IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K. N. PHANEENDRA AND THE HON’BLE MR.JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.29/2016 (C) BETWEEN V. SHIVA S/O VELAYUDHA AGED ABOUT 37 YEARS R/AT FRANCIS BUILDING MUNIREDDY LAYOUT GARVEBHAVIPALYA BENGALURU – 560 068 ... APPELLANT (BY SRI. K.B.K. SWAMY, ADVOCATE) AND STATE OF KARNATAKA REP. BY IT’S THE POLICE INSPECTOR AND SHO PARAPPANA AGRAHARA POLICE STATION BENGALURU CITY – 560 068 THROUGH STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001 ... RESPONDENT (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 11.12.2015 PASSED BY THE LI ADDL. CITY CIVIL AND S.J., BENGALURU IN S.C.NO.1364/2012- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant, the sole accused in SC No.1364/2012, has challenged the judgment of conviction and order of sentence dated 11.12.2015 passed by the 51st Additional City Civil and Sessions Judge at Bengaluru City ( for short, ‘trial Court’) convicting him for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.30,000/-, in default, to undergo Rigorous Imprisonment for two years. The trial Court has also awarded a sum of Rs.20,000/- to the nearest relative of the deceased Chamaraj ie., PW.14- Smt. Govindamma. The said judgment of conviction and order of sentence has been challenged on various grounds.
2. Before adverting to the grounds urged by the learned counsel for the appellant and countered by the learned Addl. SPP for the respondent-State, we feel it just and necessary to have the brief factual matrix of this case.
3. A person by name Kadariyappan (PW.16) has lodged a report to the respondent-police on 17.02.2012 at about 2.30 am., stating that, he has been residing at Bereta Agrahara, Bengaluru and running a Gujari Shop. On 16.12.2012 two persons ie., one lady and a man came to his shop at about 6.00 p.m. and they stayed there upto 8.00 pm. At 8.00 p.m. PW.16 told them that, he would lock and close down the shop and they can go somewhere else. For that, those two persons said that, they are husband and wife and they have to go to market in the early morning and therefore, they would like to sleep in front of the shop of PW.16. PW.16 told them to sleep inside the shop. But, they said that, as there is sundry weather inside the shop, hence, they would like to sleep outside the shop itself. Thereafter, PW.16 closed down the shop and latched the door of the shop from inside and he went to sleep. In the midnight ie. at about 1.30 a.m. on 17.12.2012 , the son of PW.16 told PW.16 that he has heard some noise from outside. Therefore, PW.16 went open the door, but he found that the said door was latched from outside. He saw from the aperture in the said door, then he noticed a person, who was bent upon the persons, who were sleeping in front of the shop of PW.16. He forcibly opened the door and came out from the shop and saw that one person was running away towards new road (Hosa Raste). PW.16 also noticed that the said couples, who were sleeping in front of the shop, have sustained severe injuries and lying in a pool of blood. He also noticed that those persons by name Chamaraja and also his wife Smt. Govindamma were already dead. He saw a sized stone lying near the deceased persons. Immeidately, the said Chamaraja was shifted to the hospital. PW.16 has also given some description of the person who ran away from the spot, that, who was about 5 ft in height, black complexed stout body, wearing light green colour shirt and black pant and he has also stated that, if he see him, absolutely he can identify him. On the basis of the said information, the police have registered a case in Crime No.41/2012 under Sections 302 and 307 of IPC and proceeded to investigate the matter. After thorough investigation, the respondent-police found that the accused/appellant is the perpetrator of the crime, who threw a size stone on the head of the deceased Chamaraj and his wife Smt. Govindamma and committed their murder. Therefore, they laid charge sheet against the accused/appellant. The accused was arrested on 07.05.2012 and it appears since then, he has been in judicial custody.
4. The trial Court after securing the presence of the accused, particularly, after committal proceedings, proceeded to frame charges against the accused for the offence punishable under Section 302 of IPC and put the accused on trial.
