IN THE HIGH COURT OF KARNATAKA AT BENGALURU R ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.876 OF 2013 C/W CRIMINAL APPEAL NO.477 OF 2014 IN CRIMINAL APPEAL NO.876 OF 2013 BETWEEN:
1. SRI. IQBAL SON OF ABUBAKKAR AGED ABOUT 26 YEARS RESIDING NEAR KANJALAKODI MASJID ADDURU VILLAGE MANGALURU.
2. SRI. ARIF SON OF MOHAMMAD MAISTRY AGED ABOUT 24 YEARS RESIDING NEAR KANJALAKODI MASJID ADDURU VILLAGE MANGALURU. ... APPELLANTS (BY SRI. VISHWAJITH SHETTY S, ADVOCATE) AND:
STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU. ... RESPONDENT (BY SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 27.08.2013 PASSED BY THE PRINCIPAL SESSIONS JUDGE, MANGALURU IN SESSIONS CASE No66 OF 2010 – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 326 READ WITH SECTION 34 OF INDIAN PENAL CODE. THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR THREE YEARS AND PAY FINE OF RS.25,000/- EACH, IN DEFAULT TO PAY FINE, THEY SHALL UNDERGO FURTHER RIGOROUS IMPRISONMENT FOR NINE MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 326 READ WITH SECTION 34 OF INDIAN PENAL CODE.
IN CRIMINAL APPEAL NO.477 OF 2014 BETWEEN:
STATE OF KARNATAKA SUB-INSPECTOR OF POLICE BAJPET POLICE STATION BAJPE, MANGALURU-574 142. ... APPELLANT (BY SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER) AND:
1. IQBAL AGED ABOUT 27 YEARS SON OF ABUBAKAR RESIDING NEAR KANJALAKODI MASJID ADDURU VILLAGE MANGALURU-575001.
2. ARIF AGED ABOUT 25 YEARS SON OF MOHAMMAD MAISTRY RESIDING NEAR KANJALAKODI MASJID ADDURU VILLAGE MANGALURU-575001. ... RESPONDENTS (BY SRI. VISHWAJITH SHETTY S, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 27.08.2013 PASSED BY THE PRINCIPAL SESSIONS JUDGE, MANGALURU IN SESSIONS CASE No.66/2010- ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 307 READ WITH SECTION 34 OF INDIAN PENAL CODE AND ETC., THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12.09.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT These two appeals are filed by the accused challenging the judgment of conviction for the offence punishable under Section 326 read with Section 34 of Indian Penal Code and the State challenging the judgment of acquittal for the offence punishable under Section 307 read with Section 34 of Indian Penal Code and to convict and sentence the accused for the offence punishable under Section 307 read with Section 34 of Indian Penal Code.
2. Brief facts of the case:
It is the case of the prosecution that the complaint was given by one Durga Prasad on 18.08.2009 alleging that an incident has taken place at about 11 p.m. and when he was in the premises of ‘Navadurga Yuvaka Mandala’ at Nooyi in Adduru Village, one Shafiq came and informed that a person is lying by the side of the road leading to B.C. Road with injuries sustained in an accident. Immediately, himself and others rushed there and found a person with bleeding injuries. The injured told that his name as Dombayya Poojary and two persons came in a motorcycle, dashed the vehicle against him and caused injuries. The complainant secured a vehicle through one Musthafa and shifted the injured to City Hospital, Mangaluru. Based on his complaint, the case was registered. On the instructions of the Doctor, shirt and banian of the injured were removed and found that injured has sustained stab injuries on the chest and thigh. The police, based on the complaint registered the case under Section 307 read with Section 34 of Indian Penal Code. The Investigating Officers have conducted the investigation, recorded the statement of witnesses and after completion of the investigation, filed the charge sheet for the offence punishable under Section 307 read with Section 34 of Indian Penal Code.
