Gopala vs State

The appellant (accused) was tried, convicted and sentenced for an offence punishable under Section 302 IPC. Therefore, he is before this court.

We have heard Sri. Amar Correa, learned counsel for accused and Sri. Vijaykumar Majage, learned HCGP for the State.

It is the case of prosecution that accused and deceased are neighbors and they were residents of Nalinganahalli village, Pavagada Taluk. The accused and deceased had quarreled about flowing of sewage water in a gutter adjoining their houses. There was enmity between them. On 28.01.2009, the accused assaulted Lakshmidevi (since deceased) with a chopper with the intention and knowledge of committing her murder and committed her murder. When P.W.1-Nagaraju (the younger brother of deceased) went to her rescue, the accused also assaulted him with a chopper with such intention and knowledge by such acts if he had caused death of PW1, he would have been held guilty of an offence punishable under section 302 IPC.

The prosecution has relied on the following:

"I Motive

II Eyewitness account of P.W''s. 1 to 3

III Recovery of weapon of offence on the information volunteered by the accused."

Before adverting to appreciation of evidence, it is necessary to state that homicidal death of Lakshmidevi in front of her house at about 3.30 p.m., on 28.01.2009 has been proved beyond reasonable doubt. The accused had made an unsuccessful attempt to establish that she had gone to hillock to collect firewood and she fell down from the hillock and died.

The inquest report and contents of postmortem examination report would reveal that she had suffered cut injuries and she died of shock and haemorrhage. P.W. 1 is stated to be an injured witness and he has not supported the case of prosecution. Apart from wound certificate, we do not have medical evidence.

P.W.1-Nagaraju (the younger brother of deceased) who was also injured in the incident of assault has not supported the case of prosecution. He denies to have suffered injuries in the incident of assault. He was declared as a hostile witness.

During cross-examination, he has not given any incriminating evidence against the accused.

P.W.2-Chithakka is the mother of P.W.1. She has allegedly witnessed the incident of assault. She has not supported the case of prosecution. She was also declared as a hostile witness.

P.W.3-Hanumanthappa is an independent witness. He has not supported the case of prosecution. He was declared as a hostile witness.

P.W.4-Venkatesha, P.W.5-Earanna and P.W.6-Ramanjaneya have not supported the case of prosecution.

In the discussion made supra, we have held that the prosecution has proved homicidal death of Lakshmidevi. Therefore, evidence of P.W.4 to P.W.6 is not useful to the prosecution.

P.W.7-A.Venkatabhaskara Reddy was working as an Assistant Engineer in Public Works Department at Pavagada. He had visited the place of incident and prepared a rough sketch.

P.W.8-Dr.Shashidhar has deposed; that he had examined P.W.1-Nagaraju on 28.01.2009 and found that he had had suffered injuries and issued wound certificate as per Ex.P13.

P.W.1-Nagaraju has turned hostile. He has not supported the case of prosecution. Therefore, evidence of P.W.8 will not come to the aid of prosecution.

P.W.9-Mythramma was working as Woman Police Constable in Pavagada Police Station. She had seized the bloodstained clothes of deceased Lakshmidevi regarding which there is no controversy.

P.W.10-Ramesh M.S. had searched the accused. He had arrested the accused and produced the accused before the investigation officer at about 4.30 p.m., on 29.01.2009. The arrest of accused has not been disputed.

P.W.11-Muniraju was working as Sub-inspector of Police in Pavagada Police Station. He had registered the case and conducted part of the investigation.

The evidence of P.W. 11 does not bear any incriminating evidence against the accused.

The prosecution has not examined the witnesses to prove blood stains on the weapon of offence recovered on the information volunteered by the accused. In view of hostility shown by eye-witnesses, the prosecution has not been able to bring on record eyewitness account of the incident.

The learned Sessions Judge relying on statements of witnesses recorded under Section 161 Cr.P.C, has held that eyewitnesses have deliberately turned hostile. The learned Sessions Judge by relying on evidence of P.W.7 to P.W.11 has held that prosecution has proved the guilt of accused beyond reasonable doubt.

In our considered opinion, the evidence of P.W''s. 7 to 11 does not bear any incriminating evidence against the accused.

The learned Sessions Judge has relied on the judgments of Supreme Court reported in Jayaseelan Vs. State of Tamil Nadu, , Ponnam Chandraiah Vs. State of A.P., and Munna @ Pooran Yadav Vs. State of Madhya Pradesh, to hold that even if major portion of evidence is found to be deficient in a case, residue is sufficient to prove the guilt of accused.

In the case on hand, entire evidence adduced by the prosecution is totally deficient. The eyewitnesses have turned hostile. The prosecution has not adduced any evidence to prove recovery of weapon of offence on the information volunteered by the accused. Therefore, from the evidence of witnesses who have attested the mahazar or who have deposed about homicidal death of Lakshmidevi, it is not possible to hold the accused guilty of an offence punishable under Section 302 IPC.

Therefore, we pass the following:

ORDER

The appeal is accepted. The impugned judgment of conviction of accused for an offence punishable under Section 302 IPC is set aside.

The accused is acquitted of an offence punishable under Section 302 IPC in S.C. No. 136/2009 on the file of Fast Track Court-V at Madhugiri. The accused shall be set at liberty if he is not required to be in custody in connection with any other case.

The bail bond executed by accused stands cancelled. If accused has deposited the fine amount in terms of the impugned judgment, the same shall be refunded to him.