Harisha vs State of Karnataka

K.N. Phaneendra, J.—These two appeals are preferred calling in question the judgment of conviction and sentence passed by the Principal Sessions Judge ai Hassan in S.C. No.53/2009.

1.1. Criminal Appeal No. 1018/2011 is preferred by Accused Nos. 1, 2 & 4, whereas the Criminal Appeal No. 1294/2011 is preferred by Accused Nos.3 & 5. The learned Sessions Judge has convicted Accused Nos. 1 to 5 for the offences punishable under Sections 143, 148, 341, 302 r/w. Section 149 of IPC, Accused No.6 was acquitted. It appears, the State has not preferred any appeal against the judgment of acquittal rendered against Accused No.6.

The brief factual matrix that emanate from the records are that, a lady by name Shivamma (PW.2) lodged the First Information Report before the Police Sub-Inspector of Arehally Police Station, Beluru Taluk, Hassan District as per Ex.P11, wherein she made allegations that there was long standing land dispute between the family of the complainant and the accused persons. Both civil and criminal cases are pending against each other and some of the cases are disposed. In the background, on 17.12.2008 at about 7.30 a.m., the son of the complainant by name Mahesh (deceased) had been to nearby Somanahalli village for the purpose of getting some coolie workers; While coming back on his Motor Cycle near Lingapura estate on Somanahalli road, the accused, viz., Virupaksha, Harisha, Kumara and Raveesha attacked and assaulted Mahesh with choppers on his head and neck portion. Having sustained severe bleeding injuries Mahesh died instantaneously on the spot. The complainant-Shivamma (PW.2), was proceeding on Somanahalli Road on that day at that time, saw the incident. She particularly alleged that, A4-Kumara assaulted on the head; A1-Virupaksha on the neck and A3-Harisha, on the face of the deceased. One amongst of them has thrown the chopper near the fence on the spot and all the four accused persons ray away from the spot; She screamed for help; At that time, a person by name Byraiah (PW.1), son of Hirigaiah, who also saw the incident from a distance, came there. Thereafter, when they went near, said Mahesha was found dead on the spot.

On the basis of the said complaint-Ex.P1, PW. 12-K.Nagaraj registered a case in Crime No. 152/2008 for the offences punishable under Sections 143, 148, 149, 341 and 302 r/w 149 of IPC and after investigation, charge was filed against Accused No.6-E.L. Devendra, incorporating section 212 of I.P.C. The trial proceeded against all the six accused persons.

The prosecution in all examined 15 witnesses viz., PWs. 1 to 15 and got marked Exhibits-P1 to P25 and Material Objects- 1 to 21. The accused were also examined under Section 313 of Cr.P.C. On defence side, D.W''s. 1 & 2 were examined and a portion of the statement of PW. 1 is marked as Exs. D1 and D1 (a) during the course of cross-examination.

The learned Sessions Judge on appreciating the oral and documentary evidence on record in detail, recorded the judgment of conviction against Accused Nos. 1 to 5 for the charges levelled against them and acquitted Accused No.6 of the charge levelled against him.

Sri. Hashmath Pasha, the learned counsel for the accused, has strenuously argued before the court that the entire case of the prosecution revolves around the version of two eyewitnesses (PWs. 1 & 2); On careful perusal of the evidence of these two witnesses, it reveals that these two witnesses are not actually the eyewitnesses; Their evidence in the examination-in-chief is demolished during the course of cross-examination, as such, the Trial Court without looking into the cross-examination portion of the witnesses and not property appreciating the same, has drawn the imaginary inference against the accused in order to convict them. He further contended that both the witnesses are interested witnesses, as, PW. 1 is the person, who was working in the house of the deceased and PW.2 is none other than the mother of the deceased; In their evidence, so many improbabilities, contradictions and omissions are found; The admissions made by the witnesses clearly disclose that they cannot be believed as eyewitnesses to the incident. He further contended before the court that, the evidence of PWs. 1 & 2 is contrary to the contents of the first Information Report (Ex.P1) lodged by PW.2. There is a long delay in examining PW. 1. Further, P.W.1 never stated about the incident before anybody for a period of three days and only after due deliberation with other members of the family of the deceased, he gave the improved version in his statement. These important aspects have not been properly considered and appreciated by the trial Court.

Sri. Hashmath Pasha, the learned counsel has further argued before us that, the so-called recovery of some incriminating blood-stained clothes and choppers at the instance of the accused is also not tenable; The recovery process suffers from serious incurable defects; There is no recovery from some of the accused persons, but still the court has believed such recovery process at the alleged instance of the accused in order to draw an inference of guilt against the accused; Looking from any angle, the judgment of the trial Court is erroneous and it is based on imaginations, surmises and conjectures; The trial Court ought not to have committed serious error in invoking Section 149 of IPC., when it acquitted Accused No 6. Therefore, he prayed before this court for acquittal of all the accused persons.

Sri. Vijaya Kumara Majage, the learned Additional Public Prosecutor, submitted before this court that the trial Court has considered all the grounds urged by the accused persons as urged before this court; Each and every point has been considered and answered by the trial Court giving logical reasons, based on the evidence on record, therefore, such reasoned judgment does not call for any interference at the hands of this court. He further contended that, the two eyewitnesses (PWs. 1 & 2) very naturally narrated about the incident and their presence at the time of the incident. He further contended that there cannot be any evidence without any contradictions or omissions, but the contradictions and omissions spelt-out by PWs. 1 & 2 are not sufficient to demolish the total case of the prosecution; There was no reason for PWs. 1 & 2 to screen the real culprits and to falsely implicate the Accused persons; The mere relationship between PW.2 and the deceased is not a sufficient ground to discard her evidence; The trial Court after meticulously appreciating the entire evidence of the eyewitnesses (PWs. 1 & 2) and others regarding recovery at the instance of the accused persons and Medical and scientific evidence has convicted the accused persons; Therefore, is no ground to interfere with such reasoned judgment; He pleaded for dismissal of both the appeals.