After filing of the charge sheet, the case was registered as C.C.No.1753 of 2010 and thereafter, case was committed to the Sessions Court and the same is numbered as S.C.No.66 of 2010 on the file of the Principal Sessions Judge, Dakshina Kannada, Mangaluru. The accused persons were secured and they did not plead guilty and claimed for trial.
3. The prosecution, in order to prove their case examined P.Ws.1 to 15 and got marked the documents at Exs.P1 to 16 and also got marked M.Os.1 to 4 and closed their evidence. The Court below recorded the statement of the accused persons under Section 313 of the Code of Criminal Procedure and the accused did not choose to lead any evidence. The Court below, after hearing the arguments, instead of convicting the accused for the offence punishable under Section 307 read with Section 34 of Indian Penal Code, convicted accused Nos.1 and 2 for the offence punishable under Section 326 read with Section 34 of Indian Penal Code and acquitted accused No.3. Hence, the present appeals are filed by both the accused as well as the State respectively.
4. The accused in Criminal Appeal No.876 of 2013 would contend that the Court below has committed an error in convicting the accused persons. From a reading of the complaint as well as the evidence of P.W.1, it is clear that injured P.W.2 has not disclosed the name of the assailants, who had assaulted him. From the evidence on record, it is clear that accused persons were known to injured. The accused persons were visiting the shop of the injured and according to the injured, they were not in good terms. If at all the accused persons had assaulted the injured, he would have definitely identified them and informed P.W.1, who is also from the same locality. Therefore, it is very clear that because of the ill-will, the injured person has falsely implicated the appellants.
5. It is also contended that the complainant P.W.1 as well as the other eye witness P.W.3, Mohammed Shafique have not supported the case of the prosecution. The conviction is solely based on the evidence of P.W.2, injured person. Having regard to the admitted enmity between the parties and also having regard to the fact that the injured had not initially mentioned the name of the assailants, the Court below ought not to have convicted the appellants for the alleged offences. It is further contended that the reading of cross examination of P.W.2, it is clear that there are lot of omission and commission in the said evidence. The evidence of P.W.2 is contrary to the complaint averments. Under the circumstances, the Court below has committed an error in convicting the appellants solely on the basis of the evidence of P.W.2.
6. The State in Criminal Appeal No.477 of 2014 would contend that the evidence of P.Ws.1 to 15, particularly the evidence of P.W.2 is specific that with an intention to take away the life of the injured, the accused persons have inflicted injury with deadly weapon. In spite of evidence of P.Ws.1, 3 to 5, 7 and 9 and also independent official witnesses P.Ws.11, 12, 13 to 16, the trial Judge failed to appreciate their evidence. The Court below has committed an error in convicting the respondents/accused persons for the offence punishable under Section 326 of Indian Penal Code which is contrary to law. Hence, it requires interference of this Court.
7. The learned counsel appearing for the accused in his oral argument vehemently contended that the witnesses P.Ws.1, 3, 4 and 5 have turned hostile to the case of the prosecution and the only sole evidence is P.W.2. However, P.W.2 did not identify the accused at the first instance and also not disclose the name of the accused and complainant also, did not mention the name of the accused persons. When such being the case, the Court below ought not to have convicted the accused. The statement of the injured was recorded on 26.08.2009 and incident has taken place on 18.08.2009 and accused were arrested on 28.08.2009. Till then, the name of the accused persons were not mentioned and hence, it is a clear case that due to enmity between P.W.2 and the accused, these accused persons have been falsely implicated in the case. Hence, it requires interference of this Court and the judgment of conviction is liable to be set aside.
8. Learned counsel appearing for the accused relied upon the judgment reported in LAWS (SC) 2008 4 125 in the case of ANIL KUMAR ALIAS PINTU -VS- State of Bihar with regard to Section 9 of the Evidence Act, 1872 identifying the accused in the Court.
