IMPORTANT POINT
Minor discrepancies are not fatal to prosecution story.

JUDGMENT

V.S. Sirpurkar, J.—

1. Three appellants who were original accused Nos. 2, 3 and 4 have come up against the conviction for the offences under Section 302 read with Section 149, Indian Penal Code. They were acquitted by the Sessions Judge. However, the High Court allowed the appeal against their acquittal. As many as six accused persons were tried before the Principal Sessions Judge, Bijapur on the basis of the charge-sheet filed by the police on the allegation that on 22.06.1996 at about 5 p.m. they were the members of unlawful assembly in prosecution of the common object thereof and committed murder of one Malakari Sidda S/o Kariyappa Alakanur. They were also named in the charge-sheet for the offences under Sections 148, 302, 504 read with 149, IPC.

2. The First Information Report was given by one Ningappa Mudakappa Kamari complaining therein that the complainant’s sister’s husband was involved in a murder case and was in jail. The complainant had put up a hut in the land of Kariyappa Alakanur situated at Yaragatti and started cultivating it. It was further alleged that Kariyappa had three sons and the eldest was Malakari Sidda. The father of Kariyappa was involved in the murder of one Maruti Alakanur and on this account the accused persons who were the relatives of the said Maruti nurtured a grudge against Kariyappa Alakanur. It is stated that on 22.06.1996 the deceased and the son of complainant were attending to the work of preparing jaggery from sugarcane. When the work was over, his son Mahadev Ningappa Kamari and deceased Malakari Sidda went to have a bath in the canal by the side of the land of Dattapant Kulkarni. Since they did not return early the complainant went towards the said canal and saw all the accused persons near the canal who were armed with various weapons. They lifted the said Malakari Sidda and carried him for some distance and committed his murder. This was seen by his son Mahadev and he being a friend ran towards their garden hut and, thereafter, this witness came on a bicycle along with Arjun Ishwar Honamore and Sanjeev Mahadev Honamore. He also mentioned that the accused persons had gone away along with blood stained sickles in their hands towards Yaragatti village. He had found that Malakari Sidda was dead and his head was almost completely severed from the trunk. The police reached the spot and found the body and conducted the necessary investigation. The dead body was sent for post-mortem where 10 serious wounds were found in it. The weapons were seized from the accused they being M.Os. 8 and 10. On the basis of the investigation the charge-sheet followed and the accused persons were charged as aforesaid.

3. At the stage of evidence, the complainant turned hostile. However, his son Mahadev Ningappa Kamari, PW-7 stood firmly and deposed against the accused, though he was about 13-14 years old. PWs-5 and 6 were also examined in support of the prosecution. The Sessions Judge accepted the evidence of PW-5, the complainant, in part. However, commented that the evidence of PW-7 who was the star witness, was unnatural. The Trial Court commented that his evidence did not match with the medical evidence regarding the time of death of the deceased as according to this witness the deceased had not eaten anything during the day. However, the reminiscences of food were found which suggested that his time of death would be about 11 O’clock or 12 O’ clock in the noon and not at 5 p.m. as deposed by the witness. Again the learned Sessions Judge also found favour with the fact that though this witness was available on the night when police visited the spot, his statement was not recorded under Section 161 Cr. P.C. The Sessions Judge also found that there were material contradictions in the evidence of this witness and his father PW-5. Insofar as PW-6, Ningappa is concerned, he had seen the accused persons proceeding towards the garden land at about 4:30 p.m. and at that time the accused having blood stain