(Prayer: This Criminal Appeal filed under Section 374(2) of Cr.P.C., praying to set aside the judgment of conviction and order of sentence dated 24.02.2011 passed in Session Case No.267/2009 on the file of the IV Addl. Sessions Judge at Gulbarga convicting the appellants/accused No.1 to 8 for the offence P/U/S. 147, 447, 506, 302 and 201 R/W Sec. 149 of IPC. And the appellants/accused No.1 to 8 are sentenced to undergo S.I for a team of one year and to pay fine of Rs.500/- each. In default they shall undergo S.I for one month for the offence P/U/S 147 of IPC. Further the appellants/ accused No.1 to 8 are sentenced to undergo S.I for a term of three months and to pay fine of Rs.500/- each. In default they shall undergo S.I for one month for the offence P/U/S, 447 of IPC. Further the appellants/accused No.1 to 8 are sentenced to undergo S.I for a term of six months and to pay fine of Rs.500/- each. In default, they shall undergo S.I for fifteen days for the offences P/U/S. 506 R/W Sec. 149 of IPC. Further the appellants/ accused No.1 to 7 shall undergo imprisonment for life and to pay fine of Rs.2,000/- each. In default they shall undergo S.I for three months for the offence P/U/S, 302 R/W Sec.149 of IPC. Further appellants/accused No.8 is sentenced to undergo imprisonment for life and to pay fine of Rs.2,000/- in default, she shall undergo S.I. for three months for the offence P/U/S, 114 of IPC. Further the appellants/accused No.1 to 8 are sentenced to undergo. R.I. for a term of three years and to pay fine of Rs.1,000/- each. In default they shall under go S.I. for two months for the offences P/U/S, 201 R/W Sec. 149 of IPC.)
B.S. Patil, J.
1. Appellants 1 to 8 herein were accused Nos.1 to 8 in S.C.No.267/2009. They were charged of offences punishable under Sections 147, 447, 504, 506, 302 and 201 read with Section 149 of the Indian Penal Code. They have been found guilty and have been convicted. Accused No.8 has been found guilty of offence punishable under Section 114 of the Indian Penal Code. All the accused have been sentenced to undergo imprisonment for different terms for other offences and in so far as offence of murder punishable under Section 302 read with Section 149 of the Indian Penal Code, they have been sentenced for life apart from imposition of fine of Rs.2000/- each and in default to undergo simple imprisonment for three months. Aggrieved by the judgment of conviction and order of sentence of imprisonment for life vide judgment and order dated 24.02.2011 passed by the learned IV Additional Sessions Judge at Gulbarga in Sessions Case No.267/2009, this criminal appeal is filed by the appellants/accused.
2. Case of the prosecution is that on 22.07.2008 in the early hours at 4.00 a.m. accused Nos.1 to 8 trespassed into the land bearing Sy.No.303/2 belonging to deceased Annaraya of Madiyal village, formed an unlawful assembly and with a common object of murdering Annaraya, caught hold of him, pressed and throttled him at the neck and committed murder of Annaraya. Later all the accused hanged the dead body of the deceased to a neem tree with a rope and went away from the scene.
3. The elder brother of deceased Annaraya one Ninganna and his son Yeshwantaraya were sleeping in a thatched hut along with the deceased. When the deceased woke up at 4.00 a.m. to feed the cattle, they heard Annaraya shouting and crying as a result Ninganna PW-7 and Yeshwantaraya PW-10 woke up and saw the accused assaulting the deceased. At that time, PW-7 tried to intervene, but was threatened with dire consequences to his life and therefore, both PWs-7 and 10 went away and hid themselves near a bush from where they saw the accused throttling the deceased and after making sure that he was killed, they hung the body of the deceased to a neem tree situated nearby the thatched hut. Within half an our, all the accused left the place. Thereafter, the two eye-witnesses PWs-7 and 10 stayed near the dead body of Annaraya and at about 6.00 a.m. in the morning, son of the deceased by name Ravindra PW-6 came to the land, took a sickle and cut the rope with which Annaraya had been hanged. Thereafter, PWs-7 and 10 ensured that the dead body was taken down. PW-6 Ravindra went back to his village.
