1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23

rd

DAY OF JANUARY, 2026

PRESENT

THE HON'BLE MR. JUSTICE H.P.SANDESH

AND

THE HON'BLE MR. JUSTICE VENKATESH NAIK T

CRIMINAL APPEAL NO.1620/2025

C/W

CRIMINAL APPEAL NO.1905/2025

IN CRIMINAL APPEAL NO.1620/2025:

BETWEEN:

1 . SMT. N.V. LAKSHMI,

W/O LATE M. JAYARAM,

AGED ABOUT 48 YEARS,

R/AT NO.205,

SAI DEEP HORIZON APARTMENTS,

VINTENAL ROAD,

MURUGESHPALYA,

BENGALURU-560017. … APPELLANT

(BY SRI. LEELADHAR H.P., ADVOCATE)

AND

:

1 . STATE OF KARNATAKA,

BY HENNUR POLICE STATION,

BENGALURU-560043,

2

REPRESENTED BY SPP,

HIGH COURTS BUILDING,

BENGALURU-560001.

2 . RAJESH @ RAJI,

S/O LATE MUNIRAJU,

AGED ABOUT 38 YEARS,

R/AT NO.1/52,

VENUGOPALA SWAMY ROAD,

NEAR SHALINI SCHOOL,

LINGARAJAPURAM,

BENGALURU-560084.

3 . NAVEEN KUMAR @ NAVEEN,

S/O T.N.GOWDA,

AGED ABOUT 39 YEARS,

R/AT NO.25, 2

ND

CROSS,

KANAKADAS LAYOUT,

NEAR DON BOSCO CHURCH,

LINGARAJAPURAM,

BENGALURU-560084.

4 . MOHAN,

S/O J. OM PRAKASH,

AGED ABOUT 30 YEARS,

R/AT NO.13, 2

ND

CROSS,

NEAR SHALINI SCHOOL,

LINGARAJAPURAM,

BENGALURU-560 084.

5 . YOGARAJ @ YOGI @ RAJU,

S/O SATHYANARAYANA,

AGED ABOUT 30 YEARS,

R/AT NO.2/15,

NEAR SHALINI SCHOOL,

LINGARAJAPURAM,

BENGALURU-560084. … RESPONDENTS

3

(BY SMT. RASHMI PATEL, HCGP FOR R1;

SMT. URMILA A. PULLAT, ADVOCATE FOR R2 AND R3;

SRI. CHANDRANNA N., ADVOCATE FOR R4 AND R5)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF

CR.PC (FILED U/S 419 BNSS) PRAYING TO SET ASIDE THE

JUDGMENT AND ACQUITTAL DATED 13.06.2025 PASSED BY T HE

LXVI ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU

CITY, IN S.C.NO.1169/2017 AND PASS THE APPROPRIATE

ORDERS BY CONVICTING THE ACCUSED PERSONS FOR THE

OFFENCES PUNISHABLE UNDER SECTIONS 302, 120B, 450 R /W

SECTION 34 OF IPC.

IN CRIMINAL APPEAL NO.1905/2025:

BETWEEN:

1 . STATE OF KARNATAKA,

BY HENNUR POLICE STATION, BENGALURU,

REP. BY STATE PUBLIC PROSECUTOR,

HIGH COURT OF KARNATAKA,

BENGALURU-560001. … APPELLANT

(BY SMT. RASHMI PATEL, HCGP)

AND

:

1 . RAJESH @ RAJI,

S/O LATE MUNIRAJU,

4

AGED ABOUT 38 YEARS,

R/AT NO.1/52,

VENUGOPALA SWAMY ROAD,

NEAR SHALINI SCHOOL,

LINGARAJAPURAM,

BENGALURU-560084.

2 . NAVEEN KUMAR @ NAVEEN,

S/O T.N.GOWDA,

AGED ABOUT 47 YEARS,

R/AT NO.25, 2

ND

CROSS,

KANAKADAS LAYOUT,

NEAR DON BOSCO CHURCH,

LINGARAJAPURAM,

BENGALURU-560084.

3 . MOHAN,

S/O J. OM PRAKASH,

AGED ABOUT 38 YEARS,

R/AT NO.13, 2

ND

CROSS,

NEAR SHALINI SCHOOL,

LINGARAJAPURAM,

BENGALURU-560084.

