1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 22ND DAY OF APRIL 2016

PRESENT

THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR

AND

THE HON’BLE MR. JUSTICE BUDIHAL R.B.

CRIMINAL APPEAL NO.619 OF 2012

BETWEEN:

State of Karnataka
By Police Inspector
Byatarayanapura Police Station
Bengaluru City. .. APPELLANT

(By Sri Vijayakumar Majage, HCGP)

AND:

1. Santhosh @ Kallu
S/o Ravi Kumar
Aged about 22 years
R/at 14th Cross, 1st Main
Bapujinagar
Mysore Road
Bangalore-26.

2. Ashoka @ Khoki
S/o Sadananda
Aged about 19 years
No.582, 6th Cross
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Kavika Layout
Maruthinagar
Bapujinagar
Mysore Road
Bangalore-26.

3. Babu @ Auto Babu

S/o Shivaram
Aged about 19 years
R/at No.324, 3rd Cross
Maruthinagar
Chandralayout
Bangalore-26.

4. Arun @ Girish
S/o Lingaraju
Aged about 51 years
R/at No.160
Behind Maramma Temple Road
RPC Layout, Vijayanagar
Bangalore-40

5. Deepak R @ Deepu
S/o Ramegowda
Aged about 20 years
R/at No.67, 13th Main
2nd Cross, Saraswathinagar
Mudalapalya
Vijayanagar
Bangalore-40. .. RESPONDENTS

(By Sri Ambaji Rao Najre, Adv. for R-1, R-2 and R-4
Sri Chandrappa K N, Adv. for R-3 and R-5)

This Criminal Appeal is filed under Section 378 (1)

and (3) of CR.P.C praying to grant leave to file an appeal
against the judgment and order of acquittal dated
25.01.2012 passed by the P.O., FTC-I, Bengaluru city in
 3

S.C.NO.1171/2008 – acquitting the respondents/accused

of the offences punishable under Sections 143, 144, 147,
148, 120(B), 506(B), 302 read with Section 149 of IPC and
etc.

This Criminal Appeal having been reserved and being

listed for pronouncement today, Budihal R.B., J., delivered
the following:

JUDGMENT

The judgment and order of acquittal dated 25.1.2012

passed by the Fast Track Court No.I, Bengaluru city in

Sessions Case No.1171/2008 is challenged in this appeal

by the State wherein the respondents-accused are

acquitted of all the charges leveled against them.

2. Accused Nos.1, 2, 4, 6 and 7 were charged with

the offences punishable under Sections 143, 144, 147,

148, 120(B), 506(B), 302 r/w Section 149 of IPC of

Byatarayanapura Police Station in Crime No.280/2008.

3. Briefs facts leading to the case of the prosecution

before the trial Court are, P.W.1 one Sri.G.Venkatesh, S/o

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late B.C.Gundappa, Bapujinagar, Mysore Road, Bangalore

has lodged the complaint as per Ex.P1 dated 27/28.6.2008

alleging that Sri.G.Chandrashekar @ cable Chandru, the

younger brother of the complainant was having his office in

III main road at Bapujinagar and he was giving cable

connections to the people of the said area. On 27.6.2008

during night, as there was a birthday party of

Sri.B.V.Kumar, the son of the complainant, the relatives,

the younger brother of the complainant i.e., cable Chandru

and one Praveen who was working under cable Chandru

came to the house of the complainant to have dinner.

After the dinner, during the night at about 11.45 p.m.

cable Chandru and Praveen both went out of the house and

within two minutes thereafter complainant heard a loud

crying sound from outside the house and immediately

complainant and his family members came out of the

house and saw that five persons surrounded cable

Chandru. When complainant and his family members went

near, they saw that two persons out of the five accused
 5

assaulted cable Chandru with long choppers on the head,

due to which, he fell down at the said place crying and

other two persons threw stones on the head of the

deceased cable Chandru and another person had just

surrounded the deceased. When the complainant and his

family members went near to rescue the deceased,

accused have shown long chopper and threatened them.

After the incident, three persons went on one motorcycle

and two others ran away from the spot. Cable Chandru

had sustained bleeding injuries to the head wherein his

brain matter had come out and he died on the spot. The

complainant did not know the reason for such assault on

the deceased by the assailants. The assailants were in

between the age group of 20-25 years. Later he came to

know that the persons who assaulted the complainant’s

brother are one Santhosh @ Kallu and another is Ashok

and that he can identify all the accused if they are shown

to him. Hence, he has requested the police to take action

against those persons in accordance with law. The

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complaint was registered at 1.30 a.m. on 28.6.2008 in

crime No.280/2008 for the offences punishable under

Sections 143, 144, 147, 148 and 302 r/w 149 of IPC. After

investigation, the Investigating Officer has filed the charge

sheet against accused Nos.1 to 7 for the offences

punishable under Sections 143, 144, 147, 148, 120(B),

506(B) and 302 r/w Section 149 of the IPC. Accused No.3

died and case against accused No.5 was split up.

Therefore, trial was held as against accused Nos.1, 2, 4, 6

and 7.

To prove its case, the prosecution in all examined 21

witnesses and got marked 26 documents and 12 material

objects. On the side of the defence, no witness is

examined and no document got marked.

