State Of Karnataka By Anekal Police vs Basappa S/O Late Moogappa on 13 December, 2010

[Cites 9, Cited by 1]

Karnataka High Court

State Of Karnataka By Anekal Police vs Basappa S/O Late Moogappa on 13 December, 2010

' (By Sri. Hashmath Pasha, Advocate) /7 (4% This Cr1.A. is ﬁled U/s.378(l) & (3) of Cr.P.C. by the State P.P. for the State praying that this Hon'b1e Court may be pleased to grant leave to file anxappeal against the judgment and order of acquittaigd-atedr. 28.05.2004 passed by the 190., Fast Track Bangalore (R) District, Bangalore in h_S_.C..No'.'~85/92 __ thereby acquitting the Respondent~A(:'cusedj for offences punishable U/Ss.143, '147,_M148«,_g 324., 30? 302 r/W. Sec. 149 of 1pc. The AppelIan't--State prays_:"that._ the above order may be set_as_ide.

This appeal Coming for_llgl'1'iearing' day, Keshavanarayana, J delivered thefollowirig:

This appeal by:.t'li'e-- against the judgment passed by the Presiding Court, Bangalore Rural District; 1992 acquitting the resp_ond.ents/lae_cused of the charges levelled against for_the._offences punishable under Sections 148, "i4i?._«14ai;'r~vy32i§§;ii3o7 and 302 r/W. Section 149 of IPC. * 'Brieﬂy stated the case of the prosecution is ('1 11" uassupnderz 3 One Sreenivasa is the deceased in this case. PW3

-- Lakshmi is the widow, PW1 -- Kariyappa is the father PW. 15 -- Gangarnma is the mother, CW5 -~« Sriram~a:a.nd PW2 ---» Chandra, are the younger .

Gowramma is the younger sisterpf the l"

are all residents of Basavanapura l:i_fi1iage*._in Rural District. Accused the'-fatherl.and"AccusedHt' Nos.2 to 5 are his sons. are also-:.resi§dents of Basavanapura Village afternoon PW. 2 had gone for" land. In the evening, entered the land of the accused. Alth,is,__::'backgrounCE, Accused No.1 assaulted PW.2 --llChandr'a.l informed by PW.2 to his parents sand o'th_:erlfaIvi1i1y members. Thereafter, at about llaoyo p,;th.«.. PW 1 to 3, cw 5, deceased PWS. 6 and 15 l"'werey.lAsitti_ng the front yard of their house, Accused Nos";-l to: Bvcame there in a group armed with weapons like it clubs. lkriife, chopper, etc.. and started abusing the family inernbers of PW1 questioning as to why they allowed "their sheep into the land. Thereafter the accused 4 tried to assault PW1 and his children. At that time, when Sreenivasa questioned the accused as to why they are assaulting, Accused No.4 stabbed Sreenivasagltirith a knife on the neck, which he was said Srinivasa fell down. At thathtirne, " "

PW.6, CW5 and PW.15 went 3 Sreenivasa, Accused her right shoulder, as a resulttslievgsustainedvﬁibleeding injury. At the same tirne. to 3 by clubs and Accused %N§;5,_ by'r'é;"ch§ppe;%V. PWs.3, 6 and 15 and V on seeing the Villagers _ﬂtl1e'"acc-used persons Went away from the place' iIrnrfiediat»eVlyf.;. the injured Sreenivasa was takejnllto Sanljagrlilﬁlgandhi Hospital where the doctor, on »e§<:an1ination;'v __ declared him as "brought dead". it aritlllabout 8.00 p.rn. PW1 lodged complaint to the incident as per Ex.P1 based on 'A if" HPWI4 Venkatakrishnaiga, SHO of Anekal Police é/.

Satation, registered the case in Crime No.53/1992 and took--up investigation. During investigation, the /3' {jg 5 Investigating Officer held inquest over the dead body and subjected the dead body to autopsy. PWJ20 Dr. K. H. Man} unath, who conducted autopsy ~ submitted the post mortem report as . opined that the death was __due ll"

hemorrhage as a result of stab injury is'{.1sta._ine_d. l}»u"rin7g:

investigation, the accused"pe'rsonsA"we1'e_ avpprehended, " V statements of witnesses 'i'egcorde'dvv...a.n§d after completing the investigation,leharge sheet came to be filed.

bThe.:'pleaded not guilty for the chargeslevelledglg and claimed to be tried. The p.F_osecu"tion in oi"'.dei9. to bring home the guilt of the to 24 and got marked Exs.P1 :5 to 13. By way of defence, accused examined to 3 and got marked Ex.D.1 to D.14. was 'the defence of the accused that on 31.1.1992 .._"eV\_Vfeni'1'é'1g accused No.1 was assaulted by PW.2, and the

-deceased and when accused No.4 went to the rescue of accused No.1 he was also assaulted and in the scuffle the deceased appears to have sustained injuries.