4 . YOGARAJ @ YOGI @ RAJU,

S/O SATHYANARAYANA,

AGED ABOUT 38 YEARS,

R/AT 2/15,

NEAR SHALINI SCHOOL,

LINGARAJAPURAM,

BENGALURU-560084. … RESPONDENTS

(BY SMT. URMILA PULLAT, ADVOCATE FOR R1 AND R2;

SRI. CHANDRANNA N., ADVOCATE FOR R3 AND R4)

5

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF

CR.PC (FILED U/S 419 OF BNSS) PRAYING TO SET ASIDE THE

JUDGMENT AND ORDER OF ACQUITTAL DATED 13.06.2025

PASSED IN S.C.NO.1169/2017 BY THE COURT OF THE LXVI

ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGLAURU CITY

(CCH-67), THEREBY ACQUITTING THE RESPONDENTS/ACCUSED

FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 120-B ,

450 R/W SECTION 34 OF IPC.

THESE APPEALS HAVING BEEN HEARD AND RESERVED

FOR JUDGMENT ON 21.01.2026 THIS DAY, THE COURT

PRONOUNCED THE FOLLOWING:

CORAM:

HON'BLE MR. JUSTICE H.P.SANDESH

AND

HON'BLE MR. JUSTICE VENKATESH NAIK T

CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

1. Heard the learned counsel for the

appellant/complainant in Crl.A.No.1620/2025, the lea rned

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counsel for the appellant/State in Crl.A.No.1905/2025 and

the learned counsel for the respondents in both the

appeals.

2. Crl.A.No.1620/2025 is filed by the complainant

and Crl.A.No.1905/2025 is filed by the State challen ging

the judgment of acquittal dated 13.06.2025 passed b y the

Trial Court in S.C.No.1169/2017 for the offences punishable

under Sections 302, 120B, 450 read with Section 34 of IPC.

3. The factual matrix of the case of the prosecution

before the Trial Court is that accused No.1 Rajesh wa s

inimical with the deceased Jayaram for the reason that he

committed murder of his mother Smt.Chandramma, who is

the sister of deceased Jayaram. Accused No.1 with tha t

animosity, in order to take revenge against the deceased,

hatched a criminal conspiracy with accused Nos.2 to 4 to

commit the murder of Jayaram and in execution of the s aid

conspiracy, with common intention, went to Indiganal a

Village and purchased chopper and sickle to assault the

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deceased. That on 07.06.2017 at around 07.00 p.m., w hen

the deceased was in his water filter plantation which is

situated at Hennur Main Road, accused Nos.1 and 2 wen t

inside the water plantation with a pretext to talk with the

deceased and committed house trespass to murder him .

Accused No.2 had brought chopper and handed over the

same to accused No.1 and immediately accused No.1

assaulted on the head of Jayaram, due to which he fel l

down. Thereafter, accused Nos.1 and 2 assaulted the

deceased with chopper and committed the murder of

deceased and fled from the place with accused Nos.3 and 4,

who were waiting outside armed with sickle.

4. The police investigated the matter and filed the

charge-sheet. The accused were secured and the accus ed

did not plead guilty and claims trial and hence, the

prosecution examined P.W.1 to P.W.23 and got marked th e

documents at Exs.P.1 to 41(b). The defence have not led

any evidence and only got marked the documents at

8

Exs.D.1 and 2. M.O.1 to M.O.11 are marked by the

prosecution. The accused persons were subjected to 31 3

statement. The Trial Court having assessed both oral and

documentary evidence, comes to the conclusion that t he

prosecution failed to prove the case against the accu sed

and acquitted the accused persons.

5. The main contention of the learned counsel for

the appellant/complainant is that the entire prosecut ion

story come into existence on the basis of the evidence of

P.W.1 Smt.Lakshmi, wife of the deceased, who at the

earliest point of time informed in writing about the act of

accused No.1 and wherein the name of accused No.1 w as

named and also she has supported the case of the

prosecution in her chief examination. Ex.P.1 is admissible in

evidence under Section 6 of the Evidence Act, 1972. The

Trial Judge failed to consider the material aspect i.e. ,

Section 6 of the Evidence Act. The evidence of P.W.2 and

P.W.3, wherein P.W.2, who came to the spot earliest po int

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of time have also supported the case of the prosecuti on.