5. The prosecution in order to bring home the guilt of the accused, examined as many as 24 witnesses and got marked the documents- Exs.P1 to P26 and material objections as per MOs. 1 to 11. The accused was also examined under Section 313 of Cr.PC. and later he was called upon to render defence evidence if any and as the accused did not choose to lead any defence evidence, the trial Court after appreciating the oral and documentary evidence, has passed the impugned judgment.
6. Learned counsel for the appellant has strenuously contended before this court that, almost all the witnesses examined by the prosecution have turned hostile; Except the evidence of the eye-witness, there is absolutely no other evidence available against the accused; The evidence of PW.16 who styled himself as an eye-witness is also not credible and trust-worthy for acceptance, as the contents of his evidence is full of omissions, contradictions and improvements; When the Court wants to rely upon the evidence of the sole eye- witness, the Court must very carefully scrutinize the evidence of such witness before accepting and such scrutinized evidence must be meticulous, credit-worthy and trustworthy for acceptance. He further contended that, the evidence of PW.16 is bereft of any material, which is trustworthy for acceptance. The learned counsel further contended that, the trial Court has committed very serious legal and factual error in relying upon the evidence of PW.10, who is no other than the wife of the accused, who turned hostile to the prosecution; The trial Court has relied upon the statement given by her under Section 164 of Cr.PC. before the Magistrate on the ground that, before the Court, PW.14 has deposed that, PW.10 Smt. Renukamma has stated before him as per Ex.P24; The acceptance of the evidence of PW.10 by relying upon Ex.P.24 is illegal and against the fundamental principles of criminal Jurisprudence; The court has sought for corroboration from the evidence of PW.10, that too from the contents of Ex.P-24 with that of the eye-witness, only on these two aspects; The trial Court has satisfied itself and rendered the impugned Judgment, which is erroneous and liable to be set aside.
7. Per contra, the learned Addl. SPP has submitted before this Court that, the evidence of PW.16 is reliable and he is not an interested or he was not having any hatred or ill-will against the accused person, therefore, his evidence should not be easily brushed aside. There is no material available in the cross- examination of this witness, as to why he should falsely implicate the accused persons into the crime; Though there are some contradictions, omissions and improvements, in the evidence of prosecution witnesses in spite of that, the core of the prosecution case has not been disturbed in the evidence of PW.16, therefore, even the sole evidence of PW.16 is acceptable. The learned Addl. SPP has virtually conceded that, the trial Court has erroneously considered Ex.P24, which is the statement alleged to have been given by PW.10 Smt. Renukamma under Section 164 of Cr.PC.; He further submitted that, for all the said reasons, there is no room for interference of this court with the impugned Judgment of the trial Court and as such, the appeal is liable to be dismissed.
8. In the wake of the above said submissions, we would like to discuss the material witnesses after a cursory look at the evidence led by the prosecution before the trial Court.
8.1 PW.1-Keshava is a witness to spot mahazar, who turned hostile to the prosecution and likewise, PW.2-Sri.Shafiq, PW.3-Sri.Masilamani PW.4- Sri.C.Purandar PW.5-Sri.Govindaswamy and PW.15- Sri.Shiva, were witnesses to inquest mahazar proceedings viz., Ex.P2 and Ex.P12 pertaining to the dead body of the deceased Chamaraja and as well as his wife-Smt.Govindamma. No submission is made with regard to any denial of death of the said couple. There is absolutely no denial through-out examination of these witnesses with regard to the death of the deceased couple. Though some of the witnesses were not cross- examined and some of the witnesses out of the above said five witnesses, turned hostile, but the fact remains that, there is no denial with regard to the death of the deceased couple Chamaraja and Govindamma in front of the shop of PW.16. Apart from the above, the evidence of the Doctors viz., PW.11-Sri.Pradeep Kumar and PW.12-Smt.Lakshmirajyam who have conducted post- mortem examination on the dead bodies of the deceased, issued post-mortem reports as per Exs.9 & 10. The said Doctors have categorically stated that, the death of the deceased Chamaraja and Govindamma has occurred due to the injuries sustained by them. If fact, the post-mortem report issued by P.W.-18 shows that, the deceased Govindamma, had sustained as many as two injuries on the head and neck which were muscle deep lacerated wounds and gave opinion that the death was due to coma, as a result of injury sustained to the head. Likewise, PW.12 Smt.Dr.Lakshmirajyam has stated that the deceased Chamaraja had sustained as many as five external injuries particularly to his head and other parts of the body. She also gave her opinion that, the death was due to severe head injury causing cardio respiratory problem. The evidence of the inquest witnesses and the Doctors clearly discloses that the deceased persons died due to homicidal death. But, the question arises as to, who is responsible for the death of the said two deceased persons. The further evidence of the prosecution shows that, PW.5 Sri.Govindaswamy is the person, who has simply seen the dead body of the deceased and the injuries found on the dead body etc. PW.6-Sri.Madan also similarly states that, he has seen the dead body, PW.7-Sri.Sakappa is the person, who accompanied the accused along with the police and it is the case of the prosecution, that under Ex.P3 (Mahazar), MOs 6 & 7 (shirt and pant) of the accused were seized. There is absolutely no evidence from PW.22- Laxminarayana that, he has recovered any material to show that, the clothes of the accused in any manner stained with the blood of the deceased. Of course MOs.
