(Prayer: This Crl.A. is filed under Section 374(2) Cr.P.C praying to set aside the conviction and sentence Dated 06.03.2012 Passed by the I Addl. Dist. & S.J., Mysore in S.C.No. 255/2011 – Convicting the Appellant/Accused for the Offence P/U/S 302 of IPC. The Appellant/Accused is sentenced to undergo life imprisonment and pay fine of Rs. 10,000/-, in default to pay fine, he shall undergo R.I. for 2 Years for the Offence P/U/S 302 of IPC.)


K. Somashekar, J.

1. Heard the learned counsel Shri Mohan Kumara D., Advocate appointed as amicus curiae for the appellant. So also heard the arguments of the learned HCGP for the State.

2. This appeal is directed against the judgment of the I Additional District and Sessions Judge, Mysore, in S.C.No.255/2011 dated 6.3.2012 convicting the appellant - accused for offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity) and thereby sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for two years. Aggrieved by the conviction, the impugned judgment has been challenged in this appeal urging various grounds.

3. Brief facts of the prosecution case are as under:

On 15.06.2011, when CW-9 - the police Inspector, Vijayanagar Police Station, Mysore was on patrolling duty, he received information at around 10.00 a.m. that in the house of PW-13 Anasuyamma in Hootagalli, a murder had taken place. Immediately, he had rushed to the spot along with his staff and found Mithun - PW1 present there. On enquiring with Mithun, the police Inspector came to know that the person who was murdered was one Manoj and Mithun was his friend. He had then recorded the statement of PW-1 and had sent it to the police station for registering a case. Accordingly, an F.I.R. came to be registered in Crime No.99/2011 under Section 302 of the IPC.

The gist of the complaint recorded by the police is that the complainant PW-1 was working as a security guard in one Nesher Security Groups and that the complainant, accused, deceased Manoj and PW-14 Mallesh were staying in the house of PW-13 Anasuyamma, which house was provided for their stay by the proprietors of Nesher Security Groups. It is further stated that PW-1 was the one who secured the deceased from his village and got him a job in the security group where he was working. Thereafter, the deceased started working in the said Nesher Security Groups. On 11.06.2011, the deceased had left Mysore saying that he was proceeding to his village. On 14.06.2011, the complainant had duty in Deepanjali Cables from 7.00 a.m. to 7.00 p.m. After finishing his duty while he was returning home, he received a phone call from PW-2 Balachandra who was the Field Officer of the said security groups saying that the deceased had not reported for duty and therefore, the complainant should attend to the duty in place of the deceased on that day. Hence, the complainant went to his house, locked it and as usual had proceeded to the hotel where he used to take food, for handing over the key of his premises. But however, on the way he saw the accused who asked him the key. Hence, he handed over the key to the accused and went to duty. Around 11.30 p.m. while on duty, the complainant had received a missed call from the deceased and hence the complainant had called up the deceased. The deceased had asked him whether the uniform dress supplied by the security groups to the accused was in the factory. The complainant told that it was in the factory only. At which the deceased told him that the accused was packing the uniform of the deceased and also other dresses of the complainant. The complainant had given statement that he heard the quarrel between them over phone and advising them not to quarrel, he had disconnected the phone. The next day morning at around 7.30 a.m. when the complainant returned home, he found the door bolted from outside. When he went inside, he found the deceased lying dead in a pool of blood. When inspected, he had found a size stone at a distance of 8 feet from the house. On seeing him dead, the complainant had at once informed PW-2 - Balachandra, PW-3 - Santhosh Henry and CW-9 - Anil Babu. The complainant had given his statement as per Exhibit P-1 before the police that the accused must have killed the deceased by assaulting him with a size stone by staying in the house on that day. It is on the basis of the said statement that Cr.No.99/2011 came to be registered for the offence under Section 302 IPC against the accused.