9. Per contra, learned High Court Government Pleader appearing for the State in Criminal Appeal No.477 of 2014 would contend that the very conviction for the offence punishable under Section 326 of Indian Penal Code is erroneous since, the evidence of the complainant is specific that the accused persons with an intention to take away the life of the injured, assaulted with deadly weapon, knife. It is the specific case of the learned High Court Government Pleader for the State that accused No.1 inflicted injuries on the vital part of the injured with knife and the evidence of the Doctor, who has been examined before the Court as P.W.7 is clear that the injured was not having conscious when he was brought to hospital and he was not in a position to speak and the nature of injuries mentioned in the wound certificate discloses that, with an intention to take away the life, an attack was made. It is a clear case of premeditation by the accused persons, who came with a deadly weapon in the motorcycle and assaulted the victim. P.W.1 in the complaint has specifically mentioned that, he rushed to the spot on information and injured disclosed that he was assaulted by two persons, who came in a motorcycle and he can identify the assailants. In the wound certificate also, it is mentioned that, assault was made by known persons. Hence, the contention of the learned counsel for the accused that accused persons have not been identified by the victim cannot be accepted.
10. It is also her contention that the other contention of the learned counsel for the accused that the Court below, on the sole evidence of P.W.2 convicted the accused persons cannot be accepted for the reason that the witness for recovery of knife has not supported the case of the prosecution. It is her contention that when there is direct evidence available on record, the Court below has rightly appreciated the evidence that accused Nos.1 and 2 have only inflicted injuries. However, the Court below failed to consider the very intention of the accused persons that they inflicted the injuries with knife on the vital part of the injured to take away his life. Hence, committed an error invoking Section 326 of Indian Penal Code instead of Section 307 of Indian Penal Code. Hence, it requires interference at the hands of this Court.
11. Having heard the arguments of learned counsel appearing for the respective parties in these appeals and also on considering the material available on record, the points that arise for our consideration are:
(i) Whether the Court below has committed an error in convicting the accused Nos.1 and 2 for the offence punishable under Section 326 of Indian Penal Code instead of Section 307 read with Section 34 of Indian Penal Code?
(ii) What order?
Point Nos.(i) and (ii):
12. The sum and substance of the case of the prosecution is that when the injured P.W.2 was proceeding alone, accused Nos.1 and 2 came in a motorcycle and accused No.1 first assaulted the injured with his hand and thereafter, assaulted with knife. As a result of which, he sustained grievous injuries and he was shifted to hospital wherein, he regained conscious after six days of the incident. Thereafter, the statement of the injured was recorded and the accused persons were apprehended and recoveries were made at the instance of the accused. After completion of the investigation, charge sheet was filed.
13. Now let us examine the evidence available on record. The prosecution has relied upon the evidence of P.Ws.1 to 15. P.W.1 is the complainant, who went to the spot on information and shifted the injured to the hospital. He gave the complaint in terms of Ex.P1. It is also his evidence that police have conducted mahazar in terms of Ex.P2 and states that he does not know the contents of Ex.P3. He was treated partly hostile and learned Public Prosecutor examined him and defence also cross-examined him.
14. P.W.2 is the injured. In his evidence, he states that when he was proceeding alone, two persons came in the motorcycle and the person, who was sitting behind the rider assaulted on his face with his hand. He identifies him as accused No.1. He categorically states that accused No.2 was riding the motorcycle and identifies him before the Court. As a result of the assault made by accused No.1 to his face, he fell down from the motorcycle. Thereafter, the accused No.1 alighting from the motorcycle inflicted injuries on his chest, neck and also his private part with the knife. The witness also showed the nature of injuries before the Court below removing the shirt and the same was recorded. He claims that when P.W.1 came along with others with screaming sound, he revealed that accused persons assaulted with knife. But he claims that while shifting him to hospital, he lost the conscious and when he regained the conscious, he was at Mangaluru City Hospital. He was in Intensive Care Unit till 26.08.2009 and thereafter, police came and recorded his statement. The accused persons were arrested on 28.08.2009 and they were shown to him at the Hospital and he identified both of them. The police have recorded further statement. He identifies M.Os.1 and 2 and so also knife as M.O.3. It is also his evidence that accused No.1 was eve teasing the girl student of Sahara High School and his shop situate near the said school and he advised both the accused persons in that regard. On 17.08.2009, the accused No.1 came to his shop and purchased cigarette and told that he would pay the amount on the next day. When he came next day, he demanded for money. At that time he replied that he had paid the amount yesterday itself and abused him stating that he will teach a lesson and hence, assaulted him. He was inpatient for a period of 30 days and has spent more than Rs.2 lakhs.
