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2015 DIGILAW 790 (KAR)

Ravindra Alias Ravi v. State Of Karnataka

2015-07-21

MOHAN M.SHANTANAGOUDAR, R.B.BUDHIAL

body2015
JUDGMENT : The judgment and order dated 25-11-2011 passed by the Presiding Officer, Fast Track Court No. 17, Bangalore City in Sessions Case No. 733 of 2008, convicting accused Nos. 1 to 3 for the offences punishable under Sections 436, 302, 307 and 109 read with Section 34 of Indian Penal Code, 1860, is called in question in this criminal appeal. 2. Case of the prosecution in brief is that accused Nos. 3 is the first wife of deceased Muniyappa; disputes arose between deceased Muniyappa and accused Nos. 3 after few years of the marital life; two children were born out of the wedlock between the deceased Muniyappa and accused No.3 Rekhadevi; since the disputes could not be resolved between the parties, accused No. 3 started residing in her parents place; deceased Muniyappa married Smt. Pushpa (another deceased); out of the said wedlock between Muniyappa and Pushpa a child was born and the said child was aged about two years at the time of incident in question. It is the further case of the prosecution that accused No. 1 Ravindra alias Ravi is the paramour of accused No. 3 Rekhadevi and accused No. 4 Varalaxmamma (who is acquitted by the trial Court) is the mother of accused No. 3 Rekhadevi. Accused No. 2 Sampath is the friend of accused No. 1. Accused No. 3 in order to do away with the life of her husband Muniyappa and second wife of Muniyappa namely, Pushpa, she came along with accused Nos. 1,2 and 4 at about 3.00 a.m. on 13-1-2008 to the house of deceased and both the deceased and the child aged about 2 years were sleeping inside the house; the house of Muniyappa and Pushpa was having asbestos sheet roof; all the accused broke open the asbestos sheet roof of the house of deceased and poured kerosene as well as petrol inside the house and set the house on fire, consequent upon which, both the deceased namely, Muniyappa and Pushpa as well as their daughter (Lakshmishree) aged about 2 years sustained injuries. All the injured were shifted to Victoria Hospital, Bangalore. Pushpa succumbed to burn injuries on 16-1-2008, whereas Muniyappa succumbed on 26-1-2008. Fortunately, the two years old child Kum. Lakshmishree who has sustained about 25% burns survived. All the injured were shifted to Victoria Hospital, Bangalore. Pushpa succumbed to burn injuries on 16-1-2008, whereas Muniyappa succumbed on 26-1-2008. Fortunately, the two years old child Kum. Lakshmishree who has sustained about 25% burns survived. While deceased were taking treatment in Victoria Hospital, injured Muniyappa gave statement as per Ex.P21, which came to be recorded at 10.00 a.m. on 13-1-2008 in the hospital by P.W.9, the Police Constable, based on which, Crime No. 10 of 2008 came to be registered against nine accused for the offences punishable under Sections 143, 147, 148, 342, 436 and 307 read with Section 149 of IPC. P.W.32 the Inspector of Police completed the investigation and laid the charge sheet against four accused who faced the trial before the Court below. 3. In order to prove its case, prosecution in all examined 32 witnesses and got marked 40 exhibits and 7 material objects. On behalf of the defence no evidence was recorded. As aforementioned, the trial Court acquitted accused No. 4 and convicted accused Nos. 1 to 3 for the offences with which they are charged. 4. Cri.A.No.67 of 2012 is filed by convicted accused No. 1. Cri.A.No.1284 of 2011 is filed by convicted accused Nos 2 and 3. 5. Sri Y.R. Sadashiva Reddy, learned Senior Advocate appearing on behalf of accused No. 1 taking us through the entire material on record submits that the case as made out by the prosecution appears to be artificial; the presence of PWs.3 and 10 who allegedly saw certain of the accused running away from the scene appears to be very much doubtful; no independent witnesses from the locality, whose presence would be natural, are examined; the prosecution has suppressed the origin and genesis of the crime; the evidence of PWs.3 and 10 differ materially; the names of PWs. 3 and 10 are not found in the dying declaration though PWs. 3 and 10 were very much known to both the deceased. He further submits that the dying declaration allegedly made by Pushpa (Ex.P.22) is not supported by any medical evidence, in as much as, there is no endorsement of the Doctor on the said dying declaration. According to him, the presumption drawn and the conclusion arrived at by the trial