IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 07TH DAY OF DECEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.519 OF 2012 BETWEEN:
SRI T.M.NAGESHA S/O. SRI MADAPPA AGED ABOUT 29 YEARS R/O.NO.7, C/O.PRASANNA KUMAR BUILDING SAI NAGARA, NEAR NERALURU BUS STAND NERALURU POST, ATTIBELE HOBLI ANEKAL TALUK BENGALURU URBAN DISTRICT (BY SRI HASHMATH PASHA, ADVOCATE) AND:
STATE BY PARAPPANA AGRAHARA POLICE (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP) … APPELLANT …RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 13.4.2012 & 17.4.2012 IN SC.NO.429 OF 2009 PASSED BY THE PRINCIPAL CITY CIVIL & SESSIONS JUDGE, BENGALURU CONVICTING THE APPELLANT-ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. APPELLANT-ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR LIFE AND TO PAY A FINE OF RS.20,000/-, IN DEFAULT OF PAYMENT OF FINE AMOUNT, HE HAS TO FURTHER UNDERGO SIMPLE IMPRISONMENT FOR SIX MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. APPELLANT PRAYS THAT HE MAY BE ACQUITTED.
***** THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is directed against the judgment and order of conviction and sentence dated 13/17.4.2012 passed by the Principal City Civil and Sessions Judge at Bengaluru in SC.No.429 of 2009 whereunder the appellant (hereinafter referred to as the ‘accused’) is convicted for the offence punishable under Section 302 of IPC and is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine amount, to further undergo simple imprisonment for six months.
2. Case of the prosecution is that deceased Savitha had married the accused about five years prior to the incident. In the matrimonial relationship, she had given birth to a son by name Goutham who was aged about 3½ years at the time of incident. After the marriage, the accused having come to know that the deceased had earlier married with one Kumar, deserted the deceased and started living separately. He contracted a second marriage with another lady by name Mangala and started living with her at Neralur Village, Attibele Hobli, Bengaluru South Taluk. The deceased started residing with her parents. About six months prior to the incident, she came to Bengaluru and took a rented house at Chinnappa Building, 1st Cross, Channakeshavanagar, Bengaluru. She was residing therein along with her brother (PW.1) who was working in a Private Firm and her sister (PW.12) who was working as a Sales Executive in Total Mall, Bengaluru. On 23.11.2008 being a Sunday, the deceased was all alone in the house. Her sister (PW.12) had gone to Total Mall. Her brother PW.1 had gone out around 12.00 noon to purchase groceries. At that time, the accused is stated to have come to the house of the deceased, picked up quarrel with her and assaulted her with a knife on her face, neck, chest and other parts of the body.
3. PW1 returned home at about 1.00 p.m. He noticed the accused getting down the staircase. When he went upstairs, he saw the deceased lying in a pool of blood. PWs-20 and 21, police constables, who were in the vicinity, having come to know the crime, came to the house of the deceased. They shifted the deceased to Victoria Hospital in an ambulance. On the way, the accused succumbed to the injuries.
4. Based on the complaint of PW-1 the Police Sub Inspector of Parappana Agrahara police station (PW-23) registered a case in Crime No.323 of 2008 against the accused under Section 302 of IPC. On the next day, accused was arrested. Based on his voluntary statement, the weapon used for the commission of the offence and the blood-stained clothes of the accused were recovered from the house of the accused at Anekal. On obtaining the FSL report and on completing investigation, he laid the charge sheet against the accused for the offence punishable under Section 302 of IPC.
5. Accused denied the charges and claimed trial.
6. In order to prove its case, the prosecution examined 24 witnesses as PWs-1 to 24 and produced in evidence 41 documents as Exs.P-1 to P-41, and material objects at M.Os.1 to 9. Accused took up the defence of total denial and did not choose to enter into any specific defence. On hearing the learned counsels and considering the material on record, by the impugned judgment, the trial court convicted the accused and sentenced him to undergo imprisonment as above.
7. Feeling aggrieved by the impugned judgment, the appellant-accused has preferred this appeal.
8. We have heard the learned counsel for the appellant and the learned Additional Spl. Public Prosecutor.
9. Mr. Hashmath Pasha, learned counsel appearing for the accused, submits that the trial court has committed a serious error in convicting the accused. The prosecution has utterly failed to prove the offence alleged against the accused. The circumstances relied on by the prosecution are not established with cogent and convincing evidence. The evidence of PW-1 is fraught with inconsistencies and improbabilities. His presence at the spot is doubtful. The evidence adduced in proof of the dying declaration attributed to the deceased cannot be believed. There is no clear evidence to show that the deceased was in a fit condition to give her statement. The multiple injuries sustained by her suggest that she died on the spot. The delay in lodging the complaint indicates that after deliberation and manipulation, the accused has been implicated and thus he pleads for acquittal of the accused.
10. Learned Additional Spl. Public Prosecutor, however, has argued in support of the impugned judgment. He submits that the circumstances relied on by the prosecution are conclusively proved. The evidence of PWs-1, 20 and 23 regarding the dying declaration does not suffer from any infirmities. These witnesses have not only spoken about the physical and mental condition of the deceased, but have also deposed about the contents of the dying declaration which squarely implicates the accused. Added to that, the prosecution has proved the recovery of the weapon and the blood-stained clothes of the accused which directly link the accused to the offence charged against him. The medical evidence and FSL report corroborate the testimony of the above witnesses, thereby establishing the guilt of the accused beyond all reasonable doubt. The impugned judgment does not suffer from any error or infirmity warranting interference of this court and hence he prays for dismissal of the appeal.
