State by Inspector of Police/SHO, Basaveshwaranagar Police Station, Bangalore

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 4TH DAY OF FEBRUARY 2014

PRESENT

THE HON’BLE Dr. JUSTICE K.BHAKTHAVATSALA AND THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA

CRIMINAL APPEAL No.872/2008 (A)

BETWEEN :

State by Inspector of Police/SHO, Basaveshwaranagar Police Station, Bangalore. ... Appellant

[By Sri. B.T. Venkatesh, State Public Prosecutor-II]

AND :

1. Yogesh @ Yogi, Aged about 32 years, S/o. Sri. Papanna, Residing at No.180, 5 th Cross, Indiranagar, West of Chord Road, Bangalore.

2. R. Kumar @ Ramegowda @ Gowda, Aged about 33 years, S/o. Sri.T. Ramaiah, Residing at No.40/54, III Cross, Indiranagar,

West of Chord Road, Bangalore.

3. D. Raja @ T.T. Raja, Aged about 29 years, S/o. Sri. Dharma, Residing at No.302, 7 th Cross, Indiaranagar, Bangalore.

4. G. Raja @ Badrehalli Raja, Aged about 31 years, S/o. Sri. R. Gopal, Residing at 14 th Cross, Indiranagar, West of Chord Road, Bangalore. …Respondents

[By Sri.S. Shankarappa, Advocate for R1 & R2, Smt. N. Padmavathi, Advocate for R3 & R4]

This Criminal Appeal is filed under Section 378(1) & (3) of the Cr.P.C. praying to grant leave to file an appeal against the judgment and order of acquittal dated 25.04.2008 in S.C. No.862/2005 on the file of the Presiding Officer, Fast Track Court-II, Bangalore, acquitting the respondents/accused for the offences punishable under Sections 302 and 341 read with Section 34 of IPC.

Reserved on : 24.01.2014 Pronounced on : 04.02.2014

This Criminal Appeal being heard and reserved for Judgment, coming on for ‘Pronouncement of Judgment’ this day, Keshavanarayana, J. , delivered the following:

J U D G M E N T

This appeal by the State is directed against the

Judgment and Order dated 25.04.2008 passed by the

Presiding Officer, Fast Track Court-II, Bangalore City, in S.C.

No.862/2005 acquitting Respondents/Accused Nos. 1 to 4 of the charges levelled against them for the offence punishable under Section 302 r/w. 34 of IPC.

2. During the course of judgment, the respondents herein would be referred to as Accused Nos. 1 to 4, the rank which they held before the Trial Court.

3. The case of the prosecution in brief is as under:-

The deceased Ramakrishna was carrying on business in finance and he was also running a Fair Price

Depot for distribution of the ration as well as kerosene.

Accused No.2-Kumar was working under the deceased

Ramakrishna and was in-charge of the business and he was also collecting money from the borrowers. Accused

No.1-Yogesh @ Yogi is a close friend of Accused No.2 and

4 was regularly visiting Accused No.2 and was assisting

Accused No.2 in carrying on the business. PW.7-

Gurupathy is a friend of the deceased Ramakrishna and was running the business in shares. The deceased

Ramakrishna had purchased 260 shares and was to pay

Rs.26,000/- p.m. to PW.7 and after completion of the required period, PW.7 was to pay Rs.9,40,000/- to the deceased Ramakrishna. There was a sub-dealing between the deceased Ramakrishna and Accused No.1, whereunder, Accused No.1 had purchased 70 shares out of 260 shares purchased by the deceased Ramakrishna and towards that Accused No.1 was paying Rs.7,000/- p.m. to the deceased Ramakrishna and Accused No.2 was paying Rs.26,000/-p.m. to PW.7 in the name of the deceased. When the matter stood thus, Accused Nos. 1 &

2 by misusing the liberty given by deceased Ramakrishna, misappropriated the amount to the tune of nearly Rs.4 lakhs out of the business transactions. When the said fact came to the notice of the deceased Ramakrishna, he removed Accused No.2 from service, cautioned Accused

Nos. 1 & 2 not to step into his house. In addition to this, the deceased Ramakrishna recovered Rs.1,50,000/- from

Accused Nos.1 & 2 forcibly and was continuously pressing for recovery of the balance amount. As a result of this, Accused Nos.1 & 2 started nurturing ill-will against the deceased Ramakrishna and were openly claiming that they would kill Ramakrishna. In the meanwhile, the deposit period of share business with

