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2010 DIGILAW 938 (KAR)

State by Aldur Police v. H. M. Anand

2010-08-31

S.N.SATYANARAYANA, V.G.SABHAHIT

body2010
JUDGMENT This appeal is filed by the State being aggrieved by the judgment of acquittal passed by the Principal District and Sessions Judge, Chickmagalur in S.C. No. 29 of 1981, dated 25-11-2000 wherein the accused 1 to 4 therein have been acquitted for having committed the offence punishable under Sections 302, 307, 324 read with Section 34 of the Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition Act, 1961. 2. The essential facts of the case leading upto this appeal with reference to rank of the parties before the Sessions Court, are as follows.— It is the case of the prosecution that H.M. Somegowda-P.W. 1 has been residing in his house at Hallihithalu Village, Chickmagalur Taluk and H.K. Jayamma-P.W. 2 is his wife. She is the daughter of Krishnegowda of Halekote Village. In the year 1987-88 his brother Ananda (accused 1) married the sister of his wife Shivamma (accused 2). It was agreed that the said amount of Rs. 20,000/- would be given to accused 1 and since it was not possible to pay dowry of Rs. 20,000/-, it was assured by Krishnegowda that the said amount of Rs. 20,000/- would be paid later. The three brothers-P.W. 1-the complainant, Anand (accused 1) and Basavaraj (accused 3) were living separately from the year 1989. Krishnegowda had come to the house of the complainant on 31-1-1991 and at about 9.00 p.m. on the said day, while the complainant-P.W. 1 was sitting in front of the heaps of coffee seeds which had been put in front of the house, Ananda (accused 1) and Shivamma (accused 2) came there are knocked the door and window of the house and asked him to pay the balance of Rs. 2,000/- and started abusing him and quarreling with him. At that time, his father-in-law Krishnegowda came out of the house and he wanted to go to answer call of nature and at that time, Ananda-accused 1 who was holding a katthi in his hand, assaulted Krishnegowda. The complainant ran towards the spot and tried to rescue his father-in-law and at that time, Shivamma-accused 2 assaulted him with club on his head and at that time, his brother-accused 3 and accused 4-wife of accused 3 came there and assaulted his wife Jayamma. Accused 3 assaulted with Seegakatthi and accused 4 assaulted P.W.2 with club. The complainant ran towards the spot and tried to rescue his father-in-law and at that time, Shivamma-accused 2 assaulted him with club on his head and at that time, his brother-accused 3 and accused 4-wife of accused 3 came there and assaulted his wife Jayamma. Accused 3 assaulted with Seegakatthi and accused 4 assaulted P.W.2 with club. When he went to rescue them, accused 3 and accused 4-wife of accused 3 came there and assaulted his wife Jayamma. Accused 3 assaulted with seegakatthi and accused 4 assaulted P.W.2 with club. When he went to rescue them, accused 3 and accused 1 assaulted him with sickle and he sustained injury to his right forefinger. Accused 4 and 2 assaulted him on his legs and at that time, Mallegowda-P.W. 6 on hearing the hues and cries, went to the spot and found Krishnegowda lying on the ground by the side of P.Ws. 1 and 2 were also lying and he noticed oozing of the blood from the head of Krishnegowda and he went to the house of one H.N. Maheshwho owns a jeep and brought the jeep and shifted them to the hospital and on the way to hospital, Krishnegowda died and Somegowda and Jayamma were admitted to the hospital in Chickmagalur. P.W. 12 who was working as medical officer in M.G. Hospital, Chickmagalur sent intimation to the Chickmagalur Town Police having found that Krishnegowda was dead and Somegowda and his wife Jayamma have been injured. The said intimation was received by PW. 24 who was working as Head Constable at Town Police, Chickmagalur. He received two intimations from P.W. 12 i.e., one intimation regarding receiving the dead body of one Krishnegowda aged about 70 years and another intimation regarding receiving two injured persons by name Jayamma and Somegowda and he carried both the intimations to the residence of Sub-Inspector-Rudrachar-P.W. 26 and delivered for further action. The said intimation are at Exs. P. 24 and P. 25. On receiving Exs. P. 24 and P. 25 at 3.10 a.m. P.W. 26 who was working as Sub-Inspector of Police (Crime) at Town Police Station, Chickmagalur proceeded to M.G. Hospital, Chickmagalur at about 3.30 a.m. and found injured person by name Somegowda and enquired him and reduced his oral statement into writing and thereafter he read over the contents to Somegowda and obtained his signature as per Ex. P. 1 (complaint). P. 1 (complaint). Thereafter, he deputed P.C. No. 545 Jagadish to guard the dead body and he returned to the police station at 4.30 a.m. and registered a case in Crime No. 33 of 1991 for the offences punishable under Sections 324, 302 read with Section 34 of IPC and Sections 4 and 5 of the Dowry Prohibition Act and prepared the FIR as per Ex. P. 23. Thereafter he forwarded the FIR to the Court of CJM, Chickmagalur through P.W. 23-Gangadhariah. As the incident had taken place within the jurisdiction of Aldur Police, he transferred the case file to Aldur Police Station through P.W. 17-Shivegowda. P.W. 28 who was working as Sub-Inspector of Police at Aldur Police Station received the said transferred compliant in Crime No. 33 of 1991 (Ex. P. 23) registered by Town Police Station, Chickmagalur and registered a case in Crime No. 11 of 1991 for the offence punishable under Sections 324, 307, 302 read with Section 34 of IPC and Sections 4 and 5 of the Dowry Prohibition Act and prepared the FIR (Ex. P. 22) and forwarded it to CJM, Chickmagalur. Thereafter he deputed Gopal-P.W. 25 and Basavaraj-C.W. 42 to the place of incident at Hallihithalu Village. The Circle Inspector of Police-P.W. 29 came to Aldur Police Station and took up further investigation. He deputed P.W. 28 to conduct the inquest mahazar on the dead body of Krishnegowda and to record the statement of injured persons and also to seize the bloodstained articles if any. On the same day, he left the police station at about 11.15 p.m. along withy P.C. 478 and H.C. 57 to the place of incident at Hallihithalu Village and went near the house of Somegowda. At the place incident, he found P.W. 25-Gopal and C.W. 42-basavaraju who were guarding the scene of incident. He deputed one of the constable to Chickmagalur to secure a photographer and he searched for the accused in their houses and secured P.W. 5-Chandrashekar, C.W. 9-Manjunatha and in their presence, he prepared a search mahazar-Ex. P. 8 between 11.45 to 12.00 p.m. After arrival of the photographer, four snaps of the scene of occurrence were taken and the four photos are at Ex. P. 30 and the negatives are at Ex. P. 30(a). He deputed Gopal-P.W. 25 and C.W. 42Basavaraju