- (1.) The present appeal is directed against the judgment of conviction and order of sentence recorded by the High Court of Karnataka at Bangalore dated 29 th November, 2006, setting aside the judgment of the trial court dated 9 th March, 2000 acquitting all the accused for an offence under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC'). In short the case of the prosecution is that on 7 th December, 1998, SubInspector of Police (Law & Order) Shri Veerabadhraiah of the Sriramapuram Police Station, PW1, was proceeding towards his house from duty on his motor cycle at about 10.45 p.m. When he reached the 6 th Cross Road, 7 th Main, he saw three persons chasing another person and when they reached near VNR Bar, the person who was being chased fell on the road. One of the three person who were chasing the victim, stabbed him on his chest thrice with knife. Thereafter, the other two persons also stabbed him on the chest. When the said PW1 was about to reach the spot, he saw the accused Govindaraju @ Govinda addressing one of the other two persons as Govardhan and telling them that the Police was coming and asked them to run away, whereafter they ran away from the spot. An attempt was made by PW-1 to follow them but the same proved to be in vain because they went into a Conservancy and disappeared into darkness. After this unsuccessful attempt, PW1 returned to the spot and saw the victim bleeding with injuries. With the help of a Constable, he shifted the victim to K.C.General Hospital, Malleswaram, where the victim was declared dead by the doctors. Upon search of the body of the deceased, his identity card was found on which his name and address had been given. The name of the deceased was found to be Santhanam. Thereafter, PW1 went back to the Police Station and lodged a complaint, Ex.P1, on the basis of which FIR Ex.P2 was recorded by PW11, another Police Officer, who then investigated the case. The Investigating Officer, during the course of investigation, examined a number of witnesses, collected blood soaked earth and got recovered the knives with which the deceased was assaulted. Having recovered the weapons of crime, the Investigating Officer had sent these weapons for examination to the Forensic Science Laboratory (FSL) at Bangalore. However, that Laboratory had, without giving any detailed report, vide its letter dated 28 th October, 1999, Ex.P15, informed the Commissioner of Police, Malleswaram, Bangalore, that the stains specimen cuttings/scraping was referred to Serologist at Calcutta for its origin and grouping results, which on receipt would be dispatched from that office. In all, eight articles were sent to the FSL including the blood clots, one pant, one kacha, one pair of socks and one chaku. No efforts were made to produce and prove the final report from the FSL, Calcutta and also no witness even examined from the FSL. It appears from the record that the weapons of offence were not sent to the FSL, Bangalore at all.
(2.) After completing the investigation, PW11 filed the chargesheet before the Court of competent jurisdiction. The matter was committed to the Court of Sessions. The two accused faced the trial as the third accused was absconding and was not traceable at the time of filing of the charge-sheet or even subsequent thereto. The learned Sessions Judge had framed the charge against the accused under Section 302 read with Section 34 IPC vide its order dated 20 th November, 1999. The learned trial Court, vide its judgment dated 9 th March, 2000, acquitted both the appellant namely, Govindaraju @ Govinda and Govardhan @ Gunda.
(3.) Against the said judgment of acquittal passed by the learned trial court, the State preferred a leave to appeal before the High Court. The High Court declined the leave to appeal against the judgment of acquittal in favour of Govardhan @ Gunda and granted the leave to appeal against Govindaraju @ Govinda vide its order dated 3 rd November, 2000. Finally, as noticed above, the High Court vide its judgment dated 29 th November, 2006 found Govindaraju guilty of the offence under Section 302 IPC and sentenced him to civil imprisonment for life and fine of Rs.10,000/- in default to undergo rigorous imprisonment for a period of one year. Aggrieved from the said judgment of the High Court, the accused Govindaraju @ Govinda has filed the present appeal. Points on which reversal of the judgment of acquittal by the High Court is challenged: (i) The judgment of the High Court is contrary to the settled principles of criminal jurisprudence governing the conversion of order of acquittal into one that of conviction. (ii) The judgment of the High Court suffers from palpable errors of law and appreciation of evidence. All the witnesses had turned hostile and the conviction of the appellant could not be based upon the sole testimony of a Police Officer, who himself was an interested witness. It is contended that the appellant Govindaraju @ Govinda has been falsely implicated in the case. (iii) No independent or material witnesses were examined by the prosecution. Recovery of the alleged weapons of crime have not been proved in accordance with the provisions of Section 27 of the Indian Evidence Act, 1872 (hereafter referred to as "the Act"). (iv) No seizure witness was examined and the statement of the Police Officer cannot by itself be made the basis for holding that there was lawful recovery, admissible in evidence, from the appellant. (v) The ocular evidence is not supported by the medical evidence, even in regard to the injuries alleged to have been caused and found on the body of the deceased. The story put forward by PW1 is not only improbable but is impossible of being true. (vi) The case of the prosecution is not supported by any scientific evidence. (vii) Lastly, it is the contention of the appellant that they were charged with an offence under Section 302 read with Section 34 IPC. The trial court acquitted them. Leave to appeal preferred by the State qua one of the accused, i.e. Govardhan @ Gunda was not granted. Thus, the acquittal of the said accused attained finality. Once the accused Govardhan @ Gunda stands acquitted and the role attributable to the appellant-Govindaraju is lesser compared to that of Govardhan, the present appellant was also entitled to acquittal. The judgment of the High Court, thus, suffers from legal infirmities.;