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2023 DIGILAW 1261 (KAR)

Balaji v. State of Karnataka

2023-11-02

SREENIVAS HARISH KUMAR, T.VENKATESH NAIK

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JUDGMENT SREENIVAS HARISH KUMAR, J. This appeal is directed against the judgment dated 25.10 .2016 passed by the IV Additional District and Sessions Judge, Doddaballapura in S.C .No .10005/2014 convicting the accused for the offence punishable under Sec. 302 of IPC and sentencing him to undergo life imprisonment and fine of Rs.5, 000.00 with default imprisonment for a period of two years. 2. The name of the deceased is one Ramu @ Ramesh who was working as a watchman o f the pushcarts in the bus stand. The accused was a cleaner in a hotel. PW1, who was a private bus loader in Doddaballapura bus stand, gave a report of the incident dtd. 12/11/2013. He reported to the police that around 02.45pm on 12.11 .2013, he saw the deceased and the accused quarreling with each other and in the course of quarrel, the accused inflicted an in jury on the neck of the deceased Ramu @ Ramesh and fled that place. Immediately PW1 and other two or three persons went there. He saw Ramu @ Ramesh being dead. The investigation led to filing of charge sheet against the accused. 3. Of the 20 witnesses examined by the prosecution, PW1, PW2, PW3 and PW6 are the eye witnesses. PW4 and PW7 are the witnesses to spot mahazar drawn as per Ex.P.4. PW8 and PW9 are the witnesses to seizure o f blood stained clothes of accused in the police station under the mahazar, Ex.P.9. PW15 was the doctor who conducted post mortem examination. PW2, PW3 and PW6 turned hostile. 4. The trial court has held that although PW2, PW3 and PW6 turned hostile, the evidence of PW1 is believable. The knife was seized by the police on the spot itself. After arrest of the accused, his blood stained clothes were seized. The knife, clothes of the deceased and the clothes of the accused were all sent to FSL for scientific examination and the FSL report marked at Ex.P.16 indicates the presence of 'A' group blood on all the items. Though the witness to mahazar Ex.P .9 turned hostile, the evidence of PW19, the investigating officer can be believed. The trial court in this regard has opined that there is no rule that the court should not act upon the evidence of the investigating officer. Though the witness to mahazar Ex.P .9 turned hostile, the evidence of PW19, the investigating officer can be believed. The trial court in this regard has opined that there is no rule that the court should not act upon the evidence of the investigating officer. Finding that there is no case made out for scaling down the offence from Sec. 302 of IPC to Sec. 304 of IPC, the trial court arrived at a conclusion that the prosecution was able to prove beyond reasonable doubt that the accused did commit murder of the deceased Ramu @ Ramesh and, hence convicted and sentenced him. 5. We have heard the arguments of Sri M.Sharass Chandra, learned counsel for the appellant/accused and Sri Vijayakumar Majage, learned SPP-II for respondent/State. 6. It is the argument of Sri M.Sharass Chandra, learned counsel for the appellant / accused that PW2, PW3 and PW6 turned hostile completely. I f the evidence of PW1 is read, it cannot be said that he supported the prosecution. The incident is said to have taken place around 02.45pm on 12/11/2013, but in the cross examination, PW1 stated very clearly that he came to bus stand at 4.00pm. He also stated that he did not lodge any complaint as per Ex.P.6 and that the police obtained his signature on it. Ex.P.6 is a computer typed complaint. PW1 has not written it and therefore in all probability, the police might have prepared the complaint and obtained the signature of PW1. The trial court ought to have drawn conclusions that PW1 was not an eye witness in the light of the answers that he has given in the cross examination. His argument is therefore that when the testimony of PW1 fails, based on mere recovery of the clothes said to be that of accused, no inference about his involvement in the commission of crime can be drawn. Moreover PW8 and PW9 did not support the seizure of blood stained clothes. Indeed FSL report indicates the presence of blood stains on all the material ob jects, but that itself cannot be a reason for drawing conclusion against the accused about his involvement in the crime . He therefore argued that appreciation of evidence made by the trial court is not proper. In this view the appellant/accused becomes entitled to acquittal. 7. Indeed FSL report indicates the presence of blood stains on all the material ob jects, but that itself cannot be a reason for drawing conclusion against the accused about his involvement in the crime . He therefore argued that appreciation of evidence made by the trial court is not proper. In this view the appellant/accused becomes entitled to acquittal. 7. Per contra, Sri Vijayakumar Majage, learned SPP-II submits that PW1 has clearly stated that he has seen the incident when he was in the bus stand. He has stated that he himself gave a complaint to the police. He is an eye witness. He identified the accused in the open court. He was very much present when spot mahazar was drawn. He also identified MO1, the knife used for inflicting in juries. Merely because he gave one stray answer in the cross examination that he did not lodge complaint, his entire testimony does not become unbelievable. His further argument is that the testimony o f PW1 is strengthened by the FSL report which states about detection of 'A' group blood on all the items. The blood group of the deceased was 'A'. The same blood group was detected on the clothes of the accused . On the knife also same blood group was detected . For all these reasons a clear inference can be drawn that none other than the accused committed the crime of killing Ramu @ Ramesh. The trial court has drawn the conclusion correctly and the appeal deserves to be dismissed. 