After evaluating the material placed on record, the

trial Court has come to the conclusion that prosecution has

not proved the fact that accused persons have committed

the murder of deceased Chandrashekar by assaulting him

with long choppers on the head and dropping stones on his

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head on 27.6.2008 at 11.45 p.m. and thereby acquitted

the accused persons.

Being aggrieved by the judgment and order of

acquittal, the State has preferred this appeal challenging

the legality and correctness of the judgment of the trial

Court on the grounds as mentioned in the appeal

memorandum.

4. We have heard the arguments of the learned SPP

and also the learned counsel appearing for respondents-

accused.

5. The learned SPP during the course of his

arguments has submitted that P.Ws.1, 7, 9 and 13 are the

eyewitnesses to the incident who were examined before

the trial Court and all of them have consistently deposed in

their evidence that they have seen the accused persons

assaulting the deceased and committing his murder. He

has further submitted there was a streetlight at the spot

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through which they have witnessed the incident. The

Doctor who conducted the post mortem examination over

the dead body of the deceased has been examined as

P.W.2 and he has deposed in his evidence that he has

conducted post mortem examination over the dead body of

the deceased and issued the report as per Ex.P3. It is also

submitted that the Doctor P.W.2 noticed 16 injuries on the

body of the deceased and has deposed that all the injuries

are anti-mortem in nature and opined that death was due

to shock and hemorrhage as a result of multiple chop

injuries sustained. The learned SPP has submitted that the

versions of the eyewitnesses are also supported by the

medical evidence. The weapons used for committing the

offence were seized by the Investigating Officer during

investigation at the instance of accused persons and the

report of the FSL also shows that the blood stains found on

M.O.Nos.1 and 2 were of human blood. He has submitted

that the trial Court has not at all considered these

materials properly. It has wrongly read the evidence of

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the prosecution witnesses and has wrongly come to the

conclusion that prosecution has not proved its case and

has acquitted the accused persons. Accordingly, he has

submitted to allow the appeal and to convict the

respondents-accused herein for the offences with which

they were charged by setting aside the judgment and order

of acquittal passed by the trial Court.

6. Per-contra, learned counsel appearing for the

respondents-accused submitted that the evidence of

eyewitnesses is not worth believable. In fact they are not

the eyewitnesses to the incident. The evidence of P.Ws.1,

7, 9 and 13 is self-contradictory and full of inconsistencies.

When these witnesses claim that they are the eyewitnesses

to the incident, their evidence must be consistent and

cogent about the incident in question. It is also his

submission that there is a delay in lodging the complaint

and it has come in evidence that Praveen had lodged the

compliant earlier to the complaint of P.W.1 and the said

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complaint has been suppressed by the prosecution. He has

further submitted that the incident in question is said to

have taken place in the midnight i.e., at 11.45 p.m. and

the evidence of alleged eyewitnesses is not consistent with

regard to the streetlight. Though the Doctor P.W.2 who

conducted the post mortem examination deposed about

the injuries sustained and weapon used in committing the

alleged offence, but the prosecution has failed to establish

recovery of weapons at the instance of the respondents-

accused and even the FSL report Ex.P24 is not helpful to

the prosecution since there is no report from the Serology

department to give the opinion as to the blood group on

the items said to have been sent to the FSL. He has

further submitted that it has come on record that deceased

was the supporter of congress party and was also having

licensed gun with him, which itself shows that he was

having enemies because of political rivalry and the murder

being caused by the said enemies also cannot be

completely ruled out. He lastly contended that all these

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aspects have been rightly and properly considered by the

trial Court while acquitting the accused, as the prosecution

has not proved its case beyond all reasonable doubt and

hence, there is no merit in the appeal preferred by the

State and the same may be dismissed. In support of his

case, he has relied upon the following judgments:

(i) AIR 1975 SC 1727 in the case of Ram Narain Jaggar

Singh and others Vs. The State of Punjab

(ii) AIR 1987 SC 826 in the case of Amar Singh and others

Vs. State of Punjab

(iii) 2002 Crl.L.J. 511 in the case of Ran Tshering Lepcha

Vs. State of Sikkim

(iv) 2002 Crl.L.J. 3737 in the case of Toran Singh Vs. State

of Madhya Pradesh

(v) AIR 2003 SC 4399 in the case of Mohinder Singh and

another Vs. State of Punjab and others

(vi) 2010 AIR SCW 1235 in the case of Jagdish Vs. State of

Madhya Pradesh
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(vii) AIR 2011 SC 1736 in the case of Kuldip Yadav and

others Vs. State of Bihar

7. We have perused the grounds of appeal

memorandum, judgment and order of acquittal passed by

the trial Court, oral evidence of P.Ws.1 to 21 and

documents produced at Exs.P1 to P26.

8. As per the case of the prosecution as made out

before the trial Court, there are eyewitnesses to the

incident in question. The eyewitnesses are P.W.1-

G.Venkatesh, who is the complainant and own brother of

the deceased, P.W.7 Smt.Mangala Rani, wife of deceased,

P.W.9 Srinivas, who is another brother of the deceased and

P.W.13 S.Manjunath who is the relative of the deceased.

Let us examine the oral evidence of these four witnesses.