11. We have considered the submissions and have examined the records.
12. PW-1 is the elder brother of the deceased. He has stated in his evidence that the deceased was married to the accused about five years prior to the incident and through him, she had begotten a son who was then aged about 3½ years. After the marriage, the accused, having come to know that the deceased had previously married with one Kumar, he deserted her and started living on his own. He entered into a marriage with one Mangala and started residing in Neraluru village on Chandapur-Hosur road. About six months earlier to the incident, the appellant started residing at Channakeshavanagar. He and his sister were also residing in the said house. He specifically deposed that the accused was frequently coming to the said house and used to quarrel with the deceased.
13. With regard to the incident, PW-1 deposed that on 23.11.2008, his sister Naveenakumari (PW-12) had left home around 10-30 a.m. for her work. At about 11.30/12.00 noon, he had gone to the main road to bring groceries. The deceased was alone in the house. After about half an hour, when he returned home, as he was climbing the stairs to the first floor, he saw the accused coming out of the house and he was looking panicky. On seeing PW-1, he ran away. Though he (PW-1) wanted to stop and talk to the accused, he did not stop. PW-1 went upstairs and found the door bolted from outside. He opened the door and when he entered inside, he found the deceased fallen in a pool of blood. She had suffered injuries on her neck, stomach, left palm and her legs. He further deposed that the deceased was conscious. He asked her as to what had happened. The deceased told him that the accused-Nagesh stabbed her and asked PW.1 to look after her son carefully. After some time, two policemen came there and shifted the deceased to Victoria Hospital. He further deposed that before shifting his sister to the hospital, he lodged a complaint with the police as per Ex.P-1. The said complaint is in his handwriting and he identified his signature thereon.
14. In the cross-examination, PW-1 has stood by his chief-examination with regard to the inter se relationship between the deceased and the accused, and the factum of the previous marriage of the deceased with one Kumar. He reiterated in the cross-examination that on account of this fact, accused deserted the deceased and was staying separately, however, he was frequently visiting her. It is elicited that there was no galata between his sister, Savitha and the accused-Nagesh. The market to which he had gone was at a distance of about half a kilometer from the house. He further answered that when he came from the market, the door was just closed and it was not latched from outside. It is elicited that the owner of the building was residing in the ground floor. He further answered that he also accompanied the deceased to Victoria Hospital. The police took his sister inside the hospital and for about half an hour, they did not tell him anything. Thereafter, the doctor informed him that his sister expired while she was on the way to the hospital. He further answered that within 2-3 hours after the incident, his sister expired.
15. PW-2 is the medical officer posted as casualty medical officer at Victoria Hospital on 23.11.2008. According to this witness, on that day at 3.00 p.m., PWs-
20 and 21 brought the deceased to the hospital and on examination, he found that she had already died and accordingly he declared her as brought dead and issued a memo as per Ex.P-2.
16. PW-3 is the Assistant Engineer who prepared the sketch of the scene of offence vide Exs.P-3 and P-4.
17. PW-4 is the police constable who was deputed to apprehend the accused. According to him, he along with PW-23, apprehended the accused at Majestic bus stand at 3.00 p.m. on 24.11.2008 and he was brought to the police station.
18. PW-5 is the owner of the building wherein the deceased was residing as tenant. Though this witness has admitted that the deceased was living on the first floor of the building as tenant, he has denied having any knowledge of the incident and therefore, he has been treated as hostile.
19. PW-6 is the Panch witness to the spot mahazar- Ex.P-7. PW-8 is the Panch witness to the seizure of the knife and blood-stained clothes at the instance of the accused. Both these witnesses have been treated as hostile and even in the cross-examination, they failed to stand by the prosecution case.
20. PW-9 is the Medical Officer at Victoria Hospital who conducted post mortem and issued the post mortem report vide Ex.P-11. She has also examined the weapon, namely M.O.6 and has given her opinion that injury nos.1, 2, 8, 9, 11, 12, 13, 14, 15, 16 and 21 and stab injuries namely, injury nos.4, 5, 7, 10, 17, 18 and 19 noted in the post mortem report are likely to have been caused by the weapon, M.O.6. According to this witness, deceased had sustained as many as 27 injuries which she has narrated in her chief examination as under:-
1) V-shaped incised wound present over right side of face situated 2 cm in front of right angle of mandible with vertical limb measuring 2 cm x 0.5 cm x 0.5 cm. and the horizontal limb measuring 1 cm x 0.5 cm x 0.2 cm.
2) Oblique incised wound present just below left angle of mouth measuring 1 cm x 1 cm x bone deep 3) Horizontal stab wound over right side back of neck situated 2 cm below hairline measuring 1 cm x 1 cm x 6 cm along the muscle plane. The medial end being sharp and blunt lateral end.
4) Vertical stab wound present over front of lower part of neck measuring 4 cm x 1.5 cm 5 cm along the muscle plane situated 1 cm from midline and 2 cm above medial end of right clavicle and both ends being sharp.
5) Vertical stab wound present over front of right side of lower part of neck situated 1 cm lateral to injury no.4 measuring 1.5 x 1 x 2 cm along muscle plane. Both the ends are sharp.
