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Karnataka High Court · body

2019 DIGILAW 2338 (KAR)

Kashibai v. State

2019-12-19

MOHAMMAD NAWAZ, SREENIVAS HARISH KUMAR

body2019
JUDGMENT : 1. Assailing the judgment and order of conviction and sentence passed by the Court of the II Additional Session Judge at Gulbarga dated 17.02.2011 in S.C.No.230/2008, accused/appellants have preferred this appeal. 2. We have heard the learned counsel appearing for the appellants and the learned Additional State Public Prosecutor appearing for the respondent/State. 3. The factual matrix of the prosecution case is as under:- The first informant Ambawwa (PW-8) is a resident of Muddadaga in Aland Taluka. About 04-05 years prior to lodging of the complaint, one Mallappa s/o Anandappa Kanur was murdered. The first informant and her husband were arraigned as accused in the said case, however, they were acquitted. After their acquittal, accused No.1 Kashibai, wife of said Mallappa and brothers of Mallappa were picking up quarrel with them and they were abusing and threatening them with dire consequences. On 19.01.2008 at about 06.00 p.m. the first informant's husband Hanamanth had gone to attend the first call of nature by the side of his house. After some time the first informant heard some commotion. She along with her father-in-law Gundappa (PW-9) went towards that place. She saw accused Nos.1 to 10 quarreling with her husband. She and PW-9 brought her husband to their house. Again the accused came near their house and started pelting stones. Her husband, out of fear went to the house of his brother-Jettingappa (PW-7). At that time, accused Nos.2-Raju and 4-Ravi held her husband. Accused No.1 assaulted her husband on the left side of his neck with a koita (M.O.9) and caused bleeding injuries. Accused No.3-Mahadevappa assaulted with an axe (M.O.8) on the head of deceased and caused bleeding injuries. Accused No.5 Devappa took M.O.9 from the hands of accused No.1 and assaulted on the abdomen of the deceased. When the deceased collapsed, accused No.2-Raju assaulted with stone on his legs and accused No.4-Ravi assaulted with M.O.5-Kurapi near the mouth of deceased causing bleeding injuries. When the first informant (PW-8), PW-9-Gundappa, PW-7-Jettingappa tried to intervene, accused No.7-Laxmibai assaulted with stone on the head of the first informant, accused No.6-Anandappa assaulted her father-in-law (PW-9) with stone and caused bleeding injuries. Accused No.10-Saraswati assaulted with stone on the head of PW-7-Jettlingappa. Accused No.9-Savitribai assaulted PW-9 on his hands and legs with stick. Accused No.8-Yamunabai abused the first informant and assaulted with stick on her hands. Accused No.10-Saraswati assaulted with stone on the head of PW-7-Jettlingappa. Accused No.9-Savitribai assaulted PW-9 on his hands and legs with stick. Accused No.8-Yamunabai abused the first informant and assaulted with stick on her hands. At that time, villagers namely Dattu Maratha (PW-2) and Rukmoddin Pinjaar (PW-1) and first informant's elder sister-Vijayalaxmi (PW-10) came and pacified the quarrel. All the accused went away. First informant's husband died at the spot on account of the injuries sustained. 4. On the basis of above information, a case was registered against accused Nos.1 to 10 in Crime No.9/2008 of Narona Police Station. After completion of investigation, charge sheet was filed. Case against accused No.5 was split up. 5. On committal, the learned Sessions Judge framed charges against accused persons for the offences punishable under Sections 143, 147,148, 336, 324, 504, 506 and 302 read with Section 149 of Indian Penal Code. Accused pleaded not guilty to the charges and claimed to be tried. 6. To establish the guilt of the accused, the prosecution got examined PWs. 1 to 20 and got marked Exs.P.1 to 48 and M.Os.1 to 16. The defence got marked Ex.D.1, portion of the statement of PW-7. 7. The learned Sessions Judge after considering the evidence and material on record, convicted accused Nos.1 to 4 for the offences punishable under Sections 148, 336 and 302 read with Section 149 of Indian Penal Code and acquitted them of the offences under Sections 324, 504 and 506 read with Section 149 of Indian Penal Code. Further, convicted accused Nos.6 to 10 for the offences punishable under Sections 148, 336 and 324 read with Sections 149 of Indian Penal Code and acquitted them of the offences punishable under Sections 302, 504 and 506 read with Section 149 of Indian Penal Code. 8. Aggrieved by the aforesaid judgment and order of conviction and sentence passed by the trial Court, accused have preferred this appeal. 