9. P.W.1-G.Venkatesh, the complainant has deposed

in his evidence in the examination-in-chief that deceased

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G.Chandrashekar is his younger brother. On 27.6.2008

there was a birthday party of the complainant’s son in the

night in his house and P.W.1 invited his relatives to his

house including his deceased brother Chandru; they all

were having dinner; at about 11.45 p.m. Praveen Kumar

went out of the house and was talking in mobile and after

10 minutes he came and called deceased Chandrashekar

stating that someone is calling him; then Chandrashekar

went out along with Praveen Kumar and after two minutes

they heard a sound; immediately he came out of the house

and ran towards the place where he heard the sound and

saw that five persons had surrounded his brother

Chandrashekar and three out of five persons were holding

long choppers. He tried to go near the spot, but one

person out of five threatened him not to come near the

spot; by seeing the complainant two persons ran away and

other three persons started assaulting deceased with iron

long choppers, stones and cement bricks; at that time

Praveen Kumar was not in the spot; those three persons

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left the place in the motorcycle; he has deposed that

complainant’s sister Seethamma, her daughter Sheela, his

wife Susheela, P.W.7 Mangalarani and her children and his

another brother P.W.9 G.Srinivas and his wife and children

were present along with him at the time of incident.

Accused No.1 was present in the spot and threatened him

when he went to rescue his brother; accused nos.1 to 3

who are before the Court assaulted his brother

Chandrashekar with long choppers, stones and cement

bricks; accused Nos.4 and 5 who were present in the spot

ran away by seeing him; one Eshwar took him to the police

station at 1.30 a.m. to lodge the complaint and he lodged

the complaint as per Ex.P1. Then police came to the spot

and conducted spot mahazar during night in his presence

and seized the stone, cement brick and blood scrapings

and the mahazar is at Ex.P2; After two days, police called

him to the police station and showed him accused Nos.1 to

5 and he identified them stating that they have assaulted

the deceased Chandrashekar; after two days again he was

 15

called to the police station and accused no.7 was shown to

him and he identified him and after 11 days he went to the

police station and identified accused no.6. Three long

choppers are at M.Os.1 to 3, stone is marked M.O.4,

cement brick is marked as M.O.5 and small size stone is

marked as M.O.6.

During the cross-examination by learned counsel for

accused Nos.1 and 2, he has deposed that he is aged 68

years and he has undergone eye surgery; he denied the

suggestion that he left car driving due to eyesight; he

heard the sound of long at 11.45 p.m. from a distance of

70 feet; five persons were present when he came out of

the house and two persons ran away out of five by seeing

him and there was focus streetlight; he denied the

suggestion that the pole only was installed and there was

no streetlight and that he cannot identify the persons in

the spot due to non-availability of light; when he came out

from the house, the accused Nos.1 to 3 were assaulting his

brother with long choppers and threatened him saying not

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come to the spot; one out of accused Nos.1 to 3 threw

stone on the deceased; he cannot say who was holding

stones and who was holding long choppers; they have not

tried to apprehend the accused persons and he does not

know who informed the police. Byatarayanapura police,

Chandra layout police, Kengeri police and ACP Ramesh

Babu came to the spot. Praveen Kumar – C.W.6 told the

names of all the accused persons to them; he voluntarily

told that Praveen Kumar is involved in the case as an

accused; his brother Chandrashekar asked Puneeth not to

become President of Kannada Flag Hoisting Committee,

due to that said Puneeth went away saying that he will look

after his brother Chandrashekar; he was present in the

spot when Puneeth warned his brother; till today they are

not sure about the persons involved in this case; he denied

the suggestion that there was no electricity on that day. He

has deposed that police came to the spot in ten minutes;

He denied the suggestion that they saw the persons who

were running and not the accused persons and also further
 17

suggestion that accused Nos.1 and 2 were not holding long

choppers; there was no difficulty for him in narrating the

incident at the spot when police came to the spot. He was

in the spot so long police were there and he went to the

police station at 2.30 a.m.; he denied the suggestion that

police typed Ex.P1 and he signed the same. He has not

stated anywhere except before this Court that accused

No.1 threatened him by showing long.

In the cross-examination by learned Advocate for

accused Nos.6 and 7 he has deposed that two persons ran

away from the spot when he came out from the house;

Praveen Kumar was not present in the spot; Accused

Nos.1 to 3 might have assaulted the deceased with stones

and bricks; Praveen Kumar came from opposite side

shouting when two persons were running; within two to

three seconds they informed the police through mobile and

police came to the spot in 5-10 minutes; Praveen Kumar

was present in the spot when police came to the spot;

Eshwar and Praveen Kumar went to police station and he

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went to police station after 2.30 a.m. Praveen Kumar had

lodged complaint before he went to police station; he went

to police station only after conducting mahazar in the spot

and after shifting dead body to the hospital; Praveen

Kumar, Eshwar and other boys were present in the police

station when he went there. He signed the complaint after

it was typed; it was 3.30-4.00 a.m. when he signed the

complaint; the distance between the place of incident and

focus streetlight may be 25-30 feet; Focus streetlight is by

the side of the road; he denied the suggestion that the

light first focus to the tree and thereafter to the place of

incident; he cannot say specifically which of the accused

were holding long choppers; he does not know the names

of accused persons who threw stones on the deceased; he

came to know about the accused only when police told

their names. He has denied the suggestion that he has not

witnessed the incident.