4. PW-2 Pandit (complainant) is the elder brother of PW-6. He was at Gulbarga prosecuting his studies. PW-6 telephonically informed PW-2 about the incident. Having heard the news, he went to the village and after seeing his father and enquiring about the cause of death, went to the police and lodged a complaint on the same date at 12.00 noon.
5. In the complaint, he has narrated that about 7 years back, in a vacant plot lying in front of his house, his senior uncle Sidramappa accused No.4 and Nagamma accused No.8 and their sons Jagannath, Rajashekhar and Mallikarjun accused Nos.5, 6 and 7 respectively constructed a house. This was objected to but they went ahead with the construction and in the said house Jagannath accused No.5 was residing and it was because of this incident there were differences between the family of the deceased and the family of accused Nos.4 and 8 and their sons. He further stated that about four months prior to the incident one Shrimantraya S/o Mallanna Shrigani a relative of the complainant was killed. In connection with his murder, complainant s father (deceased Annaraya) was unnecessarily implicated as accused, as a result, his father Annaraya was kept in custody for two months and was released after he was granted bail; his father deceased Annaraya used to go to their garden land everyday and used to stay there during night and about eight days prior to the incident when his father was proceeding towards the lad, in the evening, accused No.1 Dattu S/o Shankar Kulali, accused No.2 Nagendra S/o Shankar Udagi and accused No.3 Yeshwantaraya S/o Shankar Udagi, accused No.7 Mallikurjun S/o Sidramappa Madditot and accused No.6 Rajashekar S/o Sidramappa Madditot, holding a dagger (talwar) in their hands, chased his father deceased Annaraya shouting at him that he had killed Shrimant S/o Mallappa Shrigani and that they would kill him or finish him; father of the complainant escaped and came running to his house and informed the incident to the family members.
6. In the complaint, the complainant further narrated that all the eight accused killed his father by throttling the neck of the deceased and thereafter with the help of a rope hanged him to the neem tree and then ran away from there. According to him, this narration was made to him by his senior uncle Ninganna PW-7. Hence, he requested the police for taking action against all the accused. The complaint is marked as Ex.P2.
7. Thereafter, the jurisdictional police conducted inquest. In the inquest panchanama it was found that there was injury around the neck showing that he was hanged. In so far as other parts of the body, in the inquest panchanama it has been stated that there were no external injuries seen. Ex.P11 is the inquest panchanama.
8. Postmortem was conducted by Dr. Srinivas PW-9. In the postmortem report it was found that a circular ligature mark was present at the neck which was more prominent at the front side of the neck and less prominent at the back of the neck. It was half an inch in width and on incising the ligature mark extravasaction of blood was seen in the surrounding tissues. Rigor mortis was present in all the four limbs. The postmortem report has been produced and marked as Ex.P6. The doctor has given his report dated 13.08.2010 vide Ex.P8 to the Investigating Officer CPI. Aland stating that the ligature mark on the neck was complete; death was due to asphyxia as a result of strangulation by a strong object such as rope, wire, cloth etc. which corresponded to the size of the ligature mark and death was due to throttling. It was also stated in the report that no external or internal wounds were present while dragging the body. No internal wound was present while struggling for self protection; no internal wounds were present or, both legs and hands. The samples collected from the area of neck were sent for forensic examination.
9. PW-3 Dr. Umesh conducted the forensic examination and gave his opinion at Ex.P3. he has stated in his opinion that neck structure belonged to a human and it revealed thyroid gland, thyroid cartilage, cricoid cartilage and four tracheal rings, larynges without fracture or hemorrhage and the sample did not contain hyoid bone.
