IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE B.A.PATIL AND THE HON’BLE MR. JUSTICE R.DEVDAS CRIMINAL APPEAL NO.438/2015 BETWEEN RENU KUMAR S/O.LAKSHMANA, AGED ABOUT 25 YEARS, RESIDING AT NO.49, MEDAR STREET, CHAMALAPURA STREET, BEHIND SIDDAPPAJI TEMPLE, NANJANGUD, PIN CODE:571301.
(BY SRI KAPIL DIXIT, ADVOCATE) AND STATE OF KARNATAKA BY NANJANGUD TOWN POLICE STATION, MYSORE, PIN CODE:570 001 ... APPELLANT ... RESPONDENT (BY SRI VIJAY KUMAR MAJAGE, ADDL. SPP) THIS CRL.A. IS FILED U/S 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:7.9.2013, PASSED BY THE III ADDL. SESSIONS JUDGE, MYSORE, IN S.C.NO.4/2012 CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCES P/U/S 302 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.5,000/- AND IN DEFAULT OF PAYMENT OF FINE, THE ACCUSED SHALL UNDERGO S.I. FOR FURTHER PERIOD OF 1 YEAR, FOR THE OFFENCE P/U/S 302 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
J U D G M E N T The appellant being aggrieved by the judgment of conviction and order of sentence passed by the III Addl. Sessions Judge, Mysore in S.C.No.4/2012 dated 07.09.2013 has preferred this appeal, whereunder the accused-appellant was found guilty of the offence punishable under Section 302 of Indian Penal Code (hereinafter referred to as ‘IPC’ for short) and he was convicted and sentenced to undergo imprisonment for life and also to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for a period of one year. Challenging the legality and correctness of the said judgment, the appellant is before this Court.
2. We have heard Sri Kapil Dixit, learned counsel appearing for the appellant and Sri Vijay Kumar Majage, learned Addl. SPP appearing for the respondent-State.
3. Before considering the case, we feel it just and proper to put forth the facts of the case. The genesis of the case of the prosecution is that the deceased Manjunath was elder brother of the accused and he used to harass his mother demanding amount as he was addicted to bad vices. It is further alleged that the deceased was driving autorickshaw on rental basis. The mother of the deceased and accused had invested some amount in chit fund. The deceased Manjunath had taken the chit amount in order to have a house on mortgage and in this regard, the accused quarrelled with brother-deceased Manjunath. In furtherance of his intention and vengeance, on 14.09.2011 at about 11.00 a.m., the accused took the deceased in an autorickshaw under the guise of getting a gas cylinder and took him near Hullahally Nala and attacked the deceased with a knife and thereafter dragged him out of the autorickshaw, stabbed him and assaulted with cement brick and thereby caused the death. It is the further case of the prosecution that the complainant PW1-Rachaiah, Police Constable, who was on rounds, on seeing the same rushed to the spot and immediately apprehended the accused and at the same time PW13-Prabhulingaradhya, Head Constable, also came to the spot by noticing the assault and they took the accused to the Police Station produced him before Investigating Officer and filed the complaint as per Ex.P1. A case was registered in Crime No.145/2011 for the offence punishable under Sections 302 of IPC. After investigation, the Investigating Officer filed the charge sheet against the accused. The learned Magistrate took the cognizance and after following the procedure laid down under Section 207 of Cr.P.C. and after supplying the copies of the charge sheet material, as the said case was triable by the Court of the Sessions, the same was committed to the Sessions Court. The Sessions Court took cognizance and secured the presence of the accused, who was in judicial custody and after hearing the learned Special Public Prosecutor and the learned Counsel for the accused, charge was framed, read over and explained to the accused. The accused pleaded not guilty and as he intended to be tried, the trial was fixed.
4. In order to prove the case of the prosecution, the prosecution got examined 27 witnesses and got marked 28 documents and 11 material objects. After conclusion of the evidence of the prosecution, the statement of the accused came to be recorded under Section 313 Cr.P.C. by putting incriminating material as against him. He has denied all the incriminating material evidence against him. The accused did not choose to lead any defence evidence and has also not got marked any documents. After hearing the learned counsels appearing for the parties, the Trial Court found that the prosecution has proved the guilt of the accused beyond all reasonable doubt and convicted him. Challenging the legality and correctness of the said judgment, the accused-appellant is before this Court.