Having heard the arguments of the learned counsels and after re-appreciating the oral and documentary evidence on record, the points that would arise for our consideration are,-

i) Whether the prosecution has proved the case against the accused as projected, beyond all reasonable doubt?

ii) Whether the judgment of the trial Court calls for any interference?

Before adverting to the evidence led by the prosecution with reference to the eyewitnesses version and the recovery of incriminating articles at the instance of the accused, we feel it just and necessary to have the brief description of the evidence of the prosecution witnesses.

PW. 1-Byraiah and P.W.2 Shivamma are the eyewitness to the incident. P.W. 2 lodged a complaint as per Ex P1 and she is also a witness to the spot-panchanama (Ex.P2), under which the chopper was seized on the spot, which is marked as MO. 1; PW.3-Mallesha is also another panch-witness to Ex.P.2; PW.4- Yogesha is the panch-witness to the Mahazar (Ex.P3), under which, the police have seized the clothes and a cap of the deceased, marked at MOs. 4 to 8; PW.5- B.M. VasanthKumar, is a panch-witness to the Mahazars (Exs. P4 & P5), under which the police have seized the articles at MOs.9 to 15. PW.6- B.M. Shankar is another panch-witness for Ex P6, where under, after arrest of Accused Nos.1 to 3 & 4, the police have recovered clothes and weapons from the accused, which are marked at M.O�s 15 to 21; Under Ex.P7, the police have also seized a vehicle; PW.7-Shashikumara, a Head Constable watched the dead body and took the dead body to the post-mortem examination and after autopsy he brought the clothes (MOs. 4 to 8) of the deceased and produced before the Investigating Officer, who seized them under Ex.P3. PW.8-Dinesha, is the elder brother of the deceased, came to know about the incident from PW.2, who speaks about the previous ill-will, motive and conduct of the accused persons; PW.9-Chandrashekar is a panch to the inquest panchanama drawn as per Ex.P8; PW. 10-Dr. Chethan, Medical Officer, General Hospital, Belur, conducted autopsy on the dead body of the deceased Mahesh and issued post-mortem report as per Ex.P9 and also examined the weapons MOs.1, 9, 10 and 11; PW. 11-Kumara, a police constable carried the FIR and delivered the same to JMFC, Belur, on 17.12.2003. He also carried three articles to FSL, Mysuru; PW. 12-K. Nagaraju is the PSI, who registered the case in Crime No. 152/2008 and on the basis of Ex.P1, he prepared the FIR as per Ex.P11 and dispatched the same to the Court and 20.1.2.2011, he also apprehended Accused Nos.1, 2 & 4 and produced before the Investigating Officer; PW.13-H. Anil Kumar is the investigating Officer, who laid the charge sheet; PW. 14-Chandrashekar and PW.15-S.N. Goankar, are the scientific officers of FSL, Mysuru, who spoken about Ex.P.24 (report); DW. 1-Mahendra and DW.2-Shivanna are the witnesses, examined on behalf of the accused; DW. 1-Mahendra is the person, whose house is situated near the scene of occurrence. He speaks about his presence on that day and also about the existence of houses nearby the scene of occurrence. DW.2-Shivanna, who is the Secretary of Gram Panchayath, Chikkabikkod, who spoken about the existence roads between the villages - Chikkabikkod, Shomahalli, Alur and about their directions.

Though the prosecution has examined 15 witnesses, the prosecution mainly relied upon the evidence of the eyewitnesses (PWs. 1 & 2) and also the evidence of the witnesses, in whose presence the incriminating articles were recovered from the accused and also scientific officers� report with regard to the recovery'' of articles. We prefer to discuss the evidence of the eyewitnesses first and thereafter discuss the material on record, regarding other circumstances.

Before adverting to the version of the eyewitnesses, it is just and necessary to have a brief look at the death of the deceased. Of course, there is no serious dispute with regard to the homicidal death of the deceased Mahesha. The evidence of PWs.1 & 2 discloses that the death of the deceased was due to assault with choppers and the death of the deceased was instantaneous; P.W. 10-Dr. Chethan who has conducted the Post-Mortem examination as per Ex P.9, deposed that the death of the deceased Mahesha was due to shock and hemorrhage as a result of ante-mortem muscular injuries sustained over the neck and Those injuries can be caused by using the weapons like MOs.1, 9, 10 & 11. During the course of cross-examination also, nothing has been elicited from the Doctor that the death was otherwise than the homicidal death. PW.9-Chandrashekar, who is an attester to Inquest marked at Ex.P8. He has also deposed about the injuries found on the dead body, which was lying on the road. The suggestions made to the witnesses-PWs. 1 & 2 that, the murder was occurred inside a coffee plantation and two hours after the death of the deceased they reached the spot. There is no suggestion with regard to the death of Mahesha, otherwise than the homicidal death.

From the materials on record, it is clear that the prosecution has proved the homicidal death of the deceased.

