IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST 2019 PRESENT THE HON’BLE MR. JUSTICE G. NARENDAR AND THE HON’BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.999/2016 BETWEEN:
SIDDARAJU SON OF SIDDEGOWDA AGED ABOUT 53 YEARS RESIDING AT ANJANEYA BLOCK K.R. NAGAR MYSURU DISTRICT-571 602. …APPELLANT (BY SRI. P.D. SUBRAMANYA, ADV.) AND:
THE STATE OF KARNATAKA BY STATION HOUSE OFFICER K.R. NAGAR POLICE STATION K.R. NAGAR-571 602. MYSURU DISTRICT.
NOW REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BUILDING BENGALURU-560 001. …RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. S.P.P.) THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 25.11.2015 AND SENTENCE DATED 02.02.2016 PASSED BY THE PRL. DIST. AND S.J., MYSURU IN S.C.NO.205/2012 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, H.P. SANDESH J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed challenging the judgment dated 25.11.2015 passed in S.C.No.205 of 2012 on the file of Principal District and Sessions Judge at Mysuru questioning the conviction passed against the accused for the offence punishable under Section 302 of Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs.50,000/-. In default of payment of fine, he shall undergo imprisonment for a further period of six months.
2. The brief facts of the case are, that on 24.02.2012 at 7.15 p.m., in front of the Sunanda Bar, which is situate in New Bazaar Road, K.R.Nagar, when the deceased Murthy came on a TVS Scooty bearing No.KA-45 L 0172, the accused who was harbouring illwill against him in order to commit the murder inflicted injuries with a machete. As a result of the assault, the said Murthy succumbed to the injuries. The case has been registered against the accused for the offence punishable under Section 302 of Indian Penal Code. Since he did not plead guilty, the trial was conducted. The prosecution in order to prove the charges examined PWs.1 to 37, relied upon Ex.P1 to P46, marked documents Ex.C1 to C2(a) and also M.Os.1 to 16. The statement of the accused under Section 313 of Code of Criminal Procedure was recorded wherein he has denied the same. The accused did not choose to lead any evidence in defence.
3. The Court below considering the oral and documentary evidence and after hearing the arguments of the respective counsels concluded that the prosecution has proved the charge beyond doubt and convicted the accused.
Being aggrieved by the judgment of conviction, the accused has preferred the present appeal before this Court.
4. The grounds urged in the appeal memorandum is that the Court below has committed an error in appreciating the evidence. It is contended that many of the prosecution witnesses have turned hostile which has resulted in the witnesses giving a go-bye to the case of the prosecution. PWs.7 to 13 have not supported the case of the prosecution and the entire case is based on circumstantial evidence like, recovery of weapon used to commit the offence and the same does not connect to the other link in the chain of incidents to establish the charge of murder by the appellant herein. The Court below failed to consider that the evidence of P.Ws.1 to 3 and also P.W.15 is inadmissible. PWs.2 and 6 have also turned hostile. Learned Sessions Judge failed to consider the technicalities and the important requirement of proof of a serious offence of this nature while convicting the accused for the offence punishable under Section 302 of Indian Penal Code.
5. Learned counsel for the appellant in his arguments vehemently contended that the learned trial Judge failed to consider both oral and documentary evidence in their proper perspective. The Court below relied on the evidence of PWs.1, 4, 15, 25 and 37 of the prosecution witnesses. That P.W.1 has turned hostile and his evidence is not helpful to the case of the prosecution. The evidence of P.W.4 also suffers from material contradictions. That P.W.15 also did not support the case of the prosecution in its entirety and that the recovery witnesses, PWs.21 and 25, have also not supported the case of the prosecution. The evidence of these witnesses ought not to have inspired confidence in the Court, to convict the accused. The Court below committed an error in relying upon the evidence of P.W.37 Investigating Officer who conducted the investigation and also the evidence of Doctor P.W.26 to convict the accused. Hence the judgment of the trial Court calls for interference at the hands of this Court.
