Allowed

Puneeth v. State of Karnataka by

Karnataka HC19 Feb 2024CRL.A/563/2018

Case brief

AI extract

What is this about?

The High Court acquitted three appellants convicted of murder, ruling that alleged eyewitness testimony was unreliable due to procedural irregularities, delayed FIR, and lack of independent corroboration, finding the prosecution case unsustainable.

What did the court decide?

Impugned judgment and order of conviction and sentence set aside; appellants acquitted; fine refunded; bail bonds discharged.

Puneeth Vs State of Karnataka by — Murder and Culpable Homicide | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF FEBRUARY, 2024 PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE VENKATESH NAIK T

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CRIMINAL APPEAL NO.563/2018 (C)

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C/W

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CRIMINAL APPEAL NO.604/2018

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IN CRL.A.No.563/2018

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BETWEEN:

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PUNEETH

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S/O SHADAKSHARAIAH AGED ABOUT 25 YEARS

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R/A MANDIPETE, TUMKUR-572101

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SUNIL

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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S/O SOMASHEKAR AGED ABOUT 30 YEARS R/AT ELERAMPURA KOLALA HOBLI, KORATEGERE TALUK

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TUMKUR – 572 101 … APPELLANTS

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(BY SRI.HASHMATH PASHA, SENIOR COUNSEL FOR SRI. KARIAPPA N.A.,ADVOCATE)

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IN CRL.A.No.604/2018

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BETWEEN:

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SRIHARSHA S/O MAHADEVAIAH AGED ABOUT 21 YEARS R/O C. HARAVESANDRA TUMAKURU - 572 227 …APPELLANT (BY SRI. C.H. HANUMANTHARAYA., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY KOLALA POLICE STATION TUMKUR – 572 101 (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE - 560 001) …RESPONDENT

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(COMMON)

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(BY SMT. SOWMYA R, HCGP A/W SRI. VIJAYA KUMAR MAJAGE, SPP-II)

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THESE CRIMINAL APPEALS ARE FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 06.03.2018 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI IN S.C.NO.5031/2017 - CONVICTING ACCUSED NOS.1 TO 3 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 R/W 34 OF IPC.

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THESE CRIMINAL APPEALS COMING ON FOR FURTHER DICTATION THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Challenging the judgment and order of conviction and sentence passed against them in S.C. No.5031/2017 on the file of the 4^th Additional District and Sessions Judge, Madhugiri, accused Nos.1 and 3 have preferred Criminal Appeal No.563/2018 and accused No.2 has preferred Criminal Appeal No.604/2018.

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The appellants along with accused Nos.4 to 7 were tried in S.C. No.5031/2017 for the charges for the offences punishable under Sections 143, 147 and 302 read with Section

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149 IPC on the basis of the chargesheet filed by Kolala Police in

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Crime No.34/2017 of their Police Station. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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The case of the prosecution in brief is as follows: i) Accused Nos.1 to 7 were all friends.

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PW1-Gangadhar is the elder brother, PW8-Hemavathi is the elder sister, PWs.2 and 14 are the friends of the deceased Hanumantharaju, PW5 is the son of PW4, PW9 is the cousin of the deceased and PW15 is the son of PW8.

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ii) On 01.04.2017 at 8.00 p.m., in Vijaya Bar and Restaurant, Irakasandra Colony, accused No.1 had abused PW2 in foul language. Taking exception to that, the deceased Hanumantharaju slapped accused No.1. To take revenge of the same, on 01.04.2017 at 11.20 p.m., on the street near Sri Maramma Temple in Yeleramapura, accused formed an unlawful assembly with the common object of committing murder of Hanumantharaju. Accused No.2 armed with knife, picked up quarrel with Hanumantharaju, accused Nos.1 and 3 to 7 gripped Hanumantharaju, accused Nos.1 and 3 abetted accused Nos.2 and 7 to stab Hanumantharaju, accused No.2

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stabbed Hanumantharaju with knife MO8 on his right shoulder and stomach causing him fatal injuries.

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iii) PWs.2 to 4 witnessed the incident and PW5 informed PW1 about the incident over phone. PW1 rushed to the spot and all of them shifted the injured Hanumantharaju to Koratagere Government Hospital. PW17-the Medical Officer of Koratagere Government Hospital after giving preliminary treatment referred him to major hospital. When Hanumantharaju was being shifted to District Hospital, Tumkur, he succumbed to the injuries on 02.04.2017 at 00.30 a.m., near Doddegowda Petrol Bunk. Thereafter, PWs.1 to 5 brought the victim back to Koratagere Hospital. PW1 filed complaint against the accused on 02.04.2017 at 12.15 p.m. Based on the said complaint, PW23-Sub-Inspector of Police of Kolala Police Station registered FIR-Ex.P32 against the accused and he handed over further investigation to PW24-Police Inspector of Kolala Police Station.

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iv) During the investigation, PW24 conducted spot mahazar-Ex.P2, inquest mahazar-Ex.P9, got conducted postmortem examination on the dead body of the victim, arrested the accused, seized incriminating material under mahazars, sent the seized articles to the FSL, Bengaluru for chemical

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analysis, recorded the statements of the witnesses, got the sketch of scene of offence drawn, etc. and handed over further investigation to PW25-Deputy Superintendent of Police of Madhugiri. PW25 collected the FSL reports, opinion of the Doctor and filed the chargesheet.

