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A.L. Ravi vs State Of Karanataka on 31 August, 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 31ST DAY OF AUGUST, 2018

PRESENT

THE HON’BLE MR. JUSTICE BUDIHAL R.B.

AND

THE HON’BLE MR.JUSTICE B.A. PATIL

CRIMINAL APPEAL NO.808/2014
C/W
CRIMINAL APPEAL NO.802/2014
CRIMINAL APPEAL NO.810/2014
CRIMINAL APPEAL NO.938/2014
CRIMINAL APPEAL NO.94/2015

IN CRIMINAL APPEAL NO.808/2014:

BETWEEN:

A.L. Ravi
S/o Lakke Gowda
Aged about 35 years
Lecturer, Govt. P U College
Alur Hassan District.
And R/o Ammagondamahally
Shantigrama Hobli
Hassan District.
… Appellant
(By Sri C.H. Hanumantharaya, Advocate)

AND:

State of Karnataka
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by Mudigere Police Station
Chikamagalur District
by SPP High Court Buildings
Bangalore-560 001.
… Respondent
(By Sri Vijayakumar Majage, Addl. SPP)

This Criminal Appeal is filed under Section 374(2)
of the Cr.P.C praying to set aside the order dated
4/5.8.2014 passed by the II Addl. Sessions Judge,
Chikmagalur in S.C.No.139/2008 convict the
appellant/accused for the offences punishable under
Sections 449, 302 and 307 r/w Section 34 of Indian
Penal Code.

IN CRIMINAL APPEAL NO.802/2014:

BETWEEN:

Smt. Lakshmamma
Aged about 66 years
W/o Krishnegowda
R/at No.1102/A,
Near St. Mary School
T. Dasarahalli
Bangalore-560 057.
… Appellant
(By Sri Ashok Naik Sri Ganapathi, Advocates)

AND:

1. Sri Lakkegowda @ Rajanna
S/o Thimme Gowda
Aged about 70 years
Working as Agriculturist
R/at Ammagondanahalli Village
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Shanthigrama Hobli
Hassan District-573 220.

2. Smt. Susheela
W/o late H.K. Basavaraju
Aged about 31 years
Working as Advisor
Reliance Life Insurance Corporation Ltd.,
Jayanagar 3rd Block, and
Customer Supporter in Emphasis Bagmane
Tech Park, C.V. Raman Nagar
Permanent Resident of
House No.304, 4th Cross
Devasandra, K.R. Puram
Bangalore.

3. State by Mudigere Police
Mudigere-577 326
By State Public Prosecutor
High Court of Karnataka
Bangalore-560 001.
… Respondents
(By Sri Vijayakumar Majage, Addl. SPP)

This Criminal Appeal is filed under Section 372 of
the Cr.P.C praying to set aside the judgment and the
order of acquittal dated 4.8.2014 in so far as the
respondent Nos.1 and 2/accused No.2 and 3, passed by
the II Addl. Sessions Judge, Chikmagalur in
S.C.No.139/2008 by allowing this appeal. Convict and
sentence the respondent No.1 and 2 for the offences
punishable under Sections 120B, 449, 302 and 307 r/w
Section 34 of Indian Penal Code. Which they have been
charged in accordance with law.
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IN CRIMINAL APPEAL NO.810/2014:

BETWEEN:

Sri Mohan Kumar
S/o Subramanya
Aged about 30 years
Gandhi Nagar, Channapatna
Holenarasipura Road
Hassan District-573 201.
… Appellant
(By Sri B.V. Pinto, Advocate for
Smt. S. Dhanalakshmi, Advocate)

AND:

State by Mudigere Police
at Chikmagalur
Represented by S.P.P. High Court
Bangalore-560 001.
… Respondent
(By Sri Vijayakumar Majage, Addl. SPP)

This Criminal Appeal is filed under Section 374(2)
of the Cr.P.C praying to set aside the order dated
4.8.2014 passed by the II Addl. Sessions Judge,
Chikmagalur in S.C.No.139/2008 convicting the
appellant/accused for the offences punishable under
Sections 449, 302 and 307 r/w Section 34 of Indian
Penal Code.

IN CRIMINAL APPEAL NO.938/2014:

BETWEEN:

Girish, S/o Sannaiah
Aged about 27 years
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Car Driver, House No.713,
Devegowda Nagara, Arakalagud Road
Hassan District-570 012.
… Appellant
(By Sri M. Sharass Chandra, Advocate)

AND:

State of Karnataka
by Mudiger P.S.
Represented by
Public Prosecutor.
… Respondent
(By Sri Vijayakumar Majage, Addl. SPP)

This Criminal Appeal is filed under Section 374(2)
of the Cr.P.C praying to set aside the order dated
4/5.8.2014 passed by the II Addl. Sessions Judge,
Chikmagalur in S.C.No.139/2008 convicting the
appellant/accused for the offences punishable under
Sections 449, 302 and 307 r/w Section 34 of Indian
Penal Code.

IN CRIMINAL APPEAL NO.94/2015:

BETWEEN:

State by Mudigere Police
Mudigere,
Chikkamgaluru District-577 132
… Appellant
(By Sri Vijayakumar Majage, Addl. SPP)

AND:

1. Sri Lakkegowda @ Rajanna
S/o Thimmegowda
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Aged about 77 years
R/o Ammagodanahalli Village
Shantigrama Hobli
Hassan District-573 201.

2. Smt. Susheela
W/o late H.K. Basavaraj
Adviser, Reliance Life Insurance Co.,
Jayangar 3rd Block Customer Supporter
in Emphasis Bagmane Tech Park,
C.V. Raman Nagar,
Bengaluru.
Native of H.No.304, 4th Cross
Devasandra,
K.R. Puram,
Bengaluru-560 016.
… Respondents
(By Sri C.H. Hanumantharaya, Advocate for
R1 R2)

******

This Criminal Appeal is filed under Section 378(1)
and (3) of the Cr.P.C praying to grant leave to appeal
against the judgment and order of acquittal (only in so
far as accused Nos.2 and 3 are concerned) who are
respondents Nos.1 and 2 herein dated 4.8.2014 passed
by the II Addl. Sessions Judge, Chikmagalur in
S.C.No.139/2008 acquitting the respondent/accused
for the offences punishable under Sections 120B, 449,
307 and 302 r/w Section 34 of Indian Penal Code.

These Criminal Appeals having been heard and
reserved on 18.07.2018 coming on for pronouncement
of judgment this day Budihal R.B., J., delivered the
following:-
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JUDGMENT

Since all these appeals are arising out of the

common judgment and order passed by the II Additional

Sessions Judge, Chikmagalur, in SC.No.139/2008,

dated 4/5.8.2014 and since common question of facts

and law are involved in the appeals, they were taken up

together to dispose of them by this common judgment.

2. By the impugned judgment and order, accused

Nos.1, 4, and 5 have been convicted for the offences

punishable under Sections 449, 302 307 r/w. Section

34 of IPC and accused Nos.2 and 3 are acquitted of the

offences punishable under Sections 120B, 449, 307,

302 r/w. Section 34 of IPC. As against the conviction

and sentence, accused Nos.1, 4 and 5 have preferred

Criminal Appeal Nos.808/2014, 810/2014 and

938/2014 respectively, whereas the victim-complainant

and the State being aggrieved by the order of acquittal

passed in respect of accused Nos.2 and 3 have preferred
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Criminal Appeal Nos.802/2014 and 94/2015

respectively.

3. The genesis of the case as per complaint at

Ex.P1 filed by the complainant Lakshmamma W/o.late

Krishnegowda is that she is residing in Mudigere Hand

Post, RRS Guest House along with his son

H.K.Basavaraju, who was working as an Officer in

Agricultural University, Mudigere Hand Post. Her native

place is Heggatta Village, Gandasi Hobli, Arasikere

Taluk. She is having two male and two female children.

About five years’ back her son H.K.Basavaraju got

married with Susheela D/o.Lakkegowda of

Hammagondanahalli and after the marriage, about 8 to

9 months the couple led happy marital life. As there was

difference of opinions between them, the said Susheela

left her husband and staying in her parental house.

There used to be galata between the family of

Basavaraju and his wife Susheela often and in that
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regard, a case was also pending in Tiptur Court. It is

further stated in the complaint that when the

complainant’s son Basavaraju was working at

Madhugiri, Susheela has taken his belongings with her

and in that light a case is also pending in Arasikere

Court. On 16.4.2008 at about 6.30 a.m., when herself

and her son Basavaraju were sitting, they heard

knocking sound of the door and immediately when

Basavaraju went and opened the door, he saw one Ravi,

brother of Susheela and other unknown persons

standing and all the three were holding knife. Accused

No.1-Ravi started abusing Basavaraju in filthy language

by stating as he has spoiled the life of his sister

Susheela, he will not leave him. By saying so, accused

No.1 assaulted with knife on the back of Basavaraju

and among other two persons who were with Ravi, one

person assaulted Basavaraju with knife on his head and

another person assaulted on his stomach and as a

result of the same, Basavaraju fell down. When the

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complainant went for his rescue, accused No.1-Ravi by

saying that he will also not leave her, assaulted with

knife on her left arm and the other two persons also

assaulted on left portion of under arm and another

person assaulted with knife on her head and caused the

injuries. After hearing hue and cry of the complainant,

the neighbours Srinivasmurthy, Revanna and others

came there. By seeing them, accused No.1-Ravi and

others ran away by holding the knife. Thereafter, the

said neighbours shifted and got admitted the

complainant and her son Basavaraju to Mudigere

Government Hospital for treatment, where the

complainant’s son Basavaraju succumbed to the

injuries. Therefore, the complainant requested to take

legal action against Ravi and other persons who have

killed the deceased Basavaraju and also tried to kill her.

