(Prayer: This criminal appeal is filed under Section 374(2) of Cr.p.c praying to set aside the order of conviction and judgment dated 27.09.2018 passed by the v additional district and sessions judge, D.K., Mangaluru, sitting at Puttur, D.K. in s.c.no.5006/2017 - convicting the appellant/accused for the offence punishable under section 302 of IPC.)

Oral Judgment

H.P. Sandesh, J.

1. Heard the learned counsel for the appellant and also the learned High Court Government Pleader appearing for respondent-State.

2. This appeal is filed against the judgment of conviction and sentence for the offence punishable under Section 302 of Indian Penal Code and imposing rigorous imprisonment for life and also to pay fine of Rs.10,000/- and accused is also entitled for benefit under Section 428 of Cr.PC.

3. The factual matrix of case of prosecution before the Trial Court that on 14.01.2017 at about 11 a.m., in the vegetable shop of Adam.K near old bus stand of Uppinangady Village of Puttur Taluk, the accused abused the said Adam in a filthy language IMAGE IMAGE When the said Adam objected the accused for doing business in the said shop, assaulted on the head of Adam with iron rod with an intention to murder him, as a result, he sustained injuries and immediately he was shifted to the hospital and ultimately succumbed to the injuries on 16.01.2017. It is the case of the prosecution that while carrying the injured Adam in the jeep to the Hospital at Mangalore, the accused threatened the life of P.W.1 to state before the Doctor at Mangalore as his father fell down from the tree and hence, invoked the offence punishable under Section 504, 506 and 302 of IPC. The Police have registered the case based on the complaint of Ex.P.1 and investigated the matter and filed the charge sheet.

4. The prosecution in order to prove the case, examined P.W.1 to P.W.23 and also marked Ex.P.1 to Ex.P.32 and also MO.1 to MO.6 are marked. The defendants have not lead any evidence or marked any documents. The Trial court having considered both oral and documentary evidence available on record, answered the issue with regard to the point No.1 and 3 that is abuse made against the deceased as well as causing of threat to the P.W.1 and answered as negative. However, answered the point No.2 as affirmative in coming to the conclusion that the prosecution has proved the case against the accused and particularly in paragraph No.34 comes to the conclusion that the accused enraged assaulted on the head of his father with iron rod, as a result he sustained injuries and later he died and thereby he committed the murder of his father. In other words, the prosecution has proved beyond reasonable doubt that accused has committed the murder of his father by assaulting him with iron rod and hence, answered the same.

5. It is also the reasoning that on account of assault made by the accused, his clothes were blood stained and iron rod was also blood stained and it clearly shows that accused assaulted on the head of his father with iron rod and he sustained injuries and died due to the said injuries and the same is observed in paragraph No.33 and relies upon Ex.P.12 seizure mahazar relating to the cloths of the accused and iron rod used for assault and so also the evidence of Doctors- P.W.10 to P.W.15 and so also Ex.P.21- RFSL report, so also Ex.P.23-serology report that clothes of the deceased and accused and iron rod are bloodstained with human blood and belongs to ‘B’ group of blood. However, the Court also makes note of it that blood group of the accused and his deceased father Adam are having ‘B’ positive blood group. The blood groups and the blood stains found on their clothes and iron rod are all matched and there is no explanation by the accused about how his clothes and iron rod were blood stained and hence, convicted and sentenced. Being aggrieved by the judgment of conviction and sentence, the present appeal is filed before this Court.

6. The learned counsel for the appellant would vehemently contend that the Trial Court committed an error in appreciating the evidence of prosecution witnesses and fails to take note that complainant himself has not supported the case of prosecution. The counsel also would submits that even eye witnesses who have been quoted as star witnesses of the prosecution also they have not turned hostile and they have also not supported the case of prosecution. The P.W.1 has deposed that his father-in- law fell down from the coconut tree while climbing the coconut trees and sustained injuries and died and he also not supported the case of prosecution. Since the complainant himself has turned hostile, the Court is not justified in convicting the accused. The eye witnesses named by the prosecution in the charge sheet are examined as P.W.2 to P.W.4 and they also turned hostile. The  counsel  also  would  vehemently  contend  that  even though prosecution relies upon the evidence of P.W.11, P.W.12, P.W.13 and P.W.14 is not proper especially when P.W.11 has deposed that he has not treated the patient. Further, Ex.P.29 clearly shows that the reason for the incident is mentioned as fall from tree that being the question of placing reliance on other documents so as to convict the accused does not arise for consideration. Merely because the Doctors deposed that deceased died due to complications of injuries sustained to the head as a result of blunt force, trauma, sustained the same does not mean that the accused has committed the alleged offence. The Court below is not justified in disbelieving the evidence of P.W.1 in that way of the matter, the order of conviction passed by the Court below is not proper. All the eye witnesses have turned hostile and also only on the basis of presence of blood stain in MO.1 and MO.2, the Court below has convicted the above named accused which is not proper and supported by oral and documentary  evidence  and  mahazar  witness  who  has given the evidence as P.W.5 with regard to the recovery is concerned and in the cross-examination, his evidence and answer elicited on the mouth of P.W.5 is not sustainable in the eye of law and the same does not inspires the confidence of the Court.

