State of Karnataka by the Deputy Superintendent of Police, Cod Bangalore

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 20 TH DAY OF JUNE 2014

PRESENT

THE HON’BLE MR.JUSTICE MOHAN M SHANTANAGOUDAR AND

THE HON’BLE MR.JUSTICE C.R.KUMARASWAMY

CRIMINAL APPEAL NO. 725 OF 2008

BETWEEN:

STATE OF KARNATAKA BY THE DEPUTY SUPERINTENDENT OF POLICE, COD BANGALORE ... APPELLANT

(BY SRI.B.T.VENKATESH, SPP II)

AND:

1. RAGHUPATHI PRABHU S/O VITTALA PRABHU AGED ABOUT 25 YEARS NEAR PRABHU HOTEL SAIBRAKATTE YEDTHADI GRAMA UDUPI TALUK

2. ASHOK PRABHU S/O VITTALA PRABHU AGED ABOUT 25 YEARS NEAR PRABHU HOTEL SAIBRAKATTE, YEDHTADI GRAMA UDUPI TALUK

3. ADARSHA HEGDE S/O SUDHAKARA HEGDE AGED ABOUT 22 YEARS C/W B.K.HEGDE BILLADI, THOMBOTTU HANGABALLI UDUPI DISTRICT

4. HARSHAVARDHANA HEGDE S/O SANJEEVA HEGDE AGED ABOUT 30 YEARS MELMANE SHIRIYARA GRAMA UDUPI DISTRICT

5. SURESH SHETTY S/O CHANDRASHEKARA SHETTY AGED ABOUT 38 YEARS KALUBETTU SHIRIYARA GRAMA UDUPI DISTRICT

6. NAVEENCHANDRA SHETTY S/O MAHABALA SHETTY AGED ABOUT 35 YEARS MUDDUMANE KELAMANE MUDDUMANE MANDARTHI POST UDUPI DISTRICT

7. CHANDRASHEKARA SHETTY.B S/O MAHABALA SHETTY AGED ABOUT 30 YEARS MATHRUKRIPA NILAYA BILLADY GRAMA UDUPI TALUK

8. RAJEEVA SHETTY S/O MAHABALA SHETTY AGED ABOUT 25 YEARS

MATHRUKRIPA NILAYA BILLADY GRAMA UDUPI TALUK

9. RAVIRAJA SHETTY S/O NARAYANA SHETTY AGED ABOUT 30 YEARS HINDARIMANE JANUVARUKATTE BILLADY GRAMA UDUPI TALUK

10. KARUNAKARA SHETTY S/O RAMANNA SHETTY AGED ABOUT 30 YEARS HUNTRIKAMANE BILLADY GRAMA UDUPI TALUK

11. KARUNAKARA SHETTY S/O SHEENA KOTARY AGED ABOUT 28 YEARS BANNERALAKATTE BILLADY GRAMA UDUPI TALUK

12. GIRIDHARA KOTARY S/O SEENS KOTARY BANNERALAKATTE BILLADY GRAMA UDUPI TALUK

13. ASHOK SHETTY S/O RAGHURAMA SHETTY AGED ABOUT 30 YEARS HALLIBAILU HOSAMANE UDUPI TALUK

14. B.KARUNAKARA HEGDE S/O SADASHIVA HEGDE AGED ABOUT 45 YEARS BILLADY GRAMA UDUPI DISTRICT

15. RAVIRAJA SHETTY @ RAVINDRANATHA SHETTY S/O BHUJANGA SHETTY AGED ABOUT 40 YEARS KOKEBAILU SHIRIYARA GRAMA UDUPI DISTRICT