Subsequent to framing of charges against the accused on 5.12.2011, he pleaded not guilty and claimed to be tried. In order to substantiate the case against the accused, the prosecution in all examined witnesses PW-1 to PW-22 and got marked Exhibits P-1 to P-27(b) apart from getting marked material objects MO-1 to MO-12 in the presence of panch witnesses by drawing a seizure mahazar. On behalf of the accused, no witness was examined. However, portions of the statements of PW-8 Manjula which were contradictory in nature, were got marked as Exhibit D-1. The court below, after recording the statement of the accused under Section 313 Cr.P.C., framed the following points for its consideration:

"1. Whether the prosecution has established beyond all reasonable doubts that on the night of 14.06.2011 after 10 p.m. in the house of CW-14 Anasuyamma in Hootagalli, the accused with an intention to kill deceased Manoj, killed him by dropping a size stone on his head and thereby has committed an offence punishable under Section 302 IPC

2. What order"

The court below answered point no.1 in the affirmative and convicted the accused for an offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for two years. It is this order which is under challenge in the present appeal urging various grounds.

4. The learned counsel Shri Mohan Kumara D., appointed as amicus curiae for the appellant contended that the court below in order to prove the guilt of the accused, has relied upon circumstantial evidence which has been listed in paragraph 11 of the impugned order. It is his contention that it is only on the basis of circumstantial evidence that the court below has convicted the accused for the alleged offences and there are no direct eye-witnesses who had seen the accused quarrelling with the deceased or dropping on him a size stone. There is no dispute about the fact that the deceased and the accused were working as security guards in Nesher Security Groups and were staying along with complainant and PW-15 Mallesh in the house of one Anasuyamma. On 14.06.2011, there was said to be a quarrel between the deceased and the accused, which is projected as the motive. The accused was said to have carried a size stone that night. The deceased having found dead on the next day in the house of Anasuyamma is not in dispute. The size stone was lying at a distance of 8 feet from the house is also not in dispute. Medical evidence, forensic evidence, abscondance of the accused and other evidence were said to be circumstantial evidence to support the case of the prosecution which led to the conviction of the accused.

Exhibit P-18 is the Post-mortem report of the deceased, issued by the Doctor PW-12 wherein the Doctor had opined that the death was due to head injuries consequent upon blunt force impact sustained.

PW-1 who is the author of the complaint is the material witness for the prosecution who has given his evidence as per Exhibit P-1. PW-1 was the one who had brought the deceased from the village and got him a job at Nesher Security Groups. On 14.06.2011, the said PW-1 had volunteered to work in place of the deceased since he did not return from his village. At the time the complainant PW-1 left the house at about 7.30 p.m., nobody else was there and he had locked the house. Since he met the accused on the way to hotel, PW-1 had handed over the house key to him. The deceased also had in fact returned home on 14.06.2011 late in the evening since he had called up PW-1 at 11.30 p.m. and had told about the quarrel which was going on with the accused. The complainant also had heard their quarrel over phone. On the said basis, the complainant PW-1 had given his statement to the police the next day that the accused must have killed the deceased using the size stone which was lying 8 feet away from the house. In fact, he did not witness the incident. Since he was aware of the fact that deceased and the accused had quarreled last night and moreover the accused was absconding, on seeing the deceased in a pool of blood, he came to the conclusion that the accused must have killed the deceased.

PW-2 is the Field Officer of Nesher Security Groups who has deposed to the effect that the house where PW-1, PW-14, deceased and the accused were staying had been taken on lease by their company from PW-13 Anasuyamma. The accused joined their group in May 2011 representing that he was a poor man but had not provided any identity proof. When insisted, he had told that he would go to his village and bring the same. But however, since he did not produce the identity proof even till 14.06.2011 as well as the proof that he is a literate, they had terminated the services of the accused. However, the deceased had produced his Election Identity Card at the time of joining. The deceased on 11.06.2011 saying that he would apply leave for two days, had left for his village. Since he did not turn up even on 14.06.2011, PW-2 had called him over phone and since he did not respond, PW-2 had told PW-1 to work another shift in place of the deceased. On the morning of 15.06.2011 when PW-1 called him over mobile phone and informed him the deceased had been killed, he had immediately rushed to the house of PW- 13 and had found the deceased lying dead in the kitchen. He also saw that blood was spread from the kitchen till the entrance door. Outside the house, he had seen a size stone. Thus, it had occurred to him that the deceased must have been killed by someone.