6 & 7 are the shirt and pant of the accused. But considering the evidence of PW.8 (Scientific Officer), who examined nine sealed articles and gave report as per Ex.P4 also does not show any connection of MOs.6 & 7 to the accused. PW.9-Puttabasavaiah the Assistant Director of FSL has examined the sample soil and blood stained soil as per Exs. P6 and P7 (reports), but, these articles only show the blood group of the deceased persons and nowhere it shows any connection with the accused persons. PW.10-Smt.Renukamma is the wife of the appellant/accused and she turned hostile to the prosecution case. We would discuss the evidence of this witness little later with regard to the authenticity of acceptance of the evidence of this witness. PW.13- Dr.Manish who issued the death intimation to the police vide Ex.P11 and thereafter the police have registered a case under Section 302 of IPC against the accused so far the death of Govindamma is concerned. PW.14-Smt. Govindamma is the daughter of the deceased, Sri. Chamaraja who only took the dead body after post- mortem examination to her custody and in her evidence no incriminating material is available against the accused. PW.16-Kadariyappan is the prime prosecution witness, who is the eye-witness to the incident. We would discuss his evidence little later.
8.2 PW.17-Sri.Chalapathi is the person, who carried the seized articles to the FSL; PW.18-Sri.Raghu N. S., is the person, who apprehended the accused.
There is no denial with regard to the arrest of the accused by the police in connection with this case; PW.19-Sri.Manjegowda is the person, who carried the FIR and the complaint (Exs.13 & 15) to the Court. He is also a formal witness and no incriminating evidence is available against the accused; PW.20-Sri. SathishKumar (PC-9429) has arrested the accused and P.W.10 –Smt. Renukamma near Gorvibhavi Palya, P.W.-10 Smt. Renukamma is also a witness in connection with this case; PW.21- Sri. Thimmaraju who registered the case in Crime No. 41/2012 on the basis of Ex.P13 (report lodged by PW.16 on 17.02.2012) and despatched the same to jurisdictional Magistrate; PW.22- Sri.A.V.Lakshminarayana the Investigating Officer, who investigated the matter and submitted a charge sheet; PW.23-Subbarayappa is the co-worker of the accused and PW.24 –Sri. Rudalph Pherera who was working as a Judicial Magistrate, has recorded 164 statement of PW.10.
8.3 Looking to the above evidence of the prosecution, there is absolutely no evidence with reference to recovery of the articles and their connection with the act of the accused and also to the recovery made by the police. There is no material to show that accused and the deceased were last seen together. However, the evidence of PW.10 and PW.16 have been considered by the trial Court for the purpose of convicting the appellant/accused.
