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TMI Blog2018 (8) TMI 2166X X X X Extracts X X X X X X X X Extracts X X X X ..... ants herein alleged to have committed the murder of Rajesh and Ramu while injuring P.Ws. 4 and 14 at a farm house belonging to one Muddappa, situated behind APMC, Hunsur and the said offence has been committed by using machetes M.Os.1 to 6. The motive attributed for the commission of offence is that appellant No. 1 was doing real estate business, while the deceased were also into same profession. About one and half months prior to the incident, deceased Rajesh had attacked appellant No. 1 in connection with business and in this regard appellant No. 1 had developed ill-will against the deceased. On the basis of the said complaint, case was registered in Crime No. 108/2008. After completing the investigation, the Investigating Officer has filed the charge sheet against the accused persons for the said offences. After hearing both sides and after perusing the charge sheet material, the learned Sessions Judge prepared the charges and when the charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried. Accordingly, charges were framed and plea of appellants-accused were recorded and matter was set down for trial. In support of its case, prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be the eyewitnesses to the incident. They have turned hostile to the case of the prosecution. Even when they were cross-examined by the Public Prosecutor by treating them hostile, nothing has been elicited from them as against any of the accused persons. Hence, so far as the alleged eyewitnesses are concerned, absolutely no evidence is placed by the prosecution as against the accused. Regarding the motive aspect, referring to the evidence of P.W. 9, learned counsel submits that P.W. 9 is not having personal knowledge about the previous incident and the attack made by the deceased on accused No. 1 and no case is registered with regard to the said incident. Therefore, the evidence of P.W. 9 will not make out a case regarding the motive for the accused persons to eliminate both the deceased. He also refers to the other material regarding alleged recovery of weapons and submits that none of the panch witnesses have supported the prosecution case. He submits that the evidence of P.W. 70, the Investigating Officer is not sufficient to hold that the recovery has been effected and has been proved by the prosecution. The recovery is not made under Section 165 of Cr.P.C., but it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons. These material aspects were not at all taken into consideration by the learned Sessions Judge and only relying upon the evidence of P.W. 70, the Investigating Officer, the learned Sessions Judge held that recoveries are proved and there is motive for the accused persons to commit the murder of two deceased. He further submits that the learned trial Judge has also relied upon under Section 164 Cr.P.C. statement of two witnesses viz., P.Ws. 14 and 21. The said witnesses have not at all supported the case of the prosecution and have turned hostile. No doubt, the judicial officer who said to have recorded the statement of these two witnesses has been examined, but that itself is not sufficient to hold that prosecution has proved its case about the involvement of accused persons. He submits that the statement under Section 164 of Cr.P.C. is not a substantive piece of evidence. It can be used only for the purpose of contradiction. This legal aspect is not properly appreciated by the learned Sessions Judge. Accordingly, submitted to allow the appeal and to set aside the judgment and order of conviction passed by the Court below. In support of his contention, Sri. Hashmath Pash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e refers to the seizure mahazars under Exs.P11, P12, P26, P27, P28 and P29 and submits that the recoveries are effected at the instance of respective accused persons on their voluntary statements. He further refers to the FSL and Serology reports under Exs.P124, 125 and 126 and submits that they clearly shows the use of weapons in committing the alleged offences and it is ascertained that the said weapons were having human blood stains. Further, the blood group on M.Os.4 and 5 was also ascertained. Hence, he submits that this aspect has been taken into consideration by the learned Sessions Judge while coming to the conclusion about the guilt of accused persons. He also refers to Ex.P16, the seizure of Maruti Van at the instance of accused No. 2 and the oral evidence of P.Ws. 23 and 24 in this regard and submits that though P.Ws. 23 and 24 have turned hostile, but the Investigating Officer has clearly deposed in his evidence about the seizure of the said material object. However, so far as Ex.P17 is concerned, he submits that looking to Ex.P17 and the oral evidence of panch witnesses, the prosecution has not established about the seizure of any of the articles under Ex.P17, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Public Prosecutor as true. Even the suggestion that he has given the statement before the Magistrate Court. He admitted the said suggestion as true and further he deposed that the truth involved as to he making the statement before the Magistrate in relation to this case is concerned he gave such a statement as stated by the police. In the cross-examination by the defence he deposed that police brought Devendra also along with him. he has further stated in his evidence that he deposed as tutored by the police, that between themselves and his friends and in between Avva Madesha/accused No. 1 there was an enmity in connection with the real estate business and when it was suggested that Madesha was not at all doing the real estate business and there was no any sort of enmity between himself and Avva Madesha and the people of his side. The witnesses has deposed that he does not know who are those persons. He admitted the suggestion as true that in the presence of the doctor in the Hunsur hospital he has stated that about 3-4 unknown persons came and they have assaulted. He admitted the suggestion as true that none of the accused persons have committed any of the offences. He further d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, this witness has been treated as hostile and the learned Public Prosecutor cross-examined this witness and even in the cross- examination he denied the suggestions about the involvement of these accused persons in committing the said offence. When it was suggested that in connection with the real estate business and having enmity the accused persons forming the group holding the longs and also the chilly powder, they throw the chilly powder on the face of Rajesh @ Gandhi and Ramu and then assaulted with long and thereafter committed the murder and Sunil assaulted the worker by name