Tejas and Others vs The State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order of conviction, convicting accused Nos. 1 to 14 for the offences punishable under Sections 143, 147, 148 and 302 r/w Section 149 of IPC is called in question in these appeals by the convicted accused.

It is relevant to note that accused No. 15 though was also tried alongwith convicted accused, he is acquitted of all the charges levelled against him.

Fifteen accused (including acquitted accused No. 15) were tried for the offences under Sections 143, 147, 148 and 302 r/w Section 149 of IPC. As aforementioned, accused No. 15 is acquitted, whereas accused Nos. 1 to 14 are convicted for all the offences for which they are charged.

The State has not preferred appeal questioning the judgment and order of acquittal passed in favour of accused No. 15. Thus, the judgment of acquittal passed by the Trial Court as against accused No. 15 has attained finality.

Crl. A. No. 139/2013 is filed by the convicted accused No. 13. Crl. A. No. 286/2013 is filed by the convicted accused No. 8. Crl. A. No. 390/2013 is filed by the convicted accused Nos. 7, 11 and 14. Crl. A. No. 198/2013 is filed by the convicted accused Nos. 1, 2, 3, 4 and 12. Crl. A. No. 434/2013 is filed by the convicted accused No. 5. Crl. A. No. 695/2013 is filed by the convicted accused No. 6. Crl. A. No. 197/2013 is filed by the convicted accused No. 9. Crl. A. No. 689/2014 is filed by the convicted accused No. 10.

Case of the prosecution in brief is that Kumara (P.W. 15) was the driver of the Scorpio Vehicle owned by the deceased-Anjanappa; the deceased was taking the services of P.W. 15 whenever needed; on 08.09.2010, accused No. 1 alongwith his followers i.e., accused Nos. 2 to 14 went to Nelamangala in a Tata Sumo vehicle driven by P.W. 16 and Tata Indica car driven by P.W. 21; they hatched a plan in Shivaprakash Panjabi Dabha situated at Nelamangala to do away with the life of the deceased; the conspiracy was overheard by P.Ws. 16 and 21; accused Nos. 1 to 14 though tried to implement the plan of committing murder of the deceased on 09.09.2010, were unsuccessful; at 7.30 a.m. on 10.09.2010, Anjanappa (deceased) left his house in Scorpio vehicle in order to meet the fortune teller; though P.W. 15 was the driver of Scorpio vehicle, the deceased told P.W. 15 that he should sit on the back side of the car and that deceased himself would drive the vehicle since he knew the route of the house of fortune teller; both of them left the house of Anjanappa at 7.30 a.m. on 10.09.2010 in a Scorpio vehicle; the accused who were watching the movements of Anjanappa followed the Scorpio vehicle and went to towards Gokul Extension in Tumkur in Tata Sumo and Tata Indica vehicles. They were holding deadly weapons like choppers and knives etc., apart from chilly powder; when the car of the deceased came near fire brigade office situated near Railway level crossing gate, the deceased stopped the car since the gate was closed; accused Nos. 1 to 14 reached the said place in the vehicles and attacked Anjanappa with deadly weapons and damaged his vehicle; Anjanappa tried to escape himself by getting down from the Scorpio vehicle, however accused Nos. 1 to 14 chased him to certain distance and brutally attacked him, because of which the deceased sustained sever grievous injuries and fell in a gutter. P.W. 15 who was sitting in the Scorpio vehicle, with the help of P.Ws. 8, 9 and others shifted injured to District Hospital, Tumkur for treatment. Medical Officer of Government Hospital, Tumkur, examined Anjanappa and declared that he was brought dead.