PW.7 came to an end and the deceased Ramakrishna collected the entire amount since the shares were standing in his name. Accused Nos. 1 & 2 approached

PW.7 and demanded the amount, to which Accused No.1 was entitled to. However, PW.7 directed them to approach the deceased Ramakrishna, who refused to pay any amount to Accused No.1 stating that he has appropriated that amount towards the amount due to him. This enraged Accused Nos. 1 & 2 further and they also threatened even PW.7 with injury to his life stating that both the deceased Ramakrishna and PW.7 have colluded with each other. In that regard, PW.12-G. Srinivas, son of

PW.7 had also lodged a complaint against Accused Nos. 1

& 2 before the jurisdictional police. In the morning of

08.06.2005, PW.8-Rajanna came to the house of the deceased Ramakrishna and requested Ramakrishna to help in admission of his daughter to Indian School, for which, deceased Ramakrishna agreed. Immediately, the deceased Ramakrishna contacted the Principal of the

Indian School over phone and asked PW.8 to meet him in the afternoon. Accordingly, at about 12.30 p.m., PW.8 came to the house of the deceased Ramakrishna on his motor cycle. Thereafter, the deceased Ramakrishna and his son deceased Naveenkumar went to Indian School on a motor cycle, while PW.8 followed them. After meeting the authorities in the school and arranging for admission, the deceased persons left the school, while PW.8 stayed back to complete the formalities regarding admission.

While two deceased persons were proceeding on the 15 th

Main Road, Basaveshwaranagar, the accused came there on motor cycle, dashed against the motor cycle ridden by the deceased Naveen Kumar, fell them on the ground and

7 thereafter, they assaulted the deceased Ramakrishna and killed him. At that juncture, when the deceased Naveen

Kumar tried to escape by running away from that place, he was chased and was also assaulted. PW.25-B.K.

Naveen Kumar and his friend (CW.5) while proceeding on a motor cycle saw the incident of assault on both the deceased persons. PW.27-Srikanta and PW.28-

Meghanath, who were proceeding on a motor cycle at that place, saw Accused Nos. 1, 3 & 4 assaulting Naveen

Kumar and Accused No.2 standing by the side of the dead body of Ramakrishna. Some one informed PW.8-Rajanna about the incident over phone. Immediately, PW.8 came there, saw the deceased Ramakrishna lying dead and

Naveen Kumar struggling with injuries. Immediately,

PW.8 with the help of others shifted the injured to

Panacea Hospital. By that time, PW.2-Prakash, the nephew of the deceased Ramakrishna was informed about

Ramakrishna lying dead in pool of blood on the main road.

Immediately PW2 along with PW.4–Smt. Gowramma, wife and PW.5-Kum. Hemavathi, daughter of deceased

Ramakrishna went to the place where Ramakrishna was lying dead and at that stage, they were informed about

Naveen Kumar also having suffered injuries and having been taken to Panacea Hospital. Therefore, they went to the hospital and saw the dead body of Naveen Kumar in

Panacea Hospital. Thereafter PW.2 went to jurisdictional

Police Station and lodged a report as per Ex.P2 alleging that his uncle Ramakrishna and his cousin Naveen

Kumar have been murdered by Accused Nos. 1 & 2 with the help of their associates in the background of the dispute regarding monetary transaction. On the basis of the report lodged by PW.2, PW.31-Shivalingegowda, Police

Inspector, registered case in Crime No.219/2005 against

Accused Nos. 1 & 2 and others for the aforesaid offences and took-up investigation.

4. During investigation, PW.31 held inquest over the dead body of Ramakrishna at the spot, seized incriminating materials found at the scene of occurrence including three draggers said to have been used in the

9 commission of offences and thereafter conducted inquest over the dead body of Naveen Kumar in Panacea Hospital, recorded the statements of witnesses, which revealed the complicity of Accused Nos. 1 to 4 for the murder of both the deceased persons, subjected the dead bodies to post- mortem examination, apprehended Accused Nos. 1 to 4 from a form house, at which time, one dragger was recovered from a Rexene Bag in possession of Accused

No.1.

5. After completion of investigation, PW.31 laid the charge sheet. Accused Nos. 1 to 4 on being produced before the jurisdictional Magistrate, were remanded to judicial custody and they continued to remain in custody during the trial of the case.

6. On committal of the case, before the learned

Sessions Judge, accused pleaded not guilty for the charges levelled against them and claimed to be tried.