9. The learned counsel appearing for the appellants vehemently contended that, the judgment and order of conviction and sentence passed by the learned Sessions Judge is opposed to law, facts and probabilities of the case. He submits that the independent eyewitnesses namely PWs. 1 to 6 have not supported the prosecution case. He further submits that PWs. 7 to 10 are highly interested and partisan witnesses. He submits that the independent eyewitnesses namely PWs. 1 to 6 have not supported the prosecution case. He further submits that PWs. 7 to 10 are highly interested and partisan witnesses. PW-9 was not subjected to cross-examination, as he was dead and therefore his evidence is incomplete and cannot be considered. He further submits that, there are major omissions and contradiction in the evidence of alleged eyewitnesses, which goes to the root of the case. PW-10 has admitted that when she came out of the house, the deceased was already lying dead. It is submitted that PWs. 11 and 12,panch witnesses to Exs.P.21 to 24, have turned hostile and PWs. 13 and 16 panchas for inquest and spot panchanama, have also turned hostile. It is strongly contended that the motive for the incident is alleged to be the murder which took place about 4-5 years prior to the date of incident and there was no reason for the accused to suddenly rake up the issue and commit the offence. It is contended that in view of Moharam festival all the residents of the locality were attending the function, none of the witnesses could be present at the spot. 10. The learned counsel appearing for the appellants would also contend that though the prosecution has projected PW-8 as the first informant, however, according to PW-7, he went to the police station after the incident and informed the incident to the police. PW-7 has admitted that by the time he went to the police station, Accused Nos.1 and 6 were already present in the police station. Hence, he submits that, very genesis of the case has been suppressed by the prosecution. He submits that according to the prosecution witnesses the incident is said to have occurred between 07.30 and 08.00 p.m. PW-8 has stated that after the incident they went to the house of Dalapati and thereafter went to the police station and lodged the complaint. According to PW-8 there was no street light or electricity supply and she has admitted that she has not gone to the police station, because she was not in a position to walk. PW-10 has not deposed regarding the presence of PWs. 7 and 8. The oral evidence of the alleged eyewitnesses and medical evidence does not corroborate with each other. PW-10 has not deposed regarding the presence of PWs. 7 and 8. The oral evidence of the alleged eyewitnesses and medical evidence does not corroborate with each other. He submits that the defence has probabilized that the injuries sustained by the witnesses could not have been suffered at the time of incident. 11. The learned counsel appearing for the appellants would also contend that the trial Court has erroneously held the accused guilty on the basis of evidence of highly interested witnesses whose evidence suffers from material omissions and contradiction which goes to the root of the case. Hence, he prays to allow the appeal. 12. Per contra, the learned Additional State Public Prosecutor appearing for the respondent/State contended that prior to the incident in question the husband of accused No.1 was murdered. In this connection the complainant and her husband (deceased) were prosecuted, but they were acquitted. Hence, there was a strong motive for the accused persons to commit the murder of deceased-Hanamant. He submits that PWs. 7 to 9 are the injured witnesses, out of them PWs. 8 and 9 have sustained grievous injuries. Hence, their presence at the spot and witnessing the incident cannot be doubted. He submits that accused Nos.1 to 4 have assaulted the deceased with deadly weapons and other accused have assaulted the injured and therefore the trial Court was justified in convicting accused Nos.1 to 4 for the charges of murder. He contends that the evidence of injured eyewitnesses are consistent and their evidence cannot be discarded. Hence, he submits that there is no merit in the appeal and seeks to dismiss the appeal. 13. We have heard the rival contention and also perused the material on record. The points that arise for our consideration are as under:- 01. Whether the prosecution has established the guilt of the accused beyond reasonable doubt for the offences for which now they are convicted by the trial Court? 02. Whether the judgment and order of conviction and sentence passed by the trial Court requires any interference by this Court? 03. What Order? 14. At the outset, it is to be noted that the case of the prosecution is that, all the accused formed an unlawful assembly, armed with deadly weapons with a common object of committing the murder of Hanamanth, and to cause injuries to others, assaulted them with deadly weapons. 