Present appeal is filed by the appellant/accused

No.1 being aggrieved by the judgment and order dated

20.08.2019 passed in Sessions Case No.27/2015 on the file of

the Principal District and Sessions Judge, Bagalkot (hereinafter

referred to as ‘the Trial Court’) by which the Trial Court has

convicted accused No.1 for the offence punishable under

Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’)

and sentenced him to undergo imprisonment for life and pay

fine of Rs.25,000/- and in default of payment, to undergo

simple imprisonment of six months and has acquitted accused

No.2 of the said offence.

2.

The case of the prosecution is that; the deceased

Malakajagouda had illicit relationship with the wife of accused

No.1 namely Smt.Gangavva. That on 08.11.2014 at about

12.45 a.m. near Dyamavvana Katte, in the land bearing

R.S.No.40 belonging to the complainant situated in Vajjal

village, accused No.1 in furtherance of his common intention

along

with

accused

No.2

murdered

Malakajagouda

by

assaulting him with an axe on the backside of his neck and

head while he was sleeping in the land.

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3.

The prosecution examined 21 witnesses as PWs.1 to

21 and exhibited 27 documents marked as Exs.P1 to P27 and

produced 11 material objects as MOs.1 to 11. On recording the

statement under Section 313 of Cr.P.C., accused Nos.1 and 2

denied all material evidence produced against them and

examined one Sunita Arun Kathari as DW1 and produced

document Ex.D1 in their defence evidence.

4.

The Trial Court on appreciation of evidence passed

the impugned judgment and order convicting accused No.1 of

the offence punishable under Section 302 of IPC and acquitting

accused No.2 as above. Being aggrieved by the same, the

appellant is before this Court in this appeal.

5.

Sri.Neelendra D. Gunde, learned counsel for the

appellant reiterating the grounds urged in the memorandum of

appeal submitted that the entire case of the prosecution is

based on circumstantial evidence and the same has not been

established beyond the reasonable doubt; prosecution has not

established the motive being alleged illicit relationship which

the deceased purportedly had with the wife of accused No.1,

PW1-brother of the deceased, PW5-mother of the deceased and

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PW6-the uncle of the deceased have pleaded ignorance about

the said allegation of illicit relationship; that PW7-Prashant,

PW8-Basavaraj, who claim to have been sleeping beside the

deceased at the time of the incident have not seen the accused

assaulting the deceased, their evidence is therefore of no use

for the prosecution; there are inconsistencies in the versions of

the prosecution as on the one hand it is claimed that the

accused were allegedly identified in the light from the

Durgamma temple, while PW1 has stated that they were

identified in the light of the torch; that in the sketch at Ex.P22,

there is no mention of existence of light pole, thus, the very

theory of identification of the accused at the scene of offence is

doubtful; there is also inconsistency in the evidence of PW9 and

PW10 who claim to have seen accused holding the weapon

prior to the incident, in that, PW9 states that accused No.2 was

holding the axe whereas PW10 states accused No.1 was holding

the axe while only one axe has been recovered by the

prosecution; that when the Trial Court acquitted accused No.2

for want of evidence against him, there was no reason or

justification in convicting accused No.1 on the same set of facts

and circumstances when there is no eyewitness or direct

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evidence in the matter; that the Trial Court has not appreciated

the line of defence adopted by the accused in bringing forth the

possibility of deceased having animosity with the other

residents of the village more particularly of Mahalingavva and

her husband Fakirappa Chalavadi on the issue of the deceased

raped Mahalingavva and a case in that regard having been filed

against the deceased; that the Trial Court has not appreciated

the conduct of PWs.7 an