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Judgment
B.V. Pinto, J.—This appeal has been filed by the State challenging the judgment dated 23.07.2004 passed by the District and Sessions Judge, Kodagu in S.C. No. 99/1996 acquitting the Respondents for the offence u/s 143, 147 and 302 IPC r/w Section 149 of IPC and under Sections 3 and 25 of the Indian Arms Act.
Parties in this case are referred to according to their ranking before the trial Court.
It is the case of the prosecution that, on 14.05.1996 at about 5.30 p.m., at Puthya Village, the accused were members of an unlawful assembly with a common object so as to commit the murder of Janardhan and in pursuance of the said common object on the aforesaid date, time and place, the Respondents have held lethal weapons and committed the offence of rioting, accused Nos. 1, 3 and 5 assaulted Janardhan with sickles and accused No. 2 poured boiling oil on the deceased and accused No. 4 assaulted him with a iron rod and all of them therefore committed the murder of the deceased Janardhan, thereby they are alleged to have committed offences under Sections 143, 147, 302 r/w 149 IPC, It is further alleged that on the said date, place and time, the accused Nos. 1 to 3 were in possession of a gun without a valid license, thereby they have contravened the provisions of Section 3 of Indian Arms Act punishable u/s 25 of the said Act.
The prosecution in order to prove the case has examined in all 18 witnesses and got marked Exs. 1 to P22 and produced MOs - 1 to 12. The defence of the accused was one of total denial. However, they have got marked Exs. D1 to D7 being the portions contained in the complaint given by the wife of the deceased and the portions in the statement of FW-15 who is the daughter of the deceased. The Court has got marked Ex. C-1 being the portion of the complaint of PW-3. However, after hearing the prosecution and the defence, the learned Sessions Judge arrived at a conclusion that the evidence tendered by the prosecution does not inspire confidence in the mind of the Court and there is no corroborative, oral, documentary, cogent and convincing evidence led by the prosecution and hence, the accused are acquitted The State has filed this appeal.
Heard Sri. P.M. Newaz, learned Addl. SPP and Sri. Muralidhar, learned Counsel appearing for the Respondent-accused. Perused the materials.
It is seen from the oral and documentary evidence adduced by the prosecution that, there are following glaring discrepancies in the case of the prosecution:
(i) PW-3 is the wife of the deceased and PW-15 is the daughter of the deceased. The complaint has been filed by PW-3 before the police station. The said complaint was received by CW-29, T.G. Ganesh, ASI. The said T.G. Ganesh was present in the Court on 23.09.2002. However, he was sent back on the ground that the eye witness/complainant is not fully examined. Thereafter, the said CW-29 has not been recalled and he has not been examined in the case. On a perusal of the complaint Ex. P3, it is seen that CW-29 has received the complaint and he has handed over the said complaint to the police station with his endorsement at 8.30 a.m. on 15.05.1996. No proper explanation is given as to how the complaint was received by this CW-29 T.G. Ganesh and in what manner it was produced by him before the SHO.
(ii) The dead body was found about 70 feet away from the house of the deceased as indicated in Column No. 8 of the inquest report. The eye witness account of PWs-3 and 15 having seen the incident does not corroborate with the scene of occurrence.
(iii) Though PW-15, the daughter of deceased is examined as eye witness, her name does not appear in the FIR. There is a lot of improvement in her evidence from the statement given by her to the police.
(iv) The prosecution has not clearly established as to who is the actual informant to the police regarding the offence of the murder of deceased Janardhan. PW-3 says that on next day, police came to the place at 8.00 a.m. and she has got written the complaint Ex. P3. The scribe of Ex. P3 is not cited nor examined.
(v) There is no explanation by PW-3, complainant who is also the wife of the deceased as to why she did not make efforts to give the complaint immediately on the night itself. There is delay in lodging the complaint.
(vi) PW-2 is an independent eye witness but he has not supported the case of the prosecution.
On a proper re-appreciation of the entire materials on record, we are of the opinion that the discrepancies narrated above have not been over come by the prosecution and the learned Sessions Judge has given benefit of doubt arising out of the discrepancies narrated above. The finding arrived at by the teamed Sessions Judge is based on evidence on record and the same is neither improbable nor capricious nor against the settled principles of law. Therefore, we do not find any reason to reverse the well considered order of acquittal passed by the learned Sessions Judge and hence, there is no alternative but to dismiss the appeal filed by the State. Accordingly, the appeal is dismissed.