IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 2ND DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE B. A. PATIL CRL.A. NO. 365/2013 (C) BETWEEN RAJESH @ RAJU S/O BHAVARLAL AGED ABOUT 28 YEARS R/AT NO.946, 13TH CENTRAL CROSS ROAD, MKB NAGAR CHENNAI 600 001 TAMIL NADU ... APPELLANT (BY SRI. RAVI B. NAIK, SR. COUNSEL FOR SRI. P. CHANDRASHEKAR, ADV.) AND THE STATE OF KARNATAKA (THROUGH H D KOTE POLICE STATION) REP. BY ITS STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001 ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 28.02.2013 PASSED BY THE I ADDITIONAL S.J., MYSURU IN S.C.NO.54/2012 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The aggrieved accused No.1 in SC No.54/2012 on the file of the I Addl. Sessions Judge, Mysuru, has preferred this appeal against the judgment of conviction dated 28.2.2013, whereby the learned Sessions Judge has acquitted accused Nos.2 to 6 in the said case and found the present appellant guilty for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/- with default sentence, of simple imprisonment for one year and also ordered out of Rs.50,000/- to pay an amount of Rs.40,000/- to PW-17 Ladhuram as compensation.
2. We have heard the arguments of the learned counsel for the appellant and also the learned Addl. State Public Prosecutor for the respondent – State. We have carefully perused the entire oral and documentary evidence relied upon by the prosecution to bring home the guilt of the accused. We have also perused the judgment of the Trial Court.
3. Before adverting to the substantial evidence available on record, we feel it is just and necessary to have the brief factual matrix of the case of the prosecution.
4. It is the case of the prosecution that on 31.3.2011, the accused No.1 has taken the deceased Arjunlal along with him in the evening at about 4 p.m., they started from the house of one Lekharam situated at H.D. Kote Town to Hulla Halli village on Bajaj Motorcycle CT 100. It is further alleged that at about 10.30 p.m., in between Hommaragalli – Hullahalli village road near Kapila River bridge the accused who had pre-planned to kill Arjunlal, assaulted him with a hammer on the hind portion of his head and due to which the said Arjunlal died. In order to ward off any doubt or allegations against him, the accused had informed the same as if the deceased died in an accident. The said information was given to Accused No.5, who inturn, as knowing fully well the true facts, has taken an ambulance to the spot near Hommaragalli and Accused Nos.1 & 5 brought the dead body of Arjunlal to HD Kote Government Hospital. This aspect was also informed to the complainant by name Ladhuram who is examined before the court as PW-17. He came down to the Hospital at HD Kote and there he came to know that the deceased died due to accident. Thereafter, he went to the spot and saw the place, where he suspected that, the deceased might not have died due to accident, but he must have been murdered. Therefore, he came back from the spot and once again forced the accused No.1 to reveal the truth in the presence of the elders of the community of the complainant. In fact, at that time, it is alleged that accused No.1 has revealed the truth stating that he has committed the murder of deceased Arjunlal by assaulting him with a hammer and in order to ward off the allegation, he has given a false information that, the said incident has happened as if, it is an accident. On the basis of the said allegation, he lodged the complaint as per Ex.P-15. It is also worth to mention here that in the said complaint, it is categorically stated that, the said Arjunlal has married a girl by name Hema who is no other than the Accused No.2. As she had some bad character, loose conduct, the deceased was often telling her to mend her conduct etc., Even in spite of that, the accused No.2 has not corrected herself and as such, some hatred ness started between the deceased and accused No.2. In this context, it is stated that, accused Nos.1 to 5 who are the close relatives to each other, have decided to do away the life of the deceased Arjunlal. Therefore, in that context, it is alleged that the above said incident had, taken place.
5. The entire case of the prosecution revolves around the circumstantial evidence. The prosecution in order to bring home the guilt of the accused, examined 36 witnesses as PWs.1 to 36 and got marked Exhibits P- 1 to P-85. The documents on behalf of the accused are marked as Exhibits D1 to D4 during the course of cross examination of some of the witnesses and material objects MOs.1 to 16 are marked.
