This appeal is directed against the judgment

dated 25.10.2016 passed by the IV Additional

District and Sessions Judge, Doddaballapura in

S.C.No.10005/2014 convicting the accused for the

offence punishable under Section 302 of IPC and

sentencing him to undergo life imprisonment and

fine of Rs.5,000/- with default imprisonment for a

period of two years.

2.

The name of the deceased is one Ramu @

Ramesh who was working as a watchman of the

pushcarts in the bus stand. The accused was a

cleaner in a hotel. PW1, who was a private bus

loader in Doddaballapura bus stand, gave a report

of the incident dated 12.11.2013. He reported to

the police that around 02.45pm on 12.11.2013, he

saw the deceased and the accused quarreling with

each other and in the course of quarrel, the

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accused inflicted an injury on the neck of the

deceased Ramu @ Ramesh and fled that place.

Immediately PW1 and other two or three persons

went there. He saw Ramu @ Ramesh being dead.

The investigation led to filing of charge sheet

against the accused.

3.

Of the 20 witnesses examined by the

prosecution, PW1, PW2, PW3 and PW6 are the eye

witnesses. PW4 and PW7 are the witnesses to spot

mahazar drawn as per Ex.P.4. PW8 and PW9 are

the witnesses to seizure of blood stained clothes of

accused in the police station under the mahazar,

Ex.P.9. PW15 was the doctor who conducted post

mortem examination. PW2, PW3 and PW6 turned

hostile.

4.

The trial court has held that although

PW2, PW3 and PW6 turned hostile, the evidence of

PW1 is believable. The knife was seized by the

police on the spot itself. After arrest of the

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accused, his blood stained clothes were seized.

The knife, clothes of the deceased and the clothes

of the accused were all sent to FSL for scientific

examination and the FSL report marked at Ex.P.16

indicates the presence of ‘A’ group blood on all the

items. Though the witness to mahazar Ex.P.9

turned

hostile,

the

evidence

of

PW19,

the

investigating officer can be believed. The trial

court in this regard has opined that there is no

rule that the court should not act upon the

evidence of the investigating officer. Finding that

there is no case made out for scaling down the

offence from Section 302 of IPC to Section 304 of

IPC, the trial court arrived at a conclusion that the

prosecution was able to prove beyond reasonable

doubt that the accused did commit murder of the

deceased Ramu @ Ramesh and, hence convicted

and sentenced him.

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5.

We have heard the arguments of Sri

M.Sharass

Chandra,

learned

counsel

for

the

appellant/accused and Sri Vijayakumar Majage,

learned SPP-II for respondent/State.

6.

It is the argument of Sri M.Sharass

Chandra, learned counsel for the appellant /

accused that PW2, PW3 and PW6 turned hostile

completely. If the evidence of PW1 is read, it

cannot be said that he supported the prosecution.

The incident is said to have taken place around

02.45pm

on

12.11.2013,

but

in

the

cross

examination, PW1 stated very clearly that he came

to bus stand at 4.00pm. He also stated that he did

not lodge any complaint as per Ex.P.6 and that the

police obtained his signature on it. Ex.P.6 is a

computer typed complaint. PW1 has not written it

and therefore in all probability, the police might

have prepared the complaint and obtained the

signature of PW1. The trial court ought to have

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drawn conclusions that PW1 was not an eye

witness in the light of the answers that he has

given in the cross examination. His argument is

therefore that when the testimony of PW1 fails,

based on mere recovery of the clothes said to be

that

of

accused,

no

inference

about

his

involvement in the commission of crime can be

drawn. Moreover PW8 and PW9 did not support

the seizure of blood stained clothes. Indeed FSL

report indicates the presence of blood stains on all

the material objects, but that itself cannot be a

reason for drawing conclusion against the accused

about his involvement in the crime. He therefore

argu