Girisha Alias Girish Alias Giri Vs State of Karnataka

STATE OF KARNATAKA BY CIRCLE POLICE INSPECTOR GONIKOPPAL CIRCLE, GONIKOPPAL VIRAJPET TALUK KODAGU DISTRICT - 571 213 REP BY SPP HIGH COURT OF KARNATAKA BENGALURU 560001.

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…RESPONDENT

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(BY SMT. SOWMYA R, HCGP)

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THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 30.11.2017 AND 05.12.2017, RESPECTIVELY, PASSED IN S.C.NO.5013/2017, BY THE II ADDL. DISTRICT & SESSIONS JUDGE, KODAGU-MADIKERI, SITTING AT VIRAJPET, BY ALLOWING THIS APPEAL AND CONSEQUENTLY ACQUIT THE APPELLANT/ACCUSED OF THE CHARGE LEVELLED AGAINST HIM FOR OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC IN THE INTEREST OF JUSTICE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and

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HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is against the Judgment and order dated 30.11.2017 passed in S.C.No.5013/2017 on the file of II Additional District and Sessions Judge, Kodagu- Madikeri sitting at Virajpet (hereinafter referred to as 'trial Court' for short) by which the appellant has been convicted and sentenced to undergo simple imprisonment for life for the offence punishable under Section 302 Indian Penal Code and to pay fine of Rs.5,000/-. In default of payment of fine to undergo further simple imprisonment for six months.

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Case of the prosecution is that appellant-accused and one Mohan-victim, being daily workers used to sleep at Ambedkar Samudaya Bhavana (Ambedkar Community Hall) situated at Gonikoppal. That on 28.01.2017 between 10.30 p.m. to 11.00 p.m., appellant-accused quarrelled with the Mohan-victim demanding money and stabbed him with a knife

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on his abdomen, neck and back causing grievous injuries in the presence of Girish H.A.-PW1, Pawan R. -PW2, Vinay K.P. -PW3 and Aruna-PW4. That appellant-accused went away throwing the knife near the door of the hall. That PW1 to PW4 shifted the injured- Mohan initially to Gonikoppal Hospital and thereafter to Madikeri Government Hospital for treatment and later to K.R Hospital, Mysuru. Since the treatment was not successful injured Mohan succumbed to the injuries on 02.02.2017 at 00.05 hours.

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Upon the complaint lodged by PW1 a case in Crime No.8/2017 was registered initially for the offence punishable under Section 307 of IPC which was later converted to offence punishable under Section 302 of IPC. Appellant-accused was arrested on 30.1.2017 and based on his voluntary statement leading to recovery of knife by the investigation officer in the presence of Panchas and discovery of clothes worn by him at the time of incident and on recording of the statement of the eyewitnesses and by obtaining the Post-mortem report, a charge sheet was filed by the police on 06.03.2017 for the

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offence punishable under Section 302 of IPC. Accused pleaded not guilty and sought for trial.

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Prosecution examined 12 witnesses as PW1 to

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PW12 and marked 27 documents as Exs.P1 to P27 and five material objects as MOs.1 to 5. Accused has denied the incriminating evidence produced by the prosecution against him while recording the statement under Section 313 of Cr.P.C. Accused has not led any defence evidence.

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The trial Court framed the following point for its consideration:

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"1) Whether the prosecution proves beyond all reasonable doubt that on 28-1-2015 between 10.30 P.M and 11.00 P.M within the jurisdiction of Gonikoppal Police Station at Gonikoppal in Ambedkar Samudaya Bhavana (Ambedkar Community Hall), Gonikoppal situated near Mutton and Chicken shop the accused who was sleeping with the CW-2 to 4 and Mohan picked up quarrel with Mohan in respect of money matters and with an intention to kill Mohan he assaulted and stabbed him with knife on his abdomen, neck, back and other parts of the body and caused him grievous injuries and thereafter injured when taking treatment in K.R.Hospital, Mysuru succumbed to injuries on 2-2-2017 and thereby the accused committed murder of Mohan and the accused committed an offence punishable U/s 302 of IPC?

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2) What Order?"

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On appreciation of evidence led by the prosecution,

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the trial Court convicted and sentenced the appellant-accused as noted above. Being aggrieved by the same, the appellant is before this Court.

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Taking this Court through the records learned counsel for the appellant submitted;

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(a) that though the prosecution has based its case on the deposition of PWs.1 to 4 citing them as eye witnesses, the very presence of said witnesses at the time and the place of incident is doubtful. That as per evidence of investigation officer -PW9 there was no electricity connection to Ambedkar Bhavan at the time of alleged incident. As such, PW1 to PW4 witnessing the alleged incident cannot be accepted.