We feel it just and appropriate to deal with the contents of the FIR, which emanate at the first instance to ascertain, as to what exactly is the case of the prosecution. Ex.P1 discloses that PW.1 and PW.2 are the eyewitnesses to the incident and it also discloses the motive factor, ie: about the land dispute between the parties. About the incident, it is stated that, on that particular day, Accused Nos.1, 3, 4 & 5 have intercepted the way of the deceased, who was coming from Somanahalli to Chikkabikkod village; All the four persons were holding choppers in their hands. It is the specific allegation that A1-Virupaksha assaulted on the neck portion; A3-Harisha assaulted on the face, A4- Kumara assaulted on the head of the deceased. But, there is no whisper about the presence of A2-Prateesha and nothing is stated about the overt act of A5-Raveesha. It is stated that all the four accused persons ran away from the spot. P.W. 2 at the earliest point of time only implicated Accused Nos.1, 3 & 4 as the assailants of the deceased. The statement of PW.1 is recorded after lapse of three days. In this back-drop, it is just and necessary to discuss the evidence of PWs.1 & 2 regarding the Motive and the incident.

We first deal with the Motive factor. The prosecution mainly relied upon the evidence of PWs. 1 & 2 as well as another brother of the deceased by name Dinesh, examined as PW.8. Of course, the motive factor takes the back-seat, if the eyewitnesses version is trust-worthy for acceptance. Even non-proving of the ''Motive� also does not impair the case of the prosecution. However, it is the case of the prosecution that there was a strong enmity between the accused persons on one side and the family of the deceased on the other side. When such allegations are made, �motive� also plays some role in order to ascertain whether due to the enmity, the accused persons have been falsely implicated into the crime or due to the enmity only, the accused persons have ended the life of the deceased. Under such circumstances, when the enmity is pleaded and attempted to be proved, it will operate as double edged weapon. If the motive is not proved properly, it may create a serious doubt with regard to the implication of all the accused into the crime. If it is proved, it would strengthen the case of the prosecution in order to draw an inference against the guilt of the accused. In this background, the court has to analyse as to what exactly the motive alleged and what is the evidence placed before the court.

In the complaint-Ex.P1 itself, PW.2-Shivamma has categorically stated that there was a long-standing dispute since eight years between the complainant�s family and one Sri. Rangappa Shetty and Manjappa Shetty and their children with regard to the encroachment of the land, as well as putting fence around his land. Some cases have already been disposed of and some cases are still pending before the Courts. In this background, the accused persons were threatening the deceased that, they would kill the deceased. In support of this particular aspect, PW.2 in her evidence has also categorically deposed to the same effect. But, it is not specifically stated by her in the evidence as to what is the relationship between the accused persons and said Rangappa Shetty and Manjappa Shetty. The records disclose that A1-Virupakashappa A4-Kumara are the sons of one Rangappa Shetty and A3-Harisha & A5-Raveesha are the sons of Manjappa Shetty. There is no evidence to connect A2-Prateesha either to Rangappa Shetty or Manjappa Shetty. Though it is not specifically stated in the evidence, but the fact remains that some of the accused persons are the sons of Rangappa Shetty and Manjappa Shetty. In the course of cross-examination, there is no much denial so far as this aspect is concerned. It is elicited that though P.W.2 does not know the survey number of the lands belonging to Rangappa Shetty and Manjappa Shetty, nevertheless she categorically stated that the lands of her husband Chandregowda and as well as Rangappa Shetty and Manjappa Shetty are situated adjacent to each other. It is also elicited in the course of cross-examination of these witnesses, that the complainant has lodged police complaint with regard to the border dispute of the lands and the police have suggested that as per the decision of the court, they have to put the fence to their respective lands. It is also elicited in the course of cross-examination by Accused -1, 3 & 5 that the deceased Mahesha has filed Civil and Criminal disputes in Belur Court and some criminal cases, were disposed of. It is also suggested that Rangappa Shetty and Manjappa Shetty have also filed criminal cases against the complainant and her family members and out of those cases some are already disposed of, but only two cases are still pending. Ultimately, it is suggested to PW2 that because of the land dispute, she has been telling lie before the court against the accused. From the above said evidence it is clear that there has been long standing dispute pending between the parties with reference to the land.

The above facts make it abundantly clear that, both the parties have been fighting against each other in both civil and criminal courts. On these facts it can be inferred that, the prosecution has not only established the motive factor but also shown to the court that both the parties have been waiting for opportunities to take revenge against each other.

Mere proving of the motive is not sufficient to draw a definite inference with regard to the guilt of the accused. As we have already discussed, the �motive� is a doubled-edged weapon and both parties might have been seeing for the opportunities to implicate each other. When such being the case, it is the duty of the courts to meticulously look into the materials on record to ascertain as to whether all the accused persons have participated in the crime or any of the accused have been falsely implicated or any or all the accused have actually committed such an offences as alleged against them. In this backdrop, we would like to discuss the evidence of PWs. 1 & 2 with regard to the incident.