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The trial Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 143, 147 and 302 read with Section 149 of IPC. The accused denied the charges. Therefore, the trial was conducted. To substantiate its case, the prosecution examined PWs.1 to 26, got marked Exs.P1 to P46 and MOs.1 to 9. The accused after their examination under Section 313 Cr.P.C. did not lead any defence evidence.

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The trial Court on hearing the parties by the impugned judgment and order acquitted accused Nos.4 to 7 and convicted accused Nos.1 to 3 for the charge for the offence punishable under Section 302 read with Section 34 IPC. Further, the trial Court for the said offence sentenced the accused to life imprisonment and fine of Rs.10,000/- each and in default to pay the fine amount, to undergo simple imprisonment for one year.

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Challenging the acquittal of accused Nos.4 to 7, the State has not preferred any appeal. Whereas, accused Nos.1 to 3 have preferred the above appeals questioning the judgment and order of conviction and sentence.

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Submissions of Sri Hashmath Pasha, learned senior counsel appearing for Sri Kariappa N.A., Advocate on record, for the appellants in Criminal Appeal No.563/2018 and Sri C.H. Hanumantharaya, learned counsel for the appellant in Criminal Appeal No.604/2018:

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7 i) There is inordinate delay in filing of the complaint, which was not satisfactorily explained. The evidence of PW24Investigating Officer and PWs.1 to 5-the alleged eyewitnesses, shows that PW24 on learning about the incident, visited Koratagere Hospital at 2:30 hours during intervening night of 1/2-4-2017. The witnesses state that they revealed the incident to him, still he did not record the statement of any of those witnesses and allegedly directed PW23 to register the complaint. PW1 claims to have gone to the Police Station on 02-04-2017 at 12:15 p.m. and filed the complaint, but FIREx.P32 shows that the same was delivered to the Magistrate at 5:15 p.m. That goes to show that the FIR was ante timed, though registered belatedly on deliberations with the Police and the complainant party and PWs.2 to 4 were planted as

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eyewitnesses and PWs.1 and 5 were planted as res gestae witnesses. Since the Police by that time already had the information of the incident, complaint-Ex.P1 does not amount to first information under Section 154 Cr.P.C. and is hit by Section 162 Cr.P.C. Even in that complaint and FIR, the names

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of accused Nos.2 and 7 did not appear and how they were roped into the case was not explained. Accused Nos.1, 2 and 7 were strangers. Even as per PW2, except for accused No.1, others were strangers. No test identification parade was conducted for their identification by the eyewitnesses. According to PWs.1 to 5, they identified the accused in the Police Station at the instance of the Police which is inadmissible. Despite the Investigating Officer being aware of PWs.2 to 4 being allegedly the eyewitnesses and PW5 being the res gestae witness, he did not record their statements during his visit to the scene of offence. There is unexplained delay in recording their statements. The alleged recovery of knife-MO8 was suspicious. The bike allegedly seized by the Investigating Officer in no way connects the accused to the crime. Moreover, witnesses to the said seizure did not support the prosecution version. Recoveries were the joint recoveries. As per the evidence of some of the witnesses, scene of offence was

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surrounded by residential houses, there were several people at the scene of offence. The Investigating Officer did not examine any of the independent witnesses. Those who are cited as eyewitnesses and other circumstantial witnesses supporting the prosecution were all relatives and friends of the deceased and they were interested witnesses.

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ii) The evidence of PW17-Doctor shows that the persons

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who accompanied the injured did not give the details of the assault and the assailants. If PWs.1 to 5 were aware of the accused being the assailants and the manner of assault, they should have revealed the same to PW17. Their evidence is full of material contradictions. The aforesaid facts and

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circumstances go to show that the whole investigation was concocted to implicate the accused in the case due to communal rivalry/enmity between the accused party and the complainant party. The trial Court without judicious appreciation of the evidence, facts and circumstances of the case and the applicable law convicted accused Nos.1 to 3. But on the same evidence acquitted accused Nos.4 to 7 though accused Nos.1 to 3 stand on par with accused Nos.4 to 7. That itself goes to show that judgment of the trial Court is self contradictory and unsustainable. Therefore, the impugned

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judgment and order of conviction and sentence passed against

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accused Nos.1 to 3 are liable to be set aside.

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Sri Hashmath Pasha, learned senior counsel, in support

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of his submissions, relies on the following judgments:

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i) Rehmat vs. State of Haryana¹

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ii) State of A.P. vs. Punati Ramulu and others² iii) Meharaj Singh (L/Nk) vs. State of U.P.³ iv) Jainul Haque v. State of Bihar⁴

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Sri Hanumantharayappa, learned counsel, in support of

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his submissions, relies on the following judgments:

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i) Jaikam Khan vs. State of Uttar Pradesh⁵ ii) Raja Naykar vs. State of Chhattisgarh⁶ iii) Chunthuram vs. State of Chhattisgarh⁷ iv) Gireesan Nair and others vs. State of Kerala⁸

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v) Ramkishnan Mithanlal Sharma vs. State of Bombay⁹ vi) Lakhwinder Singh vs. State of Punjab¹⁰

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Submissions of Smt. Sowmya R., learned High Court Government Pleader:

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Merely because the witnesses PWs.1 to 5, 8 and 15

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were the relatives/friends of the deceased, they cannot be

