Karnataka High Court
Chowdappa @ Ravi vs State By Pathapalya P S on 23 November, 2018
Bench: K.N.Phaneendra, K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRL.A. No. 934/2013 (C)
BETWEEN
CHOWDAPPA @ RAVI
AGED 30 YEARS
S/O NARAYANASWAMY
R/AT KARIYAPPANAHALLI VILLAGE
CHINTHAMANI TALUK
CHIKKABALLAPUR DIST. - 562 101 ... APPELLANT
(BY SRI. B. RAVINDRA, ADV.)
AND
STATE BY PATHAPALYA P S
REP. BY SPP, HIGH COURT
BANGALORE ... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C. PRAYING TO SET ASIDE THE
ORDER DATED 11.04.2007 PASSED BY THE ADDL.S.J.,
AND P.O., FTC-V, CHIKBALLAPUR IN S.C.NO.10/2007
CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 302 OF IPC.
2
THIS CRL.A COMING ON FOR HEARING THIS DAY,
K.N.PHANEENDRA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant who is the aggrieved accused in SC No.10/2007 was convicted by the Fast Track Court-V, Chikkaballapura (for short, 'trial Court') for the offence punishable under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- with default sentence, vide judgment dated 11.04.2007.
2. The brief factual matrix of the case are that; A person by name L.N. Narasimhappa, son of D.N. Narasimhappa lodged a complaint as per Ex.P3 divulging the factual matrix of the case. It is seen from Ex.P3 that, on 06.06.2006 there was an 11th day obsequies ceremony of deceased Venkatalakshmamma at a village called Sridharavarapalli and for that function the complainant (PW.1) and his father (victim/deceased) had been to Sridharavarapalli. So many people had also gathered in that function. In the said function, mic set was arranged and music was 3 being played in the mic set. At that time, at about 7.30 p.m. by hearing that music, some people and children gathered there started dancing to the tune of the music and among them, one boy, son of Shantha Narayanaswamy by name Venkatarama and son of Munilakshmamma were also dancing and while dancing so, the said two children started quarrelling and pushing each other, thereafter the children reported the quarrel to their respective mothers. Thereafter, the mothers of those children themselves started quarrelling. In that context the father of the complainant, who was present there, consoled them and advised the children and as well as their mothers not to quarrel. At that time the younger brother of the accused by name Venkatarama, one among two quarrelling children, informed the above quarrel being taking place to the accused. It appears the accused Chowdappa @ Ravi son of Narayanaswamy brother of Venkatarama came there holding a long in his waist and suddenly questioning who actually assaulted his brother etc., had suddenly assaulted the deceased with the long he possessed, as a result of which, he 4 sustained severe injury to his neck and he fell down at the spot. At that time, the accused threw away the long at the spot and ran away from the spot. Though the deceased was shifted to the Bagepalli Government Hospital, but he did not survive and died in the hospital. Narrating the above said factual aspects, a complaint came to be lodged and crime was registered in Crime No 8/2006 and the police have investigated the matter and ultimately laid a charge sheet against the accused for the above said offences. The accused was arrested on 03.10.2006 and it appears he has been in judicial custody since that date.
3. After committal of the proceedings, the trial Court secured the presence of the accused and framed the charges against him for the offence punishable under Section 302 of IPC, as the accused pleaded not guilty the court set down the case for prosecution evidence.
4. In order to bring home the guilt of the accused, the prosecution has examined 10 witnesses 5 viz., PWs.1 to 10 and got marked Exs. P1 to P10 and during the course of cross-examination of PWs.4 and 10, the accused also got marked the statements of PWs. 4 and 10 as Exs. D1 & D2. The material objects
-Mos. 1 to 4 were also marked on the side of prosecution. The accused was also called upon to adduce defence evidence after his examination under Section 313 of Cr.PC., but, the accused did not chose to lead any evidence. After hearing both sides, the trial Court concluded that the prosecution has proved the case beyond reasonable doubt.
5. We have heard the arguments of the learned counsel for the appellant, who has very meticulously tried to convince the court with regard to the credibility of the witnesses and also lapses during the course of investigation done by the Investigating Officer.
6. We would like to discuss about the lapses, as and when we discuss the evidence of the prosecution witnesses. Anyway, we place it on record the valuable 6 assistance given by the learned counsel for the appellant in this regard.