PW.1 in her evidence has categorically stated that she knew all the accused. But she has not stated as to why the name of A2 and overt acts of A5 is not stated in the FIR. She further deposed that on the date of the incident, at about 7.00 am., on the road between Somanahalli and Chikka Bikkod, all the accused persons came there and all of them have assaulted the deceased, specifically stating that A2-Prateesha has assaulted with chopper on the forehead, A4-Kumara assaulted with chopper on the head, A3-Harisha assaulted with chopper on the chin and A1-Virupaksha with chopper cut the neck of the deceased. She has seen the said incident from a distance of 4 to 5 yards, as on that day, she was proceeding towards Somanahalli for the purpose of grazing the cattle. After assaulting the deceased, one of the accused threw a chopper near by the spot and all the accused persons ran away from the spot. In examination-in-chief, there is absolutely no wispher with regard to the overt-act of A5-Raveehsa and even his presence is also not emphatically stated. During the course of cross-examination, lot number of questions have been put with regard to the place where the incident has occurred. There is no need to discuss the same as it will not shrink the evidence of P.W. 2.. Admittedly, the statement of P.W.1 was recorded after three days. In the course of cross-examination, it is elicited that he has seen the incident from a distance of 01 km. At one breath be says that he has seen the incident from a distance of 4 to 5 yards. In the course of cross-examination, he says that he saw the incident at a distance of 01 km., and he says that before incident, he saw the deceased Mahesha going on the motor cycle at a distance of 01 kms. It is further elicited that he has seen A1-Virupaksha and A3-Hareesha and A4-Kumara at a distance of 01 km. But, he has not stated whether he has seen A5-Raveeshaa and A2- Prateesha assaulting the deceased. He has mainly concentrated on Accused Nos.1, 2 & 4 in the course of cross-examination, but in omnibus manner, he has stated that all the five accused persons have assaulted on the head, neck and forehead of the deceased. In examination-in-chief itself, as we have already observed, even presence of A5-Raveesha has not been stared. It is suggested to him that, he has only seen three accused on the spot. But he denied the said suggestion and stated that he saw all the five accused. It is also elicited from this witness that he has been working for PW.2-Shivamma in their house since 2 to 3 years as a regular coolie. His statement was not recorded immediately after the incident. It appears, after arrest of all the accused persons, his statement must have been recorded. There is no explanation in evidence of examination-in-chief, as to why he has not immediately gone to the police station and informed about the incident. In the course of cross-examination, FW. 1 has further deposed that one of the accused threw a chopper on the spot, but he cannot say who is that accused. It is not that the accused were not known to these witnesses.

Looking to the above said evidence of PW.1 and P.W.2, it is shaky so far as the presence and role of A2 and A5-Raveesha are concerned, but their evidence is consistent and cogent so far as the presence and overt acts of A1, A3 and A4 are concerned.

PW.2, who is no other than the mother of the deceased has deposed before the court that, the accused persons on the date of the incident at about 7.00 a.m. have assaulted the deceased and committed his murder. On that day, she was proceeding on Somanahalli Road to graze the cattle. Particularly speaking about the incident, it is stated by her that all the accused have assaulted the deceased near Lingapura estate of Somahahalli-Chikka Bikkod Road. She has categorically stated that A4-Kumara assaulted on the head of the deceased and A2-Prateesha assaulted on the neck of the deceased. A1 again assaulted on the neck and A3-Harisha has assaulted on the chin and A5-Raveesha also assaulted on the neck of the deceased Mahesha. Totally she said that there were three blows on the neck of the deceased and when she screamed for help, PW. 1 -Byraiah, who was also coming in the same direction, has rushed to the spot. On seeing them, all the accused persons ran towards Lingapura estate throwing one chopper nearby an electric pole. She lodged a complaint as per Ex.P1 and her signature is marked at Ex.P1 (a). She was also a witness to Ex.P2-Spot and seizure Mahazar, from where the police have seized a chopper marked at MO.1, which was said to have been thrown by one of the accused persons. In the course of cross-examination it is suggested to PW.1 that there was no necessity for him to go to Somanahalli Road to reach the complainant�s house, because there was a short-cut to reach the house of PW 1. These suggestions have been denied by this witness. It is elicited that on hearing the screaming voice of FW.2, PW. 1 came to the spot. She also consistently stated that she saw the incident at a distance of 10 yards; All the accused surrounded the deceased and assaulted. It is also elicited that the police have recorded her further statement after three days. Of course she has not stated about the specific time taken by the accused to assault the deceased. She did not say about the dispute with regard to particular land or the extent of the lands etc. She reiterated that the deceased died on the spot instantaneously and by the time she reached the spot, Mahesha had already dead. She withstood her cross-examination by saying that all the accused persons have been encircled the deceased and assaulted. The suggestions made to this witness that, "she came late to the spot and by that time, the incident was already over," has been denied.

Looking to the above evidence of these two witnesses, the learned counsel for the accused has contended that there is no necessity for PW. 1 to go in that particular road and he is a regular coolie worker working under the father of the deceased by name Chandre Gowda and therefore, he is an interested witness and his evidence has to be very carefully scrutinized; PW.2 Shivanna is the mother of the deceased; There are every chances of falsely implicating the accused and therefore, their evidence cannot be relied upon as a gospel truth. It is also argued that it is unbelievable that PW.2 would go in the early hours on that day for grazing the cattle. Looking to the above said arguments, it cannot be said to be a universal principle that, if the witnesses are tire related witnesses�, their evidence cannot be believed at all and it all depends upon the facis of each case. When there is no denial with regard to the motive factor in the course of cross-examination and when the existence of the disputes have been accepted by the accused persons, there are no chances of PWs. 1 & 2 screening the real culprits and falsely implicating the accused persons. But their evidence has to be very carefully scrutinised as to whether all the accused persons have assaulted the deceased or some of the accused persons were implanted later. Concentrating mainly on this point the learned counsel has strenuously drawn our attention to the First Information Report and the subsequent evidence by PWs. 1 & 2. As we have discussed above, even on careful scrutiny of their evidence, we do not find any strong and acceptable reasons to totally disbelieve the evidence of PWs. 1 & 2.