7. The prosecution in order to bring home the guilt of the accused persons, examined PWs. 1 to 31 and relied on documentary evidence-Exs.P.1 to P.24 and

Material Objects- 1 to 18. During the cross-examination of PW.27, the accused got marked Ex.D1, a portion of statement said to have been made by the said witnesses before the Investigating Officer.

8. During examination under Section 313 of

Cr.P.C. by the learned Sessions Judge, Accused Nos. 1 to

4 denied all the incriminating circumstances appearing against them. The accused did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication. It is their further defence that the deceased Ramakrishna was a Rowdy

Sheeter and also carrying on money lending business, collecting exorbitant rate of interest and thereby he had lot of enemies, and he has been killed by some persons who were the victims of his illegal activities.

9. After hearing both sides and on appreciation of oral as well as documentary evidence, the learned

Sessions Judge by the judgment under appeal held that though the evidence available on record establishes that the death of two deceased namely, Ramakrishna and

Naveen Kumar was homicidal and the evidence available on record further proves the motive attributed against

Accused Nos. 1 & 2, the prosecution has failed to prove beyond reasonable doubt the complicity of the accused persons for the homicidal death of two deceased persons.

The learned Sessions Judge held that the evidence of

PWs.27 and 28 who are stated to be the eyewitnesses is not convincing and reliable and having regard to the circumstances brought on record, they cannot be accepted as eyewitnesses to the incident. Therefore, the learned

Sessions Judge recorded an order of acquittal against all the accused persons for the charges levelled against them.

Aggrieved by the said judgment of acquittal, the State is in appeal before this court.

10. The respondents-accused on service of notice of this appeal have appeared through their counsel.

11. We have heard the learned State Public

Prosecutor-II appearing for the appellant-State, Sri. S.

Shankarappa, learned counsel appearing for Accused Nos.

1 & 2 and Smt. N. Padmavathi, learned counsel appearing for Accused Nos. 3 & 4, and perused the records secured from the trial court as well as the judgment under appeal.

12. Learned State Public Prosecutor-II contended that the judgment under appeal suffers from perversity and illegality since the trial court on irrelevant grounds has discarded the evidence of PWs.27 & 28 who are the eyewitnesses to the incident of murderous assault on deceased Naveen Kumar. He further contended that, having regard to the fact that the evidence available on record satisfactorily established the death of two deceased persons as homicidal and further in view of the fact that the prosecution by cogent and acceptable evidence has proved the motive attributed against Accused Nos. 1 & 2,

13 the learned Sessions Judge ignoring the minor contradictions and omissions in the evidence of PWs.27 &

28, ought to have accepted their testimony and ought to have convicted the accused for the charges levelled against them. He further contended that there was no reasons for discarding the testimony of PWs.27 & 28 and that their evidence satisfactorily establishes that Accused Nos.1, 3 &

4 assaulted the deceased Naveen Kumar, which resulted in severe injuries all over the body and his death, and also the presence of Accused No.2 at the place of incident near the dead body of the deceased Ramakrishna, as such, the trial court has committed serious error in acquitting the accused. Therefore, he sought for setting aside the judgment and order of acquittal passed by the trial court and for conviction of the respondent-accused for the charges levelled against them.

13. On the other hand, Sri. S. Shankarappa, learned counsel appearing for Accused Nos. 1 & 2 contended that the judgment under appeal does not suffer

14 from any perversity or illegality since the learned Sessions

Judge on assigning proper reasons, has discarded the testimony of PWs.27 & 28 as eyewitnesses and that the judgment of acquittal is sound and reasonable having regard to the evidence available on record, as such, the judgment of acquittal cannot be interfered with by this court in exercise of Appellate Power. He further contended that in an appeal against the judgment of acquittal, the scope of interference by the Appellate Court is only for

‘very substantial and compelling reasons’ and such substantial and compelling reasons would exist when conclusion reached by the trial court with regard to the facts is palpably wrong; or the decision of the trial court is based on erroneous view of law; or when the judgment of the trial court is likely to result in grave miscarriage of justice; or when the entire approach of the trial court in dealing with the evidence was patently illegal; or the judgment of the trial court is manifestly unjust and unreasonable; or where the trial court has ignored the evidence or misread the material evidence or has ignored

15 the material documents and since in the case on hand, no such circumstances exists, interference with the judgment of acquittal is not warranted. He further contended that the report as to the incident said to have been lodged by PW.2 cannot be treated as a report lodged first in point of time, since even according to the evidence placed by the prosecution, much before lodging of the report by PW.2, the SHO of jurisdictional police station had received information about the commission of cognizable offence, he had proceeded to the spot, had seen the dead body of Ramakrishna at the scene of occurrence and also noticed the incident of assault on Naveen Kumar and later had seen the dead body of Naveen Kumar in