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1 (1996) 10 SCC 346

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2 1994 SUPP (1) SCC 590

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3 (1994) 5 SCC 188

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4 AIR 1974 SC 45

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5 (2021) 13 SCC 716

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6 2024 SCC OnLine SC 67

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7 (2020) 10 SCC 733

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8 (2023) 1 SCC 180

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9 AIR 1955 SC 104

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10 (2002) 10 SCC 295

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branded as interested witnesses. There is nothing to show that implication of the accused was enuring any benefit to them. Therefore, they cannot be called as interested witnesses. The trial Court rightly noticed that the incident was in wee hours after the festivity was over. Therefore, other localites not coming to the rescue of the victim is natural. When others did not witness the incident, the question of Investigating Officer recording their statements does not arise. PW6-Cashier of the Bar supported the circumstance of motive, i.e. quarrel between accused No.1 and the deceased involving PW2. PWs.2 and 3 supported the case of the prosecution regarding the motive circumstance. PWs.2 to 4-eyewitnesses to the incident were cogent and consistent regarding the overt acts of the accused and the occurrence of the incident. Their evidence was further corroborated by the statements given by them before the judicial Magistrate under Section 164 Cr.P.C. They deposed that accused No.2 stabbed the victim and accused Nos.1 and 3 abetted accused No.2 to stab the victim. The fact that the death was homicidal was not disputed. PWs.15 and 16 panch witnesses to seizure of knife-MO8 under mahazar- Ex.P22 supported the prosecution case. Why the accused first led the Police and panchas to the scene of offence and then to the

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place where MO8 was concealed was within his knowledge that cannot be blown out of proportion. As rightly observed by the trial Court, the victim met with homicidal death. The first concern of PW1 or his relatives would be to get the injured treated. In such heinous offence, the delay in registering the complaint is not fatal. Moreover, PW1 has explained the grief being the cause for the delay. That is acceptable. Due to margin of human error in the grasping the events and passage of time, some inconsistency and contradictions are bound to happen while reproducing the facts of the case before the Court. They are natural. There are no material contradictions in the evidence of PWs.1 to 5. The core case of the prosecution was not demolished by such inconsistencies or contradictions. Seizure of the clothes of the deceased and knife was proved. FSL report-Ex.P45 shows that they were stained with 'O' blood group. That connects accused No.2 to the crime. The trial Court on judicious appreciation of the material on record has convicted accused Nos.1 to 3 as their overt acts and participation in the crime was proved beyond reasonable doubt. The acquittal of accused Nos.4 to 7 does not enure to the benefit of accused Nos.1 to 3. Thus, the appeals shall be dismissed.

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Considering the submissions of both side and examination of the material on record, the question that arises for determination of this Court is:

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“Whether the impugned judgment and order of conviction and sentence passed against the appellants-accused Nos.1 to 3 is sustainable?”

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Analysis

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As per the prosecution, the deceased slapping accused No.1 in Vijaya Bar flamed enmity in the mind of accused No.1 and that was the motive for the murder. The prosecution contends that to take revenge for that incident, accused Nos.1 to 7 forming unlawful assembly came to Yeleramapura, where festivities of temples of Sri Maramma, Sri Anjineya Swamy and Sri Narasimha Swamy were going on and at 11:20 p.m., accused Nos.1 and 3 to 7 gripped Hanumantharaju, accused Nos.1 and 3 abetted accused No.2 to stab Hanumantharaju and accused No.2 stabbed Hanumantharaju with knife-MO8 and caused him fatal injuries. The incident was witnessed by PWs.2 to 4 and on hearing the commotion, PW5 also came to the scene of offence. On PW.5 informing PW1, he came to the spot. All of them shifted the injured to Koratagere Hospital, where PW17 attended to him

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and referred him to the higher hospital. When the victim was being shifted to the higher hospital, he succumbed to the injuries on the way.

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The case of the prosecution was based on following circumstances:

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i) Motive; ii) Evidence of complainant-PW1, eyewitnesses-PWs.2 to 4 and res gestae witness-PW5;

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iii) Recovery of knife-MO8 under mahazar Ex.P22; iv) Seizure of bloodstained clothes of the deceased under Ex.P9 the inquest mahazar ; and

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v) Medical evidence and evidence of official witnesses.

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Reg. Nature of death:

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To prove that the death was homicidal one, the prosecution relied on the evidence of PW17Dr.Vijayalakshmi S.H., Medical Officer of Koratagere Government Hospital, and PW11-Dr. Nagabhushan, who conducted Post-Mortem examination on the dead body of victim-Hanumantharaju and issued Post-Mortem report Ex.P15 and his final opinion Ex.P16 & P18.

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PW17 deposed that on 02.04.2017 at 12:00 in the midnight when she was working as Medical Officer in

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Koratagere Government Hospital, PW1 brought the victimHanumantharaju to the hospital with the history of stab injuries in a fight. She further deposed that the victim was gasping, she sutured the wound, gave preliminary treatment and referred him to Tumakuru Hospital and within half-an-hour, they came back stating that the victim was not breathing and on examination, she found the victim dead. She further deposed that based on such examination, she issued reports-Exs.P25 and P.26. In her cross-examination, she examining the victim was not disputed. Only certain corrections made by her in Ex.P25 was sought to be confronted to her, which she explained saying that due to confusion some mistakes had occurred in writing and she has corrected the same. Thus, the victim being brought to the said hospital with the history of assault stood proved.

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PW11-Medical Officer of Koratagere Government Hospital deposed that on 02.04.2017 on the requisition of the Police in Crime No.34/2017 of Kolala Police Station, he conducted the Post-Mortem examination on the dead body of Hanumantharaju between 5:00 p.m. and 7:00 p.m. and issued the Post-Mortem report as per Ex.P15. According to this

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witness, the following external injuries were found on the dead body of the victim:

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"1^st injury: 4 cm in length (sutured) in the anterior aspect of the Axilla which enter the right lung in the right side of the apex and sliced the right lung upto the spine in mid-way with clotted blood about 1000 grm over the right lung.

