IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8TH DAY OF AUGUST 2019

PRESENT

THE HON’BLE MR. JUSTICE G. NARENDAR

AND

THE HON’BLE MR. JUSTICE H.P. SANDESH

CRIMINAL APPEAL NO.999/2016 BETWEEN: SIDDARAJU SON OF SIDDEGOWDA AGED ABOUT 53 YEARS RESIDING AT ANJANEYA BLOCK K.R. NAGAR MYSURU DISTRICT-571 602. …APPELLANT

(BY SRI. P.D. SUBRAMANYA, ADV.) AND: THE STATE OF KARNATAKA BY STATION HOUSE OFFICER K.R. NAGAR POLICE STATION K.R. NAGAR-571 602. MYSURU DISTRICT. NOW REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BUILDING BENGALURU-560 001. …RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)

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THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 25.11.2015 AND SENTENCE DATED 02.02.2016 PASSED BY THE PRL. DIST. AND S.J., MYSURU IN S.C.NO.205/2012 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 OF IPC.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, H.P. SANDESH J., DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is filed challenging the judgment dated

25.11.2015 passed in S.C.No.205 of 2012 on the file of

Principal District and Sessions Judge at Mysuru questioning

the conviction passed against the accused for the offence

punishable under Section 302 of Indian Penal Code and

sentencing him to undergo life imprisonment and to pay fine

of Rs.50,000/-. In default of payment of fine, he shall

undergo imprisonment for a further period of six months.

2. The brief facts of the case are, that on 24.02.2012

at 7.15 p.m., in front of the Sunanda Bar, which is situate in

New Bazaar Road, K.R.Nagar, when the deceased Murthy

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came on a TVS Scooty bearing No.KA-45 L 0172, the accused

who was harbouring illwill against him in order to commit the

murder inflicted injuries with a machete. As a result of the

assault, the said Murthy succumbed to the injuries. The case

has been registered against the accused for the offence

punishable under Section 302 of Indian Penal Code. Since he

did not plead guilty, the trial was conducted. The prosecution

in order to prove the charges examined PWs.1 to 37, relied

upon Ex.P1 to P46, marked documents Ex.C1 to C2(a) and

also M.Os.1 to 16. The statement of the accused under

Section 313 of Code of Criminal Procedure was recorded

wherein he has denied the same. The accused did not choose

to lead any evidence in defence.

3. The Court below considering the oral and

documentary evidence and after hearing the arguments of the

respective counsels concluded that the prosecution has

proved the charge beyond doubt and convicted the accused.

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Being aggrieved by the judgment of conviction, the accused

has preferred the present appeal before this Court.

4. The grounds urged in the appeal memorandum is

that the Court below has committed an error in appreciating

the evidence. It is contended that many of the prosecution

witnesses have turned hostile which has resulted in the

witnesses giving a go-bye to the case of the prosecution.

PWs.7 to 13 have not supported the case of the prosecution

and the entire case is based on circumstantial evidence like,

recovery of weapon used to commit the offence and the same

does not connect to the other link in the chain of incidents to

establish the charge of murder by the appellant herein. The

Court below failed to consider that the evidence of P.Ws.1 to 3

and also P.W.15 is inadmissible. PWs.2 and 6 have also

turned hostile. Learned Sessions Judge failed to consider the

technicalities and the important requirement of proof of a

serious offence of this nature while convicting the accused for

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the offence punishable under Section 302 of Indian Penal

Code.

5. Learned counsel for the appellant in his

arguments vehemently contended that the learned trial Judge

failed to consider both oral and documentary evidence in their

proper perspective. The Court below relied on the evidence of

PWs.1, 4, 15, 25 and 37 of the prosecution witnesses. That

P.W.1 has turned hostile and his evidence is not helpful to

the case of the prosecution. The evidence of P.W.4 also

suffers from material contradictions. That P.W.15 also did

not support the case of the prosecution in its entirety and

that the recovery witnesses, PWs.21 and 25, have also not

supported the case of the prosecution. The evidence of these

witnesses ought not to have inspired confidence in the Court,

to convict the accused. The Court below committed an error

in relying upon the evidence of P.W.37 Investigating Officer

who conducted the investigation and also the evidence of

Doctor P.W.26 to convict the accused. Hence the judgment of

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the trial Court calls for interference at the hands of this

Court.