Subsequently, as per the information, P.W.3 informed

P.W.1. There is no any exaggeration or lawful contact on

the part of P.W.1 to implicate accused No.1. The sai d

material is also not properly appreciated by the Trial Court.

It is also contented that P.W.20 doctor who held the post

mortem, found that there are about 20 injuries found on

the vital part of the deceased body and almost all are chop

wound, stab wound, penetrating wound, incised wound on

vital part of the deceased and this aspect has also not been

properly considered by the Trial Court. The entire material

on record, as discussed by the Trial Court from paragraph

No.36 onwards, shows that the Trial Court failed to consider

earlier information and injuries on the dead body and the

Trial Court stated that the evidence of P.W.1 to P.W.3 in

view of the facts and circumstances of the case, may not be

eyewitness of the incident, but in the natural circumstances

10

of the case, there is no any suggestion/allegation that the

complaint is motivated.

6. The Trial Court failed to consider the substantial

evidence and the chain of incident is first seen by P.W.4

and informed to P.W.3, which is incorporated in the

complaint Ex.P.1 and the same cannot be disputed. T he

learned counsel would submit that it is not the case of the

prosecution that mahazar Ex.P.5 and Ex.P.7 seizure

mahazar, wherein at the instance of the respondent police,

the investigating agency seized weapon involved in the

offence and P.W.23 has stated that blood stains fou nd on

the weapons of human origin ‘O’ group found in the sa id

article. Then that means, blood stains in the weapon of

M.O.2 and M.O.3 corresponds to blood stains found in

M.O.7, M.O.8 and M.O.10. This evidence supports the case

of the prosecution and M.O.2 and M.O.3 were recovered at

the instance of the accused. P.W.21 Investigating Of ficer

recorded the voluntary statement of accused No.1, who

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stated participation of accused Nos.2 to 4 and on that basis,

weapons have been seized and vehicle being used. As such

Ex.P.7 corresponds to M.O.2 and M.O.3 and photographs

are also produced. As such vehicle being used and wea pon

found in the dicky of the car is not in dispute. The learned

counsel also vehemently contend that the reasoning given

by the Trial Court that the evidence placed before the Court

not inspires the confidence of the Court is erroneous. When

the recovery was made at the instance of the accused

under Section 27 of the Evidence Act, coupled with t he

evidence of P.W.1 to P.W.5, the story of the prosecutio n

has not been discussed by the Trial Court.

7. The learned counsel would contend that the

incident took place on 07.06.2017 and the examinati on of

P.W.1 was held on 20.12.2021 and cross-examination wa s

started on 29.12.2022 after lapse of five years and hence,

naturally there will be a variance in the evidence and that

variance cannot be considered as demeanor on the part o f

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P.W.1. Likewise, P.W.2 was examined on 18.02.2022 and

the cross-examination was commenced on 19.01.2023 af ter

lapse of one year and evidence was recorded after lapse of

six years of the incident. There cannot be any

mathematical niceties while considering the evidence of the

prosecution witnesses. P.W.3 and P.W.4 are the husban d

and wife and employee of deceased Jayaram in the wate r

plant. P.W.3 received earliest point of information from

P.W.4 husband and went to the spot wherein P.W.4 claim s

to have seen accused No.1 coming out of the water p lant

with weapon. It was immediately conveyed to P.W.3. T his

evidence also was not considered properly by the Trial

Court. The learned counsel would vehemently contend t hat

the conclusion of the Trial Court is erroneous. The recovery

witness P.W.11, when M.O.4 and M.O.5 shown to the

witness naturally could not identify the weapon because the

weapons are in common nature in the evidence tendered

after lapse of five years. P.W.23 expert stated that blood

13

stains found on the deceased is ‘O’ group finding contra and

taking the same, the Trial Court has come to the conclusion

that the prosecution has failed to establish the sam e.

Hence, it requires interference of this Court.

