(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C. 1973, praying to set aside the Judgment and Order of Conviction dated 29.04.2023 and Order Of Sentence dated 29.04.2023 in sessions Case No.56/2020 on the file of the ii Additional District and Sessions Judge, Ballari & etc.)

Oral Judgment:

H.P. Sandesh, J.

1. Heard the learned counsel appearing for the appellant and also the counsel appearing for the State, i.e. Additional S.P.P.

2. This appeal is filed against judgment of conviction and sentence for the offence under Section 302 of I.P.C. imposing life imprisonment with fine of ₹20,000/- and also invoked Section 428 of Cr.P.C.

3. The factual matrix of case of prosecution is that the accused was having ill will against the deceased Mahadeva as the deceased was having illicit relationship with the mother of the accused. On 25.02.2020 at about 04.30 p.m. the deceased Mahadevappa went to attend nature call to the land of one Ayyanna Gouda. When he was attending nature call at that time accused by holding axe went there and assaulted to Mahadevappa on the back side of the head, near right eye and caused grievous bleeding injuries thereby tried to commit the murder. On hearing the screaming sound PW1, PW2 and PW3 went to the spot and seeing them the accused ran away. The injured was immediately shifted to Karur Govt. Hospital and thereafter he was shifted to VIMS Hospital, Ballari for higher treatment. Ultimately he was succumbed to the injuries on 27.05.2020 at about 06.44 p.m. The I.O. based on the complaint, Ex.P.1, registered the case against the accused in Crime No. 54/2020 for the offence punishable under Section 302 of IPC, thereafter investigated the matter and filed the charge sheet. The same is numbered as C.C. No. 294/2020. After the matter was committed to the Sessions Court, the same is numbered as S.C. No. 56/2020. During the trial since accused was in judicial custody he was secured before the trial Court and he did not plead guilty and claims the trial. Hence prosecution relies upon the evidence of PW1 to 19; documents as per Ex.P.1 to 27 and marked material objects as per M.O.1 to 8. The trial Judge after closure of the evidence of prosecution recorded statement of the accused u/S 313 Cr.P.C. The accused denied the incriminating evidence but he did not choose to lead any defence evidence. However, confronted the documents at Exhibit D1 to 3 during the course of cross examination of prosecution witnesses.

4. The trial judge having considered both oral and documentary evidence and also the judgments which have been relied upon by both the accused as well as the State and on appreciation of both oral and documentary evidence, accepted the case of prosecution and convicted the accused and sentenced for offence punishable under Section 302 IPC.

5. Being aggrieved by the said reasoning of conviction and sentence in the appeal it is specifically contented that the trial Judge has committed an error in relying upon the evidence of PW1 and PW2, who claim to be the eyewitnesses and their evidence is contrary to each other and both of them have not whispered anything regarding motive to commit the offence. In the evidence, both these witnesses have clearly admitted that they came to know about the illicit intimacy of the deceased with the mother of the accused through the general public. PW1 in her cross-examination has clearly admitted that mother of the accused has no any illicit intimacy with the deceased and also does not know the contents of Ex.P.1. It is further say of PW1 in her cross examination that weapon used for the commission of the offence, i.e. M.O.8 is shown by her to the Police. On the CRL.A No. 100357 of 2023 other side, it is the statement of PW18 that on the basis of the voluntary statement of the accused under Ex.P.6, the same is recovered at the instance of the accused and the same is contradictory to each other.

6. The counsel also would submit that trial judge committed an error in relying upon the evidence of PW1 and PW2. PW2 in his evidence has stated that he had seen the accused running away from the place of incident along with the weapon, i.e. M.O.8, so also he had seen the injured sustaining injury to his head and other parts of the body and he has shifted the injured to the hospital along with PW1. In the cross examination, he has clearly admitted that there is no enmity between the accused and the deceased. He also admitted that he came to know about the relationship of the deceased with mother of accused from the public. He do not personally know about the alleged illicit relationship of the deceased with the mother of the accused. He further admitted that at the time of incident PW1 was behind the house of PW2 which clearly indicate doubt regarding two different statements of the eyewitnesses. The trial judge failed to take note of contradictions in the evidence of PW1 and PW2.