6. Per contra, learned counsel for the State in his

arguments vehemently contended that though some of the

witnesses have turned hostile, the learned trial Judge

considering the evidence available on record and also relying

upon the decision of the Apex Court, holding that the

evidence of hostile witnesses cannot be discarded in toto and

that the Court has to appreciate the answers elicited in the

cross examination, of witnesses who have turned hostile in

order to find out the truth. The learned trial Judge has

ferreted the truth and hence convicted the accused and that

there are no extenuating grounds to interfere with the

judgment of the trial Court.

7. Having heard the learned counsel for the parties,

the point that arise for our consideration is as to,

“ Whether the Court below has committed an error

in convicting the accused for the offence

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punishable under Section 302 of Indian Penal

Code ?”

We proceed to consider the material available on record. The

main contention of the learned counsel for the appellant is

that the case rests upon the circumstantial evidence since the

eye witnesses have turned hostile and recovery is also not

proved, the entire case of the prosecution is doubtful and it

calls for interference.

8. Having considered the contentions of both the

counsel, this Court has to reappreciate the evidence available

on record. A perusal of the evidence tendered on behalf of the

prosecution no doubt indicate that some of the witnesses

have turned hostile and did not support the case of the

prosecution including the complainant who has been

examined as P.W.1. The prosecution relied upon the evidence

of PWs.1, 4, 14, 15, 21, 25, 26 and 37.

9. P.W.1 who is the complainant, in his evidence

states that the incident has taken place in front of his bar.

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He came out from the bar after hearing the screaming sound.

In the meanwhile, some of them had closed the shutters and

hence he could not come out. He did not witness the

incident. He states that he came to know of the death at

11.00 p.m. in the night. He admits that the Police obtained

the complaint in terms of Ex.P1. He identifies his signature.

He was treated as hostile. In the cross examination he

admits that he was working as a Cashier and further admits

that Ex.P1 is in his hand writing. He claims that the contents

are false. He further admits that when he wrote the

complaint, at that time itself he was aware that the same was

false. He states that the Police threatened him to write the

same or otherwise they will remove his clothes and keep him

in custody. Hence, he wrote the complaint. In the cross

examination by learned Public Prosecutor, it is elicited that

lodging a complaint against a person alleging that he has

committed murder that too knowing fully well that the same

is false, is an offence. He admits that the Police constable

obtained his complaint and he does not know his name. He

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did not lodge or file any complaint to any higher Officer about

the act of forcibly obtaining a false complaint and there was

no difficulty for him to do so. He further admits that he did

not inform the same to anybody about obtaining of false

complaint and there was no difficulty to inform the same to

his colleagues. It is suggested that the people who gathered

took the injured to the hospital and the doctor declared that

Murthy was ‘brought dead’. The said suggestion was denied.

It is also suggested that in order to help the accused, he is

giving false evidence, the same is denied. He admits that he

is not having the habit of making the signature on the blank

paper. He further admits that for the first time he is telling

before the Court that they obtained his signature on the

blank paper and also did not inform the same to anyone.

10. PWs.2 and 3 turned hostile and nothing is elicited

in their cross examination except the statement of P.W.3 that

the cashier informed the Police about the incident. P.W.4,

another eye witness is working in the TV-9 channel. In his

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evidence he states that he came to his friend’s shop which is

located near the place of incident. He states that a person

came in a scooty and the person who was in the spot made

galata with him. The person who was standing assaulted with

machete on the person who came in scooty and as a result he

sustained injuries. He was having mobile and he recorded

the same in his mobile with the help of street light. His friend

who has been examined as P.W.15 told that the injured is

Murthy and the person who assaulted is Siddaraju i.e.,

accused and the same was telecast on TV9 on the next day.

The Police have collected the visual footage of the said scene

which was aired on the TV9 channel. When the Police asked

to give mobile, he told that he cannot give mobile. He was

subjected to cross examination. In the cross examination, he

states that since footage which has been recorded, can be

transferred to other mobile and the same cannot be changed,

he made the same as CD and gave it to TV9 office which was

telecast on the next day between 12.00 noon to 1.00 p.m. He

was questioned as to why he did not inform the same to the

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Police for which he answered that he was not having phone

number of the Police.

