IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.994 OF 2013 C/W CRIMINAL APPEAL NO.183 OF 2014 IN CRIMINAL APPEAL NO.994 OF 2013 BETWEEN:
SMT. SHOBHA WIFE OF MANJUNATHA AGED ABOUT 28 YEARS RESIDING AT AJJIKYATHANAHALLI VILLAGE HOLALKERE TALUK-577 528.
CHITRADURGA DISTRICT. ... APPELLANT (BY SRI K. NAGALINGAPPA, ADVOCATE FOR SRI. JAGADEESH GOUD PATIL, ADVOCATE) AND:
STATE BY SANTHEBENNUR POLICE CHANNAGIRI TALUK DAVANAGERE DISTRICT. ... RESPONDENT (BY SMT B.G. NAMITHA MAHESH, HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE ORDER DATED 03.09.2013 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN SESSIONS CASE NO.110 OF 2011 – CONVICTING APPELLANT/ACCUSED NO.3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 201 AND 120(B) READ WITHSECTION 34 OF INDIAN PENAL CODE AND ETC.
IN CRIMINAL APPEAL NO.183 OF 2014 BETWEEN:
1. SHEKARAPPA @ CHANDRASHEKASARAPPA SON OF HANUMANTAPPA AGED 26 YEARS RESIDENT OF AJJIKYATHANAHALLI VILLAGE HOLALKERE TALUK.
2. PRASANNA @ PRASANNAKUMAR SON OF THIPPESHAPPA AGED ABOUT 27 YEARS NATIVE OF NULENUR RANGAPURA HOLALKERE TALUK NOW RESIDING AT AJJIKYATHANAHALLI VILLAGE HOLALKERE TALUK. ... APPELLANTS (BY SRI R. RAKSHITH, AMICUS CURIAE) AND:
THE STATE OF KARNATAKA BY SANTHEBENNUR POLICE STATION DAVANAGERE DISTRICT. ... RESPONDENT (BY SMT B.G. NAMITHA MAHESH, HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMENT DATED 03.09.2013 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN SESSIONS CASE NO.110 OF 2011 – CONVICTING APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 201 AND 120(B) READ WITHSECTION 34 OF INDIAN PENAL CODE AND ETC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.09.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:
JUDGMENT These two appeals are filed by the accused No.3 and accused Nos.1 and 2 respectively questioning the judgment of conviction passed in S.C.No.110 of 2011 dated 03.09.2013 on the file of II Additional District and Sessions Judge, Davanagere, convicting the accused for the offences punishable under Sections 302, 201 and 120(b) of Indian Penal Code read with Section 34 of Indian Penal Code.
2. Brief facts of the case are as follows:
It is the case of the prosecution that accused Nos.1 and 3 were having illicit relationship between them and hence, along with accused No.2, all of them conspired to eliminate the husband of accused No.3. That on 15.03.2011, the accused No.2 took the deceased Manjunatha on the pretext of collecting balance coolie amount from Devarahalli Hanumanthappa, Kulenuru Village and later accused No.1 joined them and thereafter both the accused Nos.1 and 2 took him in a motorcycle to liquor shop and made him to drink liquor heavily and both of them took him near the pond and committed murder by slitting his neck. In order to screen the evidence, they threw the dead body, knife and blood stained clothes and left the place. Thereafter, the dead body was found on the next day. The brother of the deceased had given a complaint and based on the complaint, the police have registered the case in Crime No.28 of 2011 and mahazar was conducted; clothes of the deceased was also seized and the dead body was subjected to inquest. Thereafter post mortem was done and recoveries were made at the instance of accused Nos.1 and 2. After completion of the investigation, the police have filed the charge sheet against the accused for the offences punishable under Sections 302, 201 and 120(b) of Indian Penal Code read with section 34 of Indian Penal Code.
The accused Nos.2 and 3 were enlarged on bail and accused No.1 was in custody. The accused did not plead guilty and claims for trial. Hence, the prosecution relied upon the evidence of P.Ws.1 to 30, got marked the documents Exs.P1 to P30 and also relied upon M.Os.1 to 10. The accused did not choose to lead any evidence.
