State of Karnataka vs Maruthi

N. Ananda, J.—The respondents 1 to 7 were arrayed as accused 1 to 5, 7 and 10 in S.C. No. 58/2005 and they were tried and acquitted for offences punishable under Sections 143, 147, 148, 341 and 302 IPC read with Section 149 IPC. Therefore, the State has filed this appeal.

We have heard the learned Government Pleader for State and Sri. Hasmath Pasha, learned counsel for accused. We have been taken through evidence and impugned judgment.

The accused persons were tried on the charges of committing murders of two persons, namely, Girijashankar and Jayaprakash on the road between Hassan and Nittur in front of Dyapalapura village at about 10.30 p.m. on 11.10.2014.

It is the case of prosecution that there were some disputes between accused and some persons of Dyapalapura village. The deceased persons who were the natives of Dyapalapura village had taken lead, convened a Panchayath and imposed fine on the accused. The accused bore grudge against deceased persons.

The prosecution has examined PW3, PW6 and PW15 to 22 to prove the motive. PWs.3 to 6 have not supported the case of prosecution. The first informant (PW14) is the brother of deceased. He has deposed about the motive and the reasons for motive. We do not find any reasons to suspect the evidence of first informant.

The evidence adduced by prosecution in proof of homicidal death of Girishankar and Jayaprakash is not controverted . Even otherwise, the medical evidence of PWs.7 and 8 would establish that deceased persons had suffered multiple cut injuries and their death was due to shock and hemorrhage. The defence has not controverted the homicidal death of Girijashankar and Jayaprakash on Hassan - Nittur Road near Dyapalapura Village at 10.00 p.m. on 11.10.2014.

The prosecution has examined PWs.1 and 2 to prove that on 11.10.2004 at 10.30 p.m., when deceased persons were returning on a motorcycle on Hassan-Nittur Road, near Dyapalapura, the accused armed with deadly weapons had formed an unlawful assembly with the common object of committing murders of deceased persons namely, Girijashankar and Jayaprakash. The accused wrongfully restrained them, assaulted them with deadly weapons and inflicted multiple injuries and caused their death at the spot. PWs.1 and 2 who were examined by the prosecution to prove the incident of assault on deceased persons with deadly weapons, have not supported the case of prosecution. They were treated as hostile witnesses and they were subjected to lengthy cross-examination. Even during cross-examination, by the learned Public Prosecutor PWs.1 and 2 have not given incriminating evidence against accused. The prosecution has examined number of witnesses to prove the facts which, by and large, are not disputed by accused. These facts do not bear any incriminating evidence against accused.

The prosecution has relied upon the recovery of weapons of offence on the information volunteered by accused Nos. 1, 5, 7 and 10. In order to prove the recovery of weapons - clubs, the prosecution has relied on evidence of PWs.34, 35 and 54. At this juncture, it is relevant to state that one Dilip examined as PW9 to prove spot inspection report and also injuries found on deceased. He was again examined as PW54 to prove recovery weapons on the information volunteered by accused 5, 7 and 10. The learned Sessions Judge noticing this serious discrepancy has rightly rejected the evidence of PW9. PW9 has not supported the case of prosecution and declared as hostile witness, when he was examined as PW54 for the second time. The examination of above said Dilip as PW.9 and PW.54 would lead to an inference that prosecution has made an unsuccessful attempt to prove PW.9 and PW54 are two different persons.

The evidence in proof of recovery of two clubs marked as MOs. 9 and 11 at the instance of accused 5, 7 and 10, does not inspire confidence for the following reasons:

As already stated, incident had taken place on 11.10.2004. The recoveries were made on 17.10.2004 and 18.10.2004. At this juncture, it is relevant to state and accused No. 5 was arrested on 17.10.2004 and voluntary statement alleged to have been given by him was recorded on 17.10.2004. The Investigating Officer having recorded the voluntary statement alleged to have been given by accused No. 5 did not take immediate steps to recover weapons (clubs). On the other hand, he waited for arrest of accused Nos. 7 and 10. Accused Nos. 7 and 10 were arrested on 18.10.2004. On that day, accused Nos. 7 and 10 are alleged to have made voluntary statements. The Investigating Officer had taken accused Nos. 5, 7 and 10 to the place of recovery, which is one and the same, at three different points of time. In other words, at the first instance accused No. 5 was taken to the place of recovery. Accused No. 5 is alleged to have removed a club from a bush near the place of incident. Thereafter, he was brought back to Police Station. This process was repeated by taking accused No. 7 to the place of incident and thereafter by taking accused No. 10 to place of recovery at different points of time. The place of recovery is accessible to all and sundry. The evidence on record does not reveal that these weapons had been concealed by accused 5, 7 and 10. These weapons were examined by Serologist after a period of 2 years from the date of seizure of weapons. The Serologist (PW58) has deposed that he could not determine the blood group as blood stains on these weapons were disintegrated. In the circumstances, the Trial Judge has rightly disbelieved the evidence adduced by the prosecution to prove that the MOs.9 to 12 were recovered pursuant to voluntary statements given by accused 5, 7 and 10.

The prosecution has relied on evidence in proof of recovery of club, axe and chopper on the information volunteered by accused 1 to 3. The Investigating Officer has deposed that on 21.10.2004, accused 1 to 3 were arrested and they volunteered information and led the Investigating Officer and other witnesses to the land of one Sannegowda and accused No. 1 removed a club from a bush. Accused No. 2 removed an axe from another bush and accused No. 3 removed a chopper from yet another bush. The evidence on record does not reveal that places of recovery were guarded. The places of recovery were accessible to all and sundry. The evidence on record does not reveal that weapons had been concealed and such concealment was within the exclusive knowledge of accused 1 to 3. These weapons were sent to Serologist after a period of two years of the alleged incident. PW58 (Serologist) has deposed that blood stains were disintegrated and he could not determine the blood group.

The prosecution has relied on evidence of PWs.42 and 43 to prove the recovery of chopper (MO.20) on the information volunteered by accused No. 4. According to Investigating Officer, accused No. 4 was arrested on 1.11.2004 and he volunteered information and he led the Investigating Officer and the witnesses to the place of recovery. At this juncture, it is relevant to stated that the evidence of Investigating Officer and panch witnesses, does not reveal the place of recovery. Their evidence does not reveal that weapon MO.20 had been concealed and concealment was within the knowledge of accused No. 4. In view of the discrepancies found in the evidence regarding place of recovery and absence of evidence, in proof of concealment of weapons and exclusive knowledge of accused, it is not possible to accept evidence adduced by the prosecution to prove recovery of MO.20 at the instance of accused No. 4.

On over all appreciation of evidence, we find that the prosecution has proved that there was previous enmity between accused and deceased. The prosecution has failed to prove that accused had assaulted deceased persons with deadly weapons, at 10.30 p.m. on 11.10.2004 when deceased persons were proceeding on a motorcycle on Hassan-Nittur Road near Dyapalapura village. The learned Sessions Judge has taken in to consideration each aspect of the case of prosecution and evidence of all prosecution witnesses. The learned Sessions Judge after critical analysis of entire evidence has arrived at a conclusion that prosecution has failed to prove the charges beyond reasonable doubt. On reappreciation of evidence, we do not find any reasons to interfere with the impugned judgment. Therefore, we pass the following

ORDER

The appeal is dismissed.