On the basis of the said complaint, a case was

registered in Crime No.50/2008 by Mudigere police as

against accused Nos.1 to 5 for the offences punishable

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under Sections 302, 307 r/w. Section 34 of IPC. After

completion of investigation, charge sheet was filed

under Sections 449, 302, 307, 120B r/w. Section 34 of

IPC. Thereafter, the committal Court committed the

case to the Sessions Court after complying the

mandatory provisions. The Sessions Court took

cognizance and secured the presence of the accused.

After hearing the learned Public Prosecutor and the

learned counsel for the accused, prepared the charge for

the offences punishable under Sections 120B, 449, 302

307 r/w. Section 34 of IPC, which was read over and

explained to the accused. They pleaded not guilty and

intended to face the trial and as such the trial was fixed.

4. In order to prove its case, the prosecution in all

has examined 33 witnesses and got marked 56 Exhibits

and 14 Material Objects. Thereafter the statement of

the accused came to be recorded under Section 313 of

Cr.P.C. by preparing the questionnaire. The accused

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denied the questions and incriminating material put

against them. They have not lead any evidence, but

during the course of cross-examination, they got

marked Ex.D1 to D12. After hearing the learned

counsel on both sides, the impugned judgment and

order came to be passed by the trial Court. Assailing

the same, these appeals are preferred before this Court,

by accused Nos.1, 4 5 and the complainant as well as

by the State.

5. We have heard Sri C.H.Hanumantharaya,

learned counsel appearing for accused No.1-appellant in

Criminal Appeal No.808/2014; Sri B.V.Pinto, learned

counsel appearing for accused No.4-appellant in

Criminal Appeal No.810/2014; Sri M. Sharass Chandra,

learned counsel for accused No.5-appellant in Criminal

Appeal No.938/2015; Sri Ashok Naik, learned counsel

appearing on behalf of the complainant, as well as Sri

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Vijayakumar Majage, learned Additional SPP for the

State.

6. Learned counsel for accused No.1 submitted

that though PWs.1 and 3 are the eye witnesses to the

alleged incident, actually they are not the eye witnesses

and this fact has not been properly appreciated by the

trial Court. He further submitted that the evidence of

PW.1 who is considered to be a star witness and also

the complainant contradicts with the evidence of the

doctor who treated the injured first and also the

evidence of PW.2. PW.1 has sustained two injuries.

There is no match to assaulted injuries and her say, but

actually there were 22 injuries found over the body of

the deceased. He further submitted that PW.1 knows

use of the weapons and type of the weapons and types

of injuries which would be caused by such weapons.

Only with an intention to falsely implicate accused No.1

PW.1 has falsely deposed before the Court. He further

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submitted that there is no corroboration with the

injuries and the weapons used for commission of

offence. He further submitted that the evidence of

PWs.14 and 15 clearly goes to show that accused No.1

was in the evaluation centre at Bengaluru and even the

co-evaluators have deposed that at about 11.00 a.m.

accused No.1 was evaluating the papers. He further

submitted that the evidence of PWs.14 and 15 clearly

established the fact that accused No.1 was not present

at the place of incident and it is highly impossible to

cover the distance of 300 kms. from the place of

incident to the centre where the evaluations were going

on. He further submitted that the alleged incident has

taken place at about 6.30 a.m. and the brother-in-law of

accused No.1 has dropped accused No.1 to the

evaluation centre at about 9.00 or 9.20 a.m. which itself

clearly goes to show that accused No.1 was not present

at the place of the alleged incident. He further

submitted that accused No.1 has not specifically and

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definitely taken the plea of alibi and as such there is no

burden on him to prove the same, but the evidence

which has been produced by the prosecution has

established the fact that accused No.1 was not present

at the place of the alleged incident and as such no

incriminating questions have been prepared on the

basis of evidence of PWs.14 and 15. In that light, it is

contended by him that when no incriminating material

has been raised by the Court, which itself indicates that

the contention taken up by accused No.1 has been

proved. This aspect has not been properly and legally

evaluated and decided by the trial Court and it has

erroneously come to the conclusion and convicted

accused Nos.1, 4 and 5. He further submitted that it is

clear from the evidence of PWs.29 and 30, they came to

know that accused No.1 was in the evaluation centre

and there were records to show that he worked in the

evaluation centre. Though during the course of

investigation, PWs.29 and 30 have collected the

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Registers and after seeing the same, the said Registers

have been not made as part and parcel of charge sheet

and even the said Registers including, the Attendance

Register has been misplaced only with an intention to

see that accused No.1 is convicted for the alleged

offence. He further submitted that at the earliest point

of time, when accused No.1 applied for bail, in the bail

application also, he has taken the contention that he

was working in the evaluation centre at the time of the

alleged incident. The stand taken in the bail application

ought to be considered at the time of deciding the main

case. In order to substantiate the said contention, he

relied upon a decision of the Hon’ble Apex Court in the

case of Jayantibhai Bhenkarbhai Vs. State of

Gujarat, reported in (2002)8 SCC 165.

7. It is his further submission that the records are

the best evidence, but the Investigating Agency has

failed in their duty and have not produced any evidence

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and as such when once the impossibility has been

proved, then the Court can presume and probablize that

the said person was not there at the place of the alleged

incident. In order to substantiate the said contention,

he relied upon a decision in the case of Jumni and

others Vs. State of Haryana, reported in (2014)11

SCC 355.

8. He further submitted that the accused can

prove his defence not only by leading his evidence

separately, even on the basis of the evidence produced

by the prosecution, he can prove his case. In order to

substantiate the said contention, he relied upon a

decision in the case of Piara Singh Kewal Singh

Resham Singh Vs. State, reported in LAWS(DLH)

2007 3 60.

9. He further submitted that the conduct of the

accused ought to have been considered and appreciated

by the trial Court. As could be seen from the records,

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immediately after the evaluation, accused No.1 has also

collected the cheque from the evaluation centre and

thereafter he called his wife over phone and informed

that he was coming to her. Even PW.18, the Principal of

the college where accused No.1 was working, has issued

the information letter at Ex.P27 to the effect that on the

date of the incident, accused No.1 did not come to the

college. If really accused No.1 was involved in the

alleged incident, definitely he could have absconded,

but non-abscondence of accused No.1 itself clearly goes

to show that accused No.1 was not involved in the

alleged incident. He further submitted that some of the

witnesses have been examined by the Investigating

Officer belatedly only to circumvent the case of the

prosecution. He further submitted that though the

alleged incident took place at about 6.30 a.m.

immediately highly qualified professors and other

persons in the premises have gathered and by securing

the vehicle, they took the injured to the hospital and

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information was also given. But the FIR has been

received by the jurisdictional Court at about 1.45 p.m.

though the case is registered at 8.00 a.m. which itself

clearly goes to show that only with an intention to

concoct and create the story and to implicate accused

No.1, the said delay has been caused. Even the

evidence of the Police Constable who carried the FIR to

the Court is not worth believable. No Magistrate tells

that the FIR should be given during lunch hours. This

aspect has not been considered and appreciated by the

trial Court.

10. It is his further submission that in the first

instance, when the injured were taken to the hospital,

the deceased Basavaraju was conscious and was able to

speak. Even the complainant-PW.1 was also conscious

and was able to talk, but the complaint which has been

registered is that unknown persons have assaulted

them. If really they have seen accused No.1 along with

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two more persons, definitely in the first instance when

they met the Head of the Department and the doctor,

they should have disclosed the name of accused No.1.

The records clearly go to show that only after the

advocate coming to the place of incident from Hassan,

as a brain child of the said advocate, concoction and

creation were made and thereafter the names of accused

No.1 and other accused persons have been

incorporated. This aspect has not been properly and

legally considered and appreciated by the trial Court. He

further submitted that there were amendments and

deletions in the FIR and there is a delay in sending the

FIR. All these things clearly go to show that in the first

complaint which is said to have been filed immediately

after the incident there was a suppression and

subsequently a concocted complaint has been filed in

collusion with PW.1 and also PWs.29 and 30.

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11. He further submitted that there is no motive

for the alleged incident. As could be seen from the

evidence of PW.6, it clearly goes to show that including

PW.1 they used to meet in the village and it should have

been within his knowledge about the settlement arrived

at between the deceased and accused No.3-Susheela.

Though there is no motive for the alleged incident,

accused No.1 has been falsely implicated in the crime.

He further submitted that no witnesses have stated that

the deceased got married Manjula and as the deceased

did not turn up for settlement with the said Manjula, it

is the group belonging to Manjula who was grinding an

axe against the deceased, might have eliminated him.

This aspect has not been properly investigated by the

Investigating Agency. He further submitted that as per

the case of the prosecution that the neighbours, namely

Vijayalakshmi, Vasanthi, Shruthi, Dhanalakshmi, were

already there and were making the deceased to drink

water, but the prosecution has not examined the

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material and important witnesses. When their evidence

is suppressed before whom immediately after the

incident, the deceased has expressed his view, non-

examination of such witnesses is fatal to the

prosecution case. He further submitted that PW.5-

Dr.Srinivasamurthy, was having coffee in the house of

Revanna-PW.19 and at that time, he heard screaming

the voice and he peeped through window. Thereafter he

rushed to the place and at that time, he saw three

persons running away from the place by holding the

weapons. But PW.19-Revanna in whose house PW.5

was having coffee, has not whispered the said aspect in

his evidence. Under such circumstances, the presence

of PW.5 in the house of PW.19 and he seeing the

accused persons running away from the place and he

identifying them is also not probable and reasonable.

He further submitted that as per the evidence of PW.3,

lights were not on and as she using the spectacles and

was unable to see, then under such circumstances, her

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evidence to the effect that she has also seen the accused

persons running away from that particular place is not

reliable and acceptable. He further submitted that

police records since from the beginning show the

manipulation. The trial Court without considering the

said aspect, has wrongly convicted the accused. It is

also his submission that the case of the prosecution is

that the accused persons conspired among themselves

to eliminate the deceased, but in order to substantiate

the said fact, the call details have not been produced.