3. After completion of the evidence, statement of the accused persons under Section 313 of the Code of Criminal Procedure was recorded. The Court below, after hearing both the learned Public Prosecutor and learned counsel for the accused, convicted the accused persons. Hence, these two appeals are filed challenging the judgment of conviction by accused No.3 and accused Nos.1 and 2, respectively.
4. In Criminal Appeal No.994 of 2013, the accused No.3 would contend that the Court below has failed to consider the evidence of independent witnesses PWs.10 and 11. The accused is having two school going minor children and nobody is there to look after them. The trial Court has totally ignored the inconsistencies and the material contradictions in the evidence of prosecution witnesses and has given undue weightage to the insufficient evidence adduced by the prosecution. Further contend that the Court below has not taken into consideration the evidence of material witnesses, who have been examined and spoken with regard to the antecedents of the deceased. Hence, the very finding of the trial Court is perverse which has resulted in miscarriage of justice.
5. In Criminal Appeal No.183 of 2014, the accused Nos.1 and 2 would contend that the Court below has committed an error in not appreciating the material contradictions in the evidence of the prosecution witnesses. The trial Court has committed an error in appreciating the evidences which are in favour of the prosecution and not appreciated the defence taken during the course of trial. It is further contended that the Court below has failed to consider the omissions and contradictions in the evidence of prosecution witnesses.
6. The learned counsel appearing for the appellants/accused Nos.1 to 3 in both the appeals would contend that there is no material before the Court that there was an illicit relationship between accused Nos.1 and 3. The case rests upon circumstantial evidence. The Court below has mainly relied upon the evidence of P.Ws.2 and 3, who are the relatives of the deceased with regard to the illicit relationship. The Court below also relied upon the evidence of P.W.17, the bar owner who has spoken with regard to the visit of accused Nos.1 and 2 along with the deceased to his shop. The Court below failed to take note of the material contradictions in the evidence of these witnesses. P.W.2, the brother of the deceased, who is an interested witness has spoken with regard to the illicit relationship between the accused Nos.1 and 3 that he saw accused Nos.1 and 3 in a room. The case of the prosecution is that accused No.2 took the deceased and none have spoken about the same. But, P.W.2 states that accused No.2 came in knicker and banian without bike. The prosecution has also relied upon the evidence of P.W.18, who has spoken with regard to the accused No.1 purchasing the knife from a shop. The witness P.W.1 has spoken with regard to the seizure of clothes of accused No.1 and motor cycle found near the pond. The Court below has failed to consider the material contradictions and the inconsistencies in the evidence of prosecution witnesses. Therefore, it is contended that the prosecution has failed to prove the motive and in spite of the same, the Court below has committed an error. Hence, pray this court to set aside the judgment of conviction and acquit the accused persons.
7. Per contra, learned High Court Government Pleader appearing for the State would contend that P.Ws.2 and 7 have spoken with regard to the illicit relationship between accused Nos.1 and 3. P.W.17, who is the owner of the bar has categorically stated that accused Nos.1 and 2 and deceased came to his shop. P.W.18 has also categorically deposed that accused No.1 came and purchased the knife and the very same knife was seized. P.W.4, who is a recovery witness has supported the case of the prosecution. Taking into consideration the evidence of P.W.1 and the Investigating Officer, who recovered the knife and clothes of the deceased at the instance of accused Nos.1 and 2 substantiates the case of the prosecution. Hence, it is contended that the Court below has not committed any mistake or error in appreciating both oral and documentary evidence and there are no grounds to acquit the accused persons and allow both the appeals.
8. In support of their contention, learned counsel appearing for the appellants relied upon the judgment reported in AIR 2018 SC 3993 in the case of STATE OF KARNATAKA VS. P. RAVIKUMAR ALIAS RAVI ETC. The learned counsel, brought to our notice Para-10 of the judgment wherein it is held that there is no any evidence to prove the conspiracy. In the case on hand also to prove that accused No.3 had hatched conspiracy with accused No.2 to commit the murder on account of illicit relationship is also no material. Hence, it is submitted that the judgment is aptly applicable to the case on hand.