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10. P.W.7-Smt.Mangala Rani, another eyewitness

who is the wife of the deceased, has deposed in her

evidence in her examination-in-chief that she has seen

accused Nos.1, 2, 4, 6 and 7 who are before this Court on

27.6.2008 at about 11.45 p.m.; she came out by hearing

the sound and saw accused nos.1 to 3 were holding long

choppers; they assaulted her husband with long choppers;

accused No.4 who was holding size stone threw the same

on the head of her husband; herself, P.W.1 and C.W.3

Srinivas went to rescue her husband; accused Nos.1, 2

and 5 threatened her, P.W.1 and C.W.3; accused nos.1 to

3 went away in two wheeler; there was focus streetlight in

front of their house; she saw the incident through the

focus streetlight; she has stated before the police on

30.6.2008 that accused persons assaulted her husband in

respect of Sandeep’s matter; she saw three long choppers

which are already marked as M.Os.1 to 3; she has seen

the size stone M.O.4, cement brick and stone which are

M.O.5 and 6 respectively. Later she came to know that

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accused persons killed her husband in respect of Sandeep’s

matter.

In the cross-examination by learned counsel for

accused Nos.1 and 2 she deposed that she has studied up

to SSLC; her husband was doing cable operating business

in Bapujingar area since 18 years; he was in politics and

involved in sports activities; he was a member of Youth

Congress and Rakshana Vedike and he was president of

Ayyappa Swamy Temple and he was also a social worker;

the deceased was preparing to contest for Corporator from

Congress party; he was about to go to Delhi on

30.6.2008; he had a licensed gun and he used to carry the

same with him for his safety; he obtained the licence for

the gun 7-8 years back. She has deposed that P.W.1

Venkatesh is suffering from eyesight; 1 ½ - 2 months

back the complainant P.W.1 has undergone eye surgery.

C.W.6 Praveen who was present with them on the date of

the incident called her husband outside; deceased and

Praveen both went out of the house; she was inside the
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house and heard the screaming sound; P.W.1 Venkatesh

immediately went out from the house and she followed

P.W.1. P.W.9 Srinivas also came out from the house;

accused Nos.1 to 3 were assaulting her husband with long

choppers and he was lying on the ground when she came

out from the house; Praveen was not present in the spot,

he came to the spot later shouting; she does not know how

the information passed on to the police; police came to

the spot after one hour; herself and other family members

except P.W.1 Venkatesh were present in the spot when

police came there; accused nos.1 to 3 went away in two

wheeler and the streetlight is at a distance of 25 ft. from

her house. She has denied the suggestion that there was

no electricity in their house on that day and the streetlight

was not switched on on that day. She has deposed that

there was heavy rain on 28.6.2008 for about four hours.

She denied the suggestion that she has not seen the

incident.
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In the cross-examination by learned counsel for

accused No.4 she has deposed that she was unable to

guess as to what had happened by seeing her husband;

police came to the spot at 1.30 a.m. and they were in the

spot up to 3.30 a.m.

In the cross-examination by learned counsel for

accused nos.6 and 7 she has deposed that they heard the

sound within ten minutes after Praveen called the

deceased; Praveen came to the spot after 5-7 minutes;

she came to know about the names of assailants only when

Praveen called their names; she has denied the suggestion

that light rays will not fall on the place of incident and light

rays first fall on the coconut tree.

11. P.W.9 Srinivas who is the another brother of the

deceased has deposed in his evidence in the examination-

in-chief that on 27.6.2008 there was a birthday party of

Kumar in the house of P.W.1 and all the relatives had been

there to attend the same; at about 11.40 p.m. C.W.6

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Praveen called Chandrashekar stating that someone is

calling him outside; Chandrashekar went out to the call

given by Praveen; Praveen left the place and within a

fraction of two minutes, they heard a sound; himself,

P.W.1 Venkatesh, and his elder sister and Mangalarani the

wife of deceased came out from the house by hearing the

sound; they saw six persons attacking the deceased at a

distance of 50 ft. from the house of P.W.1; there was

mercury street light; all the accused persons were

attacking the deceased with long choppers, chopper and

stones; accused persons threw stones on the deceased.

But he cannot say specifically who threw the stones on the

deceased. They informed the police immediately over

phone. Police came to the spot and after verifying the spot

shifted the body to the hospital. He does not know the

reason of killing his brother.

In the cross-examination by learned counsel for

accused Nos.1 and 2, he has deposed that when the

deceased moved about 50 ft. near the street light five

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persons attacked him; by hearing the sound himself and

other family members came out from the house; P.W.1

gave information to the police through phone in 5-10

minutes of the incident; he does not know whether P.W.1

gave information to the police through landline or mobile;

there were about five assailants present; they have not

tried to inform the police immediately as they were anxious

to save the life of deceased. He denied the suggestion that

there was no streetlight at the time of incident and further

suggestion that his brother Chandrashekar had developed

enemies in the locality.