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Left chest intact, clotted blood in heart chambers

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2^nd injury: present in right iliac fossa about 4 cm in length (sutured) its pierced abdominal wall and (not clear) the posterial peritorial wall with no injury to the intestine (not clear) clots in the abdominal cavity.

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Partial digested food particle in the stomach present."

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PW.11 further deposed that he had kept the final opinion of the

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death pending, awaiting the FSL report and on receipt of the FSL report, he issued final opinion as per Ex.P18 stating that the death was due to cardiopulmonary arrest secondary to hypovolumin shock due to stab injury to the right lung. He further deposed that on the requisition of the Investigating Officer, he examined the weapon-MO8 and issued the opinion as per Ex.P16 stating that the injuries mentioned in the PostMortem report could be caused by such weapon and those

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injuries could cause death. In the cross-examination of this witness, nothing was elicited to discredit his evidence that the injuries were homicidal in nature and death was due to such injuries. The accused did not seriously dispute the death being due to homicidal injuries, but their defence was that they were not the authors of those injuries. Therefore, the trial Court was justified in holding that the death was homicidal one.

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Reg. eyewitnesses and the credibility of registration of FIR:

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Since these two points have bearing on each other, they are being discussed together. It is the vehement case of the prosecution that PWs.2 to 4 were eyewitnesses to the incident. Whereas, the accused contend that PWs.2 to 4 were planted as eyewitnesses. The accused disputed the credibility of PWs.1 to 5. The challenge to the credibility of PWs.1 to 5, 8, 9 and 15 is on the following grounds:

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i) That they are all interested witnesses and the probable independent witnesses of the locality were not examined as they would not have supported the prosecution version about the accused being the assailants.

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ii) Delay in filing the complaint/registering the FIR. iii) Conduct of PW24-Investigating Officer in not seizing

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the clothes of PWs.1 to 5.

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iv) Non-conduction of test identification parade of the accused; and

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v) Contradictions in the evidence of PWs.1 to 5, 8, 9, 15 and 16.

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Evidence of the above said witnesses themselves goes to show that PWs.1, 4, 5, 8 and 9 are the close relatives of the deceased and PWs.2, 3, 15 and 16 are the friends of the deceased. It is no doubt true that merely because of the relationship or friendship of the witnesses with the deceased, they cannot be branded as interested witnesses and evidence cannot be discarded if the same is creditworthy. But that proposition comes with a note of caution that their evidence has to be cautiously analysed. Similarly, in heinous offence like murder, the delay in filing the complaint, if explained satisfactorily or found natural, does not demolish the case of the prosecution.

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As per the evidence of PWs.1 to 5, soon after the incident, PWs.1 and 5 came to the scene of offence and they shifted the injured to Koratagere Hospital. The evidence of PW17 shows that the victim was brought to the hospital by

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PW1 with the history of assault. In complaint-Ex.P1, PW1 has stated that he came to scene of offence at 11:40 p.m. on 01.04.2017 on the information by PW5 over phone. It is stated in Ex.P1 that in the phone conversation itself, PW5 named accused Nos.1 and 3 to 6 and two other persons as the assailants. He further states that the same was witnessed by PWs.2 to 4 and on he reaching the spot himself, PWs.2, 5 and CW6-Ranjith shifted the injured to the hospital. If Ex.P1 has to be believed, by the time PW1 came to the scene of offence, he was aware of accused Nos.1, 3 to 6 and two others being the assailants. If that is the case, when the victim was taken to Koratagere Hospital they should have revealed the names of the assailants before the Doctor. PW17, the prosecution's own witness, states that PW1 gave the history of stab injury due to assault and he did not reveal other details. According to her, the victim was alive and was gasping. He had also not given any history.

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The evidence of PW17 shows that the history given by PW1 was entered in MLC register and Ex.P25 is the MLC register extract. Ex.P25 is prosecution's own document. It states that PW.2 gave history of assault/stab injury. In Ex.P25

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in the space meant to mention the name of assailants PW.17 has just drawn a line. She has also recorded that detailed history was not known . Apparently, such entry is based on the information of PW1 itself. PW17 in her cross-examination, deposed that when she enquired PW1 about the details of fight, he told her that he does not know those details. PW17 was an independent witness. There was no reason to disbelieve her evidence. If that has to be accepted, then the statement in Ex.P1 that PWs.2 to 4 were the eyewitnesses and they revealed to PW.1 that the accused assaulted the victim with knife becomes doubtful.

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Offence under Section 307 or 302 IPC are cognizable offences. In view of Section 154 Cr.P.C., any person who was aware of the incident would have set the law into motion. Ex.P1-complaint and Ex.P32-FIR are intertwined with the evidence of PWs.23-the PSI and PW.24-the PI. PW.24 says that when he was on patrol duty on 02.04.2017 at 2:00 a.m., he received information from the Assistant Sub-Inspector of their Police Station about the incident and the dead body of the victim being in Koratagere Hospital. PW24 says that he visited the hospital and enquired PW2 and PW2 told him about

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accused Nos.1, 3 to 6 and two others assaulting the victim. He also deposed that the dead body was in the mortuary and the relatives and friends of PW2 were also present in the mortuary. Despite that, he did not record the statements of any of those persons. When PW2 orally reported the occurrence of a cognizable offence, Section 154 Cr.P.C. mandatorily required PW.24 to record the same then and there only and he could have sent such statement to the jurisdictional Police for registration of FIR, which he did not do. As against that, he says that he informed PW23 about the incident, then went to Yeleramapura to see the place of offence.