7. Learned Addl.SPP also conceded that there are some lapses on the part of the Investigating agency and also there are discrepancies in the evidence of the prosecution witnesses. But he submits that, the core of the prosecution has not been disturbed even though some contradictions, omissions and lapses are there. He submitted about the consistency with regard to the evidence of the eye witnesses and also the presence of the accused at the spot and using of the weapon by the accused and thereafter, the death of the deceased, these facts have not been much disturbed even during the course of cross-examination. Therefore, he submitted that in spite of such contradictions, omissions and lapses, the prosecution was able to establish the case beyond reasonable doubt.
8. Having heard the arguments of the learned counsel for appellant and the learned SPP, the points that would arise for consideration of this court are,- 7
i) Whether the prosecution has established alleged offence under Section 302 of IPC against the accused beyond all reasonable doubt ?
ii) Whether the sentence passed by the trial
Court is appropriate in the facts and
circumstances of the case ?
9. In order to answer the above said points, it is just and necessary for this court to re-evaluate the evidence on record to arrive at a conclusion whether the prosecution was able to establish the case against the accused beyond reasonable doubt in spite of some contradictions, omissions and lapses in the investigation.
10. The prosecution mainly relied upon the evidence of the eye witnesses in this case. PWs. 2, 3, 4 & 10 are the main and star witness to the prosecution.
Apart from that, it appears though some serious questions have been raised with regard to the injuries sustained by the deceased and the alleged weapon (Long) said to have been used by the accused, seizure of the said weapon etc.. But, on over all reading of the 8 entire material on record, we find that there is no dispute with regard to the death of the deceased and as well as he having sustained injury to his neck on that particular day. In this context, the homicidal death of the deceased, in our opinion, has been successfully established by the prosecution. Evidence of PW.1 in this regard, play a dominant role, who was the inquest witnesses, who has not been cross-examined by the defence. He has stated that, he identified the dead body of the deceased-D.N. Narasimhappa on 07.06.2006 at Bagepalli Government Hospital and he has seen there was an injury to the neck portion of the deceased and the police drew up inquest mahazar as per Ex.P1 and the police have also seized certain articles belonging to the deceased ie., MOS 1 to 3 that is Banian, Shirt and Lungi of the deceased under Ex.P2. The reason is not stated as to why this witness has to be disbelieved, when nothing has been elucidated against the evidence of this witness and as this witness was not subjected to cross-examination at all. 9
11. It is seen from the cross-examination of PW.2- Mr. L.N.Narasimhappa sofar as the death of the deceased is concerned. It is suggested to this witness in the course of cross-examination that, on that particular date of incident, the deceased was fully drunk and because of the drunkenness, he fell on a knife and sustained injury to the neck and because of that reason he died on that particular date. Therefore, as we have observed that there is no much dispute with regard to death of the deceased on that particular date at the place after having sustained injury to his neck. But, the defence version was that, it is an accidental death as injury being sustained by the deceased due to fall on a sharp edged weapon like knife. Therefore, what could be gathered from the evidence of these two versions is that, there was a serious injury to the neck of the deceased and because of that reason he died. In this context, though the Doctor has not been examined to ascertain the reason for the death of the deceased, the prosecution got marked post-mortem report at Ex.P8. In the post-mortem report, the Dotcor has 10 opined that, the death was due to hemorrhagic shock secondary to rupture of major blood vessels at the right side fo the neck. This opinion of the doctor in Ex.P8 corresponds to the evidence of PW.1 as well as the eyewitnesses. PWs. 2, 3, 4 & 8 in their examination chief are also fully supported the suggestion made in the course of cross-examination to PW.2. Therefore, we are of the opinion that the prosecution has successful in establishing the homicidal death of the deceased.
12. Now the major question arises for consideration of this court is that , whether the accused is the perpetrator of the crime and whether this court can believe the evidence of the eye witnesses as gospel truth? Therefore, it is the duty of this court to meticulously examine the said four witnesses coupled with the investigation lapses as pointed out by the learned counsel for the appellant.