Kumar with long and made an attempt to commit his murder and he has seen those persons in the light which was there in the garden land and he will identify them he has denied the same. He has been further cross examined wherein he has deposed that if he had occasion to see them again and when it was suggested that he has given the statement before the police, all these suggestions were denied by this witness. When cross-examined by the Public Prosecutor he admitted that he has given the statement before the Magistrate Court. When it was suggested by the Public Prosecution to this witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the motive aspect is concerned the evidence of PWs.9, 40, 48, 50, 51 and 53 are relevant and as such examined. PW9 one Lokesh deposed in his evidence in examination-in-chief that Ramu used to tell him over the phone that there was a galata took place between Ramu and his friend and accused Madesha has not come to the house and because of such galata he was having the life threat and Ramu has not come to the house, he has not come to the house about 1 and 1½ months. He further deposed that on 15.5.2008 morning at 6 to 6.30 a.m. when he was watching the TV-9 Channel, there was a news about the murder of Ramu and Rajesh and it took place in the house at the garden near APMC Yard, when immediately rushed to the said place, he has seen Ramu and Rajesh were lying in a pool of blood and there were injuries and at the place of the incident chilly powder pockets were also lying. In the cross-examination he deposed that with regard to the life threat to his brother, himself, his brother and any of the family members have not at all given any complaint before the police. He denied the suggestion that as there was no such life threat caused to his brother, that was the reason for n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, looking to the evidence of these witnesses they have not supported the prosecution case regarding the motive aspect of the deceased carrying on the real estate business, so also accused No. 1 and galata said to have taken place in connection with the said real estate business. So far as PW9 is concerned though it was submitted by the learned High Court Government Pleader that he has stated about the statement made by the deceased i.e. his brother about the threat posed by accused No. 1, so far as the said threat is concerned, no complaint was filed in that regard either by the deceased or by PW9 or by any of the family members. Apart from that the motive aspect is said to be by accused No. 1 and not by other accused persons. Even so far as accused No. 1 is concerned, looking to the conduct of the witnesses keeping mum for long time without taking any action, it cannot be said that the said motive has been established by the prosecution when the witness deposed only in this case about the incident which is said to have taken place much earlier to happening of this incident. 11. Another aspect is regarding the recovery said to have been affected by the prosecution. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 5, 6, 15, 16 and 24 are stained with 'A' group blood by adopting absorption and elution test. The blood group of the bloodstains in items 7, 8, 11, 17, 18, 21, 23 and 23(A) could not be determined since the results of the test were inconclusive. Another report with regard to the hairs are concerned it is under Ex.P126, wherein it is stated at point No. 1 that on the basis of morphological examination, the hairs in item '23(A)' are of human and similar to item No. 10 and dissimilar to item 11, at point No. 2 the hairs in item No. 9 are of human and dissimilar to items 33, 34, 35, 36, 37, 38, 39 and 40. We have perused the oral evidence of PW60 so also PW63. Looking to the oral evidence of these witnesses they are in consonance with the documents under Exs.P124, 125 and 126. Therefore, even looking to the reports from the FSL also, the grouping is not ascertained so far as the Material Objects MOs.1, 2, 3 and 6. No doubt so far as MOs.4 and 5 are concerned i.e. MO.4 at the instance of A6, MO.5 at the instance of A5 said to be recovered firstly. The panch witnesses have not supported the recovery as we have already observed above. Apart from that for ascertaining the grouping the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed 14 external injuries on the body of the deceased. He has given the opinion that death is due to shock and haemorrhage as a result of the head injuries. Therefore, perusing these materials they clearly goes to show that death of Ramu and Rajesh @ Gandhi are of homicidal deaths. But the question is who has caused the death of two deceased. In that connection we have already examined the prosecution material. We have perused the oral evidence of the Investigating Office who has been examined as PW17. Looking to the evidence of PW17 in examination-in-chief, no doubt he has deposed in detail about the investigation which he has been conducted in the matter, but as we have already referred to the oral evidence of the prosecution witnesses as well as the panch witnesses in connection with the different panchanamas, as none of the witnesses supported the prosecution case. We have also perused the decision relied upon by the learned High Court Government Pleader which is referred above in the case of Rameshbhai Mohanbhai Koli and Others Vs. State of Gujarat in Criminal Appeal No. 1146/2008 and Criminal Appeal No. 1166 of 2009 decided on 20.10.2010, the relevant paragraph at paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice have put the pressure and threat, they have given such a statement before the police. The Court cannot rely upon such statement and in view of such evidence it cannot be held that those statements have been satisfactorily proved by the prosecution with cogent and acceptable material. Therefore, perusing and reappreciating the entire materials produced on the side of the prosecution and also considering the oral and documentary evidence and looking to the judgment and order of conviction passed by the Court below, the learned Sessions Judge mainly relied upon the 164 statement of PWs.14 and 21 and also the evidence of PW17 the Investigating Officer and held that even though all the panch witnesses and eyewitnesses turned hostile, but the other material sufficient to come to the conclusion that accused committed the alleged offences. 15. Perusing the entire material we are of the opinion that the view taken by the learned Sessions Judge is not supported by any material. He has wrongly read the evidence and not considered the legal aspect involved in the case. Therefore, the judgment and order of conviction passed by the Court below is not in accordance with the material produc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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