So far as witnesses-PWs. 1 & 2 are concerned, learned counsel has strenuously contended that the conduct of PW. 1-Shivamma and PW.2-Byraiah are not normal. Though they claimed to have seen the incident, they did not even screamed to get the help from the people of surrounding area nor they themselves made any efforts to rescue the deceased. This argument, in our opinion, is not tenable because, varieties of people have got their own perceptions and reflex actions. The court cannot expect a set of reaction by applying any universal principle from all types of persons. PW. 1-Shivamma who is an aged lady and PW.2-Byraiah who is only a coolie worker, are admittedly from rural background and they are rustic villagers. They have seen such a ghastly incident of gruesome murder and according to them, there were totally five persons assaulting the deceased; if they would have gone to the rescue of the deceased, they also would have been subjected to assault. Thinking in that way, they did not go to the rescue of the deceased. The witnesses not venturing to rescue the deceased is not a serious lapse on the part of PWs. 1 ft 2. The trial Court in fact, in detail on facts, with rulings has discussed this aspect and negatived the contentions raised by the defence counsel. We do not find any strong reasons to deviate from the opinion expressed by the trial Court.

it is also contended that there is a long delay in recording the statement of PW.1. The delay in our opinion so far this case is concerned, counts very less. Though there is no sufficient explanation by PW.1 and by the Investigating Officer as to why such delay has been occurred, but on over all analysis of the entire facts and circumstances of this case, the delay got itself explained. PW.2-Byraiah has stated that he was scared of the accused persons and on seeing such ghastly incident he was frightened and went back to house and after three days only when the police asked him, he disclosed about the incident. But, one important aspect to be borne in mind so far as this aspect concerned is, PW.2-Shivamma at the first instance while lodging complaint itself has specifically mentioned about the presence of PW.1-Byraiah at the time of the incident. Therefore, merely three days in examining PW. 1 is not sufficient to totally discard the evidence of PW.1, because, PW.1 has not stated any new fact except the one depicted in the First Information Report Therefore, it cannot be said that investigation officer with deliberate intention to implant the eyewitnesses, introduced PW.1. We could understand that if his name was not there in the First Information Report, then the delay would have played an important role. Therefore, such an argument is also not acceptable one.

It is further contended that Sri. Chandregowda, the husband of PW.2 also came to the spot little later. He also saw the dead body of his son. He is also a proper person to speak about the motive. As we nave discussed, motive cannot be a decisive factor more over when the motive is not much disputed there is no need for the prosecution to examine any more witnesses on the same point. Therefore such non-examination cannot be fatal to the prosecution. Hence, that argument also does not hold any water.

It is further argued that the scribe of the complaint has not been examined, though he has cited as a witness in order to ascertain the truth or falsity of the complaint. But the non-examination of the scribe only comes into picture if the evidence of the author of the said document is shaky and inconsistent. If the contents of the complaint have been stated by the complainant supporting the case of the prosecution and further she admits that she has disclosed such facts to be written by the scribe, mere non-examination of the scribe also does not invalidate the complaint.

Last but not least, the learned counsel has drawn our attention to several discrepancies regarding the time of incident and the time of death of the deceased. Of course, there are some small discrepancies with regard to explaining the time of incident by PWs. 1 & 2. PW. 1-Byraiah has deposed that he came to the spot at 7.30 am. But in the course of cross-examination he corrected himself and stated that he came to the spot at 7.00 a.m. and he saw the incident. Though there is some minor discrepancy in mentioning the time, but it is an ignorable discrepancy and it is not having capacity to totally uproot the evidence of the witness of PW1.

With regard to the time of death Dr.Chethan (PW.10) has stated in his evidence that the death might have occurred between 7.00 to 12.00 hours prior to the post-mortem examination. Lot number of questions have been put to the Doctor with regard to the presence of rigor mortis and other features of the dead body in order to elicit that the death was occurred much prior to the alleged incident ie, to say between 4.00 and 5.00 a.m. on that day. Though the Doctor could not conclusively state about this factor, but he stick-on to his evidence that the death was occurred between 7.00 to 12.00 hours prior to post-mortem examination. Though there is some evidence to this effect, but when the eyewitnesses have specifically and consistently stated about the incident being taken place in their presence, at a particular time, the ocular evidence always should be preferred. Hence, this argument also in our opinion cannot be countenanced.

The learned counsel also drew our attention to the point that the motor cycle on which the deceased was traveling has not been seized in this case. It is contended that according to the prosecution, when the deceased was going on his motor cycle and particularly when he was on the motor cycle itself, the assault has taken place; therefore, such an incriminating article deliberately has not been seized Though there is some lapse on the part of the Investigating Officer in not seizing the motor cycle, but on a careful perusal of the evidence on record, there is absolutely no evidence from the eyewitnesses or anybody, who have seen the said motor cycle that, any incriminating material found on the motor cycle. The discretion vests with the Investigating Officer to seize the necessary articles in case if it is incriminating against the accused. Merely because the motor cycle is not seized in this case, it cannot be said that the Investigating Officer has deliberately with-held such seizure in order to suppress any truth before the court. Mere non-seizure of the motor cycle is not fatal to the prosecution.

The above said contentions raised by the defence counsel have also been considered by the trial Court in detail and by assigning reasons, the trial Court has rejected such contentions, as they are all minor discrepancies and not major discrepancies sufficient to totally uproot the case of the prosecution. Therefore, we have no other reasons to differ from such opinion of the learned trial Judge.

As we have already culled-out the contents of the First Information Report, and evidence of P.W.1 and 2, there are consistent and specific allegations made against A1-Virupaksha, who assaulted on the neck, and A4 -Kumara, who assaulted on the head and A3-Harisha, who assaulted on the face of the deceased. As we have narrated, in the cross-examination, the name of Prateesha (A2) has been introduced and his overt act has also been specifically stated. But even in the evidence, PW.2 has not stated about the overt act of A5-Raveesha. PW.1 also as an eyewitness has only stated about the assault by Prateesha (A2) on the forehead of the deceased, whereas PW.2 has stated that Prateesha has assaulted on the neck of the deceased. Further, PW. 1 has never stated even about the presence of A5-Raveesha much less about the overt act of the said person. In the first paragraph of his statement, he has only mentioned the names of Virupaksha (A1), Harisha(A3), Prateesha(A2) and Kumara(A4), but he never stated about the presence of Raveesha.