10. Sketch showing the scene of offence has been produced at Ex.P5. It disclosed the location of the hut where deceased was sleeping at night along with PWs-7 and 10, the location of neem trees, the well etc. Spot mahazar was drawn which is marked as Ex.P12.
11. After conducting investigation, the police filed charge sheet against all the accused. Accused pleaded not guilty. In support of the case of the prosecution, the prosecution examined 18 witnesses and marked documentary evidence Exs.P1 to P20. M.Os 1 to 5 were identified in the evidence of prosecution witness. The statement of accused under Section 313 of Code of Criminal Procedure was recorded.
12. The trial Court has held that prosecution had successfully established the occurrence of the incident, involvement of all the accused and the commission of the offence resulting in the murder of Annaraya by throttling him and thereafter hanging his dead body to the neem tree. The Court below has relied on the eyewitness account of Ninganna PW.7, brother of the deceased and Yeshwantraya PW.10, son of Ninganna. The fact that lantern which was the only source of light in the darkness to enable the eyewitnesses to identify and to recognize the accused was not recovered by the Police has been brushed aside by the trial Court holding that all the accused persons were known to eyewitnesses as they were relatives and therefore, their version with regard to involvement of accused Nos.1 to 8 in the incident could be believed.
13. The Court below has also accepted the version of eyewitnesses that, as they were threatened with dire consequences, they left the place and were hiding at some distance behind the thorny bush watching the whole incident. The Court below has also found that motive for the accused to kill Annaraya was evident from the evidence on record that there was some dispute with regard to vacant place of land situated infront of the property of the deceased over which accused No.5 had raised construction and that the main motive was that the husband of sister of accused No.8 one Shrimanthraya S/o Mallanna Shrigani had been murdered and both deceased Annaraya and PW.7 Ninganna were implicated as accused in the said murder and this was the cause for accused No.1 to 3 who were the brothers of accused No.8 to join hands with accused Nos.4 and 8 to commit murder of Annaraya.
14. Insofar as medical evidence in concerned, the trial Court has held that post-mortem examination report was very clear and the evidence of PW.9 Dr. Shrinivas who conducted post-mortem disclosed that cause of death was due to asphyxia as a result of strangulation: that the prosecution had elicited from PW-9 doctor in the chief examination that ligature mark was seen on the neck and death could occur if a rope encircling the neck was pulled on both sides. It has been further found that evidence of eyewitnesses PWs.7 and 10 disclosed that accused No.3 Yeshwanth throttled the deceased. In the opinion of the trial Court, minor discrepancies in the medical evidence would not make any difference when eyewitnesses were clear in their evidence.
15. The trial Court has further found that the defence, which had set up the theory of suicide, failed to establish the same, whereas, the prosecution succeeded in establishing the offences alleged resulting in commission of murder of deceased Annaraya. Thus, it has proceeded to convict all the eight accused and has sentenced them to undergo imprisonment for life.
16. We have seen taken through the entire evidence on record. We have heard at length the learned counsel Sri Sanjay Kulkarni appearing for the appellants-accused and the Additional State Public Prosecutor, Sri Prakash Yeli.
17. The main contentions urged by the counsel for the appellants are that, entire story of the prosecution is false, baseless and fabricated. He has urged that the alleged motive for the offence is imaginary inasmuch as, admittedly partition in the family had taken place twenty years ago. If that was so, there was no scope for any dispute with regard to a vacant land situated infront of the property of the deceased: at any rate, the dispute had allegedly arisen seven years prior to the incident, therefore, the said dispute or difference could not become a motive for murdering Annaraya by his own brother and his children and other close relatives after lapse of seven years.
18. Insofar as, the dispute and difference alleged to have cropped up on account of implication of deceased Annaraya and PW.7 in the murder of Shrimanthraya Shrigani, it is urged that there was nothing to show that it was the accused who had implicated him. In addition, it is urged that it was not only the deceased who was implicated in the offence, but PW.7 was also arrayed as co-accused; hence if the accused were entertaining any belief that Shrimanthraya was killed by the deceased and his brother PW.7 Ninganna then there was no explanation why the accused did not harm PW.7 against whom also the motive as alleged was available.