6. Before adverting to the material witnesses on record, it is seen from the records that the prosecution has examined many number of witnesses, but most of the witnesses have turned hostile to the prosecution. PWs.1 to 3 are panch witnesses to inquest mahazar, seizure mahazar and spot mahazar. They were examined to show that the inquest was conducted in the presence of these witnesses and also the seizure Mahazar was drawn as per Ex.P2 and also spot Mahazar as per Ex.P3. Under Ex.P2 they have recovered two shirts, one towel and one rexin bag from Accused No.1 and recovered a hammer at the instance of the accused No.1 and seized under Ex.P3 Mahazar. However, these three witnesses have totally turned hostile to the prosecution. However, the Trial Court has relied upon the evidence of these witnesses also. The evidence of these witnesses, we would like to discuss little later.
7. PW-4 Rajuram is the cousin of the deceased Arjunlal. He has also turned hostile to the prosecution. apart from the witnesses so examined to establish the motive factor before the court.
8. Likewise PW-5 Krishna Shetty was examined to prove Ex.P-5 seizure Mahazar under which the clothes of the deceased were seized by the police after Post Mortem examination. However, he has also turned hostile to the case of the prosecution.
9. PW-6 Anantharam, PW-7 K.M. Nagulswamy, PW-8 Shankarial, PW-9 Chandrashekara Shetty, PW-10 K. Varadaraju and PW-11 Munna are the witnesses who examined to establish the motive factor and also extra judicial confession alleged to have been made by accused Nos.1 to 5 before PW-17 Ladhuram and before these witnesses. They are in fact, the relatives of the deceased and some of the witnesses are very well known to PW-17. But these witnesses have also not supported the case of the prosecution and turned totally volteface to the prosecution.
10. As could be seen from the judgment of the Trial Court, the Trial Court has also arrived at the conclusion that the motive projected by the prosecution has not been properly proved because of the hostility of these witnesses.
11. PW-12 Siddaraju is a witness who examined to establish the connectivity of the accused to the crime. But his statement was not recorded u/s.161 of Cr.PC., and he being turned hostile, before the court, the court has not permitted the prosecution to cross examine him.
12. PW-13 H. Sadrulla Shariff, Motor Vehicle Inspector, who has issued certificate as per Ex.P-12. He has deposed before the court that, there was damage to the motorcycle which was alleged to have been driven by the deceased on the date of the incident. Accused No.1 was also present along with other accused. According to this witness, the motor cycle was also damaged and indicator and the head light of the motorcycle were broken.
13. PW-14 K.M. Sujatha, Scientific Officer of Toxicology Section, RFSL, Mysore, has turned hostile partly to the prosecution. She has stated that the presence of ethyl alcohol in the stomach indicates that the deceased had consumed liquor prior to his death.
14. PW-15 Ashok B.G. is the Police Constable who has guarded the dead body and handed over the same for Post Mortem examination and produced MOs.6, 7, 8, 9, after P.M. Examination, which are the clothes of the deceased before the Investigating Officer, who seized the same under Ex.P-5 seizure Mahazar.
15. PW-16 Shivakumar N. is another Police Constable who apprehended accused Nos.1 & 5 on 1.4.2011 and produced them before CW-37.
16. PW-17 Ladhuram, the complainant who appears to be the only star witness who supported the case of the prosecution. Coupled with the evidence of the Investigating Officer, he has in detail explained as to how he came to know about the incident and what happened on that particular date. We would like to discuss the evidence of this witness in detail little later.
17. PW-18 Channanayaka, is a panch witness to Ex.P-5 seizure Mahazar. He has also not supported the case of the prosecution. PW-19 Suresh is the person who accompanied the accused and PW-17 to the scene of occurrence on 1.4.2011, but he has also not supported the case of the prosecution.
18. PW-20 Mohanlal is the father of the victim Arjunlal. He has supported the case of the prosecution. He only speaks about the conduct of Accused Nos.1 & 2 and the deceased and he further spoke about the motive factor.
19. PW-21 Durgaram, is the person who mediated the marriage between the deceased Arjunlal and accused No.2 Hema. But, he has also not supported the case of the prosecution.