6) Linear abrasion over middle of upper part of chest (suprasternal knotch) measuring 3 cm x 0.5 cm. It is vertically placed.
7) Horizontal stab wound present over left supra clavicular region measuring 1.5 cm x 0.5 cm x 2 cm along the muscle plane situated 1 cm above midpoint of left clavicle. Both the ends are sharp.
8) Horizontal incised wound present over top of left shoulder measuring 2 cm x 1 cm x muscle deep.
9) Vertical incised wound present over outer aspect of left shoulder measuring 2 cm x 1 cm x muscle deep.
10) Perforating stab wound is present over the back of upper part of left forearm measuring 2 cm x 1 cm situated 4 cm below the elbow. The wound exits out over the front of the forearm where it measures 2.5 cm x 1 cm. The wound is directed forewards, downwards and inwards. Margins are clean cut at the entry and irregular at the exit, ends at the proximal end is blunt and at the distal part is sharp.
11) Horizontal incised wound is present at the root of the left thumb measuring 2 cm x 1 cm x Muscle deep in the palmar aspect.
12) Horizontal incised wound is present over the palmar aspect of proximal phalynx of the left index finger measuring 1.5 cm x 1 cm x Muscle deep.
13) Horizontal incised wound is present over the distal phalynx measuring 1 cm x 0.5 cm x Muscle deep on the left index finger.
14) Horizontal incised wound is present over the middle phalynx of left little finger measuring 2 cm x 1 cm x 0.5 cm.
15) Two Horizontal incised wounds are present over the proximal and middle phalynx of left ring finger measuring 1 cm x 0.5 cm x Muscle deep.
16) Horizontal incised wound is present over the palmar aspect of left hand measuring 4 cm x 1 cm x Muscle deep.
17) Oblique stab wound is present over the front of the left side of chest over the anterior axillary line measuring 1 cm x 0.5 cm x muscle deep. The ends are sharp.
18) Oblique stab wound is present over the front of the left lower chest measuring 1.5 cm x 1 cm x muscle plane for 4 cm situated 9 cm below and to the left of the nipple.
19) Vertical stab wound is present over the front of upper part of abdomen measuring 1.5 cm x 1 cm x cavity deep situated 9 cm from midline and 25 cm below the midpoint of left clavicle. The upper end is blunt and lower end is sharp.
20) Portion of the stomach is seen protruding over the front of the upper part of middle of abdomen. On pushing the gut inside, an stab wound measuring 7 cm x 3 cm x cavity deep is present situated 25 cm below supra sternal knotch, 6 cm above and to the left of abdomen. Upper end is blunt and lower end is sharp.
21) Oblique incised wound paraller to and above injury number 20 situated 0.5 cm above measuring 1 cm x 0.5 cm x 0.2 cm.
22) Vertical stab wound is present over the front of the lower part of left side of abdomen 1.5 cm x 1 cm x sub cutaneous tissue deep situated 0.5 cm to the left of midline and 4 cm below the umbilicus. Upper end is blunt and lower end is sharp.
23) Vertical stab wound is present over the front of right side of chest in the lower part measuring 3 cm x 1.5 cm x chest cavity deep situated 4 cm to the right of the midline. Upper end is blunt and lower end is sharp. Medial margin of wound shows irregular tear in the middle.
24) Vertical stab wound measuring 3 cm x 1 cm x 8 cm muscle deep is situated in the lower 1/3 of left thigh, 9 cm above the knee. Margins show irregular tear medially. Upper end is blunt and lower end is sharp.
25) Horizontal stab wound is present over inner aspect of the right thigh 2 cm x 1 cm x muscle deep for 4 cm. Medial end is blunt and lateral end is sharp.
26) Horizontal stab wound measuring 1 cm x 1 cm into 2 cm along the muscle plane outer to the left knee.
27) Multiple abrasions are present over the inner aspect of upper 1/3 of left leg below the knee raging from 3 cm x 0.5 cm to 1 cm x 0.5 cm.
21. As per the opinion of PW.9, the deceased died due to shock and haemorrhage as a result of injuries sustained. Nothing worthwhile has been elicited in the cross-examination of this witness to disbelieve her evidence either with regard to the procedure in conducting the post mortem examination or with regard to the opinion given by her with reference to M.O.6.
22. PW-10 is the Police Constable who was deputed to collect the articles found on the deceased after the post mortem examination. PW-11 is the police constable who submitted the articles to FSL for chemical examination. PW-12 is the elder sister of the deceased who has spoken about the matrimonial life of the deceased and the accused. According to this witness, on the date of the incident, she had gone for work and she returned home only at 6.00 p.m. PW-13 is the father of the deceased who has spoken about the occupation and marriage of the deceased with the accused and desertion by the accused. PW-14 is the mother who has deposed in line with PW-13. PW-15 is one of the occupants of the building where the incident took place. This witness has been treated as hostile.
23. PW-16 is the Panch witness to the spot mahazar- Ex.P-7. Even this witness has been treated as hostile. PW- 17 is a witness to the inquest mahazar-Ex.P-15 and he has also failed to stand by the prosecution case.