9. Now first, we will consider, whether the trial Court has committed any error in accepting the statement of PW.10 Smt.Renukamma marked at Ex.P24 recorded by PW.24. Of course Mr.Rudalph Pherera (Judicial Magistrate), has categorically stated about the procedure followed by him while recording the statement of PW.10. PW.10 is no other than the wife of the accused. She being produced by the Police before him (P.W.24) and on giving opportunity, she has given her statement and he recorded her statement, after giving her warning and after following the procedure, which is marked at Ex.P24.
10. We do not find any strong reason to discard the evidence of PW.24-Rudalph Pherera (Jurisdictional Magistrate) with reference to recording of the statement of PW.10-Renukamma as per Ex.P24. But, the question remains for consideration by this court is that, when the particular witness turns hostile to the prosecution case and gives her independent statement under Section 164 Cr.PC. before the Magistrate, how such statement can be used either by the prosecution or by the accused. In this context, even the Prevy Council has in fact made an observation, that the statement made under Section 164 of Cr.PC. can never be made use of as a substantive evidence on fact, but it can be used to support or challenge the evidence given in the Court by the person, who made the statement under the provisions of Sections 145 and 157 of Indian Evidence Act. In that regard, the learned counsel also relied upon a ruling of the Council reported in 1980 Crl.LJ 1552 between Ghulam Hussain and The King, wherein it is observed at Para No.9 that,-
“9. ….. It is whether a statement made under S.164, which does not amount to a confession, can be used against the maker as an admission within the purview of Rs.18 to 21, Evidence Act. - The fact that an admission is made to a Magistrate while he functioning under S.164 of Cr.P.C. cannot take it outside the scope of the Evidence Act.”
11. In the above context, it is worth to refer here a decision of this court reported in ILR 2016 KAR 4896 between Mrs. Sharada Urs and Bharathi Urs Rani and Others, wherein this court had an occasion to deal with the provisions of Section 161 and as well as 162, 145 and 155 of the Indian Evidence Act and this Court has made an observation that,-
“The previous statement of the witnesses whether it is recorded by means of reducing it into writing or through vediograph method in any manner recognized under law that can only be used for the purpose of contradicting the witness or impeach the credit of the witness. Therefore, it conversely supposes that, it cannot be used for the purpose of corroborating the evidence or for the purpose of using it as a substantive evidence”.
11.1 In the said decision, it is further observed at para-51 that,-
Of course, the evidence of hostile witnesses cannot be outrightly discarded. What is to be looked into is that, apart from the contradictions elicited during the course of cross-examination by the prosecution itself, treating some of the witnesses as hostile, then the portions marked in the statement under Section 161 of Cr.PC., cannot take the place of the substantive evidence. Therefore, independent of such statement made by the witnesses before the Police, if any other factual aspects are elicited and proved through such witnesses, such evidence would only act as substantive evidence recorded by the Court and that can be used for the purpose of corroborating the other materials on record. Otherwise, it can be said that even though the witness states that he has stated before the Police as per the statement recorded under Section 161 of Cr.PC. are true and correct, that itself will not take the place of substantive evidence, but the witnesses have to state before the Court pertaining to the facts of that particular case. Then only such portion will become substantive evidence.”
12. In another ruling of this Court reported in ILR 2017 KAR 1605 between K.N. KIRAN KUMAR Vs. STATE BY MANDYA RURAL POLICE, REPRESENTED BY SPP this Court had occasion to deal with Section 161 and 162 of the Code of Criminal Procedure, 1973, and this Court has observed at paragraphs 33 to 36 as follows :-
“33. On perusal of the above said rulings of the Hon'ble Apex Court, it is clear that the purpose of contradicting a witness is only to contradict and attack the veracity of a witness. The duty of the Court is to find out if a witness, who had made a contradictory statement earlier is telling the truth before the Court or whether he is a trustworthy witness. However, it should be borne in mind that it is not the duty of the Court to find out whether the previous statement made by the witness was true or not. Where the previous statement and the evidence before the Court are so inconsistent and irreconcilable with each other that both of them cannot co-exist, therefore, it can be said that the previous statement contradicts the witness with the evidence given by him before the Court.