20. PW-22 Prakaksh, PW-23 Mallaram and PW-24 Devaram are also once again the witnesses to extra judicial confession of the accused. They also not supported the case of the prosecution in any manner.
21. PW-25 Dr. Dhananjaya, is the doctor who issued Ex.P-24 Post Mortem examination report.
22. PW-26 C.R. Chaluvegowda, is the photographer who has snapped the photographs as per Exhibits P-26 to P-33.
23. PW-27 Sandeshkumar, PC-630, is the carrier of the FIR to the jurisdictional court.
24. PW-28 Gopalakrishna, is another PC-133, carrier of material objects to FSL. PW-29 Mallik, is the Circle Inspector who conducted the part of investigation. PW-30 Shivanna is the PSI, who registered a case in Crime No.112/2011 as per Ex.P-15 based on the complaint lodged by PW-17. PW-31 H. Govindaraju, is the Circle Inspector, who has also conducted some portion of the investigation. PW-32 Dr.
H.K. Handa, who is the Senior Specialist, has given his opinion with regard to the submission of the MLC intimation to the police on 1.4.2011 at 7.00 a.m., in the morning.
25. PW-33 Basavaraju, Head Constable, is a formal witness who assisted the investigation. PW-34 S.N. Gaokar, who is the Assistant Director, FSL, Bengaluru, has given his opinion with regard to the material objects sent for Forensic examination.
26. PW-35 Stanley and PW-36 Rathnakar Nayar are the Nudal Officers, who had given opinion with regard to the SIM cards which were seized in this case.
27. On overall looking into the entire materials on record, most of the witnesses i.e., PWs.1 to 16, 18, 19, 21 to 24 have turned hostile to the prosecution. They have not supported the case in any manner. Therefore, the rest of the witnesses who have supported the case of the prosecution are PWs.17, who is a star witness to the prosecution as well as PW-20 and the evidence of the doctors and the Forensic science experts and the as well as the Investigating Officers.
28. Before adverting to the scientific evidence available on record, we would like to examine the evidence of PW-17 who is the stray witness as per the prosecution and he has been the root cause for initiation of the criminal proceedings against the accused.
29. Of course, the Trial Court itself has stated in its evidence that the motive factor has not been properly established. But the Trial Court has relied upon the voluntary statement given by the accused under Ex.P-43 and in fact relied upon the same as if an unequivocal admission on the part of the prosecution. Except that there is no other material to establish the motive factor before the court.
30. Throughout the cross examination of these witnesses particularly who have supported the case of the prosecution, the defence appears to be that the deceased was a drunkard, and on that particular day also he consumed alcohol and while he reached the said place where the incident had taken place, he lost control over the Motorcycle and fell on a cement katta and sustained injuries. Accused No.1 has received the said information and along with accused No.5 had been to the spot with ambulance and brought the deceased to the Hospital i.e., H.D. Kote at about 1.30 a.m., on 31.3.2011.
31. In this back ground, the evidence of PW-17 play a dominant role. He has categorically stated in his evidence that deceased is his brother and re-iterated what he has stated in Ex.P-15 report. He has deposed that on that particular day i.e., on 31.3.2011, he has received the information with regard to the death of the deceased in HD Kote Hospital and his dead body was kept in the Hospital. Immediately he went to the Hospital at about 3.30 a.m., on 1.4.2011 and he observed that there were injuries to the hind portion of the head of the deceased Arjunlal. He has specifically stated that at that time accused Nos.1 & 5 were very much present in the hospital. On enquiry, accused Nos.1 & 5 told him that on 30.3.2011 in the morning at about 10.00 a.m., the deceased had been to Hullahalli village and thereafter the accused and the said person i.e., the deceased along with him were proceeding towards Hullahalli village and accused No.1 was the pillion rider and the deceased was riding the motor cycle. The accused also told PW-17 that, when they reached near Hullahalli, the accident had taken place and in fact the deceased sustained severe injuries and died at the spot. At the initial stages, this was the information given by accused Nos.1 and 5, to PW-17.