9. Having heard the arguments of both the learned counsel for appellants and learned High Court Government Pleader for the State, the points that arise for our consideration are:
1. Whether the Court below has committed an error in convicting the accused Nos.1 to 3 for the offence punishable under Sections 302, 201 and 120(B) read with Section 34 of Indian Penal Code and whether it requires interference of this Court?
2. What order?
Point Nos.1 and 2:
10. The factual matrix of the case of the prosecution is that, accused Nos.1 to 3, in furtherance of their common intention to commit the murder of the deceased Manjunatha since he was obstructing and coming in the way of illicit relationship of accused Nos.1 and 3, that on 15.03.2011 at about 5.30 p.m., accused No.2 took the deceased from his house on the pretext of collecting coolie amount from one Devarahalli Hanumanthappa of Kulenuru Village. Thereafter, accused No.1 joined both of them and took the deceased in a motorcycle to Santebennur and made him to consume alcohol heavily. In the meanwhile, accused No.1 went and purchased knife and again joined accused No.2 and deceased and thereafter took the deceased towards Kulenuru pond area and committed the murder by conspiracy at the instance of accused No.3 by hatching a plan. In order to screen the evidence to escape from the legal punishment, threw the knife and blood stained clothes and both of them disappeared from the place.
11. This Court has to re-appreciate the evidence available on record since the very contention of learned counsel for the appellants/accused Nos.1 to 3 in both these appeals is that in spite of material contractions and inconsistencies in the evidence of prosecution witnesses, the Court below did not appreciate the evidence in a proper perspective. Hence, it requires interference of this Court. On the other hand, it is the contention of the learned High Court Government Pleader for the State that the Court below has not committed any error in convicting the accused persons and appreciated the evidence in a correct perspective and there are no grounds to interfere with the judgment of conviction.
12. Keeping in view the contention urged by both the learned counsel for the appellants and learned High Court Government Pleader for the State, this Court has to re-appreciate the evidence.
13. P.Ws.1 and 3 are the witnesses to the spot mahazar and seizure of the clothes of the deceased, who have spoken with regard to conducting spot mahazar and seizure of clothes of the deceased. They have also identified their signatures in Exs.P1 and P2.
In the cross-examination of P.W.1 regarding conducting of spot mahazar and seizure of the articles at the spot, it is elicited that he has got little knowledge of reading. It is suggested that complainant is good friend of him and the same was denied. It is suggested that he signed the mahazar at the police station and the same was denied.
In the cross-examination P.W.3, he admits that he is having acquaintance with complainant i.e., P.W.2 from last five to six years. In his evidence, he states that he was taken near the place of pond from the police station on 17th at 11.00 a.m. and thereafter also, he was present at the time of seizure of the clothes of the deceased. He admits that Ex.P2, mahazar was conducted in the police station and police told him to sign the same and hence, he signed.
14. The other material witnesses are P.Ws.2 and 7, who are the brother and father of the deceased. P.W.2, in his evidence states that 1½ year prior to the death of his brother, he was playing cricket and accused No.1 was also watching cricket. He told them that the said ground is very small and go and play the cricket in the vacant land and he went towards his house. He was having doubt about the illicit relationship between accused No.1 and accused No.3, his sister-in-law, since the people in the village were talking about their illicit relationship. When accused No.1 left the place, he also went near the house after ten minutes, since he was having doubt about him. When he went near the house, the door was closed and pulled the same and went inside. At that time, accused No.3 came out from the room and accused No.1 was hiding inside the room and he went inside and questioned both of them and also assaulted both of them with his hands. The accused No.1 ran away from the house and thereafter, the accused No.3 went to her native place and again after six months, she came back and they made separate arrangement to his brother and sister-in-law to live separately. When the deceased came to know about the illicit relationship between accused Nos.1 and 3, he started consuming more alcohol and used to assault accused No.3. Hence, all of them hatched a plan to eliminate his brother. The accused No.2 came and took the deceased since both of the them were friends on the pretext that they are going to collect the balance coolie amount. The accused No.1 also went in motorcycle within five minutes when the accused No.2 and the deceased left the village. On the same day night, the wife of accused No.2 came near the house of accused No.3 and enquired that her husband did not return. In the meanwhile, accused No.1 came without the motorcycle and he suspected why he came without motor cycle and he kept quite. While coming to his house, he came with banian and knicker and on the same day night, his brother did not return and on the very next day, he came to know that dead body was found near the pond and he went and identified the body. Hence, he gave the complaint in terms of Ex.P1 against the accused persons. He identifies his signature in Ex.P1 and also identifies the motor cycle which was seized. He also identifies M.Os.1 and 2. It is also his evidence that his brother assaulted his wife in the mango garden since, she was having illicit relationship with accused No.1.