We can understand that in a ghostly incident like murder, the witnesses need not say meticulously about the specific overt acts of the accused. In a gruesome murder when five persons surrounded a person and assaulted him, it is not easy for the witnesses to pin-point with all particulars with regard to assault on a particular part of the body of the deceased. But, in this particular case, the witnesses have chosen to specifically state about the assault on the deceased with all specifications about the part of the body of the deceased on which blows were inflicted. Therefore, in that context, the evidence of the witnesses has to be very carefully scrutinized. There is absolutely no mention about the name of A2-Prateesha in the First Information Report, the overt act of A2-Prateesha, as stated by PW.1 is totally differed by PW.2. Further added to that, there is no explanation as such in the evidence of PW.2, that why though knowing all the accused persons even much earlier to the incident, she has not stated about the presence of Accused No.2. There is no reason for PW.2 in not disclosing the name of A2 and overt act of A5, in the First Information Report. Even accepting that she was in grief or frightened due to the incident, when the police came afterwards to the spot to conduct spot-Mahazar and inquest proceedings, she would have disclosed about the presence of Accused No.2 and also the overt act of Accused No.5. For a period of three days upto 20.12.2008, there was no whisper. This creates a serious reasonable doubt as to whether accused Nos. 2 & 5 have been subsequently implicated into the crime. It must be established by the prosecution that all the accused persons hatched conspiracy prior to the incident and came to the spot with a sole intention to do-away with the life of the accused. If any one of the accused is shown to have not participated in the incident, Section 149 of IPC cannot be said to have been proved beyond reasonable doubt.

Bearing in mind the above said discrepancies in the evidence of PWs. 1 & 2, it is just and necessary for the court to look at the medical evidence so far as this aspect is concerned, whether it supports the evidence of PWs. 1 & 2. PW.10- Dr. Chethan, the Medical Officer, PHC, Karehalli, has deposed before the court that on 17.12.2008 between 2.00 to 4.00 p.m., he conducted post-mortem examination on the dead body of deceased Mahesh and he found only two injuries on the body of the deceased viz.,-

i) A Blunt injury on the right side of the forehead measuring 3x 3cm

ii) A Deep chap wound over the neck above thyroid cartilage exposing the trachea, esophagus and other blood vessels and muscles of the neck and major blood vessels cut.

PW 10 has also stated that all other parts of the body, on dissection, found to be intact. He gave the opinion that the death was due to shock and hemorrhage as a result of the injuries over the neck. He issued post-mortem report as per Ex.P9.

In the course of cross examination, PW.10 admitted that "if a person is assaulted with choppers by five persons surrounding him on all the directions, the deceased must sustain more injuries than what is mentioned in Ex.P9". It shows that the evidence of PWs. 1 & 2 is not fully corroborated by the medical evidence But, so far as it relates to the overt acts of Accused No. 1 & 4 on the neck and the head of the deceased, it is fully corroborated by the medical evidence. In the absence of multiple injuries, the prosecution would have got it explained from the Doctor as to how only two injuries could be caused when according to the prosecution, five persons have assaulted the deceased with choppers. There is no injury as such on the chin to connect A3-Harisha in this regard. But the evidence of P.W. 1 and 2 is consistent so far as the presence and assault by Accused No.3, therefore, their cannot be discarded merely corresponding injury was not there. The prosecution has not got explained whether the injury on the neck could be due to more number of number of blows than one on the same place by different accused persons; whether there are two or three injuries merged into one injury and caused the injury on the neck. Further added to that, there is no explanation by the Doctor also whether one blow with a chopper with a heavy blade could cause such wound on the neck. These are all the information ought to have been elicited by the prosecution from the Doctor. But, it appears that has not been done. Though four choppers were shown to the Doctor, the prosecution has failed to explain as to all the four choppers could have been used for the purpose of causing only two injuries. Therefore, in the absence of such medical evidence corroborating the evidence of PWs. 1 & 2, it is very difficult to draw an inference sofar as it relates to Accused Nos.2 and 5 in this regard, because of the discrepancies and infirmities in the evidence of the witnesses, as discussed supra.

The learned trial judge has drawn inference on the basis of surrounding circumstances, invoking section 149 against all the appellants. However the important aspects with regard to the discrepancy in the First Information Report and the evidence of PWs. 1 & 2 are not properly appreciated by the trial Court. Therefore, in our opinion, the above said doubts are not mere doubts but amounts to reasonable doubts, benefit of such doubts ought to have been extended in favour of Accused No.2 and 5. Therefore, we are of the opinion that the evidence of both PWs. 1 & 2 relating to Accused Nos.2, & 5 is not sufficient to draw an inference of guilt against them even by invoking Section 149 of IPC.

The prosecution relied upon the recovery of incriminating articles from the accused persons with reference to the articles, particularly the clothes of the deceased and also a chopper found on the spot. The evidence of Investigating Officer discloses that after arrest of the accused persons, he recorded their voluntary statements and the incriminating articles were recovered at the instance of the accused. PW.2 & 3, have spoken about the seizure of the weapon (MO.1) on the spot. They have categorically stated that they were all present at the time when the police arrived to the spot and in fact the police have conducted the Mahazar as per �x.F2 and seized MO.1 from the spot. Nothing worth is elicited during the course of cross-examination of these two witnesses so as to disbelieve them. More over the recovery of clothes of the deceased under Ex.P.3 and also the chopper on the spot is nowhere connected to the accused as at that particular point of time the accused were not at all arrested and no incriminating articles were recovered from them. There is no reason to disbelieve the evidence of the said witnesses. Therefore, the prosecution in fact has established the recovery of MO.1 at the spot. We will discuss how the police would connect the recovery of MO.1 to the accused later.