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Though PW23 says that PW1 presented the complaint before him on 02.04.2015 at 12:15 p.m. and he registered the FIR immediately, Ex.P32-FIR shows that same was delivered to the jurisdictional Magistrate at 5:15 p.m. To explain why it took five hours to deliver the same, the carrier of the FIR was not examined. An attempt was made by referring to the last sentence in Ex.P1 to the effect that the delay occurred as the complainant discussed with his elders. As rightly pointed out, by the appellants’ counsel though the entire complaint is in computerized script, the said sentence

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alone is hand written. PW1 states that he does not know who has written that. PW1 in his cross-examination by the counsel for accused No.1 states that PWs.2 and 3 had accompanied him to the Police Station, but he did not get information from them before filing the complaint. He says that he got written the complaint and in that complaint, he stated that two of the assailants were holding knife in their hands, whereas according to the prosecution, accused No.2 alone was holding the knife. Even according to the prosecution, it was the complainant who inserted the handwritten reason in Ex.P1 regarding cause of delay. PW1 states that he does not know who has written that sentence.

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According to PW1 on 3.4.2017 at 8.00 p.m., when they were summoned to the Police Station by the Police, there were five persons in their custody, out of them he knew only accused Nos.1, 3 and 4 and through Police, he came to know the names of accused Nos.2 and 7. The aforesaid evidence of PW1 creates doubt about he explaining the delay in Ex.P1 being his grief or shock. As rightly pointed by the defence counsel, even assuming that PW1 was in grief, if really PWs.2 to 5 had accompanied PW1 and the victim to the hospital, at

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least, the Investigating Officer could have recorded their statements as first information. PW2 in his cross-examination by the learned counsel for accused No.1 states that as per statement given by him before the Magistrate, while writing the complaint, PW1 enquired him and he narrated, but he did not read the complaint. When PW1 did not say anything about any legal professionals accompanying them for filing the complaint, PW.2 states that they got the complaint typed through an Advocate, who was near Koratagere Police Station, but he does not know his/her name. He further states that when the complaint was being typed, there were five to six persons. PW1 enquired him, he narrated and the complaint was typewritten accordingly. He admits that except PW3 (CW3), rest of the witnesses belong to same community. Similarly, except accused No.7, rest of the accused belong to same community. PW2 in his cross-examination by accused No.2 admits that by the side of Koratagere Hospital, there is a Police Station.

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PW3 in his cross-examination by accused No.1 speaks about the Police visiting the Government Hospital at 12:30 hours in the night, but he says that he did not inform the

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Police how the incident took place. He further states that he had accompanied PW1 to Kolala Police Station to give complaint and by that time, he had narrated to PW1 how the incident took place. He says that the complaint was prepared in the Police Station and at that time, he was standing outside the Police Station and he does not know who prepared the complaint.

¶155

PW4, another alleged eyewitness, in his crossexamination dated 28-11-2017 by accused No.1 states that he followed the other witnesses when the victim was being shifted to the hospital, within 10-15 minutes of they reaching the hospital, the Police came and they stayed with them throughout the night. He further says that he attempted to give the complaint before the said Police. That falsifies the theory of the prosecution that the complaint was filed only on the next day, i.e., on 02.04.2017 at 12.15 p.m.

¶156

In his cross-examination by accused Nos.3,4 & 7, PW4 says that he does not know the cause of the assault. PW5 also in his cross-examination by accused No.1 states that when they had taken the victim to Koratagere Hospital, the Police had come there, but at that time, he did not see anybody

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giving the complaint. If really the above stated witnesses were present and if they tried to give complaint, why PW24Investigating Officer did not receive the complaint was not explained by him. Such contradictions falsify the theory of PWs.2 to 5 accompanying the victim to the hospital and thereafter PW.1 to the Police Station. The said material contradictions in the evidence of PWs.1 to 5, PW23 and PW24 create doubt about PW1 filing the complaint first time in the Police Station at 12.15 p.m. on 02.04.2017.

¶160

Even assuming that the complaint was filed on that date at 12.15 p.m., if PW.24 was aware that PWs.2 to 4 were eyewitnesses and PW5 was res gestae witness, there was no impediment for him to record their statements soon after registration of the FIR. But he claims to have recorded their statements on 03.04.2017 after arrest of the accused. PW24 tried to explain saying that his first priority was to nab the accused. Even assuming that PW.24 recorded the statements of PWs.2 to 5 after such arrest, when the accused were produced before the Magistrate, that should have been reflected in the remand application. So far as not recording the statements of those witnesses when he visited Koratagere

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Hospital, he says that since FIR was not registered, he did not commence the investigation. As already stated, he had the duty to record the statements of those witnesses and register the FIR on that basis. Contrary to evidence of PW4, PW24 says that he visited the hospital, but nobody gave the complaint to him either in the hospital or at the scene of offence.