PW-3 who was a partner of Nesher Security Groups has also deposed to the effect that the deceased Manoj was working as a security guard with them and that he knew PW-1 and PW-14. Further, he had stated that they had taken the house belonging to PW-13 on lease for occupation of their security guards. PW-3 was also informed about the death who had also rushed to the spot and had seen the deceased lying in a pool of blood.

PW-4 said to be the father of the deceased had deposed to the effect that his son was aged 23 years at the time of his death he did not know the name of the organization where his son was working. That on 15.06.2011, his younger brother by name Ningaraju had contacted him over phone and informed him that Manoj had been murdered but he did not tell the name of the person who had murdered him. He had also informed PW-4 that the dead body was in a rented house in Coorgalli. He had at once rushed to the spot and had seen that blood was spread in the house. But he has stated that he did not see any wound on his body. He has stated that when he reached there, public and police were present and the police had informed him that his son had been killed by someone by using a size stone. He had deposed to the effect that he saw the size stone at a distance of 8 feet from the house where the dead body was found. After a period of 15 days, he had come to know that one Mahadevappa working with the deceased had killed his son. The said fact was informed by PW-1 over phone.

PW-5, a cousin of deceased Manoj who was a resident of Mamballi has deposed to the effect that a day prior to his death, the deceased had visited their house in Mamballi and on the very next day, his uncle Ningaraju had informed him that Manoj was killed by someone. Immediately he had gone to Coorgalli to find the dead body of the deceased. He has deposed that the head of the deceased was crushed and he found a size stone outside the house and blood was spread in the house. PW-1 was in the house and had told PW-5 that there was a quarrel between deceased and the accused the previous night and he did not know as to what happened thereafter.

PW-6 who was also working as a security guard in Nesher Security Groups had deposed that he was also the tenant in one portion of Anasuyamma's house and was residing along with his family. He had deposed in his examination that the deceased, accused, PW-1 and PW-14 were tenants in another portion of Anasuyamma's house in which he was residing. He has given his statement that he did not hear any noise on the night of the incident and was not aware of any altercation which is alleged to have taken place and came to know about the death of the deceased only on the next day morning.

P.W-7 was also a security guard in Nesher Security Groups who had deposed that he knew PW-1, accused and the deceased and that PW-1 had worked in place of the deceased on 14.06.2011 and PW-1 was with him in the workplace till 6.00 a.m. the next day and he came to know about the death of the deceased only later.

P.W-8 one Manjula who was said to be an Assistant in Anganavadi has deposed to the effect that she resided opposite to the house of PW-13. PW-6 was a tenant in one of the portions and in another portion, 4 security guards namely, PW-1, PW-14, deceased and accused were staying. She had stated that on 14.06.2011 at about 9.30 or 10.00 p.m., there was a quarrel among the accused, deceased, PW-1 and PW-14. She saw the quarrel standing in front of her house and PW-6 had also seen it. In the midnight, she had heard some sound and hence peeped through the window to see someone passing but did not see his face. The next day morning, she found the deceased dead and a stone was lying at a distance of about 8 feet from his house. She has further deposed that she did not see any wound on the deceased.

All the above stated witnesses had been cross- examined by the defence counsel. In particular, PW-8 had been incisively cross-examined by the defence counsel, since she had stated that she heard the quarrel on the night of the incident and during midnight that she heard some sound and when she peeped through the window she found someone passing by but could not see his face. There being no eye-witnesses who had witnessed the incident, she was the one who has to some extent supported the case of the prosecution.

PW-12 is the Doctor who is said to have conducted autopsy over the dead body of the deceased. In his opinion, he has specifically stated that there was a possibility that the deceased died as a result of hemorrhage due to several injuries caused on account of hitting by a boulder. When he was then shown the MO-1 size stone, he had given his statement that a stone like MO-1 can cause fatal injuries like the one mentioned in Exhibit P-18. The learned counsel contends that it is not clear as to whether the injuries had been caused by a boulder or by the MO-1 size stone said to be seized by PW-22.

PW-22 has not made any effort to show that MO-1 size stone was said to have been used by accused at the time of committing the murder of the deceased by dropping the same on the vital part of his head and having caused injuries as reflected in P-18 of the post- mortem report.