16. DEVU @ DEVU NAIKA S/O JAGANNATHA NAIKA HALAGEBAILU KAREBETTU GRAMA SHIVAPURA POST KARKALA TALUK

17. SHANKARA SHETTY S/O RAGHURAMAN SHETTY AGED ABOUT 26 YEARS MANIKALLU UDUPI DISTRICT

18. A. HARISH SHETTY S/O MUTTAYYA SHETTY AGED ABOUT 45 YEARS BOODADY BILLADY GRAMA

19. RAVI SHETTY S/O ANANDA SHETTY AGED ABOUT 24 YEARS SOLLAGADDE HOUSE BILLADY GRAMA UDUPI TALUK

20. KRISHNA KOTARY S/O NANJAPPA KOTARY AGED ABOUT 32 YEARS VALBAIL JANUVARUKATTE

21. ASHOK BHAT S/O BALAKRISHNA BHAT BANNERALAKATTE BILLADY GRAMA UDUPI TALUK

22. DIVAKARA SHETTY S/O NARAYANA SHETTY AGED ABOUT 20 YEARS ALTHAR MELOJIMANE YADTHADY GRAMA UDUPI DISTRICT

23. NAVEENCHANDRA SHETTY S/O SHEKARA SHETTY HALLIDODDAMANE BAIDABETU KOKKARNE UDUPI TALUK

24. GANESH ACHAR S/O ANANDA ACHAR AGED ABOUT 25 YEARS JANUVARUKATTE BILLADY GRAMA UDUPI DISTRICT

25. SHEKAR KOTARY S/O SEENA KOTARY AGED ABOUT 38 YEARS BANNERALAKATTE BILLADY GRAMA UDUPI DISTRICT

26. VISHWANATHA SHETTY @ BABU SHETTY S/O ANANDA MASTER @ KUPPA MASTER AGED ABOUT 40 YEARS ANGADIBETTUR HAVANJE GRAMA UDUPI TALUK ...RESPONDENTS

(BY SRI.C.H.JADHAV, SENIOR COUNSEL FOR C.H.JADHAV AND ASSOCIATES FOR R1 TO R11 AND R13 TO R26) (APPEAL ABATED AGAINST R12)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C BY THE STATE P.P. FOR THE STATE PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 21.1.2008 PASSED BY THE LEARNED SESSIONS JUDGE, UDUPI IN S.C.NO.42/2001 ACQUITTING THE RESPONDENTS/ ACCUSED FOR THE OFFENCES P/U/S 143, 144, 147, 148, 341, AND 302 R/W SEC 149 OF IPC.

THIS CRL.A COMING ON FOR HEARING THIS DAY, MOHAN M. SHANTANAGOUDAR J., DELIVERED THE FOLLOWING:-

JUDGMENT

The judgment and order of acquittal passed by the

Udupi Sessions Court in SC No. 42/2001 dated

21.01.2008 is called in question in this appeal by the

State.

2. Respondents/accused were tried and acquitted for the offences punishable under Sections

143, 144, 147, 148, 341, 302 read with Section 149 of

IPC.

3. Case of the prosecution in brief is that the deceased Jayaprakash Shetty @ Pakka and the accused are politically against each other; about 5 years prior to the incident in question, there was a murder of one

Rajaram Sharavegar belonging to the accused group; in the said murder case, PWs2, 3, 6 and the deceased were the accused; rivalry between two political groups continued even thereafter; the accused are belonging to a different political party than that of the deceased and

PWs2 to 7; With a motive to commit the murder of PW5-

Jayaprakash Shetty, all the accused formed themselves into an unlawful assembly at about 6 PM on

17.04.1999 on Januvarkatte road situated in front of

Durgaprasad Cashew nut Factory of Billady Village,

Udupi Taluka; all of them were armed with deadly weapons like talwars, axe and other weapons. At about

6 PM, all the accused persons were watching for the deceased; the deceased after giving drop to PW5 at

Januvarkatte cross, wanted to proceed to his village and passed through the place where accused were standing; all the accused suddenly waylaid the motor cycle of the deceased, consequently the deceased took deviation from the said road and dashed against the stay wire attached to electric pole and fell down; at that point of time, all the accused assaulted the deceased mercilessly with lethal weapons, consequent upon which the deceased died on the spot. The incident was stated to have been witnessed by PWs5, 6, and 13. After getting news from the PW2-Vasantha Shetty (a passenger in the bus and friend of PW4), the brother of the deceased namely Kishor Kumar Shetty (PW4) rushed to the scene of the offence and saw the dead body of the deceased. At that point of time, PWs4, 5, 6, 7 and 13 were present near the scene of the offence; after waiting for about 3-4 minutes PW4 went-back saying that he would lodge the complaint. On the way to the Police Station, PW4 met

PW3 and informed him about the incident in question;