6. Per contra, learned counsel for the State in his arguments vehemently contended that though some of the witnesses have turned hostile, the learned trial Judge considering the evidence available on record and also relying upon the decision of the Apex Court, holding that the evidence of hostile witnesses cannot be discarded in toto and that the Court has to appreciate the answers elicited in the cross examination, of witnesses who have turned hostile in order to find out the truth. The learned trial Judge has ferreted the truth and hence convicted the accused and that there are no extenuating grounds to interfere with the judgment of the trial Court.
7. Having heard the learned counsel for the parties, the point that arise for our consideration is as to, “ Whether the Court below has committed an error in convicting the accused for the offence punishable under Section 302 of Indian Penal Code ?”
We proceed to consider the material available on record. The main contention of the learned counsel for the appellant is that the case rests upon the circumstantial evidence since the eye witnesses have turned hostile and recovery is also not proved, the entire case of the prosecution is doubtful and it calls for interference.
8. Having considered the contentions of both the counsel, this Court has to reappreciate the evidence available on record. A perusal of the evidence tendered on behalf of the prosecution no doubt indicate that some of the witnesses have turned hostile and did not support the case of the prosecution including the complainant who has been examined as P.W.1. The prosecution relied upon the evidence of PWs.1, 4, 14, 15, 21, 25, 26 and 37.
9. P.W.1 who is the complainant, in his evidence states that the incident has taken place in front of his bar.
He came out from the bar after hearing the screaming sound. In the meanwhile, some of them had closed the shutters and hence he could not come out. He did not witness the incident. He states that he came to know of the death at 11.00 p.m. in the night. He admits that the Police obtained the complaint in terms of Ex.P1. He identifies his signature. He was treated as hostile. In the cross examination he admits that he was working as a Cashier and further admits that Ex.P1 is in his hand writing. He claims that the contents are false. He further admits that when he wrote the complaint, at that time itself he was aware that the same was false. He states that the Police threatened him to write the same or otherwise they will remove his clothes and keep him in custody. Hence, he wrote the complaint. In the cross examination by learned Public Prosecutor, it is elicited that lodging a complaint against a person alleging that he has committed murder that too knowing fully well that the same is false, is an offence. He admits that the Police constable obtained his complaint and he does not know his name. He did not lodge or file any complaint to any higher Officer about the act of forcibly obtaining a false complaint and there was no difficulty for him to do so. He further admits that he did not inform the same to anybody about obtaining of false complaint and there was no difficulty to inform the same to his colleagues. It is suggested that the people who gathered took the injured to the hospital and the doctor declared that Murthy was ‘brought dead’. The said suggestion was denied. It is also suggested that in order to help the accused, he is giving false evidence, the same is denied. He admits that he is not having the habit of making the signature on the blank paper. He further admits that for the first time he is telling before the Court that they obtained his signature on the blank paper and also did not inform the same to anyone.
10. PWs.2 and 3 turned hostile and nothing is elicited in their cross examination except the statement of P.W.3 that the cashier informed the Police about the incident. P.W.4, another eye witness is working in the TV-9 channel. In his evidence he states that he came to his friend’s shop which is located near the place of incident. He states that a person came in a scooty and the person who was in the spot made galata with him. The person who was standing assaulted with machete on the person who came in scooty and as a result he sustained injuries. He was having mobile and he recorded the same in his mobile with the help of street light. His friend who has been examined as P.W.15 told that the injured is Murthy and the person who assaulted is Siddaraju i.e., accused and the same was telecast on TV9 on the next day. The Police have collected the visual footage of the said scene which was aired on the TV9 channel. When the Police asked to give mobile, he told that he cannot give mobile. He was subjected to cross examination. In the cross examination, he states that since footage which has been recorded, can be transferred to other mobile and the same cannot be changed, he made the same as CD and gave it to TV9 office which was telecast on the next day between 12.00 noon to 1.00 p.m. He was questioned as to why he did not inform the same to the Police for which he answered that he was not having phone number of the Police.