19. Another incident that is relied on by the prosecution to establish motive and attribute involvement of all the accused is that, about eight days prior to the incident, when deceased was proceeding towards his land, accused No.4 and his sons chased the deceased with daggers in their hands shouting that they would eliminate him because he had killed Shrimanthraya. Counsel for the appellants submits that if at all any such serious incident as alleged had happened which was an attempt to eliminate the deceased there would have been complaint filed before the Police or at least any independent witness who had seen the incident could have been examined. In the absence of the same, the said story is created and concocted only to implicate these accused.
20. It is next contended by the appellants that medical evidence in the form of evidence of PW.9 Dr. Srinivas and PW.3 Dr. Umesh who have given expert opinion and the opinion of PW.9 marked as Ex.P.8 disclosed that there were material contradictions in the medical evidence. In this connection leaned counsel for the appellants has urged that in case of throttling, there was bound to be finger marks on the neck region; in the instant case, medical evidence did not disclose anything regarding finger marks.
21. Counsel for the appellant has further contended that the delay of eight hours in filing the complaint was fatal to the case of the prosecution. He points out that even the delay of eight hours in transmitting the F.I.R. to the Court had remained unexplained and the explanation given by the investigating Officer PW-17 was not acceptable. He has also pointed out the contradictions regarding time of dispatch of F.I.R. as noted in column No.15 of the F.I.R. and as per the evidence of PW-17. He has also pointed out that omission to seize the lantern and its non-production before the Court was fatal. In this regard, he invited the attention of the Court to the evidence of PW-10 to urge the lantern though handed over to the police was not marked or produced before the Court. He also points out that admittedly the lantern was hung to the front side of the hut but the incident had taken place behind the hut. He also urges that the lantern could not be expected to be burning till morning.
22. Learned counsel for the appellants submits that no reasons are forthcoming regarding the judgment of conviction of accused No.8 under Section 114 of IPC. It is also pointed out by him that accused No.4 husband of accused No.8 has died in custody on 10.12.2012. He has placed reliance on the judgment in the case of Mohindar Singh and others vs. State of Punjab reported in (2004) 12 SCC 311 to urge that delay in filing the complaint, coupled with weak motive pleaded that the version of the interested witnesses, if cumulatively taken into consideration, the judgment of conviction cannot be contained in the facts of the case. Reliance is also placed on the judgment in the case Chikkarangaiah and others vs. State of Karnataka reported in (2009) 17 SCC 497. Inviting attention of the Court to the observations made in para-34 of the said judgment, he urges that when there is a doubt regarding genesis of the crime, delay in lodging the F.I.R. deserves to be taken into consideration. He has also pointed out by referring to the observations made in para-37 of the judgment, that when two views were possible, the one that benefits the accused has to be preferred, keeping in mind the totality of the evidence and the yardstick of probability. Judgment rendered in Criminal Appeal No.168/2006 by Division Bench of this Court disposed of on 13.04.2009 in the case of Mahatab Singh and another vs. State of U.P. is relied upon to contend that when an offence is said to have taken place in darkness and lantern was the source of light, as pleaded by the prosecution, failure to seize the lantern would be fatal to the prosecution case.
23. Learned Additional State Public Prosecutor strongly urges that the entire case rests upon the evidence of eye-witnesses apart from the evidence of doctor and the circumstantial evidence. Though some of the witnesses have turned hostile, keeping in mind the eye-witnesses account of PWs-7 and 10 and the doctor s evidence, prosecution has proved the case beyond reasonable doubt. He has refuted all the other contentions urged by the appellants by contending that minor contradictions and inconsistencies in the version of the witnesses would not take away the entire prosecution case so as to disbelieve the same. He has urged that as the accused and the eye-witnesses knew each other, it was not difficult for the witnesses to identify the accused in the light of the lantern.