PW-21 being the Investigating Officer has specifically stated in his evidence that the deceased had kicked the accused with shoes and therefore the accused had developed a grudge against the deceased and therefore, he caused the death of the deceased by a size stone.

Further, the other witnesses P.W. 9 to 21 had also been examined and cross-examined but nothing material could be elicited from their examination and cross-examination. Even from the examination of the owner of the house Anasuyamma who was examined as PW-13, there was no useful information elicited except stating that she owned the house in Coorgalli which she had let out and she came to know about the murder through a phone call and even she did not know who had been killed by whom.

Hence, the learned counsel submitted that the material on record reveals that PW-8 was the material witness for the prosecution to establish the guilt of the accused and the entire case of the prosecution rests upon this witness to prove the guilt of the accused.

The evidence of PW-1 to 7 including the evidence of PW-14 and so also the documents at Exhibit P-3 to P- 9 which are said to have been got marked for the prosecution in our opinion are found to be contradictory to their evidence and there are several inconsistencies which can be seen from their evidence itself. It is relevant to take into consideration the other circumstantial evidence keeping in view the evidence of PW-1, 2, 6, 8, 13. The evidence of PW-8 reveals that she is an important witness for the prosecution to establish the guilt against the accused, as this witness being an eye-witness account and the prosecution rests upon the evidence of this witness to prove the guilt against the accused.

However, all these aspects require to be established by the prosecution by placing cogent, corroborative and acceptable evidence, without giving rise to any clouds of doubt. The learned counsel for the appellant has vehemently argued that the case of the prosecution rests upon circumstantial evidence and the chain of circumstances has not been proved by the prosecution without giving rise to any clouds of doubt. PW-8 being the eye-witness account for the prosecution, that witness has not been able to withstand her statements which she had made before the Investigating Officer, in the cross-examination. Though she had earlier been treated as hostile, she was subjected to cross-examination and on the said basis the accused had been convicted. Hence, for the aforesaid reasons, the learned counsel submits that the impugned order be set aside and the appellant be acquitted of the offences.

5. Whereas the learned HCGP for the State seeks to justify the judgment of the court below and submits that the court below has rightly convicted the accused for the offence under Section 302 of the IPC, which does not call for any interference.

6. On a consideration of the rival contentions and a close perusal of the record, we find that there are several discrepancies in the statements given by the witnesses in their examination-in-chief and their cross- examination, particularly that of PW-8, which has been lost sight of by the court below while passing an order convicting the accused.

PW-8 had deposed to the effect that she had heard the quarrel sound which took place among the accused, deceased, PW-14 and PW-1. But PW-1 has deposed to the effect that there was nobody in the house on 14.6.2011 at around 7.30 p.m. and hence he had locked the house and went for duty. If there was nobody present in the house, then the statement of PW- 8 that she had witnessed the quarrel among all the four persons at about 9.30 or 10.00 p.m. on 14.06.2011 cannot at all be believed. It is clear that the accused must have returned after 7.30 p.m. and the deceased had returned late in the night and PW-14 was not at all present in station on that particular day, since he had gone to his village and PW-1 had gone for his night shift duty. Hence, the statement given by her that all four of them had been quarrelling at around 10.00 p.m., has no legs to stand.

Further, PW-1 assuming that the accused must have been the one who had committed the murder of the deceased, has also deposed to the said effect and had further told the same to everybody. There is no evidence given by any of the witnesses in their examination or cross-examination to the effect that the accused must have committed the murder of the deceased. It is only on the basis of the statement of PW- 1 that the other witnesses had stated that the accused must have committed the murder of the deceased. The court below should not have believed the say of PW-1 as gospel truth without he having seen the same.

Further, the statement of PW-6 another tenant of Anasuyamma is to the effect that he did not see anyone or hear any quarrel. However, PW-8 had stated that PW-6 had witnessed their quarrel along with her and he had advised them not to quarrel. She has given contradicting statements in her examination and cross- examination, which could not have been the basis for the Trial Court to convict the accused.

