Karnataka High Court
The State Of Karnataka By Sindagi Police ... vs Rudrappa S/O Hanamantaraya Naraboli on 25 July, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25th DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL APPEAL NO.3646/2012
C/W
CRIMINAL APPEAL NO.3599/2012
IN CRIMINAL APPEAL NO.3646/2012
Between:
The State of Karnataka
By Sindagi Police Station
Reptd. By Addl. State Public Prosecutor
High Court Circuit Bench at Gulbarga.
... Appellant
(By Sri. P.S. Patil, HCGP )
And:
Rudrappa s/o Hanamantaraya
Naraboli, Age : 27 years,
Occu : Agriculture
R/o Hanchinal,
Tq.Sindagi,
Dist.Bijapur.
... Respondent
(Notice to respondent served )
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This Criminal Appeal is filed under Section 377 of
Cr.P.C., by the State to grant leave to appeal against the
order dated : 16.4.2012 passed by the II Addl. Sessions
Judge at Bijapur in S.C.No.25/2009 in sofar as it relates
sentencing the respondent to imprisonment for life for
the offences Punishable U/Sec.302 IPC which is
inadequate.
IN CRIMINAL APPEAL NO.3599/2012
Between:
Rudrappa s/o Hanamantraya
Naraboli, age : 23 years,
Occu : Agriculture
R/o Hanchinal, Tq.Sindhagi
Dist.Bijapur.
... Appellant
(By Sri. Nandkishore Boob &
S.S. Malipatil, Advocates)
And:
The State through Sindhagi
Police Station
... Respondent
( By Sri. P.S. Patil, HCGP
Srui.G.G.Chagashetti for Assist the
Prosecution)
This Criminal Appeal is filed U/Sec.374(2) of Cr.P.C.,
by the appellant praying this Hon'ble Court be set aside
the judgment and order of conviction and sentence dated
16.4.2012 passed by II Addl. Dist. & Sessions Judge at
Bijapur in S.C.No.25/2009 convicting the
accused/appellant punishable U/Sec.449, 302, 326, 307
of IPC.
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These appeals coming on for final hearing this day,
ASHOK G. NIJAGANNAVAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
Appeal No.3599/2012 is preferred by the appellant
- accused against the judgment of conviction and sentence passed in S.C.No.25/2009 by the II Addl. District & Sessions Judge, Bijapur for the offences punishable U/Sec.302, 326, 307, 449 of IPC.
The accused is sentenced to undergo rigorous imprisonment for life till his death and to pay fine of Rs.10,000/- on each count for the offence punishable U/Sec.302 IPC and in default of payment of fine to undergo rigorous imprisonment for a period of one year on each count.
The accused is sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.5,000/- for the offence punishable U/Sec.449 IPC and in default of payment of fine to undergo rigorous imprisonment for a period of six months.
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The accused is sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.10,000/- for the offence punishable U/Sec.307 R/w Sec.326 IPC and in default of payment of fine to undergo rigorous imprisonment for a period of six months.
Out of the fine amount if recovered from the accused, Rs.40,000/- shall be paid to the complainant by way of compensation U/Sec.357( (1) (c) of Cr.P.C., Appeal No.3646/2012 is preferred by the State represented by Addl. SPP praying to grant leave to appeal against the order dated : 16.4.2012 passed by II Addl. Sessions Judge, Bijapur in S.C.No.25/2009 in sofar as it relates sentencing the accused to imprisonment for life for the offence punishable U/Sec.302 IPC which is inadequate and modify the said judgment and passed order by imposing death sentence to the accused etc.,
2. The prosecution case in nutshell is that on 14.7.2008 in the early morning at about 4.30 a.m., the 5 injured victim Kum.Savita filed a complaint at Sindagi Government Hospital stating that she along with her parents, two brothers and a sister are the residents of Hanchanal village but she is residing along with her parents and two brothers in the farm house situated in their land and her sister is residing in the grandfather's house in Hanchanal village.
The father of the complainant namely Basawaraj was frequently quarrelling with his mother Basamma in connection with his family issues. On 13.7.2008 there was a holiday for the school. Therefore in the afternoon at about 2.00 p.m., she was talking with the accused Rudrappa near the farmhouse, at that time, her father came and got angry and asked as to why they are talking. When her mother Basamma came there from Sindagi, her father picked up quarrel on the reason that her children are not under control and they have started bringing disrepute to the complainant. On the said night, 6 all of them were sleeping in the farmhouse. At about 12.30 p.m., her father assaulted with sword (Machu) to her mother, two brothers and when her father tried to assault her, she tried to block the blow. As such, she sustained injuries to both hands, then he assaulted on her neck and left side of the head. Thereafter, her father assaulted himself with the said Machu on his neck and face and fell down. On account of the bleeding injuries sustained her parents and two brothers expired. She immediately went to the neighbourer Shankreppa and informed about the incident. Later she was brought to the hospital for medical treatment.
During the course of investigation, the police have recorded the further statement of the injured complainant ( 2nd complaint) and after completing the investigation, the police have submitted the charge sheet against the accused for the offences punishable U/Sec. 302, 307, 326, 449 of IPC.
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3. After committal of the case and appearance of the accused, the charges were framed. The prosecution has examined in all 21 witnesses as PW-1 to 21, got marked the documents at Ex.P-1 to Ex.P-29 and 15 material objections as Mos-1 to 15. On behalf of the accused, one doctor is examined as DW-1 and got marked portions of complaint Ex.P-1 as Ex.D1 and Ex.D2, got marked portions of statement of PW-6 as Ex.D3 and Ex.D4 and one X.ray report issued by District Hospital, Bijapur as Ex.D5.
4. Being aggrieved by the judgment of conviction and sentence, the accused has preferred this appeal contending that the judgment of conviction and sentence is contrary to law, facts and material placed on record. Ex.P-1 complaint is given at Sindagi Police station at 4.30 a.m., wherein the injured complainant has clearly stated that in the presence of PW-13 Medical Officer and PW-17 PSI that her father Basavaraj assaulted her 8 mother and her brothers Santosh and Mahesh with Machu and he assaulted himself with the same weapon and sustained bleeding injuries. At the time of statement, the complainant was mentally and physically fit. Thereafter, at the instance of close relatives, the accused has been falsely implicated in further statement.
