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.241 OF 2016 BETWEEN:
KUBENDRA @ GUBBI S/O. LATE R. RAJU, AGED ABOUT 26 YEARS, RESIDING AT No.66, MUNIYAPPA ROAD, CHIKKANNA BADAVANE, RAMASWAMY PALYA, MARUTHI SEVA NAGAR, BANGALORE.
(BY SRI BASAVARAJU T.A., ADVOCATE) ... APPELLANT AND:
STATE OF KARNATAKA BY BANASAWADI POLICE STATION, BANGALORE, REPRESENTED BY S.P.P., HIGH COURT OF KARNATAKA, BANGALORE.
... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.) * * * THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 14/15.12.2015 PASSED BY THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, IN S.C. NO.662 OF 2011 CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF THE I.P.C.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.1.2019, COMING ON FOR PRONOUNCEMENT, THIS DAY, K. NATARAJAN J., PRONOUNCED THE FOLLOWING:-
J U D G M E N T The appellant is the sole accused in Sessions Case No.662 of 2011 on the file of the Principal City Civil and Sessions Judge, Bengaluru, wherein the appellant was found guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code (for short, the I.P.C.) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- with default sentence vide judgment dated 14/15.12.2015.
2. We have heard the arguments of the learned counsel for the appellant as well as the learned Additional State Public Prosecutor for the State.
3. Before adverting to the arguments addressed by the learned counsel, it is worth to mention the factual matrix of the prosecution case which is as follows;
Banaswadi Police, Bengaluru, registered a case against the appellant based upon the statement made by the deceased, Ganesh Prasad, alleging that on the day of Ganesha festival of the previous year, the deceased assaulted the accused and a case was registered against him. On account of previous incident, the accused was nourishing enmity against the deceased. On 13.2.2011 at about 10.30 pm., the accused followed the deceased near Sri Bar Building, Kammanahalli Main Road, Banaswadi, Bengaluru, and the accused stabbed the deceased on his chest with a knife and caused injuries. When the deceased tried to escape and ran towards Sri Bar, the accused followed the deceased and again stabbed on his chest with knife. Then, the accused ran away from the spot. Thereafter, the deceased was shifted to the hospital. The Police have recorded his statement. Based upon the statement, the Police have registered a case against the accused. The injured was shifted from Satya Hospital to Jain Hospital for further treatment. On the way to Jain Hospital, he succumbed to the injuries. The accused was arrested on 19.2.2011 and since then, he is in judicial custody. The Police, after investigation, filed charge-sheet against the accused. The trial Court upon receiving the committal records from the Magistrate secured the presence of the accused, framed the charges against the accused under Section 302 of the I.P.C. The accused pleaded not guilty and claim to be tried. Therefore, the accused was put on trial and the prosecution to prove its case in all examined 30 witnesses as PW.1 to PW.30, got marked 39 documents as per Exs.P1 to 39 and got marked material objects as per M.Os.1 to 15. After completion of the trial, the accused was examined under Section 313 of the Code of Criminal Procedure. The case of the accused was of total denial, but not entered into any defence. After hearing the arguments, the trial Court convicted and sentenced the accused, as stated supra.
4. Learned counsel for the appellant strenuously contended that eyewitnesses examined by the prosecution have all turned hostile. The intimation given by the Doctor to the Investigating Officer does not contain the name of assailant and no MLC case-sheet was produced by the prosecution to substantiate its case as regard to the earlier quarrel between the deceased and the accused, as it was already settled by their family members. There was no intention to kill the deceased and the motive projected by the prosecution cannot be believable. The motive for murder was too remote. The evidence of PW.4 in respect of Ex.P5 is not admissible as it does not contain the signature or thumb impression of the deceased. As per the evidence of PW.19, he told the patient was very serious, he wanted to shift him to higher hospital for treatment. In such a situation recording the dying declaration is suspicious in nature. Mere endorsement of the Doctor mentioned as ‘permitted’ does not become a Certificate. PW.26 neither examined the patient, nor treated the injured. Recording of dying declaration at 11:00 p.m. is not mentioned in the F.I.R. or in the inquest. The deceased was treated by PW.19, then what is the necessity for PW.26 to give permission for recording the dying declaration. The evidence of PW.4 and the Investigating Officer-PW.30 are totally contradictory in respect of recording Ex.P5. The Investigating Officer himself conducted inquest which is not permissible as he recorded the dying declaration. The recovery at the instance of the accused was not proved as the witnesses PW.3 and PW.16 turned hostile. There is no corroboration of independent witnesses. The F.S.L. Officer was not examined and there is no evidence in respect of Ex.P15 and 16. The time of death is not proved and the Doctor has not certified the time of death. Therefore, it is contended that the dying declaration is not free from any infirmity. The evidence of the witnesses and Ex.P5-dying declaration cannot be the ground for holding the appellant guilty of the offence. Therefore, he prayed for allowing the appeal and acquitting the appellant.