In the cross-examination, it is suggested that his brother was not having good conduct and he was having enmity in the village and there was a galata between them with regard to the partition of the property and the said suggestions were denied. It is suggested that there was no illicit relationship between them and the same was denied. However, he admits that the brother of the deceased and his wife and children were living separately in the new house. It is also suggested that, there was a galata between him and Basavaraja Naika. But he claims that there was a panchayath in the police station. It is suggested that whenever his brother used to attend the coolie work, he used to make galata in connection with coolie and was having enmity with other coolie workers and the same was denied. It is elicited that accused No.3 and sister of accused No.1 were working as Cook in the school under the ‘Bisi Oota Scheme’. It is suggested that accused No.1 was having illicit relationship with accused No.3 and deceased was having enmity with number of persons and the same was denied.
In the cross-examination of P.W.2 by the learned counsel for accused No.3, it is suggested that the deceased was having illicit relationship with Smt. Gowramma, wife of Gangadharappa and hence, he created a gossip in the village that accused No.1 was having illicit relationship with accused No.3 and the said suggestion was denied. It is elicited that deceased was consuming alcohol. It is suggested that his brother was playing cards and the same was denied. It is suggested that his brother was depending on the income of his wife, accused No.3 and the same was denied.
15. The other material witness is P.W.7, who is the mother of the deceased. She reiterates the fact that accused Nos.1 and 3 were found in the house of accused No.3, as witnessed by P.W.2. It is also her evidence that she was waiting till 9.30 p.m. since her son did not turn up. By that time, accused No.1 came to house in knicker and banian holding torch in his hand. Thereafter, again he went towards the road, near the house of his sister since he had married his sister’s daughter. Later came to know that accused No.2 and accused No.1 took her son and committed the murder.
In the cross-examination of this witness also, similar defence was taken in line with the cross-examination of P.W.2. Several questions were put to the witness with regard to the bad habits of the deceased and the same was denied. It is also suggested that he was having enmity with lot of people and the same was denied. It is suggested that accused Nos.1 and 3 were not having any illicit relationship and the same was denied. But admits that she made the statement before the police regarding their illicit relationship.
16. PW.8, in his evidence, he says regarding illicit relationship between accused No.1 and 3, his evidence is hearsay since he says he came to know that accused No.1 and 3 were found in a room in the house of accused No.3. Apart from that, it is his evidence that his mother went and advised accused No.1 and 3 and told the same to him 20 days prior to the death of the deceased when he was sitting on the pile of the Kolhapuradamma temple. Accused No.1 came and told that the deceased went and told to his wife that there was an illicit relationship between him and the accused No.3 and also giving trouble to his wife. If he continues the same, he did not know what he is going to do and in his presence threatened the deceased and at that time he advised accused No.1. That on 15.03.2011, the accused No.2 came and took the deceased. Both of them left to collect the balance coolie amount to Kulenuru. Within half-an-hour the accused No.1 went in his motor cycle towards accused No.2 and also the deceased, but deceased did not turn up on that day. Next day, he came to know that the deceased was murdered. The accused No.3 might have instigated the accused No.1 to commit murder since the deceased was coming in the way of their illicit relationship. He was subjected to the cross- examination. In the cross-examination, it is elicited that there was a rumor in the village that accused Nos.1 and 3 having illicit relationship. But he did not mention anything before the police regarding both of them found in the room. But he came to know the same through PW.2. It is elicited in the cross-examination that before the police he did not make the statement that he was sitting in the pile of the temple, but he claims that he made the statement before the police that he was restrained near the Kolhapuradamma temple. He admits that he did not give any complaint when he caused threat to the complainant. It is suggested that, accused No.1 had threatened the deceased since the deceased was his relative and the said suggestion was denied.