There being no ample evidence and proof in support of the fact that the deceased had committed the murder, the court below had come to the conclusion on circumstantial evidence that the accused must be the one who had committed the murder. When PW-8 could not withstand her own statements in the cross- examination, the court below ought to have taken the said aspect into consideration and acquitted the accused. On the contrary, it has convicted the accused despite contradicting statements of the witnesses. The statement of PW-8 reveals that the accused had lifted one of the size stones which she had stocked in front of her house. But she did not spell in her evidence that she had seen the accused carrying the size stone.

The prosecution has not placed cogent, consistent and positive evidence to probabilise that the accused had committed the murder of the deceased Manoj by means of MO-1 size stone by dropping it on the vital part of the head of the deceased. There is no doubt about the deceased having died a homicidal death. However, the same having been caused by the accused, has not been proved beyond all reasonable doubt.

7. On going through the material placed on record, we find that there are some clouds of doubt regarding the theory put forth by the prosecution to prove the guilt of the accused. The said doubt is extended to the accused. Accordingly, we are of the opinion that the impugned order requires to be set aside and the accused deserves to be acquitted for the aforesaid reasons and findings in this appeal.

While concluding, we also appreciate the effort put by the amicus curiae who assisted the court in this case at a very shortest notice given to him. While acknowledging the assistance rendered by the amicus curiae in this matter, we fix his fee at Rs.15,000/-.

8. For the foregoing reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 06.03.2012 passed by the I Additional District & Sessions Judge, Mysore, in S.C.No.255/2011 convicting the accused-appellant herein for the offence punishable under Section 302 IPC is hereby set aside. The accused-appellant is acquitted of the charges levelled against him. The accused shall be set at liberty forthwith, if he is not required to be detained in any other cases. Accordingly, Registry is directed to communicate this order to the concerned jail authorities, for compliance.

Per Dr. Justice H.B. Prabhakara Sastry:

While concurring with the reasoning as well as the finding given by my learned brother, I would like to place a couple of observations in this case. The date, time and place of the alleged incident as has been established by the prosecution by its evidence, is not specifically denied or disputed by the accused. The nature of the death of deceased Manoj as homicidal, is also not in dispute. The evidence of PW-1 to PW-6, PW- 8 and more particularly of the Doctor that is PW-12 who conducted autopsy on the body of deceased Manoj clearly proves the said fact. However, the main burden on the shoulder of the prosecution was of proving that the said murder of Manoj was committed by none else than the present accused / appellant in this case.

In proving that it is the present accused / appellant alone and none else has committed the said homicidal death of the accused, the prosecution has mainly relied upon the evidence of PW-1, PW-2, PW-6 and PW-8. Admittedly, it is a case based upon circumstantial evidence. PW-1 who is stated to be a co- worker along with the deceased is the person who had put the lock to the house where the incident has taken place on the evening of the date 14.06.2011 and he is the first person to see the dead body in the said house in the morning at about 7.30 a.m. on 15.06.2011. As such, the primary suspect in this case would be PW-1. It is for the said reason even in the cross-examination of PW-1 the accused has taken a defence that it is PW-1 who is answerable for the murder of the deceased but not the accused. However, the Investigating Officer during the course of his investigation by relying upon the alleged statement of PW-6, PW-8 and alleged recovery of the cellphone, has come to the conclusion that it is the accused and accused alone who has committed the murder.

The summary of the evidence of PW-1 after its analysis, boils down to the point that though he was the person who locked the house where himsel along with the accused, deceased and CW-15 were residing, but he had handed over the key of the house on the evening of 14.06.2011 to the accused and proceeded to his work. It is also his further evidence that while he (PW-1) was on duty, he came to know that even the deceased also had returned to their room which was under the tenancy of one Smt. Anasuya, and accused and deceased had some quarrel in the said house. Thus according to the prosecution and the evidence led before it, it was the accused and the deceased who were said to be occupants of the said house where the incident took place immediately prior to the incident. It is in this regard the prosecution has forwarded the evidence of PW-6 and PW-8. However, the evidence of PW-1 that he heard the quarrel during the phone call, the noise between the accused and the deceased would not lead the case of the prosecution to bank upon his evidence to arrive at a conclusion that it was the accused and accused alone who had committed the murder. However, the prosecution has relied upon the evidence of PW-8 to establish that she has seen the quarrel between the accused and the deceased in the said house where the incident had taken place just prior to the late night of the date 14.06.2011. Thus, the entire case of the prosecution which has begun with PW-1, shifts upon PW-8 to project and hold that it was the accused who has committed the offence. As such, the evidence of PW-8 along with PW-6 were shown to be important in this regard.