In the cross-examination by learned counsel for

accused No.4 he has deposed that he saw the assailants

for the first time; he cannot say the physical features of

the assailants as he was upset by seeing the assault on his

brother; Byatarayanapura police came to the spot after 15

minutes; Praveen informed the details of assailants to the

police; he came to know about the assailants only when

Praveen told him; the incident took place at a distance of

 25

20 feet from Imax streetlight; body was shifted at 2.30

a.m. Praveen was present till the deadbody was shifted

and Police took Praveen to the police station. P.W.1

Venkatesh went to police station along with Praveen.

12. P.W.13 S.Manjunath who is also the relative of

the deceased has deposed in his evidence in the

examination-in-chief that about 11.45 p.m. C.W.6 Praveen

came and called the deceased Chandrashekar and

Chandrashekar went out from the house; after ten

minutes they heard the sound of assault; himself, P.W.9

Srinivas, Mangalarani the wife of the deceased and P.W.1

Venkatesh came out from the house by hearing the sound

of assault; after five minutes he came out from the house

and saw three persons were assaulting Chandrashekar with

long at a distance of 15 ft.; accused Nos.1 and 2 assaulted

the deceased with long chopper; the remaining three

persons threw stones on the deceased; three persons left

the place in a motorbike; other three persons walked for a

 26

distance and went away in a motorbike; after 15 minutes

police came to the spot and conducted mahazar and

shifted the body at 2.00 a.m.. They saw the accused

assaulting the deceased through streetlight.

In the cross-examination by learned counsel for

accused Nos.1 and 2 he has deposed that they heard the

screaming sound from outside and C.W.1 Venkatesh and

his brother Srinivas went out. Later Mangalarani followed

Venkatesh and his brother. The deceased was surrounded

by six persons; he has seen all the six persons who

surrounded the deceased; accused Nos.1 to 3 assaulted

the deceased with long choppers 6-7 times; they gave

information to the police through phone after the incident;

Ten minutes after the incident P.W.1 Venkatesh lodged the

complaint to the police through his mobile; after 10

minutes police came to the spot and they were in the spot

up to 4.00 a.m.; Praveen was not present when incident

took place and he came to the spot after some time;

Accused Nos.1 to 3 left the spot in a TVS motorcycle;

 27

Accused Nos.4 to 6 ran away in a Kinetic Honda scooter;

There was Hymox light pole in the spot at a distance of 20

ft. from the house of Venkatesh; he denied the suggestion

that there was no Hymox light installed at the time of

incident.

In the cross-examination by learned counsel for

accused Nos.6 and 7 he has deposed that Praveen came to

the spot after one hour. He has not seen M.Os.1 to 3 in

the spot. M.O.4 to 6 were lying at a distance of 3-4 ft.

13. The oral evidence of these four witnesses shows

that the complainant as well as other three eyewitnesses

were not knowing the names of any of the accused and

they came to know the names of the accused only when

Praveen (C.W.6) told the names of the accused persons to

the above mentioned eye-witnesses, but the evidence of

P.W.18 B.S.Rajendra, Police Inspector of Byatarayanapura

Police Station, who said to have investigated the matter,

discloses that he called eye-witnesses namely C.Ws.1 to 3

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and 6 to the Police Station. C.W.6 is one Praveen; so

according to the investigating officer C.W.6-Praveen is also

an eye-witness (which is transpired in his investigation),

but the said C.W.6 was not examined before the Trial

Court. But the eye witnesses have deposed that, only

when Praveen came to the spot and told the names of the

assailants they came to know the names of the accused

persons. We have already referred above the evidence of

P.W.13 Manjunath wherein he has specifically stated that

Praveen was not present when the incident took place and

said Praveen came to the spot after sometime i.e., after

one hour. P.W.13 is also an eye-witness according to the

case of the prosecution and he came out of the house

along with other family members, when that is so, and as

per his evidence, as Praveen (C.W.6) was not present at

the spot and came to the spot only after one hour of the

incident, how can Praveen tell the names of the assailants

that the accused persons herein are the assailants.

Therefore, it is very difficult for the Court to accept the

 29

case of the evidence of P.Ws.1, 7, 9 and 13 that they came

to know the names of the assailants only when Praveen

came to the spot and told.

14. In Ex.P-1 complaint, the complainant Venkatesh

has mentioned that when he came out of the house after

hearing the screaming sound, he saw five (5) persons

surrounding his brother and out of five (5), two (2)

persons have assaulted his brother with long choppers on

the head, other two (2) threw the stones on the head of

the deceased and another one (1) surrounded the

deceased. But the oral evidence of P.W.1 Venkatesh is

again contrary to what he has stated in the complaint Ex.P-

1. In the examination-in-chief itself P.W.1 has deposed

that by seeing him two (2) persons ran away out of five

(5), and other three (3) persons started assaulting the

deceased with iron long choppers, stones and cement

bricks. Even in the cross-examination also, he has

deposed that out of five (5), two (2) persons ran away by
 30

seeing him; so this evidence of P.W.1 shows that after two

(2) persons ran away from the spot, the remaining three

(3) started to assault the deceased with long choppers, as

well as they threw the stones and bricks on the deceased.

This version of P.W.1 complainant is again contrary to the

contents of Ex.P-1 complaint. Evidence of P.W.9 Srinivas

and P.W.13 Manjunath shows that when they came out of

the house they saw six (6) assailants surrounding the

deceased Chandrashekar. Therefore, even looking to the

evidence of the said eye-witnesses, there is no consistency

even as to the number of assailants, as who surrounded

the deceased Chandrashekar. Some witnesses deposed

that the accused were five (5) in number and other two

witnesses have deposed that they were six (6) in number.