7. The Doctor who conducted the postmortem, i.e. P.W.15, noted eight injuries. But as per the evidence of PW1, the deceased had sustained injuries on the face, right eye, and also over the body. Even at Ex.P.18, it is reported that injuries are on the head and face of the deceased, and no single word about any injury on the other part of the body except head and face.

8. It is also contended that PW8 is the owner of the land where the alleged incident had occurred. In his evidence he has clearly stated that place where the incident occurred is the land which is entirely covered with thorny bushes and the height of the said thorny bushes is on higher level and what act is going inside the land cannot be seen by standing outside. M.O. No. 8, the weapon used for the commission of the offence is not shown or sent to the Doctor, who has conducted the autopsy, to verify the width and depth of the wound and did not obtain the report or opinion from him. Hence the investigation is not properly and effectively conducted by the Investigation Officer. Even evidence of the witnesses cannot be relied upon. Even the recovery, as per evidence of PW4 also not inspires the confidence of the Court.

9. The counsel also would submit that there was an untenable delay in registering the case, i.e. the complaint is registered after 18½ hours. If really PW1 and PW2 have witnessed the incident, they would have informed the same but they have not informed to the Police as well as Doctor. The counsel would submit that the admission on the part of PW1 and PW2 is very clear that motive is not proved and the evidence of PW1 and PW2 also not inspires the confidence of the Court that they are the eyewitnesses to the incident.

10. The counsel also would submit that it is an admission on the part of PW4 and also the evidence of the owner of the land wherein the same was fully covered with thorn bush and also the evidence of PW16 and PW18; also not enquired the persons when they went to the spot and also to the hospital regarding assailant is concerned and their evidence also not inspires the confidence of the Court.

11. Though PW1 claims that she is an eyewitness, her evidence does not inspire the confidence that she is an eyewitness to the incident. The counsel also would submit that, appellant is in custody from last 5 years, 9 months, 23 days. He was in custody throughout. The trial judge committed an error in relying upon the evidence of prosecution witnesses.

12. The counsel also in support of his argument, relies upon the judgment of Apex Court in the case of Boby Vs. The State of Kerala, which was delivered on 12.01.2023 and brought to notice of this Court paragraph Nos. 20, 22, 25, 26, 27 and 32.

13. Per contra, the counsel appearing for the respondent- State, Additional S.P.P. would submit that it is a clear case of homicide. The evidence of the Doctor, PW15 is very clear that nature of injuries could be caused by using MO8. The counsel also would submit that in the postmortem report it is specifically mentioned as 9 injuries. The counsel also would submit that the evidence of PW1 and PW2 is believable, who having heard the screaming sound immediately rushed to the spot and found the accused inflicting the injury on the victim, when the public gathered to the spot the accused ran away from the spot, CRL.A No. 100357 of 2023 immediately the injured was taken to the hospital by PW1 and PW2. Their evidence is consistent.

14. The counsel also would submit that the prosecution mainly relies upon the evidence of PW4, who is a recovery witness. His evidence is consistent with regard to the recovery of axe at the instance of the accused. The counsel also would submit that the evidence of PW16 and PW18, who conducted the investigation at the initial stage as well as the complete investigation, is consistent and their evidence is believable.

15. The counsel also submits that PW7 speaks about seizure of cloth M.O. 5 to 7. PW9 is the owner of the Auto in which injured was shifted to the hospital. PW10 is the Police Constable who carried the F.I.R. on 26.05.2020 and the accused was produced before the Court at 08.00 p.m. PW11-Head Constable visited the hospital and tried to record the dying declaration of the injured but the Doctor has endorsed that he was not in a fit condition to make any statement. PW12 is the FSL Officer, who conducted examination of the seized articles and given report. PW13 is the Revenue Inspector, who issued Record of Rights and PW14 is the Engineer, who drawn the sketch of the spot of the incident and their evidence is also consistent. The Trial Court has rightly convicted the accused having considered both oral and documentary evidence available on record and it does not require any interference of this Court.