03. What Order? 14. At the outset, it is to be noted that the case of the prosecution is that, all the accused formed an unlawful assembly, armed with deadly weapons with a common object of committing the murder of Hanamanth, and to cause injuries to others, assaulted them with deadly weapons. The trial Court has convicted accused Nos.1 to 4 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code and has acquitted other accused of the said charge. The State has not challenged the judgment and order of acquittal. Though the trial Court has found accused Nos.1 to 4 guilty of murder, it erroneously convicted them under Section 302 of Indian Penal Code with the aid of Section 149 of Indian Penal Code. Since, only an assembly of five or more persons can be designated as an unlawful assembly. 15. To establish the guilt of the accused, the prosecution in all examined PWs. 1 to 20 and got marked Exs.P.1 to 48. 16. The homicidal death of Hanamantha is not disputed. Even otherwise, perusal of inquest panchanama-Ex.P.25 and postmortem report - Ex.P.27 and evidence of PW-14, doctor who conducted autopsy establish the said fact. Postmortem report reveals that Hanamanth died on account of hemorrhagic shock as a result to injuries to vessels of the neck on left side and small intestine. Prosecution has therefore established that the death is homicidal in nature. 17. The motive alleged is that prior to the incident in question, the husband of accused No.1 was murdered and in the said case the first informant (PW-8) and her husband Hanamanth (deceased) were named as accused. However, they were acquitted by the Court, hence the accused being the relatives of PW-8 were nourishing ill-will against them. 18 It is relevant to see that the aforesaid incident had taken place about 04-05 years prior to the incident in question. It is not the case of the prosecution that immediately after acquittal, the accused herein had made any attempt on the life of the deceased or even thereafter there was any un-toward incident. There is no such incident, which has been brought on record. There are no cases registered against any of the accused to show that they had either picked up quarrel or threatened the deceased or others after PW-8 and her husband were acquitted by the Court. There is no such incident, which has been brought on record. There are no cases registered against any of the accused to show that they had either picked up quarrel or threatened the deceased or others after PW-8 and her husband were acquitted by the Court. PW-8, wife of the deceased has admitted in her cross-examination that herself and her deceased husband were acquitted in the murder case 05 years ago and thereafter till the present incident there was no quarrel whatsoever between the accused and themselves. Therefore, it cannot be accepted that the incident which took place about 04-05 years, was the cause for the incident in question. The immediate cause for the incident is not established by the prosecution and therefore the prosecution has failed to prove the motive projected by it for the accused to commit the offence. 19. According to the prosecution PWs. 1 to 10 are the eyewitnesses to the incident. Amongst them PWs. 7 to 9 are the injured. If the evidence of these witnesses are believed, then the motive will not play an important role. Out of these witnesses PWs. 1 to 6 are independent eyewitnesses and PWs. 7 to 10 are related to the deceased. However, PWs. 1 to 6 have given a complete go-by to the prosecution case. They have been treated hostile and therefore their evidence is not useful to the prosecution, as nothing worthwhile has been elicited from them. According to the learned counsel for the accused, PWs. 7 to 10 are highly interested witnesses and their evidence suffer from material contradiction. They being interested and partisan witnesses, their evidence cannot be believed. 20. It is well settled that merely because witnesses are relatives it does not mean and imply that their evidence is to be rejected. However, it is the predominant duty of the Court to be more careful in the matter of scrutiny of their evidence. If on such scrutiny, if their evidence is found to be trustworthy, question of rejection would not arise. Keeping this principle in mind, we proceed to examine the material evidence on record. In the present case PWs. 7 to 10 are closely related to the deceased. Hence, evidence of the said witnesses have to be carefully scrutinized so as to rule out the possibility of false implication of any of the accused. 