IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST 2019
PRESENT
THE HON’BLE MR. JUSTICE G. NARENDAR
AND
THE HON’BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.999/2016 BETWEEN: SIDDARAJU SON OF SIDDEGOWDA AGED ABOUT 53 YEARS RESIDING AT ANJANEYA BLOCK K.R. NAGAR MYSURU DISTRICT-571 602. …APPELLANT
(BY SRI. P.D. SUBRAMANYA, ADV.) AND: THE STATE OF KARNATAKA BY STATION HOUSE OFFICER K.R. NAGAR POLICE STATION K.R. NAGAR-571 602. MYSURU DISTRICT. NOW REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BUILDING BENGALURU-560 001. …RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)
2
THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 25.11.2015 AND SENTENCE DATED 02.02.2016 PASSED BY THE PRL. DIST. AND S.J., MYSURU IN S.C.NO.205/2012 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, H.P. SANDESH J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment dated
25.11.2015 passed in S.C.No.205 of 2012 on the file of
Principal District and Sessions Judge at Mysuru questioning
the conviction passed against the accused for the offence
punishable under Section 302 of Indian Penal Code and
sentencing him to undergo life imprisonment and to pay fine
of Rs.50,000/-. In default of payment of fine, he shall
undergo imprisonment for a further period of six months.
2. The brief facts of the case are, that on 24.02.2012
at 7.15 p.m., in front of the Sunanda Bar, which is situate in
New Bazaar Road, K.R.Nagar, when the deceased Murthy
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came on a TVS Scooty bearing No.KA-45 L 0172, the accused
who was harbouring illwill against him in order to commit the
murder inflicted injuries with a machete. As a result of the
assault, the said Murthy succumbed to the injuries. The case
has been registered against the accused for the offence
punishable under Section 302 of Indian Penal Code. Since he
did not plead guilty, the trial was conducted. The prosecution
in order to prove the charges examined PWs.1 to 37, relied
upon Ex.P1 to P46, marked documents Ex.C1 to C2(a) and
also M.Os.1 to 16. The statement of the accused under
Section 313 of Code of Criminal Procedure was recorded
wherein he has denied the same. The accused did not choose
to lead any evidence in defence.
3. The Court below considering the oral and
documentary evidence and after hearing the arguments of the
respective counsels concluded that the prosecution has
proved the charge beyond doubt and convicted the accused.
4
Being aggrieved by the judgment of conviction, the accused
has preferred the present appeal before this Court.
4. The grounds urged in the appeal memorandum is
that the Court below has committed an error in appreciating
the evidence. It is contended that many of the prosecution
witnesses have turned hostile which has resulted in the
witnesses giving a go-bye to the case of the prosecution.
PWs.7 to 13 have not supported the case of the prosecution
and the entire case is based on circumstantial evidence like,
recovery of weapon used to commit the offence and the same
does not connect to the other link in the chain of incidents to
establish the charge of murder by the appellant herein. The
Court below failed to consider that the evidence of P.Ws.1 to 3
and also P.W.15 is inadmissible. PWs.2 and 6 have also
turned hostile. Learned Sessions Judge failed to consider the
technicalities and the important requirement of proof of a
serious offence of this nature while convicting the accused for
5
the offence punishable under Section 302 of Indian Penal
Code.
5. Learned counsel for the appellant in his
arguments vehemently contended that the learned trial Judge
failed to consider both oral and documentary evidence in their
proper perspective. The Court below relied on the evidence of
PWs.1, 4, 15, 25 and 37 of the prosecution witnesses. That
P.W.1 has turned hostile and his evidence is not helpful to
the case of the prosecution. The evidence of P.W.4 also
suffers from material contradictions. That P.W.15 also did
not support the case of the prosecution in its entirety and
that the recovery witnesses, PWs.21 and 25, have also not
supported the case of the prosecution. The evidence of these
witnesses ought not to have inspired confidence in the Court,
to convict the accused. The Court below committed an error
in relying upon the evidence of P.W.37 Investigating Officer
who conducted the investigation and also the evidence of
Doctor P.W.26 to convict the accused. Hence the judgment of
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the trial Court calls for interference at the hands of this
Court.
