J U D G M E N T

This appeal is filed by the accused challenging the judgment and order of conviction and sentence passed by V Additional District and Sessions Judge, Mysuru in S.C.No.277/2013 dated 21.02.2017, for the offence under Section 302 IPC.

2. The appellant was the 'accused' before the trial court.

For the sake of convenience, the parties are referred to as per their ranks before the trial court.

3. The name of the deceased is Mujaheed Pasha @ Meter.

The accused Azam Pasha @ Azam is the foster son of PW.9 Shameem Banu and deceased was the natural son of PW.9. There used to be quarrels between PW.9 and deceased in respect of house property bearing Door No.257 situated at Beedi colony of the Slum Development Board, Mysuru. The deceased was claiming property from PW.9 as he was having severe difficulties in maintaining his family and he intended to sell the said house property for the purpose of doing business. The accused had indulged in theft cases at Mysuru. As Mujaheed Pasha was quarrelling with his mother-PW.9, the accused decided to eliminate him to succeed to the property on the death of Mujaheed Pasha. As such, on 28.10.2012, at 11.00 p.m., the accused luring the victim of alcohol, intoxicated him, took him near Rice Mill of Nasarulla, Gargeshwari Village, pushed the victim to the ground, assaulted on the face and head of the deceased with cement block and committed his murder. PW1.Moisena lodged a complaint at 10.30 a.m. on 28.10.2012, T. Narasipura Police registered the case in crime No.287/2012 for the offence under Section 302 IPC. On investigation, chargesheet was filed against the accused for offence under Section 302 IPC.

4. In order to prove its case, the prosecution in all examined 28 witnesses as PW.1 to PW.28, got marked 31 documents as per Ex.P1 to Ex.P31 and 12 material objects as MO.1 to MO.12.

5. Assessing the evidence of the prosecution witnesses, the trial court convicted the appellant for the offence under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs.5000/- and in default, sentence of imprisonment for six months.

6. Aggrieved by the said judgment and order of conviction and sentence, the accused has preferred this appeal.

7. Sri. N.S. Sampangi Ramaiah, learned Amicus Curiae for the appellant submitted that the trial court convicted the accused for the aforesaid offence on uncorroborated testimonies of the prosecution witnesses. The prosecution witnesses such as PWs.1 to 7 have turned hostile and not supported the case of prosecution in any manner. But the trial court erred in convicting the accused for the aforesaid offence on the basis of evidence of PWs.18 to 28, the official witnesses. The case of the prosecution is based on circumstantial evidence, but the prosecution failed to establish the circumstances relied on by the prosecution. It is contended that PW.3 - Wasim alias Waasim is alleged to have accompanied the deceased on the date and time of the incident and the accused took him to the mutton shop as well as to the wine shop and at the time, PW.3 had witnessed the accused near the said shop and thereafter PW.3 left the place. But PW.3 turned hostile to the case of the prosecution. He submits that PW.4-Khalil and PW.7-Shivaraju have stated that the deceased came to wine shop on previous day night at around 7.30 p.m., and purchased quarter bottle of whisky and he was alone at that time. Though there is inconsistency in the evidence of PWs.3 and 7, the trial court erred in coming to the conclusion that deceased Mujaheed came to the wine shop, purchased whisky along with PW.3. The evidence of PW.3 has been contradicted by the evidence of PW.19-Kruthika N., Scientific Officer, Regional Forensic Science Laboratory, Mysore, who has stated that during examination of the stomach contents of deceased, she had not noticed the alcoholic residues, but the trial court erroneously discarded this vital aspect of the matter. It is contended that the trial court convicted the accuse