PW3 assured PW4 that he would lodge the complaint with regard to the incident in question and requested

PW4 to go back to the scene of the offence wherein the dead body was lying. PW4 after getting such assurance from PW3 came back to the spot and waited till 9.30

PM. But police did not come there. Thereafter, PWs4 and 5 went to Kota Police Station and lodged the complaint as per Ex.P2, at about 10-30 PM on

17.04.1999 before the Sub-Inspector of Police (PW15) of the said Police Station, who received the complaint and registered the same in Crime No.45/1999; thereafter,

FIR was sent to jurisdictional Magistrate and the same reached the Magistrate at about 00-20 hours i.e., midnight intervening between 17.04.1999 and

18.04.1999. Thereafter, the Police took up investigation and ultimately the Investigation Officer (of COD) (PW18) laid chargesheet against all the 26 accused for the aforementioned offence.

In order to prove its case, the prosecution in all, examined 18 witnesses and got marked 25 exhibits and

16 MOs. On behalf of the defence, 27 exhibits were got marked. All these exhibits marked on behalf of the defence are relating to the statements (contradictions) made by the witnesses during the course of the investigation before police.

The trial Court on evaluation of the material on record and after hearing, acquitted the accused by giving benefit of doubt to them.

4. Sri. B.T. Venkatesh, learned SPP, taking through entire material on record submits that the appreciation of evidence by the Court below is improper and incorrect; by and large, the evidence of PWs5, 6 &

7 is consistent and cogent with the case of the prosecution; since their version is consistent and as there is nothing on record to disbelieve their version, the trial Court is not justified in disbelieving their version; all these three witnesses are from the same village i.e.,

Billadi Village, near Januvarkatte circle where the

incident has taken place; their presence was natural on the spot; PWs5, 6 and 7 are the close friends of the deceased; Their versions cannot be suspected, more particularly when their versions are supported by the corroborative material on record; merely because PWs5,

6 and 7 are friends of the deceased, they cannot be called as partisan of witnesses; there is no delay in lodging the complaint inasmuch as the above incident has taken place at 6.30 PM and the complaint is lodged at about 10.30 PM; presence of PW5 cannot be disputed at all inasmuch as he has accompanied the deceased on motor cycle and the incident has taken place immediately after the deceased gave drop to PW5 to his village which is the scene of the offence; seizure of the weapons and other circumstances corroborate the case of the prosecution; the trial Court has erred in giving more importance to minor discrepancies in the evidence of witnesses, more particularly the evidence of PWs5 to

7. He submits that the material on record unerringly point towards the guilt of PWs3, 6, 7 and 9 against

whom the specific statements were made by the eye witnesses during the course of their depositions. On these among other grounds, he prays for reversal of the judgment of acquittal passed by the Court below.

5. Per contra, Sri. C. H. Jadhav, learned Senior

Counsel appearing on behalf of the defence contends that there is a delay in lodging the complaint and meticulous perusal of the material on record makes it clear that the complaint is lodged after due deliberation with the party men of the deceased; the police came to know about the incident at about 6.30 PM itself and immediately they came to the spot and started investigation into the matter; however, falsely the case is made out by the prosecution as if first information is lodged at about 10.30 PM; there is no reason as to why first information was lodged at about 10.30 PM, particularly, when the police knew very well about the incident at 6.30 PM itself; the incident has occurred in a public place and in the centre of the village where not only a cashew factory but also several shops and a bus

stop are situated; at the time of the incident, shops were open and no independent witnesses were examined;

PWs2 to 7 are all interested witnesses and they are all belonging to the same political party to which the deceased was a member; admittedly, they are all close friends of the deceased; PWs2, 3 and 6 were co-accused with the deceased in the murder case of Rajaram

Sharavegar; hence, these witnesses have grouped together only to foist the false case against accused. He further submits that PW4-brother of the deceased as well as another younger brother i.e., Vadirajashetty knew very well about the incident and the manner in which the incident took place; however, both PWs4 and

5 curiously did not lodge the first information before the

Police; the prosecution has suppressed the true facts inasmuch as it has not presented its case truthfully;

PWs5, 6 and 7 are not at all the eye-witnesses inasmuch as they were not at all on the scene of the offence; only on the assumption, all the accused are

arrayed as culprits in the crime falsely by the prosecution because of political ill-will.