13. PW.2 of course is no other than the son of the deceased. Admittedly he had been to 11 Sridharavarapalli on that particular day in order to attend the death ceremony of late Venkatalakshmamma. He categorically stated that, many number of persons were gathered at the place of incident on that particular day, as the function was arranged in the house of PW.4 - Anjinappa, because, late Venkatalakshmamma was no other than the wife of the brother of the said Anjinappa-PW.4. He categorically stated that, Shamiyana was put near the house of PW.4 and many people including the children were dancing to the tune of the music played in the mic set and two children quarreled each other and in that context and in fact that quarrel went to climax wherein the mothers of those children also started quarrelling each other. In that context, the deceased came there in order to resolve the quarrel between them and he advised them not to do any galata at the spot and thereafter, the younger brother of the accused went and informed the same to the accused and the accused came there with a weapon (long) and assaulted the deceased on his right side neck, which caused severe 12 injury to the neck of the deceased, as a result he fell down on the spot. On seeing the crucial incident, PW.2 also lost conscious for a moment and regained his conscious little later and saw the accused throwing the weapon (long) on the spot and running away. Immediately, with the help of Anjinappa @ Channayappa and others took the deceased to Bagepalli Government Hospital and thereafter they came to know that the deceased already dead. It is stated that, he went to the police station at 10.45 p.m. and lodged a complaint as per Ex.P3, on which basis, the police have investigated the case. He also stated that the chopper which was thrown by the accused was actually preserved by Anjinappa and the police have taken the same. This particular evidence of PW.2 is consistently supported in the examination chief of PWs. 3, 4 and 10. There is no need for this court to consider the examination chief of these witnesses once again, because, as could be seen from the evidence of these witnesses, they have categorically stated as to why the incident being happened and accused, who suddenly 13 came to the spot, was holding a chopper in his waist and when the deceased tried to console advise him not to quarrel, the accused assaulted the deceased, and thereafter they shifted the injured/victim to the hospital and by that time he was dead. So far as this core of the prosecution case is concerned, the witnesses through their evidence in examination chief have consistently supported the case of the prosecution.
14. Now, coming to the cross-examination of the above witnesses, of course in the course of cross- examination, the learned counsel has pointed out with regard to the place of incident. There are some suggestions made and also the answers elicited from the mouth of these witnesses in the course of cross- examination that, the incident had happened near the house of Anjinappa. But the learned counsel pointed out that the death ceremony of Venkatalakshmamma was arranged in the house of Anjinappa and the spot of incident was at a distance of 200 to 300 ft. from the house of Anjinappa. Therefore, the prosecution has not properly established where actually the incident 14 happened. As could be seen from the evidence of the above witnesses, there is consistency in their evidence even in the course of cross-examination, which is not much disputed as the incident had happened near the house of PW.4-Anjinappa.
15. Learned SPP has drawn our attention to the evidence of PW.2, who has stated in examination chief itself that the said incident was happened near the house of PW.4-Anjinappa. There is no much cross- examination sofar as the place of incident in the course of his cross-examination. On the other hand it is elucidated that many people were gathered at the place of incident for the purpose of said death ceremony of one late Vankatalakshmamma, the close blood relative of Anjinappa and it is suggested that the deceased had consumed alcohol and he fell on the ground particularly on a sharp edged knife. PW.4 also reiterated the same with regard to this aspect and he has stated that the incident happened near his house. PW.10 also consistently stated about the place of incident. Of course in this regard, there is a serious lapse as 15 contended by the learned counsel that, the Investigating Officer did not draw up any spot mahazar, as such in our opinion, it is a serious lapse on the part of the Investigating Officer. If the oral evidence would not have been there as to why the said incident has happened, a serious doubt would have been created in the mind of the court as to whether actually the incident happened as projected by the prosecution or not. But, as we have examined the evidence, we noticed consistency in the evidence even in the course of cross- examination regarding the place of incident that, the incident had happened in the house of PW.4-Anjinappa and the said evidence was not disturbed. Therefore, we are of the opinion that, happening of the incident is not much in dispute.