24. PW-18 is Dr.Sridhar Murthy, Senior Specialist at Jayanagar General Hospital who examined the accused and issued wound certificate as per Ex.P-16. According to him, on 25.11.2008, on examination of the accused, he noticed the following injuries:
1. Incised wound on the dorsum of the hand at the base of ring finger, 2 cms. long, skin deep;
2. Abrasion over the right index finger.
According to PW-18, the above injuries were simple in nature which might have been caused about 24 hours prior to his examination, with a sharp weapon.
25. PW-19 is the Scientific Officer at RFSL, Mysuru, who examined the clothes of the deceased as well as the blood stained clothes of the accused and the weapon namely, M.Os.1 to 9 and issued certificate vide Ex.P-17 certifying that M.Os.1 to 9 contained blood stains of human origin with blood group ‘O+ve’. This witness has further deposed that the above articles were sent for chemical examination in a sealed condition. Two articles were sealed by the police and the other articles were sealed by the doctor. This witness has asserted in the cross-examination that as scientific officer, she is competent to conduct serology examination and to give report.
26. PW-20 is the Police Constable attached to Parappana Agrahara Police Station. He has stated in his evidence that on 23.11.2008 he was deputed to trace the offenders. At about 2.00 p.m., when they came to 1st cross, Channakeshavanagar, they noticed people in front of Chinnappa building and when he and PW-21 went there, they found a lady aged between 25-30 years lying on the floor in a pool of blood and she was screaming. When they enquired PW-1, he informed them that the injured was his sister and her husband-Nagesh assaulted her with a knife and ran away. They informed the matter to the Inspector and immediately shifted the injured to the hospital. This witness has further deposed that while taking the injured to the hospital in the ambulance, they enquired with her about the incident and she told them that in connection with a financial matter, her husband assaulted her and ran away. In the cross-examination of PW-20, it is elicited that the ambulance was brought at 12.15/12.20 p.m. In the ambulance, apart from PWs-20 and 21, the brother of the injured, namely PW-1 was also sitting. Victoria Hospital was at a distance of 20 kms. from Chinnappa building of Channakeshavanagar. In the ambulance, there was no facility of oxygen, emergency ventilator, stretcher automatic adjustment or exhaustion of carbon dioxide. It is further elicited that when they reached the hospital, it might have been around 4.10 p.m. Till he left the hospital at 5.00 p.m., Police Inspector and other police officers had not come to Victoria Hospital. It is also elicited that in his statement under Section 161 Cr.P.C., he has not specifically stated as to the time and place where the deceased made her statement before him.
27. PW-21 was the Head Constable at Parappana Agrahara Police Station at the relevant time. This witness has deposed in line with PW-20 and has stated that when both of them went to the house of PW-1, they found the deceased in a pool of blood with severe injuries. She was conscious. This witness also has stated that PW-1 informed them that the accused assaulted the deceased with a knife and ran away. He has reiterated in his evidence that in the ambulance, deceased stated before them that the accused picked up quarrel with her and assaulted her with a knife. Even in the cross-examination, he asserted that the deceased was not unconscious and that she was talking. However, he admitted that in his report-Ex.P19 given to the IO, he has not stated as to the language in which the deceased spoke to them.
28. PW-22 is the inquest Panch who has stated that he attested the inquest mahazar-Ex.P15 in Victoria Hospital.
29. PW-23 is the IO. According to this witness, on 23.11.2008 at 15.45 hours, he received a written complaint from PW-1 and registered FIR-Ex.P20 and thereafter conducted spot mahazar between 4.00 p.m. and 5.30 p.m. On the next day, i.e. on 24.11.2008, he conducted inquest as per Ex.P15 and on the same day, he arrested the accused and based on his voluntary statement, recovered the knife and blood stained clothes of the accused under mahazar, Ex.P-8. He has identified the knife-M.O. 6 as well as the clothes of the accused at M.O. Nos.8 and 9. The admitted portion of the voluntary statement of the accused is marked through this witness as Ex.P-22. In the cross-examination, it is elicited that during the spot mahazar, PW-1, Nandakumar, was with him. He has denied all other contra suggestions made to him with regard to the investigation conducted by him and has stood by the statements made by him in his chief examination.
30. PW-24 was the police constable who submitted the FIR to the magistrate. According to this witness, the FIR was entrusted to him at 10.30 a.m. and he submitted the same to the magistrate at his residence at 12.15 p.m. on 24.11.2008. It is elicited that the distance from the police station to the residence of the Magistrate is about 10 kms.
31. As could be seen from the above material, there are no eyewitnesses to the incident. The prosecution has rested its case exclusively on circumstantial evidence. The circumstances relied on by the prosecution are as follows:
a) Accused was seen near the spot of occurrence getting down the stairs leading to the house of the deceased at about 1.00 p.m.;
b) The oral declaration made by the deceased to her elder brother-PW-1 and to the police constables, PWs-20 and 21;
c) Recovery of knife at the instance of the accused;
d) Recovery of blood stained clothes of the accused from his house on the basis of his voluntary statement;
e) FSL report matching the blood group on the clothes and the weapon-M.O.6 with that of the blood group of the accused;
f) Non explanation of the injuries sustained by the accused during the occurrence; and g) Motive.