21. According to prosecution, PW-8 is the first informant. In the present case PWs. 7 to 10 are closely related to the deceased. Hence, evidence of the said witnesses have to be carefully scrutinized so as to rule out the possibility of false implication of any of the accused. 21. According to prosecution, PW-8 is the first informant. The incident is said to have occurred at about 06.30 p.m. on 19.01.2008. As per prosecution case, PW-8 went to Police Station at about 09.00 p.m. and narrated the incident in Kannada language, on the basis of which PW-19 -PSI of Narona Police Station registered the case and took up investigation. PW-19 has deposed that PW-8 came to the police station and gave the first information and he reduced it into writing and took her thumb impression and prepared FIR (Ex.P.20). Thereafter he sent PW-8 to the hospital for treatment and informed the incident to his higher officers. Thereafter, he went to the spot. However, strangely, PW-8 in her cross-examination has admitted that she did not go to the police station. On the other hand she has deposed that after the incident she went to the house of 'Dalapathi' of the village by name Udayakumar (CW-12) known as Police Goudar. She has stated that it is he who wrote down what she has narrated. Thereafter, the said Dalapathi and her brother-in-law (PW-7) went to the police station. She has specifically stated that apart from the said statement given to Dalapathi, police has not questioned her nor taken her statement. At one stage she has stated that after going to the house of Dalapati they went to the Police Station at about 10.00 - 11.00 p.m. and that she narrated the incident to police. However, in another breath she has stated that in view of the injuries suffered by her, she could not go to the police station. She has stated that when she was in the Hospital, the police enquired her. 22. The prosecution has not examined CW-12 Udayakumar. According to PW-8 the said witness is Dalapathi of village and before him she narrated the incident and it is he who reduced her statement into writing which is marked as Ex.P.20. Though he is shown as CW-12 in the charge sheet, he has not been examined by the prosecution before the Court. The prosecution has not examined CW-12 Udayakumar. According to PW-8 the said witness is Dalapathi of village and before him she narrated the incident and it is he who reduced her statement into writing which is marked as Ex.P.20. Though he is shown as CW-12 in the charge sheet, he has not been examined by the prosecution before the Court. In view of the specific admission made by PW-8, it cannot be said that it is she who went to police station and lodged the first information report as per Ex.P.20. 23. According to PW-7, the brother of the deceased, after the incident he alone went to the police station and narrated the incident to the police. He went to the police station at around 09.30 to 10.00 p.m. He has stated that the police informed him to take treatment in the Hospital and told him that after inspecting the spot they will record his statement. Thereafter when he was taking treatment in the Hospital at around 12.30 a.m. in the night the police came and enquired about the incident and recorded his statement. Hence, there is serious discrepancy in the prosecution case with regard to lodging of first information report. According to PW-19-PSI it is PW-8 who came to the police station and lodged the FIR. However, PW-8 herself has admitted that she did not go to the police station. On the other hand, she and PW-7 went to the house of Dalapati (CW-12) and he wrote down her complaint and went to the police station along with PW-7. PW-7 has stated that after the incident he alone went to the police station to lodge the complaint, however, the police sent him to Hospital stating that they will inspect the scene of occurrence and thereafter, they came to the Hospital and recorded his statement at around 12.30 a.m. 24. PW-7 is brother of the deceased. He has stated that at about 06.00 p.m. when himself, his wife i.e., PW-10 and his children were in their house, the deceased went to attend first call of nature. At that time, all the accused picked up quarrel with him and tried to assault him. He came running to his house and went inside. Accused started pelting stones. When the deceased was in front of his house accused Nos.2 and 4 held him and accused No.1 assaulted with sickle on his neck. At that time, all the accused picked up quarrel with him and tried to assault him. He came running to his house and went inside. Accused started pelting stones. When the deceased was in front of his house accused Nos.2 and 4 held him and accused No.1 assaulted with sickle on his neck. Accused No.3 assaulted on his head with sickle. Accused No.5 assaulted on his abdomen with sickle. Accused No.4 assaulted near his mouth. Accused No.2 assaulted with stone on his leg. Accused No.10 assaulted him (PW-7) with a stone and all the accused pelted stones. His father, wife his children and PW-8 tried to pacify the quarrel. Accused Nos.7 and 9 assaulted PW-8 with stick. Accused No.6 assaulted his father i.e., PW-9 with stone. Hanamanth died at the spot. Thereafter, accused went away. In the cross-examination he has stated that at the time of incident none of the neighbors came to spot. It is elicited from him in the cross-examination that when he went to the police station accused Nos.1 and 6 were already in the police station. 