16. In the course of cross-examination, much has been concentrated with regard to using of the weapon by the accused and as well as seizure of the weapon. Matching of the weapon with the crime and as well as the injury sustained by the deceased. Of course in the course of cross-examination of PW.2, there are 16 some discrepancies and contradictions, in examination chief itself he has stated that he went to the hospital and thereafter, he went to Police Station and lodged a complaint. But during the course of cross-examination, he has admitted that the police came to the hospital and there itself the police have written Ex.P3-complaint. But, he says that he did not go to the Police Station. The Investigating Officer (PW.6) says that he was working as a PSI on that particular point of time and on 06.06.2006 in the night hours at about 10.00 p.m., he received some information that one Narasimhappa was done to death at Sridharavarapalli and his body was taken to the hospital and he died in the hospital. Then he visited the hospital at 11.45 p.m. and there he received an information from PW.2 as per Ex.P3 and thereafter, he registered a case in Crime No.8/2006 and dispatched the FIR as per Ex.P4.
17. Though there is some discrepancy with regard to the above said evidence, however, in the course of cross examination it is elicited, that Ex.P3 was recorded in the hospital, that fact is fully 17 corroborated by the evidence of PW.6. Even otherwise, we find that, there is no such serious lapse sofar as this aspect is concerned. Whether the information given to the Police was complete so as to register a case and then go to the hospital is the question arises for consideration of this court. Nowhere in the cross examination of any of the witnesses nor in the examination chief of any one of the prosecution witnesses it is elucidated that, they have informed the Police in any manner much prior to the lodgement of Ex.P3. Though some of the witnesses have stated that the Police had come to the spot itself even before registration of Ex.P3. But, in the absence of materials before the court that, the Police had complete information about the incident, nobody can expect that the Police ought to have registered a case and proceeded to the spot. Even according to the cross examination of the witnesses, the Police had been to the spot even much prior to registration of Ex.P3 and thereafter, coming to know of the death of the deceased in the hospital and thereafter, as to how the incident 18 happened must have been explained by PW.2. Thereafter the Police had recorded his statement and registered a case.
18. In view of the above, regarding the Police proceeding to the spot and then to the hospital and recording the statement of PW.2 in the hospital, though there is some discrepancy, but, in the absence of material to show that somebody has informed the Police with complete information so as to register a case. Therefore it is not a serious lapse in the investigation so as to completely throw out the entire prosecution case.
19. Sofar as the weapon used to commit the act is concerned, invariably all the witnesses have stated in their evidence that, the accused has threw away MO.4 on the spot and ran away. Of course in the course of cross examination, all the discrepancies had been elucidated. When one of the witnesses has stated that the accused has actually thrown the weapon on the spot itself and ran away and some of the eye witnesses have stated that he was holding the weapon and tried to 19 ran away and they chased him and in the dark he threw the weapon at a distance and ran away from the spot and thereafter PW.4 took the said weapon and handed over the same to the Police. It is also elicited that the Police have not actually seized the same on that day, but on the next day, the Police again came to the spot and seized the said weapon under a mahazar
-Ex.P4. Of course, all the witnesses have contradictorily stated with regard to the above aspects.
20. The court has to see whether this particular contradiction or omission is there as per Exs. D1 & D2. In Exs. D1 & D2 the witnesses PW.4 & PW.10 have categorically stated that PW.4 has kept the weapon with him and handed over the same to the Police on the same day at 2.00 a.m.. But, the Police have not taken the weapon on the same day for the reasons best known to them, but they have taken the same on the next day. Ex.D1 is a contradiction elicited, wherein PW.4 has stated before the Police that, he chased the accused upto some distance and thereafter, the accused threw the weapon and ran away and escaped in the 20 darkness. Thereafter, PW.4 had kept the weapon with him and handed over the same to the Police on the next day. On the other hand, PW.10-Sriramappa in examination chief itself has stated that, the accused threw the weapon on the spot itself and PW.4 has taken the said weapon and preserved the same. Of course, the above said discrepancy, in our opinion, is serious enough, but the same is not so sufficient to uproot the entire case of the prosecution. The entire gamut of cross examination and examination chief show that, holding of the weapon by the accused is consistently stated by all the witnesses. Only the contradiction was with regard to throwing of MO.4 (Chopper) and running away and somebody chasing the accused. Therefore, it clears out the doubt that, the total cross examination also establishes the fact that when somebody has chased the accused and he threw the weapon (long ) at some distance. But somebody has seen the accused throwing the weapon on the spot after assaulting the deceased. The discrepancy is only with reference to, 'at what place' and 'at what distance' 21 the accused has thrown the weapon. In our opinion, though the said discrepancy is there, but using of the weapon and throwing of the weapon by the accused nearby the scene of offence is core of the prosecution, which is not disturbed even in the course of cross examination. Therefore, in that context, we would like to hold that, there is consistency in the evidence regarding 'the presence of the accused and presence of the weapon(long), using of the weapon (Long) and throwing the weapon (long)'. These are all the factors consistently stated by the witnesses even in their examination chief and in cross examination, where actually it was thrown away, whether it was on the spot itself or at a distance or at the time of running away the accused had thrown the said weapon (long) are all in our opinion, are minor discrepancies, which would not demolish the fact of throwing of the weapon by the accused immediately after the incident at that place. The core that 'immediately after the incident, the accused threw the weapon, is established by the prosecution.
