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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23RD DAY OF APRIL 2015

PRESENT

HON’BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR

AND

HON’BLE MR. JUSTICE PRADEEP D. WAINGANKAR

CRL.A.NO.147 OF 2010

BETWEEN:

1. SONNEGOUDA S/O. LATE NARAYANASWAMY AGED ABOUT 32 YEARS OCC: BUSINESS

R/A. 1ST MAIN ROAD HEBBAL KEMPAPURA BANGALORE – 560 024.

2. MAHESH

S/O. LATE G. MUNEGOUDA AGED ABOUT 33 YEARS OCC: BUSINESS R/A. VENKATEGOUDA EXTENSION HEBBAL – KEMPAPUR BANGALORE – 560 024.

3. KITTI @ KRISHNA

S/O. BORANNA AGED ABOUT 38 YEARS OCC: CQAL EMPLOYEE R/A. VENKATEGOUDA EXTENSION HEBBAL – KEMPAPUR BANGALORE – 560 024.

4. KISHORE @ MUNNA

S/O. VITTAL NAYAK

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AGED ABOUT 28 YEARS OCC: MECHANIC

R/A. NEAR PRESIDENCY COLLEGE HEBBAL – KEMPAPUR BANGALORE.

5. ANJINEGOUDA

S/O. LATE CYCLE SHOP NARAYANAPPA AGED ABOUT 45 YEARS OCC: BUSINESS R/A. KODIGEHALLI BANGALORE.

6. ANJINAPPA

S/O. RAMAIAH AGED ABOUT 42 YEARS OCC: BUSINESS (PROVISION STORE) R/A. KAVERI NILAYA NEAR AYYAPPA TEMPLE HEBBAL – KEMPAPUR

BANGALORE.

7. SRINIVAS @ CYCLE SHOP SRINIVAS S/O. MUNIYAPPA AGED ABOUT 38 YEARS

OCC: BUSINESS (CYCLE SHOP) R/A. NEAR BHUVANESWARI TEMPLE VERMA LAYOUT, KEMPAPURA BANGALORE.

8. M. UMESH

S/O. MADHU AGED ABOUT 29 YEARS OCC: BUSINESS R/A. DASARAHALLI MAIN ROAD HEBBAL – KEMPAPUR BANGALORE – 560 024. …… APPELLANTS

(BY SRI. H.S. CHANDRAMOULI, ADV., FOR APPELLANTS SRI. RAVI B NAIK, SR. COUNSEL FOR SRI. AMAR CORREA, ADV., FOR A2 AND A3)

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AND:

THE STATE OF KARNATAKA BY THE POLICE OF HEBBAL POLICE STATION BANGALORE CITY. …. RESPONDENT ( BY SRI.VISHWESHWARA, HCGP) THIS CRL.A. IS FILED U/S 374(2), CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED:3/4.2.2010 PASSED BY THE P.O., FTC-IX, BANGALORE IN S.C.No.365/2007 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S. 143, 147, 148, 302 R/W 149 AND SEC. 120-B OF IPC ETC.,

THIS CRL. APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT THIS DAY, PRADEEP D. WAINGANKAR J., DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is directed against the judgment of

conviction and order of sentence dated 3.2.2010 passed in

S.C.No.365/2007 on the file of Presiding Officer, Fast

Track Court –IX at Bangalore. By the impugned judgment,

accused Nos.2 to 4 and 6 to 10 were tried and convicted

for the offences punishable under Sections 143, 147, 148,

120-B, 302 r/w 149 IPC and have been sentenced to

undergo imprisonment for a period of six months and to

pay fine of Rs.1,000/- each and in default to undergo

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imprisonment for one month for the offence punishable

under Section 143 IPC, to undergo imprisonment for a

period of one year and to pay fine of Rs.2,000/- each, in

default to undergo imprisonment for two months for the

offence punishable under Section 147 IPC, to undergo

imprisonment for a period of two years and to pay fine of

Rs.3,000/- each, in default to undergo imprisonment for

three months for the offence punishable under Section

148 IPC, to undergo imprisonment for a period of six

months and to pay fine of Rs.1,000/- and in default to

undergo imprisonment for one month for the offence

punishable under Section 120-B IPC and to undergo

imprisonment for life and to pay fine of Rs.10,000/- each

for the offence punishable under Section 302 IPC r/w 149

IPC.