to trace and apprehend the accused persons. P. 8 between 11.45 to 12.00 p.m. After arrival of the photographer, four snaps of the scene of occurrence were taken and the four photos are at Ex. P. 30 and the negatives are at Ex. P. 30(a). He deputed Gopal-P.W. 25 and C.W. 42Basavaraju to trace and apprehend the accused persons. On the same day, he prepared the spot panchanama of the scene of offence between 12.45 to 1.15 p.m. in the presence of P.W. 4-Bommegowda, P.W. 7-Lakshmana Gowda and C.W. 3Gopamma. The spot mahazar is at Ex. P. 6. The seized Seegakatthi-M.O. 7, two bloodstained lungies, bangle pieces, a wooden club, a bloodstained mat and collected bloodstained mud and sample mud in two different containers. He recorded the statements of C.W. 3-Gopamma, C.W. 4-Murthy and C.W. 5-Ravi. P.W. 28 came to the police station and handed over the inquest Mahazar-Ex. P. 11, seizure mahazars Exs. P. 9, P. 10 and P. 29 along with the statement of the witnesses recorded with the report and also handed over the seized articles. He deputed P.W. 25-Gopal and C.W. 42Basavaraju to search and apprehend the accused and accordingly, Shivamma-accused 2 and Pushpa-accused 4 were produced before him at Hallihithalu and he arrested them and interrogated Shivamma-accused 2 volunteered to produce a club as per Ex. P. 35 and shown the place where she had concealed the club. Thereafter, he secured P.W. 4-Bommegowda, C.W. 17-Shivegowda as panch witnesses and accused 2Shivamma led them to towards a pathway at Hallihithalu Village and from the side of Kalli fence, she removed a club and produced. He seized the club under mahazar-Ex. P. 36. On the same day, he recorded the statements of the witnesses and produced accused 2 and 4 and obtained remand order. He received the wound certificates of the injured persons i.e., Somegowda and Jayamma as per Exs. P. 17 and P. 18 from P.W. 15. On 25-2-1991 he apprehended accused 1 and 3 and produced them before the Court and took them for interrogation. Basavaraj-accused 3 volunteered to produce Seegekatthi as per Ex. P. 38. He received the wound certificates of the injured persons i.e., Somegowda and Jayamma as per Exs. P. 17 and P. 18 from P.W. 15. On 25-2-1991 he apprehended accused 1 and 3 and produced them before the Court and took them for interrogation. Basavaraj-accused 3 volunteered to produce Seegekatthi as per Ex. P. 38. Thereafter, he went to Hallihithalu along with the accused and accused 3 led them towards coffee estate of accused 1 and from the side of a big rock which was covered with dried leaves he removed a seege katthi and produced and the same was seized under mahazar and it was also subjected to P.F. No. 24 of 1991 as per Ex. P. 39. He sent requisition to Medical Officer, M.G. Hospital to collect the blood samples of accused 2 and 3 for the purpose of chemical examination and thereafter he sent the seized articles to the Director, FSL and on 19-3-1991 he received the FSL report in respect of the blood of accused 1 and 2 (Ex. P. 40). He received the post-mortem report and opinion of the Medical officer at Exs. P. 19 and P. 20. He received the wound certificate of accused 1 and 2 as per Exs. P. 26 and P. 27. After investigation, he filed a charge-sheet against the accused of having committed the offences punishable under Sections 302, 307, 324 read with Section 34 of IPC and Section 4 of the Dowry Prohibition Act Thereafter the case has been committed in the Sessions Court for trial. All the accused pleaded not guilty and claimed to be tried. 3. The prosecution examined P.Ws. 1 to 29 and got marked the documents-Exs. P. 1 to P. 48 of M.Os. 1 to 29 were produced. Statements of the accused under Section 313 of the Criminal Procedure Code, 1973 were recorded. It is the defence of the accused that on the date of incident accused 1 had also stored coffee seeds in front of the house of P.W. 1 as he had no agricultural coolies in his house. He was sitting on the coffee kana in the Court yard of the house of P.W 1 and while Ananda was so sitting. P.W. 1Somegowda came out of the house holding sickle and abused Ananda-accused 1 as to why he has demanded the amount immediately and he came to assault accused 1. He was sitting on the coffee kana in the Court yard of the house of P.W 1 and while Ananda was so sitting. P.W. 1Somegowda came out of the house holding sickle and abused Ananda-accused 1 as to why he has demanded the amount immediately and he came to assault accused 1. At that time, Krishnegowda himself intervened and separated his son-in-laws P.W. 1 and accused 1. It is the further case of the accused that when Krishnegowda intervened, P.W. 2-wife of P.W. 1 came with a sickle and her son Ravi-C.W. 4 and Murthy-P.W. 3 came with clubs, mistaking P.W. 1 as Ananda assaulted them since it was dark at the time of incident. P.W.1 could not identify as to who assaulted whom and at that time having heard noise of galata, accused 3 and 4 came there and that electricity supply was restored after sometime and thereafter neighbours assembled and found that Krishnegowda had sustained injuries and further, accused 1 and 3 and also P.Ws. 1 and 2 had also sustained injuries. The accused have examined the mother of accused 2 and P.W. 2 as D.W. 1 the brother of D.W. 1 as D.W. 2 and further, accused 2 got herself examined as D.W. 3 and got marked the documents-Exs. D. 1 to D. 12. 4. The learned Sessions Judge, after considering the contentions of the parties, has framed the points for determination as under: (1) Whether prosecution proves beyond all reasonable doubt that accused 1 was making demand for dowry from Krishnegowda since the date of his marriage and even on 30-1-1991 in the night at about 9.00 p.m. in front of the house of P.W. 1 and thereby committed an offence under Section 4 of the Dowry Prohibition Act? (2) Whether the prosecution further proves that on 30-1-1991 at about 9.00 p.m. all the accused having common intention to commit the murder of deceased Krishnegowda as he had not paid Rs. 2,000/- towards the balance of dowry amount and further, had the intention to commit murder of P.Ws. 1 and 2 and they have in fact committed the murder of Krishnegowda and caused hurt to P.Ws. 1 and 2? (3) What order? 5. 2,000/- towards the balance of dowry amount and further, had the intention to commit murder of P.Ws. 1 and 2 and they have in fact committed the murder of Krishnegowda and caused hurt to P.Ws. 1 and 2? (3) What order? 5. The learned Sessions Judge, after careful consideration of the oral and documentary evidence on record, by judgment dated 25-11-2000 answered the above points in the negative and acquitted the accused of the offences punishable under Sections 302, 307, 324 read with Section 34 of IPC and Section 4 of the Dowry Prohibition Act. Feeling aggrieved by the said judgment, this appeal is filed by the State. 