The State vs Boranna

N. Ananda, J.—The Respondent/accused (hereinafter referred to as ''accused'') was tried and acquitted for an offence punishable u/s 302 Indian Penal Code, 1860. Therefore, the State has filed this appeal.

We have heard Sri N.S. Sampangiramaiah, learned HCGP for State and Sri K.A. Chandrashekar, learned Counsel for accused.

In brief, the case of prosecution is as follows:

The accused was the husband of deceased Gowramma and they were living in their farmhouse in survey No. 10 of Chowlakere Village. The accused was suspecting fidelity of his wife. That on 18.01.2005 at about 5.30 p.m., when the deceased was staying in front of house, accused assaulted his wife Gowramma with a chopper with intention and knowledge of causing her death and caused her death and thereby committed an offence punishable u/s 302 Indian Penal Code, 1860. The accused, holding the chopper, ran away from the place of incident.

On behalf of prosecution, PW1 to PW23 were examined and documents as per Ex.P. 1 to Ex.P. 19 were marked. The contradictory portions in the statement of PW11 recorded u/s 161 Code of Criminal Procedure, were marked as Ex.D.1 & Ex.D.2. The material objects were marked at M.O.1 to M.O.9.

The children of accused namely PW2-Jayanna @ Mruthyunjaya and PW3-Pradeepa had witnessed the incident. PW1-Lakshmamma. PW11-Kunte Borayya and PW15-Boramma were immediate post-occurrence witnesses.

PW13-Dr.Dinakar has given evidence regarding postmortem examination, which has not been contradicted by the defence.

PW23-B. Jagannatha Rai, the Investigating Officer has given evidence relating to registration of first information, arrest of accused and recovery of bloodstained clothes and a chopper or the information volunteered by accused.

During trial, PW3-Pradeep, the youngest son of accused and deceased was not examined as a witness as he was not capable of understanding questions and giving rational answers.

PW2-Jayanna @ Mruthyunjaya, who is stated to have witnessed the incident, has not supported the case of prosecution. PW2 was declared as a hostile witness. PW2 has denied the whole incident, except homicidal death of deceased.

PW1-Lakshmamma is the elder sister of deceased. PW1 lodged first information on learning about the incident from PW2. PW1 has deposed that PW2 came and informed that his fattier (accused) was assaulting his mother with a chopper.-PW1 came to place of incident and found that her sister had suffered cut injuries on her neck and she has succumbed to injuries. PW1 informed the matter to her parents and lodged first information at 2 a.m., on, 19.01.2005. In view of hostility shown by PW2, evidence of PW1 that PW2 had informed her that his father (accused) had killed his mother cannot be treated as incriminating evidence against accused, even otherwise evidence of PW1 is hearsay in nature.

PW9-Thippamma is the mother of deceased. PW9 has given evidence about ill-treatment meted out to her daughter by accused. PW9 has deposed; on the date of incident, she learnt about the incident and came to the place of incident and found dead body of her daughter with multiple injuries.

PW10-Sannappaiah is the father of deceased. PW10 has not witnessed the incident PW10 had learnt about the incident and visited the place of incident. PW10 has deposed; after reaching the place of incident, he learnt that deceased had suffered injuries and succumbed to injuries.

PW11-Kunta Boraiah is the husband of PW15. PW11 is the junior uncle of accused. PW11 has deposed; on the date of incident at about 5.15 p.m., he came across accused; within few minutes, he heard PW16 (father of accused) crying that "accused has ruined his house"; then PW11 turned round and saw accused running from place of incident with a chopper; accused threw chopper near a jelly'' tree and left that place. PW11 came back and found that deceased had suffered cut injuries on her neck and there was bleeding. PW11 and Ors. brought a tractor to shift the deceased to hospital, however she died before she was shifted to the tractor.

The learned HCGP would submit that PW11 had seen the accused running away from place of incident holding a chopper. Therefore, this is a grave incriminating evidence against accused.

The learned Counsel for accused would submit that during cross-examination of PW23, evidence of PW11 that he had seen the accused running away from place of incident holding a chopper has been brought on record as omission.

The learned Counsel for accused would submit that presence of PW11 near place of incident has been contradicted as per Ex.D.1, which was brought on record from cross-examination of PW11 & PW23. The learned Counsel for accused would further submit that evidence of PW11 that accused threw a chopper near a jelly'' tree is contrary to the evidence of Investigating Officer that bloodstained chopper was recovered near Chowlakere Mustalagummi tank.