16. Having heard the counsel appearing for the appellant and also the counsel for the respondent-State and considering the grounds urged in the appeal as well as oral submissions of appellant’s counsel and also the counsel appearing for the respondent-State, the points that would arise for the consideration of this Court are:

               i) Whether the Trial Court committed an error in convicting the accused believing the evidence of PW1 and PW2/eyewitnesses, PW4/Pancha witness and the evidence of PW16 and PW18/ Investigating Officers and it requires interference of this Court?

               ii) What order?

17. Having heard the respective counsel, we have perused both oral and documentary evidence and have given anxious consideration to the material available on record. No doubt, it is the case of the prosecution that there is direct evidence against the accused and it relies upon the evidence of PW1 and PW2. It also relies upon the evidence of PW3, but he turned hostile. This Court has to consider the direct evidence as well as circumstantial evidence to consider whether this case falls under direct evidence or circumstantial evidence.

18. The prosecution mainly relies upon the evidence of PW1 and PW2. They are the eye witnesses. No doubt, PW1 and PW2 have categorically deposed before the Court that having heard the screaming sound of the victim, they rushed to the spot of incident. PW1 deposed that the accused was inflicting injury with axe on all over the body of the deceased and she witnessed the same. PW1 did not speak anything about PW2 coming to the spot but she says that when she screamed at the spot, accused ran away from the spot with axe and she noticed that her husband sustained injuries. It is her evidence that having noticed the injuries on the body of her husband, she shifted him in an auto-rickshaw to Karur Government Hospital and the doctor advised to take him to the other hospital for higher treatment and hence, they shifted him to the VIMS Hospital, Ballari. Thereafter, PW1 lodged complaint with the Police, which was drafted by CW11-Hanumayya and she put her left thumb impression on it. It is her evidence that she had shown the place of incident to the Police and the Police have seized the chappal belonged to her husband and also bloodstained and unstained mud. She stated that the Police also took her signature to Ex.P.2-Spot Panchanama and Ex.P.3-Sketch. She identified the photograph marked at Ex.P.4 and material objects marked at M.O.1 to 4. She identified the clothes of the deceased as M.O.5 to 7. It is also her evidence that her husband died in hospital. It is her evidence that the accused was quarreling with her husband and inflicted injuries with an axe.

19. This witness was subjected to cross-examination. She also identified M.O.8-Axe. In the cross-examination, it is elicited that she does not know, who wrote the Ex.P1-Complaint. She admitted that either the mother of the accused or the accused had lodged any complaint against her husband regarding illicit relationship. PW1 also categorically admitted that the place of incident was covered with thorn bushes. She also categorically admits that she did not give any complaint on the date of the incident and also even did not make any statement before the doctor that the accused had assaulted her husband, however she stated that she gave statement before the Police. To the specific question that whether she made her statement before the doctor, she answered that she has not given such statement. She categorically admits that she did not mention the nature of injuries sustained by her husband even before the Police. It is also elicited that PW2 and PW3 are young boys. She categorically admits that her husband was not having illicit relationship with the mother of the accused. She admits that she does not know the contents of Ex.P.1-complaint since she is illiterate. Further, she admits that in Karur Government Hospital also she did not make any statement regarding who assaulted her husband, but she says that she went to the hospital in an auto-rickshaw. It was suggested to this witness that axe like M.O.8 will be available in all farmers’ houses, but she claims that she saw the same at a distance of 4 feet and she was very much present while the accused was inflicting injuries and even she pushed the accused, and while pushing him, PW2 and PW3 came to the spot, but both PW2 and PW3 did not make any attempt to catch hold of the accused and M.O.1 and 2 were there at the spot. She stated that M.O.8 was stained with blood and she was present at the time of seizure and she had shown the axe to the Police. When a suggestion was made to this witness that the accused did not inflict any injury with the axe, the same was denied by PW1.