5. Per contra, the learned Additional Public Prosecutor contended that there is no suggestion made to the witnesses in respect of the injured was not in a fit condition to give statement. The victim was seriously injured and he was shifted to hospital and information was given to the Police and the Police came to the hospital. After obtaining the permission from the Doctor, the statement was recorded. The victim gave statement very short and he was not able to speak much and he was unable to affix his signature as he had sustained injuries to his hands. Therefore, the victim while shifting to higher hospital, died on the way. Ex.P5 is later termed as dying declaration. Based upon the statement of the victim’s brother, a case was registered by the Police. Statement made by the victim was natural, it cannot be suspected in any manner. The recovery of weapon from the accused has been proved by the prosecution through the Investigating Officer. The prosecution is able to prove the motive for commission of the offence by the accused. The accused assaulted the deceased with a knife on the date of the incident and he chased the deceased and again assaulted the deceased in front of the Bar. Merely the eyewitnesses have turned hostile, the statement of the victim, i.e. dying declaration, in which he has categorically stated the assault on him made by the accused. Therefore, he contended the prosecution is successful in proving the case of the accused for having committed the murder of the deceased. Therefore, he has contended that there is no merit in this appeal and prayed for dismissal of the same.
6. On hearing the learned counsel on both side and before going to find out the legality of the sentence passed by the trial Court, it is required to have a cursory look at the evidence of the prosecution witnesses adduced before the trial Court.
6.1 PW.1-Premalatha, sister of the deceased, deposed that prior to the death of her brother, Ganesh Prasad, he was working as Crane Operator at the Shipping Company at Bombay. He used to visit once in 3 months to Bengaluru. 3 months prior to the incident, the accused and his sister came to their house and the accused told that the deceased assaulted him on his forehead and they paid Rs.25000 to him. They enquired with the accused as to for what reason the deceased assaulted him, for that, he has not stated anything. Later, she came to know that because of Naresh, friend of the deceased, the deceased assaulted the accused. After one week, again the accused came to her house, at that time, her mother alone was in the house and she had been to attend the work. When she returned back from work, at about 7:30 p.m., her brother Ganesh Prasad was also in the house and he was weeping as her mother bet him and mother told that the accused and his 4-5 friends damaged the two wheeler vehicle and also the helmet of the deceased. Therefore, the deceased assaulted the accused in a stone on his forehead. Therefore, the accused collected Rs.5000/- from her mother in respect of damage and injury sustained by him. She further deposed that on 13.2.2011 at about 7.30 p.m., her brother went out of the house by taking two wheeler vehicle. At about 11:30 p.m., one person, by name Tilak, who is the friend of the deceased, came to her house with bloodstains on his clothes and on enquiry, he revealed that the accused has assaulted the deceased and the deceased was admitted to Satya Hospital and requested them to come. Then herself, her mother went along with her brother, Jayaprasad, to the hospital to see the deceased, then Jayaprasad informed that the deceased has expired. Dead body of the deceased was taken to Dr. B.R. Ambedkar Medical College and Hospital for autopsy and she also noticed the stab injuries on the chest and all over the body of the deceased. After the Post- Mortem examination, dead body was given to them. Though this witness turned hostile for the prosecution and in the cross-examination made by the Public Prosecutor, she has admitted that Tilak told before herself and her mother that the accused assaulted the deceased on 13.2.2011 at about 10:30 p.m. in front of Sri Bar and Restaurant at Kammanahalli Main Road. This witness being the only sister of the deceased came to know about the incident through friend of the deceased and speaks about the motive, i.e. previous quarrel between the deceased and the accused.