11. PWs.6, 7, 8, 9, 10, 11, 12 and 13 have turned

hostile. P.W.14 is the wife of the deceased. In her evidence,

she states that the accused and the deceased are friends.

Further, she had filed suit claiming share in her father’s

property and the same was settled for Rs.11,00,000/-. Out of

it, the accused had demanded an amount of Rs.1,00,000/- to

perform the marriage of his daughter. The deceased i.e., her

husband gave only Rs.45,000/-. Hence, the accused

quarreled with her husband. In the cross examination, it is

elicited that her husband was doing the business of hawker.

There are no documents for having paid 45,000/- to the

accused.

12. P.W.15 is the friend of P.W.4. He states that he did

not witness the committing of murder but he has seen the

accused who was proceeding with machete and thereafter

came to know that the victim was Murthy. He was having

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acquaintance with both deceased and accused. The accused

went towards the radio maidana. Further, he says that P.W.4

recorded the incident in his mobile and the same was telecast

on TV9 channel on the next day. He also says that accused

by holding machete in his hand was alluring everyone to

come near him so that he can take away their life. It is also

his evidence that Police called him to station when the

accused was arrested and recorded his voluntary statement.

The Police told him to photograph the act of the accused at

the time of recovery of the machete. Hence. he also

accompanied them. Accused took them to a lane and

produced machete removing the same from the bush. He

videographed the same and also took the photos. He

identifies his signature on Ex.P15 mahazar and also identifies

photos at Exhs.P17 to 20. He has given CD and the same

was seized by drawing mahazar Ex.P21. In his further

evidence he says that he attested the signature on Ex.P21.

He identifies M.O.5 but he states that he cannot positively say

that the very same machete was seized. He was treated partly

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hostile regarding M.O.5. A suggestion was made that M.O.5

was seized when the accused produced the same. He says

that he cannot say that the same machete was seized. It is

suggested that he witnessed the incident of assault. He says

that he witnessed the incident but he cannot tell who

assaulted the deceased since he did not notice properly. He

was subjected to cross examination wherein he admits that

he was not having any acquaintance with the accused.

13. P.W.16 is the mahazar witness. He did not

support the case of the prosecution in his evidence. However,

in the cross examination, he admits that P.W.11 produced 4

photos and 2 CDs in his possession, when the Police called

him to Police Station, Pws.17, 18, 19 and 20 have not

supported the case of the prosecution.

14. P.W.21 is the mahazar witness. He states that the

Police have called him to Police Station and he was taken to a

lane on Bazar Road and along with him Rizwan, Prabhakar

and accused persons were also there. Accused produced

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machu which was lying and the same was seized by drawing

the mahazar. He identifies his signature at Ex.P27a. He

states that he does not know about what the Police made with

regard to clothes of the accused. However, he identifies his

signature in Ex.P28(a). This witness has turned hostile

partly. In the cross examination, he admits that he was not

having the habit of signing on the blank paper. He is also

aware of the fact that making of the signature on the blank

paper is a mistake. He further admits that he did not inform

anyone that he has signed the blank paper. M.O.5 which was

sealed was shown and he identifies his signature on the

same. He identifies the signature on the slips. It is suggested

that the same was seized in the said lane and he has signed

the same. He states that he does not remember the same.

15. PWs.22, 23 and 24 have turned hostile. P.W.25 is

another recovery witness. In his evidence, he states that the

Police called him and took his signature on the blank paper.

However, he identifies his signature on Ex.P27 and 28.

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Accused was not there when his signature was taken. He was

treated as hostile witness. In the cross examination, he

admits that he is not having the habit of signing the blank

paper. He claims that he was not aware at that time not to

sign on blank paper. However, he admits that if anyone asks

him to sign the same, he will not do so. He claims that he

told the Police that he will not sign the blank papers. He

admits that he did not inform anybody that his signature was

taken forcibly. For the first time, he was telling the same

before the Court. It is suggested that he was called to Police

Station on 25.02.2012 and accused led the witness and Police

near the lane and showed the same, but he denied the

suggestion.