20. The other witness is PW2, who is none other than the brother of the deceased. He also claims that he witnessed the incident of inflicting injuries by the accused and he had noticed the injury sustained by his brother and he claims that in an autorickshaw belonging to one Mari Irappa, the injured was taken by himself and PW1 to the hospital, PW1 gave the complaint and the injured succumbed to the injuries on the next day. He stated that the accused only had inflicted the injury with axe and committed the murder of the deceased.

21. This witness was subjected to cross-examination. When a suggestion was made that the accused and the deceased were not having any enmity, he denied the same. However, he deposed that he came to know from people gathered at the spot of the incident that there was illicit relationship between the deceased and the mother of the accused and people were talking about the same, but he did not witness the same and even he is unable to say who were talking about such illicit relationship. Even this witness has not stated the names of such persons and where they were speaking about such relationship. Even he admits that he did not give any statement before the Police with regard to the same and also no complaint was given with regard to the illicit relationship. Though he claims that he had made the statement before the doctor in both the hospitals that accused only inflicted the injury and he claims that it was stated before the doctor at 9.00 p.m. on the very day and even Police came and enquired with him at 10.00 p.m. and the place of incident is a hallow land, he deposed that he cannot tell on which part of the body of his brother the accused inflicted injury and even says that he cannot say how many blows were given. He stated that he did not count the blows and when he reached the spot, the accused had already run away from the spot.

22. Having taken note of the answers elicited from the mouth of PW1 and PW2, it is very clear that immediately after the incident, either PW1 or PW2 have not stated anything before anybody else that the accused only inflicted the injury. It is also important to note that even when the Investigating Officer went to the hospital on previous day, i.e. date of incident, no such statement was made by the witnesses that the accused only inflicted the injury. The name of the assailant was also not stated by these witnesses immediately after the incident either to the Doctor or to the Investigating Officer. If really they witnessed the incident, the PW1 and 2 have informed the same but it creates the doubt that they have not witnessed the incident.

23. It is the contention of the counsel appearing for the appellant that there was a delay of 18½ hours in lodging the complaint. The incident was taken place on previous day at 04.30 p.m., but the complaint was lodged on the next day at 11.00 a.m., and the FIR reached the Court at 01.30 p.m. Thereafter, the accused was arrested and produced before the Court on the next day at 08.00 p.m. It is to be noted that none of these witnesses have made any statement before the doctor that the accused only inflicted injury. It is also important to note that when PW16-Investigating Officer went to the hospital to record the statement of the injured and before he went to the doctor to know that whether the injured is able to make statement and in the said requisition also not stated the name of the assailant, wherein it is mentioned as someone else has infected the injury and not mentioned whether the injured is in a fit state of mind and able to give statement. Ex.P.10 is also marked wherein it is categorically mentioned that someone else assaulted with axe with wooden log, which is not the case of the prosecution. The prosecution’s case is that the injuries were caused with axe and not with club. Even at the time of giving the requisition on 26.05.2020 at 9.10 a.m. and before lodging the complaint also they were not aware as to who was the assailant. When such being the case, if really PW1 and PW2 are the eyewitnesses to the incident, they could have mentioned the name of the assailant and hence, it is very clear that PW1 and PW2 are not the eyewitnesses to the incident and they have been made as eyewitnesses to the incident for the convenience of the prosecution. Even the answers elicited from the mouth of PW1 and PW2 also not inspires the confidence of the Court that they are the eyewitnesses and hence, the evidence of these two witnesses cannot be accepted as eyewitnesses. The evidence of these witnesses is contradictory to each other and even PW2 unable to depose how many blows are given and nature of injuries.