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(b) that the prosecution has failed to establish its case regarding seizure of weapon allegedly used for commission of offence as well as seizure of clothes of the accused and victim linking them to the crime.

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(c) That there are serious contradictions regarding drawing up of spot mahazar at Ex.P2 and seizure mahazar at Ex.P4. That though spot mahazar- Ex.P2 is stated to have been drawn on 30.01.2017 between 8.15 a.m. and 9.00 a.m., there is no mention of any

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blood stains or the weapon or the blood stained clothes being found at the spot. However, as per Ex.P4 which is stated to have been drawn between 11.00 a.m. and 12.00 p.m. on the same day at the same spot, police claimed to have seized a knife purportedly kept below a pillow allegedly used by the accused for commission of crime and also seized blood stained shirt and pant of the accused which are produced and marked as per MOs.1 to 3. Thus, the very recovery of the material objects is highly doubtful.

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(c) That as per the post-mortem report the victim sustained 21 injuries whereas as per the deposition of PW1 to 4 only three injuries were inflicted on the back, abdomen and neck of the victim.

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(d) That the version of PW1 to PW4 are parrot like in that they deposed having seen that appellant throwing the knife near the door of the Ambedkar Bhavan, which according to the prosecution was kept under the pillow. That neither the said pillow nor the mat has been seized and produced during the trial. Thus he submits that there has been no proper appreciation of evidence by the trial Court requiring interference by this Court.

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Per contra learned HCGP justifying the impugned judgment and order submits that the case is based on the direct evidence of the eye witnesses namely PW 1 to PW4 whose presence at the spot was normal and natural. That even if there are any discrepancies in drawing up of mahazars at Ex.P2 and Ex.P4 same would not go to the root of matter. Therefore the prosecution has proved the case beyond reasonable doubt. Hence seeks for dismissal of the appeal.

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Heard both side. Perused the records. The point that arises for consideration is:

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"Whether under the facts and circumstance of the case the trial Court is justified in convicting the appellant-accused under Section 302 of the Indian Penal Code?"

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Deposition of eyewitnesses:

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Girish H.A.-PW1 in his deposition has stated that Pawan- PW2, Vinay-PW3, Aruna-PW4, victim-Mohan and the appellant are all known to him. That all them were working as civic employees, cleaners of toilet at Gonikoppal bus stand. That after finishing their work they used to sleep in Ambedkar Community Hall near Gonikoppal bus stand. That on

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28.01.2017 while he was proceeding towards the Ambedkar

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Community Hall between 10.30 p.m. and 11 p.m., appellantaccused was quarrelling with victim-Mohan with regard to money. PW1 pacified them. At that time appellant picked up the knife which was kept below the pillow and stabbed victimMohan on his neck and back. At that time PW1 himself along with PW2 to PW4 prevented the appellant. The appellant threw the knife at the spot and went away. That due to the injuries victim-Mohan fell on the ground. PW1 along with PW2 to PW4 took injured Mohan in an autorickshaw to Gonikoppal Hospital from there to Madikeri Hospital for treatment. Thereafter, upon the advice of the doctors he was taken to K.R.Hospital, Mysuru. That on 29.01.2017 he lodged complaint as per Ex.P1 before the Gonikoppal Police which was written by someone else. That on 30.01.2017 police came to the place of incident between 8.15 a.m. and 9.00 a.m. and drew spot mahazar as shown by him as per Ex.P2. That victim-Mohan passed away on 02.02.2017.

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Similar is the deposition of PW2 to PW4 as regards their mutual acquaintance and appellant-accused causing injuries to the victim and he being treated in three hospitals.

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In the cross examination PW1 has admitted that on 28.01.2017 after his work he went to his home and slept. That upon a phone call received by him from one Vijay Kumar he came to Ambedkar Community Hall between 10.30 and 11.00 p.m. He has also admitted that said Vijay Kumar was not sleeping in the community hall with PW2 to PW4, appellant and the victim. He has deposed that the appellant-accused after stabbing the victim had thrown the knife near the door of the Community Hall. That when the police came for drawing of spot mahazar, he gave the knife to the police which was fallen near the door.

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PW2 in his cross examination has admitted that he has his house in Gonikoppal and he is residing therein. He denied the suggestion that since he was residing in his house there was no question of him sleeping with others in the Ambedkar community hall. This witness has stated that

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appellant after stabbing the victim went to the police station with the knife.

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PW3 has pleaded ignorance with regard to the name of the victim. He has deposed that the appellant-accused had thrown the knife at the spot.

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PW4 states that appellant-accused went away throwing the knife near the door of the community hall.

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Thus according to PW1, PW3 and PW4, the appellant had thrown the knife near the door of the community hall while according to PW2 appellant went to police station with the knife. PW1 has deposed that he handed over the knife to the police on 30.01.2017 when they had come to draw the spot mahazar at Ex.P2 to which he is also a signatory.