Even what efforts have been made to ascertain the said

fact has also not been proved and produced either by

the Investigating Agency or by the prosecution. He

further submitted that the cheques which have been

taken for the purpose of supari are also concocted and

created. The said cheques have been given at the time

of settlement entered into between the deceased and

accused No.3 and they have been collected from the

house after apprehension of the accused. This fact has

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also not been proved by the prosecution beyond all

reasonable doubt. He further submitted that Test

Identification parade was also not held when PW.5 has

specifically stated that he has not seen the face and he

has only given the description of the accused persons

who were running, which itself will go to the root of the

case and the accused are to be entitled for acquittal in

this behalf. He further submitted that even the recovery

of the knife and other incriminating materials has also

not been proved and even the knife which was recovered

has not been sent to FSL and no serology report was

obtained, which clearly goes to show that the said

weapons have not used for commission of offence. On

these grounds, he prayed to allow the appeal filed by

accused Nos.1, 4 and 5 and to set aside the judgment

and order passed by the trial Court and to acquit the

said accused persons.

12. It is his further submission that the appeal

preferred by the State as well as the complainant cannot

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be entertained by this Court and even the trial Court

after considering the material which has not been

placed by the prosecution has rightly given the benefit

of doubt to accused Nos.2 and 3, the appeals filed by

the State and the complainant are liable to be

dismissed. In order to substantiate the aforesaid

contentions, the learned counsel for accused No.1 has

also relied upon the following decisions:-

1. AIR 2003 SC 507 – Joseph Vs. State of Kerala

2. AIR 1979 SC 697 – Panda Nana Kare Vs. State of
Maharashtra

3. AIR 2011 SC 349 – Subhash Vs. State of Haryana

4. Air 2008 SC 533 – Kapildeo Mandal Others Vs.
State of Bihar

5. 2004 Cri.L.J 2001 – Gabbu B. Lodhi and others Vs.
State of M.P.

6. 2000 Cri.L.J 1566 – Tulshiram Bhanudas Kamble
and others Vs. State of
Maharashtra

7. AIR 1997 SC 1526 – Rehmat Vs. state of Haryana

8. AIR 1997 SC 454 – Devinder Vs. State of Haryana

– 26 –

9. AIR 2003 SC 1813 – Rajeevan Another Vs. State
of Kerala

10. AIR 1982 SC 839 – Mohanlal Gangaram Gehani
Vs. State of Maharashtra

11. 1997 Cri.L.J. 1788 – Narayan Kanu Datavale
others vs. State of Maharashtra.

13. Learned counsel appearing for accused Nos.4

and 5 by supporting the arguments of Sri C.H.

Hanumantharaya also pray for acquittal of accused

Nos.4 and 5 and to dismiss the appeals filed by the

complainant and the State.

14. Per contra, the learned Additional SPP

appearing for the State submitted that though there is

no direct evidence about conspiracy, the conduct of

accused Nos.2, 3 and 5 clearly goes to show that there

was a conspiracy between the accused persons. Even

MC.No.67/2008 has been registered and PW.32

summoned accused No.2 and the family members

– 27 –

before the Court, which itself clearly goes to show that

there was a dispute between the deceased and accused.

He also submitted that the complainant-PW.1 has

deposed specific overt acts of accused Nos.1, 4 and 5.

When she is an eye witness to the alleged incident and if

her evidence is cogent and worth believable, then under

such circumstances, the same is liable to be accepted

and the trial Court by accepting the same, has rightly

convicted accused Nos.1, 4 and 5. He further submitted

that when accused No.1 has taken the plea of alibi that

he was there in the evaluation centre, heavy burden lies

upon him to establish the same and if he fails to prove

the same, it will be one of the adverse circumstances

against him to prove his guilt. He further submitted

that the alleged incident has taken place in between

6.15 a.m. and 6.30 a.m. and the evidence produced in

this behalf by the prosecution clearly goes to show that

accused No.1 was not seen in the evaluation centre

prior to 11.00 a.m. He further submitted that nowhere

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in the cross-examination of PWs.14 and 15 it has been

elicited that prior to 11.00 a.m. accused No.1 was there

in the evaluation centre. He further submitted that

PW.1 is an eye witness who has seen the accused

persons and even she has specifically stated that prior

to the alleged incident accused No.2 came along with

accused Nos.4 and 5 to show the house of the deceased

and at that time, they have seen them moving around

the house, then under such circumstances, conducting

of Test Identification parade is not necessary. He

further submitted that the recovery of the weapon was

also made at the instance of the accused by drawing

mahazar at Exs.P7 and P8 and the weapon used is

talwar and the same has been identified by PW.1 and

even the doctor who conducted autopsy over the body of

the deceased has opined that the said weapon may

cause the injuries found over the body of the deceased.

He further submitted that the evidence of PW.1

corroborates with the evidence of the doctor and other

– 29 –

witnesses. He further submitted that the motive has

also been proved by the prosecution. He further

submitted that the FIR has been registered immediately

at 8.00 a.m. and the same was handed over to PW.28.

However, only because of the say of the Magistrate,

PW.28 went during the lunch hours and submitted the

FIR and as such there is no delay caused in sending the

FIR. He further submitted that the incident has taken

place in the early morning and accused were also

identified and within 14 hours of the incident, they have

been arrested. At the instance of accused Nos.4 and 5

in the presence of PWs.5 and 25, the weapons have

been seized. He further submitted that FSL reports at

Exs.P40 and P41 have been produced and only serology

report has not been produced, thereby it is not going to

take away the case of the prosecution, that too when the

weapon was stained with blood. The accused-

appellants have not made out any good grounds, so as

to interfere with the judgment and order passed by the

– 30 –

trial Court. He further submitted that the trial Court

has wrongly acquitted accused Nos.2 and 3 though

there is ample material to connect them to the alleged

offence and 4 and also the conspiracy. Under such

circumstances, learned SPP prays to allow the appeal

filed by the State and to convict accused Nos.2 and 3

also.

15. Sri Ashok Naik, learned counsel appearing for

the complainant-appellant in Criminal Appeal

No.802/2014 vehemently argued by submitting that the

present case is a scientist’s murder case and the trial

Court without proper appreciation of the material on

record, has wrongly acquitted accused Nos.2 and 3. He

further submitted that no false case is going to be

registered by leaving the real assailants. The records

clearly go to show that it is a preplanned murder by

conspiring together by the accused. The trial Court has

not properly looked into the evidence produced and

– 31 –

appreciated the same, while acquitting accused Nos.2

and 3. He further submitted that accused No.1 has not

made out any case where exactly he was there at 6.30

a.m. when the alleged incident took place. In the

evidence produced, accused No.1 has stated that his

brother-in-law left him about 9.20 a.m. to the

evaluation centre, which itself clearly goes to show that

he was involved in the alleged offence. He further

submitted that when the plea of alibi has been taken by

the accused, then the burden shifts upon him to prove

the same. Even the statement recorded under Section

313 of Cr.P.C. cannot be treated as an evidence. The

accused must produce cogent and acceptable evidence

in order to accept the said plea. He further submitted

that the motive which was there earlier between the

deceased and accused No.3-Susheela was aggravated.

This fact has been substantiated by MC.No.67/2008

and in order to prove the same, Ex.P45 has been

produced. Even there was no relationship whatsoever

– 32 –

between Manjula and deceased and he has not

promised her to marry. Therefore, a false contention

has been taken up by the accused. He further

submitted that the matter was compromised and the

divorce petition was prepared as per Ex.P32. All these

things clearly go to show about the intention of accused

No.3 and the other accused. Keeping in view the said

material, accused Nos.1, 4 and 5 have been rightly

convicted by the trial Court. But without proper

appreciation of the evidence, accused Nos.2 and 3 have

been acquitted though there is ample material to

connect them to the alleged crime. On these grounds,

he prayed to allow the appeal filed by the complainant

and convict accused Nos.2 and 3 and to dismiss the

appeals filed by accused Nos.1, 4 and 5 by confirming

the judgment and order passed by the trial Court. In

order to substantiate his contention he has relied upon

the decisions in State of M.P. Vs. Ramesh and another,

reported in (2011) 5 SCR 1; Viijay Shankar Sinde Vs.

– 33 –

State of Maharashtra reported in (2008) 2 SCC 670;

K.M.Muniswamy Reddy Vs. State of Karnataka reported

in ILR 1992 Kar 2543; K.R.Purushothaman Vs. State of

Kerala, reported in (2005) 12 SCC 631.

16. We have perused the grounds urged in the

appeal memorandum of all the appeals, judgment and

order passed by the Court below convicting appellants-

accused Nos.1, 4 and 5 and acquitting appellants-

accused Nos.2 and 3, perused the oral and

documentary evidence produced by the prosecution

before the trial Court, the decisions relied upon by the

learned counsel for the appellant-accused No.1 and also

considered the oral submissions made by learned

counsel for the accused and also the learned Additional

State Public Prosecutor for the State in respect of all the

five appeals.

17. As we have already narrated above, as per the

contents of complaint Ex.P1, P.W.1 Laxmamma is the

– 34 –

complainant and she claims that she is the eyewitness

to the alleged incident. It is also the prosecution case

that she is injured eyewitness. So far as the injuries are

concerned, we have perused the materials on the side of

the prosecution. The injury certificate of P.W.1-

complainant is produced under Ex.P14, which shows

that she has sustained three injuries viz., (i) Cut wound

left axilla 8x2x2 cms. (ii) Cut wound over left arm

10x3x3 cms. (iii) Swelling over scalp right side. Doctor

has opined that injury nos.1 and 2 are grievous in

nature and injury No.3 is simple in nature. The doctor

who treated P.W.1-complainant is also examined as

P.W.11.