16. P.W.26 is the doctor who conducted the Post

mortem. In his evidence, he states that he found 11 injuries

on the dead body and further he says that the death was due

to shock as a result of hemorrhage on account of severe

injuries inflicted on the deceased. He identifies the signature

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at Ex.P31a. On 09.04.2012, he has received the articles from

the Investigating Officer to give opinion and on examination,

he gave the report in terms of Ex.P32 showing that the said

weapon could cause the injuries mentioned in Ex.P31. In the

cross examination, it is suggested that he has made entries in

Ex.P31 regarding the name of the dead person and the time of

post mortem examination was changed at the behest of the

Police, the same was denied. He says that Rigor Mortis set in

at about 2 hours after death and fully spreads around after 6

to 8 hours.

17. P.W.27 has turned hostile. P.W.28 is the Engineer

who prepared the sketch Ex.P34. P.W.29 is the Engineer who

deposed with regard to the supply of Electricity at the time of

incident. P.W.30 did not support the case of the prosecution.

P.W.31 is the Police Constable who received information of

the incident and immediately he rushed to the spot and took

the injured to the hospital where the doctor declared as

‘brought dead’. P.W.32 has collected the CD and identifies

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his signature at Ex.P22(c). P.W.33 is the Assistant Sub-

Inspector who received the complaint, registered the case and

issued FIR Ex.P37. P.W.34 conducted the spot mahazar,

seized the articles at the spot in terms of Ex.P2 and identifies

M.Os.6 to 10. In the cross examination, it is elicited that the

electric light is at the distance of 40 to 50 ft and the same are

mercury bulbs. He states that he also recorded the statement

of witnesses. P.W.36 is the employee of wine store and he

has turned hostile.

18. P.W.37 is the Investigating Officer, who conducted

further investigation after P.W.33 handed over the charge. In

his evidence, he states that on receiving credible information,

he went to the spot at 9.30 p.m. P.W.1 showed the spot and

immediately, he called P.Ws.2, 20 and 23 and in their

presence, he conducted spot mahazar from 10.00 p.m. to

11.15 p.m. and drawn the same in terms of Ex.P2 and seized

the articles which were there at the spot. He also prepared

the sketch in terms of Ex.P40 and identified M.Os.2 to 4, 14,

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15 and 16. Thereafter, he conducted the inquest on the next

day i.e., 25.02.2012 in terms of Ex.P24 and recorded the

statement of P.Ws.2, 3, 31 and 33. P.W.13, produced the

clothes belonging to the deceased after the post mortem and

seized the same in the presence of P.Ws.23 and 30 and drawn

the mahazar in terms of Ex.P30.

19. It is his evidence that on the same day at about

5.00 p.m., the accused appeared before him and he arrested

him and recorded the voluntary statement of the accused in

terms of Ex.P41. The accused in his voluntary statement has

stated that, he will produce the weapon used to commit the

offence. He further states that at the time of recording

voluntary statement of the accused, Rizwan, Kumar and

Prabhakar were also present and the same was video graphed

and thereafter, the accused took the panchas i.e., C.W.25,

P.Ws.21 and 25 and at around 8.15 p.m, he took us to the

lane near the house of Lakshminarayana Shetty and

produced M.O.5 which was blood stained and the same was

seized by drawing mahazar in terms of Ex.P27 which is in the

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hand writing of P.W.35. The recovery is also video graphed

and he has prepared the sketch in terms of Ex.P42. It is also

his evidence that on the same day between 9.15 p.m. to 9.45

p.m., he seized the shirt, pant and plastic chappal of the

accused in the presence of Rizwan, Kumar and Prabhakar by

drawing mahazar Ex.P28. He also states that in the seized

articles i.e., pant and chappal, there were blood stains and

did not find blood stains in the shirt and the same are

marked as M.Os.11 to 13 and the same was also video

graphed and photos were taken by P.W.15 and recorded the

statements of P.Ws.1 and 3. He also recorded the statement

of panch witnesses. He also identifies the photos Exs.P17 to

20 and recorded the statement of some of the witnesses.

Thereafter, requested the Engineer, Public Works Department

to prepare the sketch and witnesses have given statement

before him. The photos and compact disk were also seized.

He also seized the compact disk which was collected by

P.W.32 in terms of Ex.P25. He also sent the seized articles to

the RFSL and obtained the report in terms of Ex.P43.

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Regarding the supply of electricity at the time of the incident,

he has obtained the report from Assistant Executive Engineer,

CHESCOM, K.R. Nagar and collected the plaint copy of

O.S.No.235 of 2009 in terms of Ex.P45. After completion of

the investigation, he filed the charge sheet.