4. The learned Sessions Judge after sides and on assessment of oral as well -, evidence. by the judgment under accused persons of all the Ch-arges"l.eVe1led.

holding that the prosecution tel._lp_r:ovelf§the guilt of the accused for against them.

Being aggrievedﬂpy theivgjil acquittal, the State is .Sri.C'r.Bhavani Singh, learned Additional__lState Prosecutor appearing for the _ appellari~t - and Sri.Hashmath Pasha, learned counsel '«appearing for the respondents--accused. We records, carefully examined the oral andld.o'l"eurnentary evidence and we have also read the it judgment under appeal.

6. Reading of the judgment under appeal indicates that the learned Sessions Judge has assigned the following reasonings for disbelieving the the prosecution and acquitting the accused persr{ns'::"l . [i} The injury found on the,per'son"of" "

No.1 has not been explained such, the witnesses have and they have lied on .matepri.all"ppartp'of and therefore their evidence o.f'»a.cceptance; [ii] On account of injury found on the person' prosecution has failed to prove"'thve._o'f the incident; {iii)'*O_'culvar" of the material witnesses with regard to the.natureA,of weapon used for commission of _VQffenee«.is*»highly discrepant and is inconsistent with the"medical evidence;

.{iv}...'l.'lhe medical evidence rules out the possibility is ogflluser of screw driver as indicated in the history ll furnished to the Doctor when deceased Srinivasa was ., taken to the hospital;

8 (V) The weapon of offence has not been sent for forensic examination and

(vi) The defence theory is highly probabl_e.___ and acceptable having regard to evidence on record..v= _ 7'. Sri.G.I-Bhavani Singh, learned Public Prosecutor submits as un'deri" « s_ That the judgment under vap1:)"e_al illegal as the learned Sessio'iaTs."Judge' and misreading as well evidence on record, hasV_rende_re_d§tanV__Verror1ag$~ll1~él__'judgment; that the Sessions Judge to hold accused are not established, is on record, therefore the juvdgrne'11t isV.liiabl_e_,to be set aside; that the learned ' ;Sess1onstJ.1:idge has failed to consider that the oral and 'documeritary evidence placed on record satisfactorily all the accused being members of unlawful A *:f_" assembly by sharing cornrnon object assaulted deceased Srinivasa and others and caused fatal injuries to Srinivasa to which he succumbed, therefore, the learned /3 W Sessions Judge ought to have convicted the accused persons for the charges levelled against them; '"-that minor discrepancies in the evidence of pr.osec'ul;ion witnesses ought not to have been blown K to reject the case of the prosecu§tion_ir1g,itsgg having regard to the specific defence 1 accused, the presence of has been clearly established, of any circumstance acted in se1f~ defence, the not to have rejected witnesses with regarda_to._thelincident'-.of---assault on the deceased; that the learned' E3-essioans has failed to notice that the iI'l_]'1,'.<1l:y"vfl(}L11'1CluO'I1:E|iQ?U.S€Cl No.1 was not relatable to the »incident*.in.,:question as according to the contents of Certificates-:_ issued by the Hospital to which he was taken. at; the initial stage, he sustained injury by fall of A on his head, therefore, there was no obligation on t the part of the prosecution to explain the injury on the person of accused No.1 and non--exp1anation of the &/_.

10

same could not be a ground to doubt the testimony of the witnesses; that having regard to overwhelming evidence on record, the prosecution has been..a!b4le._V_to satisfactorily establish that in object which the accused had___shared_,' "

inﬂicted fatal blow to the the' accused persons are liabllep'-to thee' offences for which they are _ T I V

8. Per contra!"-«.,,1?asha, learned counsel appe.a:?ing_ for: sought to justify thejud~gfnent,:g--«urid_er_ appeal and contended as under;