On getting information, police attached to Kyathasandra Police Station and P.W. 5 (brother of the deceased) went to Government Hospital, Tumkur. It is relevant to note here itself that P.W. 5 (brother of the deceased) had gone to the place of the incident after getting the information and came to know that his brother was shifted to Government Hospital, Tumkur, accordingly he rushed to Government Hospital, Tumkur. The jurisdictional Deputy Superintendent of Police (P.W. 13) of Tumkur Sub-division also got information about the incident and he also came to the hospital. P.W. 5 filed a written complaint to the police as per Ex. P19. P.W. 23, the PSI of Kyathasandra Police Station received Ex. P19 in District Government Hospital and went to the Kyathasandra Police Station and registered a case in Crime No. 250/2010 and submitted FIR to the jurisdictional Court as per Ex. P47. Though the investigation was conducted by Sub-Inspector of Police, further investigation was taken over by P.W. 30 as per direction of Superintendent of Police and he filed the charge-sheet. Accused Nos. 1 to 5, 7 to 9, 11, 13 to 15 were arrested between 15.9.2010 and 17.9.2010. Accused No. 12 was arrested on 30.9.2010, whereas accused Nos. 6 to 10 were arrested on 10.10.2010.

In order to prove its case, the prosecution in all examined 30 witnesses and got marked 66 Exhibits and 35 Material Objects. On behalf of the defence, one Exhibit was got marked from the statement of P.W. 15. As aforementioned, the trial Court on evaluation of the material on record, convicted accused Nos. 1 to 14 for the offence punishable under Section 302 of IPC and for other offices with which they were charged. Accused No. 15 came to be acquitted.

Sri A.H. Bhagawan, learned advocate appearing on behalf of accused No. 8 (appellant in Crl. A. No. 286/2013) and Sri Tomy Sebastian, learned senior advocate appearing on behalf of accused Nos. 1 to 4 and 12 (appellants in Crl. A. No. 198/2013) submitted that the trial Court is not justified in convicting accused Nos. 1 to 14; all the eye witnesses, except P.W. 15 have turned hostile to the case of the prosecution; the evidence of P.W. 15 is unreliable, inasmuch as all the accused, including accused Nos. 1 and 2 were shown in the Police Station on 17.9.2010 itself to the witnesses; it is also relevant to note that the incident has taken place on 10.9.2010 and the statement of P.W. 15 came to be recorded on 17.9.2010; no plausible explanation is offered by the prosecution as to why the statement of P.W. 15 is recorded belatedly; after taking us through the entire material on record, they submit that the prosecution has suppressed the origin and genesis of the case of the prosecution; the deceased was an unwanted element and he must have been done to death by other persons who were having ill-will against him; except accused Nos. 1 and 15, no other accused allegedly had any motive for commission of offence; accused No. 15 who was the main accused relating to conspiracy, is acquitted by the trial Court by disbelieving the theory of conspiracy; this itself clearly shows that the theory as put forth by the prosecution relating to conspiracy is unbelievable; even the motive alleged against accused No. 1 is not proved by the prosecution. On these among other grounds, they pray for acquittal of the accused.

Learned advocates and the learned amicus curiae appearing for other accused argued supporting the aforementioned arguments of Sri A.H. Bhagawan and Sri Tomy Sebastian.

Per contra, Sri Keshvamurthy, learned Additional SPP argued in support of the judgment of the Court below by contending that the evidence of sole eye witness (P.W. 15) is sufficient to bring home guilt against the accused, inasmuch as his version before the Court is consistent with the case of the prosecution; the presence of P.W. 15 is affirmed by P.Ws. 8 and 9 though they have turned hostile to the case of the prosecution in other respects; merely because of belated recording of statement of P.W. 15 and merely because of the fault of the Investigating Officer, justice cannot not be allowed to suffer. Thus, according to him, the trial Court is justified in convicting the accused based on the version of P.W. 15.