Having suspected the conduct of accused Nos.1 and 5, PW-17 had been to the spot along with his community elders and leaders. He observed at the spot that, the motor cycle was parked near the said spot and there was damage to the head light and side indicator and there was tearing of the seat etc, Therefore, on seeing the spot, he suspected that it was not an accident. Again he came back to the hospital and in fact forced the accused by threatening him to disclose the truth. It is further deposed by PW-17 that in the presence of many number of witnesses, the accused has stated that, he has assaulted the deceased with hammer and committed his murder and thereafter brought him to H.D. Kote Hospital. Therefore, on the basis of the alleged extra judicial confession made by the accused, PW-17 has deposed that, he has lodged the complaint as per Ex.P15. The above said evidence of PW-17 discloses that, he only suspected the crime on reaching the spot and only on the basis of the extra judicial confession alleged to have been made by the accused Nos.1 and 5. PW-17 has also deposed that, after arrest of the accused, he took the police to the spot and there, the police have collected the blood stains which were on the spot as well as on Motorcycle, he has also produced a hammer which was used by him to assault the deceased from the land of one Roopsab. The Police have seized the same under mahazar Ex.P3. He also identified the said hammer at MO-10. He has also stated that the police have collected the blood stains on the motor cycle with the help of cotton as well as collected the blood stains from the spot and he identified all of them. He also deposed that the police have seized the motor cycle and also the clothes produced by the accused in the HD Kote Hospital i.e., two shirts and one towel which were marked as MOs.1 to 3 and a regxin bag MO-4. He has also identified the clothes of the deceased marked as MOs. 6 to 9 and glass pieces of indicator and head light of motor cycle as MO-16.
32. From the above said evidence of PW-17, in the examination in chief, it reveals that he has not personally knew about the incident, he only suspected the conduct of the accused on the basis of the surrounding circumstance and also the extra judicial confession made by the accused and also on the basis of the recovery of the above said MOs. Particularly the objects which were recovered at the instance of the accused.
33. In the course of cross examination, in fact, it is suggested to him and he admitted that the accused persons were very much present when he visited the hospital and in fact it is not stated by PW-17 that the accused persons were afraid or they were in any manner abnormally behaved in the hospital. It is also suggested that accused No.1 had also sustained injury and he has taken treatment in the hospital, but this witness has denied the same. He also denied the suggestion that, because of the force used by PW-17 and other witnesses, the said extra judicial confession was extracted from the mouth of the accused. But it is suggested that the accused has not at all stated so before these witnesses and for the purpose of the case, they have concocted the above said materials.
34. It is also suggested to PW-17 that, the accused/appellant person was running a pawn broker shop by investing Rs.15 lakhs, in order to grab the said property taking advantage of the accident that has taken place, a false case has been foisted against the accused for the purpose of having wrongful gain, but those suggestions have been denied. It is also suggested that the deceased was consuming alcohol and on that particular day, due to the consumption of alcohol, the accident took place and he died in the accident.
35. Now, the question arises whether on the basis of the evidence of PW-17, who is not an eye witness, speaks only about the death of the deceased as if, it is a murder committed by accused No.1, and on the basis of the above said extra judicial confession, whether the prosecution has proved the guilt of the accused or not.
36. As we have already narrated that all the witnesses who are examined before the court to prove the extra judicial confession have turned totally hostile to the prosecution. Even the Trial Court has also made an observation that the extra judicial confession has not been proved by the prosecution. Therefore, it goes without saying that the prosecution cannot rely upon the so called extra judicial confession of the accused Nos.1 and 5 before PW-17 because PW-17 is no other than the brother of the deceased and he has so much interested to see that the accused persons are brought into books.
37. The Investigating Officer so far as this aspect is concerned (PW-29) has also stated in his evidence that he came to know during the course of investigation that there was force used by PW-17 and others for the purpose of extracting the extra judicial confession. Moreover, PW-17 is no other than the brother of the deceased and the other witnesses so examined before the court are one way or the other related to the deceased or PW-17, and they have turned hostile, it is unimaginable as to how the accused could have given such extra judicial confession before such person.