6. PW1-Raghu Shettigar is the witness for inquest panchanama at Ex.P1; MOs1 to 5 are the dresses of the deceased which were seized under the said panchanama. Inquest Panchanama was conducted in the hospital.

PW2-Vasantha Shetty was standing at the bus stop of Neerajaddu Village. After hearing the news of murder of deceased from passersby, he went and met

PW4 who is younger brother of the deceased. At that point of time, PW4 was in Mailukove village; he went along with PW4 to the scene of the offence and saw the dead body, at that point of time, PWs5, 6 and 7 were present.

PW3-Rathnakara Shetty is a friend of PW4 and deceased. When PW4 was going to the police station in order to lodge the complaint after seeing the dead body, he met PW3 on the way and informed about the incident to PW3. At that point of time, PW3 told PW4 that he

would go to the police station and lodge the first information. In view of the same, PW4 went back to the scene of the offence; however, PW3 did not go to police station to lodge the first information, but he slept in his house because of fear of the accused.

PW4-Kishora Shetty is the younger brother of the deceased, who came to know about the death of the deceased from PW3; he went to the scene of the offence and saw the dead body; after 3-4 minutes, he left the said spot and went towards Police Station for the purpose of lodging the complaint; on the way, PW4 met

PW3 and informed him about the incident; PW3 stated to have told PW4 that he would go to Police Station and lodge the complaint; hence PW4 came back to the scene of the offence and remained till 9.30 PM; however, at about 10.30 PM, PW4 went back to the Police Station along with PW5 and lodged the first information in Kota

Police Station wherein PW5 lodged the first information as per Ex.P2; he identified MO6-motor bike as that of the deceased.

PWs5, 6 and 7 are the eye-witnesses to the incident in question. PW5 is also the witness for Ex.P1-

Mahazar wherein MOs7, 8, 9 and 10 were seized. PW5 has also lodged the complaint as per Ex.P2. PW6 is not only eye-witness but also witness of the scene of the offence of panchanama as per Ex.P4. So also, PW7 is the eye-witness as well as the panch for scene of the offence of the panchanama and he has identified MOs

11, 12 and 13 i.e., helmet, axe and talwar respectively seized on the spot.

PW8-Subhash Chandra Shetty is a friend of the deceased. According to PW8, the deceased and PW5 came on motor cycle at about 4.30 PM on the date of the incident and the deceased talked with PW8 for some time. It seems that PW8 was examined by the prosecution to show the presence of PW5 with deceased prior to the incident in question.

PW9-Raghavendra is the photographer who took photographs of the deceased as per Exs.P5 to 7. In the cross examination, he has deposed that at about 8.30

PM, police came to the photo studio and took him to the spot. They reached the spot in 10 minutes, at that point of time, Police officials including Dy.SP were also present on the scene of offence.

PW10-Pradeep Ballal is another witness for seizure Panchanama; he has deposed about MOs 6 to

10.

PW11-Govinda is a witness for seizure Mahazar.

He has deposed that MOs 11 to 13 weapons used for commission of offence.

PW12- H. Jagadish is the Junior Engineer who drew the sketch of the scene of the offence as per

Ex.P12.

PW13-Sanjeeva Harijana is the eye-witness; he has turned hostile.

PW 14-Dr.M.K. Kamath is the doctor who conducted the post-mortem examination and the post- mortem report is at Ex.P19.

PW15-C.E. Thimmaiah is the Sub Inspector of

Police who received the first information lodged by PW5

as per Ex.P2 and he has sent FIR to the jurisdictional

Magistrate as per Ex.P3.

PW16-Sheena Billava is the Head Constable, who scribed the Exs.P1 to P4.

PW17-Ravikumar is the Police Constable who accompanied PSI who participated in the investigation.

PW18-S.A. Kallannanavar is the Investigation

Officer who completed the investigation and laid charge sheet.

It is relevant to note that initially crime was investigated by one Mr. Keshavamurthy who was the

Circle Inspector of Police, Brahmavar Police Station.

However, he handed over the investigation to PW18-S.A.