Panacea Hospital and therefore, Ex.P2 lodged by PW.2 is hit by Section 162 of Cr.P.C. He further contended that even according to the evidence of PWs.27 & 28, when they went to Victoria Hospital on the date of incident, they met

PW.31, the Investigating Officer in the case and according to the evidence of PW.31, he met PWs.27 & 28 at the scene of occurrence on the same day and during such

16 meeting, PWs.27 & 28 have not disclosed to PW.31 about they having witnessed the incident of assault on deceased

Naveen Kumar and on that day, their statements were not recorded though they were very much available to PW.31 and however, their statements were stated to have been recorded on the following day namely on 09.06.2005, as such, the trial court is justified in holding that PWs.27 &

28 cannot be treated as eye-witnesses. He contended that the testimony of PWs.27 & 28 has been completely discredited in the cross-examination, therefore, the trial court is justified in doubting their testimony. He further contended that the conduct of PWs.27 & 28 in not attempting to rescue the deceased Naveen Kumar on seeing attack on him or their conduct in not shifting

Naveen Kumar to the hospital has been rightly viewed seriously by the trial court as un-natural human conduct, which has led to doubt their presence at the scene of occurrence as sought to be made-out by them. Therefore, he contended that the trial court is justified in discarding the testimony of PWs.27 & 28 and in recording an order of

17 acquittal. Therefore, he contended that the appeal has no merit and is liable is liable to be dismissed.

14. Smt. N. Padmavathi, learned counsel appearing for Accused Nos. 3 & 4 adopting the argument of Sri. S. Shankarappa, further contended that PWs.27 &

28 are not independent witnesses, as, admittedly they are friends of deceased Ramakrishna, while the accused are friends of one Silencer Manju, who was murdered and

PWs.27 & 28 and two other persons are accused of murdering said Silencer Manju, which matter is still pending in the court and in connection with that case, they were in judicial custody, as such, PWs.27 & 28 are highly interested witnesses. Therefore, the learned

Sessions Judge on appreciation of the entire evidence available on record has found it unsafe to place reliance on the evidence of PWs.27 & 28 and therefore, the judgment under appeal does not suffer from any perversity or illegality warranting interference by this court. Hence, she also sought for dismissal of the appeal.

15. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for our consideration are,-

i) Whether the judgment and order of acquittal passed by the trial court acquitting the respondents-Accused Nos. 1 to 4 suffers from perversity or illegality warranting interference by this court?

ii) Whether the prosecution has proved the complicity of the accused persons for the homicidal death of two deceased persons?

16. Having heard the learned counsels appearing on both sides and on careful reading of the evidence available on record, as well as the reasonings adopted by the learned Sessions Judge in the judgment under appeal, we are of the opinion that the judgment under appeal does not suffer from any perversity or illegality warranting interference by this court.

17. The law as to the scope of interference by the

High Court sitting in appeal against the judgment of

19 acquittal recorded by the trial court is well-settled. In

Ghurey Lal Vs. State of U.P. [ (2008) 10 SCC 450] though the Apex Court has held that the Appellate Court may review the evidence in appeal against the acquittal under Section 378 and 386 of Cr.P.C. and its power of reviewing the evidence is wide and it can re-appreciate the entire evidence available on record and also can review the trial court’s conclusion with respect to both facts and law, it has been held in the said decision that the accused is presumed innocent until proven guilty and the accused possessed this presumption when he was before the trial court and the trial court’s acquittal bolsters the said presumption. It is further held that due or proper weight and consideration must be given to the trial court’s decision more especially when a witness’s credibility is at issue and it is not enough for the High Court to take a different view of the evidence and there must also be substantial and compelling reasons for holding that the order of trial court was wrong.

18. After referring to several earlier judgments, the

Apex Court has held that the Appellate Courts should follow the well-settled principles crystallized by number of judgments if it is going to over-rule or otherwise disturb the trial court’s acquittal and it would do so when it has

“very substantial and compelling reasons”. The Apex

Court has illustrated certain instances which could constitute “very substantial or compelling reasons ” as under:-

i) The trial court’s conclusion with regard to the facts is palpably wrong;

ii) The trial court’s decision was based on an erroneous view of law;

iii) The trial court’s judgment is likely to result in “grave miscarriage of justice”;

iv) The entire approach of the trial court in dealing with the evidence was patently illegal:

v) The trial court’s judgment was manifestly unjust and unreasonable:

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert, etc.