5. The main grounds urged by the learned counsel for the accused-appellant are that the prosecution has not established the guilt of the accused beyond all reasonable doubt. Even then the court below has erroneously and illegally convicted the accused-appellant. The learned Counsel for the appellant has further submitted that the testimony of the PWs.1 and 13, who are said to be eye witnesses to the alleged incident is not trustworthy and acceptable, as there are so many contradictions and omissions in the said evidence and glaring inconsistencies in their statements. He has further submitted that by ignoring all those aspects, the Trial Court has wrongly convicted the accused-appellant. He also submitted that the place of the incident is densely populated and no other persons came forward except PWs.1 and 13, who are working in the Police Department. Without corroboration of any independent evidence, the evidence of PWs.1 and 13 is not acceptable. He further submitted that the evidence of these two witnesses clearly goes to show that the accused had already assaulted the deceased in the autorickshaw and they were at a distance of 20-30 ft. away from the incident and by the time they came near the spot, the deceased had already breathed his last. Under such circumstances, their presence at the place of incident is doubtful. The said aspect has not been properly considered and appreciated by the Trial Court. He further submitted that the material witnesses who are related to both accused and deceased have not supported the case of the prosecution. Under such circumstances, the Court below ought to have acquitted the accused- appellant. On these grounds, the learned Counsel has prayed to allow the appeal and set aside the impugned judgment of conviction and order of sentence.
6. Per contra, the learned Addl. SPP appearing for the respondent-State vehemently argued and submitted that PWs.1 and 13 are eye witnesses to the alleged incident. The accused has been apprehended on the spot and immediately thereafter they have filed the complaint as per Ex.P1. The presence of the accused on the spot is not denied and even M.O.1- knife and M.O.2-cement brick are recovered from the accused from the spot. He further submitted that Forensic Science Laboratory report got produced clearly indicates that the clothes which were recovered at the instance of the accused were stained with blood and even the grouping of the blood noticed was that of the deceased. The accused has not explained under what circumstances the clothes of the accused were stained with blood. The evidence of PWs.1 and 13 and the other evidence corroborated with each other. When there are eye witnesses to the alleged incident and no material thereto to discard their evidence, then under such circumstances, the Court below has rightly appreciated the evidence of PWs.1 and 13 and has rightly come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. The learned Addl. SPP further submitted that the accused- appellant has not made out any good grounds so as to interfere with the judgment of conviction and order of the sentence. The appeal is devoid of merits and it is liable to be dismissed and therefore, he prays to dismiss the appeal.
7. We have carefully and cautiously gone through the submissions made by the learned counsels for the parties. We have also perused and re-appreciated the evidence placed before trial Court. We have also secured the lower court records and gone through the same.
8. The prosecution in order to establish its case got examined 27 witnesses. PW1 is the Police Constable who is also an eye witness to the alleged incident. He has deposed that he was deputed to collect confidential information and when he was proceeding near the place of incident, he noticed an autorickshaw and he also saw the accused assaulting the deceased. Immediately, he went to the place at about 11.00 a.m. and made a hue and cry and told not to assault him and by the time he went near, the accused had already assaulted the deceased Manjunath with knife and brick and the deceased had breathed his last. Thereafter, he apprehended the accused and brought him to the Police Station and filed the complaint as per Ex.P1 and that PW1 and the Investigating Officer went to the spot and have drawn the spot mahazar as per Ex.P2 and he has also testified the same. He further deposed that the shirts and the pants belonging to him which were stained with blood at the time when he tried to apprehend the accused have also been seized as per Ex.P3. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness to show that he was not an eye witness to the alleged incident.
9. PW2 is an auto driver who has shifted the body of the deceased to the hospital as per the instruction of the Police. PW3 is the spot mahazar pancha to Exs.P2 and P3. He has not supported the case of the prosecution and he has been treated as hostile. PW4 is a LIC agent and he is also inquest mahazar pancha to Ex.P6. He has also not supported the case of the prosecution. PW5 is the father of the accused and deceased. He has also not supported the case of the prosecution and he has been treated as hostile. PW6 is the neighbour of the accused and deceased and PW7 is the mother of the accused and deceased and PW8 is the wife of the deceased. PW9 is the sister of the deceased and PW10 is also an eye-witness to the alleged incident. PW 11 is a person whose house has been taken on mortgage by the deceased. PW12 is a witness who is doing chit fund business and who has given the chit amount to the accused. All these witnesses have not supported the case of the prosecution and they have been treated as hostile. Even during the course of cross-examination, nothing has been elicited so as to substantiate the case of the prosecution.