The case of the prosecution mainly rests on the evidence of the eye witnesses. P.Ws. 1, 2, 8, 9, 10, 11, 15, 16 and 21 are the eye witnesses to the incident in question. Except P.W. 15, all other eye witnesses have not supported the case of the prosecution with regard to the actual incident in question. P.Ws. 8, 9 and 10 have deposed that they came to the spot after the incident and by the time they came to the spot, the incident was over and the injured had fallen to the ground. It is further deposed by P.Ws. 8 and 9 that they shifted the injured to the hospital with the help of Mr. Kumar (P.W. 15) in Scorpio vehicle belonging to the deceased. Prosecution also relies upon the aspect of recovery of four choppers (MO. Nos. 9 to 12) at the instance of accused No. 5 under panchanama at Ex. P15, in support of its case.

As aforementioned P.Ws. 1, 2, 8, 9, 10, 11, 15, 16 and 21 are the eye witnesses. Among them, only P.W. 15 supports the case of the prosecution and others have turned hostile to the case of the prosecution.

P.W. 3 is the witness for seizure panchanama at Ex. P13 under which clothes of the accused (MO. Nos. 14 to 25) were seized. Under the very panchanama, a TATA Sumo vehicle, a mobile phone and SIM cards (MO. Nos. 26 to 30) were seized. Ex. P14 is the mahazar relating to seizure of motor cycle bearing Regn. No. KA-02-EZ-315. Ex. P15 is the seizure panchanama relating to weapons (MO. Nos. 9 to 12) at the instance of accused No. 5. Ex. P16 is the mahazar relating to seizure of another motor cycle at Rahul Service Station. P.W. 3 has turned hostile to the case of the prosecution.

P.W. 4 was supposed to depose that accused No. 8 received a phone call on 7.9.2010 and after receiving such phone call, accused Nos. 1 and 8 went away. This witness has turned hostile completely.

P.W. 5 is the brother of the deceased. He went to the spot after the incident in question and thereafter he went to the District Hospital, Tumkur since the injured was shifted to the said hospital. He lodges the first information as per Ex. P19 against unknown persons.

P.W. 6 is the witness for inquest panchanama at Ex. P20.

P.W. 7 is the wife of the deceased. She went to the hospital after admission of the injured to the hospital.

P.W. 12 is the Cleaner at Venkateswara Enterprises Petrol Bunk. According to him, motor cycle bearing Regn. No. KA-02-EZ-315 was seized at the said petrol bunk.

PWs. 13 and 14 are witnesses for panchanama at Ex. P38 relating to conspiracy which happened at Shivaprakash Punjabi Dabha, Nelamangala. Both these witnesses have turned hostile to the case of the prosecution.

P.W. 17 is the doctor who treated accused No. 6 at his clinic at Tiptur. Wound certificate is at Ex. P12.

P.W. 18 is the doctor who conducted the postmortem examination over the dead body. Postmortem report is at Ex. P43.

P.W. 19 has deposed about the enmity between accused No. 1 and the deceased. He has also deposed about the conspiracy by accused Nos. 1, 4, 8 and 15 at Woodlands Hotel about 8 to 10 days prior to the incident in question. Though he has supported the aspect of conspiracy, his version is disbelieved by the trial Court and consequently, accused No. 15 who arranged for such conspiracy, is acquitted.

P.W. 20 is the witness for panchanamas at Exs. P13, P14, P15 and P16. He has turned hostile to the case of the prosecution.

P.W. 22 is the Head Constable who participated in the investigation at different levels.

P.W. 23 is the Sub-Inspector of Police. He received a written complaint submitted by P.W. 5 and based on the same, he registered Crime No. 250/2010 and dispatched the FIR as per Ex. P47. He has also conducted part of the investigation.

P.W. 24 is another Sub-Inspector of Police, who arrested accused No. 8.

P.W. 25 is the Junior Engineer, who drew the sketch of scene of offence as per Ex. P51.

P.W. 26 is the Sub-Inspector of Police, who arrested accused No. 12. He also conducted part of the investigation.

P.W. 27 is the Inspector of Police, who assisted the Investigating Officer during investigation.