18. P.W.11-Dr.Farooq Junaida deposed in his

evidence that from 2006 to 2009 he worked as Medical

Officer in MGM hospital, Mudigere and weekly once he

used to work in the said hospital. On 16.4.2008 at 7.15

a.m. when he was on duty in the said hospital one

– 35 –

H.K.Basavaraja (deceased) and Laxmamma were

brought to the hospital. Basavaraja had sustained

severe injuries and his condition was serious. When he

examined Basavaraja he could not get the pulse rate

and was not able to record blood pressure. Then he was

given emergency treatment. Even then the condition of

Basavaraja did not improve and he expired. In that

connection, P.W.11 sent intimation to the police.

Thereafter, he examined Laxmamma, aged 63 years and

noticed the above referred three injuries and issued

injury certificate as per Ex.P14 on the basis of the entry

made in the MLC register. The attested xerox copy of

the original MLC register at page No.421 has been

produced under Ex.P15. The intimation sent to the

police is produced as per Ex.P16 and his signature is

marked as per Ex.P16(a). On seeing M.O.1 to 3 before

the Court, the doctor has opined that if Basavaraja and

Laxmamma are assaulted with M.Os.1 to 3, the injuries

– 36 –

which he has mentioned to both Basavaraja and

Laxmamma could be caused.

19. In the accident register Ex.P15 it is mentioned

that on that day at 6.30 a.m. three unknown persons

assaulted Basavaraja in his house. When the same was

suggested to P.W.11, he admitted the said suggestion as

true. On mentioning the history of incident and on

examining the body condition of Basavaraja, he has

mentioned about the medical treatment. Thereafter, he

examined Laxmamma at 7.30 a.m. He admitted the

suggestion as true that whenever medico legal cases

were brought, normally they will enquire the injured as

to how they sustained the injuries and under what

circumstances. He also admitted that in the accident

register it is mentioned that at 6.30 a.m. in the house of

Laxmamma at ZARS campus three unknown persons

have caused injuries and as informed to him by

Laxmamma, he has mentioned the same and at that

– 37 –

time Laxmamma was stable and conscious. Thereafter,

he saw the injuries on her body. He has deposed that

injury Nos.1 and 2 are not on the vital organ, but

denied the suggestion that injury No.3 is a trivial

wound. At the time of issuing Ex.P14, he was not

having the documents of Lakshmamma admitting to

their hospital and getting the treatment. He denied the

suggestion that he has falsely mentioned injury Nos.1

and 2 as grievous injuries. He admitted the suggestion

as true that the investigation officer has not shown

M.Os.1 to 3 earlier for getting his opinion and for the

first time he is seeing the said material objects before

the Court. He admitted that with the tip of M.Os.1 to 3

stab wounds could be caused.

20. Looking to the evidence of P.W.11 it

establishes the case of the prosecution that P.W.1-

Laxmamma has sustained three injuries.

– 38 –

21. P.W.1-Laxmamma claims that she is the

eyewitness to the incident. In the complaint she has

mentioned that on 16.4.2008 at 6.30 a.m. when herself

and her son woke up and were sitting, somebody tapped

the door of the house, immediately her son Basavaraja

went and opened the door. Then they saw Ravi, the

elder brother of Susheela and others. All the three were

holding knives in their hands and immediately after

opening the door Ravi-accused No.1 abused her son in a

filthy language as ‘Soolemagane’, he has ruined the life

of his sister and that he will not leave him. Stating so,

Ravi assaulted with the knife on Basavaraja on his back

forcefully and two other persons also assaulted

Basavaraja with knives. One assaulted on the head of

Basavaraja and another on the stomach portion. Then

Ravi fell down and when she went to rescue her son, at

that time, accused No.1 stating that he will not leave

her also, assaulted on her left arm with the knife and

two other persons along with Ravi also assaulted her

– 39 –

with knife. When she screamed loudly, the neighbours

came.

In the examination in chief she has deposed in

detail about the contents of the complaint Ex.P1 and in

the further examination she deposed that one person

staying in the said campus wrote the contents of Ex.P1.

She has seen accused Nos.4 and 5 at the time of

committing the murder and thereafter she has seen

them in the police station. She has deposed that at

Madhugiri accused No.2 and accused No.1 had brought

one Puttaraju, rowdy 2-3 times and gave ill-treatment to

her son. But the same has not been mentioned in the

complaint and in her further statement. She has also

deposed that two months prior to the incident accused

No.4 had brought son of one Boganna on the bike and

shown her house and at that time, she was in front of

her house and thereafter, both of them went on the

motorbike. She further deposed that accused No.1

assaulted her son on the back portion, accused No.4

– 40 –

assaulted on the head of her son and accused No.5

assaulted on the chest, stomach, ribs and also on the

back of her son. She also deposed that when she was

asking her son as to why he has opened the door and

went to rescue her son, accused No.1 by stating that

they will not leave her also tried to assault her on her

neck and when she turned, the blow fell on her left arm.

Accused No.4 also assaulted on her head portion and

accused No.5 assaulted with knife on the left middle

portion of the shoulder. She further deposed that

accused Nos.1, 4 and 5 dragged her son outside the

house and assaulted him. When she screamed

neighbours came and at that time all three accused

persons ran away from the said place by holding knives

in their hands.

In her detailed cross-examination she deposed

that the contents of Ex.P1 is not in her handwriting.

Witness voluntarily deposed that she narrated the

contents of Ex.P1. She deposed that she knows one

– 41 –

advocate from Hassan by name D.P.Ashok, S/o

Puttaswamygowda. But she denied the suggestion that

contents of Ex.P1 are in the handwriting of said Ashok.

She also denied the suggestion that her elder son

(P.W.6), D.P.Ashok, Advocate and others got prepared

Ex.P1 after 12 noon and obtained her signature. But,

she voluntarily deposed that she gave the complaint in

the morning itself. It was suggested to the witness in

the lengthy cross-examination that whatever she had

deposed in her examination in chief has not been stated

in her complaint and further statement.

22. We have carefully and cautiously gone through

the evidence of PW1 and submission made by the

learned Counsel for Accused No.1. It is well settled

principles of law that complaint and FIR are not

encyclopedia to include all the details about the

incident. Complaint is filed to set the criminal law into

motion. On perusal of further evidence of PW1, she

– 42 –

denied the suggestion that when her son was working at

Madhugiri one Anitha, a girl from Tumkur was

preparing food in the house of her son. She also denied

the further suggestion that when herself, her husband

her deceased son went to Arsikere police station, police

told her son to first send Anitha out of the house. She

admitted that on 24.5.2008 one Manjula, wife of

Dr.H.K.Basavaraju, Program Co-ordinator, KVK

Mudigere, S/o Srinivas, Chattanahalli village, Hassan

taluk gave application claiming that she is the wife of

her deceased son Basavaraja and that she is entitled for

all the death claims of Basavaraja. But the witness

voluntarily deposed that said Manjula is not the wife of

her son and she is not having acquaintance with her.

She denied the suggestion that on that day at 6.00 a.m.

three unknown persons holding weapons in their hands

came to her house and tapped the door of the house.

She further denied that she slept on the bed. She also

denied the suggestion that on coming to know the

– 43 –

tapping sound of the door her son opened the door and

went out. She further denied the suggestion that by the

time her son went out of the house the door was closed.

She further denied that the three unknown persons

assaulted her son and her son after getting blows

screamed and on hearing the hue and cry of her son she

woke up from the bed and opened the door and went

out and by the time she opened the door and went out,

the unknown persons also assaulted her. She denied

the suggestion that when she went inside the house to

bring water at that time her blood fell on 2-3 places

inside the house. She denied the suggestion that when

she screamed Revanna has not come to the spot. She

also denied that Revanna has not come to the hospital

along with her. She denied the suggestion that her

daughters, relatives and son in laws came at 12.00

noon and at that time Ashok, Advocate of Hassan also

came there. She denied further suggestion that by the

time her relatives came to the said place, she already

– 44 –

got prepared one complaint and it was against three

unknown persons. She denied the suggestion that on

16.4.2008, she has not at all seen accused Nos.1, 4 and

5. She also deposed that as it was not clear that

accused No.2 was showing the house of Rajashekar, she

has not told the said fact before anybody and also as

the son of Boganna showing her house to accused No.4

was also not clear, she has not stated the said fact also

before anybody. She denied the suggestion that

accused No.4 has not at all come to her house and he is

totally unconnected, as such, she has not mentioned

about the same in her complaint and further statement.

When she was asked as to why she has not mentioned

in her complaint that she can identify persons who

came to her house, she deposed that since the police

have not asked her, she has not stated the same. She

has stated that two months earlier to the incident, son

of Boganna brought accused No.4 and shown her house

and at that time, she was in front of the house.

– 45 –

Thereafter both of them went on the motorbike, but she

has not mentioned about the same in her complaint and

further statement. She has not observed the colour and

registration number of the said vehicle and she was at

some distance and was using spectacles as she was

having short sight and headache. She denied the

suggestion that accused No.2 along with accused No.4

has not at all come nearby the house of Rajashekar and

that accused No.4 has not come near her house along

with the house of Boganna and also denied the

suggestion that accused No.4 has not at all participated

in the alleged incident.

In the cross-examination by the advocate for

accused No.5 she denied that she is giving false

evidence as against accused Nos.4 and 5.

23. The defence of the accused is that when P.W.1

Laxmamma was taken to the hospital she gave the

history of the incident that she was assaulted by three

– 46 –

unknown persons and in that regard, it has relied upon

the evidence of P.W.11-Dr.Farooq Junaida. In the

evidence of P.W.11 he has deposed that when medico

legal cases come to the hospital they will enquire with

the injured as to how the injuries are sustained and

under what circumstances. It is no doubt true P.W.11

has deposed in his evidence that he has mentioned that

unknown persons have caused the injuries and when

saying the same Laxmamma was alert and conscious.