11. PWs.6, 7, 8, 9, 10, 11, 12 and 13 have turned hostile. P.W.14 is the wife of the deceased. In her evidence, she states that the accused and the deceased are friends. Further, she had filed suit claiming share in her father’s property and the same was settled for Rs.11,00,000/-. Out of it, the accused had demanded an amount of Rs.1,00,000/- to perform the marriage of his daughter. The deceased i.e., her husband gave only Rs.45,000/-. Hence, the accused quarreled with her husband. In the cross examination, it is elicited that her husband was doing the business of hawker. There are no documents for having paid 45,000/- to the accused.
12. P.W.15 is the friend of P.W.4. He states that he did not witness the committing of murder but he has seen the accused who was proceeding with machete and thereafter came to know that the victim was Murthy. He was having acquaintance with both deceased and accused. The accused went towards the radio maidana. Further, he says that P.W.4 recorded the incident in his mobile and the same was telecast on TV9 channel on the next day. He also says that accused by holding machete in his hand was alluring everyone to come near him so that he can take away their life. It is also his evidence that Police called him to station when the accused was arrested and recorded his voluntary statement. The Police told him to photograph the act of the accused at the time of recovery of the machete. Hence. he also accompanied them. Accused took them to a lane and produced machete removing the same from the bush. He videographed the same and also took the photos. He identifies his signature on Ex.P15 mahazar and also identifies photos at Exhs.P17 to 20. He has given CD and the same was seized by drawing mahazar Ex.P21. In his further evidence he says that he attested the signature on Ex.P21. He identifies M.O.5 but he states that he cannot positively say that the very same machete was seized. He was treated partly hostile regarding M.O.5. A suggestion was made that M.O.5 was seized when the accused produced the same. He says that he cannot say that the same machete was seized. It is suggested that he witnessed the incident of assault. He says that he witnessed the incident but he cannot tell who assaulted the deceased since he did not notice properly. He was subjected to cross examination wherein he admits that he was not having any acquaintance with the accused.
13. P.W.16 is the mahazar witness. He did not support the case of the prosecution in his evidence. However, in the cross examination, he admits that P.W.11 produced 4 photos and 2 CDs in his possession, when the Police called him to Police Station, Pws.17, 18, 19 and 20 have not supported the case of the prosecution.
14. P.W.21 is the mahazar witness. He states that the Police have called him to Police Station and he was taken to a lane on Bazar Road and along with him Rizwan, Prabhakar and accused persons were also there. Accused produced machu which was lying and the same was seized by drawing the mahazar. He identifies his signature at Ex.P27a. He states that he does not know about what the Police made with regard to clothes of the accused. However, he identifies his signature in Ex.P28(a). This witness has turned hostile partly. In the cross examination, he admits that he was not having the habit of signing on the blank paper. He is also aware of the fact that making of the signature on the blank paper is a mistake. He further admits that he did not inform anyone that he has signed the blank paper. M.O.5 which was sealed was shown and he identifies his signature on the same. He identifies the signature on the slips. It is suggested that the same was seized in the said lane and he has signed the same. He states that he does not remember the same.
15. PWs.22, 23 and 24 have turned hostile. P.W.25 is another recovery witness. In his evidence, he states that the Police called him and took his signature on the blank paper. However, he identifies his signature on Ex.P27 and 28.
Accused was not there when his signature was taken. He was treated as hostile witness. In the cross examination, he admits that he is not having the habit of signing the blank paper. He claims that he was not aware at that time not to sign on blank paper. However, he admits that if anyone asks him to sign the same, he will not do so. He claims that he told the Police that he will not sign the blank papers. He admits that he did not inform anybody that his signature was taken forcibly. For the first time, he was telling the same before the Court. It is suggested that he was called to Police Station on 25.02.2012 and accused led the witness and Police near the lane and showed the same, but he denied the suggestion.
16. P.W.26 is the doctor who conducted the Post mortem. In his evidence, he states that he found 11 injuries on the dead body and further he says that the death was due to shock as a result of hemorrhage on account of severe injuries inflicted on the deceased. He identifies the signature at Ex.P31a. On 09.04.2012, he has received the articles from the Investigating Officer to give opinion and on examination, he gave the report in terms of Ex.P32 showing that the said weapon could cause the injuries mentioned in Ex.P31. In the cross examination, it is suggested that he has made entries in Ex.P31 regarding the name of the dead person and the time of post mortem examination was changed at the behest of the Police, the same was denied. He says that Rigor Mortis set in at about 2 hours after death and fully spreads around after 6 to 8 hours.