That theft" 'Sessions Judge on proper appreciation of-.the oral and documentary evidence has ' r1ecord.ed.,a«.,ifi'nding that the accused are not guilty of the . charges the judgment of acquittal, the innocence of the accused has been further strengthened, therefore it t_hi"s,Court sitting in appeal against the judgment of acquittal cannot interfere with the said judgment: that the learned Sessions Judge has assigned cogent reasons 11 for disbelieving the case of the prosecution and also the testimony of witnesses and the findings recorded by the learned Sessions Judge is sound and reasonable regard to the evidence on record, and evenfif' _ View is possible on the same setiof "

sitting in appeal should not sulhstitutie 'vﬁliézyll View found by the learned"-Sessionls pointed out by the learn.edfv._S'e_ssions--_Ju,dge, the prosecution has not th.eg,in3'ury found[\the person of acvcnised defence has placed acceptable' has brought out the circun1_stances*".t*o_:iindicate_ that accused No.1 sustained the said of PW2 and the deceased, in . 'same' "incident in which deceased sustained »irij-uries;«.therefore it was obligatory on the part of the prosiecution to have explained injury on the person of accused.' and non--explanation of the said injury 'A has-..gbeen rightly Viewed seriously by the learned Sessions Judge to disbelieve the case of the prosecution; that the consequence of non-explanation of the injury /3 12 found on the person of the accused No.1 is that the prosecution has failed to establish the genesis of the incident therefore whole case of the prosecution is highly doubtful; that the ocular evidence as to-._gthe nature of weapon said to have been Cfor commission of the offence entirely differs__fr'-:):rn_g V' evidence, therefore there is serhiousé 'd3is'crepa_ncy._as' to the Weapon used in the commission~-- of the: .offenc'e,."as'=»c such the learned Session's.,:_ Judge'*._i'fsr«l5jus'tified in disbelieving the ca's.e_"':p«.of dprovsecutionf; if that the weapon recovered duri.ng'_thejV.inyestigatic«n, has not been sent to Forerisicfexdainination and this circumstance also has'rendered;'the""_;case of the prosecution highly doubtful: that"-having regard to various circumstances on record, the defence theory is highly probableddanlgihacceptable therefore, the learned Sessions Judge tjustiﬁed in holding that the prosecution has it to prove the guilt of the accused persons as such the judgment of acquittal recorded by the learned 13 Sessions Judge is unassailable and does not call for interference by this Court.

9. In the facts and circumstances of the points that arise for our consideration are. I V (1) Whether the learned Sessions justified in acquittirig persons of the chaarges4'V1ei/'elled ppagainst l them'? and (2) Whether the judgment crusader' "appéal suffers from , ax illegality calling for inte1*ferenCe_:bpy llthis

10. In v'ario'u'g..;»easonings adopted by to record judgment of acquittal,lllWe 'vhaVeA'Cai*e7fu1ly perused the evidence on are llcoriscious of the fact that this appeal by judgment of acquittal. The law as to thellscope' _ interference by the Appellate Court with the judgment of acquittal is well settled by catena of l"ill_Ade_cijsions of the Apex Court and also this Court. The mféppellate Court while sitting in appeal against the /} 14 judgment of acquittal cannot interfere with the judgment of acquittal unless it is shown that the judgment suffers from perversity or illegality on Vacclount of improper consideration of the evidencfe"'o;§~V._,l_if1'o;1;, H consideration of the material evidence on"'record.. ﬁlt .is'*~ C also well settled that merely becausen "?.fieW'i1i_S possible on the same se't__'of. evidence, l't_he.i._'ApVpellate--.f Court should not sul3stitute...lts..vi'evv to of the trial Court unless trial Court is not reasonalolethavingll on record. It is also well possible on the basisl*__Qf._ one which favours the accusedlshould' Keeping these well--settled in shall consider the case on hand.

_ .y'A:cc--ording to the case of the prosecution, .crirninal'lla;wt:;was set on motion by the complaint lodged by Al. as per Ex.P.1. According to PW.1, immediately the incident, the injured Srinivasa was taken to __f;he Hospital where the Doctor on examination declared /'1 15 him brought dead and thereafter PW1 went to the Police Station and lodged a written complaint as per Ex.P.1. As per the endorsement made on EXP. I, the was received at 8.00 p.rn. on Venkatakrishnaiah, A81 in his ora1_'evid--ence:.'h:as:"