In the cross examination, it is elicited that surrounding his shop, 90% of the Muslim people are residing and there was no communal clashes. But he admits that in Kaikamba, due to communal clash, a person was murdered. It is suggested that since he was telling Muslim girls to remove their burka whenever they come to his tailoring shop and he was giving trouble to them, hence, complaint was given against him and the same was denied. He admits that P.W.1 and others came to the spot after the accused persons left the spot. But he told the complainant that he was assaulted with knife and also mentioned the name of the assailants. He admits that, before the Doctor, he did not mention about the injuries and also the name of the assailants. But he claims that on 26.08.2009, he mentioned the name of the assailants since he was not having conscious for a period of six days. He states that for the first time, he saw M.O.3, knife in the hands of accused No.1 and with the said knife, he inflicted injuries thrice. It is suggested that, he was having ill-will against Muslim people and hence, a false case is filed against them and the same was denied. In his further evidence he states that on the date of the incident, there were street lights at the spot and hence, he identified the accused and there were three street lights at the spot. He also admits that Durga Prasad, Shafique and Chandrahas are his neighbors and they all accompanied him when he was shifted to hospital and he mentioned that accused persons have assaulted him.
15. The other witness is P.W.3. He did not support the case of the prosecution. But he states that P.W.2 has sustained the injuries. He is treated as hostile and cross- examined.
16. P.W.4 also states that, he went to the spot and found the injured at the spot and thereafter, he was shifted to hospital. He does not know the contents of Ex.P2, but identifies his signature in Ex.P2 and he was treated as hostile and cross-examined by learned Public Prosecutor.
17. P.W.5 in his evidence states that he does not know the assault made against P.W.2.
In the cross examination by learned Public prosecutor, it is suggested that he made the statement before the Police in terms of Ex.P6 and the same was denied.
18. The other spot mahazar witness is P.W.6. He also identifies his signature, but claims that the same was taken in the police station. He was treated as hostile and cross-examined.
19. P.W.7 is the Doctor, who treated the injured at 9.35 p.m. He states that complainant brought him to the hospital and he found five injuries on the injured, which are grievous in nature. After giving first aid, he sent him to surgery section and he issued the wound certificate in terms of Ex.P7. He has also given opinion in terms of Ex.P8 and identifies his signature on the same.
In the cross examination, he states that he enquired the injured, but he was not in a position to speak and the person, who brought him has informed about the assault. He admits that in Ex.P7, he did not mention that he was not in a position to speak and also he cannot state when he regained the conscious. He admits, before regaining conscious, operation cannot be conducted. It is elicited that, injured had sustained incised wound measuring 3 centimeters deep which has been mentioned in Ex.P7 and there was no any fractures to the bone. It is elicited that, when he examined the knife, its measurement was 8½ centimeters length and 1.2 centimeters breadth. He admits that in Ex.P7 he has mentioned the size of the injuries and he cannot state that those injuries could have been caused through the knife itself.
20. P.W.8 is the police witness, who recorded the statement of complainant in terms of Ex.P1.
In the cross examination, it is suggested that he did not record the statement of P.W.1 and the same was denied. However, he admits that, he did not enquire the complainant as to how the incident has taken place.