24. No doubt, the prosecution also relies upon the evidence of PW3 as an eyewitness but he also has turned hostile. He did not support the case of the prosecution. Now, case remains with circumstantial evidence. In the absence of direct evidence, it is trite law that in a case of circumstantial evidence there must be a proof of chain link evidence to prove the case. The law is well settled with regard to consideration of the material in a case of circumstantial evidence in view of the judgment of the Hon’ble Apex Court in the case of Sharad Birdichandra Sarda (referred supra) and also the recent judgment of the Apex Court in State of Subramanya v. State of Karnataka reported in (2023) 11 SCC 255 wherein also it is reiterated the Panchasheela while considering the case of circumstantial evidence, that means, all circumstances should point out the role of the accused in coming to a conclusion that the accused person only committed the crime and if any chain link is not established, the benefit of doubt has to be extended in favour of the accused.

25. In the case on hand, no doubt it is the claim of the prosecution that it is a case of direct evidence and this Court has not accepted the evidence of PW1 and PW2, who are the direct witnesses. To prove that there was a last seen theory, no evidence is available before the Court. Apart from that as regards motive is concerned, it is the case of the prosecution that the deceased was having an illicit relationship with the mother of the accused. Though PW1 in her evidence states that the accused was quarreling with the deceased but she has not stated with regard to the illicit relationship between the deceased and the mother of the accused is concerned. In the cross examination, PW1 categorically admitted that there was no illicit relationship with her husband and the mother of the accused.

26. The evidence of PW2 is also not consistent and he only says that he came to know about illicit relationship while people were talking about the same, but he was unable to depose as to who was speaking about the illicit relationship and he has not named the person, who gave the information to him and also about the place where they were talking. The evidence of PW1 and PW2 is also not consistent with regard to the motive is concerned about illicit relationship and the same is not proved.

27. Now, the other circumstance, which the prosecution relies upon is the evidence of PW4, who is a recovery witness. According to him, he was called to the Police Station. He deposed that he went with Police officials to the place where the accused had shown the weapon. But his evidence is very clear that he accompanied the Police as per their instructions. In the cross examination, he categorically admits that in his presence, the accused did not mention anything about he is going to produce the weapon. Even at the time of conducting the Mahazar also, the accused has not stated anything and even he is not able to give description of the spot where the recovery was made and also he is not having any information in respect of Ex.P.6-spot and seizure mahazar and also admits that M.O.8 would be available in any of the places and he also not stated anything about who wrote the Ex.P.6 and also nothing is mentioned in Ex.P.6 with regard to the seizure of stained mud while drawing the mahazar/Ex.P6. He categorically admits that based on instructions of the Senior Officer and also the Village Accountant, he is giving evidence before the Court. When such evidence is given by PW6, his evidence also cannot be believed regarding recovery. It is not his evidence that the accused only led him to the spot, but he only says that at the spot the accused had produced the weapon. When such being the case, the recovery is also not proved. The Trial Court fails to take note of the evidence of PW4 and his evidence is not consistent regarding recovery and not inspires confidence of the Court.

28. Now coming to the evidence of PW16 and PW18- Investigating Officers, it is very clear that PW16 came to know about the incident on previous day itself having received the MLC intimation and also it has to be taken note of that in the MLC, at the first instance, it is mentioned as a ‘fall in bathroom’ and the same is struck out and it is mentioned as ‘a history of assault’. It is categorically admitted in the cross-examination that to strike out and write the same, there is no any counter signature of the person, who made the entry and the same is also doubtful to the case of the prosecution. Even PW16, who came to know about the information, sent two officials to the hospital and they came and reported that the injured was not in a position to make the statement but requisition Ex.P.10 is clear that someone inflicted injury. PW16 also categorically says that he went to the hospital and enquired with the attendants of the injured, but he did not register the case. When the cognizable offence was taken place and even the injured was not in a position to make the statement and was unconscious, the Investigating Officer ought to have registered the case in view of the judgment of the Apex Court in Lalita Kumari vs. Government of U.P. and others reported in AIR 2014 SC 187, but has not done the same and waited till filing of the complaint on the next day at 11.00 a.m. and there is a lapse on the part of the PW16/ Investigating Officer and it is clear that PW16 is not aware of who is the assailant.