17. P.W.27 has turned hostile. P.W.28 is the Engineer who prepared the sketch Ex.P34. P.W.29 is the Engineer who deposed with regard to the supply of Electricity at the time of incident. P.W.30 did not support the case of the prosecution.
P.W.31 is the Police Constable who received information of the incident and immediately he rushed to the spot and took the injured to the hospital where the doctor declared as ‘brought dead’. P.W.32 has collected the CD and identifies his signature at Ex.P22(c). P.W.33 is the Assistant Sub- Inspector who received the complaint, registered the case and issued FIR Ex.P37. P.W.34 conducted the spot mahazar, seized the articles at the spot in terms of Ex.P2 and identifies M.Os.6 to 10. In the cross examination, it is elicited that the electric light is at the distance of 40 to 50 ft and the same are mercury bulbs. He states that he also recorded the statement of witnesses. P.W.36 is the employee of wine store and he has turned hostile.
18. P.W.37 is the Investigating Officer, who conducted further investigation after P.W.33 handed over the charge. In his evidence, he states that on receiving credible information, he went to the spot at 9.30 p.m. P.W.1 showed the spot and immediately, he called P.Ws.2, 20 and 23 and in their presence, he conducted spot mahazar from 10.00 p.m. to 11.15 p.m. and drawn the same in terms of Ex.P2 and seized the articles which were there at the spot. He also prepared the sketch in terms of Ex.P40 and identified M.Os.2 to 4, 14, 15 and 16. Thereafter, he conducted the inquest on the next day i.e., 25.02.2012 in terms of Ex.P24 and recorded the statement of P.Ws.2, 3, 31 and 33. P.W.13, produced the clothes belonging to the deceased after the post mortem and seized the same in the presence of P.Ws.23 and 30 and drawn the mahazar in terms of Ex.P30.
19. It is his evidence that on the same day at about 5.00 p.m., the accused appeared before him and he arrested him and recorded the voluntary statement of the accused in terms of Ex.P41. The accused in his voluntary statement has stated that, he will produce the weapon used to commit the offence. He further states that at the time of recording voluntary statement of the accused, Rizwan, Kumar and Prabhakar were also present and the same was video graphed and thereafter, the accused took the panchas i.e., C.W.25, P.Ws.21 and 25 and at around 8.15 p.m, he took us to the lane near the house of Lakshminarayana Shetty and produced M.O.5 which was blood stained and the same was seized by drawing mahazar in terms of Ex.P27 which is in the hand writing of P.W.35. The recovery is also video graphed and he has prepared the sketch in terms of Ex.P42. It is also his evidence that on the same day between 9.15 p.m. to 9.45 p.m., he seized the shirt, pant and plastic chappal of the accused in the presence of Rizwan, Kumar and Prabhakar by drawing mahazar Ex.P28. He also states that in the seized articles i.e., pant and chappal, there were blood stains and did not find blood stains in the shirt and the same are marked as M.Os.11 to 13 and the same was also video graphed and photos were taken by P.W.15 and recorded the statements of P.Ws.1 and 3. He also recorded the statement of panch witnesses. He also identifies the photos Exs.P17 to 20 and recorded the statement of some of the witnesses.
Thereafter, requested the Engineer, Public Works Department to prepare the sketch and witnesses have given statement before him. The photos and compact disk were also seized. He also seized the compact disk which was collected by P.W.32 in terms of Ex.P25. He also sent the seized articles to the RFSL and obtained the report in terms of Ex.P43.
Regarding the supply of electricity at the time of the incident, he has obtained the report from Assistant Executive Engineer, CHESCOM, K.R. Nagar and collected the plaint copy of O.S.No.235 of 2009 in terms of Ex.P45. After completion of the investigation, he filed the charge sheet.