Court are not proper and correct. Sri. Chethan B. Angadi and Sri Shaikh Saoud appearing on behalf of accused Nos. According to him, the presumption drawn and the conclusion arrived at by the trial Court are not proper and correct. Sri. Chethan B. Angadi and Sri Shaikh Saoud appearing on behalf of accused Nos. 2 and 3 argued supporting the arguments of Sri. Y.R. Sadashiva Reddy. Sri. Vijaykumar Majage, learned Additional State Public Prosecutor fairly submits that the case is made out against accused No. 1; the evidence of PWs. 3 and 10 if believed, would lead to the only conclusion that accused No. 1 has committed the crime alleged against him; he draws the attention of the Court to the fact that accused No. 1 had got the motive for committing the offence, in as much as, he is the paramour of accused No. 3 who wanted to take the lives of the deceased. 6. PWs.1, 2, 3, 4, 5 and 6 are stated to be the eyewitnesses to the incident in question. Except P.W.3 all are either tenants in the house of deceased Muniyappa or the neighbours of Muniyappa. Except P.W.3 all of them have turned hostile to the case of the prosecution. P.W.3 has supported the case of the prosecution. PWs.7 and 8 who were initially arrayed as accused in the first information were shown as witnesses in the charge sheet. Both were supposed to depose about the motive for commission of the offence. However, both have turned hostile to the case of the prosecution. P.W.9 is the Police Constable, who scribed the dying declaration Exs. P.21 and P.22 in the presence of the Doctor. P.W.10 is another witness who has deposed on par with the evidence of P.W.3. According to him, he saw Rekhadevi (accused No. 3) and two others running away towards Government Hospital. PWs.11 and 12 are the witnesses for inquest mahazar Ex.P.9. P.W.13 is the witness for the mahazar Ex.P.10 under which, burnt wooden plank is seized from the spot. P.W.14 is the father of the deceased Pushpa. He has deposed about the quarrel between accused No. 3 and deceased Muniyappa. PWs.15 and 16 are the Police Officials who participated during the course of investigation. 7. P.W.13 is the witness for the mahazar Ex.P.10 under which, burnt wooden plank is seized from the spot. P.W.14 is the father of the deceased Pushpa. He has deposed about the quarrel between accused No. 3 and deceased Muniyappa. PWs.15 and 16 are the Police Officials who participated during the course of investigation. 7. PWs.17, 18, 19, 20 and 21 who were supposed to depose about the seizure of plastic can at the instance of accused No. 1 and selling of six litres of petrol to accused No. 1 and inquest mahazar relating to deceased Muniyappa, all of them have turned hostile to the case of the prosecution. P.W.22 is the mother of deceased Pushpa. She has deposed that the quarrel had taken place between the deceased Muniyappa and accused No.3. P.W.23 is the sister of deceased Muniyappa. She is a hearsay witness. P.W.24 is the Head Constable who took the FIR to the jurisdictional Magistrate. P.W.25 has deposed about accused No. 3 filing complaint against her husband Muniyappa and same was registered in Cri. Misc. No. 369 of 2007 in Parappana Agrahara Police Station. P.W.26 is the Doctor who certified that injured Muniyappa was in a fit condition to make statement and in his presence P.W.9 recorded his statement as per Ex.P.21. P.W.27 is another Doctor who conducted autopsy over the dead body of Pushpavathi and the post mortem report is at Ex.P.26. P.W.28 is the Head Constable. He collected the death memo from Victoria Hospital on 16-1-2008 relating to deceased Pushpa. P.W.29 is the Doctor. He conducted autopsy over the dead body of deceased Muniyappa. Post mortem report is at Ex.P.27. P.W.30 has treated two years old Lakshmishree brought by Parappana Agrahara Police with the history of alleged burns by Ravi, Ramadevi, Nagaraj, Radha and others. Wound certificate is at Ex.P.28. He has also deposed that P.W.9 recorded the statement of Muniyappa at 10.00 a.m. on 13-1-2008. P.W.31 is the Scientific Officer of the Forensic Science Laboratory. Ex.P.29 is the report of Forensic Science Laboratory. P.W.32 is the Inspector of the Police. He completed the investigation and laid the charge sheet. 8. There are no eye witnesses to the incident in question. Hence, the case of the prosecution rests on circumstantial evidence. The circumstances relied upon by the prosecution are as under: (a) Motive for commission of the offence. P.W.32 is the Inspector of the Police. He completed the investigation and laid the charge sheet. 