6. We have heard the learned State Public Prosecute for the appellant and learned Counsel for the respondents and reply arguments by the learned State Public prosecutor. 7. The learned State Public Prosecutor submitted that the prosecution relied upon motive as there was dispute between the parties and the evidence of the eye-witnesses examined before the Trial Court with reference to the evidence of P.Ws. 1 to 3 and recovery of weapons on the basis of voluntary statement given by the accused. He submitted that the learned Sessions Judge has not properly appreciated the evidence adduced by the prosecution. The learned Sessions Judge by relying upon the statements of accused 1 and 3, was not justified in holding that the prosecution has failed to bring home the guilt of the accused. Therefore, he submitted the order of acquittal calls for interference in this appeal. 8. The learned Counsel for the respondents submitted that though the prosecution relied upon the evidence of P.Ws. 3, 10, 11 and 16, they have not supported the case of the prosecution. The wife of Krishnegowda (deceased) has been examined as D.W. 1 and has deposed that there was no demand of dowry and there was no question of payment of balance of Rs. 2,000/-as dowry to accused 1. He further submitted that the evidence of eye-witnesses is inconsistent, not truthful and reliable as rightly held by the learned Sessions Judge. 9. We have given careful consideration to the contentions of the learned State Public Prosecutor and learned Counsel for respondents. 10. Having regard to the contentions urged, the points that would arise for our determination in this appeal are as under. 9. We have given careful consideration to the contentions of the learned State Public Prosecutor and learned Counsel for respondents. 10. Having regard to the contentions urged, the points that would arise for our determination in this appeal are as under. (1) Whether the finding of the Trial Court that the prosecution has failed to prove beyond reasonable doubt that accused-respondents herein have committed the offence punishable under Section 4 of the Dowry Prohibition Act is justified or calls for interference? (2) Whether finding of the Trial Court that the prosecution has failed to bring home the guilt of the accused for the offences punishable under Section 302 of IPC in furtherance of the common intention is justified or calls for interference? (3) Whether the finding of the Trial Court that the prosecution has failed to prove that the accused in furtherance of common intention, assaulted and attempted to cause murder of Somegowda-P.W. 1 and thereby committed the offence punishable under Section 307 of IPC and that accused 1 and 4 assaulted and caused injury to P.W. 1 and that accused 3 and 4 assaulted and caused injury to P.W. 2 and thereby committed offence punishable under Section 324 of IPC is justified or calls for interference? (4) Whether the judgment of acquittal passed by the Trial Court calls for interference in this appeal? We answer the above points as under: (1) to (3) finding of the Trial Court is justified and does not call for interference in this appeal and (4) the judgment of the Trial Court does not call for interference for the following reasons: Re: Point No. (1): 11. It is the case of the prosecution that Ananda-accused 1 is the son-in-law of Krishnegowda-the deceased and he is the brother of P.W. 1-complainant. It is the case of the prosecution that he had married accused 2 who is the sister-in-law of P.W. 1 and at the time of marriage, Krishnegowda had agreed to give Rs. 20,000/- as dowry, however, Rs. 18,000/- was paid but the balance of Rs. 2,000/-has not been paid and therefore accused 1 demanded dowry from his father-in-law. The prosecution has relied upon the evidence of P.Ws. 1 and 2 and the accused are relying upon the evidence of D.Ws. 1 to 3. 12. P.W. 1-Somegowda is the border of accused 1-Ananda. 20,000/- as dowry, however, Rs. 18,000/- was paid but the balance of Rs. 2,000/-has not been paid and therefore accused 1 demanded dowry from his father-in-law. The prosecution has relied upon the evidence of P.Ws. 1 and 2 and the accused are relying upon the evidence of D.Ws. 1 to 3. 12. P.W. 1-Somegowda is the border of accused 1-Ananda. He has deposed in his examination-in-chief about the marriage of Ananda and the fact that Shivamma-accused 2 was married to the accused 1 in the year 1989 at the time of marriage, Krishnegowda had agreed to give the dowry of Rs.20,000/- and had paid Rs. 18,000/- and agreed to pay the balance of Rs.2,000/- after some time. 13. P.W. 2 who is the wife of P.W 1 has deposed in her examination-in-chief that her sister Shivamma-accused 2 was married to Ananda-accused 1 in the year 1990 and her father Krishnegowda had agreed to give Rs. 20,000/- as dowry to Ananda-accused 1 and Rs. 18,000/- was given to him and balance of Rs. 2,000/- was not paid and payment was postponed. D.W. 1 who is the wife of Krishnegowda (deceased) has deposed in her examination-in-chief that Ananda-accused 1 had not demanded any dowry and her daughter Shivamma-accused 2 was her last daughter who is married to accused 1-Ananda and accused 1-Ananda is the younger brother of Somegowda-P.W. 1; Ananda did not demand dowry of Rs. 20,000/-for the marriage of Shivamma and her husband did not give any dowry to Ananda. Nothing has been elicited in her cross-examination to disbelieve her evidence. Similarly, D.W. 2 who is the brother of D.W. 1 has also stated in her evidence that her husband did not demand any dowry amount. She has stated in her evidence did not demand any dowry amount. She has stated in her evidence that it is not true to say that her husband did not demand any dowry amount. She has stated in her evidence that it is not true to say that her husband demanded Rs.20,000/- and Rs. 18,000/- was paid and balance of Rs. 2,000/-was not paid. 14. She has stated in her evidence that it is not true to say that her husband did not demand any dowry amount. She has stated in her evidence that it is not true to say that her husband demanded Rs.20,000/- and Rs. 18,000/- was paid and balance of Rs. 2,000/-was not paid. 14. Having regard to the above said material on record, it is clear that accused 2 herself (D.W. 3), her mother-wife of Krishnegowda (D.W. 1) and another of D.W. 1 (D.W. 2) have clearly stated in their evidence that accused 1-Ananda did not demand any dowry amount from Krishnegowda and therefore payment of dowry amount by Krishnegowda does not arise. It is clear from the material on record that defence of the accused that accused 1 had not demanded any dowry amount from his father-in-law Krishnegowda has been clearly proved by the evidence of D.Ws. 1 to 3 and prosecution is unable to prove beyond reasonable doubt that accused 1-Ananda had demanded dowry of Rs.20,000/- and Rs. 18,000/- was paid as a dowry and Rs. 2000/- was yet to be paid. Thus, we hold that