20. He was also subjected to cross-examination. In

the cross-examination, he admits that, he has seen P.W.4 at

the time of recording the evidence and he did not seize the

mobile which was used for taking the photos, since P.W.4 told

that he was not having the mobile. He did not seize the

memory card also. It is suggested that RFSL did not conduct

any examination in respect of the articles which he sent but

the same was denied. It is suggested that the accused was

threatened and his signature was taken on Ex.P41 but the

same was denied. It is suggested that accused did not

produce any machete in his presence i.e., M.O.5 and the

same was denied.

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21. Having considered the material evidence of

prosecution witnesses, this Court would like to first analyze

the evidence available on record,

“Whether it is a case of homicidal death or not?.”

22. The prosecution, in order to prove that it is a case

of homicidal death, has examined P.W.26-Doctor, who

conducted the post mortem on 25.02.2012 between 10.45

a.m. to 12.45 p.m. P.W.26, in his evidence states that he

found 11 ante-mortem injuries on the dead body of the

deceased. He has also opined that, cause of death is due to

shock as a result of hemorrhage on account of severe injuries

received. The genuineness of the post mortem report has not

been disputed. It is further important to note that P.W.26

has also opined that the injuries which he noted on the dead

body of the deceased could be caused by the weapon M.O.5

and he also given his opinion on the back side of the

requisition which is marked as Ex.P32. The report of RFSL in

terms of Ex.P43 confirms that M.O.5 was blood stained.

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23. Having considered the un-rebutted evidence of the

Doctor-P.W.26, post mortem report and letter of confirmation

with regard to the fact that the injuries could be caused with

the weapon M.O.5, it is clear that the death of the deceased is

homicidal.

24. Though the learned counsel appearing for the

appellant would contend that the case rests upon

circumstantial evidence, since the eye witnesses have turned

hostile, their evidence does not inspire the confidence of this

Court and this Court has considered the evidence of P.Ws.1

and 4 to 15. Though P.W.1 admits in his evidence that the

complaint is in his hand writing and the same was obtained

by the Police by under coercion, he did not support the case

of the prosecution. In the cross-examination, he admits that

Ex.P1-complaint is in his hand writing, but the contents in

the complaint are false. He also categorically admits that if

any false complaint is given against a person, the same is an

offence. Though he contends that the complaint was

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obtained by threat, he categorically admits that he did not

give any complaint to the Senior Police Authorities. Hence, it

is clear that there was no difficulty for him to lodge the

complaint against the Constable, who obtained Ex.P1. It is

pertinent to note that though he admits that he did not

disclose the said fact to anybody till his examination that the

Police have obtained a false complaint from him, for the first

time, in his cross-examination, he is telling that it is a false

complaint and there was no difficulty for him to disclose the

same to his colleagues.

25. Having considered the evidence of P.W.1 and the

answers elicited from the mouth of P.W.1 in the cross

examination, it is clear that though he witnessed the incident

of murder, he is lying before the Court and the very answers

elicited from the mouth of P.W.1 is clear that P.W.1 is hiding

the truth. The very conduct of P.W.1 is not the conduct of an

ordinary and prudent man. He categorically admits that the

contents are in his hand writing and if any such false

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complaint is given against any person, it is an offence.

Hence, the evidence of hostile witness P.W.1 did not support

the case of the prosecution, cannot be accepted. Therefore,

the Court has to take note of the fact that even if the witness

has turned hostile, the Court has to evaluate the evidence

available on record, particularly, the answers elicited in the

cross- examination of P.W.1. The Hon’ble Apex Court in the

judgment reported in 2013 (1) SCC (Cri) 417 in the case of

Bable alias Gurudeep Singh vs. State of Chattisgarh

with regard to the FIR and its evidentiary value has held that

even though the witness, on whose statement F.I.R. was

lodged, himself did not support the case of the prosecution

and was declared hostile, the Court has to take note the effect

of such F.I.R and it will be impermissible for the Court to

ignore the evidentiary value of the F.I.R.

