Annapoornamma vs State of Karnataka <BR> State of Karnataka Vs Chikkegowda

N. Ananda, J.—The respondents 1 to 15 in Crl. A. No. 161/2011 were arrayed as accused Nos. 1 to 9 and 11 to 16 in S.C. Nos. 144/2003 and 196/2003. They were tried and acquitted for offences punishable under Sections 143, 147, 148, 302, 307, 326, 354 r/w 149 IPC. Incidentally, it is necessary to state that accused No. 10 namely Karuna @ Karunakara died during trial. Therefore, case against him abated.

The State has filed Crl. A. No. 161/2011 against impugned judgment. The wife of deceased and injured namely Smt. Annapoorna (PW. 1) has filed Crl. A. No. 345/2011 against acquittal of accused No. 1. She has also filed Crl. A. No. 335/2011 against acquittal of accused Nos. 2 to 9 and 11 to 16.

We have heard learned Government Pleader for the State, Sri. P.M. Nawaz, learned counsel for victim (appellant in Crl. A. Nos. 335/2011 and 345/2011) and Sri. A.H. Bhagavan, learned counsel for accused in the aforestated appeals.

We have been taken through evidence and impugned judgment.

Before appreciating evidence and submissions made by learned counsel for parties, it is necessary to state inter-se relationship of some of the prosecution witnesses, inter-se relationship of some of the accused and certain facts which are not in dispute.

PW. 1-Annapoorna is the wife of deceased-Mohankumar, who was a resident of Jalagaranahalli village within the jurisdiction of Gandsi Police Station. PW. 9-Shankarappa is the father of deceased, PW. 6-Basavaraju is the father-in-law of deceased (father of PW. 1-Annapoorna), PW. 3-Jayaprakash, PW. 4-Omkaramurthy, PW. 5-Raghupathi are relatives of deceased, PW. 7-Manjula is the wife of PW. 4-Omkaramurthy, PW. 8-Lohith is the son of first cousin of deceased. These witnesses are also from Jalagaranahalli village.

Accused No. 1-Chikkegowda is father of accused No. 5 Vijayakumar. Accused No. 8-Satish is the son of accused No. 6-Honnegowda. Accused No. 12-Chidananda and accused No. 13-Nataraj are direct brothers and they are sons of one Chandregowda. Accused No. 14-Prasanna, accused No. 15-Shivakumara and accused No. 16-Siddaramaiah are direct brothers and sons of-one Kallappa. The accused are also residents of Jalagaranahalli village.

On 16.03.2003, Mohankumar (husband of PW. 1) met with a homicidal death in Jalagaranahalli village and PW. 1-Annapoorna had also suffered injuries in the incident of assault.

The evidence in proof of homicidal death of deceased-Mohankumar on 16.03.2003 is given by PW. 17-Dr. K.K. Hebbur, who conducted post mortem examination on the dead body of deceased-Mohankumar in J.C. Hospital at Hassan. The Post Mortem Examination report of deceased-Mohankumar (Ex. P-11) shows that deceased-Mohankumar had suffered following injuries:-

1) 2" x 1" x 1" incised wound on Right occipital region.

2) 1/2" x 1/4" incised wound on the dorsal aspect of forearm at upper 1/3.

3) 2" x 1 1/2" Circular Abrasion on the dorsal aspect of left leg at upper 1/3.

4) 1" x 3/4" x 1/2" incised wound on the medical aspect of left knee.

5) 3" x 1" x 1/2" incised wound on the medial aspect of left knee.

6) 5" x 3" x 1" Lacerated wound on the lateral aspect of left foot.

7) Fracture of left leg at lower 1/3 (both bones).

8) 1" x 1" x 1" incised wound incised wound on the lateral aspect of right arm at lower 1/3" 2 in number.

9) Abrasion of 1" linear on the lateral aspect of right wrist.

10) 1" x 1/2" x 1/2" incised wound on the medical aspect of right thigh at lower 1/3.

11) Irregular abrasion of varying sizes on the medial aspect of right leg.

12) 2" x 1" x 1" incised wound on the medial aspect of right ankle.

13) 1" x 1" x 1/2" incised wound on the lateral aspect of right ankle.

14) 1" x 1/2" x 1/2" incised wound on the dorsal aspect of right foot.

15) Fracture of left humerus at lower 1/3.

The death was due to shock and hemorrhage as a result of external violence and also injury to vital organ brain. The accused have not controverted injuries found on the dead body of deceased-Mohankumar and also cause of death. The accused have sought to establish that death of Mohankumar occurred during early hours on 16.03.2003. This aspect will be dealt by us in the subsequent part of judgment.

The evidence of PW. 18-Dr. Sunil Kumar and the wound certificate marked as Ex. P-12 would reveal that PW. 1-Annapoorna had suffered following injuries:-

1) Cut lacerated wound over scalp over frontal region about 5" long.

2) 2" cut lacerated wound adjacent to previous one.

3) Cut lacerated wound measuring 1/2" over the forehead.

4) Cut lacerated wound measuring 1/2" just 1" above right elbow posteriorly exposing extensor apparatus.

5) Swelling dorsum of left foot with tenderness over 4th and 5th metatarsals.

The accused have not seriously controverted injuries suffered by PW. 1-Annapoorna. However, they have sought to establish that she had suffered injuries not at the hands of accused but at the hands of some other persons. This aspect will be dealt by us in the subsequent part of judgment.

It is the case of prosecution that there was enmity between accused and deceased-Mohankumar and aforestated prosecution witnesses. It is the case of prosecution that accused No. 1 and others were obstructing Marulasiddappa (father of PW. 4-Omkaramurthy) from using a road leading to his land. The road is a part of Kharab (unassessed) land. The deceased-Mohankumar had taken up the cause on behalf of Marulasiddappa and had brought surveyor, the road was demarcated and obstruction was removed. The accused were highly aggrieved and they bore grudge against deceased for taking lead in pathway dispute. In addition to this, there was also dispute between parties. It is alleged by accused that PW. 9-Shankarappa and one Birappa had encroached part of Gomala land. The accused No. 1 namely Chikkegowda had filed writ petition before the High Court and encroachment was removed. Accused No. 1 was instrumental for distribution of Gomala land to other villagers of Jalagaranahalli village and in that regard there was enmity between accused No. 1 and his followers on one side and other prosecution witnesses on the other side. These facts are suggested to PW. 1-Annapoorna during her cross-examination. Besides accused No. 1 examined as DW-1 has admitted that prior to 16.03.2003 the Taluk Magistrate had initiated 107 Cr.P.C. proceedings against faction lead by accused No. 1 and faction lead by complainant. The prosecution has produced documentary evidence, copies of first information reports which were filed by some of the prosecution witnesses against accused. Therefore, prosecution has established that there was enmity between accused on one side and deceased-Mohankumar and other prosecution witnesses namely PW. 2-Suresh Babu, PW. 3-Jayaprakash, PW. 4-Omkaramurthy, PW. 6-Basavaraju and PW. 9-Shankarappa on other side.

In order to bring home the guilt of accused, prosecution has relied on the following;

i) Eye witnesses account of PW. 1-Annapoorna injured witness, PW. 2-Suresh Babu, PW. 3-Jayaprakash, PW. 4-Omkaramurthy, PW. 5-Raghupathi, PW. 6-Basavaraju, PW. 7-Manjula, PW. 8-Lohith, PW. 9-Shankarappa, medical evidence of PW. 17-Dr. K.K. Hebbar, PW. 18-Dr. Sunil Kumar.

ii) Recovery of weapons on the information volunteered by accused.

iii) Reports of FSL and Serology.

Sri. A.H. Bhagwan, learned counsel for accused relying on the judgment of Supreme Court reported in Muralidhar @ Gidda and Another Vs. State of Karnataka, would submit that this Court hearing the appeal against judgment of acquittal cannot interfere with judgment of acquittal, if it is found that the Trial Court has taken reasonable view. The learned counsel would submit that this Court cannot interfere with the judgment of acquittal even other view is possible on reappreciation of evidence.

In the aforestated judgment, the Supreme Court has held:-

"Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;

(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and

(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."

The learned counsel for accused would submit that the Trial Court on appreciation of evidence has taken a reasonable view to acquit accused. Even this Court were to take a different view on reappreciation of evidence, the interference with judgment of acquittal is not permissible.

In view of what has been held in the above judgment, it is necessary for us to reappreciate entire evidence to find out if prosecution has proved the charges against accused beyond reasonable doubt; whether the Trial Court has taken a reasonable view to acquit accused. Therefore, we deem it proper to reappreciate the evidence adduced by prosecution and submissions made by learned counsel for parties to record our findings.

PW 1-Annapurna is the wife of deceased Mohankumar. PW 1 has deposed; on the date of incident at about 6 a.m. (morning) her husband (Mohankumar) was taking milk to milk collection centre; accused armed with weapons such as clubs, choppers and stones came near the house of Mohankumar and assaulted her husband; at that time, PW 1 was returning from cattle shed. Accused confronted her husband and scolded him PW 1 came to place of incident; accused No. 2-Shadakshari tried to assault on neck of Mohankumar with a chopper; Mohankumar held his left hand across his neck; accused No. 2 dealt a blow on left hand of Mohankumar and it was cut; accused No. 1 assaulted on head of Mohankumar with a chopper; accused No. 3-Shanthakumar assaulted on right thigh of Mohankumar with a chopper; accused No. 4-Ravikumar dropped a stone on left lower limb of Mohankumar; accused No. 5-Vijaykumar dropped a stone on right lower limb of Mohankumar; both limbs of Mohankumar were broken and they were dislocated; accused No. 7-K.G. Kumaraswamy @ Master Kumar pierced Mohankumar with a pointing edge of dassi (M.O. No. 8); accused No. 6-Honnegowda assaulted on left shoulder of Mohankumar with a club; accused No. 8-Sathish took a dassi (a sharp edged iron rod) from hands of accused No. 7-K.G. Kumaraswamy @ Master Kumar and pierced deceased; accused No. 9-Manjunath @ Manjappa dropped a stone on right foot of Mohankumar; PW 1 tried to intervene to save her husband, accused No. 1 assaulted on head of PW 1 with a chopper; accused No. 6-Honnegowda assaulted on head of PW 1 with a club; accused No. 8-Satish assaulted on right lower limb and right elbow of PW 1 with a club; accused No. 11-Neelakantappa assaulted Mohankumar with a club; accused No. 12-Chidananda, accused No. 13-Nataraj pulled clothes of PW 1, held her hands and dragged her; in the meanwhile, witnesses namely Shankarappa and Nagappa and others came to place of incident; accused left PW 1; accused No. 12-Chidananda held her hands; PW 1 questioned those witnesses as to why they had not interfered, those witnesses told her, accused no. 14-Prasanna, accused no. 15-Shivakumar and accused no. 16-Siddaramaiah tried to assault them with stones; in the meanwhile, PW 2-Suresh Babu and PW 3-Jaiprakash made a phone call and got an ambulance van; PW 1 and her husband were shifted to Primary Health Centre at Gandsi; doctor told that they were not equipped to treat the deceased and told PW 1 to take Mohankumar to J.C. Hospital at Hassan and they reached J.C. Hospital at Hassan. The doctors in J.C. Hospital examined and declared that her husband (Mohankumar) is dead, PW 1 was admitted in J.C. Hospital.