2. The prosecution case in brief is as under:-

The complainant Manjunath PW-20 and deceased

Santhosh were friends. There was enmity between

accused No.1 and deceased Santhosh in connection with

milk business. In order to take revenge on the deceased,

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accused No.1-Jagadeesh Gowda was waiting for an

opportunity. On 1.4.2006, at about 8.30 p.m.,

Manjunath PW-20 and Madhu-PW-21 had gone to Shakti

bar, Hebbal to have dinner. At that time, Praveen, Prakash

and deceased Santosh were there in the bar taking food.

PW-20 and PW-21 joined them. At about 11.00 p.m., after

taking food, all of them came out from the Shakti bar.

Prakash, deceased Santhosh and Manjunath went in

Pulsar motor cycle belonging to Santhosh. They dropped

Prakash at Hebbal and thereafter PW-20 Manjunath and

Santhosh came to Kempapura on Pulsar motor cycle.

Manjunath was riding the motor cycle. They came near

the shop of one Sridhar. Since he was not there, they met

Prakash and spent ½ hour in the company of Prakash.

Thereafter, PW-20 and deceased Santosh left for

Lingarajapura on Pulsar motor cycle. On the way, when

they reached near Coffee Board junction on main road, a

white qualis vehicle came from behind and dashed against

rear side of the motor cycle, as a result of the impact,

deceased Santosh fell down on the road and the rider

Manjunath fell down into a gutter alongwith the motor

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cycle. All of a sudden accused No.1 who was driving the

qualis vehicle stopped and all the inmates who were the

henchmen of accused No.1 suddenly got down from the

vehicle and armed with deadly weapons like long,

choppers and rod assaulted deceased Santosh mercilessly.

When PW-20 Manjunath requested them not to assault

the deceased, they assaulted Manjunath also. After

assault, accused No.1 drove the qualis vehicle over the

head of deceased Santosh causing his instantaneous

death. All the accused fled away from the scene of

occurrence. PW-20 who had suffered injuries contacted

Praveen over mobile and informed him about the incident.

Immediately, Prasad came on the motor cycle and saw

deceased Santosh who was dead. PW-20 was shifted by

Prasad and one Govind PW-31 to Baptist hospital for

treatment. Dr. Raghunath-PW-34 of Baptist hospital

forwarded the medico-legal intimation Ex-P11 to Hebbal

police station. Immediately, the Police Inspector-R Mohan-

PW-35 of Hebbal police station rushed to the Baptist

hospital and recorded the statement of PW-20 Manjunath

as per Ex-P10 in the presence of Dr. Venkat PW-12 and

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registered the case in Cr.No135/2006 of Hebbal police

station against four to five unknown persons and

forwarded the FIR Ex-P40 to the jurisdictional Magistrate.

He visited the scene of occurrence, drew up spot

panchanama Ex-P17, whereunder he seized M.Os.9 to 15

bloodstained mud, sample mud, iron rod, blue colour

slipper, mudguard, blood stained blue pant respectively.

He conducted inquest proceedings as per Ex-P16 over the

dead-body of deceased Santosh and recorded statement of

witnesses viz., Anand and Ravi. He forwarded the dead-

body for post-mortem examination. He recorded further

statement of PW-20 Manjunath, wherein he disclosed the

name of all the accused Nos.1 to 10 as the persons who

committed murder of deceased Santosh and injuries to

him. He secured Ex-P9 the wound certificate of PW-20

from Baptist hospital, spot sketch Ex-P15 from PWD

engineer, PM report Ex-P12, IMV report Ex-P27. He

recorded the statement of PW-21 Madhu, Praveen,

Prakash, he secured information regarding the qualis KA-

04-D-7774(M.O.7) and seized the qualis at Attibele under

panchanama Ex-P39. The accused were apprehended at

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various places on different dates. He recorded the

voluntary statement of accused and at their instance,

recovered weapons used for the commission of the offence

which were concealed in a Maruthi car. He secured the

opinion of the finger print expert as per Exs-P23 to P25

and upon completion of all formalities of investigation,

charge-sheet came to be filed against accused Nos.1 to 10

for the aforesaid offences.