5. Once the FIR is registered on the basis of the complaint, there is no question of filing the 2nd complaint. The investigating officer can take the further statement U/Sec.161 Cr.P.C., If the 2nd complaint is given, then second FIR has to be lodged. Therefore, Ex.P- 2 is not a valid complaint and the same cannot be sustained in law. The statement U/Sec.161 Cr.P.C., is recorded by JMFC Sindagi regarding the incident after the lapse of three months. There is no explanation as to what was the necessity to record the said statement before the learned JMFC. In addition to that, learned Magistrate has not been cited as charge sheet witness. 9 There are number of omissions and contradictions and improvements in the evidence of P.W.1. Ex.D1 and Ex.D2 are marked in cross examination and also proved by the concerned Investigating Officers. The evidence on record discloses that there was enmity between the complainant's party and the family of the appellant. In this regard, two criminal cases were pending. The said fact is admitted in the cross examination of P.W.6. In that event, it is highly improbable for the accused to confess before PW.6 regarding the offence said to have been committed by the appellant. The trial court has failed to consider the evidence of P.W.6 regarding the amount collected by the family members for Amogasidda Jatra and there were allegations by the accused and his family members regarding mis-appropriation of funds against the said person. P.W.1 has not at all stated regarding presence of light at the time of the incident. In that event, there was no chance for identification of the assailants. P.W.1 has stated that on 13.7.2008 the father 10 of the complainant Basavaraj had abused and assaulted with hunger. In that event, the accused might have sustained some minor injuries. Thereis no explanation as to why the Investigating Officer has not made any efforts for medical examination of the said accused. If the accused-appellant was having love affair with Savita, there was no reason for him to finish the complainant by making attempts to assault her. The Investigating Officer has not examined or collected any material records or wound certificates from Mortagi and Bijapur hospitals where the injured complainant has given statement as per Ex.P-2. This creates a doubtful circumstance to disbelieve the prosecution case. On the next day of the incident, P.W.1, P.W.9 and P.W.10 have clearly stated that on that day all witnesses were in Bijapur but the Investigating Officer has recorded statement of all the witnesses at their village. There are several contradictions. The investigation is not trustful, fair, honest, cogent and believable. Thus order of the lower 11 court suffers from legal infirmities and illegality. As such, the impugned judgment of the trial court deserves to be set aside.
6. Per contra, learned HCGP submitted that the trial court has rightly convicting the accused for the aforesaid offences. However, the trial court has taking lenient view while convicting the accused for the offence U/Sec.302 of IPC. The accused has case caused grievous injuries to the complainant and murdered her brothers and parents. The imposition of life imprisonment in this case is totally inadequate having regard to the relevant circumstances of the case. The circumstances and the manner of the crime, pricks the human conscience to the extent that it comes to a conclusion that the offender should be awarded death penalty. The manner in which the crime is committed has resulted in tense and extreme indignation of the community and has shook collective conscience of the society. Hence, prayed for modification 12 of the judgement and imposition of death penalty to the accused.
7. Heard learned counsel for the appellant- accused and learned HCGP for the State. In view of the submissions made, this Court has to re-appreciate consider the evidence on record. Thus it is necessary to have glance at the evidence of the prosecution witnesses.
8. PW-1 Savita is the victim of assault and injured eye witness to the said incident and she is the daughter of deceased Basavaraj, Basamma and elder sister of deceased Mahesh and Santosh, who have been done to death. P.W.2 is panch witness for inquest panchanama over the dead bodies of Basavaraj and Basamma and in respect of scene of offence panchanama and seizure of clothes found on the dead bodies of Basavaraj and Basamma. P.W.3 Mallikarjun Mirgi is panch witness for inquest panchanama over the dead bodies of deceased Santosh and Mahesh and also panch 13 witness for seizure of clothes found on their bodies after post mortem examination. P.W.4 Malkappa Biradar is panch witness in respect of recovery of sword and blood stained clothes of the accused. P.W.5 Sahebgouda Biradar is panch witness in respect of recovery of sword and blood stained clothes of the accused. P.W.6 Sahebagouda is the witness to the extra judicial confession of accused. PW-7 Shankrappa is the witness to whose farmhouse the complainant went running immediately after the incident. PW-8 is one of the witness who came to the scene of offence after hearing the news of the incident and found the dead bodies of Basavaraj and Basamma and their two sons Santosh and Mahesh. P.W.9 Ravikanth, is the cousin brother of the complainant. P.W.10 Gurappa is the cousin brother of the complainant. P.W.11 Dr.Rakesh Kamble, is the Medical Officer, who conducted post mortem of Basavaraj. P.W.12 Dr.Mahendra is the Medical Officer who conducted post mortem examination of deceased 14 Santosh. P.W.13 Dr.Sanganna has examined the complainant Savita and conducted PME over the dead body of Mahesh. PW-14 Ravindranath Katti is the Assistant Engineer who has prepared sketch map marked at Ex.P-18. PW-15 Siddappa is the PC who carried the FIR to the JMFC Court. PW-16 Eranna is the police constable who carried the dead bodies of Basavaraj and Basamma for PME to Sindagi Hospital. PW-17 Hanamantha PSI is the person who has registered the FIR on the basis of the complaint given and conducted inquest panchanama of deceased Santosh and Mahesh and arrested the accused. PW-18 Mahadevappa is the person who went to the scene of offence after receiving the news of the incident and found all the four dead bodies of Basavaraj, Basamma, Santosh and Mahesh. PW-19 Dr.Sharada Kulkarni is the medical officer who conducted PME over the dead body of deceased Basamma. PW-20 Vittal Jagali CPI has investigated this 15 case. PW-21 Hanamanth PC had carried the dead bodies of Santosh and Mahesh for PME.
9. The learned counsel for the accused-appellant by taking us through the evidence placed on record has pointed out the following doubtful circumstances.
P.W.1 has lodged the first complaint against her father - deceased Basawaraj in presence of PW13/Dr.Before PW-17/PSI.
P.W.2 was a witness previously in another case in C.C.No.369/2008 and 8/2010, which were pending between PW-10 and father of accused and very close to complainant's party, belongs to same community and he was also accused in one murder case of village Bankalagi.
P.W.3 was a witness previously in another case, which was pending between PW-10 and father of accused and very close to complainant's party.
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P.W.4 was witness previously in another case in C.C.No.369/2008 and 8/2010 which were pending between PW-10 and father of accused and very close to complainant's party, belongs to same community.
P.W.5 was a highly interested witness because they were collecting amount from public to celebrate festival in their village but they were not giving accounts to the villagers so in that regard there was an enmity between the accused and him. The Mos-1, 12-15 are recovered under the bridge which is accessible to all. Particular date and time of panchanama is not stated in his evidence.
PW-6 is a relative of deceased and there was enmity between the accused and himself and panch witness in earlier pending cases. He has deposed that the accused confessed before him in the morning hours immediately after sunrise, but in 164 statement, stated the time as 11.00 a.m., which is contradictory, the Ex.D-3 is marked. He admitted that he was collecting amount from public to 17 celebrate festival in their village but they were not giving accounts to the villagers, then accused objected, so in that regard, there was an enmity between the accused and him. He is neither the friend nor the relative of accused, so question of confession before him does not arise and extra judicial confession is very weak type of evidence.