Of course, as observed by the Apex Court, the list is only illustrative and not exhaustive.

Again in S. Anil Kumar Vs. State of Karnataka [(2013)

7 SCC 219] it has been held that, only in exceptional cases, where there are compelling circumstances and where the judgment in appeal is found to be perverse, the

High Court can interfere with the order of acquittal and that interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. Keeping in mind the aforesaid well-settled principles, we proceed to consider the case on hand.

19. The evidence available on record clearly establishes that the deceased Ramakrishna was found lying dead in pool of blood at the scene of occurrence, namely on 15 th Main Road, Basaveshwaranagar,

Bangalore, while his son Naveen Kumar was shifted to

Panacea Hospital from the scene of occurrence in a serious condition and in the hospital, on examination by the Doctor, he was declared brought dead. The contents of the inquest report drawn by PW.31-I.O., in respect of both the dead bodies as well as the contents of post- mortem report would clearly establish the presence of severe injuries on the persons of two deceased and they having met homicidal death. From the perusal of the records it is noticed that during the trial, the defence has not seriously disputed the factum of death of two deceased persons as homicidal. Even according to the defence of the accused, the persons inimical to the deceased

Ramakrishna in connection with monetary transaction have done him and his son to death. Therefore, the findings of the trial court that the death of two deceased persons was homicidal is proper and there is no perversity in the said finding.

20. With regard to the motive attributed against

Accused Nos. 1 & 2 as pointed-out by the learned

Sessions Judge, the prosecution has placed sufficient evidence. The evidence available on record established that Accused No.2 was working with the deceased

Ramakrishna who was running money lending business as well as the fair price depot. Accused No.1 shown to be a friend of Accused No.2 and was visiting Accused No.2 very frequently. It is also in the evidence on record that on account of certain misdeeds said to have been committed by Accused No.2, he was removed from service by deceased Ramakrishna and was also demanding Accused

Nos. 1 & 2 to make good the loss caused by them in his business. Accused Nos. 3 & 4 are stated to be the friends of Accused Nos. 1 & 2. Though the prosecution has projected that there was some transaction with regard to shares involving PW.7-Gurupathi, he did not support the case of the prosecution. Both of them have been declared hostile and their evidence in this regard is of no assistance to the prosecution. Thus, the evidence available on

24 record, though to some extent establish that Accused Nos.

1 & 2 had some grouse against the deceased, the evidence is not sufficient to indicate that the said motive was strong enough to indicate that Accused Nos. 1 & 2 intend to do away with the life of the deceased. Nevertheless, since the prosecution, as noticed supra, in order to bring home the guilt of the accused sought to rely on direct evidence, the motive projected by the prosecution and the factum of non-establishing such motive would not be of any significance. Therefore, what is required to be considered is whether the prosecution has been able to establish the complicity of the accused for the homicidal death of the deceased by direct evidence relied on.

21. As noticed supra, according to the case of the prosecution, on the date of the incident between 12.30 and 1.00 p.m., two deceased persons on one motor cycle and PW.8- Rajanna on another motor cycle went to Indian

School for the purpose of admission of the daughter of

PW.8 to the said school and some time after reaching the

25 school, the two deceased persons left the school, while

PW.8 stayed back to attend to admission formalities.

According to the prosecution, while two deceased persons were proceeding on the motor cycle, the accused persons came on a motor cycle and way-laid the two deceased and assaulted them. According to the case of the prosecution,

PW.25-B.K. Naveen Kumar, working as a recovery agent of

ICICI Bank along with his friend-CW.5: R Kumar while proceeding on his motor cycle on 15th Main,

Basaveshwaranagar, at the junction of 2 nd ‘C’ Cross, he saw three persons coming on a motor cycle from the opposite direction, dashing against the motor cycle on which the deceased were proceeding, as a result which, both the deceased persons fell down and thereafter, they saw three persons who came on other motor cycle, stabbing one of the deceased with draggers while the other when tried to run away, was chased and assaulted. Thus, according to the prosecution PW.25 was an eyewitness to the incident of murderous assault on both the deceased persons. From the records, it is noticed that CW.5-Kumar

26 was reported to have died before he could be summoned to the court to give evidence. PW.25 during his evidence before the court did not support the case of the prosecution. According to him, he did not see any one committing murder of the deceased Ramakrishna and his son Naveen Kumar. He was declared hostile and during the cross-examination of prosecution by learned

Prosecutor on being treated hostile, he denied all the suggestions put to him. Thus, the evidence of PW.25 is of no assistance to the prosecution.