¶164

So far as contradictions in the evidence of PW1 and Ex.P1 regarding explanation for delay in filing the complaint, PW.24 in the cross-examination states that he need not have conducted investigation on that aspect as he had not received the complaint. The other aspect which creates doubt about recording statements of PWs.2 to 5 on 03.04.2017 is the delay in recording the statement of those witnesses through the Magistrate under Section 164 Cr.P.C. PW24 claims that he got recorded the statements of PWs.2 to 4 before the Magistrate on 25.04.2017 though allegedly he recorded the statements on 03.04.2017. This delay in recording the statement under Section 164 Cr.P.C. was not explained. That leads to the inference that PW24 himself was not sure whether PWs.2 to 4 support his version in enquiry and trial. That becomes evident by the admissions given by PWs.2 to 4 about Exs.P3 to P5.

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PW2 in his cross-examination states that he was produced by Police Head Constable-456 and at the time of recording statements, apart from the Court staff, two Advocates were present. Similarly, PW4 in his cross-examination states that while his statement-Ex.P5 was being recorded, one Police and two Advocates were also present. Contrary to evidence of PW24, PW4 says that he gave statement before the Investigating Officer on 01.04.2017 itself. The statements of PWs.2 to 4 under Exs.P3 to P5 were not free from blemishes and that was recorded under the shadow of the Police and two other legal professionals. The above facts and circumstances further show that to lend assurance to the statement in Ex.P1 that PWs.2 to 4 were the eyewitnesses, statements under Section 164 Cr.P.C. were recorded subsequently. Under the above circumstances there is much force in the submissions of the learned counsel for the appellants that by ante timing the complaint and FIR, PWs.2 to 4 were planted as eyewitnesses and PW5 was planted as res gestae witness.

¶168

The evidence on record shows that though the incident took place in a locality surrounded by residential houses and more particularly, close to the houses of the victim

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and PWs.1 to 5, nobody came forward to offer water to the injured-victim. Investigating Officer did not record the statement of any of the independent witnesses of the locality. That creates doubt about the time, place and occurrence of the incident as alleged. PW24-Investigating Officer in his crossexamination by the counsel for accused No.1 states that when he visited Koratagere hospital, obviously, at 00:30 hours, he enquired PW2 in the hospital and made a draft of his statement. That clearly shows that he had first information by that time. There is much force in the submission of appellants' counsel that Ex.P1 was not the first information complying with Section 154 Cr.P.C., but statement under Section 161 Cr.P.C. and that was barred to be used in any enquiry or trial by virtue of Section 162 Cr.P.C.

¶172

The other circumstance which creates doubt about PWs.2 to 4 being eyewitnesses is non-seizure of clothes of PWs2 to 5:

¶173

According to the prosecution, the victim suffered bleeding injures and soon after witnessing the incident, PW2 tended the victim by taking him on his lap. PW2 states that in that process and helping PW1 in shifting the victim to the hospital, his clothes were stained with blood of the victim, but

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the Investigating Officer did not seize the alleged bloodstained clothes of PW2. If PW2 was eyewitness and his clothes were stained with the blood of the victim that would have been very material circumstance to believe the version of PW2. The Investigating Officer did not seize his clothes nor had any explanation for the same. That creates doubt about PW2 being alleged eyewitness. Same analogy applies to PW.1 and other eyewitnesses.

¶177

Next circumstance which creates doubt about PWs.2 to 4 being eyewitnesses is about the identification of the accused:

¶178

Out of accused Nos.1 to 7, only accused Nos.3 to 6 were residents of Yeleramapura, which was the village of PWs.1 to 5 also. Accused Nos.1, 2 and 7 belong to some other town/village. So far as accused No.1, at least PW2 says that he had seen him in Vijaya Bar and Restaurant on the date of the incident at 8.00 p.m. PWs.1 and 3 to 5 do not even state that they knew accused Nos.1, 2 and 7 prior to the incident. Admittedly, in the complaint, accused Nos.2 and 7 were shown as strangers. On what basis PWs.1 and 3 to 5 identified accused Nos.1, 2 and 7 was not elicited either in their statements before the Magistrate or before the Court during the trial.

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Similarly, in the evidence of PW.2 it was not elicited

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how he identified accused Nos.2 and 7. PWs.1 to 5 in their evidence clearly state that the police summoned them to the police station and showed accused Nos.1 to 4 and 7 as the culprits. Thus, they implicated accused Nos.2 and 7 who were not known to them earlier on police version. No Test Identification parade was conducted for identification of atleast accused Nos.2 and 7 through PWs.1 to 5. Neither in the complaint nor in Exs.P3 to 5 the physical features or clothes worn by accused at the time of incident or identification mark of those accused were stated. Therefore, there is force in the submission of the learned Counsel for the appellants that accused Nos.2 and 7 were implicated in the case by PWs.1 to 5 on the basis of the statement made to them by the police.

¶182

The Hon’ble Supreme Court in similar circumstances regarding the credibility of the alleged eyewitnesses, in para Nos.15 and 16 of the judgment in Chunthuram ’s case referred to supra held as follows:

¶183

Next the unnatural conduct of PW4 will require some scrutiny. The witness Bhagat Ram was known to the deceased and claimed to have seen the assault on Laxman by Chunthuram and another person. But curiously, he did not take any proactive steps in the matter to either report

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to the police or inform any of the family members. Such conduct of the eyewitness is contrary to human nature . In Amar Singh v. State (NCT of Delhi) (2020 SCC Online SC 826), one of us, Krishna Murari,J. made the following pertinent comments on the unreliability of such eyewitness:(SCC para 32)

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“32. The conviction of the appellants rests on the oral testimony of PW-1 who was produced as eyewitness of the murder of the deceased. Both the learned Sessions Judge, as well as High Court have placed reliance on the evidence of PW1 and ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eyewitness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the uncorroborated testimony of the sole eyewitness. Similar view has been taken by a three-judge Bench of this Court in Selveraj V. State of T.N [(1976)4 SCC 343] wherein on an appreciation of evidence the prosecution story was found highly improbable and inconsistent of ordinary course of human nature concurrent findings of guilt recorded by the two Courts below was set aside”.