PW 1-Annapurna has deposed that her husband (Mohankumar) had taken lead to clear way (road) to the land of one Marulasiddappa about one month prior to date of incident, therefore, accused were bearing grudge against Mohankumar; PW 1 has identified weapons of offence. PW 1 has deposed; when she was in Primary Health Centre at Gandsi, police visited her; she narrated the incident to police; her statement was recorded as per Ex. P.1 and she has attested the same as per Ex. P.1(a); when PW 1 attested the document (Ex. P.1), the Medical Officer and police were present; after she was discharged from J.C. Hospital at Hassan, her further statement was recorded by police.

During cross-examination by the learned counsel for accused, PW 1 has deposed that incident took place at a distance of 30 meters from her house when her husband was carrying milk. PW 1 has stated before police that accused surrounded her husband and assaulted him with clubs, choppers, dassi and stones and her husband was in a critical condition and she has stated these facts before police. PW 1 has deposed that she has stated before police that accused scolded her husband as and picked up a quarrel with him. PW 1 has deposed; she has stated before police that accused No. 10-Karuna (since dead) and accused No. 11-Neelakantappa assaulted her husband with clubs; accused No. 12-Chidananda and accused No. 13-Nataraj pulled her clothes and dragged her by holding her hands from her behind; in the meanwhile witnesses namely Shankarappa and Nagappa came to place of incident. PW 1 has deposed; house of Mohankumar is situate at a distance of 50-60 metres from Jalagaranahalli Village; house of PW 1 is a farm house; main entrance of house of PW 1 is towards eastern side; towards left side of their house, there is a road leading from Jalagaranahalli Village to Kodikoppalu village; towards eastern and southern side of their house, there are garden lands; house of Nataraj is situate behind their house; road from Jalagaranahalli village to house of Mohankumar is a metallic road; house of Vishwanath is near to their house, so also house of one Nataraj; house of father-in-law of PW 1 (PW 9-Shankarappa) is situate in Jalagaranahalli village; one cannot see house of Mohankumar by standing near house of PW 9; if someone were to raise a cry in village, the same can be heard by standing near the house of Mohankumar. PW 1 has deposed; when she was brought to Primary Health Centre at Gandsi, she narrated the incident before the Medical Officer; police were already there in Primary Health Centre at Gandsi; the Medical Officer did not record history of injuries, but it was recorded by police; they stayed in Primary Health Centre for 5 to 10 minutes; PW 1 has deposed that she has not stated before the Medical Officer that a crowd of persons had come and assaulted PW 1 and her husband in their farm house; PW 1 has deposed that she has not deposed before the Medical Officer that a crowd of persons assaulted them with a crowbar. PW 1 has deposed that ambulance van came within an hour from time of incident; PW 1, her husband, her father-in-law (PW 9-Shankarappa) and PW 4-Omkaramurthy reached Primary Health Centre at Gandsi in an ambulance van; police had information of incident by the time PW 1 and others reached Primary Health Centre at Gandasi; PW 17-Dr. K.K. Hebbar enquired about incident in J.C. Hospital at Hassan; PW 1 has narrated the incident before PW 17; PW 1 was treated in J.C. Hospital at Hassan for about 9 days.

PW 1-Annapurna has denied the suggestion that police recorded first information (Ex. P.1) when she was in J.C. Hospital at Hassan. PW 1 has denied the suggestion that police had taken her signature on blank paper in Primary Health Centre at Gandasi. PW 1 has admitted, there were two Medical Officers namely PW 18-Dr. Sunilkumar and Dr. Dinesh. PW 1 has denied the suggestion that Dr. Dinesh is her relative. The Medical Officer had seen injuries suffered by PW 1. PW 1 has narrated before doctor that incident took place at about 6 a.m., (morning) and incident took place in front of Jalagaranahalli Village; when they reached J.C. Hospital at Hassan around 10 a.m., PW 1 narrated the incident before the Medical Officer in J.C. Hospital at Hassan. PW 1 has denied suggestion that accused had not assaulted them, therefore PW 1 had not given names of accused before the Medical Officer at Primary Health Centre at Gandsi. PW 1 has deposed; PW 17-Dr. K.K. Hebbar declared that Mohankumar is dead; at that time, PW 1, PW 9 and other persons were there in hospital. PW 1 has denied the suggestion that Marulasiddappa (the father of PW 4) came to J.C. Hospital at Hassan at about 10.30 a.m. PW 1 has denied the suggestion that first information (Ex. P.1) was prepared as narrated by him and she subscribed her signature to first information. PW 1 has deposed; deceased Mohankumar used to carry milk to Milk Collection Centre at Yadavanahalli Dairy; they were supplying 7 to 8 litres of milk; the distance between their house and Yadavanahalli Dairy is about 2 kilometres; Mohankumar was carrying milk can on a bicycle; bicycle and milk can had fallen near place of incident and milk had spilled; PW 1 was not aware as to what happened to milk can and bicycle after the incident; PW 1 was not aware whether there was any dispute between accused No. 1, deceased Mohankumar and PW 9; when she gave first information, she has stated that there were cases between two parties and they were pending before court. PW 1 has deposed that when her statement was recorded, she has not stated that accused had come near their house as per Ex. P.1. PW 1 has admitted that in the first information, she has stated that one Nagaraj S/o. Basappa was present at the time of incident. PW 1 has deposed; before the incident took place, PW 1, her husband (deceased Mohankumar), PW 6-Basavaraju (father of PW 1) and daughter of PW 1 were present in their house. PW 1 has deposed; on the previous night at about 8 p.m., they took food. PW 1 has denied suggestion that on the previous night, PW 3-Jaiprakash had visited their house. PW 1 has denied suggestion that on 16.03.2003 at about 4 a.m., PW 1 and PW 3-Jaiprakash committed murder of Mohankumar in the house of Mohankumar, in that connection they were interrogated by police. PW 1 has denied suggestion that on 16.03.2003 at about 4 a.m., her husband was dead and they had brought deadbody of deceased to Primary Health Centre at Gandasi and later they had taken deadbody to J.C. Hospital at Hassan. PW 1 has deposed that revenue officials had come to village about 3 or 4 days prior to date of incident and they cleared road to land of Marulasiddappa; PW 1 was not aware that about 25 acres of gomal lands was available in Survey No. 3:4 in their village and her father-in-law (PW 9-Shankarappa) and one Bhyrappa had encroached a portion of gomal land and accused No. 1 had filed a writ petition and got encroachment removed and at his instance, gomal land was distributed to other villagers; PW 1 had not gone to houses of her neighbours namely Vishwanath and Nataraj to bring them to place of incident; PW 1 had gone to rescue her husband. PW 1 has denied suggestion that in the first information, she has not stated that accused No. 8-Sathish pierced Mohankumar with the same dassi (an iron rod) which accused No. 7 had used to pierce Mohankumar. PW 1 has denied suggestion that she has not stated that accused No. 1 assaulted deceased. PW 1 has admitted suggestion that her father (PW 6-Basavaraju) was tried in a murder case and he was convicted. PW 1 has denied suggestion that she was cordial with PW 3-Jaiprakash, PW 3 was frequently visiting her house; due to frequent visits of PW 3 to house of PW 1, there was grudge between deceased Mohankumar and PW 3-Jaiprakash. PW 1 has denied the suggestion that on 15.03.2003, PW 3-Jaiprakash, deceased Mohankumar had quarreled in a drunken state. Deceased Mohankumar came to his house at 1 a.m., during midnight. PW 1 has denied the suggestion that at about 4 a.m., on 16.03.2003, PW 3-Jaiprakash and his henchmen came in a group, assaulted and caused death of Mohankumar, in his house. PW 1 and PW 3 contrived and foisted a case against accused. PW 1 has denied the suggestion that she suffered injuries in quarrel that took place in her house at about 4 a.m. on 16.03.2003. PW 1. has the denied suggestion that PW 3-Jaiprakash had divorced his wife namely Meena @ Sumithra.

During cross-examination by learned counsel for accused No. 7, 14 to 16, PW 1 has denied the suggestion that accused No. 7, 14 to 16 had nothing to do with pathway dispute. PW 1 has denied the suggestion that she has not seen the incident of assault.

From the tenor of cross-examination of PW 1, we find that defence has sought to establish;- that there was intimacy between PW 1-Annapurna and PW 3-Jaiprakash; deceased Mohankumar had taken serious objections for visit of PW 3-Jaiprakash to his house; therefore, PW 3 had brought his henchmen and committed murder of deceased Mohankumar at about 4 a.m., on 16.03.2003; thereafter, PW 1 and PW 3 contrived and concocted a case against accused; PW 1 and PW 3 had taken deadbody of deceased Mohankumar to Primary Health Centre at Gandasi and later to J.C. Hospital at Hassan, knowing full well that he was already dead. In our considered opinion, this defence put forth by accused is baseless.

The learned counsel for accused instead of eliciting facts to discredit evidence of PW 1 has resorted to assassinate the character of PW 1, without any basis.

In order to substantiate the aforestated defence version, accused No. 1-Chikkegowda in his evidence has produced certified copies of petition (Ex. D.12), objections statement (Ex. D.13), depositions of Meena @ Sumithra (Ex. D.14), deposition of PW 3-Jaiprakash (Ex. D15) and copy of judgment (Ex. D.16) made in M.C. No. 14/1997, on the file of Civil Judge at Arasikere.

From copy of judgment made in M.C. No. 14/1997, we find that marriage between PW 3-Jaiprakash and his wife namely Meena @ Sumithra was dissolved by a decree of divorce as there was no cohabitation between spouses for a period of two years after marriage and petitioner namely Meena @ Sumithra, wife of PW 3 was interested in getting permanent alimony of Rs. 85,000/- from PW 3-Jaiprakash to have their marriage dissolved by a decree of divorce.