25. PW-8 is the wife of the deceased. She has narrated the incident as deposed by PW-7. In the cross-examination she has stated that incident occurred around07.30 to 08.00 p.m. In front of her house, houses of 20 to 30 persons are situated. In that place there are no street lights and none of the houses has electricity. When police came to the spot it was about 09.00 p.m. and when they went to the Hospital it was about 02.00 a.m. It is elicited in her cross-examination that she used to go to the land and do agricultural work. On the date of incident when she returned she was late by 01 to 02 hours. By the time she came to her house, her husband was down with injuries. Since, it was Moharam festival all the villagers were attending the said festival. After some time her brother Jattinga i.e., PW-7 came to the spot. Thereafter, he went and brought the police. The said admission made by her, in the cross-examination demolishes the case of the prosecution that she and PW-7 were eyewitnesses to the incident. According to PW-8 incident took place at 07.30 to 08.00 p.m. There was no street light near the spot and none of the houses had electricity connection. Thereafter, he went and brought the police. The said admission made by her, in the cross-examination demolishes the case of the prosecution that she and PW-7 were eyewitnesses to the incident. According to PW-8 incident took place at 07.30 to 08.00 p.m. There was no street light near the spot and none of the houses had electricity connection. When she returned from her land after finishing agricultural work, her husband was lying on the ground with injuries. The prosecution has treated PW-8 as hostile. However, she has denied the suggestion that she was deposing falsely. 26. PW-9 father of the deceased is also an injured witness. It is relevant to see that the said witness was not subjected to cross-examination. He was not available for cross-examination due to his death. Hence, his evidence is incomplete. 27. PW-10 is the wife of PW-7. According to her, incident was witnessed by PWs. 1, 2 and herself. In the incident her husband as well her father-in-law i.e., PW-9 sustained injuries. In the cross-examination conducted by the defence, she has specifically stated that when she heard the screaming sound of the deceased, the sun had already set. When she went out, the deceased was already lying dead with injuries. It is elicited from her that, when she deposed on the previous occasion, PW-8, police and herself sat together and discussed the matter and she gave evidence as per their say. 28. PWs. 11 and 12 are the panch witnesses to the seizure mahazars Exs.P.21 to 24 under which weapons are alleged to be recovered at the instance of accused persons. However, the said witnesses have not supported the prosecution case. 29. PWs. 13 and 16 are panch witnesses to Exs.P.25 and 26 i.e., inquest panchanama and spot panchanama. Both the witnesses have not supported the prosecution case. 30. Testimony of an injured witness has its own efficacy and relevancy. Ordinarily an injured witness would enjoy greater credibility as his presence at the scene of offence can not be doubted. His evidence must be therefore, given due weight age. It is a well settled principle that a cogent and convincing grounds are required to discard the evidence of an injured witness. 31. In the instant case PW-s.7 to 9 are the injured-witnesses. The wound certificate issued by the Doctor-PW-15 in respect of the said witnesses are marked as Exs.P.28, 29and 30 respectively. It is a well settled principle that a cogent and convincing grounds are required to discard the evidence of an injured witness. 31. In the instant case PW-s.7 to 9 are the injured-witnesses. The wound certificate issued by the Doctor-PW-15 in respect of the said witnesses are marked as Exs.P.28, 29and 30 respectively. Perusal of the same goes to show that PW-7 sustained one simple injury. PW-8 sustained one grievous injury and two simple injuries. PW-9 has suffered grievous injuries such as fracture of first metacarpal bone and fracture of first phalanges of middle finger. 