In this regard, we have perused the wound certificate

under Ex.P14 pertaining to Laxmamma wherein it is

stated that injuries have been caused at her residence

at 16.4.2008 at 6.30 a.m. due to assault. If really she

herself told that three unknown persons have assaulted

her, then necessarily the doctor ought to have

mentioned in Ex.P14 wound certificate that assault by

three unknown persons, which is not mentioned. Apart

from that, we have also perused the death memo issued

by P.W.11 to the police, the contents of the same states

– 47 –

that, ‘Patient by name H.K.Basavaraj, S/o

Krishnegowda, Mudigere brought with history of assault

in serious condition. Patient expired in the hospital.

Kindly do the needful’. Even in this intimation to the

police, there is no mention that in the history it is

mentioned by the persons who brought Basavaraja to

the hospital that assault by three unknown persons. It

is true in Ex.P15, extract of MLC register it is mentioned

that Laxmamma and deceased Basavaraj were brought

with the history of assault today morning at 6.30 a.m.,

at her residence ZARS campus, by three unknown

persons. In her oral evidence also P.W.1 has deposed

that she has not stated that three unknown persons

assaulted her. We carefully perused the contents of

Ex.P15, the MLC register extract wherein there is no

specific mention that P.W.1 gave the history that

assault by three unknown persons or that P.W.1 or

Basavaraja or any other person told about the history of

assault by three unknown persons. Therefore, the

– 48 –

contention of the defence that P.W.1 and deceased

Basavaraja themselves gave the history before P.W.11

that assault on them was by three unknown persons

cannot be accepted and this particular evidence will not

help the defence in any manner.

24. Apart from the above, let us examine whether

prosecution has placed materials to establish the fact

that P.W.1 Laxmamma, the injured is really the

eyewitness and that she has seen all the accused

persons assaulting her son.

P.W.1 being the injured witness, her presence at

the place of incident at 6.30 a.m. is even supported by

the documentary evidence Exs.P14 and P15. Leave

apart this, even in her evidence, she had specifically

stated before the Court the overt act of each of the

accused persons where exactly they had assaulted over

the body of the deceased Basavaraju as well as herself.

This evidence of P.W.1 regarding the location of injuries

– 49 –

on the body of the deceased is also corroborated by the

photographs at Exs.P.20 to P.26. It is not brought on

record by the defence that she has falsely implicated

accused Nos.1, 4 and 5 as assailants leaving the real

culprits and it is also not established as to what was the

reason for her to leave the real culprits and to

substitute accused Nos.1, 4 and 5 in their place. In the

cross-examination it was suggested by the defence itself

that three persons holding weapons in their hands came

to the house of P.W.1 at 6.30 a.m. on 16.4.2008 and

firstly they assaulted her son deceased Basavaraja and

when she came out of the house, they also assaulted

her and ran away from the said place and that she does

not know who are those persons. This suggestion also

establishes that fact that P.W.1 and her son Basavarja

have sustained injuries at 6.30 a.m. in her house on

that day. She was present at the place of the alleged

incident and has witnessed all the acts of the accused.

Even it is not disputed that immediately PW1 was taken

– 50 –

to hospital along with deceased Basavaraju. This aspect

is also corroborated by the evidence of PW11-the doctor

who treated her and has also produced Wound

Certificate at Ex.P.14. There is nothing to discard the

evidence of PW1.

25. Next contention of the learned Counsel for the

accused-appellant No.1 is that no test identification

parade was held to identify the accused persons. It is a

serious lacuna to the case of the prosecution. It is well

established principles of law that ordinarily

identification of an accused for the first time in Court by

the witness should not be relied upon for the purpose of

passing the order of conviction without a definite

corroboration. Identification for the first time in Court

cannot possibly be termed to be non-admissible but it is

a matter of prudence and jurisprudential requirement

that the same should be upon proper corroboration

otherwise the justice delivery system may stand

– 51 –

affected. Once the requirement of the concept of justice

i.e., acceptability and credibility of the evidence of the

witness stands completed, it would be difficult if not an

impossibility to change a conviction only on the ground

of failure to hold test identification parade. This

proposition of law has been laid by the Apex Court in

the case of Sarwan Singh -vs- State of Punjab reported

in AIR 2003 SC 3652. Keeping in view the above said

proposition of law on perusal of the evidence of PW1, it

makes it clear that the alleged incident has taken place

in broad light, she is also an injured witness that

indicates her presence at the place and there is every

chance to see the accused. Be that as it may. Even

accused No.1 is related to PW1 and earlier also she has

seen accused Nos.4 and 5 who came near, then under

such circumstances, non-holding of test identification

parade will not be fatal to the case of the prosecution.

In that light, the contention of the learned Counsel is

not acceptable. Same is rejected.

– 52 –

26. In So far as accused No.1 Ravi is concerned,

no doubt prosecution has produced the evidence of

P.Ws.14 and 15 to show that accused No.1 not present

at evaluation center. But it is the contention of the

defence that though the accused No.1 has not

specifically raised the plea of alibi but the evidence

produced establishes the fact that he was not present at

the place of incident and was present at the place of

evaluation center. However, as per the prosecution

case, accused No.1 was very much present at the scene

of occurrence. The defence by way of cross-examination

of P.Ws.14 and 15 tried to establish the fact that

accused No.1 was at Bangalore on the date of incident

and was deputed for evaluation of papers. It is the

specific defence of accused No.1 that on 16.4.2008, the

date of the incident, he was at Bangalore for evaluation

of papers and he was not present at the spot. The

distance from Mudigere to Bangalore is about 300 kms

and it is highly impossible for a person to attend the

– 53 –

evaluation work at Bangalore after committing the

alleged offence. Keeping these things in mind, let us

examine the evidence of P.Ws.14 and 15.

27. P.W.14 one Jayanna has deposed in his

examination-in-chief that he is working as Lecturer at

Government college Madhugiri from past three years.

From 5.4.2008 to 16.4.2008 he was deputed for the

work of evaluation of answer scripts of business studies

paper at Sheshadripuram College, Magadi road,

Bangalore. Along with him Kulkarni, Deputy Chief

Examiner, Patil, Lecturuer, Mangalagouri, lecturuer and

Ravi, lecturer were also present. Said ravi is accused

No.1 before the Court. Evaluation work of the papers

used to start at 9.30 a.m. everyday and close at 4.30

p.m. On 16.4.2008 at 9.30 a.m. the evaluation work

started and he went at that time. Out of above

mentioned persons, some of them came late and others

attended to duty along with him. He has not observed

– 54 –

at what time accused No.1 Ravi came to the centre for

evaluation work. As 12 answer scripts were given to

him he was conducting evaluation work which got

completed at 2.30 p.m. He has stated that Mudigere

police have not enquired with him, but he has

submitted the report. But again he deposed that police

wrote one report and read over the contents to him and

obtained his signature. At this stage, at the request of

Public Prosecutor the witness was treated as hostile and

he was cross-examined by the Public Prosecutor

wherein he admitted and deposed that he has stated

before the police that accused No.1 Ravi might have

come little late i.e., around 11.00 a.m. on that day. He

admitted the suggestion as true that while carrying out

the evaluation work, accused No.1 Ravi was sitting in

front of his seat. He further deposed that since it was

the last day of evaluation, as usual he came to the

evaluation work at 9.30 a.m. and other AE were also

– 55 –

conducting the evaluation work and that Ravi came to

evaluation work at 11.00 a.m.

In the cross-examination by the defence he has

stated that 6-7 months after the evaluation work, police

came and obtained his report and he has also put his

signature to the said report. But he deposed that the

report shown to him at that time does not bear his

signature and as such, it is not the earlier report

obtained by the police. He has stated that at 9.30 a.m.

all the evaluators would sit in their respective seats and

if there is some inconvenience of bus, some of the

lecturers would also come little late. He has also

deposed that till the evaluation of 12 papers he has not

moved from his place and was involved in the evaluation

work. He deposed that at 11.05 he went to toilet. He

admitted the suggestion as true that except going to the

toilet he has not at all left his seat and he has observed

Ravi-accused No.1 was in his seat. He also deposed

that he has not stated before the police that accused

– 56 –

No.1 Ravi came at 11.00 a.m., but he has stated that he

has seen him at 11.00 a.m. when he was returning from

the toilet.

28. P.W.15 Mangalagouri, another lecturer

deputed for evaluation work deposed in her evidence

that on 16.4.2008 she went to evaluation centre at 9.45

a.m. Accused No.1 Ravi used to sit in a seat which is 5

ft. away from her seat. She does not know at what time

Ravi came to the centre on 16.4.2008. When she went

to the said hall, said Ravi was not there and she might

have seen said Ravi in the hall at about 11.00 a.m.

Police have enquired with her and recorded her

statement. She has deposed that she has not stated

before the police at what time Ravi came to the

evaluation Centre. This witness was also treated as

hostile. When cross-examined by the Public Prosecutor

she deposed and admitted the suggestion as true that

DCE would also give the answer scripts to the

– 57 –

evaluators who come late to the centre for evaluation.

When she saw accused Ravi it was 11.00 a.m. But she

has not observed whether he was present or not earlier

to that, since she was busy in evaluating the answer

scripts. She admitted the suggestion that in her

statement before the police she has not stated that

when she went to her seat Ravi was not in his seat.