17. The prosecution also relied upon the evidence of P.W.4, who is the recovery witness. He claims that along with him, one more panch witness Devaraj also accompanied the police. The accused persons took them to Ajjikyathenahalli and seized the motor cycle by drawing the mahazar in terms of Ex.P4. Both the accused Nos.1 and 2 took them near the land of Gejigappa and coconut garden of Shekarappa and produced the knife which was kept in the bush and the police have drawn the mahazar in the said place from 3.45 p.m. in terms of Ex.P5. He also identifies M.O.10, knife. Again, accused No.1 took all of them near the coconut garden of Siddaramappa and produced the lungi and shirt and the same was seized by drawing the mahazar in terms of Ex.P6. He also identifies lungi and shirt as M.Os.8 and 9 and he also identifies slips which were pasted on the cloth cover.
In the cross-examination, he admits his signature but his address is not mentioned in Ex.P5 and so also, did not mention the date. He further reiterates that the knife was seized removing the same from the bush. In the cross-examination by learned counsel for accused No.2, it is suggested that he has signed Exs.P4 to P6 in the police station and the same was denied.
18. The other witness is P.W.17, who has spoken with regard to the accused and deceased last seen together. In his evidence, he states that at around 6.30 to 7.00 p.m., accused Nos.1 and 2 came to his shop along with two persons and all of them consumed raja whisky. Later on the next day, he came to know that a person was murdered. The accused Nos.1 and 2 were in the police station and the police showed both of them in the station and he identified the accused persons and revealed that both of them came to his shop. It is suggested that, accused Nos.1 and 2 did not come along with other persons to the shop and the same was denied. In the further chief evidence, photo was shown to the witness which is marked as Ex.P9. On seeing the same, he identified the other persons, who came along with accused Nos.1 and 2. He further states that the name of the person in the photo, Ex.P8 is Manjappa.
In the cross-examination, he admits that there are regular customers to his bar. Further he admits that he can identify the regular customers. It is suggested that accused Nos.1 and 2 are not the regular customers to his bar and the same was denied. It is suggested that the person found in Ex.P8 did not come to his bar along with accused Nos.1 and 2 and the same was denied.
19. PW.18 in his evidence, he says that he is having a Hardware Shop and accused No.1 is known to him. One year three months prior to the incident, accused No.1 came and purchased a steel knife in his shop. Later, he came to know that accused No.1 committed murder of the deceased with the knife. Material Object was shown to the witness and the witness seeing the same replies that the same may be the knife, which he sold. In the cross- examination, it is elicited that he is having acquaintance with the regular customer, if no acquaintance with them, he cannot identify them. It is suggested that being afraid of the police, he gave the false evidence that the accused might have purchased the mortal in his shop and he had denied.
20. The other witness is PW-23, who conducted the post-mortem examination of the dead body on 17.03.2011 from 1 to 3.30 p.m. It is her evidence that she found injury in the neck i.e., cut incised wound of around 10 – 12 cms in the lower part of neck, trauversely, depth around 4-5 complainant. Complete circumference of trachea has been cut through and through. Major neck vessels and nerves cut on both sides. She gave the post mortem report in terms of Ex.P18. After getting the FSL report, she gave the report in terms of Ex.P19 that the death was due to the injuries found on the neck and blood vessation due to shock in terms of Ex.P20. In the cross- examination, it is elicited that he did not mention the depth of the injury, but she volunteers that in a cut injury cannot mention the same. It is suggested that the opinion which she has given is against the medical science and the same was denied.