22
21. The learned counsel also submitted that, MO.4 (Long) is not at all seized by the Police. But invariably the witnesses have stated that, under Ex.P4- Mahazar, the Police have taken the said weapon (Long) with them. Of course, there are some lapses on the part of the Police, when the witnesses have stated and even in fact the Investigating Officer (PW.9) has stated in the cross examination that, he did not draw any mahazar while taking the weapon (long) and he has not identified the weapon as the same weapon seized as per Ex,P4 and it is also suggested that they have created the weapon for the purpose of this case. But the said suggestion was denied. Much has been argued by the learned counsel with regard to this particular aspect. The weapon which was produced before the court is not actually the weapon, which the prosecution is said to have produced before the court as the same weapon was used by the accused at the time of the incident. It is argued before us that, though MO.4 was given to the Police as admitted by PW.4 on the same day in the night itself, but why the Police have not seized the same then 23 itself and why they kept that for to be seized on the next day. Perhaps, they wanted to seize the same only after post mortem examination, as they wanted to insert the weapon which is suitable for the purpose of the case. In this context, whether this argument holds good is to be taken into consideration.
22. Admittedly, the dead body was taken to the Hospital on the same day and the Post-Mortem Report which is marked at Ex.P8 shows that Post Mortem examination was conducted on 07.06.2006 between 12.00 to 1.30 p.m.. The Doctor has given his opinion on 29.06.2006. The weapon was seized as per Ex.P4 which is though styled as seizure mahazar, but it appears, it is a spot mahazar wherein the place of incident and the place where the blood was found on the spot, etc. have been narrated in the said Mahazar. This Mahazar was drawn between 12.30 and 1.30 p.m. on 07.06.2006. Therefore, upto 1.30 pm., there was no Post-Mortem Report or opinion by the Doctor was available to the Police, but the seizure mahazar discloses that the weapon was seized by the Police at 24 12.30 p.m. itself and thereafter, they drew-up Mahazar as per Ex.P4. Therefore, the argument of the learned counsel that in order to match the weapon after getting Post Mortem Examination Report, this weapon has been inserted into the case, cannot be appreciated.
23. Now coming to measurement of the injuries on the dead body by the weapon, admittedly, the weapon was having 20 inches length and having 5 inches of Handle and 1½ inches width. It is suggested to PW.4 in the cross examination that, the said weapon measures 20 inches length and 1½ inches width with 5 inches handle. As rightly observed by the trial Court, there cannot be 1½ inches width weapon and it is only 20 inches long and 5 inches handle. Therefore, corresponding to the injury, if it is observed, the Post Mortem examination indicates that, the deceased sustained 5 inches long and 2 inches width injury on the neck. Therefore, the said injury even could be caused with the help of this weapon. There is no suggestion made to any of the witnesses that the said weapon could not have caused the injury. On the other hand, 25 the consistent statement of all the eyewitnesses disclose that they have actually seen this weapon being used and actually seen injuries sustained by the deceased. Even in respect of the inquest witness, as we have already referred to, this witness was not subjected to any cross examination. He also stated about the existence of injury on the neck of the deceased. Therefore, though there is some discrepancy with regard to explaining the measurement of the injury and non-examination of the Doctor in this regard, in our opinion, it will not in any manner uproot the total case of the prosecution.