34. Section 145 of the Indian Evidence Act makes it further abundantly clear as to how the said statement can be used by the courts. If the previous statement and the evidence of the witnesses are intended to contradict the witness, it can only be used for the purpose of contradicting him and not for any other purpose. This in fact clearly indicates that, such previous statement though marked as an exhibit cannot be used as a substantive piece of evidence in view of the bar under proviso to Section 162 of Cr.P.C. Though the duly proved statement is admissible in evidence that can only be used for contradicting, discrediting or testing the veracity or for impeaching the witness, but should not be used as substantive piece of evidence. Therefore, it is clear that the proved statement only shows before the Court that the witness has stated or made such statement before the police, if he admits the same. Then it becomes the duty of the prosecutor to drill the witness to elicit the truth by cross examining the witnesses. The prosecution has to prove which version of the witness is a true version. If the contradicted statement is denied, that portion itself will not become the substantive piece of evidence before the Court but it only clarifies that this witness has stated before police as per such contradicted portion, but at any stretch of imagination, such portion cannot be taken as the evidence of the witnesses before the Court, but, it remains as a statement made before police. Therefore, it is wisely said that it can only be used for contradicting, discrediting or for testing the veracity and for impeaching the said witness and that said portion cannot be used as substantive evidence.
35. Section 155 of the Indian Evidence Act also as quoted above clears the doubt that the contradicted portion in the statement and evidence can also be used either by the prosecution or by the defence for the purpose of impeaching the credit of witness. The words "impeaching the credit", themselves disclose that such witness cannot be relied if he is not corroborated by other material evidence on record. This legal ground norm also goes without saying that the contradicted portion, even cannot be used for the purpose of corroborating the other evidence on record.
36. From the above discussion, it can be further simplified that, apart from the contradicted portion, if the other portion of the evidence given by the witness is corroborated and trustworthy for acceptance, then the Court has to examine whether such portion which is not contradicted can be relied upon by the Court and that portion can be used for the purpose of corroborating the other materials on record.”
13. From a reading of the above said judgment of this Court and Privy Council, it is made much clear that if a witness gives his previous statement either under Section 161 or under Section 162 of the Cr.P.C. it amounts to previous statement of the witness, and that can only be touched upon Sections 145 and 155 of the Indian Evidence Act and it cannot be used otherwise for the purpose as stated in the statutory provisions. Therefore, it is very clear that, if any witness turns hostile to the previous statement or that the previous statement can be for the purpose of contradicting the first witness before the Court, otherwise than the previous statement and if such witness is summoned before the Court, which is relevant to the prosecution case or to the accused, then only that portion which is not contradicted can be used as a substantive evidence, even if it is corroborated by other materials on record, in view of the the above said legal principles, nothing else can be construed in the evidence of PW.10. PW.10 has totally turned hostile to the prosecution. She has given statement before the Judicial Magistrate about the force of police at that particular point of time. Though she has stated in her evidence that, the deceased Chamraj @ Annachi was visiting the tea shop of this witness and he used to purchase cigarettes and used to consume tea in the shop of this witness, but she never stated anything about her husband, as well as the deceased Chamraj @ Annachi at any point of time. Even in the course of cross-examination, the whole of the statement made by her in Ex.P.24 has been denied. The trial Court has extracted what he has stated as per Ex.P8 in the statement of the witness PW.24 to the effect that on that particular date of incident, the accused has brought two size stones in order to kill Chamraj and his wife, who were sleeping in front of the shop of the complainant and by throwing two size stones on the head of Chamraj and his wife Govindamma and committed their murder. So far as this aspect is concerned she turned hostile to the prosecution. Learned Trial Judge has drawn inference stating that, though the statement made by this witness in Ex.P.24 are marked portion of Ex.P.28 as a substantive evidence which could be definitely used as corroborative piece of evidence. The entire gamut of Sections 145, 155, 162 and 167 of Cr.P.C. which exactly says that contradicted portion can only be used to corroborate the evidence of the witness, who made the statement and not to be used to corroborate the evidence of other witness to know whether he is telling the truth, what is the veracity of the said witness and to test the credibility. Contradicted piece of evidence can be used to the same witness and not to other witness.