3. The accused having denied the charges levelled

against them, the prosecution in all examined 36

witnesses as PW-1 to PW-36, marked Exs-P1 to P60 apart

from M.Os.1 to 21. On behalf of the defence, sketch was

marked as Ex-D1. The learned Sessions Judge on

appreciation of evidence recorded a finding that the death

of deceased Santosh was homicidal and convicted the

appellants accused Nos. 2 to 4 and 6 to 10 for having

caused injuries to PW-20 and death of deceased Santosh,

since accused Nos.1 and 5 died during the pendency of

trial and thereby the case against them abated.

Questioning the legality and correctness of the judgment

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of conviction and order of sentence, accused Nos.2 to 4

and 6 to 10 have preferred this appeal.

We have heard Sri.H.S. Chandramouli, learned

counsel for the appellants and Senior counsel Sri. Ravi B.

Naik for Sri. Amar Correa for appellant Nos.2 and 3 and

learned Government Pleader for the State. Perused the

records and the judgment and order passed by the court

below.

4. Sri. Ravi B. Naik, learned Senior Counsel taking

us through the evidence on record has submitted that

there are no other eyewitnesses to the occurrence, except

PW-20-injured Manjunath, who lodged the complaint

against 4 to 5 unknown persons. Learned counsel

submitted that the prosecution failed to establish beyond

reasonable doubt that it is accused Nos.1 to 10 who

inflicted fatal blow upon the deceased Santosh and caused

injuries to PW-20. It is also submitted that there are

material contradictions in the evidence of PW-20

regarding the injuries suffered by PW-20 and as

such, it is not safe to place reliance on solitary testimony

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of PW-20 to base conviction without corroboration, under

such circumstances, the learned Sessions Judge

committed grave error by convicting the accused. Hence,

the learned counsel sought to set aside the judgment of

conviction and order of sentence and to acquit all the

accused of all the charges levelled against them. The

learned counsel placed reliance on a decision of the

Supreme Court reported in (2003) 1 SCC 465 in the case

of Joseph Vs. State of Kerala to buttress his argument.

The learned Government Pleader on the other hand

referring to the evidence on record would submit that the

evidence of PW-20, who is an injured eyewitness to the

occurrence remained intact and as such his evidence

coupled with other circumstantial evidence surfaced from

the evidence tendered by the prosecution witnesses is

sufficient to hold that all the appellants guilty of

committing murder of the deceased and causing injuries

to PW-20. Supporting the judgment of conviction and

order of sentence, the learned Government Pleader would

further submit that the number of injuries inflicted on the

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deceased, injuries inflicted to PW-20, the nature of

weapon used, their modus-operandi in commission of the

crime establish beyond reasonable doubt that the

appellants with an intention of causing death assaulted

the deceased mercilessly and committed his murder. As

such, the learned Sessions Judge is fully justified in

convicting and sentencing all the accused-appellants.

Hence, he sought for dismissal of the appeals as devoid of

merits.

5. Before proceeding to appreciate the evidence of

the prosecution witnesses; it would be worthwhile to place

on record the gist of the evidence of each of the witnesses

examined by the prosecution.

PW-1 Ganesh is a pancha to the seizure

panchanama Ex-P1 under which qualis vehicle said to

have been used for commission of the crime was seized in

the presence of PW-1 and PW-33. But both of them have

turned hostile.

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PW-2 R. Babu is a pancha to Ex-P2 for having seized

pieces of number plate of qualis vehicle bearing No.KA-04-

D-7774. He has turned hostile to the prosecution case.

PWs-3 and 4 Raju and Ravi are panchas to Ex-P3 in

respect of seizure of long(weapon) at the instance of

accused No.5-Srinivas. But both of them have turned

hostile to the prosecution case.

PW-5 Govind Reddy, PW-27 Shivanna and PW-28

Venkat Reddy are the panchas to Ex-P4 whereunder the

long and rod said to have been seized at the instance of

accused Nos.2, 3 and 6 on 16.4.2006 based on their

voluntary statements. But all of them turned hostile to

the prosecution case.