The oral evidence of the above mentioned eye-

witnesses shows that immediately after the incident they

gave the phone message to the Police of Batranyapura

Police Station within 5-10 minutes, and within 15 minutes

thereafter, police came to the spot. So the evidence of the

 31

eye-witnesses show that the incident took place at 11.45

p.m. on 27.06.2008, and around at about 12.00 midnight

or at 00.30 hours on 28.06.2008 Police were present at the

spot. The oral evidence of P.W.18 the Investigating Officer

is to the effect that on 28.06.2008 at about 1.30 a.m.

Venkatesh (C.W.1) came to the Police Station and gave the

oral statement and he reduced the same into writing as per

Ex.P-1 and registered the case in Crime No.280/2008, then

he submitted the FIR to the Court and to his superior

officers as per Ex.P-19 and thereafter he visited the spot

and conducted the spot mahazar as per Ex.P-2 between

2.30 a.m. to 4.30 a.m.

15. We have also perused Ex.P-2, the spot

mahazar, it is mentioned at the end that it was conducted

from 2.30 a.m. to 4.30 a.m. as deposed by P.W.18. The

FIR is at Ex.P-19, which was registered in the Police

Station at 1.30 a.m. on 28.06.2008. But perusing the oral

evidence of P.W.1 complainant, he has deposed on page

 32

No.12 of his deposition that he has signed the complaint

after it was being typed and it was about 3.30-4.00 a.m.

when he signed the compliant. Hence this is again

contrary to the case of the prosecution that P.W.1 lodged

the complaint at 1.30 a.m. and it was registered at 1.30

a.m. itself.

Not only that, complainant P.W.1 has also deposed

that he went to the Police Station after 2.30 a.m. and

Praveen Kumar had lodged the complaint before he went

to the Police Station. P.W.1 has further deposed that he

went to the Police Station only after conducting the

mahazar in the spot and after shifting of the dead body to

the hospital. If this is taken to be true as deposed by

P.W.1, then the Police came to the spot even before P.W.1

lodging the complaint and even before registering of the

FIR. Therefore, the evidence of complainant (P.W.1) and

the Investigating Officer (P.W.18), are again contradictory

with each other and there is no consistency in the evidence

of complainant and the Investigating Officer. These factors

 33

also raise reasonable doubt in the mind of the Court that

whether really the case was registered at 1.30 a.m. itself

on 28.06.2008 or it was registered only after 4.30 a.m. as

deposed by P.W.1.

P.W.1 has deposed that Praveen Kumar lodged the

complaint before he went to the Police Station, if it is so,

and as P.W.1 made such statement on oath before the

Court, then it is for the prosecution to show what

happened that complaint lodged by C.W.6 Praveen Kumar

and as to whether the names of the very accused herein

were mentioned in the said complaint or not. Considering

these materials placed on record by the prosecution, it is

not clear as to on whose information the Police came to the

spot and exactly at what time. Such factors are not

satisfactorily explained by the prosecution with acceptable

evidence.

Though P.W.1 claims that he was present at the spot

when the Police came to the spot and he was present at

the spot up to the completion of the spot mahazar, but the

 34

evidence of P.W.7 Mangala Rani, the wife of the deceased,

is again contrary to the evidence of P.W.1. P.W.7 has

deposed that when the Police came to the spot, herself and

all other members of their family were present at the spot

except P.W.1 Venkatesh; it was her case that immediately

after the incident Venkatesh went to the Police Station to

lodge the compliant. As we have already observed above

referring to the evidence of P.W.18, the investigating

officer, that his investigation transpires that C.W.6 Praveen

is also an eye-witness to the incident, but inspite of issuing

the process of Court number of times, the prosecution was

not able to examine the said Praveen before the Trial Court

though he is considered to be the material witness in the

case. The evidence of the above mentioned eye-witnesses

is also not consistent and cogent that out of the 5-6

accused who have assaulted the deceased with the long

choppers and who have assaulted with the stones and

bricks, hence, again there is a contradictory version of the

 35

said eye-witnesses regarding the assault said to have been

made by the assailants.

16. It is the case of the prosecution that at the spot,

nearby the house of P.W.1 Venkatesh at a distance of 20-

25 feet there was a electric pole with hymox light and in

the said light the witnesses have seen the incident. In this

regard, we have perused the spot mahazar (Ex.P-2),

wherein there is a mention about the electric pole and

Hymox street light to the said pole and it is also mentioned

that in the said light itself spot mahazar was conducted.

We have perused the evidence of P.W.3 S.C.Ramanjaneya,

Asst. Executive Engineer, BBMP Electrical Department, who

has deposed that on 01.08.2008 they received a

requisition letter Ex.P-7 from Police Inspector

Byatarayanapura Police Station to furnish information

regarding hymox street light in the II Main Road, 6th Cross

Junction of Bapuji Nagar. He verified the complaint

register maintained in their office and there was no

complaint lodged in respect of the said street light from

 36

25.06.2008 to 30.06.2008. He visited 6th Cross Junction of

Bapuji Nagar, II Main road, verified with the public about

the hymox light on the night of 27.06.2008 and public

have not complained about the said light and he wrote

letter to Investigating Officer as per Ex.P.8.