PW-7 has stated as per the information given by PW-1 and after informing to him by PW-1, he informed their relative that not supported the case of prosecution as per second complaint lodged by PW-1.
PW-8 is a hearsay witness but he has not supported the prosecution and turned hostile.
PW-9 is the nephew of deceased Basavaraj and hearsay witness. When he was in Vijayapur hospital in the morning hours, at that time, the police recorded his statement. But PW-20/10 says his statement was recorded in his village.He was the witness in C.C.no.8/2010 pending between accused party and 18 complainant party. Has admitted that for 15-20 days was admitted at Vijayapur hospital but no medical records were recovered from said hospital.
PW-10 is also a nephew of deceased Basavaraj and hearsay witness. He lodged complaint against father of accused and elder brother of PW-9. He admitted that he met PW-1 in Sindagi hospital in afternoon hours and his statement is recorded in the evening at same hospital, but PW-1 says he has been shifted to Vijayapur hosiptial at 6.30 a.m., and PW-20/IO says his statement was recorded in his village at 11.00 a.m., PW-11 has stated that PW.1 was not examined in the hospital at Mortagi and no case was registered at the Moratagi police station.
PW-12 was not shown MO-1 by the police for clarification whether the injuries are possible by particular weapon.
PW-13 admitted that in his presence, the complainant, Ex.P-1 given to PW-17/PSI that she was 19 mentally fit to give statement and his signature on Ex.P- 1(b) is marked, also further stated that she was accompanied by CW-7/Ravikanth, her cousin. She was inpatient at Vijayapura hospital for three days. Records of District Hospital were not produced. The stomach of deceased Mahesh was empty, but in Ex.P-1/complaint, it is stated that they slept after having dinner.
PW-14 has stated that the height of tin-shed was 7 feet and size of room 10 X 15, so it is not possible to assault by sword, which is more than 3 feet.
PW-17 has recorded the complaint Ex.P-1 given by PW-1 in presence of PW-13/Dr.Sanganna Chikkalgi. PW-20/CPI was present till 5.00 p.m., at the spot. So question of recording the 2nd complaint of PW-1 in the morning does not arise.
PW-18 is a hearsay witness, speaks regarding the enmity between the father of accused and deceased. He stated that at about 7.00 to 8.00 when PW-1 was at Sindagi Hospital, she has disclosed before him that 20 accused murdered his parents and brother but according to her evidence, she was admitted at 7.00 a.m., at Vijayapura hospital.
PW-19 Doctor stated that the stomach of the deceased was empty but in Ex.P-1 complaint, it is mentioned that they slept after having dinner, but looking to the PM report, the incident has not occurred after having meals but before.
PW-20 has recorded the statement/second complaint/Ex.P-2 of PW-1 and it is recorded between 10.30 p.m. and 11.00 p.m. on 14.7.2008 at District Hospital statement the IO has taken her signature which is hit by Sec.161 of Cr.P.C., After arrest of the accused, he has produced them before the Magistrate and Magistrate remanded to JC on 15.7.2008, but has clearly admitted that he has not mentioned in remand report, on what basis, he has been arrested and never mentioned the progress of case. This 21 itself shows that later on the Ex.P-2 and statement of witnesses are created and concocted.
PW.20 is said to have recorded the second complaint/further statement in the hospital at Vijayapura, but before recording her second complaint, he has recorded the statements of PWs-6 to 10 on the same date at 11.00 a.m., in their village, wherein the witnesses have sated about the murder committed by the accused, but the said witnesses speak that on that day they were in Vijayapura hospital. This itself shows that the statement of witnesses are created and concocted later on. When the first complaint is registered, there was no need to record the second complaint but can take further statement.
Not collected the medical records from District Hospital, Vijayapura, not examined the medical officer of said hospital.
164 Statement is recorded on 15.10.2008 that too after filing of charge sheet, the said statement was 22 recorded by Hon'ble JMFC Sindagi at the request of one Siddeshwar, CPI. Hon'ble Magistrate and CPI were not examined and not explained reason for recorded 164 statement.
P.W.1 has given the first complaint immediately after the incident alleging that her father has committed the murder of her mother and brothers and thereafter he assaulted himself and succumbed to the injuries. Later, she has changed her version at the instigation of her relatives.
10. The 1st and foremost contention of the learned counsel is regarding false implication of the accused in this case. The grounds stated in support of false implication are that
i) In the first complaint, there was no allegation whatsoever against accused when the injured complainant has stated in her complaint about the 23 assault done by her father. There was no justifiable reason for the police to apprehend the accused.
ii) It is only after arrival of the uncle, brother and other relatives, the complainant filed second complaint ( further statement) at the instigation of her relatives;
iii) The police officials have not disclosed the source of information regarding involvement of accused either in the CD or in the remand application;
iv) Even according to the prosecution case, the police have recorded the 2nd complaint/further statement on 14.7.2008 at about 10.30 p.m. The statement of PW- 6 and other witnesses were recorded in the evening at 5.00 p.m., then how the police got the information and on what basis the accused was arrested on the said date in the afternoon.
v) PW-10 and 18 are the relatives. Some of the prosecution witnesses had rivalry against the family of the accused and two criminal cases were filed, as such, 24 on account of rivalry, these witnesses have compelled the complainant to give further statement against accused aleging that he has committed the murder.
vi) The medical records pertaining to Bijapur hospital are not produced to show that the Ex.P-2 2nd complaint or further statement of complainant was recorded there.
vii) Why 164 statement was recorded before JMFC Sindagi after lapse of 3-months after the alleged incident of murder.
viii) Why the statement of some of related witnesses were recorded in the village, when they were all in the hospital at Bijapur along with the complainant.
By referring to the aforesaid circumstances and timings of recording statement and arrest of the accused, the counsel has tried to make out a case of false implication.
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11. It is pertinent to note that the contents of Ex.P-1 and the nature and type of injuries sustained by deceased Basavaraj, complaint itself is the basis for the police to suspect the involvement of the accused. PW-20 CPI has stated in his cross examination that on 14.7.2008 he has met the prosecution witnesses PW-7 Shankreppa, PW-9 Ravikanth, PW-8 Bheemanna, PW-10 Gurappa, PW-18 Mahadevappa Biradar, PW-6 Sahebgouda. Thus the IO collected the information from the said witnesses and has immediately taken steps to trace the accused.
