IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 4TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.520 OF 2012 BETWEEN:
SRI. RAGHU @ RAGHURAM S/O LATE RAMAIAH, AGED ABOUT 38 YEARS, RESIDING AT NO.4, 1ST FLOOR, 1ST CROSS, BASAVESHWARA EXTENSION, NAGASHETTY HALLI, SANJAY NAGAR.
(BY SRI:S. BALAKRISHNA, ADVOCATE) AND:
THE STATE OF KARNATAKA BY SANJAY NAGAR POLICE STATION.
… APPELLANT …RESPONDENT (BY SRI:VIJAYKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT – I, BENGALURU IN S.C.NO.598 OF 2007 DATED 29.03.2012 – CNVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND THE APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND SHALL PAY A FINE OF RS.10,000/- IN DEFAULT TO SUFFER SIMPLE IMPRISONMENT FOR NINE MONTHS, FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING, THIS DAY, RAVI MALIMATH.,J DELIVERED THE FOLLOWING:
J U D G M E N T The case of the prosecution in brief is as follows:
The deceased Ganesh @ Eshwar Ganesh and accused No.1 were close friends. The deceased was running a Travel Agency for a company called Taegu Tech. He was a driver cum owner of his four wheeler vehicle. The complainant is the brother of the deceased and he was also running a Travel Agency for the said company. The deceased and the complainant were residing together with their wives and children at No.223, 4th Main, M.S.R. Nagar, Bengaluru. On 20.02.2007 at about 7.30 to 8.00 p.m., the complainant and the deceased went to Sanjayanagar to purchase certain canteen products. The deceased called his cousin brothers i.e., PWs.2 and 3. They joined the deceased and the complainant at about 9.00 p.m. near Vaibhav Theatre, Sanjay Nagar. PWs-4 and 5 also went near Vaibhav Theatre, opposite to Volga Wines around 10.15 to 10.30 p.m. They were all together. The deceased telephoned accused No.1 and called him there. Accused No.1 also joined the deceased, complainant and others. A quarrel took place between the deceased and accused No.1, when the deceased demanded a sum of Rs.40,000/- from accused No.1, which was due to him. PWs.1 to 5 pacified the quarrel and left for their houses in two wheelers. PW.1 and deceased were going together, PWs-2 to 5 were following them. At about 12.00 a.m., behind Mariyamma Temple, accused No.1 came in a black Kinetic Honda bearing registration No.KA-09-GJ-2913 and stopped them. He started arguing with the deceased with respect to the financial matter. The brother of accused No.1 namely, Murali came there from the temple side and was interfering with their quarrel. PWs.1 to 5 asked Murali not to interfere in matters pertaining to the deceased and accused No.1, since the quarrel would take place regularly and everything would be normal thereafter. PWs.1 to 5 were at a distance of about 8 to 10 feet. All of a sudden accused No.1 took out a knife and stabbed the deceased. PWs.2 to 5 tried to catch accused No.1 but he ran away. The complainant went to his house and brought a Tata Sumo vehicle and took the deceased to M.S. Ramaiah Hospital along with PWs.2 to 5. The deceased succumbed to the injuries at about 1.45 a.m.
2. The complainant went to the Police Station and gave an oral complaint in terms of Ex.P-1. A case was registered in Crime No.22 of 2007. After registering the First Information Report, the Investigating Officer visited the spot and seized the Kinetic Honda, two wheeler. He visited the mortuary and conducted an inquest in terms of Ex.P-5. He received the accident register extract from M.S. Ramaiah Hospital and recorded the statements of Smt. Nandini Karthik, R.N. Raghu and P.K. Mohan. On 24.02.2007, he arrested accused Nos.1 and 2 and recorded their voluntary statement in terms of Ex.P-21. He seized a knife at the instance of accused No.1 in terms of the mahazar, Ex.P-3. Accused No.1 led the Investigating Officer and panchas to his house and produced blood stained pant (MO.6) and blood stained shirt (MO.7), said to have worn by him at the time of the incident, which was seized under mahazar, Ex.P-22. On completion of investigation, a charge sheet was filed against accused Nos.1 and 2 for the offences punishable under Section 302 and 212 of the Indian Penal Code.
3. The accused denied the charge and claimed to be tried. In order to prove its case, the prosecution examined 25 witnesses, marked 31 exhibits along with 11 material objects. The defence marked Exs.D-1 to 5 documents.