8. The learned counsel appearing for the State, in

support of the arguments in Crl.A.No.1905/2025, would

vehemently contend that the judgment and decree of the

Trial Court is cryptic in nature and not properly appreciated

the evidence in the right spirit. The Trial Judge gross ly

erred in acquitting the accused and not properly

appreciated both oral and documentary evidence, which led

to miscarriage of justice. The evidence of P.W.1, P.W.2 and

P.W.3, coupled with the evidence of P.W.4, who is an

eyewitness, corroborates each other that accused was a t

the scene of the offence. The Trial judge committed an

error that the evidence is not adequate. The evidence of

P.W.4, although he identified the assailant at the time of

the incident and in the open Court, the Trial Court has not

14

considered his evidence genuinely. The learned cou nsel

also vehemently contend that based on the voluntary

statement of the accused, various articles used in th e

commission of the crime were recovered and the same

were subjected to FSL examination and blood stains w ere

found on them i.e., blood group of ‘O’ positive. Th e

evidence independently supports the findings of the

Investigation Officer and the same is corroborated by

expert evidence. Therefore, the Trial Court should hav e

considered the evidence from the expert, which support s

the case of the prosecution. All these materials were not

properly appreciated by the Trial Court and erroneously

comes to the conclusion that the prosecution failed to

establish the motive to commit the offence. Hence, i t

requires interference of this Court.

9. Both the learned counsel for the appellant and

the learned counsel for the State would vehemently

contend that it is a fit case for setting aside the judgment of

15

the Trial Court and to convict the accused for the offences

punishable under Sections 302, 120B, 450 read with

Section 34 of IPC.

10. Per contra, the learned counsel for the

respondents/accused, in his arguments would vehementl y

contend that the Trial Judge having considered both o ral

and documentary evidence available on record, in det ail

discussed the evidence of each of the witnesses and not

believed the evidence of the prosecution witnesses. The

learned counsel would vehemently contend that P.W.1 i s

the wife of the deceased and P.W.2 is the daughter of the

deceased and both of them are not eyewitnesses to t he

incident. P.W.3 is the tenant under the deceased an d she

received the information from P.W.4 and P.W.4 Rajendra is

the husband of P.W.3 and also a tenant under the

deceased. P.W.4 identifies accused No.1. But the evidence

of these witnesses does not corroborate the case of th e

prosecution. Though the prosecution relies upon other

16

witnesses, totally 23 in number, but all these evidence not

supports the case of the prosecution. The recovery

mahazar witnesses are not proved and they have turned

hostile and nothing is elicited from their mouth in the cross-

examination.

11. The learned counsel would also vehemently

contend that P.W.20, who conducted the post mortem

examination, deposed with regard to the nature of injuries

of 20 i.e., chop wound, stab wound and other nature o f

injuries and death was due to multiple chop and stab

wounds and the medical evidence is not supported by the

evidence of the prosecution witnesses. Only based on the

post mortem report, the Court cannot convict the accus ed.

The learned counsel would contend that the Trial Cou rt

having considered the evidence of P.W.1 to P.W.3,

discussed the same in paragraph Nos.38 to 42. Though

P.W.4 says that he is an eyewitness and identified accused

No.1, the evidence of the prosecution witnesses is n ot

17

consistent and not trustworthy. The evidence of other

witnesses is discussed in paragraph No.43. P.W.6 and

P.W.7 are the seizure mahazar witnesses and witnesses t o

seizure of the weapons used for commission of the offence

and they have turned hostile. They stated that no articles

were seized in their presence at the instance of the accused

and the same is discussed in paragraph No.43. The learned

counsel submits that each and every evidence of the

prosecution witnesses was considered by the Trial Court

and comes to the conclusion that the evidence of so le

eyewitness i.e., P.W.4 indicates that he was not present at

the spot during the incident, which is corroborated by the

evidence of P.W.3 and hence, the evidence of P.W.4 cannot

be termed as eyewitness version and there are no

eyewitnesses to the incident and circumstantial evid ence

also not proved and hence, the Trial Court rightly comes to

the conclusion that not a case for conviction.

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12. Having heard the learned counsel for the

appellant, the learned counsel for the State and also the

learned counsel for the respondents, this Court has to re-

appreciate the material available on record. Having re-

assessed the material available on record and keeping in

view the arguments canvassed by the respective learned

counsel, the points that would arise for the consideration of

this Court are:

1) Whether the Trial Court committed an error

in acquitting the accused for the offences

punishable under Sections 302, 120B, 450

read with Section 34 of IPC in coming to

the conclusion that the prosecution failed

to prove the case against the accused

beyond reasonable doubt?