At this juncture, it is necessary to refer to copy of petition filed in M.C. No. 14/1997. In this petition, it is stated that marriage of Meena @ Sumithra and PW 3-Jaiprakash was performed on 04.05.1995. Thereafter, they had never lived together as husband and wife.

PW 9-Shankarappa has deposed; marriage of deceased Mohankumar (his elder son) and PW 1 was performed about 8 or 9 years prior to 06.03.2007 (date of examination of PW 9 before court); this part of evidence of PW 9 has not been controverted. Thus, it can safely be inferred that marriage between deceased Mohankumar and PW 1 was performed somewhere in the year 1996. It is obvious that PW 1 came to house of her husband in the year 1996-97. In the circumstances, the version of defence that PW 3-Jaiprakash had illicit intimacy with PW 1, therefore, first wife of PW 3 namely Meena @ Sumithra had filed a divorce petition looks absurd. In our considered opinion, accused have put forth defence version of illicit intimacy between PW 3 and PW 1, without any responsibility.

The law is fairly well settled that a false plea put forth by defence would not absolve the duty of prosecution to prove its case beyond reasonable doubt.

The evidence of PW 1 that she had suffered injuries due to assault has not been controverted. As per medical evidence of PW 18-Dr. Sunilkumar, he examined PW-1-Annapurna at about 9.30 a.m., on 16.03.2003 in Primary Health Centre at Gandasi and found following injuries:-

6) A cut lacerated wound over scalp over frontal region about 5" long.

7) 2" cut lacerated wound adjacent to previous one.

8) A cut lacerated wound measuring 1/2" over forehead.

9) A cut lacerated wound measuring 1/2" just 1" above right elbow posteriorly exposing extensor apparatus.

10) Swelling dorsum of left foot with tenderness over IV and V metatarsals.

During cross-examination, evidence of PW 18-Dr. Sunilkumar regarding injuries suffered by PW 1 has not been controverted, however, much of cross-examination of PW 18 has been directed against history of injuries recorded by him.

At this juncture, it is necessary to state that PW 1 has deposed that her statement (first information as per Ex. P.1) was recorded by PW 20-K.L. Ganesh, the then PSI of Gandasi Police Station.

PW 20-K.L. Ganesh, PSI of Gandasi Police Station has deposed; he was the Sub-inspector of Police of Gandasi Police Station in the year 2003; the distance between Gandasi Police Station and Primary Health Centre at Gandasi was 10 feet and they were situate in same compound; PW 20 recorded statement of PW 1 between 9 a.m. and 9.45 a.m., on 16.03.2003 in Primary Health Centre at Gandasi; PW 20 has deposed that Ex. P.1 is the first information and signature of PW 1 is Ex. P.1(a). PW 20 has deposed; he recorded statement of PW 1 before PW 18-Dr. Sunilkumar; PW 18 has endorsed the same as per Ex. P.1(b); PW 20 registered crime No. 38/2003, on the basis of Ex. P.1 and dispatched the first information report to jurisdictional court (JMFC at Arasikere) through P.C. No. 61.

In a decision reported in Pattipati Venkaiah Vs. State of Andhra Pradesh, , the Supreme Court has held:-

"17............ A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico-legal cases......"

In the case on hand, the statement of PW 1 was recorded by PW 20 (PSI) in Primary Health Centre at Gandasi, there was no need for the Medical Officer (PW 18) to record history of injuries. Therefore, the attempt made by defence to discredit the evidence of PW 1-Annapurna for her failure to give the names of accused before the Medical Officer (PW 18) and failure of PW 18-Dr. Sunilkumar (Medical Officer) to record the names of accused in detail was an exercise in futility, when statement of PW 1 (first informant) was recorded by Investigating Officer (PW 20) in Primary Health Centre at Gandasi in the presence of PW 18-Dr. Sunilkumar (Medical Officer), the failure of PW 18-Dr. Sunilkumar to enquire PW 1 as to who committed the offence does not discredit evidence of PW 1.

In the discussion made supra, we have held that PW 1-Annapurna had suffered following injuries:-

1) A cut lacerated wound over scalp over frontal region about 5" long.

2) 2" cut lacerated wound adjacent to previous one.

3) A cut lacerated wound measuring 1/2" over forehead.

4) A cut lacerated wound measuring 1/2" just 1" above right elbow posteriorly exposing extensor apparatus.

5) Swelling dorsum of left foot with tenderness over IV and V metatarsals.

In the discussion made supra, we have held that cross-examination of PW 1 that she had intimacy with PW 3-Jaiprakash and PW 1 & PW 3 had committed murder of deceased Mohankumar is baseless. It is very unfortunate that defence has assassinated the character of PW 1-Annapurna, without any basis.

PW 1-Annapurna was an injured witness. PW 1 is the wife of deceased Mohankumar. Her presence near place of incident cannot be suspected. In a decision reported in Brahm Swaroop and Another Vs. State of U.P., , the Supreme Court has held:-

Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". (Vide State of U.P. v. Kishan Chand, Krishan v. State of Haryana, Dinesh Kumar v. State of Rajasthan, Jarnail Singh v. State of Punjab, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.)

Sri A.H. Bhagavan, learned counsel for accused, relying on a decision of the Supreme Court, reported in Joseph Vs. State of Kerala, , would submit that it is improper to base conviction on the basis of evidence of solitary injured witness, which is in conflict with other evidence and medical evidence. The evidence of PW 1-Annapurna cannot be accepted, merely because she was an injured witness.

The learned counsel for accused has relied on a decision reported in Narayan Kanu Datavale and others Vs. State of Maharashtra, , wherein, the High Court of Bombay has held that if it is established that solitary injured witness is wholly unreliable, it is not safe to convict accused, solely on the basis of evidence of injured witness.

In the decision reported in Joseph Vs. State of Kerala, , the Supreme Court has held "that in a case of this nature when there is a sole witness to the incident, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. By this standard when prosecution case rests mainly on the sole testimony of an eye-witness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted".

The learned counsel for accused referring to the contents of the first information (Ex. P1) and evidence of PW 1 would submit that PW 1 has made deliberate improvements in her evidence. In the first information, PW 1 has stated that accused 1 to 6 and accused 8 to 11 were the members of unlawful assembly and they had assaulted deceased Mohankumar and some of them had assaulted PW 1. PW 1 has not stated that accused No. 12-Chidananda & accused No. 13-Nataraj pulled her clothes and outraged her modesty. PW 1 has not stated about presence and participation of accused no. 7 and 12 to 16. During trial, PW 1 has made a deliberate attempt to implicate all the accused.

The learned counsel for accused would submit that PW 1 has deposed that accused No. 1-Chikkegowda assaulted on head of deceased Mohankumar and on her head with a chopper. These facts are not stated in the first information.

The learned counsel for accused would submit that the contents of first information are concocted. The signature of PW 1 had been taken on a blank paper and later first information was prepared. The learned counsel for accused would submit that PW 1 is not a reliable witness, notwithstanding the fact that PW 1 was injured due to assault.

The learned counsel for accused referring to evidence of PW 1, spot inspection report and evidence of PW 20-K.L. Ganesh (Investigating Officer) would submit that incident had not taken place in front of house of PW 1. The learned counsel for accused would submit that evidence of PW 1 regarding place of incident is in variance with evidence of other witnesses and the evidence of Investigating Officer.

The learned counsel for accused, referring to the contents of post-mortem examination report of deceased Mohankumar (Ex. P.11) and evidence of PW 17-Dr. K.K. Hebbar would submit that time of death suggested by prosecution cannot be accepted. It is probable that death of Mohankumar had occurred during early hours of 16.03.2003. The learned counsel would submit that trial court was justified in disbelieving evidence of PW 1.

The learned counsel for accused would submit that evidence of PW 1 regarding presence of other eye-witnesses is doubtful. In the first information, PW 1 has stated that three persons namely Nagaraj S/o. Basappa, Raghu S/o. Shambhulingappa and S. Shivashankarappa S/o. Shivananjappa were present at the time of incident. The aforestated Nagaraj S/o. Basappa and S. Shivashankarappa S/o. Shivananjappa were not examined before trial court. The identification of witness namely Raghu S/o. Shambhulingappa is doubtful. In the first information, PW 1 has not stated about the presence of other witnesses, in particular, presence of her father (PW 6-Basavaraju) and her father-in-law (PW 9-Shankarappa).

Sri P.M. Nawaz, learned counsel for appellant-victim, relying on the decision reported in Pattipati Venkaiah Vs. State of Andhra Pradesh, would submit that mere failure of eyewitness to disclose names of assailants to doctor would not discredit him as an eyewitness.

The learned counsel for appellant-victim would submit that PW 1-Annapurna was seriously injured in the incident of assault. PW 1 had witnessed brutal assault on her: husband (deceased Mohankumar) by accused. When the first information was recorded, condition of her husband was critical. In the circumstances, it would not be proper to expect that PW 1 should have given details of all witnesses.

The learned counsel for appellant-victim would further submit that PW 1 was cool headed with a composed state of mind to narrate details of all witnesses and overt acts of each of the accused.

The learned-counsel for appellant-victim would submit that identification of witness namely Raghu S/o. Shambhulingappa is not in dispute. The other witnesses namely Nagaraj S/o. Basappa and S. Shivashankarappa S/o. Shivananjappa were not examined. The incident of assault was a result of feud between two factions in a faction ridden village. In the circumstances, neutral witnesses would hardly come forward to give evidence. Therefore, failure of prosecution to examine aforestated witnesses cannot be a ground to discredit evidence of PW 1 and other eyewitnesses who have been examined before the trial court.

The learned counsel for appellant victim, relying on a decision of the Supreme Court, reported in Gangadhar Behera and Others Vs. State of Orissa, would submit that merely because of witnesses being related to deceased, that by itself would not affect credibility of testimony of such witnesses. The ground that witness being a close relative of victim/deceased and consequently being a partisan witness, should not be relied upon, has no substance. PW 1-Annapurna being the wife of deceased Mohankumar would be least disposed to spare the real assailants and falsely implicate accused.

The learned counsel for appellant-victim would submit that evidence of PW 1 finds corroboration from evidence of PW 2 to PW 10.

Sri P.M. Nawaz, learned counsel for appellant-victim would submit that medical evidence is not decisive on the time of death. The learned counsel for victim has relied on a decision of the Supreme Court, reported in Pattipati Venkaiah Vs. State of Andhra Pradesh, . In this decision, the Supreme Court has field:-

"10. Medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerized or mathematical fashion so as to be accurate to the last second."