On careful consideration, we find evidence or PW11 that he had seen accused running away from the place of incident by holding a chopper and accused threw chopper near Chowlakere Mustalagummi tank are brought on record as omissions, amounting to material contradictions. The evidence of PW11 that accused threw chopper near a jelly'' tree had destroyed evidence given by the Investigating Officer relating to recovery of chopper near Chowlakere Mustalagummi tank on the information given by accused.

The evidence of PW13-Dr. Dinakar relates to postmortem examination of deceased. PW13 on examination of deceased found following injuries:

I. A deep cut lacerated injury behind neck, measuring 8 cms, x 2 cms x 2 cMs.

II. A deep cut lacerated injury below 2 cms of cut lacerated injury mentioned at injury No. 1.

III. A cut lacerated wound on right shoulder, measuring 8 cms x 4 cms x 2 cMs.

IV. A cut lacerated wound infront of sound box. measuring 2 cms x 2 cms x 2 cMs.

V. A cut lacerated injury on left side of sound boy measuring 4 cms x 2 cms x 1 cm.

VI. A deep cut lacerated injury on left side of neck, measuring 8 cms x 4 cms x 4 cMs.

VII. A cut injury on right shoulder, measuring 2 cms x 2 cms x 2 cMs.

VIII. A cut injury on right knee measuring 2 cms x 2 cMs.

PW13 has opined that death of deceased was due to shock and haemorrhage and death was instantaneous. PW13 has stated that injuries could be caused due to assault by chopper. The accused has not controverted nature of injuries, or cause of death.

The learned HCGP referring to evidence of PW15 would submit that she had gone to place of incident soon after hearing hue and cry of children of deceased and learnt that accused had cut the deceased. PW15 has deposed that accused was running towards village and he was carrying a chopper.

During cross-examination, PW15 has admitted that when she heard hue and cry, she was grinding chilli paste to prepare sambar. PW15 has admitted that her house and house of accused are separated by a land and a well. After hearing hue and cry, PW15 washed her hand and reached the place of incident.

From the evidence of PW15, it is clear that she had taken some time to reach the place of incident as she was in the kitchen of her house. Therefore, her evidence that she had seen the accused running away from the place of incident and the accuse J was holding a chopper cannot be accepted:

PW23-B. Jagannatha Rai, Investigating Officer has given evidence relating to arrest of accused and recovery of bloodstained clothes and a chopper on the information volunteered by accused. The incident took place at 5.30 p.m., on 18.01.2005. As per the evidence of PW23, accused was arrested from Kondlahalli bus stand at 8.30 a.m. on 21.01.2005. Even at the time of arrest, accused was found wearing white banian and a lungi stained with blood. It looks improbable that the accused, was standing in a bus stand wearing blood stained white banian and lungi. As already stated, there is No. consistent evidence regarding recovery of weapon of assault. As per evidence of PW11. accused had thrown chopper near a ''jali'' tree. As per evidence of PW23-Investigating Officer, be had recovered chopper near Chowlakere Mustalagummi tank on the information volunteered by accused. Therefore, much importance cannot be attached to evidence regarding recovery of chopper.

The learned HCGP drawing our attention to FSL report would submit that clothes of accused and chopper were stained with ''O'' group blood. Therefore, report of FSL would establish that accused had cut deceased with a chopper (M.O.1). This circumstance is enough to bring home guilt of accused.

As already stated, there is No. satisfactory evidence regarding seizure of bloodstained clothes from possession of accused, so also seizure of chopper (M.O.1) on the information volunteered by the accused.

PW13-Dr.Dinakar has deposed at the time of post-mortem examination, as instructed by the Investigating Officer, he had collected blood in a bottle; on 24.01.2005, PW13 sent blood collected by him to the Investigating Officer.

From the contents of FSL report, we find that blood sent to FSL laboratory was in a decomposed state and it could not be subjected to any test. The Investigating Officer (PW23) has not stated the purpose for which he had instructed PW13 to collect blood of deceased. In the circumstances, much importance cannot be attached to FSL report.

We also see from the examination of accused u/s 313 Code of Criminal Procedure, the report of Serologist and its contents were not put to accused as incriminating evidence. Therefore, the same cannot be used against accused.

On careful analysis of evidence, we find that the prosecution was seriously handicapped due to hostility shown by the eye-witnesses. In the circumstances, the learned trial Judge was justified in acquitting the accused. On reappreciation of evidence, we do not find any reasons to interfere with the impugned judgment.

Accordingly, we pass the following:

ORDER

The appeal is dismissed.