22. As noticed supra, according to the prosecution,

PWs.27 & 28 are the eye-witnesses to the assault by

Accused Nos. 1, 3 & 4 on deceased Naveen Kumar.

PWs.27 & 28 of course in their evidence before the trial court have supported the case of the prosecution. As could be seen from the judgment under appeal, the learned Sessions Judge after referring to the oral testimony of PWs.27 & 28, has found it difficult to place reliance on their testimony on the ground that their evidence is not reliable and they cannot be accepted as

27 eye-witnesses. The learned Sessions Judge has assigned several reasons for coming to such conclusion. The moot question would be as to whether the learned Sessions

Judge is justified in discarding the testimony of PWs.27 &

28. According to the evidence of PW.27, on 08.06.2005, he and PW.28 proceeded towards Sanegoruvanahalli on a motor cycle owned by PW.28 for the purpose of distributing his marriage invitation card to the friends and relatives. According to him, his marriage was scheduled on 16.06.2005. According to him, he was riding the motor cycle. He has further stated that, while he and PW.28 were so proceeding on 15 th Main,

Basaveshwaranagar, at the junction of 2 nd ‘C’ Cross, he saw Accused Nos. 1, 3 & 4 stabbing Naveen Kumar son of

Ramakrishna with draggers on the chest, abdomen, back and other parts. According to him, he saw this incident from a distance of about 50 feet by sitting on the motor cycle. He has further stated that when he turned motor cycle to 15 th Main, at the junction, he saw Ramakrishna lying dead with bleeding injuries on the neck, the motor

28 cycle belonged to Ramakrishna lying there and near the dead body of Ramakrishna, he saw Accused No.2 standing. According to him, frightened by the incident, he and PW.28 went back to his house. He has further stated that, in the background of the dispute regarding monetary transaction between Accused No.1 and deceased

Ramakrishna, the two deceased have been murdered.

According to him, in the evening of the same day, he learnt that Naveen Kumar died on the way to hospital and the police have recorded his statement in the Police

Station. PW.28 in his examination-in-chief has reiterated the aforesaid factors. It is pertinent to note that as on the date of their evidence before the trial court, PWs.27 & 28 were in judicial custody in connection with the case of murder of Silencer Manju. Their presence was secured from the prison. Both these witnesses have been cross- examined at length by the learned counsel appearing for the accused. It is elicited from PWs.27 & 28 that, they were close to deceased Naveen Kumar. It is brought-out in the cross-examination of PW.27 that, as on the date of

29 the alleged incident, he was not owning motor cycle, but he was owning a car. He has admitted the further suggestion that, on the date of incident he moved in the car for distributing the invitation card. It is further elicited from PW.27 that he and PW.28 went to Victoria

Hospital on the motor cycle and there, they saw the dead bodies of both the deceased persons and he also met the wife of deceased Ramakrishna. He has further stated that he was in the hospital for about 45 minutes and at that time, PW.31-Police Inspector attached to

Basaveshwaranagar Police Station was also present there and he also spoke to PW.31. It is further elicited from him that at that time, he informed PW.31 about he having witnessed the incident of assault on deceased Naveen

Kumar and that the said statement was recorded by

PW.31, and similarly, PW.28 also informed PW.31 about he having witnessed the incident of assault on Naveen

Kumar and his statement was also recorded by PW.31.

However, according to him, PW.31 asked them to come to the police station and accordingly, they went to

Basaveshwaranagar Police Station, where they stayed for one hour. According to PW.27, they went to Victoria

Hospital at about 4.00 p.m. and left hospital by about

7.00 p.m.. He has further stated that when he met the wife and other relatives of deceased Ramakrishna in the hospital, he did not inform them about he having witnessed the incident of assault on Naveen Kumar. He admits that as on that date he was possessing mobile phone and even PW.28 was possessing mobile phone and admits that he knew that if he witnessed an incident, he should inform the police. He admits that he did not inform the police immediately on seeing the incident. He further stated that PW.31 recorded his statement in brief in the hospital and detailed statement in the Police

Station. He has denied the suggestion that he was not married on 17.06.2005 and that no marriage invitation card was distributed as stated by him. In the cross- examination of PW.28, it is elicited that he and PW.27, and few others have been arraigned as accused in Silencer

Manju’s murder case and that they are in judicial custody

31 in connection with the said case. PW.28 also has stated in the cross-examination that, at about 4.00 p.m., he and

PW.27 went to Victoria Hospital, stayed there till 7.00 p.m., saw the dead bodies of Ramakrishna and Naveen

Kumar and also met PW.31-S. Shivalingegowda.

