IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL No.107 of 2016 BETWEEN 1. C. HARISH, S/O CHANDREGOWDA, AGED ABOUT 23 YEARS, COOLIE, RESIDENT OF 1ST CROSS, KADRIMIDRI GADI, AMBLE HOBLI, CHIKKAMAGALURU TALUK – 577 101.
2. MAHESH C., S/O CHANDREGOWDA, AGED ABOUT 22 YEARS, COOLIE, RESIDENT OF 1ST CROSS, KADRIMIDRI GADI, AMBLE HOBLI, CHIKKAMAGALURU TALUK – 577 101.
3. MANI, S/O JAYABALU, AGED ABOUT 22 YEARS, COOLIE, WORKING IN GOWDANAHALLI VIJAYAMMA, SAW MILL, RESIDENT OF LAST CROSS, ADISHAKTHINAGARA, CHIKKAMAGALURU – 577 101.
(ALL ARE IN JUDICIAL CUSTODY, CENTRAL PRISON, BANGALORE) ... APPELLANTS (BY SRI HASHMATH PASHA, SENIOR ADVOCATE, M/S. HASHMATH PASHA AND ASSTS, ADVOCATES) AND STATE OF KARNATAKA BY, RURAL POLICE, CHIKKAMAGALURU – 577 101.
(REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 18.11.2015 AND SENTENCE DATED 19.11.2015 PASSED BY THE II ADDITIONAL SESSIONS JUDGE, CHIKKAMAGALURU IN S.C.No.76/2012-CONVICTING THE APPELLANT/ACCUSED Nos.1 TO 3 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH 34 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 01.03.2019 COMING ON FOR PRONOUNCEMENT, THIS DAY, K. NATARAJAN J., PRONOUNCED THE FOLLOWING:-
J U D G M E N T The appellants are the accused before the trial Court in S.C.No.76/2012 dated 18.11.2015 on the file of the II Additional Sessions Judge, Chikkamagaluru. They were tried and convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentenced to undergo imprisonment for life and pay a fine of Rs.1,00,000/- each for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. In default of payment of fine, they shall further undergo Simple Imprisonment for two years each. Out of the fine amount collected, it is also directed to pay Rs.2,90,000/- to Smt. Geetha wife of the deceased-Suresh as compensation by judgment dated 19.11.2015 which is challenged under various grounds.
2. We have heard the arguments of learned Senior Counsel, Sri Hashmath Pasha and Additional Special Public Prosecutor.
3. Before adverting to the arguments urged by both the counsel, it is necessary to mention the factual matrix of the case of the prosecution as under;
PW.1- Sri K.B.Saganegowda filed a report to the Rural Police at Chikkamagaluru on 31.05.2012 alleging that he was having two children and that on 31.05.2012 as usual he attended the agricultural work in his land and returned back to home at 5.30p.m., his son Kumara and his brother-in-law one K.B.Surath went to Shakthi Nagar of Chikkamagaluru by Motorcycle at about 7.00 p.m. or 7.15 p.m., one Pradeepa made telephone call to him stating that there was some quarrel between Accused Nos.1 and 3 with his son – Kumara and Surath near the Shakthi Nagar Bakery for the reason that the bike of his son is said to have touched accused No.1-Harisha, due to that the accused persons shouted and asked them to stop the motorcycle. Accordingly, they stopped the motorcycle at a distance of 10 feet, then the accused came and slapped them and assaulted Kumara and caused injuries. Due to the injuries, Kumara and Surath were shifted to the M.G.Hospital at Chikkamagaluru for treatment. Immediately, PW.1-Sri K.B.Saganegowda went to his brother’s house at Shakthi Nagar and enquired his brother’s son Suresh(deceased) about the said incident and then himself, deceased Suresh, PW.9-Mahesh went to the house of accused to enquire about the assault made on his son-Kumara, by that time, PW.10-Pradeep and PW.8-Mallesh also joined them and they all went in bikes to the house of the accused, they knocked the door of the accused and all the accused persons came out of the house, when they enquired about the assault made on Kumara and Surath, the accused persons went inside the house and brought the sword and assaulted the deceased- Suresh. Due to the assault made on Suresh, the other companions ran away from the said spot and the PW.1 went to the hospital to see his son and Surath, who were already admitted to the hospital. By that time, the deceased Suresh was also brought to the hospital and admitted in the Hospital. But at 10:00 p.m., due to the assault made by the accused persons on Suresh, he succumbed to the injuries. The accused persons committed the murder of the deceased Suresh in respect of the previous incident occurred near Bakery. Upon receipt of the complaint, the Police have registered the case in Crime No.174/2012 for the offence punishable under Section 302 read with Section 34 of IPC and issued the FIR. Later, the Police have arrested the accused, conducted investigation and filed the charge sheet.
4. The Trial Court after securing the committal records and secured the presence of the accused persons from the jail. From the date of the arrest, i.e., 01.06.2012, they are in custody. The charges are framed against accused Nos.1 to 3, they denied the same and accused were put on trial. Accordingly, on behalf of the prosecution, in all 21 witnesses were examined as PWs.1 to 21 and exhibited 55 documents as Exs.P.1 to 55 and 15 material objects as MOs.1 to 15 and during the cross- examination, the advocate for the accused exhibited two documents as Exs.D.1 and 2. After completion of the prosecution evidence, accused persons were also examined under Section 313 of Cr.P.C. The case of the accused was one of total denial and did not choose to examine any witness on their behalf. After hearing the learned counsel appearing on both side, the Trial Court found the accused guilty for the offences alleged and convicted and sentenced them as stated Supra.