It is pertinent to note that the injuries found on the dead body of deceased Basavaraj are as under :-
i) Chop wound on the front of the neck, Transverse in direction, zie 10cm X 3cms X 4 cms. Muscle deep, bleeding present, juglar vein and carotid artery are cut. The wound is transversely below thyroid cartilage, cutting trachea and esophygus;
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ii) Chop wound on right jaw, measuring 10 X 9 X 4 cms muscle deep, irregular in shape, right mandibular bone fracture;
iii) Chop wound on right hand measuring 8X3X2 cms, muscle deep, right radius and ulna bone fracture;
iv) Chop wound on right hand measuring 8X3X2
cms muscle deep, margins are ragged and
bruished;
v) Chop wound on right knee, 8X3X3 cms
muscle deep, margins are ragged and bruished;
vi) Chop wound on right side of back of neck, measuring 10X3X4 cms, muscle deep, major vessels and muscles are cut.
vii) Chop wound on left knee, measuring 8X3X2 cms muscle deep, margin are sharp and bruished with destruction of underlined tissue and muscles;
viii) Chop wound on back of skull measuring 5X3X2 cms muscle deep.
Some of the aforesaid injuries cannot be self inflicted. The said circumstance coupled with information disclosed by the above mentioned prosecution witnesses 27 must have inspired the police to suspect the involvement of the accused.
12. Another important circumstance that arise for consideration is regarding involvement of the accused is concerned, it is necessary to discuss about the injuries found on the deceased Basavaraj and to ascertain whether such type of injuries can be self inflicted injuries. No doubt in the complaint, P.W.1 has stated that her father has assaulted with Machu and committed the murder of her mother, two brothers and inflicted injuries to her and thereafter he assaulted himself and died. At this juncture, it is necessary to find out whether it was possible for the deceased Basavaraj to inflict the injuries to himself with a sharp cutting weapon as mentioned in Ex.P-14, post mortem report and inquest mazhar. According to Ex.P-14 PM report, there are eight chop wounds were found on the dead body of deceased Basavaraj. Chop wound on the front of the neck, 28 transverse in direction, chop wound on right jaw with fracture of right mandible bone, chop wound on right arm, muscle deep with fracture of right radius and ulna, chop wound on right hand muscle deep, chop wound on right knee, chop wound on right side back of neck, chop wound on let knee, chop wound on back of skull. According to the opinion of Author of Forensic Medicine and Toxicology by Dr. K.S. Narayan Reddy, referred to by the trial court, in case of self inflicted incised wounds, they are usually superficial, multiple and parallel and are of equal depth at origin and termination. They avoid vital and sensitive area, like eyes, lips, nose and ears. As per Modi's Medical Jurisprudence, if there are several injuries on the body, if they are deep and extensive as a rule, homicidal, except accidents from falls, motor Cars and other vehicles. Therefore, on the basis of the above said expert opinion, the trial court has held that, it is humanly impossible for a person to inflict so many deep cut incised wounds. The very nature of injuries found on 29 the dead body of deceased Basavaraj reveal that they are not suicidal, but homicidal. Based on these reasons, the trial court has rightly come to the conclusion that the injuries found on the dead body of deceased Basavaraj are not self inflicted injuries but the said injuries have been caused by intervention of external force of some other person. It is absolutely essential and necessary of third parties' interference and only on account of the assault done by the person such injuries can be caused. It is pertinent to note that out of 8-injuries found, two of the injuries are on the back portion of the scalp and those injuries cannot be caused by self inflicted blows.
13. Another important aspect to be considered is that the defence counsel has led the evidence of medical officer of Bijapur hospital where the injured complainant was admitted. The witness namely DySP has stated that on 14.7.2008 the injured Savita was brought by PC-1047 of Sindagi Police Station along with reference letter of 30 Sindagi Taluka Hospital in the morning at 6.00 a.m., Thus as per the contention of the learned counsel for the accused regarding non production of medical records, cannot be a doubtful circumstance. Even though some of the prosecution witnesses including PW-6 have stated that their statement was recorded at 5.00 p.m., cannot be basis to hold that the police have falsely implicated the accused and apprehended without any credible information of his involvement.
14. In Ex.P-1 is the complaint, there are specific averments that on 13.7.2008 when the complainant and accused were talking near the farm house, complainant's father came there and got angry and also abused the accused as to why they are talking. Thereafter, when complainant's mother came back from Sindagi, her father shouted and argued she has bit kept her children under control. This incident is the main cause that ignited the spark and disturbed the mind of complainant's father. 31 On the same day, the murder was committed. Therefore, the information revealed in the Ex.P1 complaint must have been the basis for the police to suspect the involvement of accused. Thus, in our opinion, the doubtful circumstances pointed out by the counsel regarding false implication of the accused does not hold good.
15. The 2nd contention is regarding the motive. According to the prosecution, the motive for commission of the offence is that the father of the complainant did not like the conduct of her daughter i.e., having intimacy with the accused Rudrappa. Even on the date of the incident, i.e. 13.7.2008, at about 2.30 p.m., the accused had come to the farm house of the deceased Basavaraj and he was sitting along with P.W.1 Savita and chit chatting with her, at that time, deceased Basavaraj came to the village and got enraged by seeing the accused sitting and chit chatting with his daughter. That the 32 deceased Basavaraj has scolded accused Rudrappa and also given two blows with the hunter. This incident has ultimately led to the murder of four persons who are the parents and brothers of the complainant.
16. In a decision reported in 2019(1) AICLR 432 (S.C.) in the case of Palani .Vs. State of Tamilnadu, it is observed as under :-
"C. Evidence Act, 1872 - Motive - Eye witness - Where the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence - If the prosecution is able to prove its case or motive, it will be a corroborative piece of evidence; but if the prosecution had not been able to prove its case or motive or the motive suggested is too slender, that will not be a ground to doubt the prosecution case - When other evidence against the accused is clear and cogent as in the present case, absence of motive or insufficiency of motive is of no importance."33
17. Another circumstance pointed out by the learned counsel for the appellant is that the prosecution witnesses are close relatives who had are rivalry against the accused and his family. Even the criminal cases were also filed on account of rivalry, which leads to suspicion that this accused is implicated with the oblique motive. It is pertinent to note that, PW-1 injured complainant has given explanation as to what compelled her to give the first complaint against her father and later she has revealed the truth on realizing that her earlier statement was false.
18. The third contention of the learned counsel for the accused is that there are no independent witnesses other than the complainant. Hence, the testimony of the complainant is not reliable.
19. We are conscious of the legal position that when a solitary eye witness is there, how the court has to deal with solitary sole eye witness. Normally, the Court 34 should meticulously examine the evidence of such sole eye witness in order to overcome all the grounds raised with regard to acceptability of such witness. It is to be borne in mind that there is no bar under any law for the time being in force which say that conviction can be recorded on the basis of evidence of solitary eyewitness. However, the quality of evidence placed before the court has to be tested by other circumstances in the case.
20. If the evidence of the sole eye witness and the credibility of the evidence is not shaken by any adverse circumstance appearing on the record against him and if the court at the same time fully convinced that he is a truthful witness, then the court even without insisting for corroboration through any other witnesses can record the conviction. In the above said backdrop, now we will take up the evidence of P.W.1 who is the only eye witness in this case.