8. There are no eye witnesses to the incident in question. Hence, the case of the prosecution rests on circumstantial evidence. The circumstances relied upon by the prosecution are as under: (a) Motive for commission of the offence. (b) The dying declarations made by both the deceased at Exs.P.21 and P.22. (c) PWs.3 and 10 saw accused Nos. 1 to 3 running away from the scene immediately after the incident. 9. Regarding the first circumstance - Motive: In order to prove the circumstance of motive, the prosecution has relied upon the evidence of PWs.3, 10, 14, 22 and 23. Rest of the witnesses who were supposed to depose about the motive have turned hostile to the case of the prosecution. P.W.3 has deposed that accused No. 3 Rekhadevi and the deceased Muniyappa (wife and husband inter se) used to quarrel with each other and cases were pending before the Civil Court as well as Criminal Court between the parties; accused No. 3 used to go in front of the house of deceased Muniyappa and she used to raise hue and cry demanding share in the property as well as demanding money for maintenance and in that regard cases were lodged. P.W.10 has deposed that the matrimonial disputes were pending between accused No. 3 and deceased Muniyappa and in that regard, cases were filed inter se between accused No. 3 and deceased and even panchayaths were held. P.W.14 is the father of deceased Pushpa. He deposed that their used to be disputes between deceased Muniyappa and accused No. 3 and in that regard wife of Muniyappa used to quarrel with P.W.14 and others. P.W.22 being the mother of the deceased Pushpa has deposed that deceased Muniyappa had married earlier to his marriage with accused No. 3 and the said factum was suppressed by Muniyappa while he married accused No. 3 and in that regard there were matrimonial disputes between accused No. 3 and deceased Muniyappa. The same is the evidence of P.W.23 (sister of deceased Muniyappa). From the evidence of PWs.3, 10, 14, 22 and 23 regarding the circumstance of motive, it is clear that all these witnesses have deposed that the matrimonial disputes were pending in between accused No. 3 and the deceased Muniyappa. The same is the evidence of P.W.23 (sister of deceased Muniyappa). From the evidence of PWs.3, 10, 14, 22 and 23 regarding the circumstance of motive, it is clear that all these witnesses have deposed that the matrimonial disputes were pending in between accused No. 3 and the deceased Muniyappa. Absolutely, no material is found against other accused with regard to motive for commission of the offence. Though, it is the case of the prosecution that accused NO. 1 is the paramour of accused No. 3, not even a single sentence is uttered by the aforementioned witnesses in that regard. Thus, it can be said that the prosecution at the most has proved that there were disputes pending between accused No. 3 Rekhadevi and deceased Muniyappa i.e., husband and wife inter se. Absolutely no motive whatsoever is alleged against accused No. 1 and 2. Thus, in our considered opinion, the prosecution has not proved the circumstance of motive as against accused No. 1 and 2. 10. Regarding the second circumstance-Dying Declaration: The prosecution has relied upon two dying declarations Exs.P.21 and P.22. Both of them are scribed by P.W.9 the Police Constable. We also find the endorsement of the Doctor P.W.26 on Ex.P.21 to the effect that the statement was recorded before him on 13-1-2008 at 10.00 a.m. The endorsement of the Doctor on Ex.P.21 also discloses that the patient was conscious, alert and well oriented and physically and mentally fit to give the statement. Such endorsement of the Doctor Kumaraswamy (P.W.26) was made for and on behalf of Professor P.G. Tilak who is not examined before the Court. Ex.P.21 runs to about 3 pages. The dying declaration contains the motive for commission of offence against 9 persons including the parents of Rekhadevi, brother of Rekhadevi, father-in-law of accused No. 1 Ravi, sister of accused No. 1 and two others. The dying declaration narrates motive for commission of offence and the relationship between the parties for about 1-1/2 pages and thereafter, it narrates as to how the incident has taken place. As per the dying declaration, the incident has taken place at 3.00 a.m. on 13-1-2008 and some persons had broke open the asbestos sheet roof and had poured kerosene and thereafter lit the house on fire. As per the dying declaration, the incident has taken place at 3.00 a.m. on 13-1-2008 and some persons had broke open the asbestos sheet roof and had