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Spot Mahazar:

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Ex.P2 is the spot mahazar drawn between 8.15 a.m. and 9.00 a.m. on 30.01.2017 which reads as under:

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"¸ÀzÀj ¸ÀÜ¼ÀªÀÅ 2£ÉÃ «¨sÁUÀzÀ°ègÀÄªÀ CA¨ÉÃqÀÌgï PÀªÀÄÆå¤n ºÁ¯ï£À M¼À¨sÁUÀªÁVzÀÄÝ, ¥À²ÑªÀÄzÀ (ºÀj¢zÉ) PÀqÉ EgÀÄªÀ ¨ÁV®Ä ªÀÄÆ®PÀ M¼À ¥ÀæªÉÃ±À ªÀiÁrzÁUÀ ¸ÀzÀj ºÁ¯ï£À M¼ÀUÉ aÃ®UÀ¼ÀÄ ªÀÄvÀÄÛ UÀÄzÀÝ° ºÁUÀÆ EvÀgÉ ¸ÀtÚ¥ÀÄlÖ ªÀ¸ÀÄÛUÀ½zÀÄÝ ¸ÀzÀj PÉÆoÀrAiÀÄÄ 20 Cr CUÀ®zÀ

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30 Cr GzÀÝzÀ PÉÆÃuÉAiÀiÁVgÀÄvÀÛzÉ. ¸ÀzÀj PÉÆÃuÉAiÀÄ ¥ÀÆªÀð ¢QÌ£À PÀqÉUÉ EgÀÄªÀ UÉÆÃqÉAiÀÄ ¥ÀPÀÌzÀ°ègÀÄªÀ £É®zÀ ªÉÄÃ¯É ºÁ¹gÀÄªÀ ¥Áè¹ÖPï ZÁ¥ÉAiÀiÁVzÀÄÝ, ¥ÀÆªÀð ¢QÌ£À PÀqÉUÉ EgÀÄªÀ UÉÆÃqÉ¬ÄAzÀ ¸ÀÄªÀiÁgÀÄ 3 Cr zÀÆgÀzÀ°è PÀÈvÀå £ÀqÉzÀ ¸ÀÜ¼ÀªÁVgÀÄªÀÅzÁV ¦gÁå¢AiÀÄªÀgÀÄ £ÀÄrAiÀÄÄvÁÛgÉ ªÀÄvÀÄÛ ¸ÀzÀj PÉÆoÀrAiÀÄ°è ªÀÄ®UÀ®Ä mÁPÁzÀ ZÁ¥É ªÀÄvÀÄÛ ¢A§ÄUÀ½zÀÄÝ QlQ ªÀÄvÀÄÛ ¨É¼ÀQ£À ªÀåªÀ¸ÉÜ EgÀÄvÀÛzÉ ªÀÄvÀÄÛ «zÀåvï ¸ÀA¥ÀPÀðzÀ ªÀåªÀ¸ÉÜ EgÀÄvÀÛzÉ"

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H.N.Murali-PW5 is a witness to spot mahazar at Ex.P2. In the cross examination, the said witness has stated that he knows PW1, PW2, and Vijay Kumar-PW6. He has further stated that while drawing the spot mahazar they found a mat at the place of the incident. That he is not aware as to the contents of Ex.P2.

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Recovery of knife, shirt and 3/4^th pant (M.Os.1 to 3) -

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According to deposition of investigation officer -PW9 accused was arrested on 30.01.2017 and upon his voluntary disclosure he recovered M.Os.1 to 3. Ex.P4 is the seizure mahazar purportedly drawn while recovering M.Os.1 to 3 on 30.01.2017 between 11.00 a.m. and 12 p.m. at the place of incident. It reads as under:

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H.R.Vijay Kumar -PW6 is a witness to Ex.P4. In his deposition he has stated that on 30.01.2017 at 10.30 a.m., Gonikoppal police called him and CW7-Kumar to the police

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station. Appellant-accused was already present at the police station. They identified the appellant-accused. Thereafter at about 10.45 a.m., appellant-accused voluntarily lead PW6, CW7-Kumar and the police to the place of incident at Ambedkar Bhavan. The Appellant-accused handed over a blood stained knife kept below the pillow which was in a corner of Ambedkar Bhavan. That the appellant handed over blood stained purple colour shirt and a khaki colour 3/4th pant. That the police seized the said knife, shirt and 3/4th pant as per mahazar at Ex.P4 to which he is also signatory. The said items have been marked as MOs.1, 2 and 3 respectively.