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21. P.W.1 Savita is the sole eye witness and injured victim. Her parents and two brothers are murdered in her presence. This witness has stated that on 13.7.2008 the accused - Rudrappa came to their farm house in the evening at about 2.30 p.m., at that time, her mother had gone to Sindagi market and her father had gone to the village. Her brothers had also gone out. When the complainant and accused were talking with each other near their house, her father came there and told the accused as to why he came to the land despite the warning given by him. By saying so, he gave two whips with the hunger ( Barakol ). On the same night, at about 12.30 p.m., or 01.00 p.m., when they were sleeping in the farm house, by hearing foot steps, her father opened the door, at that time the accused was holding weapon in his hand, then the accused assaulted her father on the neck, hand and heck. When her mother tried to rescue her father, the accused assaulted on her neck. When her two brothers tried to prevent the accused from 36 assaulting, he assaulted with the same weapon (Talwar) to them. The complainant tried to prevent the accused from assaulting their brothers but the accused assaulted her on the neck and hand. After assaulting them, the accused fled away. Her parents and brothers had expired. She went to the adjacent land and informed Shankreppa Gudagi (PW-7). She told PW-7 that her father has assaulted mother and two brothers as the accused had threatened to take away her life if she disclosed the said information to any other person. PW-7 came to their land and made a phone call to her uncle, cousin brothers and other relatives. Thereafter, her uncle PW-18 Mahadevappa and her cousin brother Ravi PW-9 took her to Sindagi hospital. When the police enquired her in the hospital, she informed that her father has assaulted them. The police took left leg thumb impression on the complaint Ex.P-1. Thereafter, she was taken to Bijapur Government hospital. There she told the real information that the accused has assaulted her 37 parents and brothers. Her statement was recorded as per Ex.P-2 and her left leg thumb impression was taken. Thereafter, her statement was taken in Sindagi Court as per Ex.P-3. The witness has identified the weapon (Talwar) used by the accused to assault her family members which is marked as MO-1. Further, she has identified the blood stained clothes of her father, mother and brothers which are marked as Mos-2 to 10.
22. In the cross examination, she has stated that the land of PW-7 Shankreppa is at a distance of 200-feet and PW-7 is residing alone in his farm land during night hours. She has denied the suggestion that her father was quarrelling with her mother everyday in a drunken state. Further, she has admitted that she has told PW-7 Shankrappa that her father assaulted her and other family members and she has also told that the said informtion to her uncle and cousin brothers namely PWs- 6, 9, 10 and 18. She has admitted that initially she was 38 taken to Mortagi hospital and Doctor had examined there but police were not called to Mortgagi hospital. From there she was taken to Sindagi Government Hospital by her uncle and cousin brother namely PWs-4 and 6. The CPI has recorded her statement in Sindagi Hospital in the presence of the Doctor. While giving the complaint, her uncle, cousin brother and other relatives were also there. From 14.7.2008 to 17.7.2008 her uncle, cousin brother were there with her. On the next day of the incident, the police had come to Bijapur hospital and recorded her 2nd complaint. But, at that time, her uncle and brother and other relatives were not there with her. She has denied the suggestion that she has not given the 2nd complaint. She has denied the suggestion that her father was addicted to habits of drinking, playing cards and on that day her father has assaulted them in intoxicated condition and has ended his life by assaulting himself. While recording of 164 statement except her uncle nobody was there with her. She has denied the 39 suggestion that she has given a 2nd complaint by making false allegations against the accused as tutored by her relatives. Further she has stated that she has not given statement as per Ex.D1 and Ex.D2. She has denied the suggestion that the information written in the 2nd complaint is not true and correct. She has denied the suggestion that she is deposing false evidence at the instance of her uncle and other relatives.
23. This witness is cross examined at length but nothing worth is elicited to disbelieve her evidence. It is pertinent to note that the witness has stated the reason which led to the ghastly incident of murder. It is only on account of the threat given by the accused, the complainant has not disclosed the information about the murder committed by the accused on the contrary she has made allegations against her father who was no more. Some of the injuries caused to the deceased Basavaraj cannot be the self inflicted injuries as per the 40 medical evidence and expert opinion. This circumstance supports the version of the complainant in her 2nd complaint ( further statement ) which was recorded in Bijapur hospital. Merely because she had alleged against her father in the complaint cannot be the doubtful circumstance to disbelieve the information disclosed in the 2nd complaint/further statement of the accused.
24. No doubt, there are two versions given by PW.1 but the circumstances and the medical evidence pursuade us to believe the version stated in her further statement. Even though the evidence of some of the prosecution witnesses who are the close relatives of the complainant disclose that there was rivalry between the families of the complainant and the accused that itself do not lead to irresistible conclusion that the accused has been falsely implicated with the vindictive motive and at the instigation of the relatives of the complainant. 41
25. The fourth contention of the learned counsel for the accused is that all the circumstantial witnesses who have supported the case of the prosecution are close relatives and they all had rivalry against the accused and his family. The said witnesses themselves have admitted the criminal cases namely SC No. 8/2010 and CC No.369/2008 which were filed by the family members of the complainant ( PWs-10 ) against the accused, his father and other family members alleging the offences of attempting to commit the murder and other offences which clearly goes to show that all the relatives of the complainant who are examined as prosecution witnesses are interested witnesses and they have deliberately instigated the complainant to file 2nd complaint/further statement to falsely implicate the accused.
26. PW.6 is the independent witness who speaks about the confession said to have been made by the accused regarding the murder committed by him. In the 42 cross examination he admits that Crime No.143/07 registered at Sindagi Police station regarding kidnap of the accused by the persons called Shivashankar and Babu. Further, he admits he was a panch witness in CC 369/2008 and also admit that uncle of the deceased had filed a complaint against the brother of the deceased. He also admits that he is also a witness in SC 8/2010 wherein the accused and his family members were the accused in the said case. Therefore, it is the contention of the learned counsel for the accused that the story of the prosecution about confession by the accused before this witness is highly improbable.
27. PW-7 Shankreppa is the adjacent land owner before whom the injured complainant told about the incident. He had accompanied the complainant to Moratagi hospital along with the uncle and cousin brother of the complainant, but, he has stated that the medical treatment was given in the said Moratagi 43 hospital, as such, she was taken to Bijapur hospital by her relatives. Further, he has noticed four dead bodies at the spot. The evidence of this witness corroborates with PW-1.
28. PW-8 Bhimanna is the independent witness. According to him, PW-7 informed him about the murder and he has noticed the dead bodies at the spot. This witness is treated as hostile and in the cross examination he has denied the suggestion that he has given statement as per Ex.P-13.