5. Learned Senior Counsel for the appellants contended that the independent eyewitness has turned hostile and not supported the case of the prosecution. There are lot of contradictions and omissions in the evidence of PWs.1 and 8, who are relatives to the deceased-Suresh. The trial Court has not appreciated the evidence in proper perception. The incident occurred near the Bakery, the accused persons assaulted the complainant’s son Kumara and Surath on the background, this incident took place near the house of the accused where the complainant along with four persons went to the house of the accused to enquire about the previous incident, there was quarrel between the parties of the complainant and the accused persons and during the said quarrel, the accused might have assaulted the victim, if at all PWs.1 and 8 were present on the spot, they could have shifted the deceased to the hospital, but they said to have been ran away from the spot and instead they directly went to the hospital. They have neither admitted the deceased to the hospital nor called the Police or Ambulance to shift the deceased-Suresh. The conduct of the PWs.1 and 8 creates doubt about their presence on the spot and except these two witnesses, there are no other witnesses to support the case of the prosecution. Even otherwise, the genesis of the crime was not mentioned by PW.1 either in his evidence or in the complaint. Even the prosecution evidence is accepted as a ‘whole’ which goes to show that accused persons said to have been assaulted the Kumara and Surath around 07:15 p.m. near Shakthinagar Bakery. In order to take revenge against the accused, PW.1/complainant, PW.8-Mallesha and other three persons including the deceased-Suresh went to the house of the accused for the purpose of teaching a lesson to the accused persons and gave to the house of the accused and knocked the door. At that time the alleged incident took place. Even as per the photographs taken near the spot, size stones were laying near the house of the accused that itself shows that the parties of the complainant dropped the stones on the door of the accused and when the mother of the accused opened the door, the parties of the complainant quarreled with her and then accused No.1 came out from the house. When the parties of the complainant questioned accused Nos.1 at that time, accused No.2 and 3 went inside the house and brought the weapon and during that point, there were scuffle between them for fifteen minutes. Thereafter, the accused said to have been assaulted the injured. The said fact goes to show that there is no pre-meditation or preparation from the side of the accused to commit the murder of the deceased-Suresh. Therefore, it is alternatively argued that the offences may fall within the ambit of exception to Section 300 of IPC and which is punishable under Section 304-Part I or II of IPC. It is further argued by the learned Senior counsel for the appellants that the prosecution material itself goes to show that when the parties of the complainant went to the house of the accused to enquire about the assault made on Kumara and Surath, at that time, the accused persons picked up quarrel and caused the death of the Suresh. In that background, an apprehension was created in the mind of the accused persons. Even though the accused not pleaded private defence in the trial Court, the Court can ascertain the situation from the evidence on record and it can come to the conclusion that the offence under Section 302 of IPC is not made out. It is also contended that even on perusal of voluntary statement made by accused as per EXs.P.42 to 44, it is clearly stated by the accused that the complainant and his parties picked up quarrel, there was verbal altercation between them and thereafter, the incident was occurred. Therefore, for the purpose of supporting the case of the accused, the voluntary statement can be relied. There is no opportunity for accused Nos.1 to 3 to discuss with each other to arrive at a conclusion that there was a common intention to commit the murder of the deceased-Suresh and there is no natural conduct of the PWs.1 and 8 for staying away while quarreling. He further submits that by looking into the over all evidence of the witnesses, the offence would fall under the exception to Section 300 of IPC and prayed for setting aside the judgment and order of conviction of the accused for the offence punishable under Section 302 of IPC.
6. Per Contra, the learned Additional Special Public Prosecutor contended that the complainant and his parties went to the house of the accused only to enquire them, why they assaulted Kumara (complainant’s son) and Surath. They have not carried any weapons along with them while going to the house of the accused. Accused could have elicited their evidence with regard to the alleged incident how it was occurred. At the same time, there is no specific defence taken by the defence counsel during trial. PWs.1 and 8 were eyewitnesses, their evidence is trust worthy and acceptable. The assault made on the deceased-Suresh indicates the intention of the accused persons to commit the murder of the deceased- Suresh. The accused No.1 tried to assault PW.8-Mallesha, he escaped from the blow and it fell on the hand of Suresh. At that time, the deceased-Suresh started running, the accused chased the deceased-Suresh, when he was fell down near the drainage, the accused assault him on the back and thereafter, they assaulted on the head with long chopper. Due to which, a deep injury was sustained by the deceased-Suresh on his head which was fatal injury and he succumbed to the injuries. The accused persons had chased and assaulted the deceased-Suresh, which fact clearly goes to show the intention of the accused persons was to commit the murder of the deceased-Suresh. It is also argued that in the voluntary statement the accused persons, they have not stated that what was the discussion held by the deceased-Suresh with them. As per the evidence of the PW.1, within the time limit of 10 minutes to 15 minutes, the entire incident occurred. Therefore, the question of altercation and discussions held between them cannot be acceptable. In fact, the incident took place at the door step of the accused, but later, the accused persons chased and assaulted the deceased-Suresh which was away from their house. As per the post-mortem report submitted by the doctor, the injuries found on the dead body were due to the assault made by a weapon which might have been used by the accused persons, it clearly goes to show that the offence committed by the accused persons which falls under Section 302 of IPC. Therefore, learned Special Public Prosecutor prayed to dismiss the appeal.