that on 31.1.1992 at about discharging his duties as PW.i appeared before Poiice..._StAation and lodged a complaint on which he registered case: submitted FIR to the jurisdgictdidfgnai Both PWs.1 and havebeen'crorssiexianiined at length with regard to the «lodging ofdotheacdomplaint. However, we find nothing to their testimony with regard to lodging ..tiie_v'«co«rnp1aint at about 8.00 p.1n. on 31.1.1992. on Ex.P.2«~FIR by the jurisdictional Magistrate indicates that the FIR was received by him at it Adabout 10.30 a.m. on 1.2.1992. It is on the basis of the tirrie at which the FIR reached the jurisdictional Magistrate as found in the endorsement made by {'7 16 jurisdictional Magistrate on Ex.P.2, it was contended by Sri.Hasmath Pasha, that the complaint had not come into existence at its purported time and it was therefore there was inordinate and unexplained lodging the complaint. No doubt,' °' jurisdictional Magistrate at though the complaint wasslodged ﬁat.

31. 1.1992. The jurisdictionallllilvi-agistrate 'iarnasssstationed at Bangalore while was at Anekal.

After the registration was entrusted to for the purpose of de1iyer_i1--1gVVlth.e~- the jurisdictional Magistrate. He was requiijed' to from Anekal to Bangalore. It is _ in e'Vidence~-of that during that night for Want ' iconxzeyarice he could not reach Bangalore and on the lméxt' dayll--".'1:;;1o:ining he reached Bangalore and delivered thelthe jurisdictional Magistrate at about 11.00 Of course, this witness has been cross--examined at length. Nevertheless, PW23 has come out with some explanation as to why he could not deliver the FIR to /3 17 the jurisdictional Magistrate on that night itself. The explanation offered by PW.23 is acceptable, therefore merely because there is some delay in the the jurisdictional Magistrate, it cannot beheld complaint was ante timegiln this View ;of_tli1'e- .r_natter,'hwe find no delay in lodging: the c'o.mVplaint5'-M. the'. reaching the jurisdictional i\l/fagistrate.l

12. In the complaint,l' point of time, i.t has been he along with his sons, wifcé, and others were si.ttin,Vg" of""their house, all the five accusvedgvllpersonlsl armed with clubs, knives and-choplperi. 'A.eco;-rdihg to Ex.P.1, accused Nos.1 to 3 l holding accused No.4 was holding a knife was holding a chopper. It is further stated__* fEx.P.1 that accused No.4 stabbed the ..d,eceas--ed with a knife twice on the neck as a result the if ﬁldeeeased fell down and when PW. 15~GangamIna, PW.6-- ":GowramIna, CW.5--Srirama, PW.3--LakshIni, wife of the ""9 18 deceased and the complainant went to the rescue of deceased Srinivasa, PW.15 was assaulted by accused No.4 with knife on her shoulder as a result of sustained bleeding injury and thereafter 1' to 3 assaulted PW.3--Lakshmi 'V .

a result of which they also further stated in Ex.P.l lax.' L' deceased with a chopper. " case of the prosecution, immediately the injured Srinivasa was : Ljbrou fleneral Hospital, Bangalore eiramination declared him defence has produced extract of in Jayanagar General as in respect of the deceased. As ' :c.o1'1t_ents of Ex.D.7, deceased Srinivasa was H hospital with history of assault at 6.00 4fGopal. Rarnachandra and others with a A iscrewdriver. One Dr.S.B.Patil Working as Professor and of Forensic Medicine in Victoria Hospital conducted post mortem examination on the dead body 19 of Srinivasa. Unfortunately the said doctor died during the investigation of the case. Therefore, in order to prove the contents of the post mortem report submitted by said Dr.S.B.Patil, PW.2O--Dr.Manjuna4thVV_:rifwfas examined. PW.2O in his oral evidence has with regard to the contents of....post "

EX.P.14. The defence has not evidence that Dr.S.B.Patil'e:on_ducted' examination on the deadggll-boldly _ theé"dveceased and submitted report as elicited in the cross--examina--ti0n the injuries noticed on the deceased"V=avs_°rr;ent'i'or1ed in post mortem report- EX.P.l4bould by a weapon like lVI.O.l-- A_ gfxsgper "th.eV___contents of Ex.P. 14, the deceased had ' Vsustained"at"stab wound with irregular margins over the front of part of neck on the right side, situated 3 cms .. the midline and just above the clavicle frnfeasuring 1.5 crns x 1 cm. with blood oozing out and on dissection of the neck there was extravasation of blood over front and sides of the neck on the right side 4 20 over an area of 10 cms X 6 cms and on further dissection, it was observed that the weapon had entered right side neck structures, had pierced sternociedomastoid muscle, carotid the common carotid artery "