38. It is well recognized principles of criminal jurisprudence that extra judicial confession by itself is a very weak piece of evidence unless it is proved conclusively beyond reasonable doubt, the court should not rely upon such extra judicial confession which is shaky in nature. In Ex.P-15 complaint also there is narration of facts that, PW-17 and the other witnesses have actually forced the accused with coercion to reveal the truth. Therefore, due to the force, they might have extracted the so called extra judicial confession. The Investigating Officer has also stated that during the course of investigation, he came to know about such force by PW.17 and others. Therefore, we are of the considered opinion, concurring with the opinion expressed by the Trial Court that the so called extra judicial confession is not established beyond reasonable doubt.
39. Now, the question arises as to how the death of the deceased occurred; whether it was due to any assault or whether it was due to any accident as per the defense of the accused during the course of cross examination. Of course, we have also come across the non explanation by the accused as to how he came to know about the accident as to how he went to the place of incident and how he brought the deceased to the hospital. There are sufficient materials to show that accused No.1 has actually brought the deceased to the Hospital.
40. It is worth to refer the evidence of the doctor PW-25 Dr. Dhananjaya in this regard. He has deposed before the court that between 30.3.2011 and 1.4.2011 at about 1.00 a.m., the accused No.1 Rajesh has brought the dead body of Arjunlal in an Ambulance and this witness has sent the dead body to the Mortuary. He has also stated in the Post Mortem report as to what are all the injuries sustained by the deceased. It is necessary to note here that according to the prosecution the accused has assaulted the deceased on the hind portion of the head with a hammer and that was the root cause for the serious injury which resulted in the death of the deceased. PW-25 in fact has stated that, the death of the deceased was due to hemorrhage on account of the injuries sustained to the head. Accordingly, he gave the Post Mortem examination report as per Ex.P-24. He has also given opinion with regard to the hammer MO-10 which was sent to him for examination and he has also stated that the said injuries on the deceased could also be caused by assault with the said hammer.
41. Therefore, if the examination in chief of PW-
25 is seen, there is possibility of causing of those injuries by assault with the help of MO-10 but the cross examination of this witness also discloses that, the alternative possibility of sustaining such injuries when accident takes place. He has categorically stated that accused No.1 has brought the deceased to the Hospital with a history of accident, but they have not registered any case in a Medico legal register because the deceased was already dead; perhaps that may be the reason that it was not a murder but it was an accidental death, therefore, this doctor might have delayed in registering the complaint as a Medico legal case. It is also stated by him that Ex.P-13 which is the FSL report, through which he found that, the deceased had consumed alcohol prior to the death.
42. He has further stated that if a person falls from moving motorcycle, the injuries mentioned in Ex.P- 24, Post Mortem report could also been caused. He has also reported that accused No.1 has not sustained any injury at that particular point of time.
43. The learned Public Prosecutor has also further examined this witness and in the further examination it is virtually re-iterated strengthening the defence version stating that the said injury including the head injury could be caused if a person falls down from a moving motorcycle and other injuries could also be caused due to the fall. But if a person wears a thick clothes, only abrasions could be caused and there may be swelling. Therefore, from the evidence of the doctor it is clear that he has given his opinion that the said injuries could also be caused due to the accident.
44. So far as the blood stains found on the motorcycle is concerned, the doctor has given his opinion that there is no possibility of blood stains on the motor cycle if the person sustains injury while moving on the motor cycle, but he has also stated that if a person falls down from the motor cycle, if he again makes any attempt to go near the motor cycle and touch the motor cycle, then there are chances of blood stains on the motor cycle also. Therefore, the above said evidence of the doctor clearly discloses that there are two possibilities in sustaining injuries by the deceased.
45. Further examination in chief of this witness by the prosecutor also discloses that immediately after the deceased being admitted to the Hospital, this witness PW-25 has sent the MLC report as per Ex.P-66. On careful perusal of Ex.P-66, it clearly discloses that the doctor has seen the deceased after accused No.1 has admitted the deceased to the hospital and thereafter, he sent the information at about 7.00 a.m., in the morning on 1.4.2011. The said document discloses the history that was given at the time of admitting the deceased, was due to accidental injuries death was occurred. This is an important aspect that has been projected by the prosecution itself that the death has occurred due to the accident.