7. Having heard the arguments on both the sides, it is required to have cursory look on the evidence of the prosecution laid before the trial Court which is here as under;
PW.1-K.B.Sagane Gowda, father of the Kumara as well as the complainant who has deposed that on 31.05.2012 at about 5.00 p.m., he came back to the house after completion of the work in agricultural field. At about 6.00 p.m., one Surath, son of his brother-in-law came to his house and asked his son Kumara to accompany him and both of them went towards Shakthi Nagar bakery. At about 6:30 p.m. the complainant came to know that accused persons Harish and Mani were assaulted his son Kumara and Surath and they went to the hospital. Then himself and Mahesh went near Shakthi Nagar Bakery, by that time Pradeep, Mallesh and deceased-Suresh also came near the Bakery. All of them discussed about the incident and went near the house of the accused at about 7:30 p.m. or 8:00 p.m. in three bikes to enquire that why they assaulted Kumara and Surath. Accused Nos.1 and 2 are brothers and accused No.3 was their friend. It is further deposed that Mallesha-PW.8 knocked the door of the accused by calling as Mahesha, at that time accused Nos.1 to 3 came out from the house. Then the said Mahesha questioned the accused persons about the assault made to Kumara and Surath. For that, the accused persons replied to their enquiry questioning that “who is he to ask them”. There was some talks held between them and the other accused by questioning the authority of the parties of the complainant, accused No.1 went inside the house and brought the sword and assaulted the deceased-Suresh on his hand, head and knee with the choppers. When they tried to question the accused persons about the assault on their persons, they also threatened to do away with their lives. Therefore, they run away from the spot. The injured-Suresh fell down near the drainage. The incident took place in front of the house of accused No.1. There is a street light at the incident spot. They also left their bikes on the spot by taking Auto Riksha to Chikkamagaluru hospital to see the Kumara and Surath. By that time, the Suresh-deceased brought to the hospital in an Ambulance. Later, the said Suresh was died in the hospital. He further deposed that when they enquired with the Kumara and Surath about the previous incident, at that time they said that the incident took place on the background and touching of his bike to the accused person. Hence, accused assaulted Kumara and Surath. Later, the Police came to the hospital and obtained the complaint from him and he has identified the complaint as per Ex.P.1. He further deposed that by next day between 9.00 a.m. and 10 a.m., police came to the spot and in the presence of panch witnesses collected the sample mud, blood stained mud and blood stained grass from the place of incident and also seized three motor-
cycles. PW.1 identified the articles seized by the Police on the spot. He also identified weapons used by the accused as per MOs.4 to 6. The evidence of this witness will be discussed little later.
PW.2-K.H.Halappagowda who is Inquest and panch witness to the incident as well as the witness to the seizure of the clothes of the deceased-Suresh and weapons from the accused persons. This witness also deposed that the Police have conducted inquest mahazar on the dead body of the Suresh-deceased and he has identified Ex.P.8 as inquest report. Later, he was called to the Police Station and shown the clothes of the deceased-Suresh and seized the same. He also identified the clothes of the deceased as M.Os.7 and 8. Further, he has admitted the signature as per Ex.P10. As per Seizure Panchanama Ex.P.11, the Police seized the clothes of the accused and the weapons used by them. He and accused along with the police went near the railway bridge of Kotekere and they found three swords which were hidden by the accused persons and at that time, the Police took photographs of the same. He also identified the photograph as Ex.P.17. Though, this witness stated that MOs.4 to 6 were the weapons which might have been in the hands of accused and further he states that they may not be the same after treating him as hostile. This witness has been cross-examined by Public Prosecutor and in the cross-examination, he has admitted the seizure of the clothes of the deceased-Suresh as per Ex.P.9 and admitted the signature of the witnesses as per MOs.7 and 8. He further admitted that the clothes of the accused persons were seized by Police as per MOs.11,12 and 13. However, this witness denied the seizure of the mobile phone and clothes of the accused No.3 as per MOs.14 and 15. On perusal of the evidence of PW.2, he has partly supported the case of the prosecution and partly denied the prosecution case. The evidence of this witness will be discussed after the appreciation of the evidence of the PWs.1 and 8.
PW.3-Sandeep is the Inquest witness to the deadbody and he deposed that on 01.06.2012,he went to the Chikmagaluru Government Hospital to see the deceased-Suresh. At that time, the police have conduced the enquiry and panchanama on the dead body. After that the police have taken his photo along with another panch witness to the Exs.P8 and P17 and also obtained his signature to the above said exhibits. This witness supported the prosecution case. The evidence of this witness is not disputed as death was not in dispute.