26. In the case on hand, it has to be noted that

P.W.33 received the complaint from P.W.1 and in his

evidence, he states that P.W.1 himself came and gave the

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complaint, that too, within a span of 1½ hours of the incident

and based on the complaint, he registered the F.I.R. in terms

of Ex.P37 and sent the same to the concerned Magistrate. If

it is forcible complaint, P.W.1 was not having any difficulty to

file any complaint to the Higher Authorities, though he states

that contents of Ex.P1 is false. Hence, the evidence of P.W.1

has to be assessed with due care and caution to find out the

truth and the answers elicited in the cross examination is

clear that he witnessed the incident.

27. P.W.4, who is an eye witness to the incident

categorically states that on the date of the incident, he was in

the shop of P.W.15 and he witnessed the incident that a

person came in the scooty and the person who was standing

near the place of incident inflicted the injuries on the person

who came in the scooty. P.W.4, who was having mobile

recorded the same. Thereafter, P.W.4 enquired P.W.15, since

he was not having acquaintance with the accused or the

deceased. P.W.15 told about the identity of those two

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persons. He also states that scene of incident which was

recorded by him was telecasted in the TV9 on the very next

day in between 12.00 p.m. to 1.00 p.m. based on the CD

which he has given to TV9 office. No doubt, the mobile was

not seized at the instance of P.W.4 and the same is admitted

by the Investigating Officer, P.W.37. Though, he has given

the compact disk to the TV9 office, no doubt, there is no

certification under Section 65 (b) of the Evidence Act, 1872.

The Court also did not consider the electronic evidence since

there was no certification. It has to be noted that the very

finding of the trial Court that the mobile was not seized,

cannot be accepted since, the very requirement of Section

65(b) of the Evidence Act, 1872 is to obtain the certificate. In

order to prove its genuineness and confirm that no tampering

is effected, the Investigating Officer ought to have collected

the certificate from P.W.4, since he has recorded the incident.

But, in the case on hand, it has to be noted that P.W.4 is an

eye witness to the incident and he recorded the same in the

mobile. He also supported the case of the prosecution and

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nothing worth is elicited in his cross-examination to

disbelieve his evidence.

28. The other eye-witness is P.W.15. In his evidence,

he states that he along with P.W.4 did not witness the

assault, but he has seen the accused going with M.O.5

towards Radio Maidan and causing threat to the persons who

were at the spot. His evidence is clear that the accused led

and produced M.O.5. Recovery is also proved. This witness

supports the recovery of M.O.5. In the cross examination of

P.W.15 except the answer that he was not having

acquaintance with the accused, nothing worth is elicited by

the defence counsel. The counsel appearing for the State

though treated him as hostile, in the cross examination he

admits that he has witnessed the causing of assault, but he

says that the person who assaulted whom has not been

properly observed. Hence the evidence of P.W.15 supports

the case of the prosecution regarding his witnessing the

incident and other circumstance that he was going along with

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machete confirms that the accused only committed the

murder by inflicting injuries to the deceased. The evidence of

PWs.1, 4 and 15 are the direct evidence with regard to

committing the murder. We have already noticed that P.W.1

though turned hostile, the answer elicited in the cross-

examination supports the case of the prosecution.

29. Regarding recovery is concerned, it has to be noted

that P.W.37 Investigating Officer in his evidence categorically

states that the accused appeared before him on the next day

at 5.00 p.m. and he recorded the voluntary statement and

also led the panch witnesses and produced M.O.5. It has to

be noted that in the cross examination of P.W.37 the defence

did not dispute the fact that the accused voluntarily appeared

before P.W.37. The witness P.W.15 categorically deposed that

the accused led the Police and also the panch witness. This

fact was not disputed in the cross examination. The other

panch witness is P.W.21 in his evidence categorically states

that the accused led the Police, Rizwan, Prabhakar to the lane

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and produced M.O.5 and Ex.P27 was drawn. However,

regarding seizure of clothes, he has turned hostile. In the

cross examination, he categorically states that he was not

having the habit of signing any blank paper. He admits that

he is having acquaintance with the accused from the last 10

to 15 years. Though this witness has turned hostile, to

certain extent, the Court cannot discard his entire evidence

and has to take the evidence which is available to find out the

truth as held in the case of RAMESH BHAI MOHAN BHAI

KOLI VS. STATE OF GUJARAT reported in 2011(3) SCC (Crl)

102 wherein the Apex Court held that the evidence of

prosecution witness cannot be rejected in toto merely because

prosecution choose to treat him as hostile and the very

evidence of the partly hostile witness cannot wash off the

evidence altogether and the same can be accepted to the

extent that their version was found to be dependable on a

careful scrutiny.