46. Of course, there are some lapses on the part of the doctor in not taking the signature of accused No.1 or anybody who has brought the dead body to the hospital. The doctor has unequivocally stated that at the time of Post Mortem examination only, he came to know that the death was due to murder. He has also re-iterated that if a person falls down from the motor cycle there are chances of motor cycle also being damaged. In this particular case, the motor cycle has also been damaged as per the evidence of the Inspector for Motor Vehicles.
47. As we have already referred to, though there is some delay in conducting the Post Mortem examination report, but the intimation has already been sent to the police as per Ex.P66. Very peculiarly enough, the doctor who has examined before the court has turned hostile to some extent and the doctor was also cross examined, by the Public Prosecutor so far as the above said lapses are concerned that he has not registered the case in the Medico Legal Case register with regard to the death of the deceased due to accident or the death of the deceased as a murder. It is suggested to the witness that the doctor has hand in gloves with the accused, and as such he has not given the MLC intimation stating that the injuries sustained by him and the death was homicidal death. But the doctor has categorically stated that he has sent the intimation immediately after the dead body was received in the hospital.
48. Perhaps the doctor came to know about the murder of the deceased only after PW-17 lodged the complaint as per Ex.P-15 and the police have intervened and sought for the Post Mortem examination and only thereafter, the police have stated that the death of the deceased was due to assault by accused No.1. But by that time, even before the Post Mortem examination the MLC report as per Ex.P66 was already sent to the police which clearly discloses that, accused No.1 or anybody or some body had intimated the doctor that the deceased died due to accident. Therefore, the above said circumstance, creates a serious doubt with regard to the death of the deceased whether it was due to assault by Accused No.1 with the help of hammer or due to the accident. But when two possibilities are available in the evidence of the doctor and as well as in the evidence of PW-17, as we have already observed that in, the evidence of PW-17. At the initial stages, accused No.1 informed to PW-17 that deceased died due to accident, but subsequently, due to some force he has stated that, he has committed the murder of the deceased. The doctor has also said that the injuries could be possible if a person falls from a running motorcycle and it is also possible if a person is hit with the help of hammer MO- 10 on the hind portion of the head.
49. Therefore, it is clear that when two views are possible, the trial Court has not taken this aspect seriously into consideration to give benefit of such doubt and the view which favours the accused. Therefore, on the basis of the above said circumstance when the court cannot with all certainty and conclusiveness say that, it was a homicidal death or it is an accidental death, in such a circumstance, the benefit of doubt has to be accorded to the accused holding that the homicidal death of the deceased has not been proved beyond all reasonable doubt.
50. Now, coming to the recovery of incriminating articles at the instance of the accused. As we have already narrated that PWs.1 to 3, who are the witnesses to Exhibits P-1 to P-3 including the inquest, they turned hostile to the prosecution. But, there is no dispute as such by the accused with regard to the death of the deceased. The question is as to how the death of the deceased occurred has to be considered by the court.
51. The prosecution has relied upon the evidence of PW-17 again as well as PW-29 in this regard. The Investigating Officer, according to him, he has arrested the accused on 1.4.2011 itself and recorded his voluntary statement as per Ex.P-42. Ex.P-
42(a) and (b) are the portions of incriminating information said to have been given by the accused with regard to the discovery of clothes as well as hammer and regxin bag which are recovered in connection with this case. The Investigating Officer and PW-17 have deposed that, the accused has taken them to the spot and there, the police have collected various articles i.e., blood stained mud, un-stained mud, sample cotton and motorcycle glass pieces of indicator and head light as well as the cotton through which the blood stains on the motorcycle were taken. They were marked before the court as per MO-5, MOs.11 to 14. It is also the case of the prosecution as per Investigating Officer that, under Ex.P-5, he has collected the clothes of the deceased which are marked at MOs.6 to 9 i.e., pant, banian, shirt, underwear of the deceased. The Investigating Officer and PW-17 have also stated that, near the spot the accused has taken out a hammer from the bush and produced the same and the same has been recovered and marked at MO-10. It is the further evidence of these two witnesses that, the accused took them to the H.D.Kote Hospital and produced a regxin bag which was kept in the Hospital in the outpatient room which contained the clothes of the accused which are marked at MOs.1 to 3 and regxin black bag as MO-4 and these items were sent to the FSL and FSL report also shows that some of these articles contains O-Group blood. On the basis of which the prosecution wants to establish that when the recovery has been proved through the evidence of PW-17 and the Investigating Officer, it is the burden on the accused to show as to how his clothes were stained with blood in this regard.