PW.4-K.N.Ravi is another panch witness to the incident for inquest and seizure of the clothes of the deceased-Suresh as per MOs.7 to 10 through Ex.P.9- Siezure Mahazar. This witness also supported the prosecution case. Since the death of the deceased was not in dispute, the evidence of PWs.3 and 4 have no much significance.
PW.5-Smt.Geetha who is the wife of deceased- Suresh has deposed that on 31.05.2012, when she was in home along with her husband, she came to know that the Kumara and Surath were assaulted by the accused persons and the same was discussed by her husband by standing outside the house. Then Mallesha-PW.8 and PW.1- K.B.Saganegowda came near her house and later, all of them went on three bikes. At about 9:00 p.m., she came to know through somebody that accused have assaulted her husband with Machu, and there after she went to the spot. By that time, the deceased-Suresh was taken in an Ambulance to the Government Hospital, Chikkamagaluru at about 10:10 p.m. by herself and others. She also stated that she found injuries on his head, chest and face. Police also came there and she stated that earlier there was some petty quarrel between one Narendra and accused and when the husband of this witness questioned the accused, on this background due to vengeance the accused have committed his murder. Though, the learned counsel for the accused made lengthy cross-examination of this witness who is not an eyewitness to the incident but she has stated in the cross-examination that one Muslim person came and informed her about the incident. She also stated neither PW.1 nor other person told about incident and when she went to the spot, PWs.1, 10 to 12 were not present but they were in the hospital and she went to the hospital. She also stated that she tried to contact PW.1 over phone but phone was switched off. She also stated on the basis of the information given by one Jagannath and Lokesh, she gave evidence before the Police. The Court below has rightly stated that this witness was not an eyewitness to the incident.
PW.6-Jagannath is another panch witness to the spot mahazar prepared by police as per Ex.P.2. He also speak about the seizure of the blood stained sample mud, blood stained grass and photographs of the motorcycles also taken and they are identified as per Exs.P3 to 7. Except denial nothing has been elicited. Further, it was stated in the cross-examination in Ex.P6-photograph, the house of the accused was depicted and in the said photographs it is also depicted about the ransacking of the bikes and also burning of the spare parts of the bikes.
PW.7-K.P.Rajesh is another panch witness who has identified the signature on the panchanama as per Exs.P.10 to 11, and has also identified the weapons as per Mos.4 to 6, clothes as per MOs.11, 13 and 15 and Mobile phone as per MOs.12 and 14. This witness has also turned hostile and in the cross-examination, he has admitted the seizure of the material objects by the police and has also clearly stated that the accused persons handed over the hidden weapons to the police and except denial nothing has been elicited to disbelieve the evidence of this witness.
PW.8-Mallesha who was the cousin brother of the deceased is also an eyewitness to the incident. He also stated on the same line as of the evidence of PW.1. His evidence will be discussed later while appreciating the evidence along with PW.1.
PW.9-K.N.Mahesh is one of the eyewitness who has turned hostile and not supported the case and denied the statement as per EX.P.20 made before the Police. This witness has also stated that he went along with PW.1 to the house of the deceased. Later on, all of them went to the house of the accused but this witness has turned hostile and nothing has been elicited in favour of the prosecution.
PW.10-K.B.Pradeep another eyewitness who has witnessed the incident but he has not supported the case except admitting that one Umesh told him over phone that at about 8.30 p.m. there was quarrel between Kumara, Surath and accused persons near Shakthi Bakery, but says, he do not know anything about the incident and the death of the deceased-Suresh. In the cross-examination, this witness admits that PW.1 along with others went near Shakthi Bakery where previous incident had occurred but this witness totally denied that he has accompanied PW.1 to the house of the accused. The evidence of this witness is not useful to the case.
PW.11-K.B.Nagendra, who is the Panchayath Development Officer has given extract of the place of the occurrence, as per EXs.P.24 and 25. There is no much dispute in this aspect.
PW.12-Sathiskumar who is the Junior Engineer has prepared the sketch of the place of the incident and nothing has been elicited in his cross-examination. Except denial, the place of the occurrences is not disputed. Therefore, it is not relevant to discuss in detail.
PW.13-K.B.Surath who is brother-in-law of PW.1 who speaks about previous incident, he has deposed that at about 7.30p.m. on 31.05.2012, himself and Kumara went near the Shakthi Nagar, Panipuri shop, when he was riding the motorcycle, at that time, accused Nos.1 and 3 were standing by the side of the road. The leg of Kumara touched accused No.1, at that time, the accused abused them in filthy language and accused No.1 assaulted him. During the quarrel, he sustained injuries on his head. Thereafter, the persons near the spot pacified the quarrel then they went to hospital for treatment. When they were in hospital, the dead body of the Suresh was brought to the hospital in Ambulance. He has stated that when the deceased and others went to the house of the accused to question about the assault on him, accused have assaulted them and they murdered the deceased-Suresh. This witness speaks about the motive aspect for the commission of the offence. The accused has also not denied the earlier incident which is motive to the crime.
PW.14-Lokesh, neighbor of the accused and also the eyewitness of the incident has turned hostile and not supported the case of the prosecution.
PW.15-Keshavamurthy, Head Constable who carried the FIR and submitted to the Court and he is only a formal witness.
PW.16-Raju, Police Constable who has carried seizure articles during the investigation to FSL, Mangaluru and he is also a formal witness.