According to PW.28, PW.27 spoke to PW.31 but, he

(PW.28) did not speak to PW.31. According to him, PW.27 spoke with PW.31 for about 15 to 20 minutes. PW.28 has further stated in the cross-examination that, when he met

PW.31 in the hospital, he did not inform PW.31 about he having witnessed the incident of assault on Naveen Kumar and that he had no difficulty in informing the said fact to

PW.31. He has also stated that at about 9.00 p.m., on that day, he went to Police Station accompanying PW.27 and stayed there for about half an hour. According to him, even at that time, he did not tell anything to PW.31.

According to PW.28, none of the relatives of deceased

Ramakrishna and Naveen Kumar were present in Victoria

Hospital when he along with PW.27 had been there and according to him, if the relatives of the deceased persons

32 were to be there, he would have certainly informed them about he having witnessed the incident. He admitted that immediately after seeing the incident, according to him, he should have gone to the house of Ramakrishna and inform about the incident, but, he did not go to the house of the deceased on account of fear. He has admitted that the house of the deceased Ramakrishna was nearer to the place of occurrence of incident than his house. He admits that the deceased Ramakrishna was also called as Zero

Krishnappa and Zero Krishnappa was the friend of

Jedarahalli Krishnappa. He denied the suggestion that he

(PW.28) and PW.27 are also associates of Jedarahalli

Krishnappa and therefore there was animosity between him and the accused.

23. The learned Sessions Judge on scanning the evidence of PWs.27 & 28, has opined that they are chance witnesses and that their presence at the place of incident was highly doubtful having regard to their immediate conduct in not disclosing the fact of they having witnessed

33 the incident of assault to the police or to the relatives of the deceased persons though they said to have met PW.31

(Investigating Officer) in Victoria Hospital and also in the police station, since according to the evidence of PW.31, he recorded the statements of PWs.27 & 28 on

09.06.2005. It is in the evidence of PW.31 that he did not meet PWs.27 and 28 in Victoria Hospital in the evening of

08.08.2005 nor he met them in the police station.

However, it is in the evidence of PW.31 that while he was conducting inquest proceeding on the dead body of

Ramakrishna at the scene of occurrence, he saw PWs.27

& 28 at that place and he spoke to them generally. From the records it is found that PW.31 conducted inquest over the dead body of deceased Ramakrishna between 3.00 p.m to 4.45 p.m. at the scene of occurrence and inquest on the dead body of Naveen Kumar in Panacea Hospital between

5.30 p.m and 7.00 p.m. on 08.06.2005. Thus, from the evidence of PW.31, it is clear that on 08.06.2005, between

3.00 p.m. and 7.00,p.m., he was not in Victoria Hospital.

Thus, the evidence of PWs.27 & 28 that they went to

Victoria Hospital at about 4.00 p.m. on 08.06.2005 and saw the dead bodies of both deceased persons is contrary to the established fact. The dead body of Naveen Kumar was in Panacea Hospital up to 7.00 p.m. and it was only thereafter, the dead body was shifted to Victoria Hospital

Mortuary for the purpose of post-mortem examination.

Thus, PWs.27 & 28 are found to be not truthful witnesses.

Admittedly, they are accused of committing murder of one

Silencer Manju. The accused in this case are stated to be the associates of said Silencer Manju. Therefore, in our considered opinion, the learned Sessions Judge is justified in terming PWs.27 & 28 as inimical persons and their evidence is motivated. Assuming for the purpose of argument that PWs.27 & 28 met PW.31 in Victoria

Hospital and later in Police Station on 08.06.2005, the evidence of PW.31 does not indicate that they made any statement before PW.31. Thus, at the earliest opportunity when PWs.27 & 28 met PW.31, they did not disclose him about they having witnessed the incident of assault on

Naveen Kumar. Though according to PW.31, he met

PWs.27 & 28 while he was conducting inquest over the dead body of Ramakrishna at the scene of occurrence on the same day, PWs.27 & 28 appears to have not disclosed to PW.31 about they having witnessed the incident of assault, as, even according to PW.31, statements of

PWs.27 & 28 were recorded on 09.06.2005. Thus, in view of the above, it is reasonable to infer that the Investigating