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Seizure of clothes of the victim:

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Ex.P5 is the seizure mahazar of blood stained shirt and Nicker (Chaddi) of the victim which reads as under:

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ಸ'ತು�ಅ�ಾನತು�ಮಹಜರು

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ªÉÆÃºÀ£ïgÀªÀgÀ PÀÈvÀå ¸ÀªÀÄAiÀÄzÀ°è zsÀj¹zÀÝ §mÉÖUÀ¼À£ÀÄß F Sನ oÁuÉUÉ vÀA¢zÀÄÝ oÁuÉUÉ ¥ÀAZÁ¬ÄwzÁgÁV ¸ÀÜ½ÃAiÀÄgÁzÀ ²æÃ ºÉZï ¦. ªÀÄºÀzÉÃªÀ ªÀÄvÀÄÛ ²æÃ ºÉZï.J£ï PÀÄªÀiÁgÀ gÀªÀgÀ£ÀÄß §gÀ ªÀiÁrPÉÆAqÀÄ EªÀjUÉ PÉÃ¹£À §UÉÎ ªÀiÁ»wAiÀÄ£ÀÄß w½¹ FUÀ oÁuÉAiÀÄ°è ºÁdjzÀÝ «dAiÀiïgÀªÀgÀÄ PÉÃ¹UÉ ¸ÀA§A¢ü¹zÀAvÉ ºÁdgÀÄ¥Àr¹zÀ §mÉÖAiÀÄ£ÀÄß ªÀÄºÀdgÀÄ ªÀÄÆ®PÀ CªÀiÁ£ÀvÀÄÛ ¥Àr¹PÉÆ¼Àî®Ä ¤ÃªÀÅUÀ¼ÀÆ ºÁdjzÀÄÝ ¥ÀAZÁ¬ÄwzÁgÀgÁV ¸ÀºÀPÀj¸À¨ÉÃPÉAzÀÄ PÉÆÃjPÉÆAqÀ ªÉÄÃgÉ EªÀgÀÄ M¦àzÀÄÝ EªÀjUÉ ¥ÉÆ°Ã¸ï £ÉÆÃn¸À£ÀÄß eÁj ªÀiÁr EªÀgÀ ¸ÀªÀÄPÀëªÀÄ «dAiÀiïgÀªÀjUÉ vÁ£ÀÄ vÀA¢zÀÝ UÁAiÀiÁ¼ÀÄ ªÉÆÃºÀ£ïgÀªÀgÀ §mÉÖAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¸ÀÄªÀAvÉ w½¹zÀ ªÉÄÃgÉ EªÀgÀÄ ¸ÀzÀj §mÉÖAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¹zÀÄÝ ¥ÀAZÀgÀ ¸ÀªÀÄPÀëªÀÄ ¥Àj²Ã°¸À¯ÁV F PÉ¼ÀPÀAqÀAvÉ EgÀÄvÀÛzÉ.

¶110

1] H, ಕಂದು ಬಣmದ [, �ೆ$ೆಗ,ಂದ ಕೂ ದ GzÀÝ Oೋ,ನ )ೌಕ, ಷರಟು. ಈ µÀರDನ�� Aಾಗಷಃ ರಕ�ದ ಕTೆಗ,ದು;, µÀರDನ ಎಡ Wಾಗದ ಕಂಕುಳSಂದ �ೆಳWಾಗದ�� 8 ಇಂಚು ತಳWಾಗದ�� 1 1/2 " ಇಂಚು ಉದ;�ೆ5 ಕH � �ದಂOೆ ಇರುತ � ೆ . ಷರDನ ಎಡ ಭುಜದ�� ಒಂದು ಇಂಚು ಉದ;�ೆ5 ಕತ � �ದಂOೆ ಇರುತ � ೆ . ಷರDನ Aೆ&?ನ ಎಡ Wಾಗದ�� ಒಂದು ಇಂಚು Aೆ&?ನ ಮದ1 Wಾಗದ�� ಒಂದು ಇಂಚು ಉದ; ಕತ � �ದಂತ ಇರುತ � ೆ . ಷರDನ ಬಲ Wಾಗದ�� ಾಲC ಮತು� ಭುಜದ �ೆಳWಾಗದ�� 4 yೆಂD YೕಟC ಕತ � �ದ ತೂತು ಇರುತ � ೆ . ಸದ� ಕತ � �ದ ತೂತದ Wಾಗಗಳ~ ಆ$ೋ�ತನು �ಾhಾಳ~K�ೆ )ಾಕುK&ಂದ ಇ��ಾಗ ಉಂ=ಾ�ರುವG�ಾ� ಪಂ)ಾbH�ಾರರು ಮತು� yಾ•�ಾರರು ನು ಯುOಾ�$ೆ.