According to the opinion of due to shock and hemorrliage gtab-L' injury suffered. Corre.ctnes-s--'of:-thee"contents EX.P.14 is not challenged fherefore, from the evidence 0n§..rec¢O'_r_d in holding that the deathiof ti1e"'deceasjed"'Srinikiasa was homicidal. :7;13;- ' the deceased in his oral evidence' hasre'ite4rat'ed"..the contents of comp1aint«»F,x.P1. T116. xzszitiaess has..___'been cross--eXamined at great length. ' =th'e._crosswaxainination, the defence has suggested to hirri as unider;

'~ That when accused No. 1 was coming from his land vtoiﬁards the house in the path way in front of his (PW. 1) it __5house his [PW.1] children, themselves wayiaid accused [.1 21 No.1 and asked him as to why he assaulted PW.2 on the allegation that he [PW.2) had allowed cattle and sheep to graze in his land; that PW.2 himself as.sau:'it:ed accused No.1 first by asking accused No.1 . assaulted him (PW.2) in their "

CW5 held the collar of accusedj:

assaulting; that at that was present near the. .tamaif.ir2VVd"g':t1*eeA with a repeace patti and accused No. l and at that loudly for help; of accused No.1, accused to the rescue of his father- accused 1,; accused No.4 came to the rescue of his father_,g deceased Srinivasa suffered injury. ' ~ suggestions have been denied by PW. 1. A lV4."-if-"[?W:.iyounger brother of the deceased claims to eye-witness to the incident. He has stated in A his"'~evidence that on the date of the incident at about t 2.3..-..'3{) p.rn. he was grazing sheep near the Village tank 22 and at that time Accused No.1 abused him as to why he is grazing the sheep in his land and assaulted hifiji-;__'that after he was assaulted by accused No.1 he the house at 5.00 p.m. and informed assauit on him by accused No. }:;',"to"hisu and others; that in the eveninghe father, deceased brother othe'rs_V_ the house, accused Nosv.i4*~to hishouse and at that time accused N0A.¥_1:_ aCCuS€d N04 was hoid1ng2_"'cii;aiiu,. 8 were holding clubs and holding rnachhu; that accused: called him and others to come ou't;__4th,at"W;her1.deceased came out of the house, accused No.1"ass__au1ted the deceased on his neck as a ' ,resu1t__dec-eased sustained bleeding injury and accused "i\Io'.4 maVdeV..ahother attempt to stab Srinivasa but the blow. iiot fall on him; that at that time when PW. 15 " .came running for his rescue, accused No.4 stabbed her i don the right side of her back; that at that time when PW.6 came to their rescue, she was also assaulted by A 23 accused Nos.2 and 3; that accused No.1 assaulted PW.6 with a club on the right side of the back; that the injured Srinivas was shifted to the hospital and hospital the Doctor declared him brought de4'a*d.v 4. it

15. PW.2 has been crosséexagtrlizfiedgat' the cross--exarninat1on the -follourindg put to him: 'V V V d V That at about 'day accused No.1 was coming frjom» field', ."on""tl1'e way near his [PW.2's} he~ .._4l;el.d'VVaccused No.1 by his collacarid' the tamarind tree and CW.5'*as" well.asi_»lidec'e:a.sed Srinivasa joined him in assaulting.' a:ccused"-No:1 and at that time accused No.1 started shouting for help; that . Srinivasa had brought a repeace patti from his houssand when accused No.4 came from his house to it the rescue of his father, deceased Srinivasa assaulted

7.:a'c'cused No.1 with repeace patti on the head as a result accused No.1 fell down unconscious and thereafter they /'1 24 assaulted accused No.4 who came to the rescue of accused No.1 and when Villagers came there, they left accused Nos} and 4.

The witness has denied all these suggestiorisf T

16. PW. 3»w1fe, PW. 6--your:.geI:'_'_' mother of the deceasedflrespectiyely,_u evidence consistently. statedlliyhabaut ..the:.'._\in,lcident of assault by the and others.