The prosecution has also examined PW.4-Yogesha in order to establish the seizure of the clothes of the deceased, which was produced before the Investigating Officer after the postmortem examination. PW.4-Yogesh is the attester and PW.7-ShashiKumara is the person who produced those clothes before the Investigating Officer and here also there is no much cross-examination to these witnesses and more over as we have observed, the accused were not at all arrested on that point of time. PW.4-Yogesha has identified his signature as per Ex.P3(a) and PW.7-ShahiKumara also identified his signature as per Ex.P3(b). The items, viz., shirt, lungi, kacha, banian and a cap seized are respectively marked at MOs. 4 to 8. Again same suggestions have been put to these witnesses with regard to their interestedness in deposing before the court. But, PW.4-Yogesha is consistent in his evidence so far as the production of the clothes of the deceased by PW.7-ShashiKumara before the Investigating Officer. It is also stated by PW.4 that PW.8-Dinesh was also present at that particular point of time. Except putting suggestions, nothing has been elicited during the course of the cross-examination. But, only answer elicited is that the sister of this witness was given in marriage to PW.8-Dinesha and he is the relative of PW.2-Shivamma. Merely because he is a relative, his evidence cannot be discarded, if there is no other material available to disbelieve this witness. Therefore, the prosecution has also established the seizure of these articles.

The Investigating Officer�s evidence has to be looked into with regard to the recovery of incriminating articles at the instance of the accused coupled with the evidence of other witnesses. PW.5-VasanthaKumara is the panch-witness to Exs.P4 & P5. The said witness has categorically stated that on 20.12.2008 the A3-Harisha and A5-Raveesha took the police and the witnesses to a vehicle (Maxi Truck) which was parked near the police station and -particularly A3-Harisha took out a blood stained chopper kept underneath the front seat of the said vehicle and produced the same. The clothes worn by A3-Harisha and A5-Raveesha on that day were also stained with blood. A3 Harisha has produced Blue Color Pant, Full-arm Shirt. Likewise, A5-Raveesha has also produced a Bloc Color Pant and a T-shirt. The police have recovered those articles under Ex.P4 and this witness has identified his signature at Ex.P4(a). Thereafter, A1-Virupaksha and A2-Prateesha took PW.3-Mallesha, PW-5 Vasanth Kumar and the police to the land of one Lakshmana Shetty and they went inside the said garden, searched there in the banana garden and coffee plantation, they took-out one chopper each and produced the same before the police. The police also have seized them under a mahazar-Ex.P5. The articles are also identified as per MOs. 9 to 15. In the cross-examination as usual, similar questions have been put, as earlier put to the panch-witnesses. Of course, it is suggested to this witness (PW-5) that he is also related to the deceased Mahesh. But he denied the said suggestion. In the course of cross examination, he reiterated that, the contents of Exs.P4 & P5 have been read-over to this witness and thereafter he put his signature on it. It is admitted by this witness that the police have not selected any panch-witness from the nearby place, particularly Jayanna and Mahendra, whose houses are situated nearby the said place. Except eliciting these two aspects, nothing has been elicited, except putting suggestions to this witness that he was not at all present at the time of drawing-up of seizure Mahazars-Exs. P4 & P5 and he is deposing at the instance of the police. It is also elicited from him that 20 to 30 persons were gathered there. This clearly indicates that the police have selected this witness who is of the Chikkabikkod village and there is no indication in the cross-examination that he is an interested witness in the case. Looking to the said evidence of this witness, there is nothing to disbelieve the evidence of this witness. Therefore, the prosecution is also able to establish the recovery of MOs. 9 to 15 under Exs. P4 & P5.

The prosecution has also relied upon the recovery of incriminating articles at the instance of A1-Virupaksha, A2-Prateesha and A4-Kumara with regard to their clothes.

PW.6-B.M. Shankar, in his evidence has categorically stated that after the arrest of the accused the police have secured this witness to the police station. He saw A1-Virupaksha, A2-Prateesha, A4-Kumara were there in the police station. A1-Virupaksha has produced white, green and yellow color full-arm check shirt and one cement color pant as per MOs. 16 & 17. A2-Prateesha produced a cement color pant and rose color T-shirt, which are marked at MOs. 18 & 19. A4-Kumara has produced a Blue color Pant and Blue color T-Shirt, marked at MOs. 20 & 21. This witness identified his signature as per Ex.P6(a). He also stated that an Omni Car No.KA-13-2283 has also been seized at his instance belonging to A6-Devendra under Ex.P7.

In the course of cross-examination of PW-6, it is elicited that the witness does not know from where A1-Virupaksha brought his clothes, but he has further stated that A1-Virupaksha has produced the clothes in the police station. He also cannot say on which part of the said clothes bloodstains were observed. Suggestions have been made to him that this witness was not present and no clothes were recovered at his presence in the police station. The said suggestion has been denied.

Looking to the above evidence of these witnesses so far as it relates to recovery is concerned, nothing worth has been elicited to doubt the credibility of this witness, as such, the recovery of the above said items have been proved to the satisfaction of the court.