Kallannanavar (Inspector of COD). The said

Keshavamurthy had expired prior to submission of the charge sheet by the investigation officer.

7. The prosecution has come out with the definite case that the first information is lodged at about

10.30 PM. But the material on record reveals that the

Police were aware of the incident much prior to 10.30

PM. PW9-Photogtrapher, in his deposition, has deposed that at about 8.30 PM, he closed the Photo Studio and at that point of time, the Police Constable requested him to accompany him for taking photographs of the dead body in question. Accordingly, PW9 accompanied the police constable on motor cycle and reached the spot within 10 minutes after 8.30 PM. At that point of time, according to PW9, Dy.S.P., Circle Inspector of Police and other police personnel who were already present on the scene of the offence. Thus, it is amply clear that the police were very much present on the spot even prior to

9.30 PM.

PW3 is a friend of PW4 who had informed to PW4 that he would lodge the complaint about the incident before the Police, according to the prosecution he did not lodge the complaint, but he went to the house and slept because of fear of the accused. However, in the evidence, he has admitted for having stated as per

Ex.D4, in other words, PW3 admits that he has made the statement as per Ex.D4. ExD4 discloses that PW3

has informed the Police about the incident at 6.30PM after he being informed by PW4. Thus it is clear that the

Police got information from PW3 at 6.30PM itself on the date of the incident i.e., immediately after the incident.

The information by PW3 to police was based on the information of PW4 about the incident.

From the aforementioned, it is clear that the information regarding murder had already reached the

Police Station at about 6.30-7 PM and that the Police rushed the spot immediately much prior to 8.30 PM itself. The Senior Officers viz. Dy.S.P., Circle Inspector were very much present on the spot.

PW15 in his cross-examination has admitted that the Kota wherein the Police Station is situated and

Kundapura wherein the Magistrate Court is situated are on the National Highway; one can reach from the Kota

Police Station to Kundapura Court within 20-25 minutes even otherwise, there were telephone facilities in the place wherein dead body was lying, as also on the way to Police Station. He further admits that one

person can reach the scene of the offence within 15-20 minutes from Kota police station. It is further admitted by PW15 that on the way to Police Station from the scene of the offence, number of shops and telephone booths were available. Thus, it is clear that even if a person goes on a motor cycle from the scene of the offence, he can reach the Police Station within 15-20 minutes. Consequently, the version of PW3 as found in

Ex.D4 that he has informed about the incident to the

Police at 6.30 PM cannot be disbelieved at all.

Since the police had already received the information about the crime and reached the spot much prior to lodging of the information by PW5, the first information report given by PW5 as per Ex.P2 cannot be treated as first information. The police have not placed on record as to what information they received from

PW3 at 6.30 PM. Thus, the first version of the crime is suppressed by the prosecution. In that regard, the version of Mr. Jadhav that the true story is suppressed by the prosecution assumes importance.

8. It is the specific case of the prosecution that

PWs5 to 7 who are the eye-witnesses were very much present on the scene of the offence at the time of the incident and they continued to be on the scene of the offence till 11 PM. All of them have specifically admitted that they are the close friends of the deceased, if it is so there is no reason as to why PWs4, 5 to 7 who were very much present on the spot at the time of the incident did not lodge the complaint either by personally going to the

Police Station or atleast informing to the Police over the phone. According to the version of PWs5 to 7, they did not even inform about the incident to anybody including

PW4 who is the brother of the deceased and who was on the spot immediately after the incident.

PW4 has deposed in his deposition that he came to the spot but he has not informed about the incident in question to anybody. He has also not tried to enquire with anybody even though PWs5 to 7 were close friends of the deceased. This conduct of PWs5 to 7 appears to be highly unnatural. All of them admitted that they are

the close friends of the deceased and belonging to one political party. If it is so, it is highly improbable that they did not talk to anybody about the incident till 10

PM.

9. According to PWs5 to 7, they were standing about 100-150 feet away from the scene of the offence when the incident was going on. They did not raise hue and cry; they did not try to save the life of the deceased.

There is nothing on record to show that they have atleast tried to save the deceased by throwing the stones at culprits standing at a distance. On the other hand, they witnessed the crime committed by the accused as if they are strangers and unconcerned to deceased.