4. By the impugned order, accused No.2 was acquitted and accused No.1 was convicted for the offence punishable under Section 302 of Indian Penal Code and was sentenced to life along with payment of fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of nine months. Aggrieved by the same, the present appeal is filed.
5. Sri. S. Balakrishna, learned counsel appearing for the appellant contends that the impugned judgment of the Trial Court is erroneous and liable to be set aside. That, the Trial Court misread the evidence on record. That even if the statement of the eye witnesses are to be accepted, that does not bring home the guilt of the accused. The medical opinion does not support the case of the prosecution. The Trial Court mis-directed itself and has wrongly convicted the accused. Hence, he pleads that the appeal be allowed by acquitting the appellant-accused.
6. On the other hand, Sri. Vijaykumar Majage, learned State Public Prosecutor, defends the impugned order. He submits that there are as many as five eye witnesses and that all of them have clearly narrated the incident which had occurred. They have seen the incident. The motive has been established. Even though there are minor discrepancies in the case of the prosecution, the same does not affect the root of its case. The Trial Court has rightly considered the evidence on record and hence, no interference is called for. Hence, he pleads that the appeal be dismissed.
7. Heard learned counsels and examined the records.
8. PW.1 is the complainant. He has stated that he and his family members, the deceased and his family members were residing in the same house. He and his brother, the deceased Ganesh were running a Travel Agency for a company called Taegu Tech. They were both owners and drivers of their respective vehicles. That, on 20.02.2007, he and the deceased came to Sanjay Nagar at about 7.30 to 8.00 p.m. to purchase certain canteen products. The deceased called his cousins namely PWs.2 and 3. They came there at about 9.00 p.m. The deceased also called accused No.1, who came there. They were all near Vaibhav Theatre, opposite to Volga Wines. The deceased started arguing with accused No.1 to return Rs.40,000/- due to him. The witness and PWs.2 to 5 were also there. They pacified the quarrel. That, all of them went home in two wheelers. Accused No.1 left that place to his house. At about 10.00 to 10.30 p.m., when the witness and others were heading towards their residence behind Mariyamma Temple, accused No.1 came there in a black Kinetic Honda and stopped them. He started quarrelling with the deceased in respect of the financial matter. The younger brother of accused No.1 namely Murali came there. That, accused No.1 and deceased would consistently quarrel, but would become friends within a day or two. Therefore, Murali was told not to interfere. That, the witness and others were at a distance of 8 to 10 feet from them. All of a sudden, the deceased started screaming. Accused No.1 who was holding a knife stabbed the deceased on his stomach and left hand. PWs.2, 3, 4 and 5 tried to catch accused No.1. Accused No.1 threatened them by showing the knife and ran away. The intestine of the deceased had come out. The witness went to his residence and brought a Tata Sumo four wheeler and took the deceased to M.S. Ramaiah Hospital at 12.10 a.m. After 45 minutes to one hour, the Doctor stated that deceased succumbed to the injuries. Thereafter, witness and others went to the Police Station and lodged the complaint in terms of Ex.P-1. The Police came there and the investigation continued. In the cross-examination, the witness has stated that he and his cousins namely PWs.2 to 5 had dinner in the house of the deceased. The food was served by the wife of the deceased. That, after having dinner, PW-1 went to his house. That, the wife of the witness also had dinner with him in the house of the deceased. He has further stated in his cross-examination that after dinner, he and his wife were at home. That, he does not know whether deceased was sleeping or not. That, after having dinner he did not proceed out of the house anywhere. That, he was talking with the other cousins in his house. His wife was also present. At the end of the cross-examination, it is elicited that the accused and deceased were childhood friends. That, it is true that accused No.1 had no motive or enmity to kill the deceased.
9. PW.2 has stated that the deceased and PW.1 are his cousin brothers. The witness also stated in verbatim, exactly what PW.1 has stated in his examination-in-chief. The manner in which the other witnesses came to the scene, the stab injury inflicted by accused and all other factors are identical to the examination-in-chief of PW.1. Hence, we do not find it necessary to reiterate the very same evidence. However, so far as the cross-examination is concerned, PW.2 has denied that himself, deceased, PW.1 and 3 to 5 went to Volga Wines to drink alcohol. He has stated that on that night, everybody were on cordial terms. Accused No.1 took his Kinetic Honda and went to his house. After accused No.1 left the spot, they were all there for about 15 to 20 minutes. The deceased was with them between 10.00 to 11.00 p.m. in front of Volga Wines. That on that night, he did not have his dinner from 9.30 till he was with them. That, the witness did not go to the house of the deceased on that night and he went to his own house. That, he is not aware whether the deceased had dinner consisting of vegetable, rice and egg in his house. He is not aware whether the deceased had any intimacy with one Uma. He has stated that according to him the alleged incident took place at about 12.10 a.m.