PWs. 28 and 29 are the witnesses for panchanamas at Exx. P52 and P53. They have turned hostile. Under Ex. P52 a Scorpio vehicle was seized and under Ex. P53 clothes of the deceased were seized.

P.W. 30 is the Investigating Officer who completed the investigation and laid the charge sheet.

As aforementioned, the incident has taken place at about 7.30 to 7.45 a.m. on 10.9.2010. The brother of the deceased (P.W. 5) after getting information, immediately went to the spot and having learnt that the injured was shifted to the District Hospital, Tumkur went there and lodged a written complaint as per Ex. P19 to the Sub-Inspector of Police who had also arrived at the District Hospital, Tumkur, by then. The complaint came to be registered at 10.00 a.m. on the very day against unknown persons. Not even a single name is specified in the complaint as assailant. Thus, it is clear that till 10.00 a.m. on 10.9.2010, neither P.W. 5 nor police knew about the names of any of the assailants.

The statements of P.Ws. 15, 16 and 21 were recorded on 17.9.2010 under Section 164 of Cr.P.C. before the Magistrate. Among them, P.Ws. 16 and 21 have turned hostile to the case of the prosecution. As aforementioned, all other eye witnesses, except P.W. 15 have turned hostile and they have not supported the case of the prosecution with regard to the actual incident in question. Among them, P.Ws. 8 and 9 have deposed that they have come to the spot immediately after the incident and saw the injured on the spot. They also saw that Scorpio car of the deceased was damaged. They have specifically deposed about the presence of Mr. Kumara (presumably P.W. 15) on the spot. P.W. 15 along with P.W. 5 shifted the injured to the District Hospital, Tumkur for treatment.

From the above, it is clear that the case of the prosecution fully rests on the evidence of P.W. 15, the only eye witness who has supported the case of the prosecution. P.W. 15 was the close associate of the deceased. He has deposed that he was working as a driver of Scorpio car of the deceased since more than 1 1/2 years prior to the incident in question; he used to sleep in the house of the deceased very often; even on the date of the incident also, he had slept in the house of the deceased; he along with the deceased left the house of the deceased at about 7.30 a.m. on 10.9.2010 and at that point of time, the deceased was driving the vehicle, whereas P.W. 15 was sitting in the back seat of the car. He further deposed that all the accused came in a group and started assaulting the deceased with deadly weapons like choppers, knives, etc. Initially they threw chilli powder on the face of the deceased; though the deceased tried to escape from the clutches of the accused, accused chased him and assaulted the deceased; at that time, P.W. 15 was sitting in the car and seeing the incident of assault; he did not even get down from the car. It is also admitted by P.W. 15 that he was not assaulted by any of the accused; after accused left the scene of offence, he alighted from the vehicle and saw the deceased with severe injuries on all over his body. Immediately thereafter, he shifted the victim to the District Hospital, Tumkur with the help of P.Ws. 8 and 9 in the very Scorpio car of the deceased. After reaching the hospital, he did not disclose the names of any of the assailants to the hospital authorities including the doctor. He informed one Mr. Rakesh (not examined before the Court) and requested him to get one set of clothes from the Borewell Office of the deceased. Accordingly, Rakesh brought one set of clothes of P.W. 15 to the hospital. P.W. 15 changed his dress in the hospital. Thereafter he talked with P.W. 5 (brother of the deceased) and police officials who had arrived by then in the hospital. Since he had feared about his life, he went to his native place, i.e., Holageredoddi Village, Channapatna Taluk and stayed there up to 17.9.2010. Though he got a call from the police about 2 to 3 days prior to 17.9.2010 to come to Tumkur, he came to Tumkur only on 17.9.2010 and thereafter his statement is recorded under Section 164 Cr.P.C. before the Magistrate.