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2] ಕಂದು ಬಣmದ ಚ a yೊಂಟದ�� ಇTೆ�>€ ಅಳವ ��ೆ. ಬಲ ಮತು� ಎಡWಾಗದ�� ಒಂ�ೊಂದು Rೇಬುಗ,ದು; Rೇ[ನ Qೇರದ�� yೊಂಟSಂದ ತಳWಾಗದವ$ೆ�ೆ �ೆಂಪG ಮತು� [, ಪD>ಗ,ರುತ � ೆ . ಸದ� ಚ aಯ�� ರಕ�ದ ಕTೆಗ,ರುತ � ೆ .

¶115

ಷರಟು ಮತು� ಚ aಗಳ~ ಒಣ�ದು; ಇವGಗಳನು? ಮುಂSನಕIಮ�ಾ5�ಪIOೆ1ೕಕ ¥ÀgÉÆÃPÀëªÁV ©½ ಬ=ೆ>bಂದ _ಾ1€ �ಾ +ೊ�ದು ಇವGಗ,�ೆ ಅರಗು +ಾ^ M ಎಂಬ �ೕಲು �ಾ ಪಂ)ಾbHzÁgÀgÀ ªÀÄvÀÄÛ ¸ÀévÀÄÛ ºÁdgÀÄ ¥Àr¹zÀ ¸Á•�ಾರರ �ಾದ� ಸe ಪ2ೆದ oೕDಯನು? ಅಂD� ��ೕs yಾ'qೕನ�ೆ5 ಪ2ೆದು�ೊಳ‚Tಾbತು ".

¶116

H.R.Vijay Kumar -PW6, who is a witness to Ex.P4 is also witness to Ex.P5. The said witness has deposed that victim-Mohan was being treated at K.R.Hospital, Mysuru and when he went to see victim-Mohan he was given blood stained clothes of Mohan to be handed over to the police at Gonikoppal, which he did at about 5.30 p.m. That when he handed over the said dresses the police seized the same in the presence of CW6- Mahadeva and CW7-Kumar as per Exhibit P5.

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That he learnt about the death of Mohan on 02.02.2017 and when he went to mortuary Gonikoppal police and relatives were already present. The police drew the inquest report in his presence as per Ex.P6 and he has affixed his signature to the same.

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In the cross examination the said witness has deposed that some woman working in K.R.Hospital handed over the clothes to him. That he went to K.R.Hospital at 1 p.m. on 30.01.2017 on a motorcycle. He was given clothes at 1.30 p.m. He had brought the said clothes from the hospital kept at his home and thereafter handed over to the police station as he was tired of travelling. The said witness has deposed that the knife was kept below the pillow. There were two pillows. The said knife was handed over by the accused. That the police have not seized the pillows. He has pleaded ignorance regarding drawing up of mahazar of the clothes brought by him on his motorcycle from K.R.Hospital.

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Medical and Scientific Evidence:

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PW10 -Dr. Kumar MP has spoken about he conducting the post-mortem of the dead body of the deceased on 02.02.2017. He has given description of 21 stab injuries found on the dead body of the deceased, which are as under:

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1.Stapled wound measuring 20 cm vertically placed along the midline of the abdomen. On removal of staples and reflection shows 500 ml of reddish stained peritoneal fluid, Mesentery contused at

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places and idem sutured measuring 8 cm., Lower border of pancreas sutured measuring 17 c.m.

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2. Incised wound measuring 4 cm X 20 bone deep present over the top of the head, obliquely place edges are clean cut.

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3 Sutured wound measuring 1 cm, obliquely present over the left side of neck at its upper one third.

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4. sutured wound, measuring 4 cm obliquely placed, over the left side of neck at its lower one third.

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5. Abrasion measuring 4 X 1 cm, present over the right side of neck at its lower half.

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6. Sutured wound measuring 4 cm obliquely present over the left side of front of chest at its upper half.

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7. Sutured wound measuring 1 cm obliquely placed over the left side of front of chest at its lower part of upper half.

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8. Suture wound measuring 2 cm obliquely placed over the right side of chest at its upper half.

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9. Abrasion measuring 1X 0.5 cm present over the right side of front of chest at its lower half.

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10. Sutured wound measuring 3.5 cm obliquely placed over the left side of the abdomen at its upper half.

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11. Suture wound measuring 3 cm. obliquely present over the right scapular region.

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12. Suture wound measuring 3 cm present over the left scapular area obliquely placed.

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13. Suture wound measuring 1 cm obliquely placed over the left side of front of abdomen at its upper one third.

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14. Suture wound measuring 1 cm obliquely placed over the left side of front of abdomen at its middle one third.

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15. Two suture wounds measuring 1.5 cm, and 1 cm, present over the right side of front of abdomen at middle one third.

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16. Incised wound measuring 1X 0.3 cmX Muscle deep present over the outer aspect of right thigh at its upper one third.

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17. Contusion measuring 3X2 cm present over the front of left thigh at its upper one third.