29. Looking to the evidence of these two witnesses

it clearly shows that on 16.4.2008 accused No.1 had not

at all been to the evaluation centre at the usual timings

at 9.30 a.m. and that P.W.14 has admitted that he has

submitted a report to the police signed by him wherein

he has stated that accused No.1 has not at all come to

the centre at 9.30 a.m. on that day and that he came at

11.00 a.m. The evidence of these two witnesses also

shows that no other evaluators including P.Ws.14 and

15 have seen accused No.1 Ravi earlier to 11.00 a.m.

immediately after commencement of the evaluation

– 58 –

work at 9.30 a.m. This material clearly shows the

absence of accused No.1-Ravi in attending the

evaluation work till 11.00 a.m. on 16.4.2008. Though

in the cross-examination, it was suggested to these

witnesses that the relative of accused No.1 brought him

and left at the evaluation centre at 9.20 a.m. but the

said person has not been examined before the Court to

support the said contention.

30. With regard to the distance of 300 km. from

Mudigere to Bangalroe and the contention of the

defence that it is not possible for a person to travel such

a distance within 4 ½ hours, this contention cannot be

acceptable because, it is possible for a person to travel

300 km. within 4 ½ hours by hiring a vehicle. Though it

is the argument of learned counsel for accused No.1

that accused No.1 has not taken a specific contention of

alibi and that prosecution itself has examined P.Ws.14

and 15 in this regard and that there is no burden on

– 59 –

accused No.1 to prove the plea of alibi, the same cannot

be accepted, because of the reason that ultimately, it is

the contention of the defence that on the date of

incident on 16.4.2008 accused No.1 was attending the

evaluation work at Bangalore as per the scheduled time

and he was not at the spot at the alleged date and time.

Therefore, when the cross-examination of P.Ws.14 and

15 is on the line suggesting the said witnesses that

accused No.1 was at Bangalore in the evaluation centre

and not at the spot of alleged incident, then as per

Section 103 of the Indian Evidence Act, it is for accused

No.1 to place satisfactory and worth believable material

to establish that he was not at the spot and that he was

present at the evaluation centre. In this connection,

we refer to the decision of Hon’ble Apex Court in the

case of State of Haryana Vs. Sher Singh reported in

AIR 1981 SC 1021. Since accused No.1 has not

discharged such burden, his contention cannot be

accepted.

– 60 –

31. It is also the prosecution case that accused

Nos.4 and 5 gave voluntary statements before the police

as per Exs.P46 and P47 respectively and lead the police

and panch witnesses to a place wherein from heap of

bushes took out the material objects M.Os.2 and 3. In

this connection it is relevant to refer to the evidence of

P.W.7.

32. P.W.7-Chandrashekar deposed in his evidence

that on 28.4.2008 at 5.30 p.m. after completing his

duty himself and one Subramanya were proceeding to

the house and when they were in the office gate police

jeep came there. Along with the police accused Nos.4

and 5 were also present. Police told them that

Basavaraj has been murdered and accused Nos.4 and 5

who used the knives for committing the said offence

have thrown the knives near horticulture college and

that they would conduct mahazar and asked them to

act as panch witnesses. Then himself and Subramanya

– 61 –

went with them. The police alighted accused No.4 near

the college from the jeep. Accused No.4 from the place

having the board of Mathigepura, from the heap of

bushes took out a knife and handed over to the police.

Police have noted down the same and packed and

sealed the knife in a white cloth. The witness identified

the same as M.O.2 and the mahazar as Ex.P7 and

signature as Ex.P7(a). He further deposed that police

asked accused No.4 to sit in the jeep and made accused

No.5 to alight from the jeep. Accused No.5 from a

further distance of 10-15 ft. from the place where M.O.2

knife was traced, took out a knife and produced before

the police. In their presence, police kept the same in a

white cloth and sealed it. Then police wrote the

mahazar and obtained his signature and he identified

the said knife as M.O.3 and mahazar as Ex.P8 and his

signature as Ex.P8(a).

33. In the cross examination by learned counsel

for accused No.4, P.W.7 has admitted the suggestion as

– 62 –

true that the place at which the police have seen them

is at the distance of 2½ – 3 kms. from the Mudigere

police station. P.W.7 has deposed that there may be

residential houses and shops nearby the said police

station and even there may be movement of the people.

The road nearby the police station is the crowded road.

The witness admitted the suggestion as true that to

come to the place at which the police said to have seen

them, one has to cross thousands of people. The

witness admitted the suggestion as true that the place

at which the police have seen them is at the distance of

half a furlong from handpost. They proceeded in the

police jeep to the place of the mahazar. The witness

denied the suggestion that the police were writing the

mahazar in the vehicle itself. He has not observed as to

what the police have written, from which hand accused

No.4 took out the knife so also he has not observed as

to how many police people were present at the said

place and to which police, accused No.4 gave the knife.

– 63 –

But he deposed that accused No.4 gave the knife to the

police. The witness denied the suggestion that he is

falsely deposing that accused No.4 took out the knife

from the heap of bushes and given it to the police. The

witness further denied the suggestion that for the first

time, he is seeing M.O.2 knife before the Court.

In the cross examination by learned counsel for

accused No.5, P.W.7 has deposed that he does not know

the house number of C.W.18 Subramanya. But, the

house of Subramanya is after 3-4 houses from his

house. The witness admitted the suggestion as true

that nearby the handpost, about 20-30 shops are there

and it is a thickly crowded area. When police jeep

arrived, they were having the tea and after having the

tea, they came into RSS gate, which was the only gate to

the campus. After passing into the said gate, they

proceeded four feet ahead and when they were about to

take a turn towards the house, police jeep came through

the said gate and about 3-4 persons were present in the

– 64 –

jeep. Inspector called them into the jeep. It is

mentioned in the panchanamas at Exs.P.7 and P.8 that

accused Nos.4 and 5 were brought in the police jeep. It

is also mentioned in the mahazars that accused No.4

was made to sit in the jeep and accused No.5 was made

to alight from the jeep. Accused No.5 after going about

10-15 feet away from the place where the jeep was

stopped, he brought the knife and produced before the

police. Police jeep was stationed at muthigepura board.

He has not observed any special marks on M.O.3, but

there were blood stains. He denied the suggestion that

on 29.4.2008, the police came to his office and obtained

his signature. He denied the further suggestion that he

is falsely deposing that accused No.5 was brought by

the police and he produced the knife. He denied the

further suggestion that as the deceased Basavaraj was

their friend and at the instance of the police, he is giving

false evidence.

– 65 –

34. G.Rudresh-P.W.30, who is the investigation

officer in the case, has deposed in his evidence in the

examination in chief that on 28.4.2008, PSI Santhosh

Shetty and police constables Subramanya – 566, Harish

– 576, Vasanthkumar-21 of Mudigere police station

produced accused Nos.4 and 5 before him at 9.00 a.m.

He interrogated and apprehended them. Accused No.4

gave voluntary statement before him as per Ex.P.46 and

Ex.P.46(a) is his signature and the signature of accused

No.4 is at Ex.P.46(b). Accused No.5 gave voluntary

statement before him as per Ex.P.47, Ex.P.47(a) is his

signature and the signature of accused No.5 is at

P.47(b). Accused Nos.4 and 5 as per the voluntary

statements took P.W.30 and his staff to Hassan in the

jeep. Accused No.4 phoned to N.H. Santhosh (C.W.15)

and told to give the cheques which he has given and

accordingly, C.W.15 came to Hassan police station and

produced two cheques. Accused Nos.4 and 5 took

P.W.30 and his staff nearby Muththigepura board.

– 66 –

Accused No.4 took P.W.30 and the panch witnesses i.e.,

Subramanya and Chandrashekar towards North for

about 200 feet from the board and towards the Lonton

tree bushes on the western side of the drainage and by

putting his hand in the middle of the said bushes, took

out one knife and produced before him. He seized the

knife in the presence of the panch witnesses under the

mahazar Ex.P.7. Ex.P.7(b) is his signature and he has

seen the knife (M.O.2). He has also seen dry blood

stains at the tip portion of M.O.2. He put the said knife

in the white cloth and packed and sealed and put the

seal with letter ‘P’. Then they came nearby

Muththigepura board. Accused No.5 went about 50 feet

towards west from the said board and on the drain, in

between the Colocasia (kuruchalu) of bushes, he took

out one knife and produced before him. He has seized

the said knife in the presence of panch witnesses under

the mahazar Ex.P.8 and P.8(b) is his signature. He has

already seen the knife marked as M.O.3. He has seen

– 67 –

the dried blood stains at the tip of the said knife. He

put the said knife also in the white cloth, packed and

sealed by using the seal with letter ‘P’. Then he came

back to the Mudigere police station and subjected the

cheques, motor cycle, Tata Sumo vehicle and the knives

to P.F. bearing No.59/2008.

35. P.W.33 in his evidence in the examination-in-

chief has deposed that he recorded the voluntary

statement of accused No.1 under Ex.P.56 on 27.2.2009,

wherein accused No.1 stated that if he is taken, he will

show the place where he has thrown the knife used for

committing the offence. P.W.33 has deposed that his

signature is at Ex.P.56(a) and the signature of accused

No.1 is at Ex.P.56(b). He further deposed that accused

No.1 led the police and panch witnesses namely

Prasanna Kumar and Revanna nearby Handaguli

village, Mudigere-Belur road and from the bushes,

accused No.1 took out one kaththi and he has shown

– 68 –

the place where it was. P.W.33 has further deposed

that he conducted the mahazar in the presence of

panch witnesses under Ex.P.29 and P.29(b) is his

signature and the knife seized is already marked as

M.O.1. He subjected the kaththi to P.F. No.7/2009 and

on the same day, he produced accused No.1 before the

Court. P.W.33 has further deposed that on 4.3.2009,

he referred the kaththi to the medical officer of

Mudigere hospital and on the same day, he received the

opinion and the kaththi from the medical officer. The

opinion is as per Ex.P.35.