32. In proof of the first circumstance, the prosecution has relied on the statement of PW-1, the elder brother of the deceased, who has deposed in his evidence that on the date of the incident at about 1.00 p.m., while returning from the grocery shop, he came across the accused on the staircase leading to the house of the deceased. This evidence is strongly disputed by the learned counsel for the accused-appellant contending that the evidence of PW-1 is unbelievable. He contends that it is by fluke chance that he happened to be there. Even otherwise, PW-1 being a close relative of the deceased, his evidence cannot be attached any value. To buttress this argument, learned counsel has emphasized that there is no independent corroboration to the testimony of PW-1. Two independent witnesses examined by the prosecution, namely PW-5, owner of the building and PW-15, the adjacent occupant, have wholly turned hostile to the prosecution case. Therefore, the uncorroborated and interested testimony of PW-1 ought to have been discarded by the Trial Court.
33. Further he contends that the very suggestions made by the public prosecutor to PW-5 and PW-15 run counter to the very case set up by the prosecution. Learned counsel has pointed out that during the cross- examination of PW-5 and PW-15, the public prosecutor has suggested to these witnesses that on hearing the screams of the deceased, they were the first to rush to the spot and therefore, the evidence of PW-1 that when he went home, he noticed the accused on the staircase and thereafter found the door of the house latched from outside stands falsified. Based on this evidence, it is argued that the trial court has committed a serious error in accepting the evidence of PW-1 in proof of the above circumstance.
34. We have considered the submissions and have carefully scrutinized the evidence of PW-1. We are unable to accept the argument of the learned defence counsel for more than one reason:-
(i). First, there is no dispute that at the relevant point of time PW-1 and the deceased were residing together along with their another sister-PW-12. It has come in evidence that on the date of the incident, PW-1 had left the house at about 12.00 noon. He has unequivocally stated that while returning from the grocery shop, he noticed the accused on the staircase. It is pertinent to note that even though PW-1 is subjected to extensive cross-examination, the statement made by him with regard to the factum of seeing the accused on the staircase is not challenged at all in the cross-examination. As a result, the evidence of PW-1 in this regard has remained uncontroverted. Therefore, the contention of the learned counsel that the evidence of PW-1 cannot be relied upon, is liable to be rejected.
(ii). Second, though PW-1 is closely related to the deceased, yet on going through the records, we find that the prosecution has produced reliable corroboration to the testimony of PW-1 with regard to the above circumstance. In the complaint lodged by him at the earliest instance, he has squarely implicated the accused and has unequivocally stated therein that when he was returning from the grocery shop, he noticed the accused getting down the stairs in a panicky condition. He has even stated that he tried to talk to him, but the accused ran away from there. This testimony also has not been controverted in the cross-examination. The contents of this complaint, Ex.P-1, in our opinion, lends adequate corroboration to the testimony of PW-1.
(iii). Third, the evidence of PWs-20 and 21 indicates that seeing the commotion, when they reached the house of the deceased, on enquiry with PW-1, he disclosed to them that the accused was the perpetrator of the crime. This prompt and simultaneous disclosure of the incident lends further assurance to the testimony of PW-1 that the accused was seen in the vicinity soon after commission of the offence. A reading of the evidence of PW-1 and that of PWs-20 and 21 go to show that right from the inception, specific accusation was directed against the accused, obviously for the reason that he was seen near the spot of offence soon after the incident. All these circumstances, therefore, lend corroboration to the testimony of PW-1.
35. The contention urged by the learned counsel for the appellant that the evidence of PW-1 stands discredited on account of the suggestions made by the public prosecutor to PWs-5 and 15, does not appeal to us. The credibility of a witness cannot be impeached by the testimony of another witness. It is a basic rule of appreciation of evidence that the evidence of a witness cannot be adversely adjudged by pitting it against other evidence including medical evidence as the touchstone of credibility. Evidence must be tested for its own inherent truth, consistency and probability. Under no circumstance a retracted statement made by a witness under Section 161 of Cr.P.C. could be taken as a yardstick to test the veracity of the testimony of another witness before a court of law. Corrollarily, a suggestion made by the public prosecutor based on the said retracted statement also cannot be taken as the touchstone to determine the veracity of the testimony of the witness. The very fact law debars reception of a statement recorded under Section 161 of Cr.P.C. as an admissible piece of evidence, contents of such a statement cannot be indirectly brought on record by way of a suggestion made to the witness during his cross-examination. When a witness does not stand by his previous statement, the accused cannot depend on such evidence to prop up his defence. The argument of the learned counsel, therefore is fallacious, lopsided and is contrary to the basic principles of evidence. The limited use of the statement of a hostile witness no doubt is permissible under Section 162 of Cr.P.C. to contradict such a witness in the manner provided under Section 145 of the Evidence Act, provided such statement is proved in accordance with 145 of the Evidence Act. In the instant case, PWs-5 and 15 have wholly resiled from their previous statements. Even while they were cross-examined by the public prosecutor, they have not admitted any part of their previous statements. The defence has not confronted any portion of their previous statements so as to take advantage thereof. If the argument of the learned counsel is accepted, it would amount to giving a premium to the hostile witnesses and believing their evidence as true, which in our opinion, will lead to disastrous consequences. Therefore, viewed from any angle, the contention of the learned counsel in this regard cannot be accepted. On the other hand, on consideration of the evidence of PW-1, we are of the firm opinion that his evidence could be safely relied on in proof of the fact that while returning from the grocery shop, PW-1 came across the accused on the stairs. His evidence has remained unimpeached and uncontroverted and therefore, could be safely accepted in proof of the first circumstance relied on by the prosecution.