6. Per contra, learned counsel for the State in his
arguments vehemently contended that though some of the
witnesses have turned hostile, the learned trial Judge
considering the evidence available on record and also relying
upon the decision of the Apex Court, holding that the
evidence of hostile witnesses cannot be discarded in toto and
that the Court has to appreciate the answers elicited in the
cross examination, of witnesses who have turned hostile in
order to find out the truth. The learned trial Judge has
ferreted the truth and hence convicted the accused and that
there are no extenuating grounds to interfere with the
judgment of the trial Court.
7. Having heard the learned counsel for the parties,
the point that arise for our consideration is as to,
“ Whether the Court below has committed an error
in convicting the accused for the offence
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punishable under Section 302 of Indian Penal
Code ?”
We proceed to consider the material available on record. The
main contention of the learned counsel for the appellant is
that the case rests upon the circumstantial evidence since the
eye witnesses have turned hostile and recovery is also not
proved, the entire case of the prosecution is doubtful and it
calls for interference.
8. Having considered the contentions of both the
counsel, this Court has to reappreciate the evidence available
on record. A perusal of the evidence tendered on behalf of the
prosecution no doubt indicate that some of the witnesses
have turned hostile and did not support the case of the
prosecution including the complainant who has been
examined as P.W.1. The prosecution relied upon the evidence
of PWs.1, 4, 14, 15, 21, 25, 26 and 37.
9. P.W.1 who is the complainant, in his evidence
states that the incident has taken place in front of his bar.
8
He came out from the bar after hearing the screaming sound.
In the meanwhile, some of them had closed the shutters and
hence he could not come out. He did not witness the
incident. He states that he came to know of the death at
11.00 p.m. in the night. He admits that the Police obtained
the complaint in terms of Ex.P1. He identifies his signature.
He was treated as hostile. In the cross examination he
admits that he was working as a Cashier and further admits
that Ex.P1 is in his hand writing. He claims that the contents
are false. He further admits that when he wrote the
complaint, at that time itself he was aware that the same was
false. He states that the Police threatened him to write the
same or otherwise they will remove his clothes and keep him
in custody. Hence, he wrote the complaint. In the cross
examination by learned Public Prosecutor, it is elicited that
lodging a complaint against a person alleging that he has
committed murder that too knowing fully well that the same
is false, is an offence. He admits that the Police constable
obtained his complaint and he does not know his name. He
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did not lodge or file any complaint to any higher Officer about
the act of forcibly obtaining a false complaint and there was
no difficulty for him to do so. He further admits that he did
not inform the same to anybody about obtaining of false
complaint and there was no difficulty to inform the same to
his colleagues. It is suggested that the people who gathered
took the injured to the hospital and the doctor declared that
Murthy was ‘brought dead’. The said suggestion was denied.
It is also suggested that in order to help the accused, he is
giving false evidence, the same is denied. He admits that he
is not having the habit of making the signature on the blank
paper. He further admits that for the first time he is telling
before the Court that they obtained his signature on the
blank paper and also did not inform the same to anyone.
10. PWs.2 and 3 turned hostile and nothing is elicited
in their cross examination except the statement of P.W.3 that
the cashier informed the Police about the incident. P.W.4,
another eye witness is working in the TV-9 channel. In his
10
evidence he states that he came to his friend’s shop which is
located near the place of incident. He states that a person
came in a scooty and the person who was in the spot made
galata with him. The person who was standing assaulted with
machete on the person who came in scooty and as a result he
sustained injuries. He was having mobile and he recorded
the same in his mobile with the help of street light. His friend
who has been examined as P.W.15 told that the injured is
Murthy and the person who assaulted is Siddaraju i.e.,
accused and the same was telecast on TV9 on the next day.
The Police have collected the visual footage of the said scene
which was aired on the TV9 channel. When the Police asked
to give mobile, he told that he cannot give mobile. He was
subjected to cross examination. In the cross examination, he
states that since footage which has been recorded, can be
transferred to other mobile and the same cannot be changed,
he made the same as CD and gave it to TV9 office which was
telecast on the next day between 12.00 noon to 1.00 p.m. He
was questioned as to why he did not inform the same to the
11
Police for which he answered that he was not having phone
number of the Police.
11. PWs.6, 7, 8, 9, 10, 11, 12 and 13 have turned
hostile. P.W.14 is the wife of the deceased. In her evidence,
she states that the accused and the deceased are friends.