21. The other witness is P.W.9, the wife of the injured. In her statement, she states that she was not taken to hospital along with her husband, since she cannot see her husband, injured in that position. It is also her evidence that blood stained shirt and pant was seized in terms of Ex.P9 and identifies the same as M.Os.1 and 2.
In the cross examination, it is elicited that the contents of the mahazar was not explained to her. It is elicited that when the police came to hospital, her husband was not having conscious.
22. P.W.10 is the other independent witness in respect of Ex.P9 and he has turned hostile and cross- examined by learned Public Prosecutor.
In the cross examination, it is elicited that he was having acquaintance with the accused.
23. The other recovery witness is P.W.11 in respect of knife. He did not support the case of the prosecution. But admits the signature available in Ex.P3. He was treated as hostile and cross examined by learned Public Prosecutor.
In the cross examination, he admits that on 28.08.2009, when the police called him to the police station, at that time, accused Nos.1 and 2 were present in the police station. It is suggested that they have given their voluntary statement and the same was denied. It is suggested that in terms of the voluntary statement, the accused led him and other panch witness and also the police near Nooyi, which situate at B.C. Road and accused led all of them and produced the knife and the same was denied.
24. P.W.12 is the Scientific Officer of RFSL. In his evidence, he states that seized articles were sent to examination and found the blood stains on the clothes and also the jeans pant and he gave the report in terms of Ex.P10. But he did not find sufficient blood stains on the knife and hence, could not able to identify the blood group. But identified the blood group in respect of articles ‘A’ and ‘B’ as ‘O’ group and gave the report in terms of Ex.P11.
In the cross examination, learned counsel for the accused elicited that normally 30 to 40 people would have ‘O’ group blood and cannot state the age of the blood which they have subjected for examination.
25. P.W.13 is the Officer, who registered the FIR based on the statement of P.W.1 and sent the FIR to Court.
26. P.W.14 is the Investigating Officer, who took further investigation from P.W.13 and went to the hospital and he could not record the statement of the injured, since he was not in a position to give statement. But he also conducted spot mahazar in terms of Ex.P2. The wife of the injured produced the clothes and the same were seized under mahazar Ex.P9. It is also his evidence that, he went to hospital on 26.08.2009 and recorded the statement of the injured and deputed his staff to apprehend the accused persons. The accused persons were apprehended on 28.08.2009 and he recorded the voluntary statement of the accused. The accused No.1, in terms of his voluntary statement Ex.P16 led the panch witness and also the police officials and produced the knife and the same was seized in terms of mahazar Ex.P3. It is also his evidence that after apprehending accused Nos.1 and 2, took them to the hospital and injured identified both of them and recorded further statement of the injured. He also states that he has obtained the FSL report and also identifies M.O.3 and so also M.Os.1 and 2.
In the cross examination, he admits that, in Adduru, large number of Muslim people are residing and communal clashes have taken place during his term. It is suggested that one Nagaraja Shetty was the MLA by that time and he denies the same and states that Ramanath Rai was the MLA, who belongs to congress party. He admits that accused persons are residents of Adduru.
27. The other witness is P.W.15, who took up further investigation from P.W.14 and released accused No.3 and after completion of investigation, he filed the charge sheet.
28. Having considered both oral and documentary evidence and also the contentions of learned High Court Government Pleader for the State as well as learned counsel for the accused, this Court has to re-appreciate the evidence available on record. On perusal of the complaint, which is marked as Ex.P1, no doubt, the name of the assailants has not been mentioned by the complainant, but it is mentioned that the injured told him that the accused persons, who came in the motorcycle assaulted him and he can identify, if he sees those persons. He also noticed the injuries on the injured and based on the complaint, without any delay, the case has been registered.