They have and 2 on all material -..;Ai1."ydt}\j;,eseyiritnesses have been cross>..eXan1inVle'd:':-at -T Similar suggestions have been in the cross--eXamination regard ltoi.t_h_e_ assault by deceased Srinivasa on aaccusedi with repeace patti. However, the "witnesses';_h'aye denied all those suggestions. Thus from the suggestions put to these material witnesses by the A iydefence, it is clear that accused have admitted that lgthere was an incident in front of the house of P'W.1 at about 5.30 pm. on 31.1.1992 and during that incident 25 the deceased Srinivas, PWs.l to 3, 6 and 15 were present near their house, and accused Nos. 1 and -were also present at that place. In the according to the defence, accused No. 1 injuiy and at the same time in Srinivasa also suffered injury. Keeping facts, we will have to to learned Sessions Judge is the case of the prosecution and theory.

17. and 15 are closely relatedmto: the father, brother, wife, o:f~"the deceased. Merely because these witnesse'sare."-closely related to the deceased, their be discarded. Of course, the Vofielated Witnesses require to be carefully scruti._ni2:ed before accepting the same to rule out the if possibility of false implication. In the case on hand, ﬂeven according to the prosecution theory there was an "incident of assault on the road in front of the house of ,/'E 26 PW.l. Therefore, the testimony of these witnesses with regard to the incidentncannot be discarded. In a case of this nature, Where the witnesses are closely':

there will be likelihood of some exagge1*atior?i:..: _& it is the duty of the courts to chaff and to find out the vtruth_:«F.j\s defence theory was that by deceased with a On the ground that the not come out with any injury on the person Sessions Judge has disbei.iev--ed No doubt, if it is proved that thé"aF;c11sed.'t injury in the incident alleged' by th'e~'pr_osecution, it is the obiigation on the ' ;par.t_ 'the-.'pi"osecuti0n to explain as to how the accused llorlthe sustained injury, For that purpose, it has shown that accused No.1 sustained injury in .t:h'e'p_«same incident. The learned Sessions Judge, in our "opinion, has been merely carried away by the defence of the accused that accused No.1 sustained injury at the 27 hands of the deceased and PW.2 as well as CW5 and that injury has not been explained by the witnesses.

18. There is intrinsic evidence, which defence theory about accused No.1 the hands of the deceased. Evein' « defence, immediately after the Krishna Nursing Home Bangalore. The defence 'VEx}Aid.12~case sheet, Ex.D.1'3y~extractV_VofVV and Ex.D.14- emergency NIMHANS. As per No.1 was brought to Krishna' 7.45 p.m. with a history of injury to "day at about 5.30 p.m. and the

- ApéIti:eri.t-5 ..attend"er'f gave the history that patient évhiiiajury on account of fall of a brick on his head ygvmie at work. EX.D.12 further indicates that the xpyatienthad no loss of consciousness. The patient was it 'gjreferred to NIMHANS for further management. EX.D. 13

-Vidoes not reveal any history with regard to injury on the 28 person of accused No.1. As per the contents of EX.D.14, accused No.1 was brought to NIMHANS at about 1.50 am. on 1.2.1992 with a history of assault by person at Basavanapura at 4.00 p.rn. on the patient was conscious. On the same-.. referred back to the Krishna observation. Thus, at theV_'ear11evst.."§)o1ntof accused No.1 was Home, the history as to yfor. furnished as fall of brick o1'1V_.hisi"h'e'aVd: Of course.

according. .__ .' furnished by patien.t's-- forthcoming from Ex.D.12 as to whcqgvacsitlie Even according to EX.D. 12, a(3C51.1S:E_§uC'i No.1"wa_s_y.conscious, as there was no loss of ' sco-nsciousnAéss_. If the attender was not the eye-witness, has to how accused No.1 had sustained the injury',";Inust have been furnished to the attender by the himself. Accused No.1 has not examined the __?attender who accompanied him to Krishna Nursing Home.

19. In the cross~exarnination of PW.2, it is suggested to him that accused No.4 had taken accused No.1 to the hospital. The defence had put story that when accused No.4 took Autorikshaw to Jayanagar and CW5 who were in front __( attack them, therefore, aclcused No';4V_ take accused No. 1 inside he was taken to the house of was their relative i:aterv..t.o:ok him to Krishna Nurs:;ng'VlHor§e. iéﬁmz;:»v§¢:~, sa'id"l\/luniswamy has not been examined'-- befor'eQt_h'e.__:"c.ourt as defence Witness. The doc.ument° produced the defence does not indicate 3»lj\/'luiiiswarriljflltlorought accused No.1 to Krishna On the other hand, suggestion put to tW.2V_.~inid..icates that accused No.4 alone brought accused No.1 to the hospital. The defence in this regard it to place reliance on the testimony of PW.l7~ ~7:Alphbor1s, auto driver. Prosecution examined PW.17 to 30 speak to the effect that in the Autorikshaw owned by him the injured Srinivasa was brought to Jayanagar General I-Iospitai for treatment. However, tried to depose the facts, which were not his statement under Section ff"