PW.17-Chandraiah, Police Constable was deputed for guarding the dead body of the deceased-Suresh and after the post mortem examination, he brought the clothes of the deceased-Suresh as per MOs.7 to 10 to the Police Station. This witness is also a formal witness.
PW.18-Rajanna, SHO of Rural Police Station, Chikkamangaluru Rural Police Station has deposed that on 31.05.2012, at about 10:45 p.m., recorded the statement of PW.1 who is relative of the deceased-Suresh and registered a case against the accused and issued FIR as per Ex.P.33 and there was no much cross-examination with this witness.
PW.19-Dr.Mohammed Salia, Senior Specialist at District Hospital, Chikkamagaluru who has conducted examination on the dead body of the deceased-Suresh. According to his evidence, he has found almost eight injuries and given opinion that the deceased-Suresh has died due to the injuries to the brain as per the post mortem report-Ex.P.38. He also examined and identified the weapons as per MOs.4 to 6 and gave his opinion as per Ex.P.37 and stated that the injuries found on the dead body of deceased-Suresh as mentioned by him in his post mortem report could be caused by these weapons. In the cross-examination, the counsel for the defendants suggested that the injury Nos.1 and 4 to 7 have not caused the death of the deceased. This witness admits the same but opined that the injuries Nos.2 and 3 were actually caused the death of deceased, which were on the parietal region of the head of deceased which went up to the brain and caused the injuries due to which, the deceased has died. Though, this witness admits that he has not mentioned details of the weapons used for the death of the deceased but mentioned only the width and length of the injuries. In his opinion, the deceased was met with an homicidal death, due to the injuries sustained on his head and even on perusal of the injury No.2 was 6 X ½ inch on the fore head from the right eyebrow to middle of the head, bones were fractured, blood was clotted. Injury No.3 is a deep cut injury measuring 3 X 2 cm. parietal bone was fractured, on the left forearm chopped and separated, radius and ulna were visible, right hand fingers cut and separated and metacarpal bone were visible which clearly goes to out that these two injuries were fatal injuries which caused the death of the deceased. The photograph as per EX.P.17 also clearly depicts the injury sustained by deceased due to assault. Therefore, without much discussion on the point, we hold the prosecution proved that the deceased-Suresh was met with an homicidal death.
PW.20-H.N.Panchaksharappa who is the investigating officer has conducted the detailed investigation and laid the charge sheet against the accused persons.
PW.21-P.B.Madhu, Police Sub-Inspector who has apprehended accused Nos.1 to 3 near Balur bus stand, produced them before the Circle Inspector of Police and gave report. This witness is formal witness.
8. Overall scrutinizing the evidence of the prosecution, from the evidence of PWs.1 and 8 it is elicited that PW.1-Saganegowda, when he was in the house on 31.05.2012, his son Kumara and PW.13-Surath came to his house and both of them went towards Shakthinagar bakery in the motor cycle, later, he came to know that at about 6:30 p.m., the accused persons were assaulted his son and PW.13-Surath near the bakery and proceeded to the hospital. Immediately, PW.1-Saganegowda and PW.9- Mahesh went near the bakery, where, PW.10-Pradeep, PW.8-Mahesh were also came, then the deceased-Suresh also came near the bakery. All of them were discussed the matter and decided to go to the house of the accused to enquire about the assault on Kumara and Surath. Accordingly, all of them went near the house of the accused but both PW.9-Mahesh and PW.10-Pradeep were turned hostile and not supported in respect of actual incident occurred. Though, these PW.9-Mahesh and PW.10-Pradeep witnesses admitted about the previous incident occurred and going near the Shakthinagar bakery, but both of them were categorically stated that they have not seen the incident and actual assault on the deceased- Suresh by the accused persons. But the evidence of PWs.1 and 8 is believable in respect of the incident who are the eyewitnesses. Both these witnesses deposed that they went near the house of the accused and knocked the door of the house and mother of the accused opened the door. When they enquired the accused, the mother of the accused came out and when they questioned why they assaulted Kumara and Surath at that time accuse Nos.1 to 3 went inside, brought sword and assaulted the deceased.
Due to the fear, the parties of the complainant started running but the deceased-Suresh fell down near the drainage, then accused brother attacked the deceased by sword. The PWs.1 and 8 ran away by leaving their bikes on the spot. Both of them went to the hospital where the Surath and Kumara were admitted. These two witnesses categorically identified MOs.4 to 6 which were the weapons used for the commission of offence. The accused started assaulting on PW.8, when PW.8 escaped, the hit fell on the hands of deceased who was standing behind him. When they started chasing them, the deceased fell down near the drainage, at that time the accused assaulted deceased with sword. They also chased these witnesses but they ran away from the spot after witnessing the attack on the deceased.
During the cross examination of PW.1 a question was put to the witnesses by the counsel for the accessed that from where the accused had brought the weapon? In reply to the same, this witness states that the accused brought the weapon from inside their house. It is further stated by PW.1 in his cross-examination that when enquiring about the assault on his son, the accused persons went inside the house and brought sword and assaulted them. Due to the fear, all the parties of the complainant started running. This witness also stated in the cross-examination that he has seen the accused assaulting the deceased about 25 feet away. However, again he has stated that the accused also chased them therefore, they run away. The evidence given by PW.1 goes to show that the accused chased all of them and when the deceased fell down at little distance near the drainage, the accused started assaulting the deceased and while running away from the said spot, this witness watched the incident. As stated by him in his cross-examination, he witnessed the incident about 20 feet away and his presence at the spot cannot be suspected as he also accompanied the deceased to the house of the accused.