Looking to the evidence of Dr. S. Kumar (P.W.12),

who conducted post-mortem examination over the body

of the deceased, he has deposed in his evidence in the

examination in chief that he has given opinion as per

Ex.P.18 and his signature is as per P.18(a).

36. We have also perused the FSL reports

produced in the case as per Exs.P.40 and P.41. Under

– 69 –

Ex.P.40, mud, controlled mud, the clothes belonging to

the deceased and two knives and one havai chappal also

belonging to the deceased were sent. The FSL report

(Ex.P.40) shows that except item No.2 (controlled mud),

there were blood stains on the other items. In Ex.P.41,

only one article i.e., one kaththi was sent to FSL, which

was also stained with blood.

We have further perused serology report at

Ex.P.42, wherein it is stated that regarding the origin of

stains, items Nos.1, 3, 4, 5, 6, 7, 8 and 9 are stained

with the human blood. It is further mentioned that

item Nos.4, 5, 6 and 9 are stained with A-group blood.

The blood group of stains in item Nos. 1, 3, 7 and 8

could not be determined because the result of the tests

were inconclusive. In respect of the items sent under

Ex.P.41, below the result of analysis, a note is written

that the stains in article No.1 were not sufficient to

conduct further serological examination. Therefore,

looking to the oral evidence of P.W.7 and P.W.30 and

– 70 –

the documents at Exs.P.40, P.41 and P.42, they clearly

go to show the use of said weapons i.e., M.Os.1 to 3 in

committing the alleged offence. No doubt so far as the

blood grouping is concerned, it is not ascertained, but

the laboratory has offered an explanation as to why the

blood grouping on the knives cannot be ascertained.

The reason given is that the blood stain on the said

items is disintegrated and not sufficient to ascertain the

blood grouping. But the blood stain on the items at

M.Os.1 to 3-knives is ascertained by the laboratory that

it is of the human blood. Even if the grouping is not

ascertained, we have discussed the oral evidence of

P.W.1, the injured eye witness. Therefore, wherever

there are eye witnesses to the incident, even if the blood

grouping is not ascertained, it is not fatal to the case of

prosecution to prove its case.

Therefore, looking to the evidence of P.W.7 and

P.W.30, the documents at Exs.P.46 and P.47-voluntary

statements of accused Nos.4 and 5 so also the

– 71 –

documents at Exs.P.40 to 42, the prosecution has

established the recoveries of M.Os.1 to 3 at the instance

of the accused.

37. Looking to the cross examination of P.W.30, he

has denied the suggestion that accused Nos.4 and 5

have not at all given their voluntary statement before

him as per Exs.P.46 and P.47. He also denied the

suggestion that he obtained the signatures of accused

Nos.4 and 5 as per Exs.P.46(b) and P.47(b) on the blank

papers. He denied the further suggestion that on the

basis of Exs.P.46 and P.47, he has not at all seized any

articles. He has not issued notices to the panch

witnesses. He admitted the suggestion as true that the

handpost is the place where there is sufficient crowd

and more number of shops available. He deposed that

the panch witnesses were standing at handpost and he

requested them to act as panch witnesses and they

agreed and accompanied him. He made an attempt to

– 72 –

call the other panchas, but they were not available. He

denied the further suggestion that he has not written

the mahazars under Exs.P.7 and P.8 in the presence of

panch witnesses at the said place and not seized any

articles. He denied the further suggestion that he has

prepared Exs.P.7 and P.8 in the police station.

38. We have also perused the cross examination of

P.W.33, wherein he has denied the suggestion that by

bringing pressure on accused No.1, he obtained his

signature on Ex.P.56. He denied the further suggestion

that he prepared it in advance and he put the date only

in his hand writing. The witness admitted as true that

the date is mentioned as ’27’ in his hand writing. He

denied the further suggestion that he has created

Ex.P.56 on 14.3.2009, accused No.1 never absconded

and A1 not given the voluntary statement as per

Ex.P.56 before him and he has created Exs.P.56 and

– 73 –

P.29 in the police station. All these suggestions were

denied by P.W.33.

We have also perused the oral evidence of P.W.19,

the panch witness to the seizure mahazar Ex.P.29,

wherein he has deposed in examination in chief that

C.W.1 Prasanna Kumar phoned him and called him to

K.V.K., but he has not told the purpose. When he went

to K.V.K., the police were present there. The police

took himself, Prasanna Kumar and others nearby

Muththigepura on Gonibeedu road. Accused No.1 Ravi

was present there. Then accused No.1 went nearby the

bushes and took out one knife. The police taken one

photograph. Thereafter, accused No.1 gave the said

kaththi to the police. The same was measured and it

was put into the clothes and sealed. P.W.19 has put his

signature as panch witness and even Prasanna Kumar

has also signed. The mahazar is at Ex.P.29. His

signature is at P.29(a). He identified the said kaththi as

M.O.1. P.W.19 also deposed that accused gave the said

– 74 –

kaththi to the police. Even he has stated that the

kaththi was covered in white cloth and a slip was pasted

on the said cloth. He has signed on the said slip.

39. In the cross examination, P.W.19 deposed that

when Prasanna Kumar phoned him, he has not

enquired Prasanna Kumar as to for what purpose he

was calling P.W.19. He went to the said place i.e,. KVK

area. When Prasanna Kumar was in front of the said

office, the distance was about half a kilometer. When

he went to the place where Prasanna Kumar was there,

3-4 police constables were present. In the mahazar, it is

mentioned that there is a school near Muthigepura.

But after seeing the mahazar, witness deposed that it is

not mentioned. But it is mentioned in the mahazar that

when he went near Muthigepura school, accused No.1

was present at the said place. The witness further

deposed that there is possibility for a person to keep the

weapon like M.O.1 inside the shirt and he can move

– 75 –

about. The witness denied the suggestion that on

27.2.2009, the entire day, he has not at all seen

accused No.1 as well as M.O.1 kaththi at the said place.

He denied the suggestion that for 2-3 days, he read the

contents of the mahazar and giving the evidence before

the court. P.W.19 has further denied the suggestion

that on 27.2.2009, himself and Prasanna Kumar have

not at all gone to the place and the police have not at all

seized the kaththi and the police have not conducted

any mahazar in his presence.

40. Therefore, looking to the cross examination of

P.Ws.7 and 19, there is no specific suggestion by the

defence that the police have planted the objects M.Os.1

to 3. Looking to the cross examination of P.Ws.7, 19,

30 and 33, except making the suggestions that accused

Nos.1, 4 and 5 have not given the voluntary statements,

not led the police and panchas to the place and not took

out the knives and not produced before the police,

– 76 –

nothing has been elicited from their mouth to disbelieve

the case of prosecution. So far as the voluntary

statements under Ex.P.46 by accused No.4, Ex.P.47 by

accused No.5 and Ex.P.56 by accused No.1, looking to

the cross examination of aforesaid witnesses, they have

not denied the signatures on the said voluntary

statements, but it was the suggestion that by putting

pressure on the accused persons, their signatures were

obtained on the blank papers. The witnesses denied all

these suggestions. Therefore, the defence has not

established that the signatures were obtained by

pressure on the blank papers and subsequently, the

voluntary statements have been prepared.

Considering all these matters, we are of the

opinion that the prosecution has proved the recovery of

weapons M.Os.1 to 3 with consistent and worth

believable material.

41. We have perused the evidence of P.W.12-Dr. S.

Kumar who deposed in his evidence that on 16.4.2008,

– 77 –

Mudigere police made requisition to conduct the P.M.

examination over the body of Basavaraj. Accordingly,

he conducted post-mortem examination from 3.30 p.m.

He noticed 20 external injuries as mentioned at Sl.

Nos.1 to 20 of his deposition. He further deposed that

on dissection of the dead body, he found the injuries.

On examination of the skull, he found the fracture of

the skull of the occipital and left parietal bones. On

examination of the thorax, he found the perforation of

the wall of the chest. Laceration of both lungs with

haemothorax. Abdomen was intact. Other organs were

intact.

The doctor (P.W.12) has also deposed that he is of

the opinion that the death was due to severe hypo

volaemic shock as a result of hemorrhage due to the

injuries. He issued the P.M. report as per Ex.P.17 and

his signature are Ex.P.17(a) and (b). He has also

deposed that on 26.5.2008, Mudigere circle inspector

had brought two small weapons i.e., M.Os.2 and 3 to

– 78 –

him and sought his opinion. With regard to injury

Nos.6 to 20, he has stated that the said injuries may be

caused by M.Os.2 and 3. He has opined on

examination of M.Os.2 and 3 that the above injuries

may be caused by M.Os.2 and 3. M.Os.1 and 2 can

also cause injury Nos.1 to 5.

42. Though this witness was elaborately cross

examined by the defence but the actual defence of the

accused itself is that three persons came to the house

holding weapons in their hands, assaulted the deceased

Basavaraju and thereafter, assaulted P.W.1. Therefore,

this also establishes the prosecution case that the death

of Basavaraju is the homicidal death.

43. The evidence of P.W.4 also supports the case

of prosecution that there were injuries on the body of

the deceased and the death of deceased is the homicidal

death. We have perused the oral evidence of P.W.4 who

– 79 –

conducted inquest mahazar proceedings over the body

of the deceased.

44. As per the case of prosecution, the motive for

the accused persons to eliminate Basavaraju is that

Susheela (accused No.3) was given in marriage to

deceased. The couple led the marital life happily only

for a period of 8-9 months and thereafter, quarrel

started in between the two. The materials also go to

show that the deceased wanted to file the petition

seeking divorce against his wife accused No.3-

Susheela.

