ANNAYAPPA AND ORS. Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal is filed by the convicted Accused Nos. 1 and 2 questioning the Judgment & Order of conviction and sentence dated 15/17.2.2011 passed by the Prl. District & Sessions Judge, Bangalore Rural district, Bangalore in S.C. No. 297/2008.

(2.) CASE of the prosecution in brief is that five persons including the appellants herein formed themselves into an unlawful assembly armed with deadly weapons like clubs and stones at about 00.30 hours i.e., on the night intervening between 7.7.2008 and 8.7.2008, with the common object of murdering Muniraju; they came near the place where the deceased Muniraju was proceeding towards his house; Accused No. 3 threw chilly powder on the face of Muniraju; Accused No. 2 assaulted on the head of Muniraju with club, consequent upon which Muniraju fell down; Accused No. 1 lifted a stone and threw on the head of Muniraju and Accused No. 2 lifted another stone and threw on Muniraju, consequent upon which Muniraju sustained severe bleeding injuries on his head and died on the spot; the dead body was lying in a pool of blood; Accused Nos. 4 and 5 who were present during the relevant time abetted other accused to commit murder of Muniraju.

(3.) SRI Hashmath Pasha, learned advocate appearing on behalf of the appellants taking us through the entire material on record submits that the 3rd charge framed by the Court below is defective and the said charge has caused serious prejudice to the accused; as Accused No. 1 did not know as to the exact charge against him, he could not defend his case before the Court below properly and therefore the conviction recorded by the Court below against him is improper and incorrect; the statement of P.W.2 who is the eye -witness to the incident was recorded on 9.7.2008 i.e., after two days of the incident in question, though he was allegedly present on 7.7.2008 near the scene of offence; the presence of P.W.2 is not spoken to by anybody except P.W.1; the presence of P.W.3 (another eye -witness) is not spoken to by P.W.2 and so also presence of P.W.2 is not spoken to by P.W.3; the statement of P.W.3 is also recorded after two days of the incident; the evidence of the doctor (P.W. 7) who conducted the post -mortem examination reveals that the incident has not occurred at the time as sought to be made out by the prosecution; the post -mortem report as well as the doctor's evidence reveal that the deceased had taken his last meal about 5 to 6 hours prior to his death; since the evidence of the eye -witnesses reveals that the incident had taken place within an hour or two after having dinner and as the same is contrary to the medical evidence, the versions of the eye witnesses cannot be believed; the Station House Officer of the Police Station has deposed that P.W.1 gave the written complaint, whereas P.W.1 (complainant) has deposed that he gave complaint orally, which came to be reduced to writing by a Police Constable in the Police Station; the first information (Ex. P1) is not really the first information inasmuch as the Inspector of Police had informed the Head Constable - P.W.25 about the incident on 8.7.2008 at 2 a.m. itself over the phone and the Sub -Inspector of Police as well as the Inspector of Police were on the spot at 2.30 a.m.; whereas the first information came to be lodged by P.W.1 before the Police Station at 3 a.m.; since the Police were at the spot much prior to lodging of the complaint, Ex. P1 cannot be treated as the first information report, but it can at the most be treated as the statement recorded by the Police during the course of investigation and consequently is hit by the provisions of Section 162 of Cr.P.C.; the time of incident as projected by the prosecution is not true; the presence of P.Ws.2 and 3 at the scene of offence is doubtful; P.W.2 is an interested witness whereas P.W.3 is a change witness; the origin and genesis of the case is suppressed by the prosecution. On these among other grounds, he prays for acquittal of the accused.