6.2 PW.2-Jayaprasad, who is the brother of the deceased, speaks about the previous incident between the accused and the deceased and has paid Rs.10,000/- to the accused and also stated, the deceased was working at ONGC Company at Bombay and used to visit Bengaluru once or twice in a year. He further deposed that the deceased came to Ganesha festival. On 13.2.2011, when he was at home, a boy, Tilak came and informed that the accused stabbed his brother Ganesh Prasad and the Police have taken his brother to the hospital. Then he went to Jain hospital with Tilak, where he was told his brother was dead. The dead body of the deceased was sent to Satya hospital, as first aid was given by Satya Hospital. He stated that there were two stab wounds on right and left chest which was visible and his forehead was scratched and both hands were scratched. Then he went to Police Station and lodged a complaint as per Ex.P26 and stated due to personal grudge, the accused has committed the murder of the deceased. So far as this witness is concerned, he lodged a complaint, after he came to know about the incident. He also speaks about the previous motive for the offence.
6.3 PW.3-Sundar Raj, who is pancha witness to the seizure of bloodstained clothes which were worn by the accused at the time of incident. He turned hostile. Except admitting his signature in Ex.P2, he denied the seizure of bloodstained clothes in the house of the accused.
6.4 PW.4-M.S. Madaiah, Assistant Sub Inspector of Police, Banaswadi Police Station, deposed that on 13.2.2011, when he was on patrolling duty, he received a phone call from the Police Station. He went to the hospital and recorded the statement of the deceased as per Ex.P5. The evidence of this witness will be discussed little later in the later part of the judgment.
6.5 PW.5-Venkateshappa, another pancha witness to the seizure of knife under Ex.P6. This witness also turned hostile. Nothing has been elicited from the mouth of this witness.
6.6 PW.6-Noorullah Baigh, who is the eyewitness to the incident. He is a pan vendor, having his shop near to Sri Bar and Restaurant. He is said to be witnessed the incident, but he has also turned hostile and not supported the case of the prosecution. He also denied the statement given as per Ex.P8. Public Prosecutor not able to get any information from the mouth of this witness that he came to know about the death of the deceased who died in the hospital.
6.7 PW.7-Munavar Pasha, Head Constable of Banaswadi Police Station, who carried the dead body of the deceased from Satya Hospital to Dr. Ambedkar Medical Hospital and College for autopsy. He is only formal witness and there is no significance in his evidence, since death of deceased is not in dispute.
6.8 PW.8-Tilak, who is the eyewitness and he informed the family members of the deceased, after shifting the injured to the hospital, but this witness also turned hostile and not supported the case of the prosecution. Nothing has been elicited from this witness, except he admitting that he informed the family members regarding admission of the deceased to the hospital.
6.9 PW.9-Suresh, PW.11-Krishnamurthy and PW.12-Arun Kumar are the eyewitnesses to the incident. All three of the witnesses turned hostile and not supported the case of the prosecution and denied the statement made before the Police.
6.10 PW.10-Govindan, who is the father of the deceased, deposed that he came to know that his son is admitted to the hospital, but on visiting the hospital, he found his son was dead. This witness is only a formal witness and he has not spoken about the incident.
6.11 PW.13-Jayaram deposed that on 14.2.2011, he came to know through his friend, Jayaprasad, that Ganesh Prasad is murdered. He went to the hospital and saw the dead body of the deceased, where the Police conducted inquest panchanama as per Ex.P13. Though this witness also turned hostile, the death of the deceased and conducting inquest panchanama over the dead body of the deceased is not disputed by this witness.
6.12 PW.14-Krishna Murthy is also another witness to inquest panchanama. Though this witness turned hostile, conducting inquest panchanama over the dead body of the deceased is not disputed.
6.13 PW.15-Gude Gowda and PW.16-Hombale Gowda are recovery witnesses to the panchanama regarding bloodstained clothes.
6.14 PW.17-Sathish is another eyewitness, who turned hostile and not supported the case of the prosecution.
6.15 PW.18-Chandrashekariah, Sub-Inspector of Police, deposed that on 19.2.2011, on instructions from the Inspector of Police, he along with his staff traced the accused and apprehended him near Uttam Sagar Hotel, Banaswadi Main Road at about 10:00 a.m. and produced the accused before his superior Officer and gave report as per Ex.P19. Except suggestion, nothing is elicited from this witness.
6.16 PW.19-Dr. Shivarudra, who is a Medical Officer working in Satya Hospital, in whose presence the deceased made the statement, when he treated the deceased. He has deposed that on 13.2.2011, he was on night duty, a patient, by name, Ganesh Prasad, was brought to Satya Hospital at 11:30 p.m. for treatment with history of assault. The deceased told that the accused assaulted him with a knife over the right and left chest region, right forearm, left forearm, both right and left hand. He examined the injured and noted the injuries in the Wound Certificate. He has sutured the injuries and he has taken all precautionary steps for saving the life of the injured and the injured was referred to the superior hospital for treatment. He issued the Wound Certificate as per Ex.P4.