In the cross-examination by advocate for accused

Nos.1 and 2, he has denied the suggestion that he did not

went to the spot and verified the light. He has also denied

the suggestion that there was no illumination of light to the

place of incident. He has further denied the suggestion

that he prepared the report Ex.P-8 in his office without

visiting the spot.

It is true, the above mentioned eye-witnesses have

deposed that in the street light they have seen the

assailants. If it is accepted, and according to the eye-

witnesses, if it was clearly visible about the incident and

assailants in the said street light, then there could not be

any confusion in the mind of the eye-witnesses regarding

the exact number of the assailants, who were present at

 37

the spot surrounding the deceased and which assailant

assaulted the deceased with which weapon. In this regard,

we have already observed above in detail the oral evidence

of all the four eye-witnesses and there is no worth

believable material placed on record to accept the

testimony of the said witnesses. Therefore, only on the

basis of existence of the street light, it cannot be said that

the prosecution has established the case to the satisfaction

of this Court that P.Ws.1, 7, 9 and 13 are really the eye-

witnesses and they have witnessed the incident, unless

and until, it is established with acceptable evidence.

17. We have perused the medical evidence.

K.V.Satish, the doctor, who conducted the post mortem

examination over the dead body of the deceased

Chandrashekar, has been examined as P.W.2; looking to

his evidence, he has mentioned that totally there are 16

external injuries over the body of the deceased and all the

injuries are ante mortem in nature and has opined that the

cause of death was due to shock and hemorrhage as a

 38

result of multiple chop injuries sustained and he has issued

P.M. report as per Ex.P-3. He has also deposed that the

Police Inspector of Byatarayanapura Police Station also

sent requisition Ex.P-4 on 25.08.2008 along with six (6)

sealed articles duly sealed as forensic laboratory and he

examined those articles and gave his opinion as per Ex.P-5.

In the cross-examination of this witness, nothing has

been elicited so as to disbelieve his version.

Though the Trial Court has not framed the specific

point for consideration as to whether the death of deceased

Chandrashekar is homicidal or not, but perusing the oral

evidence of the doctor (P.W.2) and the reports of the

doctor i.e., Exs.P-3 and P-5, it is clear that the death of the

deceased Chandrashekar is the homicidal death.

18. The case of the prosecution is that accused

Nos.1 to 3 gave the voluntary statement as per Exs.P-21,

P-22 and P-23, respectively, and led the Police to the

place, which is an open area and from the bushes accused

 39

Nos.1 to 3 took out the long choppers and produced before

the Police and the Investigating Officer has seized the long

choppers, which were blood stained and they were sent to

FSL for examination and report, the FSL report is marked

as Ex.P-24. We have perused the seizure mahazar Ex.P-16

regarding the seizure of the long choppers said to be

seized at the instance of accused Nos.1 to 3. It is no doubt

true, in the said mahazar at page No.3, it is mentioned at

Sl.Nos.1 to 3 about the measurement and other details of

each of the three long choppers and there were blood

stains on the blade of the long choppers. We have also

perused the oral evidence of P.W.20 Malathi D, Incharge

Scientific Officer of FSL, who deposed in her evidence that

on 29.07.2008 Byatarayanapura Police sent 11 articles to

their laboratory for examination and report pertaining to

crime No.280/2008 the seals found on the articles tallied

with sample seal by the Investigating Officer, all the 11

articles opened in the laboratory and examined and she

has issued the certificate as per Ex.P-24.

 40

In the cross examination, P.W.20 denied the

suggestion that in the absence of blood, the group cannot

be determined on the stains found in the articles and

denied the further suggestion that the production of blood

is very necessary. She has not specifically mentioned on

which part, the blood stains found in article Nos.6 to 8.

We have also perused the document FSL Report

(Ex.P.24). The articles sent are at item Nos.1 to 11 as

mentioned in the said report. It is no doubt true that

looking to the result of the analysis, item Nos.1 and 2 to

11 are stained with blood. In the opinion column, it is

mentioned at Sl. No.1 that the presence of blood was

detected in article Nos.1, 3 to 11. At Sl. No.2, it is also

mentioned that the gel diffusion tests have indicated that

the origin of the blood stains in item Nos.1, 3 to 11 are of

human origin. At Sl. No.3, it is mentioned that the items

3, 4, 5, 9, 10 and 11 are stained with ‘AB’ blood group

determined by adopting absorption and elution. At Sl.

No.4, which is important for our discussion so far as item

 41

Nos.6 to 8 (long choppers) are concerned, It is mentioned

that the blood grouping of the blood stains in item Nos.1, 6

7 and 8 could not be determined as the results of the tests

were inconclusive. We will mention here itself that when

the prosecution fails to produce the evidence which is

creditworthy, in that case, burden on the prosecution to

establish with satisfactory material even about the blood

groupings on item Nos.6 to 8 i.e., long choppers.