PW-6- C. Kumar and PW-26 Srinivas are panchas to

Ex-P5 panchanama whereunder long said to have been

seized at the instance of accused No.4 on 18.6.2006 at

Lumbini garden. But, they have also turned hostile.

PW-7 K.R. Harish was examined to speak about the

motive for the commission of the crime i.e., alleged dispute

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that was going between accused and the deceased in

connection with milk business. But he has not supported

the case of the prosecution.

PW-8 Venkategowda was the previous owner of the

qualis car bearing No.KA-04-D-7774. He has been

examined to speak that he had sold the said vehicle to

accused No.7 due to financial difficulties and that accused

No.7 was using the vehicle. But, he has also not

supported the case of the prosecution. He has denied

having given any statement before the police as per Ex-P7.

PW-9 Ramakrishnaiah is a head constable working

in Hebbal police station, who carried FIR to the

Magistrate.

PW-10 Prabhakar is a police constable working in

Hebbal police station, who was deputed by the

Investigating Officer to trace the accused. Accordingly, he

traced and apprehended accused Umesh in Amar lodge,

Majestic and produced him before the Investigating

Officer.

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PW-11 Dr. N.P. Prakash, Medical Officer, Baptist

hospital, Hebbal. He has deposed that on 2.4.2006 at

about 1.20 a.m., PW-20 was brought to the hospital by 2

to 3 persons with a history of assault. He examined him

and found that he had cut injury over the right or left arm

with bleeding and abrasions on the left leg and

accordingly, he issued wound certificate as per Ex-P9.

PW-12 Dr. Venkat working in Baptist hospital has

deposed that on 2.4.2006 at about 3.00 a.m. a police

constable from Hebbal police station came to hospital and

recorded the statement of injured Manjunath-PW-20 as

per Ex-P10 in his presence.

PW-13 Dr. Ranganath from Baptist hospital who

forwarded medico-legal intimation to Hebbal police station

as soon as injured Manjunath was brought to the hospital

with a history of RTA and assault.

PW-14 Dr. B.M. Nagaraj, Professor and HOD,

Ambedkar Medical college, Bangalore has deposed having

conducted post-mortem examination over the dead-body

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of deceased Santosh in between 11.30 -1.00 p.m. on

2.4.2006. He has spoken about as many as seven

external injuries found on the dead-body, having issued

post-mortem examination report as per Ex-P12. He has

deposed having given opinion after examining M.Os.1, 2, 3

and 20 as per Ex-P13 stating that the injuries at Sl.No.1

to 7 shown in the P.M. report could be caused by M.O.1, 2

3 and M.O.-20 weapons.

PW-15 Shashidhar is the Executive Engineer who

has drawn sketch of scene of occurrence as per Ex-P15 as

directed by the Investigating Officer.

PW-16 Sridhar, is friend of deceased Santosh. He

has deposed that the deceased was known to him, he was

dealing money lending business, he used to come to his

shop oftenly and that is why the accused were enquiring

with him as to why the deceased was poking his nose into

the matters pertaining to Kempapura village. He has

deposed that on the date of the incident at about 9.30-

10.30 p.m., accused No.1 came to his house, enquired

about the whereabouts of the deceased and threatened

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him to set fire to his car if he does not furnish the

information. Further, he has also deposed that accused

No.1 was accompanied by 30-35 persons including one

Umesh and Munna. He has deposed that he informed and

cautioned Santosh not to come towards his shop as there

is likelihood of quarrel, that the accused waited for

Santosh upto 12 ‘O’ clock and went away.

PW-17 B.R. Anand has deposed that deceased

Santosh was known to him since five years, he was his

distant relative, that there has been quarrel between one

Batra and Naveen Kumar in connection with milk contract

business three days prior to the murder of Santosh on

1.4.2006, in that connection Batra had approached him

for settlement, so also, deceased had approached him for

settlement, he called accused No.1-Jagadeesh Gowda over

phone, Jagadeesh Gowda asked them to come to his farm

house and accordingly, PW-17 went to Kempapura to the

farm house of accused No.1.