24. He has placed reliance on the judgment in the case of Bhagwan Dass vs. State reported in (2011) 6 SCC 396, Shivappa and others vs State of Karnataka reported in (2008) 11 SCC 337. Leela Ram (D) through Duli Chand vs. State of Haryana and another reported in AIR 1999 SC 3717 to support his contention that prosecution has indeed proved its case.
25. In the light of the evidence on record and after hearing the learned counsel for both sides, the following points fall for our consideration.
(i) Whether the prosecution has proved beyond reasonable doubt the case set up by it stating that accused formed an unlawful assembly, trespassed into the land of deceased Annaraya on 22.07.2008 at 4.00 a.m. and with a common object to commit murder of Annaraya, intimidated and threatened PWs.1 and 7 and thereafter accused No.5 throttled the neck of deceased while accused Nos.1 to 4 held other parts of the body and accused No.8 abetted the killing and thus killed him; and further in order to make it appear that deceased had hung himself, accused tied a rope around the neck of the deceased and hanged his dead body to a neem tree situated near the thatched hut located in the land and thereby committed offences punishable under Sections 147, 447, 504, 114, 302 and 201 R?W Section 149 of the IPC?
(Ii) Whether the findings recorded and the judgment of conviction for the offences alleged are illegal, perverse and unsustainable?
(iii) What order?
26. It is relevant to notice at this stage that the version of the eyewitnesses is that, it was a case of throttling. In this regard, Ex.P.8 communication dated 15.11.2008 was issued by PW.9 to the CPI, Aland (CW.9) wherein it has been stated that death was due to strangulation and throttling. However, in the post-mortem report in the column regarding opinion as to cause of death he has stated that the same was withheld for want of chemical analysis of viscera preserved. In the cross-examination this witness has stated that by oversight he had stated in Ex.P.8 communication addressed to the CPI, Aland on 15.11.2008 that death was due to throttling. In this regard, learned counsel for the accused-appellants with the help of the commentary on Medical Jurisprudence and Toxicology written by Dr. K.S. Narayan Reddy has pointed out that there are settled and significant differences between hanging and strangulation. He urges that in case of hanging, ligature mark would be oblique, does not completely encircle the neck and would be usually seen high up in the neck between the chin and larynx. The base would be pale, hard and parchment-like. Whereas, in the case of strangulation the ligature mark would be transverse, completely encircling the neck below the thyroid cartilage and the base would be soft and reddish. He further points out from the said book that, in case of hanging hyoid bone fracture may occur. Whereas, in case of strangulation, fracture of hyoid bone would be uncommon. Again, in case of hanging, fracture of thyroid cartilage would be less common, whereas, in the case of strangulation, thyroid cartilage fracture is more common. Similarly, in the case of hanging, involuntary discharge of faeces and urine is less common. But, in the case of strangulation, involuntary discharge of faeces and urine would be more common. In the evidence of PW.3 it has been elicited that if it was a case of strangulation, there would have been fractured thyroid gland and thyroid cartilage. This is also seen from the commentary on this subject.
27. Evidence of PW.9 and P.M.E. Report disclose fracture of hyoid bone, which happens in the case of hanging. But PW.3 states that sample sent to him did not contain hyoid bone. PW.3 also states that there was no fracture of thyroid gland and cartilage. In the cross-examination, he states that if there was strangulation, there would have been fracture of thyroid gland and thyroid cartilage.