In this connection, we have examined the oral

evidence of P.W.15 Anand, who deposed in his oral

evidence that he knows accused No.1 present before the

Court, but does not know accused Nos.2 and 3; he cannot

identify accused No.3 if shown to him. He has further

deposed that on 30.06.2008 Police brought accused No.1

and two others to Vinayaka Layout near vacant site

situated by the side of the apartment and Police called him

to the spot stating that accused No.1 and two others are

going to produce the weapons and asked him to act as

panch witness. He has further deposed that accused No.1

 42

and two others produced three iron long choppers before

the Police, Police have seized the said long choppers with

white cloth under the mahazar in his presence. Said

mahazar is marked as Ex.P-16 and his signature is P.16(a).

During his deposition he has identified three long choppers

M.Os.1 to 3.

In the cross-examination, he has deposed that

accused No.1, Ashok and Sunil took out M.Os.1 to 3 from

vacant site and produced before the Police. He has not

seen, who has picked up MOs.1 to 3. He has denied the

suggestion that he was not present in the spot on that day

and Police have not brought accused Nos.1 to 3 to the said

place and not seized M.Os.1 to 3 under the mahzar Ex.P-

16.

19. The FSL report (Ex.P-24) discloses that totally

11 articles were sent for examination and report and the

result of analysis shows that except item No.2 i.e., cement

concrete pieces all other items were stained with human

blood.
 43

It is also mentioned that item Nos.3, 4, 5, 9, 10 and

11 are stained with ‘AB’ group blood. The blood grouping

of the blood stains in items 1, 6, 7 and 8 (long choppers)

could not be determined as the results of the test were

inconclusive. This shows that the blood grouping of the

blood stains on the long choppers were not ascertained by

the FSL that they are also ‘AB’ group because of the

inconclusiveness of the test.

20. We have perused the evidence of other

witnesses i.e., P.Ws.4 and 5, who are the Police

Constables, who have participated in the investigation at

different levels. P.W.6 Thangappa is Electrical Worker, and

P.W.8 Sandeep; both of them turned hostile and not

supported the case of the prosecution. P.W.10 Nagendra

Prasad is the panch witness for Ex.P.11 for recovery of

motorcycle at the instance of accused No.3. P.W.11 is the

PSI, who deposed about the apprehension of accused

Nos.1 to 5 on 29.06.2008 and submitting his report as per

 44

Ex.P-12. He has also deposed that he apprehended

accused No.7 on 02.07.2008 and submitted his report as

per Ex.P-13. P.W.12 is the Head Constable, who deposed

about apprehending accused No.6 along with Kinetic Honda

vehicle and submission of his report as per Ex.P-14.

21. Regarding the oral evidence of P.Ws.1, 7, 9 and

13, we have already observed above that the evidence of

these witnesses is self-contradictory, inconsistent with

each other and is not cogent and worth believable. The

evidence of the eye-witnesses will not inspire confidence of

the Court that they have really witnessed the incident.

Since, the versions of the eye-witnesses is disbelieved by

the Court, the FSL report Ex.P-24 will not be of any help to

the prosecution case in establishing the charges leveled

against the accused persons as the blood groupings on

three long choppers were inconclusive.

It has come in the evidence of the family members of

deceased Chandrashekar, that deceased was doing the

 45

cable operating business and he had given cable

connection for about 500 people in the area of Bapuji

Nagar; he was in politics so also in the sports activities, he

was a member of Youth Congress and Rakshana Vedike, he

was also a president of Ayyappa swamy temple, he was

also a social worker and he was preparing to contest for

elections to post of Corporator from congress party. It has

also come on record that deceased Chandrashekar was

possessing a licenced gun and he used to carry the gun

wherever he used to go. Therefore, considering these

materials on record and as suggested by the defence

during the course of cross-examination that deceased was

having number of enemies, the possibility of such persons

having rivalry with the deceased causing his death also

cannot be completely ruled out.

Even the “motive” suggested by the prosecution

through the evidence of prosecution witnesses is also not

consistent. According to P.W.1 Venkatesh there was a

tussle between Chandrashekar and one Punith, and the

 46

deceased Chandrashekar asked Punith not to become

President of Kannada Flag Hoisting Committee and due to

that, said Punith (not an accused) went away saying that

he will look after deceased Chandrashekar; P.W.1

complainant has also deposed that he was present in the

spot when Punith warned his brother. But according to

P.W.2 Mangala Rani, she came to know later that accused

persons killed her husband in respect of Sandeep’s matter;

the other witnesses i.e., P.Ws.9 and 13 have deposed that

they don’t know the reason as to why accused committed

the murder of deceased Chandrashekar. Therefore, even

with regard to the motive also there is no consistency in

the case made out by the prosecution.

22. Considering the oral as well as documentary

evidence and in view of our above discussion, we are of the

clear view that the Trial Court has rightly came to the

conclusion that prosecution has not proved its case beyond

all reasonable doubt.

 47

We find that, the view taken by the Trial Court is one

of the possible views. We do not find any illegality in the

view taken by the Trial Court. The view taken by the Trial

Court after due appreciation of materials placed on record

cannot be said to be perverse or capricious. There are no

good grounds for this Court to interfere into the judgment

and order of acquittal passed by the Trial Court.

Accordingly, the appeal fails and it is hereby dismissed.

Sd/-
JUDGE

Sd/-
JUDGE

bkp/BSR