In a decision reported in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, , the Supreme Court has held:-

"11...... To impute exactitude to a medical statement oblivious to the variables noticed by experts and changes in dietary habits is to be unfair to the science. We are not prepared to run the judicial risk of staking the whole verdict on nebulous medical observations....."

PW 1-Annapurna is the wife of deceased Mohankumar. PW 1 had suffered injuries in the incident of assault notwithstanding this fact, we deem it proper to subject her evidence to close scrutiny before acceptance. It is also necessary for us to find out if evidence of PW 1 is corroborated from the evidence of other witnesses.

During cross-examination by learned counsel for accused, PW 17-Dr. K.K. Hebbar has deposed there is possibility of death of Mohankumar had occurred between 3 a.m. and 4 a.m., on 16.03.2003.

The learned Sessions Judge has taken into consideration evidence of PW 17-Dr. K.K. Hebbar as one of the reasons to discredit evidence of PW 1.

We notice from evidence of PW 17-Dr. K.K. Hebbar that he had not assigned any reasons for assessing time of death of Mohankumar and to give time of death as aforestated. In the post-mortem examination report, PW 17 has not stated the possibility of death, having occurred between 3 a.m. and 4 a.m.

In the decisions cited supra, the Supreme Court has held that medical science has not so developed to give exact time of death. The Supreme Court has also held that court cannot run judicial risk of staking the whole verdict on nebulous medical observations. The evidence of Medical Officer has to be considered like evidence of any other witness. The evidence of Medical Officer does not bear presumptive value. PW 17-Dr. K.K. Hebbar has not assigned reasons to arrive at a conclusion that death of Mohankumar occurred between 3 a.m., and 4 a.m., on 16.03.2003.

We also notice from the contents of post-mortem examination report of deceased Mohankumar that PW 17-Dr. K.K. Hebbar, who had conducted post-mortem examination has not stated in post-mortem examination report about possibility of death of Mohankumar having occurred between 3 a.m. and 4 a.m., on 16.03.2003. In our considered opinion, PW 17-Dr. K.K. Hebbar had given this evidence to distort eye-witness account of incident given by PW 1-Annapurna and to help accused to wriggle out of the situation. In our considered opinion, PW 17-Dr. K.K. Hebbar should have been treated as a hostile witness.

The learned Sessions Judge while accepting evidence of PW 17, has not taken notice of these deliberate improvements made by PW 17-Dr. K.K. Hebbar to help accused. PW 17 is a doctor. He was supposed to give evidence supported by reasons. The time of death cannot be assessed without assigning reasons. The learned Sessions Judge has failed to notice the evidence of PW 18-Dr. Sunilkumar that the condition of Mohankumar was critical when he was brought to Primary Health Centre at Gandasi, has not been controverted by the accused. The evidence of PW 18 that Mohankumar was alive when he was shifted from Primary Health Centre at Gandasi at about 9.30 a.m. on 16.03.2003 has not been controverted.

The evidence of Investigation Officer (PW 20) and contents of first information report registered for offences punishable under sections 143, 147, 326, 307 r/w 149 IPC have not been controverted. The learned Sessions Judge has failed to consider this uncontroverted evidence.

The law is fairly well settled that opinion furnished by a medical expert, without assigning reasons is no evidence in the eye of law. Therefore, accused cannot be permitted to build edifice of defence on the basis of evidence of PW 17-Dr. K.K. Hebbar.

The accused have made unsuccessful attempts to distort place of incident. During cross-examination of PW 1 and some of the prosecution witnesses, accused have made unsuccessful attempts to establish that the farm house in which deceased Mohankumar and PW 1 were living is far away from Jalagaranahalli Village and incident had taken place during early hours of 16.03.2003. Therefore, evidence of PW 2 to PW 10 that they had witnessed incident of assault is highly improbable.

In the discussion made supra, we have rejected defence theory that PW 3-Jaiprakash had illicit intimacy with PW 1-Annapurna and they had committed murder of deceased and later they had concocted a case against accused. The spot inspection report and evidence of PW 1-Annapurna would reveal that incident had taken place on the road from Jalagaranahalli Village to Kodikoppalu Village. The spot inspection report would reveal that incident took place on the road near school of Jalagaranahalli Village. Accused No. 1-Chikkegowda examined as DW 1 has deposed that the school is situate in front of house of PW 1-Annapurna (wife of deceased Mohankumar). At this juncture, it would be relevant to state that the incident of assault had taken place in open space, the victims and assailants were not static. Therefore, evidence of PW 1 that distance between the place of incident and house of PW 1 is about 30 meters and evidence of other eye-witnesses that incident had taken place on road near school cannot be suspected.

In the discussion made supra, we have held that evidence of PW 1 needs close scrutiny before its acceptance, notwithstanding the fact that she was injured in the incident of assault. It is seen from evidence of PW 1-Annapurna that she has deposed against accused 1 to 16, however in first information report, she has stated that accused 1 to 6 & 8 to 11 were the members of unlawful assembly and they had assaulted deceased Mohankumar and PW 1 with deadly weapons like choppers, stones, clubs and a dassi.

On careful consideration of the contents of first information, and evidence of PW 1, we find that PW 1 has deposed that accused No. 12-Chidananda & accused No. 13-Nataraj had outraged her modesty. PW 1 learnt that accused No. 14-Prasanna, accused No. 15-Shivakumar and accused No. 16-Siddaramaiah were attempting to pelt stones.

If accused No. 12-Chidananda and accused No. 13-Nataraj had outraged modesty of PW 1, she would not have omitted to state the same in first information as outraging her modesty is a serious offence. PW 1 had no reasons to omit the names of accused No. 14-Prasanna, accused No. 15-Shivakumar and accused No. 16-Siddaramaiah in the first information. The evidence of PW 1 that she learnt from witnesses that accused No. 14-Prasanna, accused No. 15-Shivakumar and accused No. 16-Siddaramaiah attempted to pelt stones is rather vague. These discrepancies in the evidence of PW 1 and omissions in the first information would go to the benefit of accused No. 7-J.K. Kumaraswamy @ Kumar, accused No. 8-Sathish and accused No. 12-Chidananda, accused No. 13-Nataraj, accused No. 14-Prasanna, accused No. 15-Shivakumar and accused No. 16-Siddaramaiah. It is necessary for us to examine credibility of evidence of PW 1 against accused no. 1 to 6 and accused no. 11 with reference to post-mortem examination report of deceased Mohankumar and wound certificate of PW 1-Annapurna.

Sri A.H. Bhagavan, learned counsel for accused would submit that in the first information, PW 1 has not stated that accused No. 1-Chikkegowda assaulted on head of deceased Mohankumar with a chopper, however, PW 1 has stated that accused No. 1-Chikkegowda assaulted on right side of her head with a chopper, obviously, it is an improvement made by PW 1 to implicate accused No. 1-Chikkegowda.

The learned counsel for accused would submit in the first information, PW 1 has not stated about the overt acts attributed to accused no. 6. PW 1 has not stated that accused no. 6 assaulted deceased Mohankumar.

PW 1 has deposed that accused No. 6-Honnegowda assaulted on left shoulder of deceased with a club. From the contents of post-mortem examination report (Ex. P.11), we find that deceased Mohankumar had suffered fracture of left humerus at lower 1/3rd. Therefore, submission of learned counsel for accused that PW 1 had given improvised version that accused No. 6-Honnegowda had assaulted on left shoulder of deceased Mohankumar with a club, cannot be accepted.

The evidence of PW 1 against accused No. 7-J.K. Kumaraswamy @ Kumar is vague. PW 1 has deposed that accused No. 8-Sathish stabbed deceased with a dassi after snatching the same from accused No. 7 J.K. Kumaraswamy @ Kumar. In the discussion made supra, we have not accepted the evidence of PW 1 regarding presence and participation of accused no. 7. Therefore, evidence of PW 1 that accused no. 8 snatched a dassi from hands of accused no. 7 and pierced into body of Mohankumar is not free from reasonable doubt.

In the post-mortem examination report of deceased Mohankumar, we do not find corresponding injury on the person of deceased.

As regards presence and participation of accused no. 1, we find that PW 1 has deposed that accused No. 1-Chikkegowda assaulted on the head of deceased with a chopper.

From the contents of post-mortem examination report (Ex. P.11), we find that deceased Mohankumar had suffered an incise wound measuring 2" x 1" x 1" on right occipital region.

It is true, in the first information, PW 1 has not stated that accused No. 1.-Chikkegowda had assaulted on head of deceased Mohankumar with a chopper, PW 1 in her evidence has deposed that accused No. 1-Chikkegowda had assaulted on head of deceased Mohankumar with a chopper and also assaulted on right side of her head with a chopper.

At this juncture, it is relevant to state that when a group of assailants were assaulting PW 1 and her husband, it would not be possible for her to give the names of each assailant and role played by each assailant when her first information was recorded. PW 1 has deposed that accused No. 1-Chikkegowda assaulted on right side of her head with a chopper. This evidence finds corroboration from the contents of first information.

From the contents of wound certificate (Ex. P.12) and evidence of PW 18-Dr. Sunilkumar, we find that PW 1 had suffered a cut lacerated wound on scalp over frontal region measuring 5" long, a cut lacerated wound measuring 2" adjacent to previous one and a cut lacerated wound measuring 1/2" over forehead.

The evidence of PW 1 that accused No. 1-Chikkegowda assaulted on right side of her head with a chopper finds corroboration from medical evidence of PW 18-Dr. Sunilkumar. Therefore, evidence of PW 1 regarding presence and participation of accused No. 1-Chikkegowda in the incident of assault cannot be discredited.

PW 1 has deposed that accused No. 2-Shadakshari assaulted on left hand of deceased Mohankumar with a chopper and it was cut.

We find from the contents of post-mortem examination report (Ex. P.11) that deceased Mohankumar had suffered an incise wound measuring 1/2" x 1/4" on dorsal aspect of left forearm at upper 1/3rd.

Deceased Mohankumar had suffered a cut injury on left forearm. It appears that PW 1 has given exaggerated version that left upper limb of her husband was cut.

PW 1-Annapurna has deposed that accused No. 3-Shanthakumar assaulted on right thigh of her husband with a chopper.

From the contents of post-mortem examination report, we find that deceased Mohankumar had suffered an incise wound measuring 1" x 1/2" x 1/2" on medial aspect of right thigh at lower 1/3rd.