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30. The other panch witness is P.W.16 who has

videographed the recovery. He is none other than the brother

of the deceased who has turned hostile. In the cross

examination by Public Prosecutor, it is elicited that he was

called to Police Station and P.W.15 has produced 4

photographs and 2 CDs in connection with seizure and the

witness P.W.21 supports with regard to the recovery of M.O.5.

Though he has turned hostile in respect of seizure of the

clothes, he only states that he does not remember the seizure.

The answer elicited from P.W.21 that he had acquaintance

with accused for 10 to 15 years clearly shows that he is

supporting the accused. The other recovery witness is

P.W.25. He claims that his signatures were taken on the

blank paper, but in the cross examination he admits that he

was not having the habit of making the signature on the

blank paper and also he does not sign any blank paper, if

anybody asks him to do so. Though P.W.25 also turned

hostile, his evidence shows that he is part of the recovery.

Apart from that C.W.37 in his evidence categorically states

31

that the accused appeared before him and led the witnesses

and the Police to produce the clothes as well as M.O.5. In the

case on hand, in the cross examination of Investigating

Officer also nothing is elicited to disbelieve the evidence of

P.W.37 regarding recovery is concerned. A suggestion was

made that accused did not lead anyone and produced neither

M.O.5 nor the clothes and the same has been categorically

denied. It is important to note that Ex.P43 RFSL report

confirms the blood stains in M.O.10 and also the pant and

slippers of the accused. The RFSL report corroborates the

evidence of P.W.15, 21 and also P.W.37. The Apex Court in

the case of RAKESH AND ANOTHER VS. STATE OF M.P.

reported in 2011(3) SCC 803 wherein it is held that Recovery

of Crime-incriminating materials-recovery of weapons on

disclosure, statements, deposition of Investigating Officer had

been natural. No material that Investigating Officer had any

animosity or any kind of interest and closeness to deceased,

question of not believing his statement does not arise under

Section 27 of the Evidence Act. The Investigating Officer

32

P.W.37 must be presumed to act honestly and consciously

and as such his evidence has to be assessed on its intrinsic

worth and cannot be discarded merely on the ground that he

is public servant and interested in success of the case.

Hence, the prosecution also proved the evidence of recovery at

the instance of accused.

31. Having considered the material on record,

considering the evidence of PWs.1, 4 and 15 who are direct

witnesses with regard to the committing of murder by the

accused and the other witness P.W.15 regarding recovery of

M.O.5 and the evidence of P.W.21 and C.W.37 is consistent

regarding recovery is concerned.

32. Learned counsel for the appellant contends that

the case rests upon circumstantial evidence since the

witnesses have turned hostile, cannot be accepted by

reappreciating the evidence available on record in the light of

the principles laid down in the judgment referred supra.

Regarding the motive is concerned, P.W.14 wife deposed

33

before the Court that her husband paid an amount of

Rs.45,000/- instead of Rs.1,00,000/- as demanded by the

accused. Hence, there was ill-will. Except the evidence of

P.W.14, there is no material before the Court. In the case of

direct evidence, the motive is not significant. Though P.W.1

has turned hostile, there are substantive evidence before the

Court particularly the evidence of P.W.4, answers elicited in

the cross examination of the witnesses, evidence with regard

to recovery and also the evidence of P.W.15 to certain extent

are consistent.

33. Hence, we do not find any reason to interfere with

the judgment of conviction of the trial Court to come to the

other conclusion. The evidence available on record both oral

and documentary is sufficient that accused only committed

the murder. The evidence of the doctor who has been

examined as P.W.26 categorically states that M.O.5 could

cause injuries mentioned in the PM report which is marked

as Ex.P31 and also the opinion of P.W.26 in terms of Ex.P32.

34

The direct evidence of P.Ws.1, 4 and 15, evidence of PWs.15,

21 and 25 for recovery coupled with the evidence of the doctor

P.W.26, proves the case of the prosecution beyond reasonable

doubt. Hence, we do not find any reason to reverse the

finding of the trial Court and the appeal is devoid of merit.

34. In view of the discussions made above, we pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

Akc/