9. Though, the earlier case registered against the accused person in respect of the assaulting the Surath and Kumar near the Bakery and the accused were acquitted and the same was admitted by this witness. But the earlier incident which occurred near the bakery between accused and Surath and Kumar, was the only motive for this offence or this incident. On perusal of evidence of PW.1, there is nothing elicited by the counsel for the accused to disbelieve the evidence of PW.1 and other witness. PW.8 along with other two persons and deceased were near the house of the accused to enquire about the earlier incident. At that time accused started to assault on PW.8 and when he tried to escape from the assault, the said hit was fell on the deceased and thereafter, all these persons were started running away due to fear but the accused started chasing them and the deceased fell down near the drainage then accused persons started assaulting the deceased with sword and while these witnesses running away from the said spot, they witnessed the incident and thereafter accused also chased them. They ran away by leaving their motorcycles and took Auto rickshaw and went to the hospital.
10. Therefore, the presence of eyewitnesses PWs.1 and 8 along with deceased who went near the house of the accused cannot be doubted or disbelieved. Merely, PWs.1 and 8 neither went to the Police Station nor made an attempt to call the Ambulance or the Police, that itself is not a ground to reject the evidence of PWs.1 and 8. Though there were discrepancies in their evidence in respect of the assault on the deceased, but both of them have stated that the deceased-Suresh fell near the drainage and the accused persons continued to assault the deceased. The spot panchanama as per Ex.P.2 is prepared by the Police. Investigating Officer also stated that incident took place near the drainage. The photographs taken on the spot also reveals the same. Though, the incident started at the door step of the accused, actually accused assaulted the deceased near the drainage. Spot panchanama as per EX.P.2 go to show that the incident has occurred and MOs.1 to 3, blood stained mud, sample mud and blood stained grass from the spot were collected. From the evidence of PW.1, PW.8 and Investigating Officer and EXs.P.1 to 8 are discloses that the commission of offence and MOs.4 to 6 are the weapons which were used by the accused. In the examination-in-chief of PW.7, who has deposed that accused Nos.1 to 3 were enquired by the Police about MOs.4 to 6 and the accused persons brought and produced the hidden weapons-MOs.4 to 6 before the police as per the voluntary statement Exs.P41 to 43. Though this witness has also not properly identified MOs.4 and 6 but the evidence of PW.20 clearly goes to show that as per the information given by the accused persons in their voluntary statement, they hide the weapons near the railway bridge and was seized under panchanama-Ex.P.11, in the presence of panch witnesses, photographs of hidden place as per Exs.P.12 and 16 were taken and recovered the weapons at the instance of the accused. These photographs as per Exs.P12 to 16 corroborates with the evidence of the Investigating Officer and MOs.4 to 6 identified by the eyewitnesses PWs.1 and 8 before the Court which clearly shows that the Investigating Officer seized the weapons at the instance of the accused under panch mahazar as per Ex.P11. Thereby, the prosecution is successful in proving that the accused after assaulting the deceased, they hidden the weapons in a bush near Chennapura road, Kote area leading towards the railway bridge. The evidence in respect of the recovery of the weapons from the accused is acceptable one.
11. Evidence of PWs.1 and 8 also corroborates with the evidence of PW.5 in respect of motive aspect, that there was an incident occurred at about 6:30 p.m. near Shakthinagar Bakery, accused No.1 and 3 were assaulted Kumar and PW.13-Surath. The evidence of the PW.13- Surath and the documents produced by the Investigating Officer in respect of earlier incident, Ex.P.48-FIR, Ex.P.49- Wound Certificate coupled with the evidence of this witness clearly establishes that on 31.05.2012, at about 6:30 p.m., there was quarrel between accused persons and Kumara the son of PW.1 and PW.13-Surath. The accused persons assaulted Kumara and Surath and they sustained injuries the said Kumara and Surath went to hospital to get treatment. In order to enquire the accused, the PW.1 along with PWs. 8 to 10 and deceased-Suresh went near the house of the accused and while enquiry, the accused started assaulting complainant’s parties. But unfortunately, deceased-Suresh sustained injury on his hand due to assault with the choppers used by the accused persons when he made attack on PW.8 later accused chased and assaulted the deceased. The wife of the deceased-Suresh also stated in her evidence that when the deceased was in the house and talking with the other persons about the previous incident occurred near the Shakthinagar Bakery, the incident had occurred. Thereby, the prosecution is successful proving the motive aspect of previous incident, which was held between the accused and son of the complainant Kumara and PW.13-Surath.