29. It is pertinent to note that the evidence of P.W.2 is clear that accused Nos.1 and 2, who came in the motorcycle assaulted him. It is also his evidence that these accused persons were having ill-will against him since he advised both of them not to eve tease the girls, who were going to school. The accused No.1 also one day came to his shop and took cigarette but, he did not pay the amount and told that he would pay the amount on the next day. When he came on the next day, he demanded the money but he told that he has paid the amount in the previous day itself, but did not pay the amount. At that time, he abused that he will teach a lesson to him. The motive for committing the crime is that, the injured had advised the accused not to eve tease the girls.
30. On perusal of the wound certificate which is marked as Ex.P7, it discloses that injured was taken to hospital by P.W.1, who is none other than the complainant at 9.35 p.m. and the incident has taken place at 8.30 p.m. It is pertinent to note that it is mentioned as assault at 8.30 p.m. by known person at Nooyi.
31. This Court has to examine the evidence of the Doctor, who has been examined as P.W.7. who has categorically stated that injured was brought to hospital by P.W.1 and he examined him and the injured was not in a position to speak and the injury sustained by him are grievous in nature. He also issued wound certificate in terms of Ex.P7. There were five injuries on the face, left and right side of the chest and also below the stomach. In the cross examination, learned counsel for the accused itself elicited that the injured was not in a position to speak and the person, who brought him gave the details. However, he admits that he did not mention in the wound certificate that he was not in a position to speak. He also cannot say when he regained the conscious. It is pertinent to note that in the chief evidence, he states that he gave only first aid and thereafter, he referred the patient to surgery section and hence, Court also cannot expect on what date he regained conscious.
32. It is the specific evidence of P.W.2 that the injured re-gained conscious only after six days and his statement was recorded on 26.08.2009 and based on his statement, accused Nos.1 and 2 were apprehended on 28.08.2009. It is important to note that the police based on the voluntary statement of accused No.1 in terms of Ex.P16, weapon which was used for committing the offence was recovered at his instance. No doubt, P.W.11, who is the recovery witness has turned hostile, but he claims that the signature available in Ex.P3 belongs to him and the same was taken in the police station. In the cross-examination, a specific question was put to him that accused Nos.1 and 2 were there in the police station when he was called to police station and he admits the very presence of accused Nos.1 and 2 in the police station but, denies leading of panch witness and the police and producing of knife by the accused.
33. It is also pertinent to note that merely because the recovery witness has turned hostile, the Court cannot ignore the evidence of the Investigating Officer, who was not having any enmity against the accused persons. In this regard, we would like to quote the judgment reported in 2017 (2) SCC (Cri) 673 with reference to Para Nos.448 to 452 which reads as under:
“448. While the prosecution has been able to prove the recoveries made at the behest of the accused, the defence counsel repeatedly argued in favour of discarding the recoveries made, on the ground that no independent witnesses were examined while effecting such recoveries and preparing seizure memos.
449. The above contention of the defence counsel urges one to look into the specifics of Section 27 of the Evidence Act. As a matter of fact, need of examining independent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by ensuring transparency and credibility in the investigation of a criminal case. In the present case, PW-80 SI Pratibha Sharma has deposed in her cross- examination that no independent person had agreed to become a witness and in the light of such a statement, there is no reason for the courts to doubt the version of the police and the recoveries made.
450. When recovery is made pursuant to the statement of the accused, seizure memo prepared by the Investigating Officer need not mandatorily be attested by independent witnesses. In State Govt. of NCT of Delhi v. Sunil, it was held that non- attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles’ list consequent upon the statement of the accused. It was further held that there was no requirement, either under Section 27 of the Evidence Act or under Section 161 Cr.P.C. to obtain signature of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.
451. In the landmark case of Pulukuri Kottaya v. King Emperor, the Privy Council has laid down the relevance of information received from the accused for the purpose of Section 27 of the Evidence Act. Relevant extracts from the judgment are as under:
“Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.”
The test laid down in Pulukuri Kotayya case was reiterated in several subsequent judgments of this Court including State (NCT of Delhi) v. Navjot Sandhu.