poured kerosene and thereafter lit the house on fire. It further specifies that since both the deceased raised hue and cry loudly, the neighbours came inside the house after opening the door and tried to save the lives of the deceased; both the deceased were taken to hospital by the neighbours and they were admitted to Victoria Hospital, Bangalore. P.W.26, the doctor who endorsed on Ex.P.21 that the statement of the deceased was recorded before him was a Post graduate student during the relevant point of time. He admits that he is not the doctor who treated the injured Muniyappa. He further admits that as he did not give any treatment to injured Muniyappa, he was not in a position to state as to the health condition of the injured Muniyappa. However, he adds that while making endorsement, he had seen the physical and mental condition of the injured. He further admits that saline was being administered to the injured and he has not written the name of the patient on Exs. P.21(b) and P.21(c). He further admits that prior to he seeing injured, 10 injections were already administered to the injured Muniyappa and the effect of such injections would continue for 5 to 6 hours on the body of the patient. It is also admitted by P.W.26 that since Muniyappa had sustained burn injuries, there is every likelihood of he consuming lot of smoke during respiratory process; that the patient was not able to speak fluently and he used to speak with interruption while he was giving his statement. None of the doctors who treated either Muniyappa or Pushpa is examined before the Court. No medical records are produced by the prosecution before the Court though Muniyappa was alive till 26-1-2008, i.e., for about 13 days and though Pushpa survived upto 16-1-2008, i.e., for three days. If the medical records were to be produced before the Court by the prosecution fairly, it would have been better for the Court to appreciate as to whether the patient was in fit condition or not, particularly when the doctor who treated the injured is not examined before the Court. So also, the material is silent in respect of the injections administered to the patients. So also, the material is silent in respect of the injections administered to the patients. Generally, if sedative injunctions are administered, it would be having effect on the body of the patient for about 3 to 4 hours and if the morphine injection is administered, it would be having effect on the body of the patient for about 6 to 8 hours and during such time, it is not possible for the patient to make statement, inasmuch as the patient will be drowsy. Be that as it may, since the prosecution has not come before the Court fairly by producing the medical records, we are not in a position to exactly conclude that the injured was in fit condition to make statement, that too in the light of shaky evidence of the doctor-P.W.26 who was Post graduate student during the relevant point of time. The contents of Ex.P.22 the dying declaration of Pushpa are almost on par with the dying declaration of Muniyappa. However, the Doctor has not made any endorsement over Ex.P.22 about the fitness of deceased Pushpa to make such statement. Either the signature or the thumb impression are not found on Ex.P.22. P.W.9 is the scribe of the dying declarations. He has deposed in support of the said dying declarations. As the thumb impressions of both the hands were highly injured, left toe impression of deceased Muniyappa was taken on Ex.P.21. There is no mention in his evidence as to why either the signature or the thumb impression of deceased Pushpa was not taken on Ex.P.22. Though it is deposed by the Doctor that Ex.P.22 is recorded in the presence of the Doctor, the name or designation of the Doctor on Ex.P.22 is not mentioned. Even the signature of the Doctor is not found. He admits in paragraph 10 of his evidence that there is no endorsement of the Doctor on Ex.P.22. He also admits that the signature or the thumb impression of deceased Pushpa is not found in Ex.P.22. He has proceeded to explain that since the toes and fingers were damaged to substantial extent he could not take the thumb impression or any toe impression on the dying declaration Ex.P.22. He further submits that in that regard he has not made such endorsement on the dying declaration. He has proceeded to explain that since the toes and fingers were damaged to substantial extent he could not take the thumb impression or any toe impression on the dying declaration Ex.P.22. He further submits that in that regard he has not made such