28. In light of the oral evidence of two eyewitnesses and the medical evidence placed before the Court, if a careful analysis is made, it emerges that while the eyewitnesses clearly and categorically state that Annaraya was killed by throttling and that it was accused No.3 who was pressing the neck with his hands and others were holding different parts of the body and accused No.8 was abetting the other accused to kill the deceased, the medical evidence of the two doctors does not support the case of the prosecution, nor the version of eyewitnesses that deceased was killed by throttling and was later handed. There is no evidence to suggest any finger marks found around the neck of the deceased. It is not the case of the eyewitnesses PWs.7 and 10 that Annaraya was strangulated using a rope or any other substance and after he was killed, his body was hung to the neem tree. Therefore, the most important version of the eyewitnesses does not get probablized by the medical evidence. 29. In Ex.P.8 which is a communication dated 15.11.2008 addressed by PW.9 Dr. Shrinivas to the CPI, Aland-PW.17 it has been stated that death was due to strangulation and throttling. But in his cross-examination, PW.9 has stated that by oversight he had stated in Ex.P.8 that death was due to throttling. Therefore, on the one hand, eyewitnesses account shows that deceased was killed by throttling. On the other medical evidence of the doctors discloses that it was not a case of throttling, but was a case of strangulation. Hyoid bone, which gets fractured in the case of hanging, had not been sent for examination of the specialist PW.3. In this report, PW-3 mentions about absence of hyoid bone and he reiterates the same in his evidence as well. PW.3 expert states that there was no fracture of thyroid gland and cartilage, which normally occurs in the case of strangulation. Thus, mystery as to whether death was caused by throttling or it is was a case of strangulation remains shrouded.
30. As stated in Medical Jurisprudence and Toxicology, 3rd edition by Dr.K.S.Narayana Reddy, in case of hanging, fracture of hyoid bone may occur. Whereas, in case of strangulation, such fracture of hyoid bone was uncommon. Similarly, in case of hanging, fracture of thyroid cartilage is less common. If it is a case of strangulation, fracture of thyroid cartilage would be more common. In case of strangulation, ligature mark would be seen around the neck including back portion of the neck. Whereas, in the case of hanging, ligature mark is prominently seen at the front and to the sides. As already stated above, in the instant case, there is no fracture of hyoid bone, no fracture of thyroid cartilage, no injury all around the neck. No prominent injury at the back of the neck. More important fact being that none of the two eyewitnesses deposed regarding strangulation, but emphatically state that deceased was throttled till he died. Thus the cause of death of Annaraya has remained unearthed.
31. As regards evidence of two eyewitnesses, their conduct is highly unnatural. They claim to have spent the night sleeping in the same shed along with the deceased; at 4.00 a.m. deceased woke up to feed the cattle they heard deceased crying as a result they woke up and PW.7 Ninganna tried to intervene and convince the accused that it was not the deceased who had killed Shrimanthraye; however, accused threatened him and his son, therefore, they went away and hid behind a thorny bush and witnessed the incident; the incident took half an hour; thereafter, accused went away. Even after the accused disappeared, PWs.7 and 10 claim that they did nothing except sitting under the tree in shock. First of all, admittedly, there was no light at the time when the incident occurred. It was darkness. Eyewitnesses assert that they saw all the accused and could recognize them as there was a lantern kept burning on the front side of the hut. The evidence suggests that neem tree was situated on the backside of the hut, this is elicited in the cross-examination of PW-6.
32. The lantern has not been recovered in the course of investigation. Whether the lantern which was put on at around 7.00 p.m. would continue to burn and burn brightly till 4.00 a.m. is neither explained nor spoken to. How the lantern which was hung infront of the hut could throw light with regard to the incident that took place at the back of the thatched hut is highly doubtful.
33. Admittedly, after the incident was over, till about 6.00 to 7.00 a.m. in the morning PWs.7 and 10 did not do anything. They did not rush to the village to inform about the incident to the son of the deceased and to his family members or to any other villagers. In addition, another very important aspect is that, admittedly two other sons of Ninganna PW-7, were also staying in the land of Ninganna which was situated just two lands away from the land where the incident took place. They were also staying in the thatched hut in their garden land. What prevented PWs.7 and 10 to inform even those two persons who were none other than family members of PW.7 and were staying very close to the land where the incident had taken place has not been explained.