52. On careful perusal of the evidence of the Investigating Officer and also PW-17, it is clear that, these two witnesses have only supported the case, but other witnesses PWs.1 to 3 who are also closely related to the deceased and very well knew about PW-17 and the deceased, for the reasons best known to them, have turned hostile to the prosecution and they have categorically stated in their evidence that they were not parties to the event that, the accused had produced any hammer or his clothes or even recovery of the clothes of the deceased, the witnesses have turned hostile.
53. There is no reason for PWs.1 to 3 to turn hostile because they have no enmity against the deceased or they have no interest so far as the accused is concerned. On careful re-evaluation of the evidence of these witnesses, there is no suggestion to them as to why these witnesses have to turn hostile. Except suggesting that they have no interest to support the case of the prosecution, they have turned hostile, but in the absence of the suggestion that as to why they have to turn hostile, mere suggestion, in our opinion is not sufficient to dub them as false witnesses.
54. On perusal of the judgment of the trial Court, in fact, the trial Court has relied upon the evidence of these witnesses also. On the ground that they are all business people and they knew about he contents of Exs.P1 to P3 and knowing fully well, they have signed the said document as they have admitted their signature in the Mahazars. Therefore, it goes without saying that the prosecution has proved its contents. But in our opinion such inference cannot be drawn when the witnesses have turned hostile particularly when the witnesses were not shown to be interested. The prosecution has to prove otherwise the Mahazar so drawn at the time and place projected by the prosecution.
55. In this background, the evidence of the Investigating Officer also plays a dominant role. Of course, there is no hard and fast rule as to why the Investigating Officers alone should not be believed. Of course, the Investigating Officer’s evidence can be believed if the said evidence is so credible and trustworthy for acceptance.
56. PW-29 in fact has been treated as hostile by the prosecution itself to some extent. It is the case of the prosecution in the course of cross examination of this witness that at the time of drawing of Mahazar Ex.P-2, they found that there were blood stains on the hammer, which was alleged to have been recovered at the instance of accused No.1. But when the said hammer was sent to FSL, the FSL report marked at Ex.P-13 discloses that, there were absolutely no blood stains on the said hammer. This perhaps has irritated the prosecutor so that PW-29 was cross examined and it is suggested to PW-29 that he joined hands with the accused and for the purpose of helping them, he has not mentioned in the letter sent to the FSL department showing that MO-10 was also stained with blood, therefore, the important material has been suppressed by the Investigating Officer to help out the accused persons. The above said evidence of the Investigating Officer clearly discloses that he has received the FSL report as per Ex.P-13. He found that there were no blood stains attached to MO-10. This particular aspect has also been considered by the trial Court and the trial Court has mainly came to the conclusion that the lapses on the part of the Investigating Officer deliberately done if it is done, so it should not be taken into consideration if the case of the prosecution is otherwise proved. We entirely agree with the said opinion of the trial Court, but the court ought to have been seen, that, otherwise than this particular aspect, whether this prosecution has proved the case beyond reasonable doubt. Therefore, the lapses which are serious enough, which creates a serious doubt in the case of the prosecution and go to the root of the prosecution case, in such an eventuality, benefit of such doubt ought to have been given in favour of the accused. Here, in this particular case, the main crux of the prosecution case is that the accused has used MO-10 Hammer for assaulting on the head of the deceased and during that course, the blood stains were spread to the hammer and therefore, the prosecution wants to prove the case against the accused. When this particular portion even if we admit the recovery is proved but the connecting material is not there sofar as the hammer is concerned when particulary existence of evidence regarding alternative possibility of the injuries as stated by the doctor. These are all the important aspects the trial Court has not properly appreciated according to us.