¶188

The witness here knew the victim, allegedly saw the fatal assault on the victim and yet kept quiet about the incident . If PW4 had the occasion to actually witness the assault, his reaction and conduct does not match up to ordinary reaction of a person who knew the deceased and his family. His testimony therefore deserves to be discarded.

¶189

(Emphasis supplied)

¶190

In the present case also, PWs.2 to 4 claimed that they were the eyewitnesses to the incident. But they did not

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take any proactive steps to file complaint to the police. PW.2 did not take any steps to produce bloodstained clothes before the Investigating Officer. Identification of accused by them was also doubtful. Such facts and circumstances create doubt about they being the eyewitnesses. If really PWs.2 to 4 were the eyewitnesses and PW.5 also came to the scene of offence, at least their statements could have been recorded during the inquest which was allegedly conducted on 02.04.2017 in Koratagere hospital’s mortuary between 2.pm and 4.30 p.m.

¶194

Column No.10 of Ex.P9 the inquest mahazar specifies the statement of the persons who are eligible to give statements about the incident. If PWs.2 to 4 were the eyewitnesses and PWs.1 and 5 came to the scene of offence soon after the incident, their names should have found place in that column. As against that PWs.9 and 14 were cited as the persons who are eligible to give statement about the incident and their statements were recorded. Even in those statements, PWs.2 to 4 were not referred to as eyewitnesses and PW.5 was not referred to as res-gestae witnesses. In column No.13(a) of Ex.P9 which is meant for the names of accused or suspected accused, the names of present accused were not entered. That

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circumstance also creates doubt about PWs.2 to 4 being the eyewitnesses to the incident and the Investigating Officer being sure about PWs.2 to 4 being the eyewitnesses and PW.5 being res-gestae witness to the incident.

¶197

In Gireesan Nair ’s case referred to supra , the Hon’ble Supreme Court in similar circumstance relying on its earlier larger Bench judgment in Ramkishnan Mithanlal Sharma ’s case referred to supra held that identification of the accused in a Court during the trial is meaningless and even the same is inadmissible in the light of Section 162 of Cr.P.C. In para 28 of the said judgment, it was held that if the eyewitnesses questioned during the investigation did not give out the names or identities of the accused participating in the crime, the Investigating Officer had to necessarily conduct a Test Identification Parade. It was held that, such Test Identification Parade has three objects namely to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the crime. Second is, to satisfy the investigating

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authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.

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Third object was to test the witnesses’ memory based on the first impression and enable the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime.

¶201

Para No.18 of the Ramkishnan Mithanlal Sharma ’s

¶202

case referred to supra , the larger Bench of the Hon’ble Supreme Court held that, the process of identification involves a statement by the identifying witness that the particular person identified was concerned in the offence. If an accused was identified at the instance of the police when they were in the police custody, it was held that such identification tantamount to statement made by the witnesses to the police officer during the course of investigation and came within ban of Section 162 of Cr.P.C and same would be inadmissible in the evidence.

¶203

In the present case also PWs.1 to 5 state that the Investigating Officer showed them accused Nos.1 to 4 and 7 in the police station saying that they are the culprits. Therefore, their evidence or identification of those accused was hit by Section 162 of Cr.P.C.

¶204

So far as accused Nos.5 and 6, first of all the evidence of PWs.1 to 5 and 24 about PWs.2 to 4 being the

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eyewitnesses is found doubtful. Secondly, PWs.1 and 5 implicate the accused on the basis of the alleged revelation made by PWs.2 to 4. When the evidence of PWs.2 to 4 itself is not acceptable with regard to the involvement of the accused or themselves being the eyewitnesses to the incident, the evidence of PWs.1 and 5 has no legs to stand.

¶208

The aforesaid facts and circumstances go to show that the conduct/behavior of the alleged witnesses PWs.2 to 4, res-gestae witness PW.5 and the Investigating Officer-PW.24 are unnatural and do not inspire the confidence of the Court to accept that PWs.2 to 4 were the eyewitnesses and their version that accused Nos.1 to 7 were the assailants. Therefore, the judgment in Chunthuram ’s case referred to supra relied on by the learned Counsel for the appellants fully covers the matter to exonerate the accused.

¶209

Reg. Recovery under Section 27 of Evidence Act:

¶210

If the eyewitnesses’ version fails, then what remains is only circumstantial evidence. The circumstances relied on by the prosecution was the recovery of knife MO.8 under Ex.P22 at the instance of accused, the alleged discovery

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of scene of offence at the instance of accused under Ex.P21 and

¶213

seizure of vehicle of the accused under Ex.P20.

¶214

So far as the recovery of motorcycle, the mahazar witnesses PWs.12 and 13 did not support those proceedings. Even according to Ex.P20 it was not the accused who produced the said motorcycle and it was the police constables who produced five accused along with the said motorcycle before the Investigating officer. Therefore, that cannot be called as discovery of any incriminating material. Moreover, that vehicle did not reveal anything about the commission of the crime like bloodstains on the said vehicle or clothes of the deceased. Therefore, that circumstance is irrelevant to connect the accused to the crime.