10. PW.3 has stated that the deceased Eshwar and PW.1 are his cousins. The examination-in-chief of PW.3 is the verbatim copy of what PW.1 has stated. Therefore, we do not find it necessary to reiterate the same. In the cross- examination, he has stated that the deceased had called him for dinner to his house. That, after finishing his office work at about 8.30 p.m., he went to the house of the deceased to have dinner. That, he did not go to Volga Wines on that day. That, he did not have any alcohol as he was going to the house of the deceased for a special dinner. The deceased had also invited the wife of the witness. However, she did not come as there was examination for her children. He has not seen accused No.1 in Volga Wines on that day. Thereafter, he states that he went to Volga Wines at 9.00 p.m. and saw the deceased and others were talking therein. That he does not know whether deceased had vegetable, rice and egg in his house.
11. The evidence of PW.4, who is said to be yet another eye witness is identical to the evidence of PW.1. Therefore, we do not find it necessary to reiterate the same. In the cross-examination, the witness has stated that the deceased invited him and his wife for dinner to his house. PW.1 also telephoned the witness at about 9.45 p.m. That, he was with PW.1 and the deceased between 10.30 to 11.30 p.m. He reiterates that between 10.30 to 11.30 p.m., the witness went to have dinner in the house of the deceased. The deceased and accused No.1 were discussing and quarrelling regarding finance. He is not aware of the discussion. He is not aware whether PW.1 and deceased had food in the house of deceased.
12. The evidence of PW.5, who is yet another eye witness, is identical to the evidence of PW.1. Therefore, we do not find it necessary to reiterate the same once again. In the cross-examination, PW.5 has stated that the deceased did not call him to his house for dinner between 11.30 p.m. to 12.30 a.m. He has stated that he has not seen Murali, Velu and Hanumantharaju after 11.00 p.m. on that day.
13. PW.6 is the mother of the deceased. She is a hearsay witness. She came to know about the incident only after it was communicated to her.
14. PW.7 is the wife of the deceased. She has stated that on 20.07.2007, her husband-deceased returned from work at 6.45 p.m. He had coffee and went out with his brother. She called him at about 10.00 p.m. At about 10.30 p.m., the deceased called her and told her that he and his cousin brothers PWs.2 to 5 are coming to dinner and asked her to prepare dinner. At about 1.00 a.m. her father in law’s younger brother telephoned her and stated that the deceased was admitted to M.S. Ramaiah Hospital. She went there at 1.30 a.m. The deceased was declared dead at 1.45 a.m. In the cross-examination she denies the suggestion that the deceased came home and had dinner. She states that PW.1 and his family members did not come home or have dinner. She states that neither she nor her husband had invited them to dinner. That, there was no special occasion to invite anybody for dinner. She further states that Uma was their family friend. She denies the suggestion that the deceased used to visit the house of Uma. That, she herself has misunderstood that his husband had an illicit intimacy with Uma.
15. PW.13 is the photographer who took the photographs of the dead body in the mortuary. PW.14 is the Doctor, who had treated the deceased when he was brought to the hospital. He has stated that the deceased was unconscious, vitals were not recordable, ECG showed a flat line. He found the following injuries:
1. Stab wound on the abdomen below the ublicus, visra protruding out of the wound.
2. Chop lacerated wound on the left wrist measuring about 10 x 3 cms in to bone deep, muscles and wrist bones were exposed.
3. Lacerated wound on the left distal forearm measuring 4 x 2 cms x muscle deep.
4. Cut wound near third wound measuring 3 x 1 cm x muscle deep.
In the cross-examination, he has stated that the stab wounds and chop wounds, as mentioned, could be caused by two different weapons.
16. PW.15 is the pancha to the recovery of Yamaha Motor Cycle and a helmet. PW.16 is the Assistant Engineer, who has drawn the sketch of the scene of offence. PW.17 guarded the dead body in the mortuary. PW.18 is the Police Constable, who carried First Information Report to the Magistrate. PW.19 is the Police Constable, who apprehended accused Nos.1 and 2 and brought them to the Police Station.