Further, she had filed suit claiming share in her father’s
property and the same was settled for Rs.11,00,000/-. Out of
it, the accused had demanded an amount of Rs.1,00,000/- to
perform the marriage of his daughter. The deceased i.e., her
husband gave only Rs.45,000/-. Hence, the accused
quarreled with her husband. In the cross examination, it is
elicited that her husband was doing the business of hawker.
There are no documents for having paid 45,000/- to the
accused.
12. P.W.15 is the friend of P.W.4. He states that he did
not witness the committing of murder but he has seen the
accused who was proceeding with machete and thereafter
came to know that the victim was Murthy. He was having
12
acquaintance with both deceased and accused. The accused
went towards the radio maidana. Further, he says that P.W.4
recorded the incident in his mobile and the same was telecast
on TV9 channel on the next day. He also says that accused
by holding machete in his hand was alluring everyone to
come near him so that he can take away their life. It is also
his evidence that Police called him to station when the
accused was arrested and recorded his voluntary statement.
The Police told him to photograph the act of the accused at
the time of recovery of the machete. Hence. he also
accompanied them. Accused took them to a lane and
produced machete removing the same from the bush. He
videographed the same and also took the photos. He
identifies his signature on Ex.P15 mahazar and also identifies
photos at Exhs.P17 to 20. He has given CD and the same
was seized by drawing mahazar Ex.P21. In his further
evidence he says that he attested the signature on Ex.P21.
He identifies M.O.5 but he states that he cannot positively say
that the very same machete was seized. He was treated partly
13
hostile regarding M.O.5. A suggestion was made that M.O.5
was seized when the accused produced the same. He says
that he cannot say that the same machete was seized. It is
suggested that he witnessed the incident of assault. He says
that he witnessed the incident but he cannot tell who
assaulted the deceased since he did not notice properly. He
was subjected to cross examination wherein he admits that
he was not having any acquaintance with the accused.
13. P.W.16 is the mahazar witness. He did not
support the case of the prosecution in his evidence. However,
in the cross examination, he admits that P.W.11 produced 4
photos and 2 CDs in his possession, when the Police called
him to Police Station, Pws.17, 18, 19 and 20 have not
supported the case of the prosecution.
14. P.W.21 is the mahazar witness. He states that the
Police have called him to Police Station and he was taken to a
lane on Bazar Road and along with him Rizwan, Prabhakar
and accused persons were also there. Accused produced
14
machu which was lying and the same was seized by drawing
the mahazar. He identifies his signature at Ex.P27a. He
states that he does not know about what the Police made with
regard to clothes of the accused. However, he identifies his
signature in Ex.P28(a). This witness has turned hostile
partly. In the cross examination, he admits that he was not
having the habit of signing on the blank paper. He is also
aware of the fact that making of the signature on the blank
paper is a mistake. He further admits that he did not inform
anyone that he has signed the blank paper. M.O.5 which was
sealed was shown and he identifies his signature on the
same. He identifies the signature on the slips. It is suggested
that the same was seized in the said lane and he has signed
the same. He states that he does not remember the same.
15. PWs.22, 23 and 24 have turned hostile. P.W.25 is
another recovery witness. In his evidence, he states that the
Police called him and took his signature on the blank paper.
However, he identifies his signature on Ex.P27 and 28.
15
Accused was not there when his signature was taken. He was
treated as hostile witness. In the cross examination, he
admits that he is not having the habit of signing the blank
paper. He claims that he was not aware at that time not to
sign on blank paper. However, he admits that if anyone asks
him to sign the same, he will not do so. He claims that he
told the Police that he will not sign the blank papers. He
admits that he did not inform anybody that his signature was
taken forcibly. For the first time, he was telling the same
before the Court. It is suggested that he was called to Police
Station on 25.02.2012 and accused led the witness and Police
near the lane and showed the same, but he denied the
suggestion.