Therefore, trial Court has committed error in using that portion of Ex.P8 and Ex.P24 in order to corroborate the evidence of PW.16. In our opinion, the evidence of PW.10 before the Court otherwise than contradicted portion in any manner helps the case of the prosecution. Therefore, there is absolutely no credibility to the independent evidence of PW.16. Therefore, the trial Court ought to have discarded the evidence of PW.10.
14. Now coming to the evidence of PW.16, who is the sole eye witness to the incident according to the prosecution. Of course principles of law is that the conviction can be based on the sole eye witness, but as a rule, the Court has to meticulously consider the discrepancies, contradictions and omissions, which are sufficient to shake the evidence of such witness. In this context, it is worth to refer the decision of the Hon’ble Apex Court in JAYARAM SHIVA TAGORE AND OTHERS Vs. STATE OF MAHARASHTRA reported in 1991 Supp(2) SCC 677 wherein the Apex Court has held that :-
“Where the prosecution rests on the sole testimony of an eye-witness, the same should be wholly reliable. However, that does not mean that each and every type of infirmity or minor discrepancies would render the evidence of such witness unreliable. On facts, even after carefully going through the evidence no serious infirmity is seen on the basis of which the testimony of the sole eye-witness could be rejected outright. Her testimony is amply corroborated.”
15. Bearing in mind the above said principle, now we would like to examine the evidence of PW.16. As we have already referred to statement given by PW.16 as per Ex.P.13, it discloses that, he never stated whether earlier he has seen those persons or he saw those persons for the first time etc., He has also not stated about presence of any light either in his shop or outside his shop, when the time was about 1.30 a.m. he could not specifically see the face of the accused or any person who was present there at that particular place, and who was bent upon the deceased. Further it is also not stated about any other persons, who came to his shop in the intervening night between 6.00 p.m. to 8.00 p.m. including the accused or any other persons.
Bearing in mind the statement made by PW.16 at the earliest point of time, now the evidence has to be looked into. Of course PW.16 has stated that on that particular day, at about 7.00 p.m. four persons came to his shop, out of them one was a female and all the four persons have demanded money from this witness and this witness told that he had no money. Out of four persons, two persons went towards New Road. However, deceased Chamraj @ Annachi and his wife went near the shop of the PW.16 and they demanded money, as PW.16 told them he had no money, they also went towards New Road and again came back at about 9.00 p.m. and told him that they intended to go to market at 4.00 a.m., in the morning and therefore, they would like to sleep in the front of the shop and in fact they slept and PW.16 closed down the shop and went to sleep inside his shop. At about 12.00 p.m. in the midnight, the son of PW.16 told that he heard some sound, then this witness has peeped through the aperture in the door and saw one person standing in front of the shop, but he never stated, who was the person there, whether the said person had come to his shop in the evening, who was one among those four persons or whether the accused was also one of them and as the door of his shop was latched from outside, therefore, he could not come out immediately, but with difficulty he came outside, by that time, he saw the said person ran away, thereafter, he observed that there were two big size stones and Chamraj and his wife had sustained head injuries and the wife of Chamraj died on the spot. Thereafter, he went to the police station and gave his complaint to the police as per Ex.P.13, by that time Chamraj @ Annachi was admitted to the hospital. He also stated that he could identify the person, whom he saw from the aperture of the door of his shop.