endorsement on the dying declaration. It is also admitted by him that deceased Pushpa used to speak once in two or three minutes and that her statement was recorded for about 1-1/2 hours to two hours. It is also clearly admitted by P.W.9 that there was no problem for him to get the endorsement of the Doctor on Ex.P.22. From the above, it is clear that the dying declaration at Ex.P.22 does not contain the endorsement of any doctor who was allegedly present at the time of recording the said dying declaration. It is also clearly admitted by P.W.9 that there was no problem for him to obtain such endorsement from the doctor on the dying declaration at the relevant point of time. Absolutely, no reasons are assigned for not taking such endorsement of the doctor to show that the injured was in fit condition to make statement. Even an endorsement is not made by P.W.9 on Ex.P.22 mentioning therein that fingers as well as toes of the injured Pushpa were burnt and as such he did not take the impressions of her fingers and toes on the dying declaration. In this view of the matter, learned Advocate for the defence is justified in arguing that the dying declaration at Ex.P.22 is a got up document. Admittedly, Victoria Hospital is a major Hospital in Bangalore. Number of doctors, nurses and Post graduation students are available in the hospital, particularly in the Bums Ward. Since there is no endorsement of any of the doctors on Ex.P.22, the submissions made at the Bar by the learned Advocate for the defence deserves to be accepted. Even assuming that Exs.P.21 and P.22 are to believed in to, at the most it can be said that house of the deceased was set on fire about 3.00 a.m. on 13-1-2008. From the dying declarations at Exs.P.21 and P.22, it cannot be made out that any of the accused were near the scene of offence or they were involved in the offence. From the dying declarations at Exs.P.21 and P.22, it cannot be made out that any of the accused were near the scene of offence or they were involved in the offence. The dying declarations at Exs.P.21 and P.22 will not be helpful for the prosecution to connect any of the accused to the crime. It is further case of the prosecution that immediately after the incident, PWs.3 and 10 came in the car from Tumkur and after seeing some of the accused, they went towards the scene of offence. On seeing the incident of burning, they helped both the injured Muniyappa as well as Smt.Pushpa by taking them in their car to Victoria Hospital for treatment. PWs.3 and 10 have specifically deposed that they shifted the injured to Victoria Hospital. It is clearly admitted by PWs.3 and 10 that the house of P.W.10 is nearby the house of the deceased. It is further admitted by P.W.10 that P.W.3 being the leader of the locality had tried to pacify the quarrel between the deceased Muniyappa and accused No. 3. It is further admitted by him that the deceased Muniyappa knew very well P.W.3 Nagaraj and that the deceased always used to be with P.W.3. Thus, it is not in dispute that PWs.3 and 10 were well known in the area in question and they were very close friends of deceased Muniyappa. In fact they allegedly took the injured to the hospital for treatment in order to save their lives. Despite the same, the two dying declarations (Exs.P.21 and P.22) did not disclose the name of either P.W.3 or P.W.10 as the persons who shifted the victims to the hospital. The dying declarations narrate in detail the entire history of the accused including the motive for commission of offence etc. and though the dying declarations specify that some neighbours shifted the injured to the hospital, they did not speak about the presence of PWs.3 and 10 on the spot conspicuously. Thus, it is clear that the presence of PWs. 3 and 10 is not spoken to by the injured in their dying declarations. In view of the same, the version found in the dying declarations appears to be artificial. 11. Thus, it is clear that the presence of PWs. 3 and 10 is not spoken to by the injured in their dying declarations. In view of the same, the version found in the dying declarations appears to be artificial. 