24. Learned counsel also strenuously argued about the bringing this weapon by the accused that, the witnesses have stated that the said weapon was kept on the right side waist of the accused and some of the witnesses have stated that, it was inside the pant pocket and some of the witnesses have stated that it is near his right side waist. Learned counsel tried to point-out that, this weapon being 20 inches long, cannot be kept by anybody in the pant pocket. But he 26 has failed to point-out in the evidence of any witnesses that this particular weapon was kept inside the pant pocket of the accused. What type of clothes the accused was wearing on that particular day and whether this weapon could have been kept inside pocket, has not been elucidated in the course of cross examination. On the other hand, all the witnesses though stated that, they have not actually seen from where the accused had come to the spot and where actually he had kept the weapon. But, they have consistently stated regarding the accused removing the weapon from his right side waist and assaulting the deceased. Therefore, we are of the opinion that, where actually the accused has kept the weapon is a mere contradiction, but whether the accused has actually used the weapon for the purpose of assaulting the deceased, whether the witnesses had any opportunity to see the particular incident is the question that can be easily answered, because, all the witnesses have consistently stated about their presence and presence of the accused at the spot and using of the weapon and sustaining of injury by the deceased on 27 the neck which is the vital part of the body of the deceased. Therefore, we are of the opinion that, though there are some discrepancies in the evidence of these prosecution witnesses in the course of cross examination, those are minor contradictions, even on cumulative reading of the entire contradictions, in our opinion, they are all not material contradictions and not sufficient to totally cut the root of the prosecution case.
25. Learned counsel has brought to our notice the serious lapses on the part of the Investigating Agency. Of course, we have also found that the Investigating Officer has not taken much care in this regard to investigate the case properly. However, the eye-witnesses' version is seen, they have not inimically deposed against the accused and they are all actually the relatives to each other and their presence at the spot is consistently admitted during the course of their cross-examination. In the alternative, whether sustaining of injuries in an alternative manner has been suggested to the witnesses. All these factors disclose that the incident has happened at that particular place. 28 But the Investigating Officer has not taken care to draw-up a spot-Mahazar and he has not seized the blood stained clothes of the witnesses, who actually stated that their clothes were also tainted with blood stains while transmitting the deceased to the Hospital. The Police have also not sent the weapon to the Doctor for examination. Though the Investigating Officer in a very casual manner says that he has sent the weapon and obtained report from the Doctor, but it is not available on the record.
26. Though there are lapses on the part of the Investigating Officer, we are of the opinion that, the lapses itself will not be sufficient to throw out the case of the prosecution. Whether those lapses, in fact, go to the root of the prosecution case is the question that the court has to understand. Even accepting that the Investigating Officer has stated that the weapon which was produced was not the weapon seized by him and he has not sent the weapon for opinion. In fact, the Investigating Officer has not looked in to the investigation papers while deposing before the court. 29 Of course, it is the duty of the Investigating Officer to thoroughly come to the court by thoroughly reading the investigation papers. If the entire charge sheet would have been seen by him, he would not have deposed in that particular manner because, the Investigating Officer himself has seized the weapon under Ex.P4 and he has sent the weapon to FSL. The FSL report is also available as per Ex.P9 and Ex.P10 is the serology report. Both the documents show that the blood stains found on the clothes of the deceased matches with the blood stains found on the chopper, which was seized in this particular case and both the weapon and articles carried 'B' group blood, which matches with the blood group of the deceased.
27. As we have observed, as there is a consistent evidence in respect of using of the weapon by the accused, the point of throwing of the weapon by the accused either on the spot or at a nearby place makes no much difference for us and also regarding seizure of the said weapon by the Police was on the next day of the incident is concerned, it is because the 30 dead body was already sent to post-mortem examination. Further, we cannot accede to the argument of the learned counsel that, the police have manipulated MO.4. If at all MO.4 was manipulated, how it can be said that the said weapon contained the blood stains of the deceased. Even no suggestion was made to the Investigating Officer that, the blood stains are taken from the place of incident and smeared the same on the weapon. In the absence of elucidation of such material on record, when the witnesses have consistently stated that the police have taken away the weapon (Long) on previous day or on the next day it was seized, does not have contained the blood stains of the deceased.