However, PWs5 to 7 have deposed that they came to the spot after the deceased fell down with bleeding injuries which means they did not come to the spot prior to deceased falling down to the ground with injuries.

Unnatural conduct of PWs 5 to 7 keeping themselves away from the scene of the offence without protesting

and without even raising hue and cry makes us suspect their versions and their presence on the spot.

10. Though the so called first information is lodged after due deliberation that too after the Police came to the spot, the name of PW7 does not find place in the first information. The first information, however, discloses the name of PW6, but the name of PW7 conspicuously absent in the first information. It is the version of PW5 that while he was talking with PW7 near the scene of the offence, the incident took place and both himself and PW7 were present near the spot. If it is so, there was no reason as to why PW5 did not mention about the same in the first information.

PW5 in his deposition admits that PW6 came to the spot along with PW13 after 5 minutes of the incident. PW13 has turned hostile. However, PW6 has deposed that he is the eye-witness to the incident. The evidence of PW6 cannot be believed in view of the specific admission made by PW6 that he came to the spot after five minutes of the incident. PW5 has also

admitted in his evidence that PW6 came to the spot belatedly i.e., after deceased falling down to the ground.

Thus, the presence of PWs6 and 7 on the spot is highly doubtful.

11. It is admitted by PW9 that the Police were very much present on the spot after 8.30 PM with PW9-

Photographer for taking photographs of the deceased; the senior police official like Dy.SP and CPI were also present on the spot. It is admitted by the prosecution that all the three eye-witnesses i.e., PWs5 to 7 were very much present on the spot, at that point of time i.e., at

8.30 p.m. They were there till 11 PM. If it is so, there is no reason as to why the police did not record the first information report atleast at about 8.30 PM. So, also there is no reason as to why they did not try to record the version of the eye-witnesses atleast at about 8.30 to

9 PM. Non-recording of the statements of the witnesses and other material witnesses at the earliest by the

Police, who were very much present on the scene of the offence at 8.30 PM itself, would lead to grave suspicion

in the mind of the Court as to the presence of the eye- witness on the scene of the offence at the time of the incident. If PWs5 to 7 were really the eye-witnesses to the incident, they would have stated before the Police that they have seen the incident and consequently the police would have recorded their statements on the spot at 8.30 or 9.00 p.m. It is admitted by PWs5 to 7 that after the arrival of police at 8.30-9 PM to the spot, the statements of none of these witnesses were recorded by the police. Therefore, we are of the opinion that the trial

Court is justified in suspecting the version of the eye- witnesses.

12. Though the police, as aforementioned, were very much present on the scene of the offence at 8.30

PM after getting the information about 6.30 PM, they did not even try to record the scene of the offence of the panchanama or inquest panchanama immediately, neither they have recorded the statements of the eye- witness nor they drew panchanamas. Per contra, the dead body was shifted from the spot to the mortuary of

the hospital. There is no reason to shift the dead body to the hospital without recording inquest panchanama on the spot, they could have drawn the panchanama after recording the version of eye-witnesses on the spot.

This fact will clearly reveal that the police did not know about the actual assailant at the earliest point of time.

13. Admittedly, elder brother of the deceased

(PW4) went with his another elder brother namely

Vadirajashetty at about 6.30 p.m. to the spot. On going to the spot, PW4 alone returned back for the purpose of giving first information to the police. Another elder brother of the deceased namely Vadiraja Shetty did not accompany to the police while PW4 going back, consequently, Vadirajashetty remained on the spot. He also did not inform to anybody much less to the police on the date of the incident. Curiously, it is specific evidence of PWs5 to 7 that they did not even inform to either PW4 or Vadirajashetty. In view of the same, we are of the opinion that the evidence of PWs5 to 7 that they have seen the incident cannot be relied upon to

hold the accused guilty. The material on record is not sufficient to show that PWs5 to 7 are really eye- witnesses.

14. First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted

story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.

In the matter on hand, as aforementioned, though the delay is about four hours, the same is not properly explained. Admittedly, the Police were already on the spot about 2 ½ hours earlier to the registration of the crime. Senior Police officers like Deputy Superintendent of Police were present at the spot. All the eye witnesses were present at the spot. Despite the same, the statements of the eye-witnesses were not recorded and the crime was not registered earlier. In view of the same, we are of the opinion that the delay in lodging the first information has resulted in embellishment.