7. Per contra, the counsel appearing for the respondent-State would vehemently contend that there was a threat on P.W.1 to give history in the Hospital as to say that his father has fallen from coconut tree, if the said history is not given, he will take away his life and hence, at the first instance, the said history was given. The counsel also would submits that before committing the murder, the accused abused in a filthy language and the same is witnessed by P.W.1 to P.W.4 and all of them were very much present and though turned hostile, the Court ought to have taken note of the evidence of these witnesses. The counsel also would submits that the evidence of the Doctors P.W.10 to P.W.15 also supports the case of prosecution with regard to the homicidal death as well as nature of injuries sustained by the victim and FSL report also supports the case of prosecution that there were blood stains on the cloth of the accused as well as on the weapon. When such being the case, the Trial Court rightly convicted the accused and imposed the sentence in respect of offence under Section 302 of IPC even though there was no evidence in respect of offences punishable under Section 504 and 506 of IPC and hence, the judgment of conviction and sentence is sustainable in the eye of law.

8. Having heard the learned counsel for the appellant and also the learned counsel for the respondent- State and also evaluation of the evidence available on record, the point that would arise for the consideration of this Court are:

                  1) Whether the Trial Court committed an error in convicting the accused believing the evidence of prosecution witnesses, particularly evidence of P.W.1,  medical  evidence  and  FSL  report evidence and the prosecution has proved beyond reasonable doubt

                  2) What order?

9. Having heard the learned counsel for the appellant and the learned High Court Government Pleader appearing for respondent-State and also having given anxious consideration to the evidence available on record, no doubt P.W.1 has given the complaint and also on perusal of Ex.P.1, he has narrated how an incident was taken place that accused inflicted the injury on the head of the deceased with the iron rod. In order to substantiate the case of prosecution, when the P.W.1 was examined, he has turned completely hostile and not supported the case of prosecution and turned out the case of the prosecution, even not spoken anything about the incident in terms of Ex.P.1.

10. It is the case of the prosecution that there was a threat on P.W.1, but P.W.1 has not stated anything about the threat, but the injured was taken to the hospital on the very day of the incident that is on 14.01.2017. The history was given as fall from coconut tree that is fall from height,  but  the  Police  have  recorded  the  statement  of P.W.1 on 17.01.2017 and at that time, P.W.1 in his statement says the nature of the incident. The prosecution also relies upon the evidence of P.W.2 to P.W.4 as eye witnesses to the incident and these eye witnesses have also turned hostile. When the P.W.1 to P.W.4 have turned hostile, now the case rests upon the circumstantial evidence. Now, the Court has to take note of the circumstantial evidence which clinches the very case of the prosecution and it is settled law as held in the judgment of Sharad Birdichand Sarda V/s State of Maharashtra reported in (1984) 4 SCC 116, as well as in the case of Raja Naykar v. State of Chhattisgarh reported in (2024) 3 SCC 481 and also the recent judgment of Supreme Court in case of Subramanya v. State of Karnataka  reported  in  2022  SCC  Online  SC  1400, reiterated Panchasheela of the judgment in respect of the circumstantial evidence is concerned. No doubt in a case of circumstantial evidence, motive is significant and in order to commit the murder, motive attributed by the prosecution is that when the deceased refused to give site in favour of the accused and he enraged and assaulted with iron rod. But, in order to prove the said fact, the eye witnesses P.W.1 to P.W.4 have turned hostile and no material before the Court with regard to the motive is concerned, the same is taken note of by the Trial Court while considering the material aspect. The prosecution mainly relies upon the evidence of the I.O as well as P.W.5 who is the recovery witness. No doubt recovery witness for recovery of iron rod and also the clothes of the accused, in his chief evidence supports the case of prosecution and his evidence is consistent in paragraph No.6 that on 17.01.2017, he was called to Police Station, accordingly, he himself and other witnesses went to the Police Station where the accused was found and accused informed them that he is going to show the place of the assault and all of them went in jeep and when they reached near the vegetable shop, accused instructed to stop the vehicle. The accused produced the iron rod which was kept in the gunny bag and also informed that he assaulted with the said rod and there were blood stains and also produced the cloth telling that he was wearing the cloth on 14.01.2017 and the same is produced from vegetable rack and also there were blood stains and the same also seized and took the signature of himself and also the other witness Zakariya and the mahazar was drawn in between 10:00 a.m., to 11:00 a.m. The Police during the mahazar taken the photos and he identifies the signature and Ex.P.12 and also the signature of the other panch Zakariya and also the photograph which is marked as Ex.P.13 and also identifies MO.1 to MO.3, but in the cross-examination, in respect of this recovery is concerned, in his evidence he says that on 17.01.2017, Police called him to Police Station over the phone and he went at around 9:30 and when they went to the vegetable shop, P.W.1 was present. After conducting the mahazar, the shop was not sealed, but he cannot tell when the iron rod was produced in the gunny bag, whether it contains the blood stains or not and though in the chief evidence he says that it contains the blood stains, but in the cross-examination he says that he is not aware of the same, but he deposed that the same was seized by the Police and Police did not show the rod again in the Police Station. He also says that in his presence Police have not seized the same covering the paper or a white colour cloth. He identifies the rod and says no blood stains in the iron rod, but it was there in the earlier, but not present now and Police also in his presence not removed the blood stains and he cannot tell whether P.W.1 has signed or not, but also he says that he did not sign the slip which was pasted on the iron rod. However, he says that blood stains were found on the front portion of the shirt and also on the stomach portion. But, he did not notice whether blood stains are found in the pant or not and photos were taken on 17.01.2007.