11. Regarding the third circumstance, i.e., PWs.3 and 10 have seen some accused running away from the scene of offence: As aforementioned, it is the case of the prosecution that PWs.3 and 10 had seen certain of the accused running away from the scene of offence and after seeing them, PWs.3 and 10 came to the spot and shifted the injured to the hospital. In the examination-in-chief P.W.3 has deposed that he saw accused No.3, accused No.1 (Ravi) and another person at 3.00 a.m. on 13-1-2008 and all these three persons were going towards Government Hospital along with 10 liters can and thereafter he along with P.W.10 went to the spot and shifted the injured to the hospital. In the cross-examination, he admits that he is the Rajadhyaksha of "Dalitha Panthers of India"; he has studied upto 7th Standard; he is staying in Jayanagar and his house is 6 kms. away from the scene of offence. In the cross-examination, he admits that he is the Rajadhyaksha of "Dalitha Panthers of India"; he has studied upto 7th Standard; he is staying in Jayanagar and his house is 6 kms. away from the scene of offence. Earlier he was in Samatha Political Party; the only work done by P.W.3 is the work as Rajadhyaksha of Dalitha Panters of India and under him thousands of workers are working; his name appears in daily newspapers since he is involved in organisational activities; as a President of State Organisation, he has organised number of protests, etc.; he collects funds from various sources for the activities of the organisation; he knew each and every person residing at Channakeshavanagar where the house of the deceased burnt; on the previous day of the date of incident at about 4.30 p.m. he had been to Tumkur for the activities of the organisation, he had opened number of branches in Tumkur District on that day; however no newspaper carried about such news; he does not remember as to how many branches he had opened and who are the important persons that attended such organisation meeting; along with him, number of people with 7 to 8 vehicles had come; thereafter he came to Bangalore around 11.00 to 11.30 p.m. and went to his office situated at Bannerghatta Road; he and his friends remained in his Office upto 12 O'clock midnight intervening between 12-1-2008 and 13-1-2008 and thereafter he proceeded to drop P.W.10 to Chennakeshavanagar; according to him, he saw three persons for a minute and they vanished from the scene within a minute. P.W.3 clearly admits that he did not state before anybody about he seeing those three persons near the scene of offence till he informed the same before the police. He further admits that he has seen the accused in the Police Station and not before the Court for the first time. It is further admitted by him in paragraph-22 of his evidence that he informed the police at Victoria Hospital that accused No. 1 to 3 were running away from the scene of offence. As aforementioned, P.W.10 accompanied P.W.3 to Tumkur and he also came back to Bangalore along with P.W.3. It is further admitted by him in paragraph-22 of his evidence that he informed the police at Victoria Hospital that accused No. 1 to 3 were running away from the scene of offence. As aforementioned, P.W.10 accompanied P.W.3 to Tumkur and he also came back to Bangalore along with P.W.3. Though in his examination-in-chief P.W.10 has deposed that he saw three accused running away from the scene of offence at 3.00 a.m. on 13-1-2008, in the cross-examination, he has admitted that both PWs.3 and 10 left Tumkur at 3.00 a.m. on 13-1-2008 and reached Bangalore at about 4.00 to 5.00 a.m. on that day. Subsequently, they went to the office of P.W.3 at Bannerghatta Road and they stayed there for about one hour. These admissions of P.W.10 completely take away the effect of the evidence of P.W.3, inasmuch as according to P.W.10. he along with P.W.3 came to Bangalore only at about 4.00 to 5.00 a.m. and stayed in their Office for one hour and thereafter came to scene of offence, which means that they might have arrived to the scene of offence at about 6.00 a.m. on 13-1-2008. It is further admitted by P.W.3 that he had convened panchayat to resolve the dispute between accused No. 3 and the deceased Muniyappa prior to the incident and that the deceased Muniyappa used to be always with P.W.3. P.W.3 also admits in the cross-examination that he also did not inform any body about he seeing two accused immediately after the incident till he spoke to the police about the incident in question. It is also admitted by P.W.10 that he is working under P.W.3 and that he would act as per the instructions of P.W.3; whenever P.W.3 has got work, he calls P.W.10 and accordingly he obliges. According to the case of the prosecution, the offence has taken place at about 3.00 a.m. on 13-1-2008 and PWs.3 and 10 saw the accused running away from the scene at 3.00 a.m. The crime is registered in the morning of 13-1-2008 based on Ex.P.21, the dying declaration. Even according to the prosecution, PWs.3 