objections were raised and Sessions Judge recorded facts dandy the': L' story spoken to by this was treated hostile and injthe:.fcross--eXamination of this witnyess git him that after bringing thuenhospitai he stayed in 8."OO p.m. and when he was near the" No.4 brought accused No.1 inf _Autoril{shaH_WH.for treatment and at that time he ' gnot'~a'ilo:wed to enter the hospital, therefore accused away from the hospital in the same Autoriflishaw. The defence has sought to place reliance onfdthese answers elicited in the cross--examination of i3'W.l7 to corroborate the defence theory that accused No.1 was not allowed to enter the hospital and 31 thereafter accused No.1 was taken to Krishna Nursing Home by another person and therefore inuch importance cannot be attributed to furnished under Ex.D. 12. We find no contention and the theory sought..to_ be ll defence. The evidence of PW.1lFgw:ho"

hostile is of no assistance and'-wcann'ot.be .be1_ie"v_:e'd.V~V He is" V shown to be not a- _witn.es-s...ﬁvorthy ofvv-.acL3eptance. During his statement ll recorded investigating Officer, he ha s---.:not such story. It is also highljk'lur1na'tul-1.731"forAlanllﬁuvtorikshaw driver to stay back linear' dropping the passenger. Therefore',e«.t_he, eyidence. PW. 17 cannot be of any basis to V_hr)ld__gl'that accu.se.d No.4 and accused No.1 were not the hospital when he was brought there in an autorjikshaw. This story is unacceptable. Therefore, there 'no difficulty in holding that accused No.4 himself A 'idbrouglit accused No.1 to the hospital and history furnished at the earliest point of time before the Doctor in Krishna Nursing Home indicates that accused No.1 32 sustained injury on account of fall of brick while he was working.

20. Further, the history furnished would also falsify the defence theory. contents of Ex..D.14, injured conscious when he was history furnished was lperson in Basavanapura at No.1 had been assaultedhy iral known person. the beefivillfutnished as assault by of assault on deceased took at' whereas in Ex.D.14 the tirns. pf lassault lislvsstated as 4.00 p.m. This .cifcufnstan_ce was sufficient to indicate that the defence ._tiieo1-3;':'thV_at:aecused No.1 sustained injury in the same incide_nt~.in which deceased sustained injury is not AAe.eceplt'able. Accused No.1 appears to have either ﬂslufjfered injury on account of assault by unknown Hlperson at 4.00 p.m. as stated in EX.D.14 or he 33 sustained head injury on account of fall of brick while he was working. Therefore, the finding of the iearned Sessions Judge that accused No.1 had sustain€ddin_»ju.ry in the incident in which deceased Srinivasa-- injury is perverse and contra1'y»~top the Vﬁeviidencey on 0' record. The learned Sessionsi°gJu:10g"e has' oivnittedjtoj consider the contents of its'"i proper perspective beforej.As'rec0i"di'ng aﬂdfinding as to where and when accused injury. The evidence p1ac'c'd_:_'by ::_defen'ce~.coinpieteiy improbablises the theory injury in the incident in .\vhi:chf'idjeceas--ed ' Srinivasa sustained injury. Evidencexojfdddvefencewitnesses examined as DWs 1 to 3 not VvreIat"e.a_s__.to where and when accused No.1 ' DW1 Mukund is a police constable of 'post. He is examined to prove that he took to his custody on 02.02.2002 from Krishna 'V 0' ~ i'Nui~ang Home. DW2-- Dr.R.L.Chandraprabha of NIMHANS examined to prove that accused No.1 was brought to 00 NIMHANS on 01.02.2002. DW3 I)r.B.N.Roshan Kumar, /1' 34 of Krishna Nursing Home was examined to prove that the contents of EX.D.l2 and 13 (a) are in the handwriting of one Dr.Mariappa and that said Muariulapgpa on account of his old age, is not in a position'to-.._rnoye«p out of his house. There is yetanother"''circun*1st'anc_e,'v 1' which improbabalises the dei'ence't..theo.ry.' the injury on accused No. 1.