finding of the Trial Court that the prosecution has failed to prove that accused 1 committed the offence punishable under Sections 4 and 5 of the Dowry Prohibition Act is justified and does not call for interference in this appeal. Re: Point Nos. (2), (3) and (4): 15. These points are considered together since they are interconnected and to avoid repetition. It is the case of the prosecution that accused 1 to 4 in furtherance of the common intention, assaulted and caused the murder of Krishnegowda and thereby committed the offence punishable under Section 302 of IPC and assaulted and attempted to cause murder of Somegowda-P.W. 1 and accused 1 and 2 caused injuries to P.W. 2 and thereby committed the offence punishable under Sections 307 and 324 of IPC read with Section 34 of IPC. The prosecution is relying upon the evidence of P.Ws. 1 to 29 and Exs. P. 1 to P. 48 to bring home the guilt of the accused and it has also got marked M.Os. 1 to 29. On behalf of the accused. D.Ws. 1 to 3 have been examined. The learned State Public Prosecutor has taken us through the evidence adduced by the prosecution and the accused and contents of the documents got marked. 16. 1 to 29. On behalf of the accused. D.Ws. 1 to 3 have been examined. The learned State Public Prosecutor has taken us through the evidence adduced by the prosecution and the accused and contents of the documents got marked. 16. It is clear from the oral evidence adduced by the prosecution that P.W. 4 is a pancha for the seizure of M.O 1 from the spot-recovery made on the basis of voluntary statement given by accused 2 as per Ex. P. 7. P.W. 5 is a pancha for the mahazar Ex. P. 8. P.W. 6 has been examined to prove that he went to the spot immediately after the incident and found that Krishnegowda. Somegowda and Jayamma were injured and went to the house of P.W. 18 who is the owner of the jeep and brought the jeep and shifted them to the hospital. P.W. 7 is the son-in-law of Krishnegowda and he has been examined to prove the contents of inquest mahazar-Ex. P. 11. P.W. 8 is also a pancha to mahazar Ex. P. 11 but has not supported the case of the prosecution and has turned hostile and nothing is elicited in his cross-examination to support the case of the eyewitnesses to the incident. P.W. 11 is also an eye-witness who went to the spot immediately after the incident, but has not supported the case of the prosecution. P.W. 12 is the Medical Officer. He has deposed in his examination-in-chief about the injuries found on Jayamma and Somegowda and has issued the wound certificates as per Exs. P. 17 and P. 18 and sent intimation to Town Police Station, Chickmagalur. P.W. 13 is the Medical Officer who has drawn blood sample of accused 1 and 2 to send for FSL P.W. 14 is a witness for recovery made on the basis of voluntary statement of accused 2 and has not supported the case of the prosecution and has turned hostile. P.W. 15 is the Medical Officer who has conducted post-mortem examination on the dead body of Krishnegowda and issued post-mortem report as per Ex. P. 19 and opined that death was due to injuries to the vital organs like Brain and fracture of skull and furnished his opinion as per Ex. P. 20. P.W. 17 is a Pancha for the Mahazar-Ex. P. 21. He has not supported the case of the prosecution. P. 19 and opined that death was due to injuries to the vital organs like Brain and fracture of skull and furnished his opinion as per Ex. P. 20. P.W. 17 is a Pancha for the Mahazar-Ex. P. 21. He has not supported the case of the prosecution. P.W. 18 is the owner of the jeep who is already referred. P,W. 19 is a Police Constable who kept watch over the dead body of Krishnegowda and produced the ornaments found on the dead body of the deceased M.Os. 10, 11, 16 to 22 before the Investigating Officer. P.W. 20 is the Police Constable who took the weapons in the case for opinion of the Medical Officer-P.W. 12. P. W. 21 is the Police Constable who handed over the case file to Sub-Inspector of Aldur Police Station. The evidence of P.Ws. 22 to 29 are also referred to while narrating the facts of the case. 17. It is clear from the perusal of the evidence adduced by the prosecution that it is the case of the prosecution that Krishnegowda has suffered homicidal death and he was murdered by accused 1 to 4 in furtherance of the common intention and that accused 1 to 4 attempted to cause murder of P.W.1-Somegowda and accused 1 and 3 assaulted P.W. 1-Somegowda and accused 2 and 4 assaulted P.W. 2-Jayamma in furtherance of the common intention and committed an offence punishable under Section 324 of IPC. The fact that Krishnegowda suffered homicidal death is clearly proved by the evidence of P.W. 15 who has conducted post-mortem examination over the dead body of Krishnegowda and has issued the post-mortem examination report as per Ex. P 19 and has opined that injures found on the deceased were sufficient in the ordinary course of nature to cause the death of a person and the such injuries could be caused with a weapon like M.O. 7 and cause of death was due to internal injuries to the vital organs like Brain and fracture of a skull. Nothing has been elicited in the cross-examination to disbelieve the evidence that Krishnegowda sustained external and internal injuries to vital organs like brain and fracture of skull and injuries found on the deceased were sufficient in the ordinary course of nature to cause the death of a person. Further, inquest which has been prepared by P.W. 29 as per Ex. Nothing has been elicited in the cross-examination to disbelieve the evidence that Krishnegowda sustained external and internal injuries to vital organs like brain and fracture of skull and injuries found on the deceased were sufficient in the ordinary course of nature to cause the death of a person. Further, inquest which has been prepared by P.W. 29 as per Ex. P. 11 would also show that injuries were found on the dead body of Krishnegowda. Further, the prosecution has proved that P.Ws. 1 and 2 also suffered injuries. P.W. 12-Medical Officer has clearly spoken to about the injuries sustained by P.Ws. 1 and 2 and P. 18 and nothing has been elicited in the cross-examination of P.W. 12 to disbelieve the fact that P.Ws. 1 and 2 sustained injuries as narrated in the wound certificates. Therefore, the prosecution has been able to prove beyond reasonable doubt that Krishnegowda suffered homicidal death and P.Ws. 1 and 2 suffered injuries. 