11. The counsel appearing for the appellant would vehemently contend that in the complaint itself, P.W.1 has stated that P.W.1 and his brother-in-law i.e., accused only taken the injured to the hospital and also contend that history was given that his father fall from coconut tree at the first instance and naturally the blood stains will be there in the Clothes of the accused and having considered Ex.P.1 and the said averment is found that both of them, P.W.1 and the accused took the injured to the Hospital and hence, the evidence of P.W.5 with regard to the recovery is concerned is not consistent. In the cross-examination, he admits that he cannot tell whether there was blood stains in the iron rod or not and the same was also not seized with seal using either the paper or also the white cloth. No other witness is examined with regard to the recovery of iron rod and the cloth of the accused and no doubt the FSL report is positive  that  there were  blood stains, but blood was also drawn from the accused as well as the deceased and both the blood of the accused and the deceased are ‘B’ group of blood and the same ‘B’ group of blood is found on the clothes of the accused and deceased, but there is no any inspiring evidence before the Court with regard to the recovery is concerned.

12. It is also important to note that at the first instance, history was given that it is a case of fall from the coconut tree and evidence of Doctor is also very clear that history was given as a fall from the coconut tree. When such being the case and also the eyewitnesses have turned hostile, only based on the report of FSL, the Court cannot comes to a conclusion that accused only committed the murder and no doubt if any other circumstances are clinching the evidence of the prosecution. Apart from the clothes, the Court can comes to a conclusion that accused only committed the murder, but there is no any other circumstantial evidence either for the last seen that accused was along with the deceased, but eye witnesses P.W.1 to P.W.4 completely turned hostile and only believing the evidence of P.W.5 regarding recovery, the Court cannot come to a conclusion when the evidence of P.W.5 not inspires the Court that recovery was made at the instance of the accused.

13. The prosecution also relies upon the evidence of P.W.7 to P.W.9 as eye witnesses and they also turned hostile and they have not supported the case of prosecution and having considered the material on record, there is a weak piece of evidence before the Court except the FSL report and when the P.W.1 makes the statement in terms of Ex.P.1 that both accused as well as the P.W.1 took the injured to the Hospital at the first instance, there is a force in the contention of the counsel appearing for the appellant that naturally blood stains will be there in the clothes of the accused. It is also important to note that the evidence of the witness is also on the front portion of the cloth of the accused is blood stained, but witness says that he did not notice the blood stains on the pant, but he noticed the blood stains on the shirt that is the evidence of P.W.5 and that evidence also corroborates the very contention of the counsel appearing for the accused that both P.W.1 and accused shifted the injured to the hospital immediately after the incident.