16. P.W.26 is the doctor who conducted the Post
mortem. In his evidence, he states that he found 11 injuries
on the dead body and further he says that the death was due
to shock as a result of hemorrhage on account of severe
injuries inflicted on the deceased. He identifies the signature
16
at Ex.P31a. On 09.04.2012, he has received the articles from
the Investigating Officer to give opinion and on examination,
he gave the report in terms of Ex.P32 showing that the said
weapon could cause the injuries mentioned in Ex.P31. In the
cross examination, it is suggested that he has made entries in
Ex.P31 regarding the name of the dead person and the time of
post mortem examination was changed at the behest of the
Police, the same was denied. He says that Rigor Mortis set in
at about 2 hours after death and fully spreads around after 6
to 8 hours.
17. P.W.27 has turned hostile. P.W.28 is the Engineer
who prepared the sketch Ex.P34. P.W.29 is the Engineer who
deposed with regard to the supply of Electricity at the time of
incident. P.W.30 did not support the case of the prosecution.
P.W.31 is the Police Constable who received information of
the incident and immediately he rushed to the spot and took
the injured to the hospital where the doctor declared as
‘brought dead’. P.W.32 has collected the CD and identifies
17
his signature at Ex.P22(c). P.W.33 is the Assistant Sub-
Inspector who received the complaint, registered the case and
issued FIR Ex.P37. P.W.34 conducted the spot mahazar,
seized the articles at the spot in terms of Ex.P2 and identifies
M.Os.6 to 10. In the cross examination, it is elicited that the
electric light is at the distance of 40 to 50 ft and the same are
mercury bulbs. He states that he also recorded the statement
of witnesses. P.W.36 is the employee of wine store and he
has turned hostile.
18. P.W.37 is the Investigating Officer, who conducted
further investigation after P.W.33 handed over the charge. In
his evidence, he states that on receiving credible information,
he went to the spot at 9.30 p.m. P.W.1 showed the spot and
immediately, he called P.Ws.2, 20 and 23 and in their
presence, he conducted spot mahazar from 10.00 p.m. to
11.15 p.m. and drawn the same in terms of Ex.P2 and seized
the articles which were there at the spot. He also prepared
the sketch in terms of Ex.P40 and identified M.Os.2 to 4, 14,
18
15 and 16. Thereafter, he conducted the inquest on the next
day i.e., 25.02.2012 in terms of Ex.P24 and recorded the
statement of P.Ws.2, 3, 31 and 33. P.W.13, produced the
clothes belonging to the deceased after the post mortem and
seized the same in the presence of P.Ws.23 and 30 and drawn
the mahazar in terms of Ex.P30.
19. It is his evidence that on the same day at about
5.00 p.m., the accused appeared before him and he arrested
him and recorded the voluntary statement of the accused in
terms of Ex.P41. The accused in his voluntary statement has
stated that, he will produce the weapon used to commit the
offence. He further states that at the time of recording
voluntary statement of the accused, Rizwan, Kumar and
Prabhakar were also present and the same was video graphed
and thereafter, the accused took the panchas i.e., C.W.25,
P.Ws.21 and 25 and at around 8.15 p.m, he took us to the
lane near the house of Lakshminarayana Shetty and
produced M.O.5 which was blood stained and the same was
seized by drawing mahazar in terms of Ex.P27 which is in the
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hand writing of P.W.35. The recovery is also video graphed
and he has prepared the sketch in terms of Ex.P42. It is also
his evidence that on the same day between 9.15 p.m. to 9.45
p.m., he seized the shirt, pant and plastic chappal of the
accused in the presence of Rizwan, Kumar and Prabhakar by
drawing mahazar Ex.P28. He also states that in the seized
articles i.e., pant and chappal, there were blood stains and
did not find blood stains in the shirt and the same are
marked as M.Os.11 to 13 and the same was also video
graphed and photos were taken by P.W.15 and recorded the
statements of P.Ws.1 and 3. He also recorded the statement
of panch witnesses. He also identifies the photos Exs.P17 to
20 and recorded the statement of some of the witnesses.
Thereafter, requested the Engineer, Public Works Department
to prepare the sketch and witnesses have given statement
before him. The photos and compact disk were also seized.
He also seized the compact disk which was collected by
P.W.32 in terms of Ex.P25. He also sent the seized articles to
the RFSL and obtained the report in terms of Ex.P43.
20
Regarding the supply of electricity at the time of the incident,
he has obtained the report from Assistant Executive Engineer,
CHESCOM, K.R. Nagar and collected the plaint copy of
O.S.No.235 of 2009 in terms of Ex.P45. After completion of
the investigation, he filed the charge sheet.