17. PW.20 is the Assistant Director of Forensic Science Laboratory. He has submitted his report in terms of Ex.P-17. With regard to items 4, 5 and 6, he has stated that they were stained with ‘O’ group blood. He also conducted examination of item No.2 i.e., shirt of the deceased on 02.04.2007 and furnished Serology Report in terms of Ex.P-18, which indicates that it is human blood and is ‘O’ blood group.
18. PW.21 is the Investigating Officer. He has stated about the investigation done by him in the case. He has been cross examined at length. Various incriminating materials have been extracted in his cross-examination. He has stated that in terms of investigation, the deceased had consumed food at Volga Bar, Sanjay Nagar Main Road. Volga Bar is only a wine store and not a restaurant. The deceased and others have also consumed liquor in the bar. He has not investigated whether Volga Wine Store has a facility of kitchen to prepare rice, egg and vegetable meal. That, he did not find it necessary to examine the owner and other staff of Volga Wine Store as to whether food was being served therein. He states that there is a possibility for the deceased to have had rice, egg, vegetable meals in his house. According to his investigation, the deceased and PWs.1 to 5 went to the house of deceased for dinner at 1.50 a.m. He has not investigated whether PWs.1 to 5 were present between 10.00 p.m. to 1.50 a.m. on the intervening night of 20/21.02.2007. He is not aware whether PWs.1 to 5 were sleeping in their respective houses at that time. That, he did not find it necessary to investigate whether and at what time the deceased consumed rice, egg and vegetable meals. He has further stated in his cross-examination that PW.1 has not stated in the complaint, Ex.P-1, that accused No.1 threatened him and others by showing knife and assaulted the deceased with the knife on his left hand. He accepts the suggestion that accused is not the registered owner of Kinetic Honda Scooter bearing registration No.KA-04-J-2930.
19. PW.22 is the Doctor, who conducted post mortem examination on the deceased. He has noticed the following injuries:
1. Stab wound 5.5cms x 0.3 cm x abdominal cavity deep, horizontally placed over the front of abdomen, 1.5cms below and to the left of umbilicus. Inner end is acute and outer end is blunt with coils of intestine protruding out. On dissection of the injury, the weapon after piercing the skin, subcutaneous fat, abdominal muscles has pierced the peritoneum, severed the coil of small intestine (Jejunum) and has pierced the mesentry, and has further severed the right iliac artery. The peritoneal cavity contains about 1800 to 2000ml of blood and blood clots. The injury is directed inwards, backwards and to the right for a depth of 10cms.
2. Two chop wounds 10cms x 1.5cm and 9cms x 1.5cms each x underneath bone deep situated over the lower 1/3 of the inner aspect of left forearm. The underneath bone shows a cut fracture at two sides. Blood effused around. The wounds are merged together (Defence wound).
3. Incised wound vertically placed 6cm x 0.5cms x muscle deep situated over the front of lower 1/3 of left forearm with tailing caudally (Defence wound).
4. Incised wound curviilinear in shape, measuring 4cms x 0.5cms x muscle deep situated 1cm to the left on injury No.3(Defence Wound) He has furnished his opinion that the death is due to shock and hemorrhage as a result of stab injury sustained on the abdomen. He has examined the knife, MO.3, which has been sent to him. He has opined that the injuries 1 to 4 could be caused by the weapon that has been sent to him. In the cross-examination, he has stated that the deceased could have consumed food between two to three hours prior to his death.
20. PW.23 is the Assistant Sub-Inspector, Sanjaynagara Police Station. He received a message from the control room to come near M.S. Ramaiah Hospital, since the deceased had sustained injuries and had died. PW.24 is another Head Constable who came to the spot and conducted the spot mahazar and seized the blood stained and unstained mud as well as Kinetic Honda.
21. PW.25 is the Deputy Director of Forensic Science Laboratory. He received six sealed articles for chemical analysis. He has submitted his report in terms of Ex.P-2. That, all items except item No.2 contained blood stains. He also received two sealed articles containing a pant and a shirt of the accused, which contained the blood stains of ‘O’ blood group, namely the blood group of the deceased.
22. Based on these evidences, the Trial Court was of the view that the prosecution has established its case beyond all reasonable doubt, so far as accused No.1 is concerned. It was of the view that the eye witnesses, PWs-1 to 5 having clearly narrated the manner in which the incident took place and they having witnessed accused No.1 having assaulted the deceased, the prosecution has proved its case beyond all reasonable doubt. It was also of the view that the medical evidence supports the case of the prosecution and that the recovery having been proved by the prosecution, accused No.1 was convicted and sentenced for the offence punishable under Section 302 of Indian Penal Code. In view of lack of evidence and material so far as accused No.2 is concerned, he was acquitted of all the charges against him.