From the evidence of P.W. 15 it is clear that he had talked with P.W. 5 (brother of the deceased), and the hospital authorities as well as with the Police Officers (P.Ws. 23 and 29) who had come to the hospital by then, i.e., immediately after the incident. Despite, the same, he did not disclose the names of any of the assailants to these persons including the police. According to him, he was a close associate of the deceased. He was the driver attached to the car of the deceased since more than 1 1/2 years prior to the incident. Even according to the case of the prosecution, P.W. 15 was sleeping in the house of the deceased on the previous night of the incident in question. These facts would make it amply clear that P.W. 15 was a close associate of the deceased. In spite of the same, P.W. 5, the brother of the deceased has not deposed before the Court that P.W. 15 was the driver of the car of the deceased. Though P.W. 5 has deposed that Srinivas and Uday had worked as drivers of the deceased, he does not refer to the name of P.W. 15 as the driver of the car of the deceased. To a specific question asked by the defence, P.W. 5 has answered that he does not know as to whether the deceased had employed the services of any of the drivers on the date of the incident or just prior to it. So also, P.W. 5 did not depose about the presence of P.W. 15 in the hospital. In the cross-examination, P.W. 5 has admitted that he does not know as to who had admitted the injured to the hospital. It is also deposed by P.W. 5 that till 12.00 noon, the Inspector of Police as well as the Sub-Inspector of Police were very much in the hospital making enquiries.

As aforementioned, according to P.W. 15 he had talked with P.W. 5. However, P.W. 5 does not depose so before the Court. Even if we believe the version of P.W. 15 that he was present in the hospital and talked with P.W. 5, it would not help the case of the prosecution inasmuch as he has not disclosed the names of assailants either to P.W. 5 or to the police authorities as well as to the hospital authorities. P.W. 30-the Investigating Officer has specifically admitted that P.Ws. 23 and 29 (Police Officers) were very much there in the hospital and had talked with P.W. 15. It is also admitted by P.W. 30 that P.Ws. 23 and 29 ought to have registered the crime based on the version of P.W. 15. Such oral version of P.W. 15 in the hospital before the P.Ws. 23 and 29 was not reduced to writing for the reasons best known to the Investigating Officer. Immediately after getting information of the incident in question, the police have visited the hospital. As the deceased was a Corporator of Tumkur Town, the incident in question had created sensation in the area. In this view of the matter, if really the Investigating Officers had talked with P.W. 15 immediately after the incident, they would not have kept quiet without recording the statement of P.W. 15 and registering the crime based on such version. On the contrary, the Inspector waited till the filing of written complaint against unknown persons and based on which crime came to be registered against unknown persons. Even at the time of registering the crime by P.W. 23, he knew very well that P.W. 15 was the eye witness to the incident and consequently he must have known name/s of at least one or two assailants. If really P.W. 15 was the eye witness to the incident in question, P.W. 23 would not have missed to register the crime based on the first information given by P.W. 15. The very fact that no crime was registered and no name of the assailant was mentioned in the first information (Ex. P19) would make the presence of P.W. 15 on the spot of offence doubtful and he must have also come to the spot immediately after the incident along with P.Ws. 8 and 9, etc.

In addition to the same, we find that the conduct of P.W. 15 is completely unnatural. Though he was a close associate of the deceased, though he was working as driver since a long time, though he admitted the victim to the hospital and talked with the police in the hospital, he left the hospital premises without informing anybody and went to his village. He has specifically deposed that he was in his village up to 17.9.2010. He did not hide himself by going anywhere because of fear. He also admits in his cross-examination that the police very much knew his phone number, inasmuch they had called him over phone after 2 to 3 days of incident in question. It is also specifically admitted by him that police did not try to search him. Though police called him over phone to come to Police Station at Tumkur after 3 to 4 days of the incident in question, he came to the Police Station and met the Investigating Officer only 2 to 3 days thereafter i.e., on 17.9.2010. As aforementioned, all the accused, except accused Nos. 6, 10 and 12 were arrested on or prior to 17.9.2010. Only after the arrest of the accused, the statement of P.W. 15 is recorded along with the statements of P.W. 16 and 21. Absolutely no valid reason is forthcoming as to why his statement was not recorded immediately after the incident (if really he is the eye witness to the incident), more particularly when P.W. 15 talked with P.Ws. 23 and 29 in the District hospital within few minutes after the admission of the victim. We find that the behaviour of P.W. 15 either at the time of incident or after the incident is highly unnatural. He claimed to have rushed to his village but still did not convey the information about the incident to anybody including the brother of the deceased and the police at least over phone. Though he had talked with the police and P.W. 5 in the hospital, though he got fresh his dresses through one Mr. Rakesh (who is not examined before the Court) from the borewell Office and though he changed his blood stained clothes in the hospital, he did not choose to inform about the incident in question and the names of any of the assailants to the police as well as P.W. 5. He chose to disappear within a couple of hours on the specious and unacceptable plea that he feared for his own safety.