36. The second circumstance relates to the oral dying declaration made by the deceased to PW-1, PW-20 and PW-21. We have extracted the gist of their evidence hereinabove. But this evidence is assailed by the learned counsel for the accused on the plea that the deceased was not in a condition to speak. Referring to the multiple injuries sustained by her as narrated in the post mortem report, learned counsel would contend that having regard to the nature of the injuries suffered by her, it was impossible for her to speak or to give any statement. He further contends that there is absolutely no material to show that she was conscious. The prosecution has not brought on record any positive evidence to show that after the assault, she was in a fit condition to give her statement. Referring to Ex.P-2, the death memo produced by the prosecution, the learned counsel would submit that a bare reading of this document would go to show that the deceased was dead by the time she was brought to the hospital. The very fact her name does not find place in Ex.P2 would lead to the inference that she was not at all taken to the hospital and therefore, the dying declaration said to have been made to PWs-20 and 21 gets falsified by the very document produced by the prosecution at Ex.P-2.
37. In support of the above contention, the learned counsel for the appellant-accused has referred to the following decisions:
(1) [2011] 13 SCC 125 (WAIKHOM YAIMA SINGH .vs. STATE OF MANIPUR);
(2) [1978] 1 SCC 149 (BHAIYAN & ANOTHER .vs. STATE OF MADHYA PRADESH) and (3) [2011] 14 SCC 577 (ROOP RAM & Others vs. STATE OF MADHYA PRADESH) We have considered these submissions and have critically examined the evidence of PWs-1, 20 and 21. First and foremost it needs to be noted that the evidence of PW-1 that the deceased was in a fit condition to speak and that she made the oral dying declaration implicating the accused has not been disputed or challenged in the cross examination. There is neither any denial nor any suggestion to PW-1 that she was not in a position to speak or to make her statement. Even though the learned counsel for the accused has referred to the injuries and has contended that on account of the said injuries, she was not in a position to speak, we find nothing in the post mortem report to indicate that the deceased had sustained any injuries which disabled her from speaking or communicating with the witnesses.
38. We have gone through the post mortem report.
It mentions 27 injuries. All these injuries are described as bone depth. There is nothing in the report to indicate that either larynx, trachea or esophagus or her vocal cords were damaged. There is no evidence of any fracture of larynx cartilages, trachea or thyroid, or any injury on the tongue or lips, disabling her to talk. On the other hand, the evidence of PWs-1, 20 and 21 indicate that when they saw the deceased, she was screaming and was in a position to speak. The contention of the learned counsel that on account of the multiple injuries and because of loss of blood, she might have died before being taken to the hospital, is an argument built on assumption and not based on any evidence.
39. As already stated above, the testimony of PWs- 1, 20 and 21 with regard to the condition of the deceased when they saw her at the first instance, has not been discredited or falsified in the cross-examination of these witnesses. According to PW-1, he saw the deceased at 1.00 p.m. The landlord, PW-5 came to the spot 20 minutes thereafter. Even though this witness has turned hostile to the prosecution case, it is relevant to note that even PW-5 has stated that when he went to the house of the deceased, he saw her still breathing, indicating that she was very much alive.
40. PWs-20 and 21 are very specific in their evidence that the deceased was alive and therefore, they informed their superior officer and immediately arranged for shifting her to the hospital. These witnesses have not only spoken about the physical and mental condition of the victim, but have also specifically narrated the contents of the dying declaration made by her. There is absolutely no inconsistency in the testimony of these three witnesses regarding the oral declaration made by the deceased, implicating the accused. Therefore, we do not find any reason to doubt or disbelieve the testimony of PWs-1, 20 and 21 that the deceased made the oral declaration as stated by them in their evidence. Their testimony gets suitable corroboration from the fact that in the FIR lodged soon after the incident, the oral declaration said to have been made by the deceased finds place in Ex.P-1. This itself lends assurance and credibility to the testimony of PW-1 that the deceased had made the said oral declaration to him as deposed before the court.
41. The evidence of PWs-20 and 21 with regard to the oral dying declaration gets corroboration from the report of PW-21 submitted on the same day as per Ex.P-19 regarding the duties performed by them. This report refers to the dying declaration made by the deceased. Undeniably PW-20 and PW-21 are independent and disinterested witnesses. They have explained the reasons for their presence at the spot of occurrence soon after the incident. All these circumstances when cumulatively considered, leave no manner of doubt that the deceased was well oriented, conscious and was in a position to speak and that she made the declaration, as stated by PWs-1, 20 and 21 implicating the accused in her death. Therefore, we do not have any hesitation to accept the testimony of these witnesses in proof of the above circumstance.
42. To rebut the above evidence, learned counsel for the appellant-accused has referred to the decision reported in [2011] 13 SCC 125 (supra) and with reference to paragraph nos.19 and 20 of the judgment, it is submitted that having regard to the condition of the deceased, the dying declaration attributed to her cannot be ascribed any value. We have gone through the above decision. In the said case, the deceased was seriously injured, so much so, according to the witnesses themselves, she died immediately after allegedly making the dying declaration. Therein, the Hon’ble Supreme Court observed that there was no medical evidence suggesting that the deceased was in a fit medical condition to make such dying declaration. In the context of the said facts, the Hon’ble Supreme Court disbelieved the dying declaration attributed to the deceased for the added reason that even the witnesses failed to narrate the exact words in which the deceased had made the statement. But in the instant case, as already stated above, medical records as well as the evidence of prosecution witnesses clearly indicate that the deceased was not only conscious and was in a fit condition to give her statement, they have also reproduced the words spoken by her. No circumstances are brought out in the cross-examination of these witnesses to suggest that there was any ambiguity in the dying declaration made by the deceased implicating the accused and the manner of assault committed on her. Therefore, we are of the view that the above decision cannot be made applicable to the facts of this case.