12. The clothes of the accused were also seized by the Investigating Officer. The evidence PWs.2 and 7, though they turned hostile in respect of seizure of the clothes of the accused. But the Investigating Officer clearly stated about the seizure of the clothes of accused under panchanama. When the eyewitnesses clearly deposed about the assault on the deceased by the accused persons and the evidence of Investigating Officer about the seizure of the clothes and identified the weapons used by the accused. The identification of the clothes of the accused will not play a dominant role in this case. As regards to the seizure of the clothes of the deceased under inquest report as per Ex.P.8 in the Hospital were all undisputed fact. The clothes of the accused persons, weapons-MOs.1 to 3 seized from the spot, the blood stained mud and sample mud and blood stained grass, were also sent to FSL. Though in the FSL report, the blood group of the deceased was not mentioned as it was unable to find out due to disintegration of the blood will not take away prosecution case when the eyewitnesses supported the case of the prosecution and the presence of the blood of the deceased on the clothes of the accused and on the weapons used for the offence will not play any dominant role in this case as eyewitnesses identified the weapons and assault by the accused .
13. As we have already discussed above, the death of the deceased was homicidal due to the injuries sustained, is not in dispute. As per the evidence of the PW.19-Dr.Mohammed Salia, injuries were found on the deceased and injury Nos.2 and 3 were fatal injuries, which caused death of the deceased. From the evidence of PW.19 and Ex.P.38-Post Mortem Report, the prosecution is successful in proving the homicidal death of the deceased. The injuries found on the inquest report-Ex.P.8 also corroborates with the evidence of PW.19 and Ex.P.38 which corroborates with the evidence of the Investigating Officer. Thereby, the prosecution is successful in proving that the incident has occurred on 31.05.2012.
14. Though the counsel for the appellant contended that the presence of PWs.1 and 8 were doubtful, as they have not intimated the Police and not tried to save the deceased and they witnessed the incident about 20 feet away. As already discussed above, when the accused persons were chasing and brutally assaulting the deceased Suresh and while running they have witnessed the same. The accused also chased this PW.1, PWs.9 and 10. They ran away due to fear by leaving the motorcycle and catching auto rickshaw. Such being the case, there is nothing to disbelieve the evidence of PWs.1 and 8 that they witnessed the evidence. Merely, the witnesses ran away and witnessed the incident little away, that itself is not a ground to reject the entire evidence of PWs.1 and 8 as trustworthy, but their evidence is trustworthy and acceptable one. In this regard, we wants to rely upon a judgment of the Hon’ble Apex Court in the case of State of Karnataka vs. K. Yarappa Reddy reported in 2000 CRI.L.J. 400 wherein, it has been held that, in a murder case, while considering the evidence of eyewitness, the Court should not expect a set of reaction from any eyewitness on seeing an incident like murder. Unless, the reaction demonstrated by any eyewitness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub his reactions as unnatural. In another judgment of the Hon’ble Apex Court in the case of Rammi alias Rameshwar vs. State of M.P reported in 1999 CRI.L.J. 4561 wherein, it has been held that when eyewitness is examined at length, it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant.
But Courts should bear in mind that it is only when discrepancies in the evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.”
15. In view of the ratio laid down by the Hon’ble Apex Court in the above two cases and on perusal of the evidence of PWs.1 and 8 though there is some discrepancy in respect of witnessing the incident with a distance, that itself will not take away the entire testimony of these two eyewitnesses. Though these two eyewitnesses are related witnesses to the deceased, but the fact remains that these two witnesses, the deceased, PWs.9 and 10 altogether went to the house of the accused for questioning the accused for having assaulted PW.13 and Kumara, the son of PW.1, at that time the incident was occurred. Therefore, there is no reason for disbelieving the evidence of PWs.1 and 8 that merely they are related or interested witnesses to the prosecution case. Even in the cross- examination, throughout nothing has been brought by the counsel for the accused to disbelieve their evidence in respect of their presence on the spot and going to the house of accused along with the deceased and at that time, the incident has taken place. Therefore, we hold that the prosecution is successful in proving the case against the accused that accuse Nos.1 to 3 have committed the murder of the deceased Suresh on the said date, time and place as stated by the prosecution.
16. Now coming to the alternative argument addressed by the counsel for the appellant that the incident took place in a spur of the moment without any premeditation and there was no common intention of accused Nos.1 to 3 to commit the murder of the deceased.
On perusal of the evidence of PWs.1 and 8, it is clear that though the mother of accused No.1 came out and opened the door, but immediately the accused Nos.1 to 3 came out and while questioning, accused Nos.2 and 3 immediately went inside and brought three swords and accused Nos.1 took one of the sword and they started assaulting PW.8. Then all of a sudden started running due to fear. Then the accused started chasing them. At that time, PW.1 and 8 started to run away and unable to take their motorcycle. The deceased tried to take his motorcycle but by that time he fell down near drainage then the accused started assaulting with the sword on his head and other parts of the body and on the next day, the motorcycles of the witnesses were taken or seized by the Police. Apart from that, in the cross-examination of PW.1, the counsel for the accused brought that the entire incident has concluded within 10 to 15 minutes, which clearly goes to show that when PWs.1 alongwith 8 and deceased went to the house of the accused, while enquiring the previous incident, the accused 2 and 3 brought three swords and accused No.1 took out one of the sword and all of them started assaulting. Bringing three weapons and assaulting and chasing the deceased and other witnesses to some distance and when the deceased fell near the drainage trench, then accused assaulted Suresh with the sword. PWs.1 and 8 and others ran away from the spot by leaving the motorcycle by taking an autorickshaw, which act of the accused clearly goes to show that the intention of the accused to kill the deceased. Even on perusal of Post Mortem Examination report-Ex.P.38 shows that the deceased was brutally assaulted on the head, forehead which caused deep and cut injuries to Brain after fracturing of the skull bone which resulted the death of the deceased. The photograph- Exs.P.51 to P.55 clearly depicts the force used by the accused on the deceased’s head and forehead, which clearly goes to suggest that the intention of the accused to kill the deceased on the spot. Therefore, the contention of learned counsel for the appellant that the incident took place in a spur of the moment without premeditation cannot be acceptable and therefore, the alternative argument of learned counsel for the appellant that the offence would fall under section 304-Part I and II of IPC that the incident took place without any premeditation cannot be acceptable.