20. He was also subjected to cross-examination. In the cross-examination, he admits that, he has seen P.W.4 at the time of recording the evidence and he did not seize the mobile which was used for taking the photos, since P.W.4 told that he was not having the mobile. He did not seize the memory card also. It is suggested that RFSL did not conduct any examination in respect of the articles which he sent but the same was denied. It is suggested that the accused was threatened and his signature was taken on Ex.P41 but the same was denied. It is suggested that accused did not produce any machete in his presence i.e., M.O.5 and the same was denied.
21. Having considered the material evidence of prosecution witnesses, this Court would like to first analyze the evidence available on record, “Whether it is a case of homicidal death or not?.”
22. The prosecution, in order to prove that it is a case of homicidal death, has examined P.W.26-Doctor, who conducted the post mortem on 25.02.2012 between 10.45 a.m. to 12.45 p.m. P.W.26, in his evidence states that he found 11 ante-mortem injuries on the dead body of the deceased. He has also opined that, cause of death is due to shock as a result of hemorrhage on account of severe injuries received. The genuineness of the post mortem report has not been disputed. It is further important to note that P.W.26 has also opined that the injuries which he noted on the dead body of the deceased could be caused by the weapon M.O.5 and he also given his opinion on the back side of the requisition which is marked as Ex.P32. The report of RFSL in terms of Ex.P43 confirms that M.O.5 was blood stained.
23. Having considered the un-rebutted evidence of the Doctor-P.W.26, post mortem report and letter of confirmation with regard to the fact that the injuries could be caused with the weapon M.O.5, it is clear that the death of the deceased is homicidal.
24. Though the learned counsel appearing for the appellant would contend that the case rests upon circumstantial evidence, since the eye witnesses have turned hostile, their evidence does not inspire the confidence of this Court and this Court has considered the evidence of P.Ws.1 and 4 to 15. Though P.W.1 admits in his evidence that the complaint is in his hand writing and the same was obtained by the Police by under coercion, he did not support the case of the prosecution. In the cross-examination, he admits that Ex.P1-complaint is in his hand writing, but the contents in the complaint are false. He also categorically admits that if any false complaint is given against a person, the same is an offence. Though he contends that the complaint was obtained by threat, he categorically admits that he did not give any complaint to the Senior Police Authorities. Hence, it is clear that there was no difficulty for him to lodge the complaint against the Constable, who obtained Ex.P1. It is pertinent to note that though he admits that he did not disclose the said fact to anybody till his examination that the Police have obtained a false complaint from him, for the first time, in his cross-examination, he is telling that it is a false complaint and there was no difficulty for him to disclose the same to his colleagues.
25. Having considered the evidence of P.W.1 and the answers elicited from the mouth of P.W.1 in the cross examination, it is clear that though he witnessed the incident of murder, he is lying before the Court and the very answers elicited from the mouth of P.W.1 is clear that P.W.1 is hiding the truth. The very conduct of P.W.1 is not the conduct of an ordinary and prudent man. He categorically admits that the contents are in his hand writing and if any such false complaint is given against any person, it is an offence. Hence, the evidence of hostile witness P.W.1 did not support the case of the prosecution, cannot be accepted. Therefore, the Court has to take note of the fact that even if the witness has turned hostile, the Court has to evaluate the evidence available on record, particularly, the answers elicited in the cross- examination of P.W.1. The Hon’ble Apex Court in the judgment reported in 2013 (1) SCC (Cri) 417 in the case of Bable alias Gurudeep Singh vs. State of Chattisgarh with regard to the FIR and its evidentiary value has held that even though the witness, on whose statement F.I.R. was lodged, himself did not support the case of the prosecution and was declared hostile, the Court has to take note the effect of such F.I.R and it will be impermissible for the Court to ignore the evidentiary value of the F.I.R.