2) What order?

Point No.1:

13. The very case of the prosecution is that the

accused persons went and committed the murder of

19

Jayaram. It is also the case of the prosecution that the

deceased Jayaram and P.W.1, who is his wife, were running

water plantation. They were also having house property

which they had rented out to 10 to 12 tenants. The accused

No.1 Rajesh was inimical with the deceased Jayaram th at

he committed the murder of his mother Smt.Chandramma,

who is the sister of deceased Jayaram. With that

animosity, accused No.1 was waiting for an opportuni ty to

take revenge. The accused Nos.1 to 4 conspired with each

other and with the common intention had purchased

chopper and sickle in order to assault the deceased and the

same was kept in the car and the same is used for inflicting

the injury.

14. The prosecution mainly relies upon the evidence

of P.W.1, who is the complainant and wife of the deceased.

Her case is that she received a phone call from

Smt.Bharathi, P.W.3 who informed her about the murder of

her husband inside the water plant. Immediately herse lf

20

and her daughter rushed to the water plant in an auto and

found the blood inside the plant wall and ceiling, but they

did not find the dead body and the body was shifted to the

hospital and found the dead body in the mortuary of

Bowring Hospital. The police enquired her and she gave her

statement against the accused. She speaks about

conducting of spot mahazar and collecting of blood samples

and conducting of inquest. On the next day, the po lice

showed four accused persons and with regard to producin g

of weapons, she made the statement. The accused led them

to Ramamoorthy Nagar Ring Road where the car was

parked in vacant space. Accused No.1 showed the said car,

weapons and the cloth, which were kept inside the car. The

same was seized by drawing the mahazar and also they

revealed about purchasing of weapons in Indiganala Village

and they showed the place where they had purchased t he

same and they saw two persons selling iron weapons un der

a tree and the accused persons showed them stating th at

21

they have purchased the weapons from them and the po lice

drawn the mahazar. She also says that accused No.1 wa s

quarreling with the deceased in connection with the water

plant.

15. The other witness is P.W.2, who is the daughter

of P.W.1 and the deceased. She is not an eyewitness, but

she accompanied her mother when the information was

received from Bharathi. She reiterates the evidence of

P.W.1.

16. The other witness is P.W.3, who was looking

after the water plant on behalf of the deceased Jayaram

and she is a tenant under the deceased. It is her evidence

that she left the plant in order to go to her native place and

her husband gave lift to her to Hennur bus stop. She says

that she received a call from her husband informing about

the murder of Jayaram. Immediately she came back to

water plant and on enquiry, public revealed that four

unknown persons murdered the deceased.

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17. The other witness is P.W.4, who is the husband

of P.W.3. According to the prosecution, he is an eyewitness

to the incident. But in his chief evidence he says that, after

dropping his wife he returned to the house and went for

walk and while returning to home at around 7.00 p.m., he

found public gathered near the water plant. He saw fou r

male persons stepping down from Pavani Jaladare and th ey

were having deadly weapons like macchu in their hands and

they left the spot in the car and one among the four

unknown persons was Rajesh.

18. The other witness is P.W.5, who is the spot

mahazar witness and he did not support the case of t he

prosecution and turned hostile to the case of the

prosecution and nothing is elicited from his mouth. P.W.6

and P.W.7 are the seizure mahazar witnesses and they

have not supported the case of the prosecution and turned

hostile and nothing is elicited from their mouth. P.W.8 and

P.W.9 are also the mahazar witnesses and they have no t

23

supported the case of the prosecution. P.W.10 is the

inquest mahazar witness and he has not supported the case

of the prosecution.

19. P.W.11 is the person from whom the accused

purchased the weapons used for committing the offence. He

has not supported the case of the prosecution and so also

P.W.12 regarding purchase of weapon not supported the

case of the prosecution. P.W.13 is inquest mahazar witness

and he has not supported the case of the prosecution.

P.W.14 is the spot mahazar witness and he has not

supported the case of the prosecution.

20. P.W.15 is the Head Constable, who showed the

spot of the incident. He says that he was on Hoysala duty

on 07.06.2017 and at about 07.10 p.m., he received the

message to the effect that there was a quarrel at He nnur

Village near water plant. Immediately he rushed to t he

spot and saw that the public had gathered near the w ater

plant and noticed that one person was murdered. The police

24

also came to the spot and shifted the body to Bowrin g

Hospital. The Investigating Officer came to the spot and

conducted the mahazar and he has signed the mahazar.