23. PWs.1 to 5 are the eye witnesses. The prosecution relies on their evidence to bring home the guilt of the accused.
24. We have examined the evidence of PWs.1 to 5 at length. The examination-in-chief of each of these five witnesses are identical and verbatim. The same words, the same sentences and the same time of the incident is repeated in the examination-in-chief of these eye witnesses. We find the recording of the examination-in-chief are strange in view of the absolute similarity in the examination-in-chief.
25. On considering the evidence, it is clear that the witnesses are tutored. Each one of the five witnesses have been trained to speak the very same words narrating the incident. Therefore, we have no hesitation to hold that the examination-in-chief is tutored.
26. So far as the cross-examination is concerned, it is varied. PW.1 has stated that he went to the house of the deceased and after having dinner he did not proceed out of the house. He was talking with his cousins in the house. That, his wife was present at that time. He reiterates the same by stating that he was at home with his wife. PW.2 in his cross-examination has stated that he did not have dinner and he did not go to the house of the deceased on that night. PW.3 in his cross-examination has very clearly stated that after his office work, he was called, at 8.30 p.m. He went to the house of the deceased for dinner. PW.4 has stated that between 10.30 to 11.30 p.m., he went to the house of the deceased to have dinner. That, the deceased did not have food on that night in his house or anywhere. That, he is not aware whether PW.1 and the deceased had food in the house of the deceased. PW.5 has stated that the deceased did not call him to his house for dinner. Therefore, the cross- examination of PWs.1, 3 and 4 would clearly indicate that the deceased and these witnesses went to the house of the deceased and had dinner. The cross-examination of PW.2 does not support the cross-examination of PWs.1, 3 and 4 with regard to having dinner in the house of the deceased. Therefore, based on the cross-examination of PWs.1, 3 and 4, it can be safely inferred that the deceased as well as these witnesses went to the house of the deceased at his request and had dinner between 10.30 to 11.30 p.m.
27. Subsequent to having dinner in the house of deceased, there is no evidence on record as to what happened thereafter. The case of the prosecution is that even before the deceased went to his house, when he was proceeding there, accused No.1 accosted him on the road and the assault was committed. The evidence of PWs.1, 3 and 4 would clearly indicate that the prosecution has failed to prove its case of assault having taken place at that point of time, when the witnesses have clearly stated that from Volga Wines they have proceeded to the house of deceased and had dinner. But, the very genesis of the case of prosecution is that the incident took place after Volga Wines and before they reached the house of the deceased. Therefore, it cannot be accepted. It runs contrary to the evidence on record. Therefore, we find that the Trial Court has committed a perversity in accepting the evidence of all these witnesses. In the cross-examination, they have clearly narrated that the deceased and others had food in the house of the deceased between 10.30 to 11.30 p.m. Therefore, we are unable to accept the evidence of these eye witnesses with regard to the nature of the assault or manner or time, which it was committed.
28. The evidence of the witnesses would have to be considered as a whole. The evidence cannot be read in a piece-meal manner. As stated hereinabove, the examination- in-chief of all the five eye witnesses have been tutored. Cross-examination of PWs.1,3 and 4 bring out the truth of the prosecution case. Their cross-examination is corroborative to the effect that the deceased and others went to the house and had dinner therein. Therefore, on weighing the entire evidence on record, we have no hesitation to hold that the deceased and others went to the house of the deceased and had dinner. Therefore, the theory of the prosecution to the contrary cannot be accepted. The prosecution case is not supported by any evidence. The eye witnesses have not supported their statement in the cross-examination. Therefore, we are unable to accept the evidence of the eye witnesses.
29.(a) Furthermore is the cross-examination of the Investigating Officer PW.21. All the crucial aspects of the matter have not at all been investigated by him. He has stated that he has not investigated whether the dinner was served at Volga Wines or not. This aspect is crucial since there is no evidence to indicate that Volga Wines is a restaurant. In fact it is only a Wine Store. Therefore, the prosecution would have to explain about the semi-digested food in the stomach of the deceased. Therefore, he had to enquire with the owner of Volga Wines whether the food is being served, but the Investigating Officer has not done so, which is a grave error. Such an error greatly affects the case of the prosecution. When the prosecution has failed to explain the contents of the food in the stomach of the deceased, the prosecution case cannot be accepted. The statement of the eye witnesses made in the cross- examination would therefore appear to be more truthful than the projected case of the prosecution. The witnesses have not supported the statement made by them in the examination-in-chief. Therefore, the prosecution cannot rely on the examination-in-chief alone in support of their case.