452. In the light of above discussion, it is held that recoveries made pursuant to disclosure statement of the accused are duly proved by the prosecution and there is no substantial reason to discard the same. Recovery of articles of PW-1 and also that of victim at the instance of the accused is a strong incriminating evidence against accused, especially when no plausible explanation is forthcoming from the accused. Further, as discussed infra, the scientific examination of the articles recovered completely place them in line with the chain of events described by the prosecution.”
34. Learned counsel appearing for the accused has also relied upon the judgment reported in LAWS (SC) 2008 4 125 in the case of ANIL KUMAR ALIAS PINTU –VS-
STATE OF BIHAR with regard to identification of the accused in the Court when the accused is not known to the witness and identification of the accused for the first time in the Court should be corroborated by previous identification in the test identification parade. This judgment is not applicable to the case on hand since, this Court has made it clear that P.W.2, the injured has made the statement before P.W.1 that he can identify the accused persons, if he sees them and thereafter, it is the evidence of the Investigating Officer that after apprehending accused Nos.1 and 2, based on the statement of P.W.2, both of them were taken to the hospital and the injured identified both accused Nos.1 and 2 in the hospital itself and not that he identified the accused for the first time in the Court. Hence, the principles laid down in the judgment is not applicable to the case on hand.
35. It is to be noted that the Court below has appreciated the evidence available on record, particularly the evidence of P.W.2. The report given by FSL in terms of Ex.P10 is clear that the stained clothes of the injured contains ‘O’ group blood. But the blood stains on the knife was not sufficient to come to a conclusion to which blood group the same belongs to and he gave the report in terms of Ex.P11.
36. It is important to note that when the evidence of the injured P.W.2 is specific that accused No.1 himself inflicted injuries with knife, the evidence of FSL would not gain much importance. If the case rests upon the circumstantial evidence, then the report of the FSL plays a pivotal role in appreciating the involvement of the accused. The evidence of P.W.2 is clear and clinching that accused Nos.1 and 2 themselves inflicted injuries. No doubt, at the first instance, the names of the assailants have not been mentioned, but it is clear from the evidence of P.W.1 that the injured had made the statement that he can identify the accused persons, if he sees them. It is also important to note that injured P.W.2 had sustained grievous injuries to his face, left and right side of the chest and below the stomach and also on vital part of the body, including the kidney and his private part. It is evident that the injured lost his conscious while taking him to the hospital and regained conscious later and the same is supported by the evidence of the Doctor.
37. It is pertinent to note that the learned counsel for the accused himself has elicited in the cross examination that the depth of the injuries on the injured by knife is 3 centimeters depth and the injuries are grievous in nature. Hence, the Court below ought to have appreciated the fact that with deadly weapon like knife, the injuries are inflicted on the injured on the face, stomach and also to the private part of the injured. The gravity of the injury has not been appreciated by the Trial Court. If injury is inflicted to the left side of the chest below the point, it would have been fatal. But it is clear that the accused have inflicted injuries to his face, left and right side of the chest and below the stomach.
38. It is also important to note that accused persons went in a motorcycle with deadly weapon like knife with premeditation and with an intention to take way the life of the injured inflicted the injuries. The main contention of the learned counsel for the accused that accused No.2 did not share any common intention to take away the life cannot be accepted, since both of the accused persons have went with the weapon, however accused No.1 has inflicted injury. But taking the accused No.1 in the motorcycle by accused No.2 and facilitating accused No.1 to inflict the injuries that too on vital part of the body of injured is nothing but sharing of common intention and it cannot be contended that accused No.2 did not share any common intention to take away the life of the injured.