20. He was also subjected to cross-examination. In
the cross-examination, he admits that, he has seen P.W.4 at
the time of recording the evidence and he did not seize the
mobile which was used for taking the photos, since P.W.4 told
that he was not having the mobile. He did not seize the
memory card also. It is suggested that RFSL did not conduct
any examination in respect of the articles which he sent but
the same was denied. It is suggested that the accused was
threatened and his signature was taken on Ex.P41 but the
same was denied. It is suggested that accused did not
produce any machete in his presence i.e., M.O.5 and the
same was denied.
21
21. Having considered the material evidence of
prosecution witnesses, this Court would like to first analyze
the evidence available on record,
“Whether it is a case of homicidal death or not?.”
22. The prosecution, in order to prove that it is a case
of homicidal death, has examined P.W.26-Doctor, who
conducted the post mortem on 25.02.2012 between 10.45
a.m. to 12.45 p.m. P.W.26, in his evidence states that he
found 11 ante-mortem injuries on the dead body of the
deceased. He has also opined that, cause of death is due to
shock as a result of hemorrhage on account of severe injuries
received. The genuineness of the post mortem report has not
been disputed. It is further important to note that P.W.26
has also opined that the injuries which he noted on the dead
body of the deceased could be caused by the weapon M.O.5
and he also given his opinion on the back side of the
requisition which is marked as Ex.P32. The report of RFSL in
terms of Ex.P43 confirms that M.O.5 was blood stained.
22
23. Having considered the un-rebutted evidence of the
Doctor-P.W.26, post mortem report and letter of confirmation
with regard to the fact that the injuries could be caused with
the weapon M.O.5, it is clear that the death of the deceased is
homicidal.
24. Though the learned counsel appearing for the
appellant would contend that the case rests upon
circumstantial evidence, since the eye witnesses have turned
hostile, their evidence does not inspire the confidence of this
Court and this Court has considered the evidence of P.Ws.1
and 4 to 15. Though P.W.1 admits in his evidence that the
complaint is in his hand writing and the same was obtained
by the Police by under coercion, he did not support the case
of the prosecution. In the cross-examination, he admits that
Ex.P1-complaint is in his hand writing, but the contents in
the complaint are false. He also categorically admits that if
any false complaint is given against a person, the same is an
offence. Though he contends that the complaint was
23
obtained by threat, he categorically admits that he did not
give any complaint to the Senior Police Authorities. Hence, it
is clear that there was no difficulty for him to lodge the
complaint against the Constable, who obtained Ex.P1. It is
pertinent to note that though he admits that he did not
disclose the said fact to anybody till his examination that the
Police have obtained a false complaint from him, for the first
time, in his cross-examination, he is telling that it is a false
complaint and there was no difficulty for him to disclose the
same to his colleagues.
25. Having considered the evidence of P.W.1 and the
answers elicited from the mouth of P.W.1 in the cross
examination, it is clear that though he witnessed the incident
of murder, he is lying before the Court and the very answers
elicited from the mouth of P.W.1 is clear that P.W.1 is hiding
the truth. The very conduct of P.W.1 is not the conduct of an
ordinary and prudent man. He categorically admits that the
contents are in his hand writing and if any such false
24
complaint is given against any person, it is an offence.
Hence, the evidence of hostile witness P.W.1 did not support
the case of the prosecution, cannot be accepted. Therefore,
the Court has to take note of the fact that even if the witness
has turned hostile, the Court has to evaluate the evidence
available on record, particularly, the answers elicited in the
cross- examination of P.W.1. The Hon’ble Apex Court in the
judgment reported in 2013 (1) SCC (Cri) 417 in the case of
Bable alias Gurudeep Singh vs. State of Chattisgarh
with regard to the FIR and its evidentiary value has held that
even though the witness, on whose statement F.I.R. was
lodged, himself did not support the case of the prosecution
and was declared hostile, the Court has to take note the effect
of such F.I.R and it will be impermissible for the Court to
ignore the evidentiary value of the F.I.R.