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18. Contusion measuring 1X0.5 present over the front of right thigh at its upper one third.

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19. Contusion measuring 0.5 X0.2 cm present over the front of right thigh at its middle one third.

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20. Abrasion measuring 1X1 cm present over the front of left knee.

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21. Incised wound measuring 1X 0.5 cm X muscle deep present over the third web space of left hand, obliquely placed.

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Ex.P20 is the opinion issued by PW10 after examination of weapon. As per the said certificate, the weapon presented for examination is a single edged knife with reddish

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brown stains appears to have applied to one side of the blade. The total length of the knife is 42.5 cm. Length of blade 27 cm with maximum width of 3.5 cm, one edge is sharp ending to a pointed tip, other edge is blunt with rough margin with

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thickness of 0.4 cm. Metal hilt measures 1.5 cm in length and circumference of 7.5 cm. Wooden handle measures 14 cm with maximum circumference of 12.5 cm. The certificate suggests that injuries No.2 to 4, 6 to 8, 10 to 16 and 21 mentioned in post-mortem report could be caused by weapon similar to one examined and are fatal in nature.

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PW10 has opined that the death was due to the complication of multiple stab wounds sustained to the chest and abdomen. In the cross examination the said witness has stated that he has not given any definite opinion whether such injuries mentioned in the post-mortem report could be caused by the weapon which was produced before him for examination.

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PW7-Nanaiah K.T., the Police Constable, who has spoken about CW20 handing over 9 seized items to be given to the RFSL at Mysuru for verification and also regarding the receipt as per Ex.P7. The said witness in the cross examination has stated that M.O.s 1 to 9 were taken by him on 28.02.2017 to the RFSL. That said 9 items were in the office of Circle Inspector between 25.02.2017 to 28.02.2017.

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As per Ex.P7, which is an acknowledgment issued by

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RFSL on 28.02.2017, following 9 items are mentioned:

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1 1/4 imches Length Knife

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Nerale Coloure Full Arm Shirt

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Whight Lined Khaki 1/2 Pant

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Light Merown Coloured Full Arm Whighte Lined Shirt

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Light Merown Coloured Nicker. It was in blood stai

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Stomach and its contents and portion of small intest

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Portion of Liver and Kidney

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Blood

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Saturated solution of sodium chloride

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Ex.P26 is the certificate of examination issued by RFSL in respect of 5 items namely knife, shirt, pant, shirt and nicker/chaddi. The opinion in the said document states that blood stains were detected in all item Nos.1 to 5 with human blood of `A' group.

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Evidence of Investigation Officer:

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Govindaraju M.V.-PW 9 is the Investigation Officer, who was working as PSI, Gonikappal Police Station between January 2016 to April 2017. In his deposition he has spoken about he receiving the complaint at 8.00 p.m. on 29.01.2017

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from PW1. He has also spoken about he visiting the spot on 30.01.2017 at Ambedkar Community Hall, in the presence of

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PW1, CW5, CW6 and drawing up of spot mahazar between 8.45 a.m. to 9.00 a.m. as per Ex.P2 and preparing the rough sketch as per Ex.P10. He has spoken about arresting accused on the same day and about appellant-accused having given the voluntary statement regarding he stabbing Mohan on 28.01.2017 and also volunteering to show the place where he had kept the knife and the dress which he had worn at the time of committing the offence as per Ex.P11. He has further spoken about appellant leading him, H.R.Vijay Kumar-PW6 and H.N.Kumar CW7 to the place of incident and handing over the knife hidden below the pillow. He has also spoken about appellant handing over his shirt and 3 /4th pant and the same being seized as per Ex.P4-seizure mahazar. He has further spoken about Vijay Kumar-PW6 and his staff having brought the dresses worn by victim-Mohan which was seized as per Ex.P5. He has also spoken about he handing over the investigation to CW20. He has spoken about taking the photographs as per Exs.P12, 13 and 14 while drawing up of the seizure mahazars.

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During the cross examination the said witness has

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deposed that he learnt about injured Mohan being taken to the Gonikoppal hospital and from their to Madikeri Hospital. That he has not enquired with the doctors at Madikeri Hospital. That he has not received any MLC intimation from the Madikeri District Hospital. He is not aware as to how many days Mohan was being treated at Madikeri Hospital. That there is a Maestri to look after Gonikoppal Community Hall. That there is a member to the Committee of said organization. That he had no difficulty in securing committee members for drawing up of mahazar. That there are houses and shops around the community hall. That he did not secure any of the surrounding shop keepers for conducting of mahazar. He has admitted that Ambedkar Bhavan does not have electricity supply. He has further deposed that the only source of light from the road side electricity lamp post passing through the window inside the Ambedkar Bhavan and the candle light. He has admitted that in the mahazar there is no mention with regard to type and nature of the light. He has stated that he is not able to recollect who had drafted the complaint at Ex.P1 brought by PW1. He has not enquired the scribe of complaint-Ex.P1. He has also

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admitted that he has not collected any document to show that PW1 to PW4, appellant-accused and the victim were the civic employees. He has admitted that he does not remember the name of the photographer who had taken photographs at Ex.P12 to P17 and that he has not produced the details of the digital camera from which the said photographs were taken. He does not even remember the name of the said camera.