43. The other decision relied on by the learned counsel reported in [1978] 1 SCC 149 (supra) deals with a similar fact situation. In paragraph no.14 therein, the Hon’ble Supreme Court has observed that although according to the prosecution, the dying declaration was made by the deceased in the presence of Dindayal (PW1), there was no whisper of it in the report (Ex.P1) which the witness lodged soon after the occurrence. It is in this context, the Hon’ble Supreme Court found it proper to disbelieve the dying declaration. But in the instant case, as already discussed above, not only the factum of making the dying declaration, even the contents of it are specifically narrated by PW-1 in Ex.P1-complaint. The same is also borne on the report submitted by PWs-20 and 21 to the I.O. on the date of the incident itself. Therefore, the observations made in the said decision cannot be applied to the present case.
44. In the third decision relied on by the learned counsel reported in [2011] 14 SCC 577, the Hon’ble Supreme Court has disbelieved the dying declaration for the reason that the only evidence available against the appellant-accused therein was the dying declaration. In the said case, it has been observed that the prosecution story itself was that the deceased was unconscious at the time when he had been found, but he became conscious for some time on having water, made the dying declaration and then again became unconscious and ultimately died while in that condition. The fact situation in the instant case is entirely different. There is nothing in the evidence to show that after the incident till she breathed her last, the deceased was unconscious at any point of time. There is also no evidence to show that she was unable to speak. On the other hand, the evidence on record clearly establishes that she was in full control of her faculties. The medical report indicates that, while conducting autopsy, 1,500 ml. blood was found in pleural cavity. There was no loss of blood either. The injuries sustained by her did not disable her from speaking or communicating the cause of her death. All these circumstances, therefore, in our opinion, are sufficient to hold that the deceased was not only in a fit condition to make her statement, but she did make her statement implicating the accused, as deposed by PW-1, PW-20 and PW-21. In the light of this conclusion, whatever discrepancies highlighted by the learned defence counsel in Ex.P2, in our opinion, do not affect the case of the prosecution. On going through the said document, it is seen to have been issued in the O.P.D. It bears two registration numbers. The name of the deceased does not find place therein. The said document neither indicates the mental condition nor does it specify the exact time of death. This document, in our view, is of no avail either to advance the plea of the prosecution or to support the contentions of the defence. Therefore, we do not intend to give any credence to this document. As the prosecution has convincingly established that the deceased has made her dying declaration to PW.1, PW.20 and PW.21 when she was in a fit condition to make the said statement, the contention raised by the learned counsel on this score is rejected.
45. The other circumstance relied on by the prosecution is the recovery of the blood stained clothes and the weapon used for the commission of the offence. Though the Panch witness examined by the prosecution in proof of recovery of the knife M.O.6 and the blood stained clothes, namely M.Os.7 and 8, have failed to support the prosecution, yet the said recovery is duly proved by the evidence of PW-23. Through this witness, the prosecution has marked the voluntary statement made by the accused at Ex.P-22. The evidence of PW-23 indicates that pursuant to the said voluntary statement, the accused led him and the Panch witness to the house of the second wife, Mangala, and produced the blood stained knife-M.O.6 and the blood stained clothes, M.Os.8 and 9. This evidence has not been discredited in the cross-examination. It is also proved in evidence that soon after the recovery, the weapon as well as clothes of the accused along with the clothes of the deceased were forwarded for chemical analysis.
46. PW-19 is the scientific officer who has stated that on examination of these articles, she found that all the articles contained the blood group ‘O+ve matching with the blood group of the deceased. This evidence, therefore, in our opinion, is sufficient to prove the circumstance of recovery, connecting the accused to the offence charged against him. Added to the above circumstance, prosecution has examined PW-18, the doctor who examined the accused. According to PW-18, on 25.11.2008, he examined the accused and found an incised wound on the dorsum at the base of his right finger and abrasion over the right index finger. He has specifically stated that the said injury might have been caused within 24 hours prior to his examination. This testimony also has not been discredited in the cross-examination. There is no explanation whatsoever by the accused either by way of a suggestion to PW-18 or in his statement under Section 313 of Cr.P.C. as to when and how the said injuries were sustained by him. The absence of explanation with regard to the injury sustained by the accused furnishes another link to the chain of circumstances relied on by the prosecution.
47. Lastly, with regard to motive, there is abundant evidence on record to show that the accused had married the deceased about 5 years earlier to the incident. In this relationship, the deceased had given birth to a son who was then aged 3½ years. In the birth extract and school certificate of the child at Exs.P-39 and P-40, the accused is described as the father of the said child, which fact has not been disputed. It is also implicitly admitted by the accused that during the subsistence of his marriage with the deceased, he had contracted another marriage with one Mangala. He was residing with his second wife at Neraluru village. PW-1 and other persons examined by the prosecution have specifically stated that even though the accused had deserted the deceased, he was frequently visiting the deceased and was pestering her. It is proved in evidence that on the date of the incident, when the deceased was alone in the house, he picked up quarrel with her and brutally murdered her. The nature of injuries inflicted on the deceased indicate that the accused intended to do away with the life of the deceased as he found her an obstacle in his second marriage. Therefore, having found her to be alone in the house, he seized the opportunity and committed her murder by indiscriminatingly assaulting her. The evidence adduced by the prosecution therefore clearly establishes the motive for the commission of the offence.