PW 1 has deposed that accused No. 4-Ravikumar dropped a stone on left leg of deceased Mohankumar.

From the contents of post-mortem examination report, we find that deceased Mohankumar had suffered a lacerated wound measuring 5" x 3" x 1" on lateral aspect of left foot.

PW 1-Annapurna has deposed that accused No. 5-Vijaykumar dropped a stone on right leg of deceased Mohankumar and both limbs were broken.

From the contents of post-mortem examination report (Ex. P.11), we find that deceased Mohankumar had suffered fracture of both bones of left leg at lower 1/3rd.

PW 1-Annapurna has deposed that accused No. 9-Manjunath @ Manjappa dropped a stone on right lower limb of deceased Mohankumar. From the contents of post-mortem examination report (Ex. P.11), we do not find that deceased had suffered any corresponding injury.

PW 1 has deposed that accused No. 11-Neelakantappa assaulted deceased Mohankumar with a club. From the contents of post-mortem examination report (Ex. P.11), we find that deceased Mohankumar had suffered a circular abrasion measuring 2" x 1 1/2" on dorsal aspect of left leg at upper 1/3rd, a linear abrasion measuring 1" on lateral aspect of right wrist and irregular abrasions of varying sizes on medial aspect of right leg.

In the discussion made supra, we have narrated the incriminating evidence given by PW 1-Annapurna relating to presence and participation of accused No. 1 to 6 & 11 and we have also narrated the injuries found on deceased Mohankumar.

PW 2-Suresh Babu has deposed that he had witnessed the incident of assault. On careful consideration of evidence of PW 2, we find that before incident took place, PW 2 was near Yadavanahalli Dairy, which was at a distance of 2 kilometres from place of incident.

PW 2-Suresh Babu has deposed; one Sundaresh came and informed him about incident of assault; thereafter, he came to place of incident on his motorcycle. PW 2 has made an omnibus statement that all accused were assaulting deceased Mohankumar and PW 1-Annapurna.

During cross-examination, PW 2 has deposed; at about 6.10 a.m., he learnt about the incident; one Sundaresh informed PW 2 that accused had committed murder of deceased Mohankumar at about 6 a.m.; when his statement was recorded by police, he has stated that at the time of incident, he was near Yadavanahalli Dairy and murder of deceased was committed at about 6 a.m., and one Sundaresh informed PW 2 about murder of deceased Mohankumar and PW 2 came to place of incident.

At this juncture, it is necessary to state that one Sundaresh, who had allegedly seen the incident and who had informed PW 2 about the incident of assault was not examined before trial court. From the evidence of PW 2, we find that PW 2 had learnt about the incident of assault from one Sundaresh. It looks improbable that accused were still near place of incident till arrival of PW 2. Therefore, it can safely be held that PW 2 was a post-occurrence witness and, he had not witnessed the incident of assault.

PW 3-Jaiprakash S/o. Bhairappa has deposed on 16.03.2003 at about 6 a.m., when deceased was carrying milk, accused armed with choppers, clubs, dassis and stones were assaulting deceased Mohankumar; accused were also assaulting PW 1-Annapurna; when PW 3 came near place of incident, he was chased by accused; therefore, PW 3 ran away from that place and he stood at a distance of 10 meters from place of incident; deceased Mohankumar and PW 1-Annapurna were taken ambulance van to Primary Health Centre at Gandsi.

PW 3-Jaiprakash is the nephew of Marulasiddappa. Admittedly PW 3 is a partisan witness. The dispute of pathway between Marulasiddappa, who is the uncle of PW 3 and accused was the main reason for enmity between parties. The evidence of PW 3 that he had seen accused assaulting deceased Mohankumar and also PW 1-Annapurna is vague. The evidence of PW 3 lends corroboration to evidence of PW 1 that incident had taken place near the school at a distance of 30 meters from the house of PW 1.

During cross-examination of PW. ''3-Jaiprakash, it is suggested to him that he had illicit intimacy with PW 1-Annapoorna and he was leading adulterous life with PW 1-Annapoorna in the presence of his wife. There is specific reference to M.C. No. 14/1997 filed by the wife of PW. 3 namely Meena @ Sumithra. It has been suggested to PW 3 that on 16.03.2003 at about 4.00 a.m., PW 3 with the support of his henchmen and PW 1-Annapurna committed the murder of Mohankumar to continue his intimacy with PW 3 and thereafter PW 1 & PW 3 concocted a case against the accused. In our considered opinion, these suggestions are made without any sense of responsibility or decency.

The learned counsel for accused has assassinated the character of PW 1-Annapurna and PW 3-Jaiprakash. Accused no. 1 has produced the certified copy of judgment made in M.C. No. 14/1997. As per the judgment made in M.C. No. 14/1997, the marriage of Jaiprakash and Meena was performed on 04.05.1995. The petitioner therein namely Meena @ Sumithra had stayed in the house of her husband (PW 3) for a period of two or three months. There was no cohabitation between the couple and a panchayat was held. In the panchayat, it was resolved that PW 3 should pay permanent alimony of Rs. 85,000/- to his wife Meena. The learned Civil Judge has granted a decree of divorce on the ground that there was no compatibility between the parties and they had not cohabited for a period of two years after the marriage. The accused have relied on this judgment. Therefore, suggestion made to PW 3 that PW 3 had illicit intimacy with PW 1, in the presence of his wife Meena is totally absurd. It is unfortunate that the learned Sessions Judge has accepted this defence version to some extent.

PW 4-Omkaramurthy is the son of Marulasiddappa. PW 4 has deposed about road dispute between his father Marulasiddappa and accused. PW 4 has deposed that on 23.01.2003, PW 4 & others had brought Tahsildar, Surveyor, Village Accountant and other Revenue officials to their village to sort out road dispute and they removed the obstruction of the road. Deceased Mohan Kumar had taken lead to resolve the dispute with intervention of revenue officials. PW 4 has deposed that on 16.03.2003 at about 6 a.m., he was going to his garden land; at that time, accused were present there; they were armed with weapons; they told PW 4 that they had killed Kumar; when PW 4 came near the place of incident, he found that Mohankumar had suffered serious injuries.

PW 4-Omkaramurthy learnt about the incident from some of accused. The evidence of PW 4 is hearsay in nature. It also looks improbable that accused after assaulting deceased Mohankumar and PW 1-Annapurna would stand in a group near the place of incident to tell PW 4 that they had assaulted deceased Mohankumar and PW 1-Annapurna and ask PW 4 to go and see them.

The evidence of PW. 4 relates to post-occurrence events. PW. 4 had reached the place of incident after the incident was over. Therefore, his evidence that he had seen Mohankumar suffering bleeding injuries and PW. 1 had suffered injuries near the place of incident would lend corroboration to the evidence of PW. 1 that the incident had taken place on Jalagaranahalli-Kodikoppalu road at a distance from the house of deceased Mohan Kumar.

PW. 4 has denied the suggestion that PW. 3-Jayaprakash had illicit intimacy with PW. 1. PW. 4 has denied the suggestion that PW. 3-Jayaprakash, PW. 1-Annapoorna and henchmen of PW. 3 committed the murder of Mohankumar at about 4.00 a.m., on 16.03.2003 and thereafter PW 1 and PW 3 implicated the accused.

PW. 5-Raghupathi, S/o. Shambulingappa is stated to have witnessed the incident. PW. 5 has deposed; that on the date of incident, he heard the noise of quarrel from the side of house of Mohan Kumar, therefore, he came near the house of Mohankumar; the accused were assaulting Mohan Kumar at a distance of 10 meters from the house Mohan Kumar; accused no. 1-Chikkegowda assaulted on the head of deceased Mohankumar with a chopper; accused no. 2-Shadakshari assaulted on the left upper limb of Mohankumar with a chopper; accused no. 3-Shanthakumar assaulted on the right thigh of Mohankumar with a chopper; accused no. 5-Vijayakumar assaulted on the right leg of Mohankumar with a, stone; accused no. 4-Ravikumar assaulted on the left leg of Mohankumar; accused no. 9-Manjunath @ Manjappa assaulted Mohankumar with a stone; accused no. 6-Honnappa, accused no. 10-Karunakar and accused no. 11-Neelakantappa assaulted Mohankumar with clubs; accused no. 8-Sathish pierced the left ankle of Mohankumar with a Dassi; accused no. 7-Kumaraswamy pierced on the left leg of Mohankumar with a dassi; accused no. 14-Prasanna, accused no. 15-Shivakumar and accused no. 16-Siddaramaiah were assaulting the deceased with stones. Accused no. 12-Chidananda and accused no. 13-Nataraj had assaulted PW. 1-Annapoorna and they had pulled her saree. After he reached the place of incident, the witnesses namely PW. 4-Omkaramurthy, PW. 3-Jayaprakash, PW. 9-Shankarappa and others came to the place of incident; the accused belled out that Mohankumar is dead and left that place; some of the accused carried the weapons of offence and some of them threw the weapons.

PW. 5 has deposed; that immediate motive for the incident is pathway dispute situate in Sy. No. 6; the dispute was pending since 10 years prior to the date of incident; deceased Mohankumar had taken lead and the obstruction way to the land of Marulasiddappa (maternal grandfather of PW. 5) was removed.

During cross-examination, PW. 5 has deposed that he is a native of Bannihalli village. He is the maternal grand son of Marulasiddappa. In other words, Jalagaranahalli is the native place of his mother. He has admitted that Mohankumar is the son of elder brother of grand mother of PW. 5. He has denied the suggestion that house of Mohankumar is situate at a distance of two furlongs from the house of first accused.

PW. 5 has deposed; that the distance between house of first accused and deceased Mohankumar is about 35-40 meters; on the date of incident, he was removing cow dung in the cattle shed of his maternal grand father Marulasiddappa.

PW. 5 has deposed; that when his statement was recorded, he has stated that the incident took place at a distance of 15 meters from the house of Mohankumar. He has denied the suggestion that he was not present in Jalagaranahalli village at the time of incident. He has denied the suggestion that on 17.03.2003, PW. 3-Jayaprakash, PW. 4-Omkaramurthy and his maternal grand father (Marulasiddappa) got him from his village Bannihalli.

The learned counsel for accused would submit that PW. 5-Raghupathi is not a native of Jalagaranahalli village and his presence in Jalagaranahalli village on the date of incident looks highly improbable. PW. 4-Omkar Murthy who is the maternal uncle of PW. 5-Raghupathi has not deposed about presence of PW. 5 in his house on the date of incident.