45. The evidence of P.W.13 goes to show that the

couple wanted to file petition under Section 13(b) of

Hindu Marriage Act for divorce of mutual consent. His

evidence also goes to show that the accused No.3

Susheela demanded Rs.10.00 lakh from deceased

Basavaraju, who agreed to pay Rs.7.00 lakh and to pay

remaining Rs.3.00 lakh later. But the deceased put the

– 80 –

condition that as accused Nos.1 to 3 along with the

rowdy elements came to the house and taken away the

articles including the gold ornaments and if they return

the said articles, he is prepared to pay Rs.7.00 lakhs. A

further condition was also added that A3 has to come

before the Court and put her signature by giving the

evidence. The evidence of P.W.13 also goes to show that

accused No.3 did not come to the Court on that day.

Therefore, they kept the petition ready but was not

presented before the concerned Court and the same has

been produced before the Court below as per Ex.P.32.

The oral Evidence of P.W.1 (complainant) and P.W.6

(natural brother of the deceased) also goes to show that

there was difference of opinion between the couple and

for taking away the articles, the deceased filed the

private complaint against the accused. Looking to these

materials and the oral evidence of P.Ws.1, 6 and 13,

they clearly go to show that the relationship between

the deceased and accused No.3 was not cordial. There

– 81 –

was difference of opinion which resulted in filing of

cases before the Court. Though during the course of

cross examination of P.Ws.1 and 6, it was suggested by

the defence that one Manjula claims that she was the

wife of deceased Basavaraju and as Basavaraju did not

marry her as per the promise given to her, the persons

on the side of the said Manjula might have committed

the murder of Basavaraju, but the said suggestion was

denied by P.Ws.1 and 6 and they never admitted that

the said Manjula was the wife of deceased Basavaraju.

Therefore, the prosecution has placed the material even

to show the motive for accused No.1 to commit the

murder and also to cause injuries to P.W.1 when she

went to the rescue of deceased Basavaraju. The

prosecution has also placed material to show that A1

committed the offence along with A4 and A5. The

prosecution material also go to show that accused Nos.4

and 5 remained absconded and they were apprehended

by the police. Even in the charge sheet, it is mentioned

– 82 –

that civil and criminal cases are pending between the

parties.

46. P.W.18 is the Principal of the Government

Composite Junior College, Alur, who deposed in his

evidence in the examination-in-chief that accused No.1

(Ravi) was serving as a lecturer in Commerce subject

from 30.5.2005. He was on duty up to 31.3.2008.

Thereafter, there was vacation to the college. Then

accused No.1 came to the college and obtained the order

of evaluation of the papers. The evaluation started from

5.4.2008, but he does not know when it was closed.

P.W.18 has deposed that even after completion of the

evaluation work, accused No.1 Ravi has not at all

attended the college. Thereafter, he is seeing him before

the Court itself. When the Circle Inspector, Mudigere

came to the college and enquired about Ravi, then he

gave the letter (Ex.P.27) about his absence in the

college. Ex.P.27(a) is his signature. Even after that

– 83 –

also, 3-4 times, Circle Inspector came to the college and

enquired as to whether accused No.1 was coming to the

college. But P.W.18 deposed that accused No.1 gave the

request letter asking leave for the specific period and

the said letter is given to Circle Inspector. The said

letter is at Ex.P.28.

In the cross examination, the witness deposed

that the vacation started from March 2008 and it was

the summer vacation and it was for the period of two

months i.e., till the end of May. Till the end of May,

accused No.1 was not required to attend the college.

Even after 31st May, from time to time, accused No.1

was giving the request letter to continue the leave.

47. The evidence of P.W.33 also goes to show that

till filing of the charge sheet, accused No.1 remained

absconding and thereafter, he surrendered before the

Court and he was taken to judicial custody on

12.2.2009. Thereafter, the police made the request and

– 84 –

sought accused No.1 to the police custody. Even

accused Nos.4 and 5 were absconding and they were

apprehended by the police on 28.4.2008. Therefore,

this conduct of accused Nos.1, 4 and 5 goes to show

that they were under the guilty conscious and hence,

they remained absconding. If really, they were not

involved in committing the said offences, there was no

reason for them to remain absconding. If this conduct

of accused is taken into consideration and appreciated

along with the other materials, it clearly goes to show

their involvement in committing the said offences.

Though it is the contention of the learned counsel for

accused appellant No.1 that the conduct of the accused

ought to have been considered and appreciated as

immediately after the evaluation, he collected the

cheque and he called his wife over the phone and he

saw P.W.18 and thereafter, he has applied for leave, but

the above said discussion held by us clearly goes to

show the malafide intention of accused No.1 to remain

– 85 –

absconding for months together. Therefore, the

contention of the learned counsel for accused No.1 that

A1 never absconded, cannot be accepted, when in the

charge sheet which was submitted before the Court, it is

mentioned that accused No.1 remained absconding.

It is the contention of the appellants accused that

there is delay in registering FIR and the first complaint

has been suppressed. After due deliberation with the

relatives of P.W.1, Ex.P.1 was prepared only to include

A1. It is also the contention of the defence that FIR was

manipulated by the police to suit their case and

deliberately submitted the FIR and complaint before the

learned Magistrate. In this connection, we perused the

FIR (Ex.P.39). It is no doubt true that looking to the

date of the offence, it is mentioned as 16.4.2008, but

regarding time, it is mentioned as 6.30 a.m. But

looking to the timing at 6.30 a.m., there appears to be

over writing. But this will not take away the case of

prosecution, because even in their suggestion during

– 86 –

the course of cross examination to P.W.1 on page

No.114 of paper book, it was suggested by the defence

itself that on that day at 6.00 a.m., three unknown

persons holding the weapons in their hands came to her

house and tapped the door, however the witness denied

the said suggestion. Even it was suggested that the

said three unknown persons assaulted the son

mercilessly with the weapons which was also denied by

the witness P.W.1. The defence themselves suggested

that the incident took place at 6.00 a.m., but by the

unknown persons, therefore, regarding the time of the

incident, it is admitted case that the incident took place

morning at 6.00 hours. Therefore, in that view of the

matter, even if such correction is there in the FIR

(Ex.P.39), the court has to appreciate the entire material

together and to see the cumulative effect emerging out

of that and not to consider the materials in isolation.

The endorsement by the Magistrate also goes to show

that FIR was received from Mudigere P.S. P.C No.123 at

– 87 –

about 1.45 p.m. Therefore, we do not find any

deliberate and intentional delay in submitting the FIR

before the concerned Court. In her cross examination,

P.W.1 has also denied the suggestion that the contents

of Ex.P.1 are in the hand writing of D.P. Ashok, an

advocate from Hassan. She further denied the

suggestion that her eldest son P.W.6 and D.P. Ashok

and others prepared the complaint Ex.P.1 after 12.00

noon and then obtained her signature. P.W.1 has also

denied the suggestion that her daughters, relatives, son-

in-laws came to house at 12.00 noon and at that time,

Ashok, the advocate from Hassan also came there. She

denied the further suggestion that before their arrival,

she already got prepared one complaint and it was

against three unknown persons. She denied the further

suggestion that she put her signature on Ex.P.1 at

12.00 or 12.30 noon. She also denied the further

suggestion that her relatives torn the earlier complaint

– 88 –

and then they prepared the present complaint Ex.P.1 at

about 12.30 p.m.

Considering all these materials, the contention of

the defence that registration of the FIR and its

submission before the Court was intentionally delayed

in order to file a false case against the accused persons,

cannot be accepted at all.

48. We have also perused the judgment of

conviction and the order of sentence passed by the

Court below. After re-appreciating the entire material

both oral and documentary we are of the clear opinion

that the learned Sessions Judge has taken all the

aspects into consideration extensively and rightly came

to the conclusion in holding that accused Nos.1, 4 and

5 guilty for the said offences and rightly convicted them.

We do not find any illegality in the judgment and order

of the learned Sessions Judge for convicting accused

Nos.1, 4 and 5.

– 89 –

So far as accused Nos.2 and 3 are concerned, it is

an admitted fact even according to the case of

prosecution that they have not actually participated in

the incident of assault on P.W.1 and deceased

Basavaraju. But it is the case of prosecution that

accused Nos.2 and 3 conspired with other accused

persons in committing the said offences. For this,

regarding the conversation between the accused, no call

details are collected. We have also perused para Nos.18

and 19 of judgment of the Court below and the Court

below has observed that there are no supporting

material to show that accused Nos.2 and 3 had

conspired and instigated the other accused persons to

commit the murder of the deceased Basavaraju.

Therefore, so far as accused Nos.2 and 3 are concerned,

the court below has rightly taken the view that there is

no supporting material against A2, A3 and accordingly

acquitted them for the said offences.

– 90 –

This view is one of the possible views taken by the

Court below. The appellate Court must be slow in

interfering with the view taken by the Court below in

case of acquittal of the accused.

49. We have also carefully examined the decisions

relied upon by the learned counsel for appellant-

accused No.1 cited supra. The factual matrix involved

in the case on hand and the factual matrix involved in

those reported decisions are not one and the same and

in view of our reasoning adopted as per the above

discussions, we are of the opinion that the said

decisions will not come to the aid and assistance of the

appellant accused No.1.

Perusing the entire material, we do not find any

merit in the appeals preferred by accused Nos.1, 4 and

5. Accordingly, the appeals filed by the appellants-

accused Nos.1, 4 and 5 in Criminal Appeal

– 91 –

Nos.808/2014, 810/2014 and 938/2014 respectively,

are dismissed as devoid of merits.

So also there is no merit and valid and justifiable

grounds for this Court to interfere with the judgment in

respect of acquittal of accused Nos.2 and 3. Therefore,

the appeals preferred by the complainant and the State

in Criminal Appeal Nos.802/2014 and 94/2015

respectively, as against acquittal of accused Nos.2 and 3

are also dismissed as devoid of merits.

Sd/-

JUDGE

Sd/-

JUDGE

ck/-…….. pages 1 to 32
bkp/-…….pages 33 to 61
cs/-……… pages 62 TO 91

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