29. PW-9 Ravikanth Biradar has stated that PW-7 Shankreppa informed him about the incident and also the information given by Savita. He has further stated that initially Savita informed that her father has committed the murder and she said so because of the fear du to the threat given by the accused. When he enquired again, she informed the truth narrating the murder committed by the accused. In cross examination, 44 he admit his brother Gurappa had given complaint against the brother of the accused and also admits that his uncle ha filed a criminal case against father of the accused and family members which was registered as SC 8/2010.
30. PW-10 Gurappa is the cousin brother who met Savita in Sindagi hospital, she told about the incident. In the cross examination, he admits that his uncle had given the complaint against the accused, his father and uncles alleging attempt to commit murder and he has given evidence in Sessions case in Fast Track Court.
31. PW-18 is the younger brother of the deceased Basavaraj. He admits that his nephew had given complaint against the father of the accused and he has given evidence in the said case.
45
32. The main contention of the learned counsel for the accused is that all the prosecution witnesses i.e. PWs-8, 9, 10 and 18 are the close relatives of P.W.1. As such, they were interested in involving the accused even though the father of the complainant had committed the said murder.
33. Per contra, learned High Court Govt. Advocate submitted that the evidence of sole eye witness P.W.1, injuries caused and other circumstances clearly goes to show that the accused has assaulted the parents and brothers of the complainant with sword. No doubt, initially she has filed a complaint against her father alleging that he has assaulted with Machu but she has assigned the reasons that on account of the threat given by the accused, she was compelled to file such a complaint before the police. The evidence of injured witness is corroborated by other witnesses and medical evidence. The recovery of incriminating articles support 46 the prosecution version. There are no doubtful circumstances to disbelieve the evidence placed on record. Even though some of the prosecution witnesses are close relatives of the complainant, there are no valid grounds to discard their evidence. As such, there are valid grounds to interfere with the findings given by the lower court and there is ample evidence to enhance the sentence i.e., to impose to death sentence.
34. In support of his contention, the learned HCGP has relied on the following decisions :-
I. (2004) 3 SUPREME COURT CASES 654 II. (1985) 3 SUPREME COURT CASES 703.
35. In a decision of the Hon'ble Apex Court in the case of State of U.P. .Vs. Ballabh Das and Others reported in (1985) 3 SUPREME COURT CASES 703, it is held as under:
"Criminal Trial - Witnesses - Interested witnesses - Testimony of - Reliable if otherwise trustworthy - But 47 should he evaluated with care and caution - In a faction- ridden village where independent witnesses are not available, it would be manifestly unjust to reject the prosecution case merely because the witnesses produced by it were interested.
Criminal Trial - Appreciation of evidence - Merely because of certain omissions or contradictions in the prosecution case, the entire case cannot be thrown out (Para 15) Constitution of India - Article 136 - Appeal against acquittal by High Court - High Court interfering with detailed and exhaustive analysis of evidence made by trial court by laying great importance on small and insignificant facts or discrepancies and being mainly influenced by the mere fact that the prosecution witnesses were interested - Held on facts, High Court's approach absolutely wrong and perverse and its conclusion unreasonable - Acquittal order of High Court set aside, conviction under Section 302/149 IPC recorded by trial court maintained, and accused sentenced to life imprisonment - Criminal Procedure Code, 1973, Sections 378 and 386."
36. In a decision of the Hon'ble Apex Court in the case of Dhanaj Singh Alias Shera and Others .Vs. 48 State of Punjab reported in (2004) 3 SUPREME COURT CASES 654, it is held as under:
"Criminal Procedure Code, 1973 - Ss. 157, 160 to 168 -
Investigation - Defective Investigation - Effect of - Non fatal to prosecution where ocular testimony is found credible and cogent - Court has to be circumspect while evaluating the evidence in a case of such type - Thus, accused cannot be acquitted solely on account of defect in investigation - Evidence Act, 1872 - S. 45 - Non-sending of bloodstained earth for chemical examination and weapons of assault and pellets for ballistic examination - On facts, held, not fatal - Criminal trial -
Infirmities/Lapses;/Omissions - Defective investigation - Effect
- Penal Code, 1860 - Ss. 302/34."
37. The principles laid down in these cases is that whenever the prosecution places the evidence of interested witnesses, the court has to be caution in scrutinizing their evidence. In some cases, it will be impossible to find independent persons to come forward and give evidence and in a large number of such cases only partisan witnesses would be natural and probable witnesses. What the law 49 requires is that whether the witnesses are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication. Once it is found by the court, on an analysis of the evidence of an interested witness that there is no reason to disbelieve him then the mere fact that the witness is interested cannot persuade the court to reject the prosecution case on that ground alone.
38. No doubt, the evidence of all the aforesaid relatives of the complainant disclose that there was a rivalry between the family of the accused and family of the complainant. This circumstances alone cannot be the criteria to brush aside the entire prosecution case.
39. In a decision of the Hon'ble Apex Court in the case of Ram Ashrit and others .Vs. State of Bihar reported in (1981) CRI. L. J. 484, it is held as under:
"Evidence Act (1 of 1872), S.3 - Murder case - Interested and partisan witnesses -0 50 Testimony of - Appreciation - Mode of - Judgment of Patna High Court reversed. (Penal Code (1860), S.302).
40. In the decision of the Hon'ble Apex Court in the case of Rajinder and Others .Vs. State of Haryana reported in (2001) CRI. L. J. 1707, it is held as under:
"Penal Code (45 of 1860), S. 300 -
Murder - Appreciation of evidence - Sole testimony of eye-witness, who was not only interested being cousin of deceased but also inimical to accused - Non - examination of other material witness though available -
Other eye-witness, whose name was mentioned in F.I.R. was also not examined -
Conviction of accused on basis of uncorroborated testimony of sole eye witness
- Liable to be set aside."
41. In the decision of the Hon'ble Apex Court in the case of Mahtab Singh and Another .Vs. State of 51 U.P. reported in 2009 SAR (Criminal) 527, it is held as under:
"(A) Appeal against acquittal - Scope of exercise of power by appellate court - There must be substantial and compelling reason for holding that trial court was wrong -
It is also incumbent on the appellate court to arrive at the conclusion that no two views are possible - On the incident day, deceased had gone to shop of one "R" to purchase bidi-While he was returning according the prosecution appellant gave a knife blow - P.W.1 and PW-2 who were sitting under the thatched roof rushed towards the spot - Statement of "R" was neither recorded u/Sec.161 CrPC nor he was tendered in examination before court - It was from the light of lantern which was burning at R's shop that PWs could see the culprits - IO did not seize the lantern - Non - examination of "R" is destructive of the substratum of the prosecution story - Trial court acquitted the accused - Whether High Court 52 was justified in reversing the Judgment of acquittal - Held : No. (B) Interested Witness - Vital omission in the testimony shake the trustworthiness of the witness - Evidence of the witness (PW-1) about light is doubtful - IO in his testimony stated that neither in FIR nor in the statement PW-1 told him about electric pole at the place of incident - About the light from lantern, the said lantern was not produced before the court - PW-1 did not tell IO that it was a moonlit night - The evidence of PW-1 being brother of the deceased could not have been thrown out as an interested witness but in the backdrop of totality of his evidence - Held : his testimony could not have been relied upon."