On careful consideration of evidence of. PW. 5, we find that he is a native of Bannihalli village and he has given reasons for staying in Jalagaranahalli village. His name is also found in the first information report. The evidence of PW. 5 that accused no. 1-Chikkegowda assaulted on the head of deceased with a chopper; accused no. 2-Shadakshari assaulted on the left upper limb of deceased with a chopper; accused no. 3-Shanthakumar assaulted on the right thigh of deceased with a chopper; accused no. 4-Ravikumar dropped stone on the left leg of deceased Mohankumar; accused no. 5-Vijayakumar assaulted on the right leg of deceased with a stone; accused no. 6-Honnappa assaulted the deceased with clubs and accused no. 11-Neelakantappa assaulted Mohankumar with clubs would lend corroboration to the evidence of PW. 1. From the perusal of postmortem examination report of the deceased Mohankumar, we find corresponding injuries.

The evidence on record discloses that accused no. 1-Chikkegowda was heading one faction and deceased Mohankumar and some of the other prosecution witnesses belonged to opposite faction. There was no dearth for eyewitnesses. The incident of assault had resulted in death of Mohankumar and serious injuries to PW. 1-Annapoorna. The first information which was recorded between 9.00 a.m., and 9.45 a.m., on 16.03.2003 had reached the jurisdictional magistrate at about 12.45 p.m. (afternoon) on 16.03.2003. In the first information, we find reference to this witness. There are no reasons to suspect the presence of evidence of PW. 5.

Therefore, the submission of learned counsel for accused that PW. 5 was a planted witness cannot be accepted. The submission of learned counsel for accused that PW. 5 was secured on 17.03.2006 to plant him as a witness cannot be accepted.

PW. 6-Basavaraju is the father of PW. 1. PW. 6 has deposed; that on 15.03.2003, he had gone to the house of PW. 1-Annapoorna and Mohankumar and he stayed on that day; on 15.03.2003, the inmates of house were PW. 6-Basavarju, deceased Mohankumar, PW. 1-Annapoorna and the child of PW. 1.

PW. 6 has deposed; that on the following day, he heard noise of a quarrel and he came to the place of incident; PW. 6 was holding the child and he was at a distance from the place of incident; accused no. 12-Chidananda pulled the saree of PW. 1; the accused assaulted Mohankumar and thereafter left the place of incident.

During cross-examination, PW. 6 has reiterated that he was present in the house of PW. 1 on the previous night and also on the date of incident. PW. 6 has deposed that accused no. 12-Chidananda pulled the saree of PW. 1.

In the discussion made supra, we have assigned reasons to reject the evidence of PW. 1 relating to overt acts attributed to accused no. 12-Chidananda. Therefore, evidence of PW. 6 that Chidananda (accused no. 12) had pulled the saree of PW. 1 cannot be accepted.

During cross-examination, PW. 6 has denied the suggestion that he was not present near the place of incident. During cross-examination, he has admitted that he knew the names of some of the accused and he was not aware of the names of other accused.

On over all appreciation of evidence of PW. 6, we find that he has not attributed overt acts to each of the accused. He has made an omnibus statement that accused assaulted the deceased Mohankumar. Therefore, evidence of PW. 6 to the extent that the incident had taken place near the house of deceased Mohankumar at about 6.00 a.m., on 15.03.2003, would lend corroboration to the evidence of PW. 1 and PW. 5.

PW. 7-Manjula is the wife of PW. 4-Omkar Murthy. She has deposed about the dispute is relating to road leading to garden land of Marulasiddappa (her father-in-law). PW 7 has deposed that deceased Mohankumar has taken lead to resolve the dispute and the dispute was resolved. She has deposed that the incident took place after a period of one week after the road was cleared and obstruction to the road was removed. PW. 7 as deposed that she had seen some of the accused near the place of incident; deceased Mohankumar had suffered injuries near the place of incident.

During cross-examination, PW. 7 has admitted that she learnt about the incident from her neighbours. Her neighbours namely Prasanna Kumar, Mahesh, Manjunath and Manjula came and informed her about the incident at about 6.30 a.m., on the date of incident. In the circumstances, it can be safely be held that PW. 7 was a post-occurrence witness and she had seen deceased Mohankumar and PW. 1 in injured condition near the place of incident.

PW. 7 has been subjected to lengthy cross-examination regarding post-occurrence events such as shifting the body of Mohankumar to Gandsi Hospital at the first instance and thereafter to J.C. Hospital at Hassan.

During cross-examination, the signature of PW. 1 was confronted to this witness and she has deposed that signature found on Ex. P1 is not the signature of PW. 1.

At this stage, it is necessary to state that signature found on Ex P1 was not confronted to PW. 1. On the other hand, it has been suggested to PW. 1 that her signature was taken on a blank paper, the first information (marked as per Ex. P1) was prepared on such blank paper.

The evidence on record does not disclose that PW. 7 was acquainted with the handwriting of PW. 1. Therefore, much importance cannot be attached to this stray admission made by PW. 7.

PW. 8-Lohith has deposed; that on the date of incident, at about 6.00 a.m., some persons informed him that some persons were assaulting Mohankumar; he came near the place of incident; the accused were assaulting Mohankumar; PW. 1 was present near the place of incident; accused were also assaulting her; when PW. 8 and others tired to intervene, they were chased by the accused.

During cross-examination, he has admitted that when he was in his house, he learnt that some persons were assaulting Mohankumar.

During cross-examination, he has admitted that when his statement was recorded by the police, he has stated that when he was in the house around 6.00 a.m., on 16.03.2003, some persons were talking that accused no. 1-Chikkegowda and persons belonging to his faction had cut Mohankumar.

From the evidence of PW. 8, we find that he had not witnessed the incident of assault, he had reached the place of incident and he had seen deceased Mohankumar and PW. 1 in injured condition.

PW. 9-Shankarappa is the father of deceased Mohankumar. PW. 9 has admitted that there were two factions in Jalagaranahalli. The accused formed one faction and opposite faction consisted of PW. 9 and some of the private prosecution witnesses.

PW. 9 has deposed; that his son was assaulted on a curve near the school of their village; on that day, he was sleeping in his house; someone came and informed that his son Mohankumar and his daughter-in-law Annapoorna were being assaulted; he reached the place of incident and found that accused had attacked the deceased with deadly weapons and they were assaulting deceased Mohankumar and PW. 1-Annapoorna; accused no. 2-Shadakshari tried to assault on the head of Mohankumar with a chopper; deceased Mohankumar held his left hand across the head. The blow landed on the left hand of deceased Mohankumar; accused no. 3-Shanthakumar assaulted on the right thigh of deceased Mohankumar with a chopper; accused no. 4-Ravikumar dropped a size stone on the left leg of deceased; accused no. 5-Vijaykumar dropped a stone on the right leg of deceased; PW. 1 came to the rescue of her husband; accused no. 1-Chikkegowda assaulted on the head of deceased with a chopper; accused no. 6-Honnegowda assaulted on the right upper limb of PW. 1 with a club; accused no. 8-Sathisha assaulted on the right limb of PW. 1 with a club; accused no. 9-Manjunath @ Manjappa dropped a size stone on the right lower limb of deceased; accused no. 10-Karunakar assaulted on the back of deceased.

On consideration of evidence of PW. 1, we have assigned reasons for rejecting the overt acts attributed to accused no. 8 and accused no. 10. We have also noticed that name of accused no. 10 was not found in the first information. We have not accepted evidence of PW 1 regarding presence and participation of accused no. 7 in the incident of assault.

PW. 9 has deposed; that accused no. 11-Neelakantappa assaulted the right upper arm of Mohankumar with a club and the bones were broken; the accused left the place crying that Mohankumar is dead; some of them carried the weapons and some of them dropped the weapons near the place of incident.

PW. 9 has deposed; that the statement of PW. 1-Annapoorna was recorded by the police in Gandsi Hospital; the police had inspected the place of incident, prepared spot inspection report (marked as per Ex. P3); PW. 9 had collected the weapons of assault from the place of incident and had kept the same in his house; when the police visited the house, he produced the same; the police collected the bloodstain sample of mud from the place of incident.

During cross-examination, PW. 9 has deposed that the marriage of Mohankumar (since deceased) and PW. 1 was performed about 8-9 years prior to 16.03.2006 which corresponds to the year 1995. He has admitted that deceased Mohankumar and PW. 1 were living in the house constructed in their garden; their house is surrounded by the house of Nataraj and Vishwanath and they were at a distance. He has denied the suggestion that house of Rohith is at a distance of one kilometer from the house of Mohankumar.

PW. 9 has deposed; on 16.03.2003, his younger son namely Ramesha had left the house to reach the place of incident. He has admitted that, from his house, the house of Mohankumar is visible. He has admitted that the distance between the house of Mohankumar and the village is about 70-100 meters. He has admitted that one Nagaraja S/o. Basappa was present near the place of incident. He has admitted that after the incident his son was not in a condition to speak however, his daughter-in-law (PW. 1) was in a condition to speak and she was tired. He has admitted that first information (marked as per Ex. P1) was given at Hassan. He could not lodge the first information because of death of his son.

The learned counsel for accused referring to evidence of PW. 9 would submit that PW. 9 was in his house situate in Jalagaranahalli village. He reached the place of incident after learning the same from others but he has narrated the entire incident. PW. 9 has admitted that first information was given in J.C. Hospital at Hassan.

In the pre paragraphs, we have narrated the evidence of PW. 9 attributing overt acts to the accused. It is not demonstrated from the evidence of PW. 9 that his house is far away from the place of incident. PW. 9 has stated that the incident took place on a curve near the school of their village. At this juncture, it is relevant to refer to the evidence of first accused (DW. 1). DW. 1 has deposed that the house of Annapoorna (PW. 1) is situate opposite to the school.

PW. 9 is the father of deceased Mohankumar. PW. 9 has deposed that there was previous enmity existing between the parties. In the circumstances, it is not possible to hold that PW. 9 had taken his own time to reach the place of incident after he heard about assault on his son.

The incident of assault had resulted in as many as 15 injuries to the deceased-Mohankumar and 5 injuries to PW. 1-Annapoorna. In the circumstances, evidence of PW. 9-Shankarappa attributing overt acts to accused Nos. 1 to 6 and 11 cannot be suspected. The evidence of PW 9 would lend corroboration to evidence of PW. 1-Annapoorna.