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Contradictions in the case of prosecution:

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From the close scrutiny of the aforesaid evidence of

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the prosecution following aspects arise for consideration;

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(a) Incident has taken place on 28.01.2017 between 10.30 p.m. and 11 p.m. Complaint has been filed by PW1 drafted by someone on 29.01.2017 at 8.00 pm. Distance between the place of the incident and the police station is just about a kilometer.

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(b) However, when the police went to the spot on 30.01.2017 with two panchas and drawn the spot mahazar with specific details between 8.15 a.m. and 9.00 a.m., they did not find the blood stained clothes and the blood stained knife allegedly used for commission of offence, which investigation officer recovered while drawing seizure mahazar Ex.P4

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between 11.00 a.m., and 12.00 p.m., from the same spot on the same day.

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(c) In the complaint at Ex.P1 it is stated that PW1 to PW4 were present at the time of the incident and that they snatched the knife from the hand of the appellantaccused and that the said knife has been kept inside the Ambedkar Community Hall.

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(d) As per contents of complaint Ex.P1, PW1 to PW4 snatched the knife from the hands of the appellant. However according to the deposition of PW1, PW3 and PW4, the appellant-accused had thrown the knife near the door of the community hall while according to PW2 appellant went to police station holding the knife .

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(e) That as per spot mahazar at Ex.P2 the place of incident is a room measuring 30 ft. X 20 ft. in which some bags, spades and some other items were kept. That there was a plastic mat on the floor with the pillow thereon.

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(f) PW5 witness to the spot mahazar Ex.P2 pleads ignorance to the contents of the same. He states that he found a mat on the floor. No reference to the pillow or the knife.

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(g) Admittedly there is no electricity supply to the Ambedkar community hall where the alleged incident has taken place. No responsible person incharge of the said community hall has been examined as to the basis on which the said persons were allowed to stay/sleep.

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(h) Nothing on record to support the case of the prosecution that PW1 to PW4, appellant-accused and the deceased were infact the civic employees.

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(i) Though the deceased was initially treated at Gonikoppal hospital and from there at Madikeri hospital admittedly no MLC report has been received by the police.

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(j) No treating doctors either from Gonikoppal hospital or Madikeri Hospital have been examined. No medical records from these hospitals have been produced.

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(k) Vijay Kumar son of Ranga -PW6 is the witness to seizure mahazar at Ex.P4 under which knife and dress worn by the appellant-accused marked as MOs.1 to 3 were seized between 11.00 a.m. and 12 p.m. on 30.01.2017.

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(l) Very same witness PW6 brings the clothes worn by the victim given by some woman working at K R Hospital at 1.00 p.m. to be handed over to the Gonikoppal police on 30.01.2017 which he did at 5.30 pm which were seized under Ex.P5 drawn between 5.30 p.m. and 6 p.m.

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(m) PW6 -Vijay Kumar is witness to seizure mahazar Ex.P4 drawn between 11 a.m. and 12 p.m. on 30.01.2017. He is witness to seizure mahazar-Ex.P5 drawn between 5.30 p.m. and 6 p.m. He is also witness to inquest mahazar drawn at Ex.P6. It is the very same witness who carries purported blood stain clothes from K.R.Hospital allegedly given to him at 1 p.m. and

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keeps them at home and thereafter handed over the same to the police at Gonikoppal at 5.30 p.m.

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(n) PW1- Girish in his deposition has stated that he went to the spot as one Vijay Kumar had asked him to come and the said Vijay Kumar was not sleeping in the Ambedkar Community Hall with others. This statement is not corroborated by any other witnesses. Complaint at Ex P1 does not refer to Vijay Kumar.

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(o) PW 1 has deposed that he handed over the knife to the police on 30.01.2017 when they came to draw the spot mahazar as per Ex.P2 to which he is also a signatory. While according to the PW6 the bloodstained knife was recovered upon the information given by the appellant-accused that it was kept below the pillow.

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(p) As per post-mortem report there were 21 stab injuries on the body of the victim. According to PW10, out of said 21 injuries, injuries No.2 to 4, 6 to 8, 10 to 16 and 21 could be caused by the weapon similar to the one examined by him. He has further deposed that he has not given his definite opinion whether such injuries mentioned in post-mortem report could be caused by the weapon similar to the one examined by him.