21. PW.25 – Police Sub Inspector, in his evidence, he says that complainant came and gave the complaint. Based on the same, he registered the case. The offence was serious and he entrusted the same for further investigation to the Circle Inspector of Police.
22. PW.26 - Police Sub Inspector, in his evidence, he says that he deputed the staff to apprehend the accused persons and that on 19.3.2011 got confirmed the presence of accused No.1 and on 21.3.2011 accused No.2 was apprehended and in his voluntary statement, he admitted the committing of the murder of the deceased. Both accused Nos.1 and 2 were apprehended and produced before the Investigating Officer and thereafter before the Court. In the cross-examination, it is suggested that accused Nos.1 and 2 were not apprehended and produced before the Circle Inspector of Police and the same was denied.
23. PW.26 admits that they did not provide any treatment to accused No.1, when he sustained injuries while removing the door. But he was treated later.
24. PW.27 is the Police Inspector, who conducted the further investigation of the case. He says that he conducted the spot mahazar in terms of Ex.P21 and also clothes of the deceased were seized in terms of Ex.P2. Accused Nos.1 and 2 were produced and their voluntary statement was recorded. Accused Nos.1 and 2 have led the panch witnesses and also the police and produced the knife and also the stained clothes and so also the vehicle which was used and all of them were seized by drawing the mahazar in terms of Exs.P5 to P7. He also identifies the Maternal Object and also stained clothes. It is also in his evidence that the seized articles were sent to FSL. The accused No.3 also apprehended and produced before the Court. He also obtained the sketch from Public Works Department in terms of Ex.P15 and so also obtained the document – Ex.P17 from the village accountant. It is also in his evidence that he has recorded the statement of witnesses and the witnesses have made the statement that accused Nos.1 and 3 were having illicit relationship and hence deceased was assaulting the accused No.3 and hence committed the murder. He was subjected to cross- examination. In the cross-examination, it is elicited in Ex.P15 that, on the south, there is a pond. He admits that the customers should enter the Bar & Restaurant from the front entrance. It is suggested that he did not obtain the sketch of the Bar intentionally and the same was denied. It is suggested that Exs.P3 to P6 are created for the purpose of this case, the same was denied. He admits that he did not mention the balance amount payable by one Hanumanthappa towards the coolie, but the said Hanumanthappa claims that he did not come and collect the money. In the cross-examination of accused No.1’s counsel, it is elicited that the accused No.1 made his efforts to get the job to his brother and the accused No.3 family members and tried to get the job in favour of accused No.3, the same was came to his knowledge during the course of investigation. In the further statement of the complainant also, the same is mentioned. Both the sister of accused No.1 and also accused No.3 have given the application to the Head Master of the School. It is elicited that accused No.3 was going to School in the morning and she was returning at 5 p.m. It is also elicited that the deceased was staying separately from last six months prior to the incident. It is elicited that PW-2 did not make any statement that accused No.1 came and told the ground is small and instructed them to go and play in the vacant place. It is also elicited that PW.2 did not make any statement that he found accused Nos.1 and 3 in their house. PW.2 also did not make any statement that accused No.2 took the deceased to collect the balance amount from one Hanumanthappa. He claims that PW.2 made the statement that when he went to assault accused No.1, at that time he ran away. He came to know during the course of investigation that the deceased was doing his agricultural work and also doing coolie work. PW.2 in his further statement stated that his sister-in-law went to his native place for some time, but he did not mention the date. He also cannot tell how many months she went to her parents house and also does not know during that time who was doing the job of accused No.3 in the School. He also says that 15 days prior to the murder of the deceased, a galata was taken place in the Mango garden with regard to the illicit relationship between accused Nos.1 and 3 and he cannot tell the date. He did not enquire more with regard to assaulting accused No.3 by the deceased.