6.17 PW.20-Achyuth Bidarahalli, Assistant Engineer, PW.D., has deposed that he prepared the sketch of the spot as per Ex.P20. Except denial, nothing has been stated by this witness.
6.18 PW.21-Kumaraswamy, Police Constable, is a formal witness, who carried the F.I.R. to the Court..
6.19 PW.22-Shivakumar, Head Constable, deposed that after autopsy on the dead body of the deceased, he handed over the dead body of the deceased to the relatives. On instructions from the Inspector of Police, he carried 5 sealed articles along with Post-Mortem report of the deceased from Medical College and handed over the same to Inspector of Police. On 3.3.2011, again he carried 5 sealed articles to the F.S.L.
6.20 PW.23-Murthy, Junior Engineer in B.B.M.P., deposed that on 13.2.2011, there was no disruption of electricity in Kammanahalli area and gave Certificate as per Ex.P22.
6.21 PW.24-Latha Kumari, mother of the deceased, speaks about the previous incident. She deposes that Sathish came to her house and informed regarding admission of her son to the hospital. She went to Satya Hospital. By that time, her son was shifted to Jain Hospital, where he was declared as dead.
6.22 PW.25-Dr. Mahesh, Chief Medical Officer of Dr. B.R. Ambedkar Medical College and Hospital, deposed that on 19.5.2011, the accused was brought to his hospital. He examined the accused and noted two injuries, i.e. old injury healed scar present over the forehead and old healing abrasion marks present over the right index finger and issued Wound Certificate as per Ex.P23.
6.23 PW.26-Dr. Rakeshkumar, who is working as a Physician in Satya Hospital, Bengaluru, has deposed that on 13.2.2011 at 11.30 p.m., when he was in the hospital as in-charge Doctor, the Police requested him to permit them to record the statement of the injured, Ganesh Prasad, before him. The Police recorded the statement of the injured and he permitted the Police to record the statement before him. He identified the requisition of the Investigating Officer as per Ex.P3 and he has stated that, the injured was fit to make statement before the Police. Thereafter, the Police took the statement of the injured as per Ex.P5. He has further stated that he stood near the injured throughout the process of recording of statement of the injured. During cross-examination, it was disputed by the learned counsel for the accused. However, this witness has again stated that the injured was in fit state of mind to give statement, but he was not in a position to sign the statement of his own or affix his left hand thumb impression, due to injuries sustained on his hands.
6.24 P.W.27-Chandru, Mechanic, was examined to prove inquest panchanama as per Ex.P13, has turned hostile to the case of the prosecution. However, there is no dispute that the deceased died on the way to the hospital and later, he was shifted to Dr. Ambedkar Medical Hospital, where the Post-Mortem was also done. There is no much cross-examination of this witness.
6.25 PW.28-Prathibha is the Assistant Engineer, BESCOM, who has certified that, there was no disruption of electricity on the night between twelve midnight during the incident in question. She has given Certificate as per Ex.P24.
6.26 PW.29-Dr. Nagaraj is the Professor and H.O.D. of Forensic Medicine, Bengaluru. While he was working at Dr. B.R. Ambedkar College, Bengaluru, he conducted autopsy on the dead body of the deceased and according to his evidence, he has seen twenty external injuries on the deceased and all the injuries were ante-mortem in nature and the Post-Mortem report issued by him is marked as per Ex.P17. Further, he has deposed that again on 5.3.2011, at the request of the Investigating Officer, he has examined the knife which was sent by the Investigating Officer and has given opinion as per Ex.P25 stating that the injuries on the dead body of the deceased mentioned under Ex.P17 could be caused by MO.1-knife. This witness also identified the clothes of the deceased as per MOs.2 to 5.
6.27 PW.30-Ningappa Sakri is the Investigating Officer, who has filed the charge-sheet against the accused, after completing the investigation.