18. Further, the prosecution in order to bring home the guilt of the accused that it was the accused who had committed murder of Krishnegowda and attempted to cause of P.W. 1-Somegowda and caused injury to P.W. 2, the prosecution has relied upon the evidence of eye-witnesses-P.Ws. 1 to 3 in this case. 19. P.W. 1 is the complainant in this case. He has reiterated the averments made in the complaint. He has deposed that on the date of incident, at about 8.30 p.m. accused 1Ananda, his wife Shivamma came near hind side of the house and knocked the doors of the window and asked Krishnegowda who has inside the house to pay the balance amount of Rs. 2,000/- and Krishnegowda informed that if the amount is to be paid, the same would be paid and that he should not make galata but Ananda and Shivamma making galata, went to their house. After all of them had taken food in the night, he went near the ‘angala’ in his house wherein coffee seeds had been heaped, at that time, Krishnegowda came out of the house to answer call of nature and when he was going near the heap of coffee seeds, accused 1 came from his hind side and assaulted on his head with the sickle and Krishnegowda fell on the ground. He was at a distance of 8 to 10 feet from the spot and when he tried to apprehend accused 1, immediately, his wife Jayamma came from the house and at that time, his brother Basavaraj, his wife Pushpa and Shivamma-Wife of Ananda came near the place where coffee seeds had been heaped and Shivamma and Pushpa-accused 2 and assaulted Jayamma on her legs and hands, accused 3-Basavaraj assaulted Jayamma on her head and when he intervened to save his wife, he was also assaulted by Ananda with sickle on the right shoulder and on his left hand little finger. When he started shouting, accused ran away. Accused 1 threw the sickle therein and Basavaraju took the sickle and both ran away. Shivamma-accused 2 took the club and accused 4-Pushpa threw the club and ran away from the spot and thereafter, he narrated about the shifting himself and his wife to the hospital and police coming to the hospital and recording his statement as per Ex. P. 1. He has identified the weapon used by Basavaraju-Seegakatti-M.O. 1. He has also identified his cloths at M.Os. 8 and 9. He has also identified the clubs used by accused 2 and 4-M.Os. 8 and 9. He has also stated that he has witnessed the incident in the electric light. He witnessed the incident as he had put 100 candle electric bulb in front of the house where coffee seeds had been heaped. 20. P.W. 2-Jayamma is the wife of Somegowda-P.W. 1. She has stated about relationship among the parties. She has further deposed that on 30-1-1991 Krishnegowda-her father had come to her house at 12.00 noon from his village. At about 6.00 p.m. accused 1-Ananda, accused 2-Shivamma along with Malleshagowda, Huddegowda and Manjeshagowda came and demanded Rs. 2,000/- which was due to be paid and her husband assured that he would pay the amount after selling the coffee seeds and they pacified accused 1-Anand and sent him to his home. At about 8.30 p.m. on the same day, accused 1 and 2 came near the window in the hind side of the house and abused Krishnegowda and asked him to pay the balance of dowry amount. She was frightened. After some time, her husband Somegowda-P.W. 1 was sitting in the hall of the house wherein heaps of coffee seeds had been kept and she was sitting in hajara of the house. She was frightened. After some time, her husband Somegowda-P.W. 1 was sitting in the hall of the house wherein heaps of coffee seeds had been kept and she was sitting in hajara of the house. At that time, her son Ravi, a person who wqs doing domestic work – Murthy and her sister-in-law-Gopamma were also present. Her father came out of the house to answer call of nature and at that time, accused 1 came from hind side of her father and assaulted him on his head with sickle and her father collapsed on account of having sustained bleeding injuries. Immediately she went near her father and at that time, Basavaraju-accused 3 came from behind and assaulted on her head with sickle and she also sustained bleeding injuries and her sister Shivamma and Pushpa-accused 2 and 4 assaulted her with clubs and when her husband came to rescue her, accused 1-Ananda and accused 3-Basavaraju assaulted him with sickle and he sustained severe injuries on the right side of his shoulder and nerve in the right hand was cut. She has further deposed that they were shifted to the hospital and P.W. 1 lodged the complaint-Ex. P. 1. She has identified the weapons used by the accused for commissioning of the offence and she has identified the articles found on the dead body of her father. 21. P.W. 3-Murthy who was administered oath on 22-8-1995 as he was aged 17 years and was able to understand the importance of oath, has deposed in the examination-in-chief that he has been working in the house of Somegowda-P.W. 1 since eight years and he is doing agricultural work for P.W. 1 since eight years and he is doing agricultural work for P.W. 1 and he has further deposed that on the date of incident, himself, Somegowda-P.W. 1, Jayamma-P.W. 2, Ravi (not examined), Gopamma-C.W. 3 (not examined) were in the house. At about 6.00 p.m. accused 1-Ananda come there along with Malleshagowda, Uddegowda and Manjegowda and asked P.W. 1 to give Rs. 2,000/- due to be paid to him and Somegowda-P.W. 1 stated that he would return the same after selling coffee seeds. At about 6.00 p.m. accused 1-Ananda come there along with Malleshagowda, Uddegowda and Manjegowda and asked P.W. 1 to give Rs. 2,000/- due to be paid to him and Somegowda-P.W. 1 stated that he would return the same after selling coffee seeds. The persons who had come with Ananda Pacified him and sent him to his house and on the same day, at about 8.30 p.m. Ananda and his wife Shivamma-accused 1 and 2 came near the window the kitchen of Jayamma and made noise and abused Krishnegowda and asked him to give Rs. 2,000/- which was due to be paid towards dowry and Krishnegowda stated that he would give the amount within three to four days and thereafter Ananda and Shivamma went to their house. Thereafter, Krishnegowda went out of the house to answer call of nature and at that time, accused 1-Ananda came from the hind side holding sickle and assaulted on the right side of his head and Krishnegowda sustained bleeding injuries and collapsed at the spot. When Krishnegowda was assaulted, he was standing in the Jagali of his house and at that time, Jayamma-P.W. 2, Gopamma-C.W. 3 and Ravi, son of Krishnegowda were also standing near the Jagali. At that time, P.W. 1-Somegowda was in the kana and when Krishnegowda shouted having, sustained injuries, Somegowda-P.W. 1 and Jayamma-P.W. 2 went near Krishnegowda and at that time, accused 4 and 3 assaulted Jayamma with clubs on her legs and Basavaraju-accused 3 assaulted bleeding injuries. At that time, when Somegowda-P.W. 1 came to rescue his wife-Jayamma, Ananda-accused 1 assaulted Somegowda-P.W. 1 with sickle on the right side of his shoulder and on the head and he sustained bleeding injuries. Shivammaaccused 2 assaulted Somegowda with a club, Basavaraju-accused 3 assaulted Somegowda with a sickle and Pushpa-accused 4 assaulted Somegowda with a club. As a result of the injuries, Somegowda and Jaymma also fell on the spot and when they started shouting, Malleshagowda, Uddegowda, manjegowda and others came there are thereafter on seeing the villagers, accused 1 to 4 ran towards their house and threw the sickle there itself. Shivamma took the cub with her and Basavaraju took the sickle which he had used for commission of the offence with him and Pushpa threw the club there itself. Thereafter, injured were shifted to the hospital and he has identified the sickles and clubs-M.Os. 1 and 7, M.Os. 8 and 9. Shivamma took the cub with her and Basavaraju took the sickle which he had used for commission of the offence with him and Pushpa threw the club there itself. Thereafter, injured were shifted to the hospital and he has identified the sickles and clubs-M.Os. 1 and 7, M.Os. 8 and 9. 