26. In the case on hand, it has to be noted that
P.W.33 received the complaint from P.W.1 and in his
evidence, he states that P.W.1 himself came and gave the
25
complaint, that too, within a span of 1½ hours of the incident
and based on the complaint, he registered the F.I.R. in terms
of Ex.P37 and sent the same to the concerned Magistrate. If
it is forcible complaint, P.W.1 was not having any difficulty to
file any complaint to the Higher Authorities, though he states
that contents of Ex.P1 is false. Hence, the evidence of P.W.1
has to be assessed with due care and caution to find out the
truth and the answers elicited in the cross examination is
clear that he witnessed the incident.
27. P.W.4, who is an eye witness to the incident
categorically states that on the date of the incident, he was in
the shop of P.W.15 and he witnessed the incident that a
person came in the scooty and the person who was standing
near the place of incident inflicted the injuries on the person
who came in the scooty. P.W.4, who was having mobile
recorded the same. Thereafter, P.W.4 enquired P.W.15, since
he was not having acquaintance with the accused or the
deceased. P.W.15 told about the identity of those two
26
persons. He also states that scene of incident which was
recorded by him was telecasted in the TV9 on the very next
day in between 12.00 p.m. to 1.00 p.m. based on the CD
which he has given to TV9 office. No doubt, the mobile was
not seized at the instance of P.W.4 and the same is admitted
by the Investigating Officer, P.W.37. Though, he has given
the compact disk to the TV9 office, no doubt, there is no
certification under Section 65 (b) of the Evidence Act, 1872.
The Court also did not consider the electronic evidence since
there was no certification. It has to be noted that the very
finding of the trial Court that the mobile was not seized,
cannot be accepted since, the very requirement of Section
65(b) of the Evidence Act, 1872 is to obtain the certificate. In
order to prove its genuineness and confirm that no tampering
is effected, the Investigating Officer ought to have collected
the certificate from P.W.4, since he has recorded the incident.
But, in the case on hand, it has to be noted that P.W.4 is an
eye witness to the incident and he recorded the same in the
mobile. He also supported the case of the prosecution and
27
nothing worth is elicited in his cross-examination to
disbelieve his evidence.
28. The other eye-witness is P.W.15. In his evidence,
he states that he along with P.W.4 did not witness the
assault, but he has seen the accused going with M.O.5
towards Radio Maidan and causing threat to the persons who
were at the spot. His evidence is clear that the accused led
and produced M.O.5. Recovery is also proved. This witness
supports the recovery of M.O.5. In the cross examination of
P.W.15 except the answer that he was not having
acquaintance with the accused, nothing worth is elicited by
the defence counsel. The counsel appearing for the State
though treated him as hostile, in the cross examination he
admits that he has witnessed the causing of assault, but he
says that the person who assaulted whom has not been
properly observed. Hence the evidence of P.W.15 supports
the case of the prosecution regarding his witnessing the
incident and other circumstance that he was going along with
28
machete confirms that the accused only committed the
murder by inflicting injuries to the deceased. The evidence of
PWs.1, 4 and 15 are the direct evidence with regard to
committing the murder. We have already noticed that P.W.1
though turned hostile, the answer elicited in the cross-
examination supports the case of the prosecution.
29. Regarding recovery is concerned, it has to be noted
that P.W.37 Investigating Officer in his evidence categorically
states that the accused appeared before him on the next day
at 5.00 p.m. and he recorded the voluntary statement and
also led the panch witnesses and produced M.O.5. It has to
be noted that in the cross examination of P.W.37 the defence
did not dispute the fact that the accused voluntarily appeared
before P.W.37. The witness P.W.15 categorically deposed that
the accused led the Police and also the panch witness. This
fact was not disputed in the cross examination. The other
panch witness is P.W.21 in his evidence categorically states
that the accused led the Police, Rizwan, Prabhakar to the lane
29
and produced M.O.5 and Ex.P27 was drawn. However,
regarding seizure of clothes, he has turned hostile. In the
cross examination, he categorically states that he was not
having the habit of signing any blank paper. He admits that
he is having acquaintance with the accused from the last 10
to 15 years. Though this witness has turned hostile, to
certain extent, the Court cannot discard his entire evidence
and has to take the evidence which is available to find out the
truth as held in the case of RAMESH BHAI MOHAN BHAI
KOLI VS. STATE OF GUJARAT reported in 2011(3) SCC (Crl)
102 wherein the Apex Court held that the evidence of
prosecution witness cannot be rejected in toto merely because
prosecution choose to treat him as hostile and the very
evidence of the partly hostile witness cannot wash off the
evidence altogether and the same can be accepted to the
extent that their version was found to be dependable on a
careful scrutiny.