28. In view of the above and on over all re-
appreciation of the entire evidence on record, we are of the opinion that the discrepancies are minor and they are not material discrepancies. Of course, the witnesses have stated here and there with reference to the place of incident, as 'abutting the house' or 'behind the gate of the house of PW.4' and also with reference 31 to the happening of the incident and coming of the accused to the spot and assaulting the deceased. Though there are some discrepancies regarding stating the facts sequence wise before the court in the cross- examination with regard to the happening of the incident. But still if their evidences are in detail appreciated, they are totally consistent with regard to the presence of the accused; presence of the deceased; taking place of the quarrel between some children and also their mothers; deceased coming to the spot advising the said mothers of the children; suddenly the accused came there and assaulted the deceased. These particular factors, in spite of discrepancies, have been established to the satisfaction of the court.
29. In this context, it is worth here to refer a decision of the Hon'ble Apex Court reported in AIR 1983 SC 753 between Bharwada Bhoginbhai Hirjibhai and State of Gujarath, wherein it has been observed as to how the omissions and contradictions have to be appreciated by the courts. In that regard the Hon'ble Apex Court has held that,-
32
"Overmuch importance cannot be given to minor discrepancies. Discrepancies which do not go to the roof of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. Moreso when the all important 'Probabilities-
factor ' echoes in favour of the version
narrated by the witnesses."
Inter alia it was also observed that,
"A witness though wholly truthful, is
liable to be overawed by the court
atmosphere and the piercing cross-
examination made by the counsel and out of nervousness may mix-up facts and get confused regarding sequence of events, or fill- up details from imagination on the spur of the moment."
30. It is also worth to mention here a decision of the Hon'ble Apex Court reported in 2000 Cr.L.J. 400 (SC) between the State of Karnataka and K. Yarappa Reddy, wherein it has been narrated as to how the court has to appreciate the eye-witnesses' version when the multiple eye-witnesses are there in a case, and as to in what manner the court should not 33 expect a set of reaction from any eye-witness on seeing the incident like murder. The relevant portion reads as under:-
" If suppose five persons witness one incident, there could be five different reactions from each of them. It is neither a tutored impact nor a structured reaction which the eye-witness can make. It is fallacious to suggest that the witness would have done this or that on seeing the incident. Unless the reaction demonstrated by an eye- witness is so improbable or so inconceivable from any human being pitted in such a situation, it is unfair to dub his reactions as unnatural."
31. In the circumstances of the case, the said principles laid down in the above said two cases are applicable. We have observed in this case also that, the eye-witnesses' version in their examination chief is so consistent, though, in their evidence in the examination chief while explaining the sequence of events, they might have mixed-up the facts and stated about the recovery of weapon, seizure of the weapon and also presence of the accused, the accused holding the 34 weapon with him etc. All these things, in our opinion, when the core of the prosecution is established, shall be treated as minor discrepancies. Therefore, we are of the opinion that the prosecution has established the case beyond all reasonable doubt. Though some doubts are exposed during the course of cross-examination, but those doubts, in our opinion, are not so reasonable doubts, which can be taken into consideration for the purpose of totally disbelieving the case of the prosecution. Therefore, we answer Point No.1 in the affirmative and we also hold that the trial Court is right in convicting the accused for the above said offence and has appropriately sentenced the accused, because the minimum sentence prescribed for the offence under Section 302 of IPC is, life imprisonment.
32. Though the learned counsel has not concentrated on the particular point that, whether the accused in a spur of moment, being enraged, came to the spot and assaulted the deceased, but, we concentrate on the same. It should always be borne in mind by the courts that, the court has to consider the 35 said aspect on the basis of the evidence on record. If there is no evidence to that effect, the court on the basis of its own imagination cannot draw any inference in that regard. In this particular case, even suggestion also made to the witnesses in the cross examination and also the evidence elicited in examination chief of all the eye-witnesses would clearly disclose that the deceased has in no way or in any manner enraged the accused. He only advised the children and mothers of the children not to quarrel. Further added to that, the accused when came to that particular spot, no conversation actually taken place between the accused and the deceased. There is no enragement by somebody else that mitigated the circumstances, but it was due to the enragement by deceased the accused suddenly in a heat of passion or due to enragement, has committed such offence. There is absolutely no evidence so far as these aspects are concerned. Therefore, in our opinion, the trial Court has not committed any error in convicting and sentencing the accused as done by it. Hence, no 36 interference is called for, as such we pass the following order:-
ORDER The appeal is devoid of merit and hence, the same deserves to be dismissed. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KGR*