22. The above said evidence of P.Ws. 1 to 3 has to be considered to find out as to whether the evidence of these three eye-witnesses-P.Ws. 1 to 3 is truthful, trustworthy, reliable and brings home the guilt of the accused. 23. It may be noted at the outset that P.W. 1 is the brother of Ananda-accused 1 and Basavaraju-accused 3 and accused 2 is the wife of accused 1 and accused 4 is the wife of accused 3 and therefore, they are all inter-related. P.Ws. 1 and 2 are closely related as P.W. 2 is the wife of P.W. 1 and accused are related to P.Ws. 1 and 2. It may also be noted that P.W. 3 was working as agricultural coolie in the house of P.W. 1 for examination-in-chief and therefore, evidence of P.Ws. 1 and 2 cannot be rejected only on the ground that they are related to the deceased Krishnegowda and injured P.Ws. 1 and 2 and the evidence of P.W. 3 cannot also be rejected on the ground that he is working as agricultural coolie in the house of P.W. 1 if their evidence is otherwise found to be truthful and reliable. However, their evidence is to be scrutinized carefully to find out whether the evidence is truthful reliable to bring home the guilt of the accused. 24. It is elicited in the cross-examination of P.W. 1 that his father died about 30 years ago and his mother died about 18 years ago and after the death of his mother, all the properties were in the name of joint family and even now all the properties were in the name of joint family and even now all the properties are in his name. It is further elicited that Ex. P. 3 is a palupatti (memorandum of partition dated 2-10-1979) and the said palupatti was prepared as Fragmentation Act had come into force and after partition, Basavaraju was living separately as he was married and accused 1 was not married and therefore he was staying with him and members of the family. It is further elicited that Ex. P. 3 is a palupatti (memorandum of partition dated 2-10-1979) and the said palupatti was prepared as Fragmentation Act had come into force and after partition, Basavaraju was living separately as he was married and accused 1 was not married and therefore he was staying with him and members of the family. He has made a suggestion that when Ananda was staying with him, he was looking after the property that had fallen to his share. It is further elicited in the cross-examination that the document was written on the stamp paper since palupatti was written on a white paper. Till 27-5-1990 Ananda was staying with him and was having food in his house and marriage of Ananda was performed on 23-6-1988 and even after marriage, accused 1-Ananda was living with his wife who is the sister of Jayamma-wife of P.W. 1 in the house of P.W. 1. He has denied a suggestion that though Ananda was not willing to marry Shivamma, P.W. 1 and his wife-Jayamma forcibly performed his marriage with Shivamma who is the sister of Jayamma. It is further elicited in the cross-examination that there was settlement regarding amount which was due to be paid by him to Ananda by the Panchayatdars as per the panchayat letter dated 15-12-1990. The dispute was regarding the amount of Rs. 76,000/-due to be paid by him to Ananda and he was due to pay the amount of Rs. 20,000/- as he had already given Rs. 40,000/- by way of cash and Rs. 40,000/- by way of cheque and accordingly, settlement was prepared as per Ex. P. 5 and as per the said settlement, it was consented by him that he would pay a sum of Rs. 20,000/- on or before 31-1-1991 and balance amount has to be paid before March 1991, but he has not paid the amount to Ananda as per the settlement made in the panchayat. Shivamma-wife of accused 1 got issued legal notice to him regarding the amount to be paid to her husband through the Advocate and accused 3-Basavaraju had complained to the Managing Director of the Coffee Board asking them not to give any loan to him as he had not given the land – 5 acres 3 guntas to Basavaraju-accused 3. He has denied a suggestion because he had to pay Rs. He has denied a suggestion because he had to pay Rs. 20,000/- to accused 1 and he had to give land measuring 5 acres 3 guntas to accused 3, there was enmity between him and accused 1 and 3 who are his brothers. It is further elicited that Ananda even after he started living separately along with his wife and child, was drying the coffee seeds in the Courtyard of the witness-P.W. 1 and Murthy-P.W. 3 was working in the house. He has denied the suggestion that he was not in the coffee kana house. He has denied the suggestion that he was not in the coffee kana at about 9.00 p.m. It is further elicited in the cross-examination that he has stated before the police that at that time, Krishnegowda stated that if at all amount is to be paid, he would pay and he should not make galata during the night. He has denied the suggestion that it is not stated in his complaint that Ananda assaulted Krishnegowda was returning from coffee kana. He has also denied a suggestion that he has not stated in his statement before the police that accused 2-Shivamma and accused 4-Pushpa assaulted Jayamma-his wife with clubs on her legs, hands and he was in patient for 20 days and his wife was inpatient for 20 days. He has also denied the suggestion that he has not stated before the police that himself and his wife were inpatient for 20 days. It is further elicited in the cross-examination that Ex. P 5 is the document regarding settlement of the property regarding payment of the amount. It is further elicited in the cross-examination that while himself, his wife and Krishnegowda were shifted to the hospital at Chickmagalur and had covered a distance about 2 to 3 kms. In a jeep Krishnegowda succumbed to the injuries and died and Malleshagowda, Uddegowda, Manjegowda who were accompanying them were asked to inform the fact to Aldur Police Station and Malleshagowda (P.W. 6) got down from the jeep and went to the police station which is at a distance of about 5 kms. He has also denied a suggestion that there was no supply of electricity and that he had not witnessed the incident. It is also elicited in the cross-examination that his statement was recorded as per Ex. He has also denied a suggestion that there was no supply of electricity and that he had not witnessed the incident. It is also elicited in the cross-examination that his statement was recorded as per Ex. P. 1 on 30-1-1991 and he has denied the suggestion that his statement was recorded at 3.30 a.m. on 30-1-1991. He has also denied the suggestion per Ex. P. 1. He has also denied the defence of the accused as above mentioned. It is also elicited in the cross-examination that he does not know the injuries on accused 1 and 3 and he has not stated in the complaint about the said fact. He has also denied the suggestion that to save himself, his son and his servant a false case has been foisted against the accused. 