Consequently coloured version or exaggerated account of the concocted story seems to have been introduced because first information was subsequently lodged after due deliberation. The earliest information received by the police from PW-3 is suppressed.

15. It is not the case of the prosecution that the accused was knowing very well in advance that the deceased would come to the spot at a particular point of time on a particular date. Therefore there is no occasion for the accused to get themselves fully prepared with arms to do away with the life of the deceased. It is the case of the prosecution that the deceased after attending cremation ceremony in a different village came in a motorcycle to Januvarukatte to drop PW.5. The factum of the deceased coming with

PW-5 to Januvarukatte for dropping PW-5 is not known to anybody inasmuch as there is no prior intimation either by the deceased or by PW-5 in that regard. After attending the cremation ceremony in a different village,

PW-5 wanted to go to his place i.e., Januvarukatte on his own. However deceased being the friend of PW-5, went alongwith PW-5 on a motorcycle to Januvarukatte.

Therefore the factum of the deceased coming near the spot at Januvarukatte could not have been known to

anybody muchless to the accused. The accused are 26 in number. They are fully armed and all the accused are from different places. They are not from

Januvarukatte village. There was no occasion for the accused to assemble at a particular spot near the scene of offence, that too fully armed with weapons. There is no guarantee for the accused that the deceased would come there. If it is so, the presumption that the accused coming from different villages had gathered there, that too fully armed with weapons and were watching for the deceased, appears to be highly unnatural and unbelievable.

16. Near the place of incident there is a bus stop. There were shops and cashew nut factory.

Admittedly the buses ply on the very road. Immediately after the incident in question, a bus passed through the said road. None of the other independent witnesses were examined except PWs.5 to 7 who are close friends of the deceased. No valid reason is assigned by the prosecution as to why none of the persons who are

residing in the neighbourhood of the deceased were examined.

17. The statement of PW-3 is recorded by the

Police during the course of investigation after one month of the incident. He was brought into picture by the prosecution only to overcome the delay in lodging the FIR. The very fact that his statement is recorded after one month itself would prima facie reveal that his role is subsequently thought of by the prosecution. So also the subsequent statement of the complainant is recorded after 1 ½ month of the incident. Omnibus statements are made in the complaint. Be that as it may, the fact remains that the complaint is lodged after due deliberation and the same is submitted by PW-5 only after two hours of Police coming to the village on hearing the incident from PW-3. By the time the first information report was lodged, the investigation had already started.

PW-4 has admitted that he did not disclose the names of any of the accused at the time of the inquest panchanama, which means none of the eye-witnesses informed PW-4 till 7 a.m. i.e., till drawing up of the inquest panchanama about the names of the assailants.

It is very much strange on the part of PW-4 in not knowing the names of any of the eye-witnesses till their statement is recorded during the course of the inquest panchanama i.e., on the next day morning.

Looking to the totality of the facts and circumstances, we find that the trial Court is justified in coming to the conclusion that the case as putforth by the prosecution before the Court is unbelievable and true story is suppressed by the prosecution. Based on such shaky material on record, the Court below could not have convicted 26 accused for the offence under section 302 of IPC. We find that the appreciation of the evidence by the trial Court is just and proper. The reasons assigned and the conclusions arrived at by the

trial Court while acquitting the accused are just and proper.

This being the appeal against the order of acquittal, this Court would be slow in interfering with the Judgment of the Court below unless it is shown by the prosecution that the view taken by the trial Court is not a possible view under the facts and circumstances of the case. We find that the trial Court has taken a reasonable view under the facts of the case while coming to the conclusion. The presumption of innocence is in favour of the accused and such presumption of innocence is strengthened by the order of acquittal passed in their favour by the trial Court.

Unless the conclusions reached by the trial Court are palpably wrong and based on the erroneous view of law, the appellate Court would not interfere. We find that the conclusion reached by the trial Court is just and proper and it is not based on the erroneous assumption of law and facts. The view taken by the trial Court is

the possible view under the facts and circumstances of the case. Hence, no interference is called for.

Appeal fails and the same stands dismissed .

SD/- JUDGE

JTR/GSS