21. P.W.16 is the PSI, who sent the dead body to

Bowring hospital. Having received the information, h e

visited the spot and proceeded to Bowring hospital and met

the wife of the deceased and took her to the police station

and recorded her statement and case was registered.

22. P.W.17 ASI apprehended the accused persons

and produced them before C.W.27 and also visited Bowri ng

Hospital and conducted inquest mahazar and found 11

injuries on the dead body. P.W.18 is the person who sa w

the dead body of the deceased in Bowring Hospital. P.W.19

Police Constable sent the seized articles to FSL and he was

deputed to collect the post mortem report. P.W.20 is t he

doctor who conducted the post mortem. P.W.21 is the

Investigating Officer, who conducted the investigation. His

evidence is that he recorded the additional voluntary

25

statement of accused Nos.1 to 4 and recovery is made at

the instance of the accused by securing panch witnes ses

and drawn the mahazar in terms of Ex.P.7. He recorded

the statement of the witnesses and filed the charge-sheet.

P.W.22 is the Police Inspector, who prepared the spot

mahazar and apprehended the accused and conducted the

mahazar. P.W.23 is the doctor who examined the articl es,

which were sent to RFSL and gave the report that blood

stains of human origin of ‘O’ group is found in the s aid

articles.

23. The Trial Court considered the overall evidence

and observed that the evidence of P.W.4 is that he is an

eyewitness to the incident. P.W.4 in his evidence says that

when he went out for roaming and came back near Pavani

Jaladare, he saw gathering of people and he also saw four

male persons and found one Rajesh among the four. He

says that he dropped his wife to Hennur bus stand and

called her at 8.30 p.m. Till then he was not knowing about

26

the murder of the deceased Jayaram. He has categorically

stated that he was at Hennur bus stop till his wife returned

from Lingarajapuram at 9.30 p.m. When he reached the

spot, the dead body was shifted. On perusal of the cross-

examination of P.W.4, it indicates that till 9.30 p.m. on the

day of the incident, he was in Hennur bus stop and hence,

there was no occasion for P.W.4 to witness the incide nt,

which took place at 7.30 p.m. in Pavani Jaladare wate r

plant. The oral evidence of P.W.4 is corroborated by the

evidence of P.W.3 insofar his presence in Hennur bus stop

is concerned. P.W.3 says that she received the information

from her husband and her evidence is very clear that her

husband dropped her to the bus stop at 8.00 p.m. She has

narrated that she reached Lingarajapuram at about 9.00

p.m. and her husband called her over phone at 9.00 p. m.

She has categorically stated that at 9.00 p.m. her husband

was at Hennur bus stop. Taking into note of the evidence of

27

P.W.3 and P.W.4, the Trial Court comes to the conclusio n

that this evidence cannot be accepted.

24. The learned counsel for the appellant/victim

relies upon the judgment of the Apex Court reported i n

2017 CRL. L. J 1143 while discussing Section 6 Res gestae

i.e., statements forming part of transaction regarding

source of knowledge about the crime and evidence of

prosecution witnesses completely inconsistent with

contemporaneous record, statements by mother found t o

be not so shortly after the incident to form part of

transaction. Evidence of prosecution witnesses on that basis

have to be rejected. The counsel referring this judg ment

would submits that in paragraph No.16 discussion was

made that P.W.1 and P.W.2 after receipt of informatio n

about the crime, they had reached the spot. Thereafte r,

P.W.1 and P.W.2 along with Chait Ram went to the Polic e

Station and at their instance information was recorded and

the same is relevant feature regarding the crime.

28

25. The counsel also relies upon judgment reported

in (1991) 3 Supreme Court Cases 627 in case of Khujji

@ Surendra Tiwari V/s State of Madhya Pradesh and

brought to notice of this Court even in respect of ho stile

witness, merely because a witness declared hostile, his

entire evidence cannot be treated as effaced from the

record, his testimony to the extent found reliable, can be

acted upon. The counsel appearing for the appellant relying

upon this judgment would contend that even though P. W.4

tuned hostile during the cross-examination, but he h as

supported the case of prosecution in the chief evidence and

hence, invoke Section 6 of Evidence Act.