7. On overall scrutinising of the evidence of the prosecution, it is clear from the records that, the eyewitness relied upon by the prosecution in respect of viewing the incident by PWs.8 and 9, who are friends of the deceased have shifted the injured to Satya Hospital, but both of them turned hostile and has not supported the case of the prosecution. PW.6-Noorullah Baigh, another eyewitness, who was running a pan shop in front of the Sri Bar and Restaurant has also turned hostile. The other eyewitnesses, i.e. PWs.11, 12, 15 and 17 have totally turned hostile. The only witness, who supported the prosecution was PW.1, the sister of the deceased. PW.2 is the elder brother of the deceased, who lodged complaint to the Police as per Ex.P26, after the death of the deceased and PW.10 is the father of the deceased. They speak about the previous incident and assault on the accused by the deceased. It is not in dispute that a case was registered against the deceased in Banaswadi Police Station. On this background, the accused nourished enmity with the deceased and assaulted the deceased. These three witnesses deposes that they came to know about the incident through PWs.8 and 9, who are the friends of the deceased and also eyewitnesses, but these three witnesses are not eyewitnesses, they only speak about the motive and came to know the incident through the friends of the deceased.
8. The prosecution mainly relied upon the statement of the deceased as per Ex.P5 made before PW.4-
M.S. Madaiah, PW.19-Dr. Shivarudra and PW.26- Dr. Rakesh Kumar and the evidence of PW.30-Ningappa Sakri, the Investigating Officer. The PW.4 has recorded the statement of the deceased as per Ex.P5 and later, termed into dying declaration. Therefore, the only evidence available before the prosecution is the sole dying declaration and the person who recorded the statement of the deceased in the presence of the Doctors.
9. As per the evidence of PW.4, the Assistant Sub- Inspector of Police attached to Banaswadi Police Station, stated that on 13.2.2011, he was on patrolling duty, he received phone call from the Police Station that somebody has been assaulted and he has been admitted in Satya Hospital and asked him to go to the hospital and attend him immediately. He went to the hospital at 11:00 pm, and enquired with the Doctor, who was attending the injured. The Doctor told him, the injured has been assaulted with knife. Then, he made a requisition to the Doctor to record the statement. The Doctor gave permission to record the statement of the injured. Then, he asked the name of the injured and the injured told his name as “Ganesh, 24 years old, resident of Chellakere, Bengaluru.” He enquired with the injured as to how he sustained the injuries and injured told him "that at 10.30 p.m., when he was in front of Sri Bar, accused- Kubendra came and assaulted him with knife and caused injury on his chest". The injured also told to prevent the blow, he brought his hands and therefore, he had sustained injuries to his hands and also told that he fell in front of Sri Bar and the accused came there also and assaulted him with the knife on his chest and ran away from that place. The injured also told before him that with the help of his friends, he was admitted to the hospital. He further deposed that the Doctor told him that the condition of the injured was serious and asked him to shift to some other hospital for further treatment. Because of the serious condition of the injured, he was not able to get either signature or thumb impression of the injured to his statement. With the help of the relatives of the injured, he came to know that, earlier the injured had assaulted the accused and also came to know that because of the old enmity, the incident has happened. He also identifies the Memo given to the Doctor seeking permission to record the statement. He has identified the Memo as Ex.P3 and Memo sent by Satya Hospital to the Police Station is marked as per Ex.P4. This witness identifies the statement of the injured as per Ex.P5 and he has stated that he recorded the statement of the injured between 10:45 p.m. and 11 p.m.
10. PW.19-Dr. Shivarudra, Medical Officer attached to Satya Hospital, also corroborates the evidence of PW.4. He has stated that on 13.2.2011, when he was on duty, a patient, by name, Ganesh was brought to the hospital at about 11:30 p.m. for treatment with the history of assault by Kubendra. The patient informed that the accused assaulted him with knife over the right and left chest region, right forearm, left forearm, both right and left hands. He examined the patient and noted the above injuries and he has sutured the injuries. He has taken all precautionary measures to save the life of the deceased and also referred the patient to the superior hospital for treatment and informed the Police by sending the Memo as per Ex.P4.