32. The mute question is as to whether the said witnesses have suffered injuries at the same time, when the deceased was assaulted by the assailants. In the wound certificate, history of injuries is stated to be due to assault. Though names of assailant need not be mentioned in the wound certificate, however, in the light of admission given by the injured witnesses, viz., PW-8 in the cross-examination that by the time she reached the spot her husband was already lying down with injuries and that her brother-PW-7 came to the spot after some time, mentioning the names of assailant in the wound certificate would have gained some importance. If the said two injured witnesses have reached the spot after the incident of assault on the deceased then it is very difficult to accept that they witnessed the actual assailants assaulting the deceased and they too receiving injuries at the same time, when the deceased received the fatal injuries. It is also relevant to see the admission given by PW-10 wife of PW-7 wherein, in the cross-examination she has stated that before giving evidence in the Court, PW-8, police and herself have discussed together and as per their say they deposed before the Court. 33. On a close scrutiny of evidence of PWs. 7 to 10, we are of the view that, false implication of the accused cannot be ruled out. We have already held that, the prosecution has failed to prove the motive. There is serious discrepancy in lodging of first information report by PW-8. Though, the case of prosecution is that PW-8 is the first informant who went to police station and gave information to the police i.e., PW-19, who reduced it into writing, however, in her cross-examination she has clearly admitted that she did not go to the police station. There is serious discrepancy in lodging of first information report by PW-8. Though, the case of prosecution is that PW-8 is the first informant who went to police station and gave information to the police i.e., PW-19, who reduced it into writing, however, in her cross-examination she has clearly admitted that she did not go to the police station. On the other hand, she went to the house of one Dalapathi of village by name Udayakumar (CW-12) known as Police Goudar and narrated the incident to him. Thereafter, said Dalapathi and her brother-in-law (PW-7) went to the police station. In view the said evidence of PW-8, the evidence of PW-19 - PSI, who is said to have reduced the first information given by PW-8 into writing as per Ex.P.20, cannot be believed. It cannot be said that Ex.P.20 is the first information given by PW-8 to the police or that it came into existence at the earliest point of time narrating the true facts. Prosecution has not examined CW-12. Hence, lodging of first information is shrouded with doubt with regard to participation of all or any of the accused. 34. According to PW-7 after the incident he went to the police station to lodge the complaint, but the police sent him to the Hospital stating that they will inspect the scene of occurrence. He has stated that thereafter the police came to the Hospital and recorded his statement at around 12.30 a.m. Another aspect is that, according to PW-7, when he went to the police station for lodging the complaint, accused Nos.1 and 6 were already present in the police station. However, same is suppressed by the prosecution. On the other hand, accused Nos.1 and 6, are shown to have been arrested on the next day. Presence of accused Nos.1 and 6 in the police station also gives room to doubt the prosecution case as projected by it. PW-7 in his cross-examination has stated that the said accused Nos.1 and 6 were claiming that they have committed the offence. If that is so, whether all the accused have participated in the crime is very doubtful. 35. As discussed supra and at the cost of repetition, PW-8 has admitted in her cross-examination that, their houses are situated on the hilltop and there is no electricity supply to their houses. If that is so, whether all the accused have participated in the crime is very doubtful. 35. As discussed supra and at the cost of repetition, PW-8 has admitted in her cross-examination that, their houses are situated on the hilltop and there is no electricity supply to their houses. She has stated, by the time she returned from her land, her husband was already lying on the ground with injuries. After some time her brother Jatting (PW-7) came to the spot. Even PW-10 another eyewitnesses to the incident has stated in her cross-examination that when she heard the screaming sound of deceased, the sun was already set in and by the time she came out, the deceased was already lying dead with injuries. In view of the said admission, the evidence of the so called injured witnesses cannot be accepted as gospel truth to convict the accused. PW-1 to PW-6, the independent eyewitnesses have not supported the prosecution case. 36. The defence set up by the accused is that the deceased was having number of enemies in the village, since his character was not good. Therefore, he was murdered by some persons, who were having animosity. A false case was foisted against the entire family members of the accused on account of the earlier incident. 