26. In the case on hand, it has to be noted that P.W.33 received the complaint from P.W.1 and in his evidence, he states that P.W.1 himself came and gave the complaint, that too, within a span of 1½ hours of the incident and based on the complaint, he registered the F.I.R. in terms of Ex.P37 and sent the same to the concerned Magistrate. If it is forcible complaint, P.W.1 was not having any difficulty to file any complaint to the Higher Authorities, though he states that contents of Ex.P1 is false. Hence, the evidence of P.W.1 has to be assessed with due care and caution to find out the truth and the answers elicited in the cross examination is clear that he witnessed the incident.
27. P.W.4, who is an eye witness to the incident categorically states that on the date of the incident, he was in the shop of P.W.15 and he witnessed the incident that a person came in the scooty and the person who was standing near the place of incident inflicted the injuries on the person who came in the scooty. P.W.4, who was having mobile recorded the same. Thereafter, P.W.4 enquired P.W.15, since he was not having acquaintance with the accused or the deceased. P.W.15 told about the identity of those two persons. He also states that scene of incident which was recorded by him was telecasted in the TV9 on the very next day in between 12.00 p.m. to 1.00 p.m. based on the CD which he has given to TV9 office. No doubt, the mobile was not seized at the instance of P.W.4 and the same is admitted by the Investigating Officer, P.W.37. Though, he has given the compact disk to the TV9 office, no doubt, there is no certification under Section 65 (b) of the Evidence Act, 1872. The Court also did not consider the electronic evidence since there was no certification. It has to be noted that the very finding of the trial Court that the mobile was not seized, cannot be accepted since, the very requirement of Section 65(b) of the Evidence Act, 1872 is to obtain the certificate. In order to prove its genuineness and confirm that no tampering is effected, the Investigating Officer ought to have collected the certificate from P.W.4, since he has recorded the incident. But, in the case on hand, it has to be noted that P.W.4 is an eye witness to the incident and he recorded the same in the mobile. He also supported the case of the prosecution and nothing worth is elicited in his cross-examination to disbelieve his evidence.
28. The other eye-witness is P.W.15. In his evidence, he states that he along with P.W.4 did not witness the assault, but he has seen the accused going with M.O.5 towards Radio Maidan and causing threat to the persons who were at the spot. His evidence is clear that the accused led and produced M.O.5. Recovery is also proved. This witness supports the recovery of M.O.5. In the cross examination of P.W.15 except the answer that he was not having acquaintance with the accused, nothing worth is elicited by the defence counsel. The counsel appearing for the State though treated him as hostile, in the cross examination he admits that he has witnessed the causing of assault, but he says that the person who assaulted whom has not been properly observed. Hence the evidence of P.W.15 supports the case of the prosecution regarding his witnessing the incident and other circumstance that he was going along with machete confirms that the accused only committed the murder by inflicting injuries to the deceased. The evidence of PWs.1, 4 and 15 are the direct evidence with regard to committing the murder. We have already noticed that P.W.1 though turned hostile, the answer elicited in the cross- examination supports the case of the prosecution.
29. Regarding recovery is concerned, it has to be noted that P.W.37 Investigating Officer in his evidence categorically states that the accused appeared before him on the next day at 5.00 p.m. and he recorded the voluntary statement and also led the panch witnesses and produced M.O.5. It has to be noted that in the cross examination of P.W.37 the defence did not dispute the fact that the accused voluntarily appeared before P.W.37. The witness P.W.15 categorically deposed that the accused led the Police and also the panch witness. This fact was not disputed in the cross examination. The other panch witness is P.W.21 in his evidence categorically states that the accused led the Police, Rizwan, Prabhakar to the lane and produced M.O.5 and Ex.P27 was drawn. However, regarding seizure of clothes, he has turned hostile. In the cross examination, he categorically states that he was not having the habit of signing any blank paper. He admits that he is having acquaintance with the accused from the last 10 to 15 years. Though this witness has turned hostile, to certain extent, the Court cannot discard his entire evidence and has to take the evidence which is available to find out the truth as held in the case of RAMESH BHAI MOHAN BHAI KOLI VS. STATE OF GUJARAT reported in 2011(3) SCC (Crl) 102 wherein the Apex Court held that the evidence of prosecution witness cannot be rejected in toto merely because prosecution choose to treat him as hostile and the very evidence of the partly hostile witness cannot wash off the evidence altogether and the same can be accepted to the extent that their version was found to be dependable on a careful scrutiny.