57. When the prosecution itself has treated the Investigating Officer as hostile and the prosecution wants the court to believe only portion of the evidence of the Investigating Officer and to disbelieve the evidence of the Investigating Officer sofar as other portion, in such an eventuality, we cannot in all conclusiveness say that the evidence of the Investigating Officer is trustworthy and credible so far as the recovery of the articles are concerned.
58. Now, coming to the recovery of clothes of the accused, of course, the prosecution has shown that the blood stains found on the clothes of the accused marked as MOs.1 to 3, two shirts and a towel, it also creates a serious doubt as to whether these blood stains were spurted on clothes of the accused at the time he assaulted the deceased. According to the prosecution itself, accused No.1 has shifted the dead body to the Hospital while taking the dead body to the Hospital there is possibility of the stains of the blood attached to the clothes of the deceased. It is also not explained as to how one can wear two shirts at a time as two shirts were recovered is doubtful. Normally, people will wear only one shirt at a time. Therefore, a serious doubt is created in the mind o the court by the prosecution.
Here in this particular case, when PW-17 visited the Hospital A1 and A5 were very much present and they were not afraid and they did not make any effort to run away from the spot, even when the Police came to the Hospital. It is very strange to accept the case of the prosecution that, the accused No.1 after committing the murder of the deceased, at a far away place from the Hospital why he should bring the dead body to the Hospital and also keep these articles MOs.1 to 4 in the Hospital itself so as to create evidence against himself. The story as projected by the prosecution creates a serious doubt. If at all the accused has committed such murder of the deceased at that particular place, he would have thrown the dead body and ran away from the spot itself as there were no eye witness to the incident. Further, added to that when he brought the deceased to the Hospital, can it be believed that he would keep the blood stained clothes in the Hospital itself, particularly, in the outpatient room. This also creates a serious doubt. If at all he has committed the murder, and the blood of the deceased spurt on the clothes of the accused, he is the last persons to keep such materials which is accessible to public at large in the Hospital. Normally, the conduct of the accused is to keep the said material objects in any secured place so that nobody can detect or secure these articles. Therefore, these are all the important aspects which creates a serious doubt in the case of the prosecution has not been cleared out in the evidence of these two witnesses PW-17 and also PW-29.
59. Therefore, we are of the opinion that when serious doubts are there with regard to the homicidal death of the deceased, recovery of the MOs. at the instance of the accused and also connectivity of the MOs. With that of the crime, the trial Court in fact as could be seen has bend its judgment so as to convict the accused by explaining all the circumstances by giving reasons as to how the prosecution has proved its case. But in our opinion, relying upon various decisions by the trial Court in order to bring home the guilt of the accused, without considering the important materials and the lapses on the part of the investigating agency and also mainly not properly considering that there are two views which are possible with regard to the death of the deceased. In our opinion, mere quoting of some decisions and circumstances or the evidence in order to convict the accused is not proper and correct.
60. It is well settled principle of law that on the basis of the overall evaluation of the material on record, the court has to draw an inference that the accused is the one and only person who is the perpetrator of the crime. There is no other alternate possibility to cause the death of the deceased. If one more view is also possible that means to say if two views are possible on the same evidence, the view which is in favour of the accused has to be preferred, which has not been done by the trial Court. Therefore, we prefer to give such benefit of doubt to the accused. Therefore, with these observations, we are of the opinion that, the judgment of the trial Court is not proper and correct and the same is liable to be set aside. Hence, we proceed to pass the following:
ORDER The appeal is allowed. The judgment of conviction dated 28.2.2013 and the order of sentence dated 1.3.2013 passed by the I Addl. Sessions Judge, Mysuru in SC No.54/2012, is hereby set aside.
Consequently, the appellant/accused No.1 is hereby acquitted of the charges levelled against him for the offence punishable under Section 302 read with Section 109 of IPC. The appellant/accused No.1 is ordered to be released forthwith, if he is not required in any other case.
If any fine amount has already been deposited, the same is ordered to be refunded to the appellant on proper identification and acknowledgement. The other portion of the judgment of the trial Court regarding disposal of the property is not disturbed.
Registry is hereby directed to communicate the operative portion of this order to the concerned jail authority for release of the accused forthwith, if he is not required in any other case.
Sd/- JUDGE Sd/- JUDGE PL*