¶215

So far as the discovery of scene of offence under Ex.P21, according to the Investigating Officer-PW.24, PWs.15 and 16, accused Nos.1 to 4 and 7 volunteered to show the scene of offence and led them to the scene of offence and showed the same and when they were returning from yelerampura to the police station on the way, accused No.2 volunteered to show the place where knife MO.8 was concealed and produced the same from the road side bushes near

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Irkasandra colony and the Investigating Officer seized the same under mahazar Ex.P22.

¶219

No doubt PWs.15 and 16 supported the proceedings under Exs.P21 & P22. To bring the fact under Section 27 of the Indian Evidence Act, that should be a fact discovered in consequence of information received from the accused. If the fact is already known, then it does not amount to discovery. In the present case, in Ex.P14 itself the place of offence was disclosed, that was within the knowledge of PWs.1 to 5 and PW.24-the Investigating Officer even before the arrest of the accused. Therefore, the proceedings under Ex.P21 do not amount to discovery of fact as per Section 27 of the Evidence Act. Therefore, the said circumstance fails.

¶220

So far as recovery of knife MO.8, as pointed out by the learned Counsel for the appellants, when the accused allegedly took the police and panchas to the scene of offence for the mahazar under Ex.P21, they passed through the same place. But at that time, accused No.2 did not reveal anything to the Investigating Officer or PWs.15 and 16. On the way back, he claims to have volunteered to show the place where MO.8 was allegedly recovered under Ex.P22.

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PW.15 in his cross-examination admits that the

¶224

deceased is his mother’s younger brother. The evidence of PW.16 shows that he was employed in Bengaluru. He claims to have come to Yelerampura for some work. Therefore, he was a chance witness. He has admitted in his cross-examination that whenever he comes to the village, he used to mingle with PWs.2, 3 and deceased Hanumantharaju. None of the independent witnesses from the Irkasandra colony were taken as witnesses to the mahazar Ex.P22 and the Investigating Officer has no explanation for that. Therefore, that creates doubt about the seizure of MO.8 at the instance of accused No.2. No fingerprints were collected to show accused No.2 had handled the same. Further the identity of accused No.2 itself was in doubt. Therefore, the said circumstance is of not much use to connect accused No.2 to the crime.

¶225

The trial Court failed to notice the inherent doubt about PWs.2 to 4 being the eyewitnesses to the incident. Though their projection as the eyewitnesses was loud and doubt regarding that was seamlessly subtle, proper/judicious analysis of the evidence would show that PWs.2 to 4 were planted as eyewitnesses. The trial Court missed the said point

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and placed the conviction mainly on the ground that PWs.2 to 4 were the eyewitnesses.

¶228

As rightly pointed out by the learned Counsel for the appellant, the trial Court rejects the evidence of PWs.2 to 4 and other witnesses so far as accused No.4 to 7 and accepts the same evidence to convict accused Nos.1 to 3 which is selfcontradictory.

¶229

Reg. Motive

¶230

The other circumstance relied on by the prosecution is that of motive for the offences. According to the prosecution on 01.04.2017 at 8 p.m. in Vijaya Bar and Restaurant, Irkasandra, accused No.1 had abused PW.2 in foul language and taking side of PW.2, the victim Hanumantharaju had slapped accused No.1. To take revenge for that, the accused committed the crime.

¶231

To substantiate the motive circumstance, the prosecution relied on the evidence of PW.6 Bairappa. He claims to have been the Cashier in the said Bar and witnessed the quarrel between accused No.1 and Hanumantharaju and sent them out of the Bar saying that his Bar owner will admonish him if such galata takes place. PW.6 does not say how he was

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acquainted with accused No.1 and deceased. He says except the face of accused No.1, he does not remember the faces of other members of the group who were making galata.

¶235

At the first instance his name does not appear in

¶236

the complaint. In the complaint it is not even said that some person pacified the quarrel and sent the quarreling parties out of the Bar. Even assuming that his evidence regarding motive circumstance is acceptable, the proof of that circumstance alone is not sufficient to place conviction. Motive is a doubleedged weapon and there is chance of the complainant party implicating the accused due to such rivalry.

¶237

The Hon’ble Supreme Court in Lakhwinder’s case referred to supra held that when the eyewitnesses an unreliable, investigation of the case is not fair and impartial, recoveries and seizures are suspicious, last sentence in FIR was interpolated, Test Identification Parade was not conducted even though the informant and eyewitnesses had not known the assailants on the date of occurrence, the judgment and order of conviction and sentence is liable to be set aside. This matter is also fully covered by the said judgment.

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In view of the aforesaid reasons, the impugned judgment and order of conviction and sentence against the appellants in these cases is unsustainable and liable to be set aside. Hence the following:

¶241

ORDER

¶242

Crl.A.No.563/2018 and Crl.A.No.604/2018 are allowed.

¶243

The impugned judgment and order of conviction and sentence in S.C.No.5031/2017 passed by the IV-Additional District and Sessions judge, Madhugiri so far it relates to appellants/accused Nos.1 to 3 is hereby set aside.

¶244

Appellants/accused Nos.1 to 3 are acquitted of the charge for the offence punishable under Section 302 read with Section 34 of IPC.

¶245

Bail bonds of accused Nos.1 and 3 and their sureties shall stand discharged.

¶246

Accused No.2 shall be set at liberty forthwith, if his detention is not required in any other cases.

¶247

The fine amount deposited, if any, by accused Nos.1 to 3 shall be refunded to them.

¶248

Rest of the judgment and order of the trial Court is maintained.

¶249