1 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 2 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 3 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 4 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 5 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 6 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. 7 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 8 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 9 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. 10 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 11 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 12 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;