42. In all the aforesaid decision, the Hon'ble Supreme court by referring to the factual aspects has come to the conclusion that the evidence of the relatives cannot be relied on. In a decision reported in 2001 53 CRIMINAL LAW JOURNAL 1707 there are several other material witnesses including the eye witness to corroborate but they were not examined. Therefore, non examination of material witnesses or withholding the eye witnesses is considered as serious lacuna. But in the instant case, the injured complainant is the sole eye witness and remaining all the witnesses are circumstantial witnesses. None of the material witnesses have been left out or withheld.
43. In a decision reported 2009 SAR (Criminal) 527 there was a issue regarding trustworthiness of the witness who had not mentioned about the light at the place of incident. In the present case, nothing is elicited in the cross examination that the injured complainant could not see the assault done as there was darkness. Thus the said circumstance cannot be considered as the criteria to disbelieve the prosecution case. 54
44. In view of the decisions of the Hon'ble Supreme Court the testimony of interested witnesses is reliable if otherwise trustworthy but the same should have to be evaluated with the care and caution. In a fraction returned village or when there was rivalry between the family of the accused as well as the family of the complainant, sometimes it becomes difficult to find independent persons to come forward to give evidence. What the law requires is that where the witnesses are interested, the court should approach their evidence with caution in order to exclude the possibility of false implication. Mere fact that the witness is interested cannot persuade the court to reject the prosecution case on that ground alone.
45. No doubt, the evidence of the relatives namely PWs-8, 10, 12, 18 are all relatives of the complainant and their evidence disclose that there was a rivalry between these two families and criminal cases were also filed by 55 both the parties alleging the offence of committing murder.
46. Another important aspect to be considered is of the evidence of PW-13 Doctor. The said witness has stated that on 14.7.2008 injured Savita was brought by PC-1047 of Sindagi Police Station along with reference letter in the morning at about 6.00 a.m., Thus as per the contention of the learned counsel for the accused regarding non production of medical records cannot be a doubtful circumstance or a reason for any false implication of the accused. Even though some of the prosecution witnesses including PW-6 has stated that the statements were recorded at 5.00 p.m., on the said date. The same cannot be a ground for falsely implicating the accused or apprehending without any information about his involvement.
47. In Ex.P-1 complaint there are specific averments that on 13.7.2008 when the complainant and 56 accused were talking near their farm house, her father enquired as to why they are talking. Thereafter when the complainants mother came back from Sindagi, her father shouted and argued that she has not kept her children in control and they are undisciplined. This incident is the main cause which ignited and disturbed the mind of the accused and resulted in murder of four persons. The information of this incident helped the police to suspect the involvement of accused. In our opinion, the doubts pointed out by the learned counsel for the accused regarding false implication does not hold good.
RECOVERY OF INCRIMINATING ARTICLES.
48. In the present case, the incriminating articles such as sword and the blood stained clothes of the accused have been recovered as per the information disclosed by him in his voluntary statement recorded by the Investigating Officer. PWs-4 and 5 are the panch witnesses for seizure mazhar for recovery of Sword and 57 blood stained clothes of the accused. These two witnesses have supported the case of the prosecution. No doubt some suggestions have been made in the cross examination that they are also interested witnesses as they have given evidence in some other criminal case and that itself is not a ground to disbelieve their evidence. The IO PW-20 has stated about the recording the voluntary statement and recovery of incriminating articles in presence of panchas through seizure mazhar. Under these circumstances, the recovery of the incriminating articles cannot be said to be doubtful and unbelievable.
49. We are not unmindful of the object of Section 27 of the Act. The provision may be mis-used by the dishonest Investigating Officers. In such cases, safeguards are insisted by the courts for the purpose of ensuring regularity and correctness of the actions of the Police Officers. But the same principle is not applicable 58 to all the Police Officers who genuinely and promptly investigate the matters though they commit some lapses during the course of investigation un-mindful of consequences of their acts. Therefore, it all depends upon the facts and circumstances of each case. But, the court should be alive and alert to examine whether the Investigating Officer on the basis of the information, has proceeded to discover the facts given by the accused and consequential recovery of the material objects or articles at the instance of the accused, were made.
50. We are conscious of the legal position that when a solitary eye-witness is there, how the court has to deal with the solitary sole eye-witness. Normally, the court should meticulously examine the evidence of such sole eye-witness in order to over come all the grounds raised with regard to the acceptability of such witness. It is to be borne in mind that, there is no bar under any law for the time being in force, which say that conviction 59 cannot be recorded on the basis of the statement of a solitary eye-witness. However, the quality of the evidence placed before the court has to be tested by other circumstances in the case. If the evidence of the sole eye-witness and the credibility of the evidence is not shaken by any adverse circumstance appearing on the record against him and if the court at the same time fully convinced that he is a truthful witness, then the court even without insisting for corroboration through any other witness, can record the conviction. In the above said backdrop, now we will take up the grounds urged before this court.
51. If the materials on record, gives an assurance to the court with reference to the recovery of the incriminating articles, even though it is not specifically deposed about the information given by the accused, in our opinion, it only amounts to irregularity which would not in any manner paralyze the remaining portion of the 60 recovery of the incriminating articles at the instance of the accused. Of course, what is statutorily required is that the Investigating Officer has to depose the discovery of facts in consequence of the information. The acceptability of what is deposed by the Investigating Officer with reference to the information given by the accused are all the circumstances to be visualized by the court independently, in the facts and circumstances of a given case. Strictly going by Section 27 of the Act, what is required is only the evidence of the Investigating Officer and the other witnesses if examined before the court to ascertain the whole gamut of the discovery of facts and recovery of material objects or the articles at the instance of the accused. If the discovery of facts and consequent recovery is on the basis of some information given by the accused though not vividly depicted in the evidence of the Investigating Officer, in our opinion is not totally fatal to the consequential recovery at the instance of the accused.
