GIRIJAMMA AND ORS. Vs. IMTHIYAZ AND ORS.

JUDGEMENT

(1.) These two appeals are filed by the complainant P.W.1 and the State respectively, as against the judgment of acquittal dated 27.6.2013 passed in S.C.No.192/2011 on the file of Additional Sessions Judge, Shimoga passed for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code.

(2.) Brief facts of the prosecution case are that:

(3.) The Complainant/P.W.1 in Crl.A.No.1156/2013 has contended that the Court below has gravely erred in considering the evidence of P.W.1 regarding the oral dying declaration of deceased; P.W.2 has affixed his signature to Ex.P1-Inquest mahazar as pancha; P.W.3 is the brother of deceased as well as hearsay witness and he speaks about injury to deceased; P.W.4 is the pancha to Ex.P2-Seizure mahazar, but he has turned hostile; P.W.5 supports the prosecution case and confirmed the recovery of M.O.1- hand kerchief and motorbike and acted as pancha to Ex.P2 and he identifies Exs.P3 to P6, P.W.6 is the eyewitness to the incident and he has clearly disclosed about the assault of accused No.1 by rolling M.O.1 to his fist. Further, P.W.6 is also pancha to Ex.P7-spot mahazar; P.W.7 is the Doctor of Anuradha Nursing Home and she speaks that she saw the deceased in a van outside her nursing home and she advised to take the deceased to major hospital; P.W.8 is the eyewitness to the incident and he also supported the prosecution case partly; P.W.9 is the sister of the deceased and she speaks about oral dying declaration of the deceased and she is hearsay witness to the incident; P.W.10 is the owner of van and he speaks about shifting the deceased to Manipal hospital; P.W.11 is the pancha to Exs.P3 to P6, who turned hostile; P.W.12 is the independent witness and supports the case of prosecution and also he speaks about the motive and earlier altercation between accused No.1 and deceased; P.W.13 is the Doctor who conducted post mortem as per Ex.P10; P.W.14 is the RTO of Jayanagar, Bangalore and speaks about issuance of Ex.P13; P.W.15 speaks about the quarrel between deceased and accused No.1 and further also deposes that deceased was brought by accused No.2; P.W.16 is the Station House Officer and Exs.P15 and 16 were marked through him; P.W.17 is the CPI who investigated the matter partly; P.W.18 has registered the FIR in terms of Ex.P19; P.W.19 is Deputy Superintendent of Police, who filed the charge sheet and P.W.20 is the Doctor who treated the deceased at KMC hospital. Despite solid evidence on record, the Court below has failed to consider the documents as well as oral evidence of P.Ws.1, 3, 9, 6, 12 and 15.