The prosecution wants to connect the said recovery of the articles to the crime in question. For that the prosecution has relied upon the FSL report, which is marked at Ex.P24 and also the evidence of PW. 14-Dr. Chandrasekhar and PW.15-B.N. Goankar. PW.4-Chandrashekar, a Scientific Officer, has deposed before the court that the he examined 21 sealed items sent to him and he opined that Item Nos. 3 to 7 and 9 to 21 were stained with blood. These items are the material objects recovered in this particular case. Except the sample mud recovered at the spot and also a cap belonging to the deceased, all other items were stained with human blood. In the course of cross-examination, he reiterated his report, but it is elicited that he has not given the description with regard to the items and to whom those items belonged to. It is not the duty of the officer to say ail those things, because he is only entrusted with the work of ascertaining whether those articles were stained with blood or not. Ex.P24 contains the details of receipt of the articles and also the examination done. PW.-15 Goankar is the Assistant Director, Regional FSL, Mysuru. He deposed before the court that he also examined items- 1, 3 to 7 and 9 to 21. He examined the stains which were preserved and sent for serological examination and on examination he found that Item Nos. 1, 3 to 7 and 9 to 21 contain human blood-stains. However, Item Nos. 16, 17, 20 & 21 are concerned, he could not ascertain the blood group as the blood stains were disintegrated. There is nothing to disbelieve the evidence of these witness. In the course of cross-examination, except suggesting that the Investigating Officer has not sent the sample blood of the deceased for examination and also he has not properly conducted the procedures and further Ex.P25-Serology Report contains only distorted version and not truthful version, nothing worth has been elicited.

On a careful perusal of the above said evidence of PWs. 14-Dr. Chandrasekhar and PW. 15-Goankar, it is evident that Item Nos. 1 to 8 are pertaining to MOs. 1 to 8 and out of them, Items - 4 to 8 are the clothes of the deceased. MO.2 (Blood stained mud) collected at the spot. MO.3 is unstained mud; MOs.2 and 4 to 8 contained �O� Group Blood; MO. 1-Chopper also contained �O� Group Blood; MOs. 10, 16 & 17 are the Choppers recovered from A1-Virupaksha and shirt and pant of A1 also contained �O� Group Blood ; MOs. 9, 18 & 19 are Chopper, pant and shirt recovered from A2-Prateesha. Very particularly, on these items, the blood was disintegrated as such no certain and conclusive reports have been given by PWs. 14 & 15 with regard to the group of blood found on these items. Therefore, so far as A2-Prateesha is concerned, the blood group on the items recovered from him has not been conclusively established. This also creates a serious doubt with regard to the participation of Accused No.2 in the crime. His medical report also supports the doubt with regard to the participation of A2-Prateesha.

So far as it relates to recovery from A3-Harisha is concerned, MO. 11 is a chopper and MOs. 12 & 13 are the pant and shirt recovered at the instance of A3-Harisha. These items also contain �O� group blood, though there is some discrepancy with regard to the injuries being inflicted by the accused and there is no corresponding injury on the chin of the deceased. But that itself is not sufficient to discard the evidence of the eye witnesses and the evidence of P.W 14 and 15. Therefore the prosecution also established the participation and overt acts of Accused No 3.

So far as recovery relates to A4-Kumara is concerned, the recovery of pant & shirt marked at Exs. 20 & 21 which are item Nos. 18 & 19 in the FSL report shows that these items contain �O� group of blood, which tallies with the blood group of the deceased. As we have already expressed, there is direct ocular evidence by the eyewitnesses with regard to participation and overt act of A4-Kumara, who assaulted the deceased on his head. The expert�s evidence also corroborates the evidence of the eyewitnesses. Though there is no recovery of any chopper at the instance of A4-Kumara, nevertheless there is evidence to the effect that MO.1 was thrown at the spot by one of the culprits, has been consistently stated by PWs. 1 & 2. This fact is also supported by the First Information Report lodged at the earlier point of time. Therefore, when this court is of the opinion that the prosecution has placed consistent evidence so far as A1-Virupaksha, A3 Harisha and A4-Kumara are concerned and a chopper was recovered at the instance of A1-Virupaksha, it can be safely concluded that A4-Kumara must be a person, who has thrown MO.1 at the spot, which also contained the blood stains and which tallies with the blood group of the deceased. Therefore, it can be concluded that the evidence of the eyewitnesses is not only corroborated the medical evidence, but also supported by the evidence of PWs. 14-Dr.Chandrshekar, PW. 14-Goankar and also the FSL report (Ex.P24). The material objects marked at MOs. 14 & 15 are pant and shirt recovered from Accused No.5 which is marked at Item Nos. 11 & 12 in the FSL report. There is no recovery of any chopper at the instance of A5-Raveesha. As we have already expressed, the evidence is insufficient against A5, merely because the clothes recovered contain stains of �O� group blood, that itself cannot be a decisive factor to convict Accused No 5.

Looking from any angle, there is no reason to interfere with the judgment of the trial Court so far as it relates to Accused Nos. 1, 3 & 4 is concerned. However, in view of the reasons given by us and the discrepancies in the evidence with regard to Accused Nos.2 & 5 are concerned, there is no sufficient evidence on which the court can draw a conclusive inference against them. The benefit of doubts arising out of the prosecution evidence, as noted by us, has to be extended in favor of the said accused persons. Therefore, the judgment of conviction and sentence so far as it relates to Accused Nos.2, & 5 are concerned, deserves to be set aside.

With the above observations, the following order is passed:-

ORDER

i) Crl. A. Nos. 1018/2011 and 1294/2011 are hereby partly allowed.

ii) The judgment of conviction and sentence dated 04.08.2011 passed by the Principal Sessions Judge at Hassan in S.C. No.53/2008, in sofar as Prateesha-A2 (Appellant No.2 in Cr.A. No 1013/2011) and Raveesha-A5 (Appellant No.2 in Cr.A. No. 1294/2011) are concerned, is hereby set aside.

In case, if A2- Prateesha and A5-Raveesha are in custody, they are ordered to be released forthwith, in case if they are not required in any other case.

iii) The impugned judgment of conviction and order of sentence in sofar as A1-Virupaksha and A4-Kumara (Appellant Nos.1 & 3 in Cr.A. No. 1018/2011) and A3-Harisha (Appellant No.1 m Cr.A.No. 1294/2011) are concerned, is hereby confirmed.