(b). Further, the Investigating Officer has stated that according to his investigation, the deceased and the eye witnesses PWs 1 to 5 went to the house of the deceased and had dinner. If this is the investigation made by the Investigating Officer, that the deceased and PWs 1 to 5 went to the house of the deceased then the entire case becomes doubtful. Even the Investigating Officer has not supported the case of the prosecution.
30. The evidence in chief of the eye witnesses are identical with regard to the manner in which the incident has occurred. They have narrated that all of a sudden accused No.1 stabbed the deceased on the stomach and on the left hand. Thereafter, he ran away. PW.22 is the Doctor, who conducted post mortem examination. He has noticed four injuries on the body. First is the stab wound over the abdomen, second is chop wound over the inner aspect of left forearm, underneath bone shows a cut fracture at two sides, third is the injury on the front of lower 1/3 of left forearm and fourth is the wound to the left on injury No.3. It is further reiterated that two chop wounds at Sl.No.2 and the injuries at Sl.No.3 and 4 are defence wounds as narrated by the witnesses. Therefore, it cannot be said that the statement of the eye witnesses could be accepted on the face of the medical evidence of PW.22, Doctor.
31. PW.14 is the Doctor, who was at M.S. Ramaiah Hospital when the deceased was first brought for treatment. He has stated that the deceased was unconscious, vitals were not recordable and ECG showed flat line and he found four injuries. In the cross-examination he has stated that stab and chop wounds could have been caused by two different weapons. The weapon seized is MO.3, which is a knife. The evidence of the Doctor, PW.14, therefore runs contrary to the case of prosecution so far as MO.3, the knife is concerned.
32. PW.8 is a witness to the recovery of the knife, MO.3. The other witness i.e., PW.9 has not supported the prosecution in so far as MO.3 is concerned. The material on record does not indicate that MO.3 was sent to the Serologist for his opinion. Therefore in the absence of sending the weapon to the Serologist and seeking his opinion, it cannot be said that the prosecution has established its case so far as MO.3 is concerned.
33. The recovery of blood stained clothes of accused was sent to the Serologist. However, the fact remains that the pancha for such a seizure has not been examined by the prosecution. Hence, that also has not been proved by the prosecution.
34. Under these circumstances, when the very genesis of the prosecution case with regard to the manner in which the incident occurred has not been proved, we have no hesitation to hold that Trial Court has committed a perversity in accepting the evidence of the so called eye witnesses. On appreciating the evidence of the eye witnesses, it clearly emerges that the deceased and other witnesses were in the house of the deceased, after having dinner. The altercation that took place near Volga Wines is not proved. There is no evidence to show that after the alleged altercation at Volga Wines, the incident occurred as narrated by the witnesses in the examination-in-chief. Their cross-examination becomes very crucial, since PWs.1, 3 and 4 have clearly stated that after the altercation at Volga Wines, they all went to the house of the deceased and had dinner. Therefore, the case of the prosecution that the incident took place when the deceased left Volga Wines is bereft of any material. The medical evidence also does not support the case of the prosecution. The Investigation Officer PW.21 has stated that according to his investigation, the deceased and PWs 1 to 5 went to the house of the deceased for dinner. He has further stated that he did not find it necessary to investigate and whether under what time the deceased consumed rice, egg and vegetable meal. Under these circumstances, the prosecution has miserably failed to prove its case. The eye witnesses have not supported their case. The investigation Officer also does not support the case of the prosecution. The recovery of the knife M.O.3 is not proved. For the aforesaid reasons, we are of the view that the Trial Court has committed a perversity in convicting the appellant-accused.
35. Hence, the following:
ORDER i) Criminal Appeal No.520 of 2012 is allowed.
ii) The impugned judgment dated 29.03.2012 passed by the Fast Track Judge-I, Bengaluru, in S.C.No.598 of 2007, is set aside.
iii) The appellant – Raghu @ Raghuram is acquitted of all the charges levelled against him.
iv) He shall be set at liberty forthwith in this case, if not required in any other case.
Registry to communicate the operative portion of this order to the Jail Authorities, Central Prisons, Bengaluru.
Sd/- Sd/-
JUDGE JUDGE Bmc/-