16. It is the case of the prosecution that, in the further statement of PW.16 he has stated that, he saw one person was bent upon the deceased at that odd hours, but he has also stated that he actually saw some person threw size stone on the head of the deceased Chamraj @ Annachi and his wife Govindamma. As this witness has not supported to that extent, the prosecution has treated him hostile and in the cross- examination it was suggested that he saw the accused person pelting stone on the head of Chamraj @ Annachi and his wife Govindamma, but this witness has denied and contradicted portion is marked as Ex.P.14. It is elicited in the course of cross-examination by the learned counsel for the defence that, he had come to the Court in a drunken state but he has admitted that he had taken drinks previous night. He has admitted that he has not seen Chamraj @ Annachi and his wife earlier at any point of time and he has also stated that he saw the other three persons, who were there with them on that particular day, in the evening. However, he stated that, out of those three persons, one person was a lady. Though it is stated that the accused was wearing green colour ‘T’ shirt and black pant and he was one of the three persons, who came to that particular spot, but so far as this aspect is concerned, it is purely an improvement made before the Court as well as an improvement to the earlier statement, because he never stated earlier that, out of those persons one of the persons was the accused. These improvements made in the evidence in the course of cross-examination evidence before the Court. He further stated that Chamraj @ Annachi and his wife had come to his shop with a bicycle and they slept there itself. There is no material to show as to what happened to that bicycle. It is also elicited that there was no electricity facility to his shop, but he states that the street lights were there. A suggestion was made to this witness that, he could not see, who was that particular person in that night hours due to darkness/dim light, was denied. So far as the light is concerned the witness has not stated in his earlier statement that with the help of such light, he was able to see the accused through the small aperture or a gap in the door. In the absence of such material, it is an improvement made during the course of evidence that street lights were there.
16.1. In this context, the evidence of the Investigating Officer indicates that, he does not lie in this regard, since, he has stated that there were street lights at some distance and that light was falling on the shed of PW.16. But, absolutely no such material is placed before the Court to show that there was existence of any electric poles nearby or any light was there at that particular point of time, particularly, at 1.30 in midnight. In this background, the spot mahazar in our opinion, also play a significant role. Spot mahazar as per Ex.P1 is drawn between 3.15 a.m. and 5.00 a.m. on 17.02.2012. In the spot mahazar itself at the last 12 paragraphs, the police have stated that, at the spot there was no sufficient light, therefore, they have taken the help of artificial light for the purpose of taking photographs of the place of incident and they have drawn the mahazar at the spot. Therefore, it goes without saying that there was no light or the light which was in existence was very weak, so that the police could not conduct the spot mahazar, at that particular point of time.
17. Apart from the above, the mahazar does not show as to what was the nature of the shop of PW.16, which is styled to be a shop, what is the nature of the door, which was put, whether there was a gap in the door, if any body could peep and see the persons standing outside the shop. There are no such details are available in the spot mahazar. There is no material to show whether there was any aperture to the said door, so that PW.16 could peep in through the said aperture and identify the assailant. A serious lapse has been committed by the Investigating Officer in not giving topography of the scene of offence in the sketch prepared. Even the sketch has not been produced or marked before the Court, so as to ascertain as to what exactly transpired. Neither Ex.P1 discloses the details with regard to the extent of light and extent of aperture or existence of any gap in the door. Therefore, in the absence of such material it is very difficult to believe the evidence of PW.16 that at odd hours i.e., at 1.30 a.m. he could peep through the small gap and identify the accused as an assailant, in the absence of sufficient light or dim light. The trial Court in fact has not bestowed its attention so far as the absence of light and absence of proof of any gap or aperture in the door is concerned, which in our opinion, are not minor discrepancies, and if they are accepted, it will go to the root of the incident. The benefit of denial of the above things ought to have been given by the trial Court in favour of the accused.
18. In the above said facts and circumstances, we do not find any strong reason to sustain the judgment of the trial Court. Hence we proceed to pass the following:-
ORDER a. The appeal is hereby allowed, consequently the judgment of conviction and sentence passed by the trial Court in S.C. No.1364/2012 dated 11.12.2015 on the file of LI Additional City Civil and Sessions Judge at Bengaluru City is hereby set aside, consequently the appellant / accused is hereby acquitted of the charges levelled for the offence punishable under Section 302 of IPC;
b. The accused shall be forthwith set at liberty, if he is not required in any other case;
c. If any amount of fine is deposited by the appellant / accused, the same is ordered to be refunded to the appell`ant / accused on proper acknowledgment and identification.
Registry is directed to communicate the operative portion of this judgment to the concerned jail authorities forthwith, for release of the appellant/ accused, if he is not required In any other case.
Sd/- JUDGE Sd/- JUDGE KGR*