceased at the time of firing . But the evidence of PWs.1 to 3 if it is believed the incident must not have been occurred because the firing was from a distance between 5 feet to 10 feet. Therefore, it is very difficult to accept the story as stated by PWs.1 to 3 whether the Gun-shot was made by any of the accused putting the barrel of the Gun on the chest of the deceased and i.e., not the case of the prosecution even as per PWs.1 to 3 as well as PW-4.
54. PW.10 has also stated that if a Gun Shot is fired, the cartridge would remain in the Gun itself and the WAD and pellets would reach the victim. If the firing was close, then WAD also go inside the body. Otherwise, each and every pellet will cause separate injuries on the body. He has also admitted that the injury as noted by the doctor, which is oval in shape, if it is to be caused the person must have holding the Gun on the upper pedestal and the barrel of the Gun towards down side to the victim touching his chest then only such type of injury could be caused. Because in this case, the trajectory of the pellets from the upper part of the body of the deceased traveled downwards i.e., towards the liver. Normally, the entry wound would be circular and not oval and if a person appears to be standing parallel and opposite to the victim, then the pellets would travel straight into the chest and they will not go down to the liver. Therefore, he was very specific in his evidence that the direction or the trajectory of the firing range is from the top towards down. He has also stated that many number of pellets can be loaded to the said Gun but only five pellets were found in the body. He cannot say anything as to what happened to the other pellets if any.
55. In our opinion, the above said evidence is sufficient to come to the conclusion that the incident has not actually occurred as explained and narrated by the prosecution from the mouth of PWs.1 to 4, because none of the witnesses have stated that accused persons have put the barrel of the Gun from the particular height, keeping the barrel end of the gun to touch the chest of the deceased and then fired. Only in which manner the incident must have happen as per the evidence of the doctor and as well as the expert. But such a situation is not there so far as this case is concerned.
56. Looking to the above said materials on record, so far as the other evidence is concerned, in our opinion, is not so relevant as we have already referred to in the evidence of the other witnesses. So far as recovery of the Gun at the instance of PW-3 is concerned, is also creates a serious doubt as we have already narrated that PW-3 Shankara has stated that he snatched the Gun from accused No.3 and further he kept the same in the forest area. When the Police came to the spot and when he was very much present at the spot, he did not disclose the same to the Police or he brought the Gun from the Forest Area and handed over the same to the Police at that particular point of time. There is no explanation either by the Investigating Officer or by PW-3 as to why PW-3 has not produced the said Gun at the earliest point of time, at the time of inquest or at the time of spot Mahazar or on the next day, before 10.00 a.m. This factum has not been explained by PW-3 to the Police. In our opinion, the existence of WAD in the body is also not specifically stated either by the doctor or by the expert. The doctor has further admitted that WADS are also available in the market. Particularly, the WAD found in the stomach and the empty cartridge are not available before court so as to confront the same either to the expert or to the doctor to elicit what exactly was removed from the body of the deceased and sent to the Investigating Officer and inturn the Investigating Officer has sent the same to the experts for examination and report. This also in our opinion creates a serious doubt and these are all the aspects which are not meticulously gone into by the trial Court.
57. The story stated by PWs.1 to 3 on the one hand is not supported by the medical evidence and as well as expert’s evidence. On the other hand the story stated by PW-4 is to some extent supported the case of the prosecution because PW-4 has stated that accused No.1 was standing on a higher pedestal in a small hillock near by the road and the deceased was also attempted to go near the accused at that time accused No.1 fired towards the deceased perhaps this evidence is near to the experts evidence to the effect that the fire was from the close range and particularly the pellets after entering into the body of the deceased travelling downwards. However, the evidence of PW-4 cannot be believed as the prosecution itself has made the suggestion that he is telling falsehood before the court, the court cannot accept such story, told by PW.4 and incident has not at all happened as narrated by PW.4.
58. Further added to that, the presence of accused Nos.2 to 6 were not spoken to by PW-4 at all at the time of the incident. Therefore, in our opinion none of the stories stated by PWs.1 to 3 or PW-4 can be accepted and both of them should have been disbelieved by the trial Court.
59. There is no need for us to discuss about the conspiracy between the accused persons or they have jointly committed the offence to attract Section 109 of IPC. Though the learned counsel tried to convince this court that there was no common object or intention in the mind of the accused as even according to the prosecution the incident happened in a spur of moment. Therefore, we are of the opinion that the said circumstance requires no discussion as we are of the opinion that the prosecution has not proved its case beyond reasonable doubt, in view of the above said discrepancies.
60. With the above said reasons, we are of the opinion that the prosecution cannot said to have proved the case against any of the accused persons beyond reasonable doubt. PWs.1 to 3 implicated accused Nos.1 & 2 but, PW-4 only implicated accused No.1 and the evidence of PWs.1 to 3 also creates a serious doubt about the presence and instigation by accused Nos.3 to 6 as even accepting their evidence in the examination in chief after accused No.1 instigated accused No.2 and after accused No.2 fired towards the deceased, these accused 3 to 6 have instigated to fire towards the deceased. Therefore such instigation was not there earlier to accused No.1 was handing over Gun to accused No.2. Even in that aspect also, the allegations made against accused Nos.3 to 6 is not substantiated by any evidence. Even otherwise, if the whole story of the prosecution is disbelieved the question of abatement by accused Nos.3 and 4 does not come into picture at all.
61. For the above said reasons, in our opinion, the trial Court has not bestowed its attention meticulously while appreciating the evidence of the prosecution witnesses. There are two stories narrated by the prosecution itself and if any one of the story is accepted that only accused Nos.1 & 2 are involved and another story narrated by PW-4 is accepted, accused No.1 was the only person involved. But in our opinion, in view of the discrepancies noted above and lot of improvements made by the witnesses, it is safe to turn on the side of the accused by giving benefit of doubt in favour of the accused. Therefore, by giving benefit of doubt of all the above said circumstances, we prefer to acquit the accused rather than convicting them. Hence, both the appeals deserve to be allowed. Accordingly, we proceed to pass the following:
ORDER (1) The Criminal Appeal No.690/2014 filed by accused Nos.4 to 6 and Criminal Appeal No.691/2014 filed by accused Nos.1 to 3 are hereby allowed.
(2) The judgment of conviction and sentence passed by the Fast Track Court and Addl. District and Sessions Judge, Hassan, dated.4.8.2014 in SC No.69/2008 for the offences punishable under Sections 143, 147, 148, 114, 302 read with Section 149 of IPC and Section 25 of the Arms Act, is hereby set aside.
(3) Consequently, all the accused are acquitted of the offences leveled against them and they are set at liberty forthwith if they are not required in any other case, if any of the accused is in custody.
(4) On perusal of the records, accused Nos.4 to 6 are granted with bail by this court while suspending the sentence and they have executed their bonds. Therefore, the bonds executed by them and their sureties are hereby cancelled. If any of the accused deposited any fine amount, the same is ordered to be refunded to them on proper identification and acknowledgement.
Registry is hereby directed to communicate the operative portion of this judgment to the concerned jail authorities.
Registry is also hereby directed to send back the records to the trial Court forthwith along with a copy of this judgment.
Sd/- JUDGE Sd/- JUDGE PL*