8. We have perused the entire evidence both oral and documentary and considered the points of arguments. 9. Out of the four eye witnesses-PW1, PW2, PW3 and PW6, PW2, PW3 and PW6 did not support. I f the evidence of PW1 is perused, what we find in his examination in chief is that a quarrel was going on in the old bus stand in between 3 and 3.15pm and during that quarrel, Bala ji i.e., the accused stabbed the deceased with a knife. He was also present when the spot mahazar was drawn as per Ex.P.4. He identified the knife at MO1, the blood stained mud at MO2 and plain mud at MO3 . But in the cross examination, he stated that he did not lodge complaint and that the police obtained his signature on Ex.P.6 . He was also present when the spot mahazar was drawn as per Ex.P.4. He identified the knife at MO1, the blood stained mud at MO2 and plain mud at MO3 . But in the cross examination, he stated that he did not lodge complaint and that the police obtained his signature on Ex.P.6 . He also stated that he did not know the contents of Ex.P.6. His evidence is that the police told him about the contents o f Ex.P.6. Again he was examined by the public prosecutor on 5/8/2016 and at that time, he turned hostile to some extent. When the public prosecutor cross examined him, he stated that he himself did not get the complaint written by anybody and it was written by the police. 10. When we refer to the evidence of PW20, the Sub-Inspector of Police, who registered the FIR, he stated that at 04 .30pm, PW1 came to police station with a written complaint. But Ex.P .6 is not a written complaint, but it is computer typed. We will deal this aspect later. 11. Though there is no dispute with regard to drawing of spot panchanama and seizure of clothes of the deceased as also the knife, in regard to seizure of clothes of the accused, the independent witnesses have not supported. Therefore there remains the evidence of PW19 the investigating officer, who stated that after arresting the accused, he obtained his voluntary statement. He noticed blood stains on the clothes worn by the accused and then seized those clothes in the police station . MO6 and MO7 are the clothes of the accused. 12. Now if the entire evidence is assessed, a doubt arises with regard to lodging of complaint by PW1. In the examination-in-chief, he may have stated that he gave a complaint, but in the cross examination, he denies it and states that it was obtained by the police. The answer thus given by PW1 appears to be believable, because Ex.P.6 is not hand written. PW20 stated that PW1 gave a written complaint to him, his evidence thereby becomes difficult to be believed, because of the fact that Ex.P.6 is not hand written. Whatever may be the discrepancy with regard to lodging of complaint, the question arises whether PW1 was an eye witness to the incident. 13. According to prosecution the incident is said to have taken place around 02.45pm. Whatever may be the discrepancy with regard to lodging of complaint, the question arises whether PW1 was an eye witness to the incident. 13. According to prosecution the incident is said to have taken place around 02.45pm. The deceased met the death on account o f cut in jury on his neck which is clearly mentioned in Ex.P.11, the post mortem report. I f according to PW1 he came to bus stand at 04 .00pm, a doubt really arises whether he was present at the time the incident occurred. What he has stated in the cross examination is that when he came to bus stand at 4.00pm, he saw the police being there and they obtained his signature on Ex.P.6. Merely because PW1 stated in his examination-in-chief that a person by name Balaji i.e ., accused stabbed the deceased by that itself he cannot be called an eye witness to the incident. This becomes possible because of the nature of answers extracted from him by the public prosecutor himself. The other eye witnesses have not supported the prosecution. Thereby the testimony o f PW1 is difficult to be relied on. 14. There remains the evidence given by PW19 with regard to seizure to blood stained clothes of the accused. No doubt MO6 and MO7 contained blood stains. MO1 also contained blood stains. FSL report clearly states that blood stains were detected on the knife, clothes of the accused and also the deceased. Of course the seizure of MO6 and MO7 by PW19 is believable. I f the blood stains were found on the clothes of the accused he alone must explain as to how the stains was found on his clothes; he has not given any explanation. Based on this a conclusion can be drawn about his involvement. 15. From the discussion, it is found that two views are possible to be taken. I f the testimony of PW1 appears to be not believable, the blood stained clothes of the accused points to his involvement in the commission of the offence . It is a well settled principle that when two views are possible, benefit should go to the accused. Though the view expressed by the trial court cannot be said to be wrong, in view of another possible view being taken, we are of the opinion that the appeal deserves to be allowed. It is a well settled principle that when two views are possible, benefit should go to the accused. Though the view expressed by the trial court cannot be said to be wrong, in view of another possible view being taken, we are of the opinion that the appeal deserves to be allowed. Hence the following: ORDER The appeal is allowed. The judgment and order of conviction passed by the IV Additional District and Sessions Judge, Doddaballapura dtd. 25/10/2016 in S.C .No.10005/2014 is setaside. The appellant/accused is acquitted of the offence charged against him. His bail bond stands cancelled. The fine amount, if any, deposited by the accused, shall be refunded to him. Send back the trial court records with a copy of this judgment, forthwith.