26. In keeping the principles laid down in the

judgments referred supra, this Court has to consider th e

evidentiary value of P.W.4. No doubt P.W.4 in his evidence

speaks about the very presence of accused Rajesh in h is

chief evidence that deceased was murdered around 7:0 0

p.m., in the water plant and he returned to home aroun d

29

7:00 p.m., and public were gathered near the water pl ant

and he saw four male persons and found the said Raj esh

accused No.1 and also identifies the accused and

immediately he called his wife and intimated her by phone

with the help of the public and he called to 108 fo r

Ambulance and shifted the injured to the Hospital, but he

was not fully examined on that day, request was made by

the Public Prosecutor and the same was deferred and on

the next date of hearing that is on 21.07.2022, he says that

he knows the accused No.1 Rajesh, but he do not kno w the

accused Nos.2 to 4. The Police did not shown the acc used

No.2 to 4 in the Police Station and also he did not give

statement having identified them in the Police Station and

hence, this witness was treated as a hostile. Learned Public

Prosecutor suggested that he identified the accused No.2 to

4 in the Police Station and the same was denied and also

suggestion was made that he gave the statement in t erms

of Ex.P.4 and the same was denied. This witness was

30

subjected to cross-examination by the counsel appeari ng

for accused Nos.1 to 4 and he admits that he did not visit

Police Station and also he was not called to the Pol ice

Station and he did not see the accused in the Police Station.

Further, he admits that he is seeing the accused for the first

time before the Court. He admits that to reach the

Lingarajapuram it requires half an hour and his wife might

have reached Lingarajapuram at 8:30 and he called his wife

at 8:30 and till then he was not knowing about the murder

of the deceased Jayaram and completely he turned hos tile

in the cross-examination and nothing is in support of the

prosecution and admits that public also did not disclose the

name of the Rajesh.

27. The counsel appearing for the appellant relying

upon Section 6 and citation would contend that Court has to

appreciate the same. The Court while appreciating th e

evidence also take note of the evidence of P.W.3 wh o is

none other than the wife of P.W.3, but she categoric ally

31

says that her husband gave lift to her to Hennur bus stop

and thereafter, boarded the bus Lingarajapuram at aroun d

7:30 p.m., and she had received the call from her husband

and informed about the murder of the deceased. She wa s

asked to come back and she informed P.W.1 about the

same.

28. P.W.3 says that on enquiry, her husband

revealed that four unknown persons murdered the

deceased and went back and also enquired the neighbo r

came to know that one amongst the four unknown person s

was the nephew of the deceased that is son of her e lder

sister by name Rajesh and his friends. But, her evidence is

very clear that when she enquired her husband, he repl ied

that four unknown persons have murdered, but public only

informed about Rajesh and hence, the evidence of P.W. 4,

whether it inspires the confidence of the Court also to take

note of it. No doubt the counsel appearing for the appellant

brought to notice of this Court that the P.W.4 was cros s

32

examined almost after 7 months and there was a gap

between the chief evidence and cross examination and chief

evidence was completed only in the month of July an d the

P.W.4 made the statement that he did not make the

statement in terms of Ex.P.4.

29. It is also important to note that it is not the case

of P.W.4 that immediately when he comes to know abou t

the incident and he found the accused Rajesh along with

other three persons that has been deposed in chief

evidence, but he did not inform the Police about the

incident and involvement of this accused Rajesh to the

Police and Court has to take note of evidence of P.W.1 5

who has received the first information about the incident

and Head Constable in his evidence, he says that he was on

Hoysala duty and on the same day at 7:10 p.m., he ha s

received the message from 100 control room stating that

there is a quarrel at Hennur near water plant and

immediately he rushed to the spot and public were

33

gathered and one person was murdered. It is not the cas e

of P.W.15 that this P.W.4 was very much present at the

spot when he had visited the spot and his evidence is also

very clear that thereafter, higher official came to the spot

and shifted the dead body to Bowring Hospital. He cam e to

know about the incident from the public that the deceased

name is Jayaram and he is the owner of the water plan t.