48. The trial court has considered all these facts and circumstances of the case and has rightly come to the conclusion that the prosecution has proved all the above circumstances establishing the guilt of the accused and has found him guilty of the offence of murder alleged against him. Even on re-appreciation of the evidence, we do not find any reason to differ with the conclusion arrived at by the trial court.
49. At this juncture, the learned counsel for the appellant submits that even if the case of the prosecution is accepted, the circumstances brought out in the evidence indicate that the accused had no intention whatsoever to kill the deceased. It was an unpremeditated act. As per the prosecution case, the accused did not take any weapon with him while going to the house of the deceased. His voluntary statement reveals that the deceased herself offered provocation and in that context, he picked up a knife which was found on the T.V. stand and assaulted her. These circumstances indicate that it was an unpremeditated act and in a fit of anger on account of the provocation given by the deceased, he was driven to commit the said offence which could attract only Section 304 Part I of I.P.C.
50. In support of the above argument, learned counsel has placed reliance on the decisions reported in [2002] 2 SCC 551, (KAJAL SEN AND OTHERS vs STATE OF ASSAM) and 1995(Supp.)(1) SCC 39 (MURLI ALIAS DENNY .vs. STATE OF RAJASTHAN). We have considered these judgments. We do not find that the proposition laid down in the above decisions would any way come to the aid of the accused in seeking conviction for a lesser offence.
51. On the question of placing reliance on the voluntary statement of the accused is concerned, we find that the position of the statement which the learned counsel proposed to rely has neither been proved nor has it been marked in evidence. The said statement therefore cannot be considered. What is marked in evidence is only the admissible portion leading to the recovery under Section 27 of the Evidence Act. Therefore, there is no factual basis to accept the plea that the accused has stated in his previous statement that he committed the offence on account of the provocation by the deceased.
52. In the decision relied on by the learned counsel reported in [2002] 2 SCC 551, the statement of the accused therein was recorded under Section 161 of the Evidence Act wherein the accused specifically stated that the deceased was having a dao in his hand and there was some altercation between the deceased and other accused. When the deceased saw Nepal Deb coming on road, he abused him in filthy language and when Nepal Dab attacked him with the dao, he tried to flee away but he intercepted him on the road and gave knife-blow and fled away. When a plea was raised that the said statement made by the accused before the I.O. cannot be taken into consideration so as to doubt the prosecution version as deposed by the eyewitnesses, the Hon’ble Supreme Court negatived the plea and held that once the prosecution has led evidence before court which has remained unchallenged, it was open to the accused to rely on the same in defence. In the instant case, the statement now sought to be relied on by the accused is not brought on record so that it could be relied on by this court. It is only in the course of arguments, the learned counsel has referred to the statement of the accused which is not legally admitted in evidence and therefore cannot be relied upon. Unless the said statement is brought on record, the learned counsel cannot base his argument on the said statement nor can he seek for reduction of sentence based on the statement contained therein. Therefore, we are not persuaded to accept the said plea.
53. In the other case reported in AIR 1994 SC 610, the accused himself had lodged the FIR. The question that fell for consideration was, whether the FIR which is in the nature of a confession, could be proved against the accused in view of the bar under Section 25 of the Evidence Act? In that context, the Hon’ble Supreme Court held that except the self-incriminating circumstance, the other parts of the statement made by the accused in the F.I.R. could be relied on.
54. In the instant case, the facts are different.
Learned counsel wants to rely on the statement of the accused which per se is not admitted in evidence. There is no material on record to show that the deceased had given any provocation to the accused. On the other hand, the evidence reveals that he sneaked into the house of the deceased and seeing her alone, seized the opportunity to attack her with a sharp weapon. The manner in which he has inflicted injuries on her suggests that he did not want her to survive. The medical record shows that the deceased was almost butchered and was inflicted with as many as 27 injuries all over the body. Therefore, the argument of the learned counsel that the act was committed without any intention to cause the death cannot be accepted. Intention can be formed even on the spur of the moment. In the absence of any evidence to show that the deceased had offered any provocation, we are of the view that the acts committed by the accused squarely fall within the ambit of the first clause of Section 300 of I.P.C. The trial court, therefore, was justified in convicting the accused under Section 302 of I.P.C.
55. For the forgoing reasons, we do not find any reason either to convict the accused for a lesser offence or to reduce the sentence for any lesser term than what has been awarded by the trial court. We do not find any justifiable ground to interfere with the well considered judgment of the trial court. The appeal is devoid of merits and is liable to be dismissed.
56. Accordingly, we pass the following order:
ORDER Criminal Appeal No.519 of 2012 is dismissed. The impugned judgment passed in S.C.No.429/2009 by the Principal City Civil & Sessions Judge, Bengaluru, is confirmed. The appellant-accused shall serve the remaining part of the sentence.
Sd/- Sd/-
JUDGE JUDGE ck/vgh*