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(q) The seized articles were sent to RFSL on 28.2.2017 as per Ex.P27, which as per the report at ExP26 were stained with human `A' Blood Group.

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(r) Nothing on record to indicate the blood group of the victim.

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The aforesaid inherent contradictions in the case of the prosecution raise serious doubt with regard to very presence of PW1 to PW4 at the place of incident.

¶224

Deposition of PW6 runs contrary to deposition of PW1 as regards the recovery of knife the M.O.1. According to PW1 he himself picked it up and handed over to the police while drawing spot mahazar Ex.P2 from the spot as was thrown by the appellant-accused after stabbing. While according to PW6 police recovered the blood stained knife kept under the pillow upon the information given by the appellant-accused.

¶225

The aforesaid contradictory versions of the witnesses gives raise to a question as to whether knife -M.O.1 was lying at the door of the community hall till it was handed over by PW1 to the police on 30.01.2017 or it was hidden under the pillow till it was discovered pursuant to the voluntary information given by the appellant-accused and seized as per Ex.P4.

¶226

Contents of complaint at Ex.P1 indicate that PW1 to PW4 snatched the knife and the same had been kept inside the

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community hall. Which version runs contrary to the deposition of PW1 to PW4 and PW6 and PW9.

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As per the post-mortem report injury No.1 is a stapled wound measuring 20 cm vertically placed along midline of the abdomen. As per Ex.20 the said injury could not been caused by weapon M.O.1. This injury appears to be severe. No treating doctor has been examined in this regard. No link between the weapon seized and the said injury is proved by the prosecution.

¶231

No witness has been examined who is incharge of the community hall. This further gives raise to a serious question as to whether the place of incident was accessible to general public. The prosecution is also not clear as to events that could have transpired between 28.01.2017 and 30.01.2017. No trace of blood is found at the spot as per Ex.P2. No mat and pillows have been recovered and produced as material objects.

¶232

Bloodstained clothes of the victim were carried and handed over to the police by PW6. All the material objects were sent for scientific verification on 28.02.2017 which is after

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26 days from the date of death of the deceased. No details as

¶237

to how and where these materials were kept and preserved. The manner in which seized clothes of the deceased have been handed over to PW6 at K.R.Hospital, he admittedly carrying the same on a motorcycle, keeping them at his home and thereafter handing over at police station, gives raise to questions about lack of seriousness of investigation in seizing, preserving and sending the material objects for scientific verification. Eventually also casts doubt about the certificate of examination produced at Ex.P26.

¶238

The Apex Court in the case of Krishnegowda and others Vs State of Karnataka reported in (2017) 13 SCC 98 dealing with a case involving contradiction, inconsistencies, exaggerations and embellishments in the evidence of the witnesses at paragraph 27 of the Judgment has held that:

¶239

"27. Generally in criminal cases, discrepancies in evidence of witnesses is bound to happen because there could be considerable gap between the date of incident and time of deposing evidence before the Court. But if such contradiction creates such serious doubt in the mind of the Court about

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the truthfulness of witnesses and it appears to the Court that there is clear improvement, then it is not safe to rely on such evidence ."

¶244

(Emphasis supplied)

¶245

In the instant case the deposition of PW1 to PW4 being mutually inconsistent runs contrary to evidence of PW6 and PW9. Further the medical evidence not being clear with regard to injuries being capable of inflicted by use of knife M.O.1 more particularly injury No.1 and in the absence of prosecution clearly establishing the said aspect of the matter it is not safe to conclude that the injuries could have been caused by knife M.O.1 alone.

¶246

As already noted since the link between blood stained clothes of the deceased and the blood stain allegedly found on the knife and the clothes of the accused not being established fully and clearly, it is not safe to conclude that the prosecution has established the guilt of the appellant-accused in the matter.

¶247

For the aforesaid reasons and analysis this Court is of the considered view that the prosecution has failed to prove the guilt of the appellant-accused beyond reasonable doubt. Trial

¶248

31 - NC: 2025:KHC:31548-DB CRL.A No.1528/2018

¶249

HC-KAR

¶250

Court has failed to appreciate the evidence judiciously and arrived at just conclusion. Therefore impugned Judgment and order is liable to be reversed. Hence the following:

¶251

ORDER

¶252

(i) The appeal is allowed.

¶253

(ii) The impugned judgment and order of conviction and

¶254

sentence passed by the II Addl. District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet in S.C.No.5013/2017 is hereby set aside.

¶255

(iii) Appellant/accused is acquitted of the charge for the offence punishable under Section 302 of IPC. He shall be set at liberty forthwith, if his detention is not required in any other case.

¶256

(iv) Fine amount deposited, if any, by the accused shall be refunded to him.

¶257

(v) The order of trial Court with regard to disposal of the properties is maintained.

¶258