25. It is elicited in the cross-examination of P.W. 2 who is the wife of P.W 1 that there was a partition between her husband (P.W. 1) and his brothers-accused 1 and 3 in the year 1979 and after partition, accused 3 was staying separately and accused 1 was staying in their house. At the her husband P.W. 1 looked after accused 1 and performed his marriage with her sister and their names were also printed in the marriage invitation of Ananda and Shivamma. Even after marriage, accused 1 was staying with them and on 27-5-1990 he started residing separately with his wife and when he left their house, her husband had given a cheque for Rs. 40,000/- and was due to pay a sum of Rs. 36,000/-. She has denied a suggestion that her husband was due to pay Rs. 36,000/-but has stated that her husband was due to pay Rs. 20,000/- She knows about the panchayat that took place on 15-12-1990. It is further elicited in her cross-examination that her husband came out of the house and was sitting in the coffee kana. She has denied the suggestion that her father had not come out of the house to answer call of nature and was going near kana. Her father was aged about 70 to 72 years at the time of incident. She has denied a suggestion that aged persons and children do not go out of the house to answer calls of nature and they use bathroom. She saw one assault on the head of her father. Her father was aged about 70 to 72 years at the time of incident. She has denied a suggestion that aged persons and children do not go out of the house to answer calls of nature and they use bathroom. She saw one assault on the head of her father. Her statement was recorded in the hospital by the police at about 11 p.m. and she does not remember as to whether she has stated before the police that she personally witnessed the accused assaulting her father or not. Her father cried and shouted when he sustained injuries. She has denied a suggestion that accused did not assault her father and she is deposing falsely. In her cross-examination on 20-3-1991 she has denied that she has made a statement as per Ex. D. 3 that Ananda and Shivamma did not assault her. She did not see any injury on Ananda and Basavaraju. She does not know as to how they sustained injury and she has not stated before the police about the injuries sustained by them. She has denied the defence of the accused which is suggested to her. It is further elicited in the cross-examination that her father had gained consciousness and was stammering and was asking who had assaulted him. She does not know as to at what time police were informed through telephone by Chandrashekar. She has denied a suggestion that in order to save her husband, her son – Ravi and Murthy-P.W. 3 – an agricultural coolie working in her house, that she is deposing falsely. 26. It is clear from the facts elicited in the cross-examination of P.Ws. 1 and 2 that though it is the case of the prosecution that motive for the commission of offence is that Krishnegowda was due to pay Rs. 2,000/- towards the dowry amount which has not been paid at the time of marriage of accused 1, the facts elicited in the cross-examination of P.W. 1 would clearly show that there is partition of property among P.W. 1 and accused 1 and 3. After partition, accused 3 started residing separately and further, accused 1 was aged about 9 years at the time of partition and was staying in the house of P.W. 1. Further facts elicited in the cross-examination of P.Ws. After partition, accused 3 started residing separately and further, accused 1 was aged about 9 years at the time of partition and was staying in the house of P.W. 1. Further facts elicited in the cross-examination of P.Ws. 1 and 2 referred to above would also prove, as we have already held that prosecution has failed to prove that Krishnegowda was due to Rs. 2,000/-to be paid to Ananda towards dowry amount which he had not paid during the marriage of Ananda and Shivamma, on the other hand that it was P.W 1 who was due to pay Rs. 20,000/- to Ananda-accused 1. Both P.Ws. 1. Both P.Ws. 1 and 2 have admitted in their cross-examination that there was settlement regarding payment of the amount and though P.W. 1 was required to pay Rs. 20,000/- before 31-1-1991 and the balance amount before the end of March, 1991. P.W. 1 had not paid that amount to Ananda which is admitted by P.W. 1 in his cross-examination and he has also not paid the amount payable to accused 1 as per the agreement and Exs. P. 3 to P. 5-the contents of which have not been disputed by P.Ws. 1 and 2 and would clearly show that P.W 1 was due to pay Rs. 20,000/-to accused 1. Therefore, defence of the accused that P.W. 1 was due to pay Rs. 20,000/-to accused 1 before 31-1-1991 as per the conditions of settlement and the said amount has not been paid by him is clearly proved. Further, it is also clear from the facts elicited in the cross-examination of P.Ws. 1 and 2 that though P.W. 1 says that he witnessed the incident in the light of electric bulb which was on the coffee kana, Investigation officer has not collected any material regarding existence of the bulb at the place of incident and at that there was electricity supply during the time of incident and therefore, the facts elicited in the cross-examination of P.W. 1 would clearly probabilise the defence of the accused and the evidence of PWs. 1 and 2 is not helpful to bring home the guilt of the accused. Further, it is clear from the evidence of P.Ws. 1 and 2 is not helpful to bring home the guilt of the accused. Further, it is clear from the evidence of P.Ws. 1 and 2 that though admittedly accused 1 and 3 had sustained injuries which is proved by the evidence of the prosecution itself, in view of the evidence of P.W. 27-the doctor who issued wound certificates as per Exs., P. 26 and P. 27 pertaining to accused 1 and 3, neither in the complaint nor in the evidence of P.W. 1 in his examination-in-chief he has spoken about the injuries sustained by accused 1 and 3 nor explained the said injuries. Even P.W. 2 has also not stated in the examination-in-chief about the injuries found on the body of accused 1 and 3 and as to how they sustained