Hence, it is clear that he came to know about the nam e of

the person who died through public only, not from P.W.4

and hence, he was very much present and he witnessed the

Rajesh is doubtful. If P.W.15 is spoken that at the time of

incident, he found the P.W.4 at the spot, then there would

have been force in the contention of the counsel appearing

for the appellant/victim. In the cross examination al so

P.W.15 says that he rushed to the spot within 5 minu tes

immediately after he has received the information from the

100 control room and only through control room, he came

to know about the incident and not through the P.W.4.

34

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

the information through wireless and having received t he

intimation, he proceeded to the hospital at 8:15 a.m., and

evidence of this P.W.16 is also missing with regard to the

very much presence of the P.W.4 and having taken note of

evidence of P.W.3, though she claims that she has received

the information and her evidence is very clear that sh e

boarded the bus at 7:30 p.m., and she was not having any

information till 7:30 p.m., and then only she has received

the information, but her evidence is also clear that she has

not received the information from her husband that accused

Rajesh was present, but only came to know through th e

public and also the evidence of P.W.15 and P.W.16 is also

clear that no information from the P.W.4 and only

information through control room as well as wireless, they

came to know about the same. When such being the ca se,

the very contention of the counsel appearing for the

appellant that this Court can believe the evidence of P.W.4

35

cannot be accepted. Though P.W.4 stated that accused

Rajesh was present along with other accused, but his

presence was doubtful at the time of the incident when he

came back to the spot and found accused Rajesh along with

other 4 persons. The evidence of P.W.4 is that when h e

came to the spot, by that time general public already

present, but no eye witnesses to the alleged inciden ce

except claiming P.W.4 as eye witness. Hence, it is clear that

he is a chance witness. No doubt the evidence of P.W.23 is

clear with regard to the cause of death is concerned and the

same is also not helpful to the case of prosecution and

there are injuries found in terms of Ex.P.38 and so also the

FSL report. In order to connect the accused and recovery is

concerned and mahazar was drawn, persecution relies up on

P.W.6 to P.W.9, P.W.11 and P.W.14 and they have turned

hostile. The counsel would contend that accused did not

deny the signature on the mahazar and this Court can not

appreciate the material as like civil case that there is a

36

signature of the accused on the mahazar, but the contents

of the mahazar has to be spoken by the independent

witnesses and the same is not spoken and all of them have

turned hostile and there is no evidence with regard t o

recovery.

31. Having considered the evidence available on

record, there is no any linking evidence and there are no

any eyewitness and P.W.4 is only a chance witness and not

an eyewitness. Having considered the evidence which has

been discussed in detail taking into note of the evidence of

P.W.3, P.W.15 and P.W.16. The P.W.15 who suddenly

rushed to the spot within 5 minutes having received the

information at 7:10 p.m and not found the P.W.4 and

P.W.4 also did not inform the P.W.15 about the incident is

concerned. When such being the case, there is no any

material before the Court to connect the accused and no

doubt P.W.20 speaks about Ex.P.26. The injuries found on

the body i.e., 20 injuries and it is a brutal act, the Court

37

cannot be looked into only the brutal act and there must be

sufficient material to connect the accused. The FSL report-

Ex.P.38 also will also not comes to the aid of the

prosecution since recovery witnesses turned hostile. Having

considered overall evidence available on record, we do not

find any ground to reverse the finding of the Trial Court.

32. The other appeal is also filed by the State

challenging the acquittal. The counsel appearing for the

appellant would contend that the judgment of Trial Court is

cryptic in nature and not properly appreciated in a right

perspective. The evidence of P.W.1, P.W.2 and P.W.3

coupled with the evidence of P.W.4, who is an eye witness,

not corroborates each other and that accused was at the

scene of the offence according to P.W.4 but not trustworthy

and though vehemently contend by the counsel appeari ng

for the State and relies upon FSL examination report, blood

stains were found on them that is blood group of ‘O’

positive. There is no any proof regarding seizure and

38

mahazar witnesses have turned hostile. Having conside red

both oral and documentary evidence available on rec ord,

there is no any linking evidence to connect the accused and

comes to a conclusion that guilt of the accused is proved

beyond reasonable doubt by the prosecution and hence,

both the appeals fails and we answer the point as negative.

Point No.2:

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

the following:

ORDER

Both the appeals are dismissed.

Sd/-

(H.P. SANDESH)

JUDGE

Sd/-

(VENKATESH NAIK T)

JUDGE

MD/RHS