29. No doubt, it is settled law that even if there is a lapse on the part of the Investigating Officer, the same cannot be a ground to disbelieve the case of the prosecution. But it is trite law that if other evidence available before the Court inspires the confidence of the Court and if the Court comes to the conclusion that the accused only has done away the life of the deceased, then lapses will not come in the way of the Court in coming to such a conclusion. But in the case on hand, this Court already discussed the evidence of PW1 and PW2 that they are not the eyewitnesses. The evidence of other circumstantial witness also does not support the case of the prosecution and this Court already pointed out that Panchasheela ought to have been proved and each link has to be established in order to come to such a conclusion and even the evidence of PW18 also will not come to the aid of the prosecution. PW16 also not enquired with the persons with regard to the incident is concerned and only acted upon on the next day after having received the complaint from PW1 that too a belated complaint of 18½ hours and hence it is very clear that none of the circumstances point out the role of the accused.

30. First of all, the prosecution was not able to prove the motive with regard to the illicit relationship and none of the witnesses speak positively that there was an illicit relationship between the deceased and the mother of the accused and also with regard to the recovery is concerned, the evidence of PW4 also does not inspire the confidence of the Court. The evidence of PW16 and PW18 also not come to the aid of the prosecution and the evidence of PW1 and PW2, who claim that they are the eyewitnesses, does not inspire the confidence of the Court, the Trial Court has failed to take note of all these factors while considering material available on record.

31. It is also important to note that the place of incident is fully covered with thorn bush and the same is admitted by PW4 and even PW1 and PW2, who claim that they are the eyewitnesses that they went to the spot, where the bush level is very high and when such being the case, the Trial Court has committed an error in coming to such a conclusion. No doubt, the Trial Court has taken note of the evidence of PW15-Doctor that it is a case of homicidal death and considered the nature of injuries that there are nine injuries as per Ex.P.14-P.M.Report. No doubt, it is a case of homicidal death and though defence was taken by the accused that it is not a case of homicide, but the evidence available before the Court is very clear that it is a case of homicidal. However, only on the ground that it is a case of homicidal, the Court cannot fix the accused into the case of murder in the absence of either direct evidence or circumstantial evidence to prove the case beyond reasonable doubt. The Trial Court has committed an error in believing the case of the prosecution and failed to take note of the delay in lodging the complaint and the motive is not proved. The evidence of the prosecution not inspires confidence of the Court and even the evidence of PW16 and 18/Investigating Officers also not inspires the confidence of the Court. All these factors were not taken note of by the Trial Court while convicting the accused. Hence, it is a fit case to reverse the judgment of the Trial Court since the Trial Court lost sight of the settled principles in a case of appreciating direct evidence as well as the circumstantial evidence. Hence, we answer the point accordingly that the Trial Court has committed an error in convicting the accused.

32. The Trial Court observed that the wife of the deceased, being victim in the case, is at liberty to approach the appropriate authority seeking compensation under Victim Compensation Scheme, which observation is erroneous. The Trial Court ought to have directed the DLSA to compensate the Victim who is the wife of the deceased. Hence, we deem it appropriate to direct the District Legal Services Authority, Ballari, to consider the case under Section 357A for awarding appropriate compensation.

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

               The present appeal filed by the accused is allowed. Consequently, the judgment of conviction and sentence passed by the learned II Additional District & Sessions Judge, Ballari dated 29.04.2023 in S.C. No. 56/2020 against the accused- Shekar S/o.Babu for the offences punishable under Section 302 of IPC is set aside. The accused, who is in custody, is set at liberty forthwith in view of his acquittal.

               Fine amount deposited by the accused, if any, shall be refunded to the appellant-accused on proper identification.

               The District Legal Services Authority, Ballari, is directed to consider the case under Section 357-A of Cr.P.C., for awarding appropriate compensation to the victim, who is the wife of the deceased, under the victim compensation scheme. Registry is directed to communicate this order to the District Legal Services Authority, Ballari, forthwith.

                   Registry is also directed to communicate the operative portion of the order to the concerned Jail Authorities through email, forthwith to set the accused at liberty, if not required in any other case.