IMPORTANT POINT
When evidence is not consistent, recoveries not proved, witnesses not able to identify the accused etc., accused will be entitled to acquittal.

JUDGMENT

Pinaki Chandra Ghose, J.

1. These appeals, by special leave, have been directed against the judgment and order dated 19.01.2011, passed by the High Court of Karnataka, Circuit Bench at Dharwad, in Criminal Appeal No. 2664 of 2010 whereby the High Court allowed the appeal of all the twelve accused and acquitted them of all charges. The present appeals are filed against the said acquittal order passed by the High Court; Criminal Appeal No.640 of 2012 is by the complainant, who is son of the deceased, and Criminal Appeal No.641 of 2012 is by the State.

2. The facts of the case, as disclosed by the prosecution, are that an FIR was lodged on 22.11.2005, at Toranagallu Police Station by Sheikh Hussain Sab (PW3), stating that he and his colleague Basavana Gouda (PW2) were working as Security Guards in Aqua Minerals Factory and when they were on duty on 22.11.2005, at about 1:30 PM, while taking food they heard a bang sound from outside and immediately they went out and saw that a Bolero Jeep had dashed against Tata Indica Car on N.H. 63 in front of Acqua Minerals. They saw four unknown persons pulled out two inmates of Indica Car and assaulted on their head, face and hand with sharp edged weapons, causing heavy bleeding injuries. The four people then drove away towards Bellary. One of the deceased named Bhimaneni Kondaiah died on the spot whereas the other deceased Pavadappa died on way to the hospital.

3. After investigation, charge-sheet was filed against twelve accused. After considering the material on record and hearing the counsel for the accused persons, they were charged for offences punishable under Sections 143, 147, 148, 341, 109, 120-B, 302 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). The charges were read over and explained to them. All the accused persons pleaded not guilty and claimed for trial.

4. The Trial Court by its judgment and order dated 8.04.2010, convicted all the accused for hatching a conspiracy and therefore, in furtherance of the conspiracy, for killing the deceased and his driver and sentenced them to life imprisonment. Various other shorter sentences for other offences were also imposed by the Trial Court. The conviction was based on the testimonies of the six eye witnesses, corroborated by the recovery evidences and the testimonies of other witnesses who proved the existence of a conspiracy planned between the twelve accused. The motive believed by the Trial Court was to avenge the death of four relatives of the accused, six months ago which was believed to be committed by the deceased Bheemaneni Kondaiah and his men. Aggrieved by the Trial Court judgment and order, the convicted respondents filed appeal before the High Court, which was allowed on the ground that there is absence of proof of wrongness on the part of the accused and also certainty of the guilt of the accused and as such, they were entitled to the benefit of doubt. Accordingly, the High Court by the impugned judgment set aside the judgment and order dated 8.04.2010 passed by the Trial Court and acquitted the accused of all the charges.

5. Mr. Manan Kumar Mishra, learned senior counsel appearing on behalf of the complainant, has made various submissions on the basis of the Trial Court judgment. His main contention is that the testimonies of the eye-witnesses, wherein PW1, PW4, PW5 and PW6 have specifically stated the number of persons present as well as the individual act committed by each of the accused/ respondents in the incident, are clinching evidence and cannot be brushed aside. Further, the recovery of the weapon used and the Indica Car involved in the incident cannot be overlooked. Over and above this, the learned senior counsel contended that the evidence of existence of conspiracy has been established by individual witnesses.

6. Mr. Pradip Kumar Ghosh, learned senior counsel appearing on behalf of the accused/ respondents made various submissions countering the arguments put forwar