37. It was suggested to PW-7 that the deceased used to consume liquor in the night and he was in the habit of abusing women folks of the village and in this regard he was admonished by the villagers. It was suggested to him that the deceased tried to outrage the modesty of the wife of one Basavaraj Hugar and in this regard there was quarrel. The same was denied by PW-7. However, the said witness has admitted that there was a criminal case filed against himself, his father and the deceased on an allegation of assaulting one Basanna and another case on an allegation of assaulting one Ambaji s/o Mallappa Yalawar. 38. PW-8 in her cross-examination has stated that accused No.6 is the uncle of accused No.1 Kashibai. Accused Nos.2 to 5 are the sons of accused No.6. Accused Nos.7 to 10 are the daughters-in-law of accused No.6. Gundappa and Basanna are brothers of accused No.6. PW-7 Jatting, deceased Hanamantha and one Srimanth are the sons of Gundappa. 38. PW-8 in her cross-examination has stated that accused No.6 is the uncle of accused No.1 Kashibai. Accused Nos.2 to 5 are the sons of accused No.6. Accused Nos.7 to 10 are the daughters-in-law of accused No.6. Gundappa and Basanna are brothers of accused No.6. PW-7 Jatting, deceased Hanamantha and one Srimanth are the sons of Gundappa. Accused No.6 and his brother Basanna had filed a civil case for partition, which was decided in their favour. Since, the deceased had not properly partitioned the house property, Anand (Accused No.6) and Basanna were insisting to give them their share. She has also stated that PW-7 and Srimanth, were also asking the deceased to give them their share. However, she says there was no quarrel in that regard. But, PW-8 has admitted that about 2-3 years prior there was a case registered against the deceased, for quarrelling with one Ambaji under the influence of alcohol. It was suggested to her that the deceased had committed sexual assault on the wife of Basavaraj Hugar and also assaulted her, when she refused. Further that the deceased was in the habit of abusing women folks in the village and it was complained to the village heads. However, the said suggestions were denied. 39. The trial Court has proceeded to convict accused Nos.1 to 4 for the offences under Sections 148, 336 and 302 read with Section 149 of Indian Penal Code and accused Nos.6 to 10 under Sections 148, 336 and 324 read with Section 149 of Indian Penal Code, on the basis of evidence of PWs. 7 to 10. It is observed by the trial Court that evidence of each of PWs. 7 to 9 corroborated the testimony of the other and PW-10 has also supported the prosecution case. The trial Court has accepted the evidence of PW-9 observing that he was not at all cross-examined. Therefore, his evidence is to be believed in to. It is pertinent to mention that the said witness died after he was examined by the prosecution. Hence, there was no opportunity to the prosecution to cross-examine the said witness. The trial Court has refused to accept the defence version with regard to ill-will between three brothers viz., Gundappa, Basanna and Srimant as the deceased himself wanted to usurp the entire property of his maternal grandmother. Hence, there was no opportunity to the prosecution to cross-examine the said witness. The trial Court has refused to accept the defence version with regard to ill-will between three brothers viz., Gundappa, Basanna and Srimant as the deceased himself wanted to usurp the entire property of his maternal grandmother. The trial Court accepted the motive projected by the prosecution and believing the evidence of PWs. 7 to 9 has convicted the accused. 40. As discussed by us, the evidence of prosecution witnesses does not inspire confidence so as to hold the accused guilty of the offences for which they are convicted by the trial Court. Hence, by extending the benefit of doubt, we hold that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. We thus answer the points raised by us and proceed to pass the following: ORDER: The appeal is allowed. The judgment and order dated 17.02.2011 passed in S.C.No.230/2008 by the Court of the II Additional Sessions Judge at Gulbarga is hereby set aside. The accused are acquitted. They shall be released forthwith, if not required in any other case. The fine amount deposited by them if any, shall be returned to them.