34. Though such a gruesome act had taken place, PWs.7 and 10 claim that they just sat back in the land near the neem tree where the dead body was hung and did not think it reasonable or necessary to inform anybody. Thus, the version of the eyewitnesses becomes highly suspicious and their conduct becomes highly unnatural. In addition looked in the background of medical evidence, which belies the cause of death by throttling, it is clear that prosecution has not established its case and the involvement of the accused in the incident. The presence of PWs.7 and 10 at the spot, therefore, appears to be highly doubtful and hence it is not at all safe to accept the evidence of those two persons.
35. It cannot be also forgotten that, even according to PW.7 Ninganna, he had been implicated in the offence of murder of Shrimanthraya and that was how there was enmity between himself and deceased. Annaraya on the one hand and the accused on the other. In his evidence PW.10 states that when some of the accused chased deceased Annaraya with dagger, PW.7 Ninganna was also chased. PW.10 admits that against PW.7 also there was motive. Therefore, because of the strained relationship between Ninganna PW.7 and the accused, an attempt to implicate all the accused including the lady wife of accused No.4 could not be ruled out.
36. It is very important to notice that inquest panchanama-Ex.P.11 discloses that there was no external injury on the body of the deceased. If eight persons had joined together to kill Annaraya and 6 of them had tightly held different parts of his body, while one of them throttled his neck, then there would have been some external injury due to resistance offered by the deceased. Therefore, absence of any other external injury on the body except the ligature mark creates serious doubt with regard to the theory of the prosecution.
37. Another important aspect that requires to be noticed in this case is that, after the son of the deceased, Sri Ravindra-PW.6 arrived at the scene of offence from the village at 6.00 a.m., though his senior uncle had witnessed the incident and must have told him how deceased Annaraya was murdered, they did not think of informing the Police immediately about the incident. Although, it is stated in the evidence of PW.6 that he went back to the village and came back to the land with the village Dalapathi, even thereafter they did not lodge a Police complaint. PW.6 rests content with informing his elder brother, the complainant/PW.2 Pandit. The said PW.2 who was at Gulbarga at that time does not also immediately lodge any complaint or inform by phone the jurisdictional Police although he claims to have rushed to the village by proceeding through the town where the Police station was located. He did not choose to inform the police. He first goes to the land meets his relatives and sees the body of his father and thereafter proceeds to Police Station and lodges complaint at 12.00 noon. Thus, in the wake of other suspicious circumstances adverted to above, delay in lodging the complaint also assumes significance in the present case.
38. Though the Dalapathi of the village had come to the scene of offence in the morning along with PW.6 and although it is stated in the evidence of PW.6 that said Dalapathi had telephonically informed the Police regarding the incident, the PSI PW.18 Sudheerkumar, the person who registered the FIR states in his evidence that he did not receive any telephone call from the Dalapathi regarding the incident. Village Dalapathi has not been examined. He could have recounted the earliest version of PWs.7 and 10 as a disinterested person. Thus, totality of the facts and circumstances would make it clear that there are serious lacunae in the case of the prosecution. Commission of the offence by the accused, their involvement and the role attributed to them and the death of the deceased on account of throttling are all highly suspicious. Hence, it is not at all safe to base conviction of these accused who have been implicated en-masse on such evidence.
39. The Court below has committed serious error in not properly analyzing the evidence on record. It has generalized the versions of eyewitnesses and the medical evidence to take an inference without subjecting the evidence to strict scrutiny and without undertaking exercise of addressing the suspicious circumstances involved in the case and making an effort to find answers for the same in the evidence of the prosecution.
40. We have carefully considered the judgments cited and relied upon by both sides. While there cannot be any dispute with regard to the proposition of law laid down in the said decisions, facts and circumstances involved in each case are required to be examined to find out whether the prosecution has succeeded in proving the guilt of the accused beyond any reasonable doubt. In the instant case, as already held above, the prosecution has failed to prove homicidal death of deceased Annaraya and commission of the offence by the accused/appellant herein as alleged against them.