In the case of Gopal Singh and Others Vs. State of M.P., (2010) CriLJ 3435 : (2010) 6 JT 292 : (2010) 5 SCALE 602 : (2010) 6 SCC 407 : (2010) AIRSCW 6497 : (2010) AIRSCW 3698 : (2010) 3 Supreme 778 , the Apex Court has overturned the judgment of the High Court as it had accepted the statement of an eye witness ignoring the fact that his behaviour was unnatural as he claimed to have rushed to the village, but had still not conveyed the information about the incident to his parents and others present there and had chosen to disappear for a couple of hours on the specious and unacceptable plea that he feared for his own safety.

In the case of Alil Mollah and Another Vs. State of West Bengal, AIR 1996 SC 3471 : (1996) CriLJ 3842 : (1996) 3 Crimes 105 : (1996) 5 SCALE 477 : (1996) 5 SCALE 471 : (1996) 5 SCC 369 : (1996) 3 SCR 666 Supp , an eye witness, who was an employee of the deceased, witnessed the assault on the employer but did not go near the employer even after the assailants had fled away to see the condition in which the employer was after having suffered the assault. His plea was that he was frightened and fled away to his home. He had admitted in his cross-examination that he neither disclosed at his home nor in his village as to what he had seen when the incident had occurred. He gave the information to the police only after 2-3 days. The plea of being frightened and not picking up courage to inform anyone in the village or elsewhere was not accepted by the Apex Court.

In this matter, though P.W. 15 courageously with the help of others, shifted the injured to the hospital, though he was present in the hospital for more than 15 minutes, i.e., till he got his dresses from one Mr. Rakesh and though he changed his blood stained dresses in the hospital, he did not either disclose about the incident of assault or the names of any of the assailants to the brother of the deceased (P.W. 5) or to the police who were present in the hospital. On the contrary, P.W. 5 has lodged written complaint as per Ex. P19 against unknown persons. These facts would clearly reveal that P.W. 15 had not disclosed the names of any of the assailants even while he was in the hospital after shifting the injured. He did not even inform the names of the assailants to his own family members in the village. He did not try to call the police over phone from his village to inform the names of the assailants. In this view of the matter, we are of the opinion that the plea of being frightened and not picking up courage to inform anyone in the village or elsewhere, cannot be accepted by this Court.

It is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, Court has to keep in mind that different witnesses react differently under different situations. Some witnesses get shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge first information or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded. (see the judgment in the case of Lahu Kamlakar Patil and Another Vs. State of Maharashtra, (2013) 1 ABR 633 : (2013) 1 AD 464 : (2013) CriLJ 603 : (2013) 1 Crimes 386 : (2012) 12 JT 607 : (2013) 1 RCR(Criminal) 393 : (2012) 12 SCALE 710 : (2013) 6 SCC 417 : (2013) AIRSCW 26 }.