10. PW13 is also an eye witness to the alleged incident and he is the Head Constable working in Nanjangud Police Station. He has deposed that on 14.09.2011 at about 11.00 a.m. he was on rounds and when he came near the place of incident, PW1 Rachaiah called him and he was at a distance of 20 ft. from the place of incident and immediately he went to the spot and there was an autorickshaw and the driver was also there and one passenger was sitting behind and the person who was driving the autorickshaw was stabbing with knife and thereafter he assaulted on his head and other parts of the body with knife and thereafter he dragged the said person out of the autorickshaw and assaulted him with cement brick and immediately they apprehended him and PW1 and others took the accused to the Police Station. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness. PW14 is the witness who speaks that the deceased was running an autorickshaw. PW15 speaks with regard to the accused working in his office and for having issued Ex.P15 the service records. PW16 is the Doctor who treated the accused and has also conducted the autopsy over the body of the deceased and has issued the post-mortem report as per Ex.P16 and he has also given his opinion as per Ex.P17 after examining M.Os.1-knife and 2-cement brick. PW17 is the spot and seizure mahazar pancha to Exs.P2 and P3. He has also not supported the case of the prosecution and he has been treated as hostile. PW18 is the Police Constable who carried the body to the hospital for conducting the autopsy and also produced the clothes of the deceased before the Investigating Officer by giving a report as per Ex.P3.
11. PWs.19 and 20 are the neighbours of the house of the accused and deceased. They have also not supported the case of the prosecution and they have been treated as hostile. PW21 is a witness who speaks with regard to the selling of the knife M.O.1 to the accused. He has also not supported the case of the prosecution. PW22 is the Police constable who produced the clothes of the accused as well as the deceased before the Investigating Officer and the sample blood and the same were seized. PW23 is the Police constable who carried the FIR and submitted to the jurisdictional Magistrate. PW.24 is the photographer who took photographs of the deceased as per Exs.P23 and 24. PW25 is the inquest mahazar pancha to M.Os.6 to 9-the clothes of the deceased and the same were seized as per Ex.P6. PW26 is the CPI who investigated the case and filed the charge sheet against the accused. PW27 is the PSI who registered the case and partly investigated the case.
12. As could be seen from the above said evidence, all the material witnesses who are related to both the accused and the deceased have not supported the case of the prosecution and they have been treated as hostile. The only evidence which is available before this Court is that of the official witnesses and PWs.1 and 13. In order to establish the fact that the death of the deceased is a homicidal death, the prosecution got examined PW16-Doctor who conducted post mortem over the body of the deceased. In his evidence, the Doctor has deposed that he has conducted autopsy over the body of the deceased on 14.09.2011 and when he examined the body, he found lacerated wound over the left eye-
brow extending from medial end to lateral 4 x 2 x ½ inches in size, lacerated wound over left side of fore- head, incised wound above 2nd wound, lacerated wound over lateral end of right eye, incised wound over front of neck, penetrating wound over left chest, incised wound over left axillia, incised wound over left fore arm, incised wound over hypothenar eminence of left palmer aspect, incised wound over right fore arm lower third of right flexar aspect, incised wound over right middle finger dorsal aspect, distel phylynx, penetrating wound over abdomen above umbilicus, penetrating wound over left lion region, penetrating wound over left hypochrondic region and lacerated wound over the right pinna of ear.
13. The Doctor has also given his opinion as per Ex.P17 stating that the injuries found on the body of the deceased can be caused by knife and bricks. During the course of cross-examination, though he has admitted the fact that Ex.P17 has been issued he has not stated that M.O.1 and M.O.2 were received by him in a packet with sealed condition. The seizure of the said articles at the place of incident has not been disputed during the course of the cross- examination.
14. In this behalf, the evidence of these witnesses cannot be discarded. Even during the course of cross-examination, the fact that the deceased died a homicidal death is not disputed. Even the inquest pancha PW.25 has also deposed about the injuries suffered by the deceased and he has also supported the case of the prosecution as per Ex.P6; this evidence corroborates with the evidence of PW16, the Doctor who conducted the autopsy over the body of the deceased. By going through the above said evidence, it clearly goes to show that the deceased died a homicidal death.