30. The other panch witness is P.W.16 who has videographed the recovery. He is none other than the brother of the deceased who has turned hostile. In the cross examination by Public Prosecutor, it is elicited that he was called to Police Station and P.W.15 has produced 4 photographs and 2 CDs in connection with seizure and the witness P.W.21 supports with regard to the recovery of M.O.5. Though he has turned hostile in respect of seizure of the clothes, he only states that he does not remember the seizure. The answer elicited from P.W.21 that he had acquaintance with accused for 10 to 15 years clearly shows that he is supporting the accused. The other recovery witness is P.W.25. He claims that his signatures were taken on the blank paper, but in the cross examination he admits that he was not having the habit of making the signature on the blank paper and also he does not sign any blank paper, if anybody asks him to do so. Though P.W.25 also turned hostile, his evidence shows that he is part of the recovery. Apart from that C.W.37 in his evidence categorically states that the accused appeared before him and led the witnesses and the Police to produce the clothes as well as M.O.5. In the case on hand, in the cross examination of Investigating Officer also nothing is elicited to disbelieve the evidence of P.W.37 regarding recovery is concerned. A suggestion was made that accused did not lead anyone and produced neither M.O.5 nor the clothes and the same has been categorically denied. It is important to note that Ex.P43 RFSL report confirms the blood stains in M.O.10 and also the pant and slippers of the accused. The RFSL report corroborates the evidence of P.W.15, 21 and also P.W.37. The Apex Court in the case of RAKESH AND ANOTHER VS. STATE OF M.P.
reported in 2011(3) SCC 803 wherein it is held that Recovery of Crime-incriminating materials-recovery of weapons on disclosure, statements, deposition of Investigating Officer had been natural. No material that Investigating Officer had any animosity or any kind of interest and closeness to deceased, question of not believing his statement does not arise under Section 27 of the Evidence Act. The Investigating Officer P.W.37 must be presumed to act honestly and consciously and as such his evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that he is public servant and interested in success of the case. Hence, the prosecution also proved the evidence of recovery at the instance of accused.
31. Having considered the material on record, considering the evidence of PWs.1, 4 and 15 who are direct witnesses with regard to the committing of murder by the accused and the other witness P.W.15 regarding recovery of M.O.5 and the evidence of P.W.21 and C.W.37 is consistent regarding recovery is concerned.
32. Learned counsel for the appellant contends that the case rests upon circumstantial evidence since the witnesses have turned hostile, cannot be accepted by reappreciating the evidence available on record in the light of the principles laid down in the judgment referred supra. Regarding the motive is concerned, P.W.14 wife deposed before the Court that her husband paid an amount of Rs.45,000/- instead of Rs.1,00,000/- as demanded by the accused. Hence, there was ill-will. Except the evidence of P.W.14, there is no material before the Court. In the case of direct evidence, the motive is not significant. Though P.W.1 has turned hostile, there are substantive evidence before the Court particularly the evidence of P.W.4, answers elicited in the cross examination of the witnesses, evidence with regard to recovery and also the evidence of P.W.15 to certain extent are consistent.
33. Hence, we do not find any reason to interfere with the judgment of conviction of the trial Court to come to the other conclusion. The evidence available on record both oral and documentary is sufficient that accused only committed the murder. The evidence of the doctor who has been examined as P.W.26 categorically states that M.O.5 could cause injuries mentioned in the PM report which is marked as Ex.P31 and also the opinion of P.W.26 in terms of Ex.P32.
The direct evidence of P.Ws.1, 4 and 15, evidence of PWs.15, 21 and 25 for recovery coupled with the evidence of the doctor P.W.26, proves the case of the prosecution beyond reasonable doubt. Hence, we do not find any reason to reverse the finding of the trial Court and the appeal is devoid of merit.
34. In view of the discussions made above, we pass the following:
ORDER The appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE Akc/