11. PW.26-Dr. Rakesh Kumar of Satya Hospital also corroborates the evidence of PWs.4 and 19, who has stated that on 13.2.2011 at 11:30 p.m., PW.19 and himself were in-charge Doctors in Satya Hospital. The Police wanted to record the statement of the injured and the Police have recorded the statement before him. He has permitted the Police to record the statement of the injured and he also identified Ex.P3, letter addressed by the Police to the Medical Officer of Satya Hospital. He also identified his seal and signature at the bottom of Ex.P3. He has also categorically stated that the injured was fit to make the statement before the Police and thereafter, the Police took the statement of the injured and he also signed Ex.P5(b) and further, he has stated that he was present throughout the process of recording the statement of the injured. Apart from these three witnesses, PW.30-Police Inspector also stated that he also visited the hospital after getting information. P.W.4 recorded the statement of the injured and the injured was in a fit condition to give statement. The Doctor examined the injured and gave Certificate and he was also present. Thereafter, the injured was shifted to Jain Hospital for further treatment. Injured was in serious condition. On the way to the hospital, the injured died. He also identified the Memo sent by Satya Hospital as per Ex.P4 and the requisition made by the Police as per Ex.P3 and dying declaration of the deceased as per Ex.P5.
12. During the Cross-examination, PW.4 has stated that he only wrote the statement given by Ganesh Prasad in his own handwriting and it was recorded between 11:30 and 11:45 pm. However, there is no endorsement to show Ex.P5 has been written by him. It is argued by the learned counsel for the appellant that as per the evidence of PW.4, he alone went to the hospital, but he has not stated anything about the presence of PW.30-Investigating Officer, whereas he has stated that he was also present at the time of recording the statement, but Ex.P5 does not contain the signature of PW.30. Admittedly, on perusal of Ex.P5, the statement of the deceased, it contained only the signatures of PWs.19, 26 and 4 but not the signature of PW.30. Ex.P5 does not contain the Certificate in respect of the fit condition of state of mind of the injured to give statement. PW.4 also admitted the same. But PW.4 has categorically stated that, he has recorded the statement, after obtaining permission of the duty Doctor and in the presence of PW.26-Dr. Rakesh Kumar. The PW.26- Dr. Rakesh Kumar has categorically stated that he has permitted the Police to record the statement and throughout the process of recording the statement, he was present and also affixed his signature and in the cross- examination, PW.26 also says that the injured was not in a position to sign or affix the thumb impression due to the injuries on the arms. Though suggestion was made that the injured was not in a position to give statement before him and he was not present, but this witness denied the same. Apart from PW.26, PW.19 another Doctor has deposed that he was also present and he has treated the injured by giving first aid and by suturing the injuries. The injured told before him that the accused-Kubendra assaulted him with knife. He also issued the Wound Certificate as per Ex.P4. Though in Ex.P4, it was mentioned as history of assault, but not mentioned the name of the accused person. Ex.P3 was signed by PW.26 by giving permission to the Police to record the statement in his presence, which goes to show that the injured was brought by his friends to Satya hospital, where PWs.19 and 26 are the duty Doctors. Ex.P4-intimation given by the Doctor to the Police Station, after the injured was taken to the hospital. These three documents Exs.P3, 4 and 5 corroborate the evidence of PWs.4, 19 and 26. Even if we exclude the evidence of the Investigating Officer, who also came to the hospital, he also stated that he was present, but there is no reason for PWs.19 and 26 to falsely implicate the accused in the crime. They are duty Doctors, the injured was brought to the hospital with history of assault. Immediately, they gave intimation to the Police as per Ex.P4 and immediately, PW.4 came to the hospital and gave a requisition to the Doctor as per Ex.P3 for recording the statement. PW.26 gave permission and in front of this Doctor, the statement-Ex.P5 of the deceased was recorded. All the three witnesses have categorically stated the injured was not in a position to affix his signature or thumb impression due to injuries sustained by him on his arms and the deceased gave statement before them. The photographs of the dead body of the deceased also go to show that there was lot of injuries sustained by the injured on his hand. Ex.P5 was recorded by the Police contains only details of the crime running to 8 lines. It looks like a natural statement recorded by the Police without any manipulation or mentioning the details of the incident. It precisely mentioned by the injured that he was in serious condition. Due to the earlier enmity, the incident between himself and the accused, as the deceased has assaulted the accused, therefore on 13.2.2011 at 10:30 p.m. near Kammanahalli Bar, the accused picked up quarrel with him and stabbed the deceased. When he tried to escape, he was running towards Sri Bar, in front of the Bar, he fell down and the accused again assaulted with knife and ran away. It is also stated by him that he was not able to speak much and unable to sign. On plain reading of Ex.P5, there is no reason to disbelieve the statement recorded by PW.4 in presence of PWs.19 and 26. On the other hand, we found the evidence of these witnesses are trustworthy, believable and acceptable one.