PW-6 and PW-8 are stated to be the neighbours in front of whose house, in a house, accused, deceased, PW-1 and CW-15 were said to be residing. Even though it is the case of the prosecution that PW-6 has also heard and seen the quarrel said to have taken place between the accused and the deceased, but the said witness has not supported the case of the prosecution when put in the witness box. He has categorically stated that on the previous day to the day of the incident, he had gone to his village. Though he returned in the late evening, but did not hear anything from the said house. He came to know about the incident only on the next day. After treating him hostile and prosecution thoroughly cross-examining him, still it could not able to get any support from him. As such, it is only PW-8 whose evidence played a vital role in the case of the prosecution.

PW-8 who claims to be residing in the opposite house where the deceased was said to be residing, no doubt has stated that she knows PW-1, accused, deceased and CW-15. She has also stated in her examination-in-chief that in the midnight, she heard some sound. She peeped through the window and saw someone passing and did not see his face. Next day morning, deceased was found dead and lying at a distance of 8 feet from her house. She did not see any wound on the deceased. Barring this, in examination- in-chief, she has not supported the case of the prosecution any further. At the request of the prosecution, she too was permitted to be treated as hostile and the prosecution was permitted to cross- examine her. It is only in her cross-examination she has supported the case of the prosecution, that too, only in the form of admitting as true the suggestions put to her by prosecution. In her cross-examination, the prosecution, it appears, has read out her alleged statement under Section 161 Cr.P.C. and obtained an affirmative admission from her side. It is in that fashion and manner her support to prosecution has come out in this case, which cannot be lost sight of.

In her cross-examination by the prosecution, no doubt, she has admitted several suggestions as true including that there had been a stock of size stones to construct house in front of her house and MO-1 which is said to be the stone used in the commission of the crime is one such stone. She has also admitted the suggestion as true that she had seen the accused taking the said size stone and thereafter she heard a sound indicating that the stone has been dropped. It is mainly on this evidence the court below has arrived at a conclusion that the MO-1 was lifted by the accused and PW-8 has seen it and she has also heard the sound of dropping the said stone. As such it is the accused who must have committed the alleged offence. It is on this crux of the point some more analysis is required to be done.

When the evidence of PW-8 is read and analised in its entirety, several discrepancies can be found. To summarise and quote some of them, they are as follows:

(i) In her examination-in-chief, she has stated that on 14.06.2011, there was a quarrel between the accused, deceased, PW-1 and CW-15. If it is accepted, in the alleged quarrel on the day which led to the alleged incident, even PW-1 and CW-15 were also participants. However, in her cross-examination from the prosecution side, she admitted a suggestion as true that the quarrel was between accused and the deceased only.

(ii) In her examination-in-chief, she has stated that on the next day morning when she found the deceased dead and a stone lying at a distance of about 8 feet from her house, she did not see any wound on the deceased. It is nobody's case that the deceased did not suffer any injury. The very basis of the case of the prosecution is that the deceased died due to injuries sustained by him by the alleged dropping of stone at MO-1 upon him by the culprit. The medical opinion of the Doctor PW-12 is also to the effect that the death has been caused due to the injuries caused upon him. As such, the evidence of PW-8, incidentally which has not been set right by the prosecution in her cross- examination also shows that the deceased had sustained no injuries.