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52. The .... contention of the learned of the accused is regarding the discrepancies, improvements and variations in the evidence of prosecution witnesses. During the course of argument the learned counsel for the appellant strenuously contended that some of the detail information stated in the oral evidence do not find place in the complaint or FIR. It is pertinent to note that FIR is not a encyclopedia and in the present case, the complainant herself was injured on account of the assault done with the Talwar and her parents and two brothers died on the spot on account of the bleeding injuries caused with the weapon. As such, one cannot expect the said injured to give the minor details regarding light at the place of the incident or the type of injuries caused etc. Even assuming that there are some minor improvements, they shall not be the grounds to reject the entire case of the prosecution. Always those improvements which are of the nature of material 62 contradiction alone can be considered as the doubtful circumstances. The minor improvements or contradictions if any shall not be ignored. Even the delay in recording 164 statement is not a doubtful circumstance to disbelieve the entire prosecution case. If the defence counsel wanted to prove the contradictions, he could have summoned the concerned witnesses, but no such efforts are done. We have scanned the entire evidence of the prosecution witnesses. There are no glaring discrepancies or improvements so as to disbelieve the entire prosecution case. Thus, the contention of the learned counsel in this regard are devoid of merits.
53. The last contention of the learned counsel for the appellant is regarding minor lapses in the investigation. In this connection, it is worth to refer a decision of the Hon'ble Apex Court reported in (2003) 6 SCC 73 between Visveswaran and State Rep. by SDM, wherein the Hon'ble Apex Court has observed that - 63
"Investigation - Defective investigation - Effect of - Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved - The only requirement is of extra caution by courts while evaluating evidence in such cases - Acquittal of accused solely on the ground of defective investigation, held, would not be just and proper."
54. The evidence of proof beyond all reasonable doubt does not mean that there should be a perfect proof. It is the yardstick for the courts to appreciate the materials on record and to come to the conclusion that the charges are proved beyond reasonable doubt or not.
55. In the instant case, according to the prosecution story, the accused came in the midnight at 12.30 p.m., and assaulted the complainant and murdered her parents and brothers. The complainant tried to prevent the accused from assaulting and even she has tried to hold the sword which was held by the 64 accused. In that process, she has sustained injuries to both hands. Merely because she has not stated about the light at the place of incident at the time of the commission of the offence or non mentioning the same cannot be considered as doubtful circumstance. Over importance should not be attached to omission or minor contradictions which do not go to the root of the matter and shake the basic version of the prosecution. It is quite impossible for a witness though wholly truthful is liable to be over awed when the witnesses who are rustic villagers and ladies may get frightened because of the courts atmosphere and the piercing cross examination made by the counsel. Out of the nervousness they may mix up the facts or may get confused regarding sequence of events. If a person witnesses a ghastly incident, we cannot expect a set of reaction from such a person. Each and every person reacts in a different manner on seeing such violence and conduct of the accused. 65
56. As discussed above, we are of the view that the injured victim has given clear evidence and her evidence is corroborated by medical evidence and supported by the recovery of incriminating articles. The evidence placed on record has established the guilt of the accused beyond all reasonable doubts. Therefore, we do not find any reasons to discard the evidence of injured victim PW.1 and other witnesses as their evidence inspire the confidence to believe the prosecution case.
57. In the instant case, the trial Court has sentenced the accused to undergo life imprisonment till his death. It is pertinent to note that the trial court has no jurisdiction to award life sentence till his death and under these circumstance the sentence awarded as life sentence till death is not proper and justified.
58. Further, in the present case, the State has preferred the appeal for enhancement of the sentence to 66 death penalty. Learned HCGP strenuously contends that the accused has committed the murder of four persons and assaulted to the complainant. The accused had pre plan to commit the murder. The circumstance and the manner of the crime, pricks the human conscience to the extent that it comes to a conclusion that the offender should be awarded death penalty. Therefore, sentence imposed by the trial court is inadequate.
59. In the present case, we have decided to confirm the conviction and sentence. At this juncture, it is worth to refer to a reported decision in 2017 (2) KCCR 1169 (DB) in the case of The State of Karnataka through Khanapur P.S., Belgaum District .Vs. Shivanand Vihnu Gurav and Others, wherein their Lordships on considering the various judgements of the Hon'ble Supreme Court regarding sentencing policy and the yardstick to be followed in awarding death sentence, has formulated certain guidelines.
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60. In view of the guidelines laid down in the aforesaid decisions, it is necessary to consider whether the present case falls under the category of rarest of rare case. In order to apply the guidelines as noted in Bachan's case, two important questions are formulated:-
i) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
ii) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
61. In another decision reported in 2019 (1) AICLR 424 (SC) in the case of Prahlad vs. State of Rajasthan has observed as under:
"We do not find that the murder
has been committed with extreme
brutality or that the same involves
exceptional depravity. On the other hand, 68 as mentioned supra, the accused was young and the probability that he would commit criminal acts of violence in the future is not available on record. There is every probability that the accused can be reformed and rehabilitated. In this context, the observations made by this Court in the case of Bachan Singh v. State of Punjab, is reproduced as follows:
"209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society."
Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be bloodthirsty. 69 Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of the human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when 70 the alternative option is unquestionably foreclosed."
62. In the case on hand, as could be seen from the evidence placed on record, the accused and the complainant are residents of the same village. No doubt there was rivalry between the two families and that is not the root cause which prompted the accused to commit such ghastly crime of committing the murder of four persons. The accused is just 23 years old and he was a bachelor. The accused is not involved in any other crime prior to the incident and even during the course of trial, he has not caused inconvenience to any witnesses and he has no antecedents other than the present charges levelled against him. The evidence disclose that the accused had intimacy with the complainant and when they were talking to each other on the date of the incident, father of the complainant abused and assaulted the accused with a hunter which instigated the accused 71 for committing such ghastly crime. Be that as it may, there is no other cogent evidence to show that the accused is menace to the society and he was involved in other criminal activities prior to the said incident. The accused and his family members are the residents of the same village and they are agriculturists. AS such, they had not gone to think of the consequences. No inference can be drawn that the accused committed these crimes with pre-planning to take revenge. The evidence on record goes to show that out of anger the said offence is committed by the accused. The accused and his family members seems to be poor. The accused being a poor agriculturist had no such occasion to get freed by using money and other tactics. The accused was jointly cultivating the lands with his father and other family members. There is no strong motive factor to connect connect the accused that it was done with deliberate intention with all the necessary plan.
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63. In the present case, the trial court has convicted the accused to undergo life imprisonment till his death. The imposition of sentence by the trial court to undergo life imprisonment till his death is not just and proper. Even the grounds urged by the prosecution for enhancement of the sentence are devoid of merits. We do not find reasons to impose death penalty to the accused. On analyzing the entire evidence placed on record, we are of the opinion that the sentence imposed by the trial court requires to be modified. Hence, we proceed to pass the following ;
ORDER Criminal Appeal No.3599/2012 is partly allowed. The Order of sentence imposed by the trial court to undergo life imprisonment till his death is modified and the accused is sentenced to undergo only life imprisonment and to pay a fine of Rs.10,000/-. In default of payment of fine to undergo simple imprisonment for a 73 period of one year and undergo other sentences also as ordered by the trial court.
Criminal Appeal No.3646/2012 preferred by the State is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE SGS