injuries. The facts elicited in the cross-examination of P.Ws. 1 and 2 would clearly show that though they know that some injuries were sustained by accused 1 and 3, they have not stated before the police about the said fact. Therefore, in the absence of proof of supply of electricity at the time of incident and the injuries found on accused 1 and 3 which is proved by the prosecution itself by the evidence of P.W. 27-the Medical Officer who has issued wound certificates in respect of accused 1 and 3, have not been satisfactorily explained by the prosecution and therefore the defence of the accused that there was no supply of electricity at the time of incident and that because it was dark, there was mistaken identity and P.W. 1 assaulted accused 1. Apart from the facts elicited in the cross-examination of P.Ws. 1 and 2, omissions and improvements made as is clear from Exs. D. 1 to D. 3 and the evidence of P.W. 29-Investigating Officer would hold that the evidence of P.Ws. 1 and 2 is not truthful reliable and cannot be made the basis of proving guilty of the accused. It is clear on close scrutiny and appreciation of the evidence of P.W. 3 that it is elicited in the cross-examination of P.W. 3 that he was in the kitchen at the time when accused 1 and 2 came near window of the kitchen in the hind side of the house. It is further elicited that Krishnegowda, Gopamma, Jayamma and Somegowda were present in the kitchen. It is further elicited that Krishnegowda, Gopamma, Jayamma and Somegowda were present in the kitchen. He was frightened when there was galata and he did not go out of the kitchen and he did not go near coffee kana from the kitchen. He has denied a statement being made to the effect that when there was galata near the window of the kitchen, being frightened, he did not go near the coffee kana. He has denied that he has stated before the police as per Ex. D. 4 that he was standing near the side of coffee kana as he was frightened. It is further elicited in the cross-examination that Krishnegowda, Somegowda and Jayamma sustained injuries and he did not go out of the house and was standing in the Jagali of the house and he did not go near the spot of incident and witness the incident. He did not go near the scene of incident to witness the incident. It is further elicited in the cross-examination that accused 1 also stored coffee seeds in the courtyard of P.W. 1 and he was also sitting there keeping watch over the coffee seeds. He has denied the defence of the accused which was suggested to him and it is further elicited in his cross-examination that he has not stated before the police as per Exs. D. 5 and D. 6 about the injuries sustained by P.Ws. 1 and 2 accused 1 and 3. It is further elicited in the cross-examination that at about 11.00 p.m., police had come to the spot and police took him, Gopamma and others and made enquiry and recorded their statements. He has denied the suggestion that he has deposing falsely to help his employers-P.Ws. 1 and 2. 27. It is clear on close scrutiny and appreciation of evidence of P.W. 3 that his evidence is also not truthful, reliable and facts elicited in the cross-examination that accused 1 was also sitting in the coffee kana as he had stored his coffee seeds belonging to him and Somegowda who also stored coffee seeds in the courtyard of his house was also sitting there and further, it is also clear from the facts elicited in the cross-examination that he has denied the statement made before the police as per Exs. D. 5 and D. 6 regarding the manner in which accused 1 and 3 sustained injuries and therefore his evidence does not explain as to how accused 1 and 3 sustained injuries in the same incident. Further, the facts elicited in the cross-examination would clearly show that he was standing in the Jagali of the house and being frightened, he did not even go near the spot of incident and see as to how the incident had occurred. He did not go near the scene of offence though he is the employee of P.Ws. 1 and 2 and his employers and their father were being assaulted by the accused. Therefore, the facts elicited in the cross-examination of P.W. 3 would show that his evidence also probabilises the defence of the accused and the fact that he has not witnessed the incident and his evidence is not helpful to the prosecution in proving the incident as alleged by it and therefore, it is clear on close scrutiny and appreciation of evidence of P.Ws. 1 to 3 that their evidence is not at all helpful to the prosecution to support the case of the prosecution. 28. The prosecution is also relying upon the recovery made on the basis of voluntary statement given by accused 2. It is clear from the evidence of P.Ws. 1 and 2 that accused 1 threw the sickle there itself and sickle has been recovered from the spot at the time of the spot panchanama and one club has also been recovered under mahazar-Ex. P. 6 and even assuming that panchas examined for supporting the evidence of P.W. 29-Investigating Officer regarding recovery made on the basis of voluntary statement given by accused 1 on 25-2-1991, it cannot be believed as according to the evidence of P.Ws. 1 and 2 sickle was thrown at the spot and even assuming that panchas have not supported the said recovery and even assuming that weapon has been seized and bloodstained clothes found on the body of Krishnegowda and clothes which P.Ws. 1 and 2 sickle was thrown at the spot and even assuming that panchas have not supported the said recovery and even assuming that weapon has been seized and bloodstained clothes found on the body of Krishnegowda and clothes which P.Ws. 1 and 2 were wearing were seized, mere recovery of the weapons would not in any way help the prosecution in this case as we have held that evidence of eye-witnesses which the prosecution has relied upon to bring home the guilt of the accused are not ruthful, reliable and cannot be made the basis for convicting the accused and therefore, in the absence of the proof of the user of the weapons, it is clear that it would not in anyway help the prosecution as this case depends upon the evidence of eye-witnesses and not merely on circumstantial evidence. 29. Therefore, on re-appreciation of the entire evidence adduced by the prosecution before the Trial Court, we hold that the finding of the Trial Court that the prosecution has failed to prove the guilt of the accused of having committed the offence punishable under Sections 302, 307 and 324 of IPC read with Section 4 of the Dowry Prohibition Act and acquitting them of the said charges is justified and does not suffer from any error or illegality as to call for interference in this appeal. Accordingly, we pass the following: ORDER The appeal is dismissed. The judgment of acquittal passed by the Principal District and Sessions Judge, Chickmagalur in Sessions Case No. 39 of 1991, dated 25-11-2000 is confirmed.