and 10 shifted both the injured to Victoria Hospital for treatment. Despite the same, both the dying declaration as aforementioned, did not whisper the presence of either P.W.3 or P.W.10 as the persons who shifted the injured to the hospital. Even according to the prosecution, PWs.3 and 10 shifted both the injured to Victoria Hospital for treatment. Despite the same, both the dying declaration as aforementioned, did not whisper the presence of either P.W.3 or P.W.10 as the persons who shifted the injured to the hospital. It is specified by PWs.3 and 10 that they were very much present in Victoria Hospital when the police came to the hospital and talked with him. Despite the same, the police did not choose to record the statement of either P.W.3 or P.W.10 though their version is the only important link to connect the accused with the crime. The statements of PWs.3 and 10 were recorded on 14 -1-2008. Absolutely no explanation is forthcoming from the Investigating Officer as to why their statements were not recorded at the earliest. Since, P.W.3 was a leader in the locality and he was heading an organisation in State level as a President, it was his duty to bring to the notice of the Investigating Officer by stating that he had seen some of the accused running away from scene of offence. He has kept quiet without informing the police about the incident in question. Hence, the defence is justified in arguing that the story created by the prosecution through PWs.3 and 10 appears to be concocted and an after thought. If really PWs.3 and 10 had seen some of the accused running away from the scene of offence, they would not have kept quiet without telling anybody including the deceased as well as the police. Certain material omissions are brought on record by the defence while cross-examining PWs.3 and 10. The Investigating Officer (P.W.32) has admitted in his cross-examination (in paragraph-22) that P.W.3 Nagaraj, P.W.10 Krishnappa have not stated before him that they saw accused No. 3 and other two persons running away from the scene of offence. Be that as it may, since PWs.3 and 10 do not whisper anything before anybody, including the injured as well as police, though the injured were in a position to talk and they were shifted by PWs.3 and 10 in their car. It is highly unnatural on the part of PWs.3 and 10 in keeping quiet without informing the police about they allegedly seeing accused No. 1 and 3 and another running away from the scene of offence. It is highly unnatural on the part of PWs.3 and 10 in keeping quiet without informing the police about they allegedly seeing accused No. 1 and 3 and another running away from the scene of offence. In addition to the same, we find from the evidence of PWs.3 and 10 that it suffers from number of variations. They have improved their versions so as to improve the case of the prosecution suitably. 12. From the aforementioned discussion, it becomes clear that even third circumstance regarding PWs.3 and 10 seeing the accused is not proved beyond reasonable doubt. Neither accused No. 1 nor accused No. 2 had any motive for commission of offence. Absolutely no material is forthcoming particularly in the evidence of PWs.3, 10, 14, 22 and 23, who have deposed about the motive against accused Nos. 1 and 2. Even the dying declarations also will not implicate the accused inasmuch as they only disclose that the house of the deceased burnt by some persons. Since the third circumstance is also not proved by the prosecution beyond reasonable doubt, the benefit of doubt shall go in favour of the accused. We also find that the trial Court has merely proceeded based on assumptions for coming to the conclusion. In the absence of any legal evidence as against accused No. 1 to 3, the trial Court ought not to have convicted them for the offences with which they were charged. Having regard to the totality of the facts and circumstances, we conclude that the prosecution has not proved its case beyond reasonable doubt. In view of the same, the accused are entitled to be acquitted. Accordingly, the following order is made:- (i) The judgment and order dated 25-11-2011, passed in SC.No.733 of 2008, convicting accused Nos.1 to.3 (appellants herein), stands set aside. It is made clear that the judgment and order acquitting accused No.4 has attained finality, inasmuch as the State has not filed any appeal against such order of acquittal. (ii) Accused Nos.1 to 3-appellants herein shall be set at liberty forthwith if they are not required in any other case. Appeals are allowed accordingly.