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PW-18 Ramamurthy-younger brother of deceased

Santosh has deposed about inquest panchanama over the

dead body in his presence as per Ex-P16.

PW-19 Madhava has deposed that all accused and

deceased Santosh were known to him. Deceased Santosh

used to come to the mobile shop of PW-19 Madhav and

thereby he came in contact with Santosh, Naveen,

Lakshman, Seena, that he was aware of the enmity that

was going on between Santosh and Naveen in connection

with the milk contract. He has spoken about the

sequences of events that led to murder of deceased

Santosh. Further, he has deposed that on the night of the

incident, injured Manjunath came to his house and

knocked at his door. He had bleeding injuries and on

enquiry, he informed that some unknown persons

assaulted him and committed murder of deceased

Santosh and that he alongwith Govind shifted Manjunath

to Baptist hospital.

PW-20 injured Manjunath is the main witness for

the prosecution. He has deposed in conformity with the

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contents of Ex-P10 his statement recorded by the police

while he was in Baptist hospital, on the strength of which

crime came to be registered.

PW-21 Madhu has deposed that deceased Santosh,

Praveen, Prakash were known to him. All of them had

been to Shakti Bar, Hebbal; on the date of the incident to

have dinner; they were in the bar upto 10.45 p.m. and

thereafter, he alongwith Praveen went to the house and

deceased Santosh and Manjunath PW-20 went to drop

Prakash to his house on his Pulsar motor cycle and next

day morning at about 9.00 a.m. he came to know that

Manjunath has been admitted to Baptist hospital where

he went and saw PW-20 and from there, he went to

Ambedkar Medical College where he saw the dead-body of

deceased Santosh.

PW-22 B.K. Praveen Kumar has also deposed in

conformity with the evidence given by PW-21 Madhu. He is

also pancha to Ex-P18 in respect of seizure of clothes of

injured Manjunath.

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PW-23 Dasappa was working as head constable in

Hebbal police station who shifted the dead body of

deceased Santosh to Ambedkar Medical College for post-

mortem examination and after post-mortem examination,

handed over the dead-body to relatives of deceased

Santosh.

PW-24 Puttabasavaiah is a Scientific Officer working

in Forensic Science Laboratory, Bangalore. He has

deposed on 24.4.2006 he examined Qualis No.KA-04-D-

7774(M.O.17). The bumper of the vehicle was missing. The

missing bumper was produced before him which correctly

fitted with the missing bumper of the Qualis and therefore

he opined that the bumper produced is the missing

bumper of the quails vehicle No.KA-04-D-7774 and

accordingly issued certificate as per Ex-P20. Though he

has been cross-examined, nothing has come out of it, so

as to disbelieve his evidence.

PW-25 K.B. Jayanna is the Finger Print Expert. He

had deposed that he examined three pieces of number

plate of vehicle, wherein there was sufficient finger prints.

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He compared those finger prints with that of admitted

finger prints and found that the finger prints on the

number plate were that of right little finger prints of

accused Umesh and accordingly he gave opinion as per

Ex-P23.

PW-26 Srinivas is another pancha to Ex-P5

whereunder long was seized at the instance of accused

No.4 on 18.6.2006.

PW-29 V.S. Hiremath is the Motor Vehicle Inspector

who inspected pulsar motor cycle bearing No.KA-04-L-

9691 and qualis vehicle No.KA-04-D-7774 which were

seized by the police as they were involved in the crime. He

has deposed after examination of both the vehicles, he

gave report as per Ex-P27 wherein he opined that the

accident was not due to mechanical defect of both the

vehicles.

PW-30 Ravikumar. N, has deposed that deceased

Santosh was known to him, he met him on the date of the

incident while he was proceeding on a Bajaj Pulsar bike at

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about 6.00 p.m. alongwith Manju, on the same night at

about 12(00 hours), he was informed by the family

members of Santosh that accused committed the murder

of Santosh. He is a hearsay witness.

PW-31 Govindraju was to depose about the motive

for the commission of murder of the deceased, but he has

turned total hostile to the prosecution case stating that he

does not know anything about the incident, Manjunath

was not known to him and he never went to the spot of

the incident.