17. Learned counsel for the appellant has also argued that as per the voluntary statement of Exs.p.41 to 43, though these witnesses went near the house of the accused, there was some discussion or altercation in respect of the earlier incident occurred at Sakthi Bakery, but PWs.1 and 8 purposely not stated what transpired between them prior to the incident. Therefore, the statement made by the accused before the Investigating Officer, a portion of the statement which supports the case of accused, which can be relied upon. In support of his arguments, learned counsel relied upon the judgment of the Hon’ble Apex Court in the case of Murli alias Denny vs. State of Rajasthan reported in 1995 Supp (1) SCC 39 and In re Rayappa Asari reported in 1972 CRI.L.J. 1226, Madras High Court. The Hon’ble Apex Court in the case of Murli (supra) has held that confessional FIR under Section 25 of the Indian Evidence Act, 1872 cannot be used for any purpose in favour of the prosecution and against the accused. However, admission in favour of accused can be taken into account to examine whether this case is falls under Exception I to Section 300 of IPC, particularly when there is no evidence disclosing as to how the quarrel ensured and attack took place. When there is no evidence disclosing as to how the quarrel ensued and attack took place, the High Court of Madras also took the statement made by the accused before the Investigating Officer under Section 25 of the Indian Evidence Act, 1872 can be used only regarding the statement in favour of the accused but not against the accused. We have no dispute in respect of the ratio laid down by the Apex Court as well as the High Court of Madras. But here in this case, PWs.1 and 8 have categorically stated that they went to the house of the accused only for enquiring about the earlier incident, at that time accused Nos.2 and 3 went inside the house and brought weapons and all of them took the weapon and started assaulting the complainant party and later killed the deceased. The same was clearly explained by the prosecution from the mouth of the witnesses, but the accused during the defence, nothing has been elicited as to what was the discussion held prior to the incident. From the evidence on record, it is not possible to accept the contention of the learned counsel for the appellant that the offence took place without any premeditation and without any intention to kill the deceased attacking brutally causing many lengthy and deepened injuries on the head of the deceased. The injuries found in the photograph as well as Post Mortem report clearly show the barbaric act of the accused. It is not the case of the accused that the accused caused only one injury on the deceased but, looking to the injuries on the deceased show the barbaric act and force used by the accused while assaulting the deceased.
18. Learned counsel for the appellant also relied upon a Division Bench judgment of this Court in the case of Shivappa Laxman Savadi vs. The State reported in the case of 1992 CRI.L.J. 2845 wherein, it is held that, the court is required to ascertain the overall facts and circumstances of the case, even though there was no defence taken by the accused during the trial in respect of the private defence. In this case also, though the accused has not taken any private defence or explained under Section 313 of Cr.P.C, but in view of our above discussions and under the facts and circumstances of the case, the injuries on the deceased and the evidence of the eyewitnesses clearly established that the accused not acted in a spur of the moment due to fear and took his weapon and assaulted the deceased. It is worth to mention that after a little distance when the deceased fell down, then they assaulted the deceased in a cruel manner.
They ran almost 20 feet and when they were about to take their vehicles, these accused persons were successful in attacking the deceased. Therefore, we find no such circumstances arising for the accused to assault the complainant party due to sudden provocation without premeditation. It is also seen from the evidence that nowhere it is suggested by the counsel that the complainant or their parties have carried any weapon with them while going to the house of the accused. It is also not the case of the accused that the witnesses were brought deadly weapons and try to assault the deceased, therefore the accused persons to protect themselves assaulted the complainant party as self defence to get an exception. Therefore, the decision of this Court relied upon by the appellant counsel is not useful to the case of the accused-appellant.
19. On overall considering the evidence of the prosecution witnesses, we are satisfied that the prosecution is successful in proving the case against the accused beyond all reasonable doubt for the charges leveled against them.
20. We also do not find any illegality or error committed by the Trial Court while appreciating the evidence of the prosecution witnesses for holding the accused guilty for the charges leveled against them. The appeal is devoid of merit and the same is liable to be dismissed. Accordingly, the criminal appeal is dismissed.
The appellants were in judicial custody during trial. Hence, they are entitled for set off under Section 428 of Code of Criminal Procedure.
In view of dismissal of the main appeal, I.A.No.1/2016 does not survive for consideration. Hence, the same is also dismissed.
SD/- JUDGE HA/mv SD/- JUDGE