13. Learned counsel for the appellant strenuously argued that before recording the dying declaration of the deceased, the Doctor has not certified regarding the fit state of mind of the injured for giving statement and he was in so serious condition, it is not possible to give any statement before PW.4. Therefore, Ex.P5 shall not be relied upon. In support of his argument, he relied upon the judgment of the Hon’ble Apex Court in the case of STATE OF U.P v. SHISHUPAL SINGH reported in AIR 1994 SC 129, wherein it has held that, “in a murder case, the dying declaration is sufficiency for basing conviction. The dying declaration recorded by the Magistrate neither signed by deceased nor contained date and time of its recording. No explanation given that the deceased was not in a position to sign dying declaration. The case resting on such dying declaration and the order of acquittal of accused in such a case was proper.”
14. Further, the learned counsel relied upon the judgment of the Hon’ble Supreme Court in the case of PAPARAMBAKA ROSAMMA AND ANOTHERS v. STATE OF A.P. reported AIR 1999 SC 3455, wherein it has held that “recording of dying declaration, Doctor at end of certificate only stated that ‘patient is conscious while recording the statement’. Absence of certification that injured was in fit state of mind at time of making declaration. The dying declaration is unacceptable. Opinion by Magistrate recording the dying declaration that the injured was in fit state of mind at the time of making declaration cannot be relied upon”.
15. On careful perusal of the judgment and ratio laid down in the said case and the case on hand, though the signature or thumb impression of the injured was not obtained on Ex.P5, but PWs.4, 19 and 26 categorically explained that the injured had sustained injuries to his both hands and unable to sign or affix the thumb impression. Even on perusal of the Wound Certificate and the Post-Mortem report clearly go to show that there are several injuries that almost 20 injuries sustained by the deceased. Therefore, the witnesses explained, what was the reason for not obtaining the signature of the deceased on the dying declaration.
16. Therefore, the judgment relied upon by the learned counsel for the appellant in Shishupal Singh, stated supra, will not come to the help of the accused. So far as this case is concerned, PWs.19 and 26 have categorically stated that both of them treated the deceased, especially PW.19 stitched the wound and PW.26 permitted the Police to record the statement and he has categorically stated the injured was in fit state of mind to give statement and he has permitted the Police to record the statement in their presence. Himself and PW.19 were present throughout recording the statement by the Police. The evidence of these two witnesses, who were responsible duty Doctors, categorically stated and they are the fit persons to say, whether the injured was in a condition to give statement or not and they have given the evidence that the injured was in fit state of mind to give statement, but the injured was not able to sign on the document due to injuries sustained on his hand. PW.26 categorically stated in Ex.P3 and in evidence that he has permitted the Police to record the statement in his presence. Therefore, we are of the opinion, there is nothing to disbelieve the evidence of PWs.19 and 26 and the evidence of PW.4-A.S.I, who received a phone call from the Police Station, who went to the hospital and recorded the statement of injured, at that time, absolutely the relatives of the injured was not at all present. PW.2, the brother, was also not present while recording the statement. It is pertinent to note that PWs.8 and 9, friends of the deceased and the accused, after admitting the injured to the hospital, they went to inform the parents of the deceased. Accordingly, before they reached the hospital, the Police already present there and recorded the statement and from the evidence of PW.30, it reveals, after giving first aid to the injured and the deceased was referred to the superior hospital for treatment and they took the injured to Jain Hospital, on the way, the deceased succumbed to the injuries. Therefore, there is no informative or any defect in the dying declaration made by the injured before PWs.4, 19 and 26 as per Ex.P5 and there is no reason for the Police and the Doctors to implicate the accused falsely in this case by mentioning the name of the accused. Therefore, the evidence of PWs.4, 19 and 26 coupled Exs.P3, 4 and 5, the prosecution has established and the deceased gave statement that the accused assaulted him and caused injuries and Ex.P5 is the trust worthy document and the same is accepted in favour of the prosecution to prove the charges against the accused.
17. Though the learned counsel for the appellant argued that as per inquest panchanama, it was mentioned the Inspector of Police last seen the injured prior to the death, but name of the Inspector of Police was not mentioned, whether the inquest was conducted by the same PW.30-Investigating Officer or some other Inspector which was not mentioned and the deceased had seen him. But the same was not questioned by the learned counsel for the accused in the Cross-examination of PW.30.