The evidence of PW. 11-Srinivasamurthy relates to the removal of obstruction to road. PW. 11 has deposed that at the relevant point of time, he was working as Revenue Inspector. About 4 years prior to 24.04.2007, he had visited Jalagaranahalli village along with surveyor by name Manjunath and they located the road in Karab land with reference to the sketch and encroachment of the road was removed. He has denied the suggestion that there was no dispute between accused No. 1 and Mohankumar regarding obstacle to road.

The evidence of PW. 10-Virupaksha relates to recovery of weapons of offence on the information volunteered by accused, which will be considered in the later part of the judgment.

The evidence of PW. 12-Nandeesh relates to spot inspection by the Investigating Officer and recovery of certain weapons and articles from the place of incident. The evidence of PW. 13-Dharaneesh relates to recovery of weapons on the information volunteered by accused No. 2-Shadakshari, accused No. 3-Shanthakumar, accused No. 4-Honnegowda. In the first information report, PW. 1 has stated that after the incident of assault, accused left the weapons near the place of incident and ran away from the place. The evidence of PW. 9-Shankarappa reveals that after the incident, he had collected the weapons from the place of incident and handed over the same to the Investigating Officer at the time of spot inspection. In the circumstances, evidence relating to recovery of weapons on the information volunteered by aforestated accused is not free from reasonable doubt. The first information report and evidence of PW. 1-Annapoorna and PW. 9-Shankarappa do not reveal about the weapons which were left near the place of incident and weapons which were carried from the accused. The FSL report reveals that there were blood stains on some of the weapons. However, the Serology report reveals that blood group of stains found on the weapons could not be determined. In view of these discrepancies, the evidence of aforestated witnesses regarding recovery of weapons of offence on the information volunteered by the accused cannot be accepted. The blood stains found in mud collected from the place of incident were of human blood. However, the blood group could not be determined by Serologist.

Thus, to sum up, the prosecution from the eye witness account of PW. 1-Annapoorna, PW. 6-Basavaraju and PW. 9-Shankarappa, medical evidence of PW. 17-Dr. K.K. Hebbar and PW. 18-Dr. Sunil Kumar has proved the presence and participation of accused Nos. 1 to 6 and 11 in the incident of assault which resulted in death of Mohankumar and injuries to PW. 1 at about 6 a.m. on 16.03.2003. Accused Nos. 1 to 6 and 11 armed with deadly weapons had formed an unlawful assembly with common object of committing murder of Mohankumar. When Mohankumar had'' come out of his house carrying milk, accused Nos. 1 to 6 and accused No. 11 surrounded him on the road leading from Jalagaranahalli to Kodikoppalu and assaulted Mohankumar and PW. 1. The incident of assault had taken place on the road in front of school and the house of deceased-Mohankumar. Accused Nos. 1 to 6 and 11 being members of unlawful assembly armed with deadly weapons had mercilessly beaten deceased-Mohankumar. Some of the accused had assaulted PW. 1-Annapoorna when she came to rescue her husband. Therefore, we hold accused Nos. 1 to 6 and 11 guilty of offences punishable under Sections 143, 148, 324, 302 r/w Section 149 IPC.

Now, we will advert to the judgment of the Trial Court to find out if the learned Sessions Judge has taken a reasonable view.

The learned Session Judge has disbelieved the evidence of PW. 1-Annapoorna and PW. 2-Suresh Babu for the following reasons. The prosecution has failed to prove exact place of incident, history of injury recorded by PW. 17-Dr. K.K. Hebbar and PW. 18-Dr. Sunil Kumar is not consistent with the evidence of PWs. 1 to 9. There is no satisfactory evidence in proof of presence of bicycle and milk can near the place of incident. The medical evidence would probabilise the defence theory that death of deceased-Mohankumar had occurred between 3.00 a.m. and 4.00 a.m. on 16.03.2003. The evidence of eye witness is contrary to medical evidence of PW. 17-Dr. K.K. Hebbar.

In para 17 to 37 of the judgment, the learned Sessions Judge has recorded submissions and findings on the place of incident, time of incident by referring to the history of injuries recorded by PW. 17-Dr. K.K. Hebbar and PW. 18-Dr. Sunil Kumar.

In para 37 to 46 of the judgment the learned Sessions Judge has recorded submissions of learned counsel for accused to hold that the discrepancies in evidence adduced by the prosecution to prove the place of incident would discredit eye witnesses account of the prosecution witnesses.

In para 47 to 49 of the judgment, learned Sessions Judge has held that the prosecution has failed to prove the recovery of weapons, therefore evidence of PW. 1 to 16 cannot be accepted. The learned Sessions Judge has held that failure of the prosecution to prove blood stains on MO-13 is fatal to the case of prosecution.

In para 50 of the judgment, learned Sessions Judge has referred to the petition filed in M.C. No. 14/1997 to hold that the defence version that there was illicit intimacy between PW. 3-Jayaprakash and PW. 1-Annapoorna is probable. In para 51 of the judgment, learned Sessions Judge has held that evidence of PW. 18-Sunilkumar is not reliable. In para 52 of the judgment, learned Sessions Judge has referred to the evidence of PW. 9 to hold that Ex. P1 (first information) was prepared in J.C. Hospital at Hassan. The learned Sessions Judge held that contents of Ex. D-11 produced by accused No. 1 would reveal that'' the history of injuries stated by PW. 1-Annapoorna is entirely inconsistent with the eye witness account of prosecution witnesses.

In para 55 of the judgment, learned Sessions Judge has held that PWs. 2 to 9 were not eye witnesses as their names are not stated in the first information. The learned Sessions Judge has held that failure of prosecution to examine immediate neighbours of the deceased would create doubt in the evidence adduced by the prosecution. In para 56 and 57 of the judgment, learned Sessions Judge has held that evidence of PW. 6-Basavaraju and PW. 9-Shankarappa is not reliable. In para 58 and 59 of the judgment, learned Sessions Judge has held that the Investigating Officer had not seized bicycle, milk can from the place of incident. Therefore, evidence of prosecution relating to the place of incident is not free from reasonable doubt.

In para 60 of the judgment, learned Sessions Judge has disbelieved the evidence of PW. 9-Shankarappa in view of the evidence of PW. 9-Shankarappa that first information was prepared and given to police at Hassan. The learned Sessions Judge had disbelieved the evidence of PW. 9 because PW. 1 has not deposed about the presence of PW. 9 at the place of incident. In para 32 of the judgment, learned Sessions Judge has held that eye witness account given by PWs. 2 to 9 is doubtful. In para 33 of the judgment, learned Sessions Judge has held that semi digested food particles in the stomach contents of the deceased would create a suspicion regarding the death of deceased. The learned Sessions Judge has held that the medical evidence would prevail over ocular evidence. In para 34 of the judgment, learned Sessions Judge has held that prosecution has failed to prove the time of death. The evidence adduced by the prosecution that Mohankumar died when he was being shifted from Primary Health Centre at Gandsi hospital to J.C. Hospital at Hassan cannot be believed. The learned Sessions Judge has also relied upon the judgment of the Supreme Court reported in Kunju Muhammed @ Khumani and Another Vs. State of Kerala, to support his findings that the prosecution has failed to prove the time of incident and the time of death of Mohankumar.

In para 64 of the judgment, the learned Sessions Judge has held that Ex. P1 (first information) was not recorded in the Primary Health Centre at Gandsi. In para 65 and 69 of the judgment, learned Sessions Judge relying on the history of injuries recorded in Exs. P-13 and P-14 has held that the prosecution has failed to prove nature of weapons of offence. The learned Sessions Judge has held in Exs. P-13 and P-14, weapon of offence is shown as iron rod. Therefore, the statement of history recorded in Ex. P-13 and P-14 would belie evidence of eye witnesses that accused assaulted deceased with choppers, clubs and stones. The learned Sessions Judge has also relied on the first information report and wound certificate to record a finding that history of assault given by PW. 1-Annapoorna before doctors is completely inconsistent with evidence of PW. 1 and contents of first information report. The learned Sessions Judge has relied on the evidence of DW-2 and the history of injury found in Ex. P-12 to discard eye witness account.

In our considered opinion, the learned Sessions Judge has relied upon irrelevant evidence. The learned Sessions Judge should not have taken into consideration the presence of semi digested food particles in the stomach of deceased during the post-mortem examination to arrive at a conclusion regarding time of death of Mohankumar. In the discussion made supra, we have referred to the judgment of Supreme Court reported in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, , to hold that the Court cannot run judicial risk of staking the whole verdict on nebulous medical observations.

In the discussion made supra, we have accepted that statement of PW. 1 (first information) was recorded PW. 20-K.L. Ganesh in the Primary Health Centre at Gandsi between 9.00 a.m. and 9.30 a.m. in the presence of PW. 18-Dr. Sunil Kumar. The evidence of PW. 22-H.G. Somashekar that he received first information report at 10.30 a.m. and carried and delivered the same to learned Magistrate at Arasikere at 12.45 p.m. on 16.03.2003 is consistent and credible. PW. 22 has deposed that distance between the Gandsi and Arsikere is about 25 km. At this juncture, it is relevant to state that first information was registered for offences punishable under Sections 143, 144, 147, 148, 324, 326, 307 r/w Section 149 IPC. After the death of Mohankumar, on receipt of intimation from J.C. Hospital at Hassan, PW. 20-K.L. Ganesh, Sub-Inspector of Police had sent requisition to the learned Magistrate to include an offence under Section 302 IPC.

The learned Sessions Judge was not justified in not relying on the history of injuries given by PW. 1 Annapoorna before PW. 18-Dr. Sunil Kumar or PW. 17-K.K. Hebbar. The learned Sessions Judge was not justified in placing reliance on the evidence of DW. 2-Dr. Kumar and also contents of Ex. D-11. Ex. D-11 photostat copy of MLC register was produced by accused No. 1. Ex. D-11 is not certified copy of MLC register as contended by defence. The learned Sessions Judge has failed to notice authenticity of this document while admitting the same in evidence.