PW-32-Satish is a photographer, who has deposed

about the photographs of the spot and the dead-body

taken by him as per Exs-P29 to P38.

PW-33-K. Srinivas was to speak about the seizure of

qualis car M.O.17 at the Attibele checkpost, wherein

accused Nos.1 to 3, 6, 8 and 9 were returning to

Bangalore on 15.4.2006. But he has not supported the

case of the prosecution.

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PW-34 G.H. Ranganath has deposed for having seen

qualis vehicle bearing No.KA-04-D-7774 on 4.4.2006 at

Railway Layout main road having no bumper and the hind

number plate was broken. The police prepared

panchanama as per Ex-P39 for having seized the car and

obtained his signature.

PW-35 Mohan Kumar is the police inspector of

Hebbal police station, who went to Baptist hospital upon

receipt of Medico-legal intimation from the hospital and

recorded the statement of injured Manjunath as per Ex-

P10, registered the case in Cr.No.135/2006, arrested the

accused, recorded their voluntary statement, seized the

incriminating articles and upon completion of all other

formalities of investigation, filed charge-sheet against 10

accused persons.

The Medical Officer Dr. B.M. Nagaraj(PW-14) who

conducted autopsy over the deadbody of deceased

Santosh on 2.4.2006 stated that he found as many as

seven deep cut injuries of various sizes over the head and

on the face inflicted by blunt and sharp edged weapon. On

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dissection of the dead-body, he noticed internal injuries

corresponding to external injuries Nos.1, 4 and 7 shown in

the post-mortem report Ex-P12. The medical officer has

opined that the injuries were anti-mortem in nature and

the death was caused due to shock and hemorrhage as a

result of multiple homicidal injuries sustained. Thus the

evidence of PW-14-Medical Officer coupled with Ex-P12-

post-mortem report is sufficient to hold that deceased

Santosh died a homicidal death.

6. The next aspect to be probed into as to whether

the appellant-accused committed murder of Santosh and

caused injuries to Manjunath-PW-20.

7. From the perusal of evidence of all the

eyewitnesses examined by the prosecution, it is evident

that PW-20 Manjunath being injured was the only eye-

witness to the incident as the incident occurred late

night at 12 ‘0’ clock. Immediately after the incident,

Manjunath was shifted to Baptist Hospital by his

friends where his statement was recorded in the

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presence of the Doctor as per Ex-P10, on the basis of

which, crime came to be registered. It is relevant to note

in his statement Ex-P10, he has stated four to five

unknown persons came in qualis car, dashed against

the motor cycle wherein deceased Santosh and

Manjunath were proceeding from behind and when both

of them fell down from the motor cycle, they mercilessly

attacked Santosh and committed his murder, they also

assaulted Manjunath caused injuries. It is also borne

out from Ex-P10 that Manjunath requested the

assailants not to assault Santosh when they were

assaulting deceased Santosh with long, rod etc., and at

that time, the assailants also assaulted him. This shows

that Manjunath had sufficient opportunity to look at the

assailants who according to him were four to five

unknown persons. If the assailants were known

persons, there was no difficulty for Manjunath to

identify them and disclose their names in Ex P-10. The

very fact that he did not disclose the names of

assailants in his earliest statement Ex-P10 gives an

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impression that the assailants were not accused

persons Nos. 1 to 10. He implicated the accused No.1

to 10 in his further statement recorded on 3-4-2006 in

the Police Station. That itself creates doubt in the mind

of the Court as to the very involvement of the accused in

the murder of deceased Santosh and injures caused to

Manjunath.