(iii) With respect to the very important aspect of the stone at MO-1 which according to the prosecution was carried by the accused from the heap in front of the house of PW-8 was seen by PW-8. However, the said PW-8 in her cross-examination by the prosecution has given different versions about it. In one breath, she has admitted the suggestion as true that in the alleged midnight she heard the sound indicating stone being lifted. It cannot be forgotten that hearing of the said sound was in the midnight. But the case of the prosecution is that this witness was sleeping during midnight. Secondly, this witness has further admitted a suggestion as true that she saw the accused taking the size stone. However, in her cross-examination at paragraph 10, she has clearly stated that she could not see as it was dark as to who actually carried it. Thirdly, as observed above, she has stated that she has heard the sound of dropping of the said stone. According to her, by that she arrived at a conclusion that accused has committed the alleged crime. However, in her cross-examination, she has stated that she does not know the cause of the death of the deceased. Fourthly, in her cross-examination she admitted a suggestion as true that her daughter was staying in her husband's house which is Coorgalli itself. In the very same cross- examination, immediately thereafter she has stated that her daughter and son-in-law are staying with her in her house only.

(iv) Further in her cross-examination, she denied a suggestion that there is a jackfruit tree in front of her house. However, in the very same paragraph, she has also admitted a suggestion as true that the said jackfruit tree was a big tree.

The above aspects clearly goes to show that the evidence of this witness is not at all consistent and has not come in a uniformity. A reading of her evidence in its entirety clearly gives an impression that she admits every suggestion put to her as true. That is what she has done in her cross-examination made by the prosecution. A repetition of the same has also come in her cross-examination from the defence which is demonstrated above. When she has admitted a suggestion as true that her daughter lives in a separate house, but thereafter once again she says that her daughter and family resides with her. As such, this witness rather than understanding the questions put to her and giving a rational answer, appears to be admitting the suggestions put to her as true and thus making her statements not safe to be relied upon.

(v) Added to the above, from her evidence, certain other discrepancies found in her evidence cannot be lost sight of. This witness (PW-8) who earlier in her evidence has stated that the quarrel was not only between the accused and the deceased on the evening of 14.06.2011 but also included PW-1 and CW-15, has in her cross- examination stated that she did not see all the four of them later the same day, she saw only two of them who were the accused and the deceased. On that day, she saw them for the first time around 7.00 or 7.30 p.m. If her version is to be believed, on the date of the alleged incident, which is on 14.06.2011, she has seen in the house of CW-14 all the four persons, that is, PW-1, accused, deceased and CW-15. But, the case of the prosecution is that on that particular evening till PW-1 left his house, the remaining three were not in that house. As such, PW-1 locked the house and proceeded to his company and on the way he met the accused and handed over key of the house to him. It is also the further case of the prosecution that till the next day morning, even CW-15 also did not return to that home and it was only the accused and the deceased who were in the night when the incident had taken place. That being the case, the say of PW-8 in her cross- examination that on that day she saw all of the four inmates of that house for the first time around 7.00 or 7.30 p.m. in that house, becomes even unbelievable.

(vi) PW-8 has further stated in the very same cross-examination that when accused and deceased were quarrelling in their house, there were six persons. They are herself, PW-6, his wife, his daughter, accused and the deceased. However, PW-6 has not at all supported the case of prosecution. Further, the prosecution has not taken any effort in examining the wife of PW-6 and his daughter.

(vii) Another interesting aspect which makes the evidence of PW-8 not safe to rely upon is about her statement that how the quarrel went on and how long it was. It is because repeatedly at several places in her evidence she has stated that usually she goes to bed between 9.30 and 10.30 p.m. In the cross-examination at two places, she has specifically and clearly stated that on the date of incident, she went to bed by 10.30 p.m. If that were to be the case, she cannot be in a position to know as to how long the quarrel continued which is said to have started at 10.20 p.m. However, PW-8 has stated that the quarrel which began at 10.20 p.m. in the night continued for one hour. As she had gone to sleep by 10.30 p.m., at the maximum if at all she had heard the quarrel, it could be only for 10 minutes. If that is the case, how can she say that the quarrel continued for not less than an hour, is unanswered in her entire evidence.

Thus, all these aspects make it very clear that the evidence of PW-8 upon which the court below has mainly relied upon to arrive at a conclusion holding that the prosecution has proved its case beyond reasonable doubt is not acceptable and such a reliance of evidence of PW-8 on its face value without properly analyzing the said evidence has led the court below to pass an erroneous judgment. For this additional reason also, I concur with the finding given by my learned brother in his reasonings above.