It is true that accused are entitled to lead defence evidence. On perusal of Ex. D-11, we find that it is not certified copy of public document. It is not a certified copy of MLC register. Accused No. 1 has not deposed that he had received certified copy of MLC register from J.C. Hospital at Hassan. This document has been pressed into service to prove that before Doctors in J.C. Hospital at Hassan PW. 1 has given history of assault by Ravikumar and about 7 persons with clubs and stones at 6.00 a.m. in front of her house. At this juncture, it is relevant to note that Ravikumar is also one of the accused and the incident has taken place in front of house of deceased-Mohankumar. The learned Sessions Judge placed much reliance on Exs. P-12 and P-13 to hold that weapon of offence referred to in these documents is a crowbar (iron rod) and PW. 1-Annapoorna has not given names of accused. On careful consideration of these documents, we find that these documents are not extracts of MLC register. The learned Sessions Judge has not certified these documents as extracts of MLC register, which is the primary evidence. The law is well settled that MLC register is a public document. The certified copy of MLC register can be treated as secondary evidence if MLC register is destroyed or lost. In the case on hand, learned Sessions Judge should not have received the same without verifying MLC register, which was very much available before the Court. In the discussion made supra, we have held that statement of PW. 1-Annapoorna (first information) was recorded between 9.00 to 9.30 a.m. in Primary Health Centre at Gandsi on 16.03.2003. The learned Sessions Judge erroneously held that the prosecution has failed to prove the accused had assaulted deceased with chopper, clubs and stones because the weapon of offence is shown as iron rod in the MLC register extract.

The learned Sessions Judge placed reliance on Ex. P15 stated to be the intimation sent by Medical Officer (PW. 18) to Sub-Inspector of Police (PW. 20). At this juncture, it is necessary to recall the evidence of PW. 20-K.L. Ganesh that at the relevant point of time, Primary Health Centre at Gandsi and police station were in the same compound and the distance between two buildings was hardly 10 feet. PW. 1-Annapoorna and other prosecution witnesses have deposed that by the time they reached Primary Health Centre at Gandsi, police were already present in the Hospital. In the circumstances, it can safely be held that Ex. P-15 was sent only for the sake of formality. The learned Sessions Judge had relied on the endorsement on Ex. P15 by PW. 20 that was made at 8.45 a.m. This document shows that Mohankumar had been shifted to government hospital at Hassan. The learned Sessions Judge has held that as per this document injured had been shifted to government hospital at Hassan, therefore, case of the prosecution that PW. 1-Annapoorna was present in Primary Health Centre at Gandsi between 9.00 a.m. to 9.30 a.m., cannot be accepted.

In the discussion made supra, we have held that the learned Magistrate at Arasikere had received first information report on 12.45 p.m. (afternoon) on 16.03.2003. At this juncture, it is relevant to state that distance between Hassan and Arasikere is about 50 kilometers. In the circumstances, the finding of the learned Sessions Judge that first information was received in J.C. Hospital at Hassan, cannot be accepted. The defence version that first information was prepared at 10.30 a.m. in J.C. Hospital at Hassan, thereafter, it was dispatched to the JMFC at Arasikere, cannot be accepted.

The learned Sessions Judge has placed reliance on history of injuries recorded by the doctors in J.C. Hospital at Hassan and in Primary Health Centre at Gandsi. In the discussion made supra, we have referred to the judgment of the Supreme Court reported in Pattipati Venkaiah Vs. State of Andhra Pradesh, , wherein the Supreme Court has held that a doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico-legal cases. Therefore, history of injuries recorded by PW. 17-Dr. K.K. Hebbar and history of injuries found in Ex. D-11 should not have been considered to discard the eye witness account of prosecution witnesses.

The learned Sessions Judge has relied on evidence of PW. 17-Dr. K.K. Hebbar to hold that death of Mohankumar had occurred between 3.00 a.m. and 4.00 a.m. on 16.03.2003 to discredit eye witness account. In para 10 of the aforestated judgment, the Supreme Court has held that the medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerized or mathematical fashion so as to accurate to the last second. In the case on hand, PW. 17-Dr. K.K. Hebbar, who conducted post mortem examination on the dead body of Mohankumar between 3.00 p.m. to 4.00 p.m. on 16.03.2003 has opined that death had occurred about 12 hours prior to the commencement of post mortem examination. PW. 17 has deposed that there was possibility of death of Mohankumar having occurred between 3.00 a.m. and 4.00 a.m. on 16.03.2003.

The learned public prosecutor should have treated PW. 17-Dr. K.K. Hebbar as hostile witness. PW. 17 has not assigned reasons for recording time of death in the post mortem report. PW. 17, for the first time before the Court, has deposed that death of deceased had taken place between 3.00 a.m. to 4.00 a.m. PW. 17 has not assigned reasons for giving such evidence. PW. 17 has deposed that death had taken place between 3.00 a.m. to 4.00 a.m. by computing 12 hours backward from the time of post mortem examination report. In the discussion made supra, we have held that evidence relating to medical opinion which is not supported by reasons is no evidence in the eye of law. The evidence of PW. 18-Dr. Sunil Kumar that Mohankumar was alive when he was shifted from Primary Health Centre at Gandsi to J.C. Hospital at Hassan, has not been controverted by the accused.

The learned Sessions Judge placing reliance on the evidence of PW. 17-Dr. K.K. Hebbar and also taking into consideration the copy of petition filed in M.C. No. 14/1997 has held that the submission of learned counsel for the accused that there was illicit intimacy between PW. 1-Annapoorna and PW. 3-Jayaprakash and PW. 1 and PW. 3 had committed murder of Mohankumar during early hours in his farm house gets supports from the above circumstances. The learned Sessions Judge has recorded a uncharitable and baseless finding on character of PW. 1-Annapoorna. The finding of the learned Sessions Judge that failure of prosecution to seize bicycle and milk can from the place of incident would belie eye witness account of prosecution witnesses has no basis. The learned Sessions Judge has unnecessarily suspected the evidence of eye witnesses regarding place of incident. The learned Sessions Judge has erroneously placed reliance on the rough sketch marked as Ex. P-29 which was drawn after a period of 3 or 4 months from the date of incident. The learned Sessions Judge has failed to notice that place of incident was not far away from the village, as sought to be established by accused. Therefore, it can safely be inferred that the learned Sessions Judge has ignored the settled principles of law relating to appreciation of evidence. The learned Sessions Judge by placing reliance on irrelevant materials, has rejected evidence of eye witness account of prosecution witnesses. The learned Sessions Judge has erroneously accepted the submission of learned counsel for accused that PW. 1-Annapoorna had illicit intimacy with PW. 3-Jayaprakash and PW. 3 and his henchmen committed murder of Mohankumar during early hours on 16.03.2003 in the house of Mohankumar and later concocted a case against accused. The learned Sessions Judge has not recorded any finding as to how PW. 1-Annapoorna was injured. The learned Sessions Judge has failed to notice the presence of father of PW. 1 (PW. 6) in the house of PW. 1-Annapoorna on 16.03.2003 has not been controverted. In the discussion made supra, we have held that the defence put forth by the accused is without any basis. The accused have put forth defence version to assassinate character of PW 1 without any responsibility and without having regard to decency. The learned Sessions Judge has held that from the evidence adduced by prosecution, two views are possible without stating which are the two views. The approach of learned Sessions Judge is erroneous. The learned Sessions Judge has discredited the evidence of eye witnesses on surmises and conjectures. The learned session judge has placed reliance on irrelevant material to suspect the evidence adduced by prosecution. The learned Sessions Judge has ignored the settled principles of law that in a criminal trial certain omissions and contradictions are bound to occur and the evidence of the prosecution witnesses cannot be rejected unless such contradictions and omission would go to the root of the case of prosecution.

The learned Sessions Judge has ignored the settled principle of law that "Exaggerated devotion to the rule of benefit of doubt must ''not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense" (vide Gangadhar Behera and Others Vs. State of Orissa, ). The learned Sessions Judge has ignored the settled principles of law that it is the duty of the court to separate the grain from the chaff and truth from falsehood. In the case on hand, we do not find that grain and chaff is inextricably mixed up and in the process of separation a new case to be constructed. Therefore, we hold that the impugned judgment as it relates to acquittal of accused no. 1 to 6 and 11, has to be reversed.

In the result, we pass the following:

ORDER

Crl. A. 161/2011, Crl. A. 335/2011 and Crl. A. 345/2011 are accepted in part. The impugned judgment is modified. The judgment of acquittal of accused No. 1-Chikkegowda, S/o. Marulasiddappa, accused no. 2-Shadakshari, S/o. Rajappa, accused no. 3-Shanthakumar, S/o. Basavaraju, accused no. 4-Ravikumar, S/o. Chandregowda, accused no. 5-Vijayakumar, S/o. Chikkegowda, accused no. 6-Honnegowda, S/o. Nanjappa and accused no. 11-Chidananda, S/o. Chandregowda, in S.C. Nos. 144/2003 and 196/2003 on the file of Additional Sessions Judge, Fast Track Court, Hassan, for the offences punishable under Section 143, 147, 148, 302 r/w Section 149 of IPC is set aside.

Accused Nos. 1 to 6 and 11 are convicted for offences punishable under Sections 143, 147, 148, 324, 302 r/w Section 149 IPC.

Accused Nos. 1 to 6 and 11 are sentenced to undergo imprisonment for a period of three months each and pay fine of Rs. 5,000/- each, in default, to undergo imprisonment for a period of one month each for offence punishable under Section 143 IPC.

Accused Nos. 1 to 6 and 11 are sentenced to undergo imprisonment for a period of three months each and to pay fine of Rs. 5,000/- each, in default, to undergo imprisonment for a period of one month each for offence punishable under Section 147 IPC.

Accused Nos. 1 to 6 and 11 are sentenced to undergo imprisonment for a period of three months each and to pay fine of Rs. 5,000/- each, in default, to undergo imprisonment for a period of one month each for offence punishable under Section 148 IPC.

Accused Nos. 1 to 6 and 1.1 are sentenced to undergo imprisonment for a period of one year each and to pay fine of Rs. 10,000/- each, in default, to undergo imprisonment for a period of three months each for an offence punishable under Section 324 r/w Section 149 IPC.

Accused Nos. 1 to 6 and 11 are sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/- each for an offence punishable under Section 302 r/w Section 149 IPC.

Out of fine amount, a sum of Rs. 50,000/- shall be paid as compensation to PW. 1-Annapoorna.

The acquittal of accused Nos. 1 to 9 and 11 for offences punishable under Sections 326, 354, 341, 307 r/w Section 149 IPC is confirmed.

The acquittal of accused Nos. 7, 9, 12 to 16 for offences punishable under Sections 143, 147, 148, 326, 354, 341, 307, 302 r/w Section 149 IPC is confirmed.

The period of detention of accused Nos. 1 to 6 and accused No. 11 if any, during trial is given set off as provided under Section 428 Cr.P.C.

Office is directed to send back the records with a copy of this judgment to the Trial Court to secure accused no. 1 to 6 and accused no. 11 to implement the sentence in terms of this judgment.