Officer was deliberately marking time for recording the statements of PWs.27 & 28 and they appears to have been later planted as eyewitnesses. Though it was the definite say of PWs.27 & 28 that on that day, they went near the scene of occurrence while on their way towards

Sanegoruvanahalli to distribute the marriage invitation card, during the investigation, the marriage invitation card of PW.27 has not been seized. Except the oral say of

PWs.27 & 28 about the marriage of PW.27 scheduled to be held on 16/17.06.2005, there is absolutely no other evidence to show that the marriage of PW.27 was scheduled to be held on 16/17.06.2005 and in connection with the said marriage, they were distributing the

36 invitation card. Admittedly, PWs.27 & 28 are close friends of Ramakrishna. Therefore, it is reasonable to infer that they are interested witnesses. Their conduct in not immediately going to the house of the deceased

Ramakrishna to inform his family members, is highly un- natural and this circumstance would create great amount of doubt about PWs.27 & 28 having witnessed the incident of assault on Naveen Kumar.

24. In Lahu Kamalakar Patil and Another Vs.

State of Maharashtra [2013 Crl.L.J. 603] relied upon by Sri. S. Shankarappa, the Apex Court referring to the principles laid down in several earlier decisions that different witnesses react differently under different situations, as such, there cannot be uniformity in human reaction, it is ruled therein that “It is also to be borne in mind that if the conduct of the witness is so un-natural and is not in accord with acceptable human behavior allowing of variations, then his testimony becomes questionable and is likely to be discarded”. Applying this

37 principle to the facts of that case, the Apex Court discarded the evidence of an alleged eyewitness by terming the conduct of the said witness in not informing his family members about he having witnessed the incident and going away from the town as highly un-natural and inconsistent with natural human conduct.

25. In Surajit Sarkar Vs. State of West Bengal

[2013 Crl.L.J. 1137] relied on by Sri. S. Shankarappa, the Apex Court having regard to the conduct of an alleged eye-witness in not bothering to inform anybody in the family of the victim about the assault on his neighbour and on account of delay on the part of the Investigating

Officer in examining the said witness, doubted the presence of the said witness at the scene of occurrence and refused to place reliance on the testimony of the said witness.

26. In the light of the above rulings and regard being had to the conduct of PWs.27 & 28 in not bothering to inform any of the family members of deceased, instead

38 going back to their house and in not disclosing the fact of they having witnessed the incident of assault to the wife of deceased Ramakrishna when they met her in the hospital at about 4.00 p.m. on 08.06.2005, and also in not disclosing the same to PW.31 when they met him on the same day, in our considered opinion, the learned Sessions

Judge is justified in discarding the evidence of PWs.27 &

28.

27. As noticed supra, even according to the case of the prosecution, Accused No.2 had no role in the death of deceased Naveen Kumar since according to

PWs.27 & 28, Accused Nos. 1, 3 & 4 assaulted Naveen

Kumar while Accused No.2 was standing near the dead body of Ramakrishna. PW.25 was the only witness who said to have witnessed the incident of assault on both the deceased persons and the overt-act on the part of Accused

No.2. However, PW.25 has not supported the case of the prosecution to any extent. There is absolutely no evidence to connect Accused No.2 to the homicidal death of any one

39 of the two deceased. The evidence of PWs.27 & 28 is not convincing and reliable to connect Accused Nos. 1, 3 & 4 to the homicidal death of Naveen Kumar. Having regard to the nature of the evidence of PWs.27 & 28, in our considered opinion, the learned Sessions Judge is justified in holding that the prosecution has failed to establish the complicity of Accused Nos. 1, 3 & 4 to the homicidal death of Naveen Kumar. The alleged recovery of one dragger from the possession of Accused No.1 on being apprehended do not in any way incriminate him to the offences alleged in the absence of credible evidence connecting him to the incident alleged. Therefore, the reasons adopted by the learned Sessions Judge to record an order of acquittal is sound and reasonable having regard to the evidence available on record. There is no perversity or illegality in the findings recorded by the learned Sessions Judge. Therefore, we find no circumstances warranting interference with the judgment of acquittal recorded by the trial court.

28. In view of the above discussions, we answer

Points raised for consideration accordingly and proceed to pass the following order:

The appeal filed by the State is hereby dismissed.

The judgment of acquittal dated 25.04.2008 passed by the Presiding Officer, Fast Track Court-II, Bangalore, in

S.C. No.862/2005 is hereby confirmed.

The bail and surety bonds of the accused are ordered to be discharged.

SD/- JUDGE

KGR*