25. Having considered both the oral and documentary evidence in keeping the contentions urged by both the appellant’s counsel and also the State Counsel and also the principles laid down in the Judgment of the Hon’ble Apex Court in the case of STATE OF KARNATAKA Vs. P. RAVIKUMAR ALIAS RAVI ETC. reported in AIR 2018 SC 3993, regarding hatching the conspiracy with the accused to commit the murder except the oral evidence there is no other evidence before the Court. But in the case on hand, the evidence of prosecution witnesses, particularly, the evidence of PWs.2 and 7 and so also little extent of the evidence of PW.8 is clear that there was a rumor in the village that accused Nos.1 and 3 having illicit relationship between them. The other evidence also PWs.2 and 7 is clear that PW.2 witnessed both accused Nos.1 and 3 in the room when he came to house, he noticed accused No.1 was returned from the place where he was watching the cricket and he assaulted both accused Nos.1 and 3. No doubt, in the cross-examination of PW.27, the Investigating Officer, it is elicited that with regard to the said fact, PW.2 did not make any such statement. But, PW.27, the Investigating Officer, in his evidence, categorically states that PW.2 made the statement that when he went to assault accused No.1 in connection with the said incident, he ran away from the place. It is also important to note that PW.8 is a hearsay evidence. But he categorically deposed that 15 days prior to the death of the deceased, the accused No.1 came and told that the deceased was telling about the illicit relationship between him and the accused No.3 and he does not know what he is going to do, if he continues the same and the said evidence of PW.8 has not been controverted by the defence counsel.
26. It is also the specific case of the witnesses that accused No.2 came and took the deceased from his house and also it is the evidence of PWs.2 and 7 that accused No.1 also left the place within an half-an-hour when accused No.2 and deceased left the house and thereafter accused No.1 separately came without bringing the motor cycle and he came with knicker and banian and thereafter it is the evidence that he went to the house of the sister and on the next day he found the dead body. It is also important to note that the PW.4 is the Mahazar witness for having seized the clothes, motor cycles and also knife at the instance of accused Nos.1 and 2 and the deceased clothes were also sent to FSL. The FSL report also confirms that the seized articles were stained with blood with the group of ‘O’ blood group and having considered the material on record i.e., the oral evidence of PWs.2, 7 and 8 with regard to the illicit relationship between accused Nos.1 and 3 has been proved. The other witness, PW.17, is the owner of the Bar, who says he found the accused No.1 and 2 along with the deceased and he identifies the deceased in the photo which was confronted to him, which are marked as Exs.P8 and P9 and his evidence is consistent that accused Nos.1 and 2 came with the deceased and apart from that the evidence of PW.18 is clear that accused No.1 went to his shop and he only purchased the knife and the very same knife was seized and in this evidence, he says MO.10 might have been purchased by accused No.1 and his evidence was consistent that accused No.1 only went to the shop and purchased the knife and having considered the evidence of these witnesses coupled with the medical evidence and so also the Investigating Officer evidence, it is clear the death was on account of slitting up of neck of the deceased and it is a homicidal one. The other circumstantial evidence also discloses that there was a motive to commit the murder of the deceased and the evidence of prosecution is consistent that accused Nos.1 and 3 were having illicit relationship and accused No.2 only took the deceased from his house. Thereafter, accused No.1 also joined both of them and taken to Bar and made him to consume the liquor heavily and thereafter again took him in the motor cycle near the pond and committed the murder.
27. Having considered the material on record, the Court Below did not commit any error in appreciating the evidence on record. The prosecution evidence is consistent and inspires the confidence of the Court for coming to such a conclusion and the very contention of the accused Counsel that the evidence of witnesses suffers from material contradictions cannot be accepted. Minor contradictions are bound to occur and we did not find any material contradictions as contended by the accused counsel. The recovery has been proved and FSL report also confirms and supports the case of the prosecution. Hence, we are of the opinion that the Court Below has not committed any error. There is no ground to interfere with the order of the Trial Court convicting the accused persons. Hence, there is no merit in the appeal.
28. In view of the discussions made above, we proceed to pass the following:
ORDER Both the appeals are dismissed.
Sd/- Sd/-
JUDGE JUDGE ST/CP*