8. Since PW-20 could not disclose the name of

even a single accused in Ex-P10 and Ex-P40 FIR, the

possibility of false implication of accused No.1 to

accused No.10 cannot be ruled out at the behest of

persons inimically disposed towards accused. It is

curious to note that on 3.4.2006, PW-20 goes to police

station and gives his further statement, wherein he

reveals the names of accused Nos.1 to 10, who

according to him came in qualis car and assaulted

deceased Santosh, caused his death and caused

injuries to PW-20. In his further statement recorded on

3.4.2006, he gives an explanation that immediately after

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the incident, he went to the house of Prasad his friend

and informed him about the incident and came back to

the spot of the incident. In the mean-while, Prasad

came to the spot on two wheeler and from the spot,

Prasad and Govind PW-31 shifted PW-20 to Baptist

hospital. There was ample time for PW-20 Manjunath to

disclose the names of the accused at least to Prasad or

Govind, if not to police. But he did not. If we peruse the

evidence of Govind PW-31, he has denied having taken

PW-20 to Baptist hospital. He has been treated as

hostile witness by the prosecution. During the course of

evidence, it transpired that he alongwith Madhu @

Prasad shifted PW-20 to the hospital, but PW-31 has

denied for having stated so. A perusal of the statement

of PW-31 recorded by the Investigating Officer as per

Ex-P28 on 30.5.2006 would reveal that as soon as PW-

31 came to know about the incident of assault, he

rushed to Baptist hospital, he was there with PW-20

Manjunath till morning, when the police came to the

hospital and enquired with Manjunath as to who

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assaulted him, he told four to five unknown persons

assaulted him and accordingly, he gave statement

before the Police. Further PW-31 has stated in his

statement Ex-P28 that he gave confidence to PW-20 and

asked him to disclose the names of the assailants

without fear and at that time, in the morning, in the

presence of other friends like Shridhar, he stated that

accused Nos.1 to 10 came in qualis car, attacked

Santosh and PW-20. If accused Nos.1 to 10 were real

assailants whose names were disclosed by PW-20 to

PW-31, as a prudent person, PW-31 would have

disclosed the names of accused Nos.1 to 10 to the

Investigating Officer in the morning of 2.4.2006 itself.

PW-31 did not disclose those names in the morning of

2.4.2006 though it is a case of murder. It appears only

after due deliberations on 3.4.2006, the accused Nos.1

to 10 have been implicated at the instance of persons

inimical disposed to accused. Be that as it may, having

regard to the conduct of PW-20 in not disclosing the

name of single accused in Ex P-10, it is not proper to

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place reliance on the evidence of PW-20 a solitary

eyewitness to the incident. At this stage, it is relevant

to note that the Supreme court in (2003) 1 SCC 465 in

the case of Joseph Vs. State of Kerala has observed that

when the prosecution case is based on evidence of

solitary eye-witness, evidence must be fully reliable so

as to record conviction on that basis. Though witness is

an injured witness whose presence at the time and

place of occurrence may not be doubtful, but if his

evidence has to be in conformity with other evidence. It

would be unsafe to convict accused solely on the basis

of such witness. As such, in the light of the dictum laid

down by the Supreme Court in the aforesaid decision,

we deem it not proper to place reliance on the evidence

of PW-20 so as to base conviction.

9. If the evidence of PW-20 is not accepted and

relied upon, what remains behind is the evidence of

hearsay witnesses, recovery of weapon etc., But sofar

as, recovery of weapons and other incriminating articles

29

are concerned, the recovery panchas PWs-1 to 8 have

turned hostile to the prosecution case, meaning

thereby, recovery is also not proved. Though the

prosecution tried to establish the motive, the evidence

let in, to establish the motive does not inspire

confidence of the Court. Moreover, when there are

eyewitnesses to the incident, motive looses its

importance. The only circumstance that has been

proved is that the finger prints of right little finger of

accused No.8 Umesh were found on the number plate of

qualis car as deposed by PW-25-Jayanna Finger print

expert. From a stray circumstance, the guilt of the

accused cannot be proved. Thus from the closer

scrutiny of the evidence placed on record by the

prosecution, we are of the considered view that the

evidence is not sufficient to prove the guilt of the

accused beyond reasonable doubt.

10. Accordingly, we allow the appeal, set aside the

impugned judgment of conviction and order of sentence

30

dated 3.2.2010 passed in S.C.No.365/2007 by the Fast

Track Court-IX, Bangalore and acquit the appellants

accused Nos.2 to 4 and 6 to 10 of all the charges

levelled against them. The bail bonds of accused Nos.2

to 4 and 6 to 10 stand cancelled.

Sd/- JUDGE

Sd/- JUDGE *mn/-