Keeping the aforementioned observations in mind, we have scrutinized in detail the evidence of P.W. 15. As is evincible from his deposition, on seeing the assault on the deceased, he got scared. However, he did not run away from the scene of offence or hide himself. On the contrary, he did not get down from the car to save the life of the deceased. He might have feared of his life at the time of incident. However, he got down from the car after the accused fled away from the scene and saw the victim with grievous injures. Immediately, he shifted the injured to the hospital with the help of other persons. However, after going to the hospital, he did not inform the names of the assailants to anybody. Though he had talked with the brother of the deceased and the Police Inspectors in the hospital, he did not pass on any information about the names of assailants to them. He even got his clothes from one Rakesh and changed his blood stained dresses in the hospital and went to his village. He did not inform anybody, including the family members of the deceased. He did not even inform about the incident to any of his family members in his village. He did not try to contact the police from his village though he had a mobile phone with him. Though he received a call from the police after 2-3 days of the incident, he did not rush to come to Tumkur, on the other hand, he waited for another 2-3 days to come to Tumkur and met the Inspector only on 17.9.2010. It is curious to note that though the police knew very well that P.W. 15 was important witness in the case, they also did not venture to secure the presence of P.W. 15 immediately after the incident. As we have already narrated, P.Ws. 23 and 29, the Inspectors who talked with P.W. 15 in the hospital did not try to record his statement and register the crime based on his statement.

It is interesting to note that in the statement of P.W. 15 recorded under Section 161 of Cr.P.C., he did not state that he was scared about the incident. One thing is clear from his testimony that on seeing the incident, he was frightened and ran away from the hospital. But his conduct of not informing any of his own family members and the family members of the deceased and leaving to his village without informing anyone including police and the doctor who had talked with him defies normal human behaviour. He has also not stated anywhere that he was scared and therefore he did not go to Police Station. He did not even inform the police over phone or to the nearby Police Station. There is nothing in his testimony that he was under any kind of fear or shock when he had arrived at his village place. It is also surprising that he did not even tell any members of his family in his native place. We are not oblivious of the fact that certain witnesses in certain circumstances may be frightened and behave in a different manner and due to that they may make themselves available to the police belatedly and their examination gets delayed. But in the case on hand, regard being had to the evidence brought on record and, especially, in the absence of any kind of reasonable explanation for rushing to his native place, renders his veracity (i.e., version of P.W. 15) doubtful. His evidence cannot be treated as so trustworthy and unimpeachable to record conviction against the accused. In addition to the same, we find from the evidence of P.W. 15 that he had criminal cases against him inasmuch as he was facing criminal trial along with the deceased. He also admitted that he was facing criminal trial along with the deceased and therefore the deceased had taken him as his driver.

P.W. 5 has clarified in his evidence that his brother (deceased) was assaulted number of times by various persons earlier; he had employed personal body guards for his safety. P.W. 5 further admits that the deceased had got number of enemies at the incident in question; the CCB police had arrested the deceased and had taken him to Bangalore for interrogation; the deceased was facing trial in the murder case of one Krishna from 1997 onwards and he was in jail.

From the above, it is clear that the deceased as well as P.W. 15 were facing criminal trial and they were having number of enemies. Though P.W. 15 has tried to identify 4 to 5 accused before the Court, it is clear from his version that he was able to identify only accused Nos. 1 and 2 correctly before the Court. It is relevant to note that Test Identification Parade was not conducted in this case, on the contrary it is admitted by P.W. 15 that all the accused who were arrested prior to 17.9.2010 were shown to him and to other eye witnesses in the Police Station by the police. Thus, it is clear that immediately after recording of the statement of P.W. 15 in the Police Station or just prior thereto, the police had shown all the arrested accused to all the eye witnesses including P.W. 15. In this view of the matter, the identification of accused Nos. 1 and 2 by P.W. 15 before the Court loses its importance.

In so far as recovery of four choppers (MO. Nos. 9 to 12) at the instance of accused No. 5 is concerned, the police have drawn panchanama at Ex. P15 at the time of recovery. P.Ws. 3 and 20 are mahazar witnesses for the said panchanama at Ex. P15. Both of them have turned hostile.