30
30. The other panch witness is P.W.16 who has
videographed the recovery. He is none other than the brother
of the deceased who has turned hostile. In the cross
examination by Public Prosecutor, it is elicited that he was
called to Police Station and P.W.15 has produced 4
photographs and 2 CDs in connection with seizure and the
witness P.W.21 supports with regard to the recovery of M.O.5.
Though he has turned hostile in respect of seizure of the
clothes, he only states that he does not remember the seizure.
The answer elicited from P.W.21 that he had acquaintance
with accused for 10 to 15 years clearly shows that he is
supporting the accused. The other recovery witness is
P.W.25. He claims that his signatures were taken on the
blank paper, but in the cross examination he admits that he
was not having the habit of making the signature on the
blank paper and also he does not sign any blank paper, if
anybody asks him to do so. Though P.W.25 also turned
hostile, his evidence shows that he is part of the recovery.
Apart from that C.W.37 in his evidence categorically states
31
that the accused appeared before him and led the witnesses
and the Police to produce the clothes as well as M.O.5. In the
case on hand, in the cross examination of Investigating
Officer also nothing is elicited to disbelieve the evidence of
P.W.37 regarding recovery is concerned. A suggestion was
made that accused did not lead anyone and produced neither
M.O.5 nor the clothes and the same has been categorically
denied. It is important to note that Ex.P43 RFSL report
confirms the blood stains in M.O.10 and also the pant and
slippers of the accused. The RFSL report corroborates the
evidence of P.W.15, 21 and also P.W.37. The Apex Court in
the case of RAKESH AND ANOTHER VS. STATE OF M.P.
reported in 2011(3) SCC 803 wherein it is held that Recovery
of Crime-incriminating materials-recovery of weapons on
disclosure, statements, deposition of Investigating Officer had
been natural. No material that Investigating Officer had any
animosity or any kind of interest and closeness to deceased,
question of not believing his statement does not arise under
Section 27 of the Evidence Act. The Investigating Officer
32
P.W.37 must be presumed to act honestly and consciously
and as such his evidence has to be assessed on its intrinsic
worth and cannot be discarded merely on the ground that he
is public servant and interested in success of the case.
Hence, the prosecution also proved the evidence of recovery at
the instance of accused.
31. Having considered the material on record,
considering the evidence of PWs.1, 4 and 15 who are direct
witnesses with regard to the committing of murder by the
accused and the other witness P.W.15 regarding recovery of
M.O.5 and the evidence of P.W.21 and C.W.37 is consistent
regarding recovery is concerned.
32. Learned counsel for the appellant contends that
the case rests upon circumstantial evidence since the
witnesses have turned hostile, cannot be accepted by
reappreciating the evidence available on record in the light of
the principles laid down in the judgment referred supra.
Regarding the motive is concerned, P.W.14 wife deposed
33
before the Court that her husband paid an amount of
Rs.45,000/- instead of Rs.1,00,000/- as demanded by the
accused. Hence, there was ill-will. Except the evidence of
P.W.14, there is no material before the Court. In the case of
direct evidence, the motive is not significant. Though P.W.1
has turned hostile, there are substantive evidence before the
Court particularly the evidence of P.W.4, answers elicited in
the cross examination of the witnesses, evidence with regard
to recovery and also the evidence of P.W.15 to certain extent
are consistent.
33. Hence, we do not find any reason to interfere with
the judgment of conviction of the trial Court to come to the
other conclusion. The evidence available on record both oral
and documentary is sufficient that accused only committed
the murder. The evidence of the doctor who has been
examined as P.W.26 categorically states that M.O.5 could
cause injuries mentioned in the PM report which is marked
as Ex.P31 and also the opinion of P.W.26 in terms of Ex.P32.
34
The direct evidence of P.Ws.1, 4 and 15, evidence of PWs.15,
21 and 25 for recovery coupled with the evidence of the doctor
P.W.26, proves the case of the prosecution beyond reasonable
doubt. Hence, we do not find any reason to reverse the
finding of the trial Court and the appeal is devoid of merit.
34. In view of the discussions made above, we pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
Akc/