14. It is also important to note that P.W.23 who has been examined before the Trial Court i.e., I.O in his evidence, he says that no blood stains were found in the place where the alleged incident was taken place i.e., within the vegetable shop premises and the evidence of P.W.23-I.O also not supports the case of prosecution and the same is elicited from the mouth of P.W.23. The admissions given by P.W.23 is very clear that on 14.01.2017 before lodging of complaint Ex.P.1, no information was given to him, but he categorically admits that on the date of incident everyday Police gasth will be there and Police have not reported him who are on gasth duty, but he says that on 14.01.2017, Mangalore Police given the information to his Police Station and also admits that intimation No.085 and admits that he did not enclose the same along with the charge sheet but he claims that even today also the said document is along with the investigation records and also he admits that in the said intimation there was a reference fall from tree and no difficulty to produce that document before the Court and also he identifies Ex.P.29 and so also numbered as 086 and in Ex.P.29 in column No.6 it is mentioned as fall from tree/assault and also a suggestion was made that later it was inserted as assault, but witness did not deny the same, but he says he is not aware of the same and also he categorically admits that the intimation that fall from tree is not brought to the notice in his investigation. The admissions on the part of the P.W.23 is also take away the case of the prosecution with regard to the genesis of the crime is concerned. Having re-assessed the material available on record and on appreciation of both oral and documentary evidence and particularly taking into note of the reasoning given by the Trial Court and Trial Court only carried away in convicting the accused based on the FSL report which is discussed in paragraph No.33. Even though made all observations with regard to the prosecution theory cannot be believed and prosecution proved beyond all reasonable doubt that accused has committed murder of father by assaulting him with iron rod, but answered the same as affirmative only extracting the paragraph No.34 and before coming to such a conclusion, discussion was made in paragraph No.33 with regard to the ‘B’ blood group found in the cloth of the accused as well as the deceased but also comes to the conclusion that there is no explanation by the accused about how his clothes and iron rod were blood stained. There is also no evidence by him to disprove the same, but we have already pointed out that in the complaint Ex.P.1 itself, P.W.1 himself says that injured was taken by himself as well as the accused and shifted him to the hospital and when such statement is made in Ex.P.1 itself, the benefit of doubt goes in favour of the accused. Even though there was no any explanation on the part of the accused in 313 statement that only one circumstances cannot be a ground to convict the accused in a case of circumstantial evidence and each chain link must be established to prove the case of the prosecution and the Trial Court though in detail discussed, but it appears the Trial Court was under confusion in considering the evidence available on record and only carried away in paragraph No.33 in coming to such a conclusion and only based on the FSL report, the accused cannot be convicted when other circumstances has not been proved and hence, we are of the opinion that Trial Court committed an error in convicting the accused solely based on blood stains found in the article which discloses the blood stains found in the clothes of the deceased and the accused and also found on the weapon. Hence, it requires interference of this Court.

15. The P.W.23 in his evidence with regard to the recovery is concerned, he categorically admits that in paragraph No.23 that in the spot where the alleged crime was taken place, did not found any blood stains and so also while securing panchas also he categorically deposes that other shops were also opened in the vicinity but he did not request them to become the panchas instead of that called P.W.5 and P.W.6 and also he categorically says that while conducting the Mahazar as per Ex.P.2, he did not verify the place, but according to the prosecution that the very weapon was there in the very shop itself and also he did not seize the shop, but he says in paragraph No.27 that the weapon which was used for committing the crime was available in the gunny bag of the very same vegetable shop, but no blood stains were found in the gunny bag and also he says in MO.3-iron rod which he verified and no such blood stains in the MO.3 and the same answer is given by the P.W.6 in his evidence and when all these contradictions are found, the very case of the prosecution cannot be believed and so also in paragraph No.31 he says that he found the wound certificate – Ex.P.16 and in the Ex.P.16, history was given that initially fall from height and the same is mentioned in the 4th line, but he did not conduct any investigation in respect of the initial stage it was mentioned as fall from height and ought to have investigated the same whether it is a case of fall from height or murder, being a investigating officer and no such effort was made by I.O. Instead of mentioning the history as fall from height is suppressed by the I.O and all these circumstances which leads to the doubtful case of the prosecution and the same is also not taken note of by the Trial Court while appreciating the evidence available on record. We have already pointed out that when the eye witnesses evidence is not available before the Court and ought to have taken note of circumstantial evidence whether each circumstances establishes the link to comes to a conclusion that accused only committed the murder in view of the principles laid down in the judgments of Sharad Birdichand Sarda’s case as well as the Raja Naykar’s case and also the discussions made in the judgment  of  Subramanya’s  case  referred  supra  and those panchasheela of the circumstantial case has not been proved by the prosecution and hence, having considered the material available on record which is inconsistent to each other. The very case of prosecution in view of the admission on the part of P.W.23 takes away the case, particularly when the history was given as fall from the coconut tree and the same is not investigated by the Investigating Officer. No doubt any lapses on the part of the Investigating Officer cannot be ground to acquit the accused. But, in the case on hand, there is no any material before the Court inspiring the credence of witnesses evidence account to comes to a conclusion that accused only committed the murder. When such being the facts and circumstances of the case, we answered the point accordingly.

16. In view of the discussions made above, we pass the following:

                  ORDER

               i) The Criminal Appeal is allowed.

                  ii) The impugned judgment of conviction and sentence dated 27.09.2018 passed in S.C.No.5006/2017 is set-aside. If any fine amount is deposited, ordered to be released in favour of the accused on proper identification.

                  The bail bond executed by the accused stand cancelled.