PWs. 22, 27 and 30 are the Police Officers who were present at the time of drawing such panchanama. However, P.W. 27 has not deposed about the recovery of MO. Nos. 9 to 12 at the instance of accused No. 5 under Ex. P15. Even with regard to recovery of motor cycles as per Ex. P14 and P15, the mahazar witnesses have turned hostile.

With regard to aspect of motive, the prosecution has relied on the version of P.W. 19. P.W. 19 has deposed about the enmity between accused Nos. 1 and 15 and the deceased. We have already clarified that the trial Court has disbelieved the version of P.W. 19 with regard to conspiracy and consequently acquitted accused No. 15. The judgment and order of acquittal acquitting accused No. 15 is accepted by the State, inasmuch as no appeal is preferred by it.

With regard to recovery of blood stained clothes of the accused (MO Nos. 14 to 25), the prosecution has relied upon the evidence of mahazar witnesses-P.Ws. 3 and 20. The blood stained clothes of the accused were found in bag which was placed in TATA sumo vehicle. Such bag containing blood stained clothes of the accused was seized under panchanama at Ex. P13. According to the case of the prosecution, TATA sumo vehicle in which the bag was found was seized from the house of accused No. 2-Kumara, situated at Amrutur Village, Tumkur District. There is no reason as to why the said vehicle was not seized as per law. On the other hand, the police chose to allegedly take the said vehicle from Bangalore to Amrutur Village, Tumkur District and thereafter seized the said vehicle in the Police Station. This creates sufficient doubt in mind of the Court about the seizure of the blood stained clothes found in TATA sumo vehicle. So also there is no evidence as to whom the said TATA sumo vehicle belongs. Hence, recovery of blood stained clothes, loses its importance.

Number of omissions/improvements are brought on record in the evidence of P.W. 15. Majority of omissions/improvements so proved are vital to the case. Such material omissions amount to contradictions. The material on record clearly reveals that P.W. 15 has tried to improve the case of the prosecution before the Court on many vital aspects. Such improvements made before the Court are to be eschewed from consideration or to be viewed with great care and caution. Virtually we find that the evidence of P.W. 15 is shaky. Even otherwise, as mentioned supra P.W. 15 is an unreliable witness. His evidence cannot be given much weight. Such shaky evidence of P.W. 15 cannot be the sole basis for convicting the accused for the offence punishable under Section 302 of IPC.

On reconsidering the entire material on record, we find that the evidence of P.W. 15, the sole eye witness in the matter, cannot be treated as so trustworthy and unimpeachable to record conviction against the appellants herein. The trial Court in our considered opinion, has not considered the aforementioned factors while convicting the appellants herein. We find that the reasons assigned and the conclusion arrived at by the trial Court are not correct and therefore, the judgment and order of conviction passed by the trial Court against accused Nos. 1 to 14-appellants herein is liable to be set aside.

Accordingly, the following order is made:--

"i) The judgment and order of conviction dated 23.1.2013 passed by the Fast Track Court-I, Tumkur, in S.C. No. 36/2011, is set aside.

ii) Accused Nos. 1 to 14 - appellants herein are acquitted of all the charges levelled against them.

iii) It is clarified that the judgment and order of acquittal dated 23.1.2013, in S.C. No. 36/2011, acquitting accused No. 15 remains unaltered.

iv) Accused Nos. 1 to 14 - appellants herein shall be set at liberty forthwith, if they are not required in any other case."

Appeals are allowed accordingly.

We place on record the valuable assistance rendered by Sri B. Anand, learned amicus curiae in the matter. In token thereof, we direct the Registry to pay a sum of Rs. 10,000/- (Rupees ten thousand only) to the learned amicus curiae.

The Registry is directed to communicate the operative portion of this judgment to the concerned Prison Authorities, forthwith, for further action.