18. PW.30-Investigating Officer, who shifted the injured to Jain Hospital and he was the last person to see the deceased alive. On perusal of the evidence of this witness, the statement of the injured later termed as dying declaration-Ex.P5 clearly reveals that the accused has committed the offence. It is clear from the evidence of the sister, brother and family members of the deceased that the deceased had assaulted the accused and a case was registered against the deceased. In this regard, the accused also approached the parents of the deceased and received some amount towards medical expenditure and the case was pending, which was not closed. The deceased has categorically stated regarding the previous incident and on the date of incident, he tried to escape from the clutches of the accused, while he was running, the deceased fell down in front of Sri Bar, where the accused again came and stabbed the deceased. Therefore, there is nothing to disbelieve the statement made by PWs.4, 19 and 26. With regard to homicidal death of the deceased was not disputed by the defence. As per the evidence of PW.2, the brother of the deceased, both PWs.19 and 26 informed regarding the injuries sustained by the injured while admitting to the hospital. Later, the deceased was shifted to Jain Hospital and succumbed to injuries on the way. PW.29, who conducted autopsy on the dead body of the deceased, found almost twenty injuries including stab injuries on the stomach and all other parts of the body of the deceased. All the injuries are ante-mortem in nature and death was due to shock and hemorrhage as a result of multiple wounds sustained by the deceased. It is clearly stated that the death was homicidal in nature as per Ex.P17. There is no cross- examination in respect of the same. Therefore, the prosecution is successful in proving that the deceased met with homicidal death. PW.3, who is a seizure pancha witness for having recovered the bloodstained clothes of the accused, turned hostile. PW.16 is another pancha witness to the seizure of the clothes, who also turned hostile. However, PW.30-Investigating Officer has deposed that after arresting the accused, he recorded the voluntary statement of the accused as per Ex.P32 and the accused has stated that he will produce the bloodstained clothes as well as the weapon and he produced the bloodstained clothes, i.e. shirt, pant and baniyan which are marked as M.Os.12 to 14 respectively. Though M.Os.12 to 14 have been sent to F.S.L. for chemical analysis, but the Investigating Officer, for the reason best known to him, he has not secured the F.S.L. report and has not produced the same before the Court. Prosecutor also not chosen to collect the F.S.L. report during the trial. Likewise, as per the evidence of PW.30, the accused also took out and produced the knife which was used for the commission of the offence and seized under panchanama Ex.P6. PW.29, the Doctor, who conducted autopsy and gave opinion with regard to knife as per Ex.P25 that the knife which was examined by him would cause the injuries mentioned in Ex.P17-Post-Mortem report. Except denial, nothing has been elicited from the learned counsel for the accused. PWs.29 and 30 have identified MO.1- knife before the Court, which was seized at the instance of the accused, thereby the prosecution able to prove the weapon used by the accused for the commission of the offence and assaulting the deceased. Though the pancha witnesses turned hostile and not supported the case of the prosecution, the evidence of the Investigating Officer cannot be thrown out or disbelieved.
19. Therefore, after considering the entire material on record, we are of the view that the prosecution is successful in proving that the accused was the perpetrator of the crime.
20. Learned counsel for the appellant also argued that the offence took place in a spur of moment, there is no premeditation or intention to kill the deceased. Therefore, the offence would fall under Section 304 (Part-I or II) of the I.P.C. and not under Section 302 of the I.P.C. The submission of the learned counsel for the accused cannot be acceptable for the reason that it is not the case that only one blow was given with the knife, but the inquest panchanama, Post-Mortem report, photographs of the deceased go to show that there are many number of stab injuries over the chest, stomach and on the hands of the deceased. There are almost twenty injuries found on the dead body of the deceased. There are injuries even on the back side of the deceased, which clearly goes to show the motive or intention of the accused to commit the murder of the deceased, which is also seen from the statement of the deceased that the accused first attacked near Sri Bar and Restaurant and when he tried to escape, he fell down in front of the Bar, but the accused again stabbed the deceased with knife. Such an act clearly goes to show that there is intention of the accused to commit the murder of the deceased. Therefore, it will not fall under the category of Section 304 (Part-I or II) of the I.P.C.
21. For the reasons stated above, we hold that the prosecution is successful in proving that the appellant/accused committed the murder of the deceased on the said date, time and place stated by the prosecution. Therefore, there is no merit in the appeal filed by the appellant. The appeal is liable to be dismissed. Accordingly, the appeal is dismissed.
SD/- JUDGE SD/- JUDGE kvk