15. The only question which remains for consideration of this Court on re-appreciation of the evidence is that who is the cause for the death of the deceased?
16. In order to substantiate the said fact, the prosecution got examined P.Ws.1, 10 and 13.
Though PW10 is an eye witness to the alleged incident, he has not supported the case of the prosecution and he has been treated as hostile. The only evidence which remains for consideration is that of PWs.1 and 13. As discussed above, PWs.1 and 13 have categorically deposed before the Court below that when they were on rounds, they noticed the autorickshaw and a person assaulting a passenger sitting on the hind portion of the autorickshaw. Immediately, they went and apprehended the said person and by the time they went near, the injured person had breathed his last and thereafter they took the accused to the Police Station and filed the complaint as per Ex.P1.
17. In this behalf, the evidence which has been produced by the prosecution to the effect that it is the accused who assaulted the deceased has been proved by the prosecution beyond all reasonable doubt. This evidence also corroborates with the evidence of Doctor PW16 and the injuries found over the body of the deceased.
18. Be that as it may. If we go through the seizure of the clothes of the deceased, accused and the Forensic Science Laboratory report as per Ex.P27, it clearly goes to show that the stains which were found on the clothes of the accused were of ‘A’ blood group and the blood group of the deceased was also ‘A’ group and in that behalf also, there is corroboration. Accused has not explained as to under what circumstances his clothes were stained with blood of deceased. In the absence of such material, it can be inferred that while assaulting the deceased, stains were found on his clothes and same were seized by the Police.
19. Though during the course of argument the learned Counsel for the accused-appellant submitted that the case diary and other material has not been produced to show that PWs.1 and 13 were on duty, it is well settled principles of law that even if an ordinary person who is on the street notices that a cognizable offence is committed, then under such circumstances he can apprehend the accused and produce him before the Police. Even if they were not on duty and if they apprehend and produce the accused before the Police, then under such circumstances, merely because the case diary has not been produced, their evidence cannot be discarded.
20. When there is evidence of eye witnesses to show that it is the accused alone who has committed the alleged offence, then the evidence of PWs.1 and 13 cannot be discarded. Even as could be seen from Ex.P1-the complaint, the alleged offence has taken place at about 11.00 a.m. in a broad daylight and the accused has been apprehended from the spot and was taken to the Police Station and immediately PW.1 has filed the complaint. M.Os.1 to 3, 5 to 11 were stained with human blood and the grouping of the blood was ‘A’ group and even M.O.5 the clothes belonging to the complainant have disclosed that the stains which were found on the clothes were of ‘A’ group blood and that fact clearly goes to show that immediately the accused has been apprehended by PW1 and taken to the Police Station.
21. Even as could be seen from the records, the accused has not come out with any explanation under what circumstances his clothes were stained with ‘A’ group blood. In this behalf, he has not whispered anything either in the statement recorded under 313 Cr.P.C. or during the course of cross- examination. Under such circumstances, the presence of the accused at the place of incident can be strongly believed. Even the evidence of PW1 is also closely corroborated with the evidence of PW13. There is nothing to discard their evidence. Though independent witnesses have not supported the case of the prosecution, there is nothing brought on record as to why PWs.1 and 13 have falsely implicated the accused in this case without there being any animosity and when it is not the case of the accused that he has been falsely implicated due to some animosity between PWs.1 and 13.
22. All the above said evidence clearly establish that the accused being enraged by the harassment meted out by the deceased to his mother and regularly teasing and insulting him, he has taken a drastic step, by taking the deceased in his autorickshaw and stabbing him with knife and assaulting him on his head with the cement brick thereby causing his death.
23. Hence, on re-appreciation of the evidence which has been produced before the Court below, we are of the considered opinion that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
24. We have carefully and cautiously gone through the judgment of the trial Court. The Trial Court has properly appreciated the evidence and records and has come to a right conclusion. There is no perversity or illegality found in the judgment passed by the Trial Court. The appellant has not made out any good grounds so as to interfere with the judgment of conviction and the order of sentence.
25. The appeal being devoid of merits is liable to be dismissed and accordingly the same is dismissed.
SD/- JUDGE SD/- JUDGE JT/-