39. It is also important to note that, as rightly pointed out by the learned High Court Government Pleader appearing for the State, the Court below did not appreciate the evidence available on record and so also the nature of injuries sustained by the injured and he was unconscious for a period of six days and he was subjected to surgery and he was in the hospital from the date of the incident till 13th September, 2009 for a period of 25 days. The Court below has also erred in considering the gravity of offence, nature of the injuries sustained by the injured and so also the fact that the accused persons with a premeditation coming to the spot with knife to inflict the injuries with an intention to take away the life of the injured. Taking into consideration the nature of the injuries sustained, it is nothing but an attempt made to take away the life of the injured. Therefore, the Trial Court ought to have convicted the accused for the offence punishable under Section 307 read with Section 34 of Indian Penal Code and convicting the accused for the offence punishable under Section 326 read with Section 34 of Indian Penal Code is an error committed by the Court below, when the accused went with deadly weapon and inflicted injuries. Hence, it is a fit case to modify the judgment of conviction for the offence punishable under Section 307 read with Section 34 of Indian Penal Code and the conviction for the offence punishable under Section 326 read with Section 34 of Indian Penal Code needs to be modified and set aside.
40. In view of the above factual aspects, we are of the opinion that the appeal filed by the State is liable to be allowed and the appeal filed by the accused is liable to be dismissed, since the sole evidence of the injured and the medical evidence is specific and consistent regarding the nature of injuries. The intention of committing the murder has to be gathered with the circumstances, the injuries and the weapon used for committing the offence and taking into account the injuries also, the Court can invoke Section 307 of Indian Penal Code. He has received the medical aid immediately when he was taken to the hospital otherwise, it would have been fatal since, three inches depth incised wound were found on him. Hence, the very contention of the learned counsel for the accused that the Court below has committed an error in relying upon the sole evidence of P.W.2 cannot be accepted. The Court below has taken note of the evidence of P.W.2 and also the medical evidence of P.W.7, the Doctor. No doubt, the other witnesses have turned hostile, they are not the eye witnesses. They went to the spot only after hearing screaming sound and their evidence is not material and is only circumstantial with regard to shifting of the injured to the hospital immediately after the incident. Hence, there are no merits in the appeal filed by the accused.
41. Though this Court has come to the conclusion that the prosecution has made out the case for an offence punishable under Section 307 read with Section 34 of Indian Penal Code, the Court has to take note of the fact that there was no prior enmity and the ill-will has developed for the trivial matter when P.W.2 injured had advised not to eve tease the girl students of the school. Hence, it is appropriate to take note of the lenience, while imposing the sentence. But having considered the nature of injuries sustained by the injured, P.W.2, which are grievous in nature and he has spent more than Rs.2 lakhs for his treatment, it would be proper to impose appropriate fine which would meet the ends of justice, in view of the object behind under Sections 357 and 357(A) of Code of Criminal Procedure. Hence, keeping in view the object of imposing of fine and sentence in law for awarding the sentence, appropriate fine is imposed in order to compensate the same.
42. In view of the discussions made above, we pass the following:
ORDER (i) The appeal filed by the accused persons in Criminal Appeal No.876 of 2013 is dismissed. The appeal filed by the State in Criminal Appeal No.477 of 2014 is allowed.
(ii) The conviction of the Trial Court for the offence punishable under Section 326 read with Section 34 of Indian Penal Code is set aside. The accused Nos.1 and 2 are convicted for the offence punishable under Section 307 read with Section 34 of Indian Penal Code.
(iii) The accused Nos.1 and 2 are sentenced to undergo rigorous imprisonment for a period of three years.
(iv) The accused Nos.1 and 2 are directed to pay a fine amount of Rs.1,50,000/- each. In default of payment of fine, they shall undergo further rigorous imprisonment for a period of one year.
(v) Out of the fine amount, Rs.2,75,000/- is payable to the injured, P.W.2 and the remaining amount of Rs.25,000/- shall vest with the State.
(vi) Needless to state that the accused Nos.1 and 2 are entitled for the set off under Section 428 of Code of Criminal Procedure for the period of sentence already undergone by them.
Sd/- Sd/-
JUDGE JUDGE ST