21. As noticed supra;hit:_is':'s_ugge.sted to I35Ws. l to 3 in the cross--exarninat'1_ontliat 'Aa'cc'used No.4 came to the rescuelotiihhis"fathei;--acc:used...No.1, accused No.4 was the suggestion put to these Awitnesses,' No.1 was assaulted repeatedly by ;P'J\I.2, deceased. As per the contents of and accused No.1 had sustained only the head. If he had been assaulted by PW.2.__"dec'eased and CW.5, accused No.1 must have it sustained multiple injuries. Accused No.4 is not shown have sustained any injury. Under these "circumstances. the defence theory that accused No.1 35 was assaulted by PW.2, CW.5 and the deceased in the incident in which deceased sustained injury, is-.ggr1ot acceptable. Under these circumstances, there' was; obligation on the part of the prosecution' injury found on accused No.1.

22. Drawing our at'tention "to, the evideiice oft PW24, Sri.Pasha cor1tende.d"'t'Vnnat.'the Accused No.1 sustained in which the deceased s1;5taiiﬁ.ed "admitted by the the defence theory is We have perused the evidence! V in his evidence PW.24 --~ Investigating' has stated that, during it revealed to him that Accused No.1 idrgury in the same incident. It is further elicited the cross--examination of PW.24 that in this d or regard," he did not record the statements of any "V--vvitnesses nor collected any documentary evidence H during investigation. However, according to him, the 36 wound certificate in respect of Accused No.1 was produced before him, by Accused No.1, but, that was also not produced along with the charge she,et,.._'We really fail to understand as to how this A _ state that during the investigation it was ''~ be him that Accused No.1 sustained;'_ii13:L1ry._lin:--'theEaaitie incident, when even according.' to him, in this{re.gard he-,"

did not record statementA,..ofp"'Var1y witriessesi nor he collected any medicaid evid.efrce.l"fl_Even the so--called wound certificate have "b'ee'n produced by Accused investigation, was not produced charge sheet. Therefore, in our opinion, the .an'swers.e1icited from this witness during cr,o's:s»e§'<.atninatioJf1._.a.re not worthy of acceptance and on thatgg cannot be said that Accused No.1 sustainedf'i_in5jury in the same incident. Therefore, we rejectthe said contention. Therefore, the ﬁnding in this regard recorded by the learned Sessions Judge is H perverse and illegal, being contrary to the evidence on record. Therefore, the finding of the learned Sessions 37 Judge that since the prosecution witnesses have not explained the injury on the person of accused No.1, their testimony cannot be believed, is perverse andon that ground the testimony of material be discarded.

23. No doubt. as perthe fur1i_j.$'l1v€:*l Doctor when deceased Srilnivxasa was "to the hospital, the weapon,_ the lvvoifence was screwdriver while in thereafter and also in the said to have been usedzvwaslkrfife.détlftiejlwitneslsles'have identified M.O.1 as the knife No.4 to inflict injury on the deceasped."4PW'tthe lioctor who was examined to prove of mortern report has admitted in the .cresAs»eXa1n.inat1on that M.O.l cannot cause the injury as. mentioned in post mortem report Ex.P.14. Thus uth_.ere"is some discrepancy as to the user of weapon of offence in the incident of assault. However, on this " premise, the consistent and overwhelming evidence of a 39 undisputedly present at the scene of occurrence, being minor, in our opinion cannot be the ground to discard their testimonies. The evidence of the witnes'ses clearly established that it was accused biow which resulted in the death impact of the assault is describedpin report. The weapon had entered to a of cm and it had cut two major» b;en.e'a.th'"the neck and that resulted in the vdeath' Though the evidence of creates s-cine doubt with regard to the user,o_fV_ti1.atbeiiigiyhanfopinion evidence on the part of had not conducted the post mortem 'examina.tic-n", does not take away the consistent e'.1':iden_ce of the eyeywitnesses as to the user of the knife V -the injury on the deceased. Therefore, in the learned Sessions Judge is not justiﬁed in disvcarding the testimony of PWs.1 to 8, 6 and 15 as the nature of the weapon used for commission of the foffence by accused No.4. However, absence of any other injury on the dead body of the deceased creates doubt 41 cannot be accepted and the finding of the learned Sessions Judge in this regard is perverse.

24. In the light of our finding that_."*t:he theory that Accused No.1 sustained.'_" Vlllinwgtlielill incident in which the deceased "sus.tained--inj.ury probable and acceptable, the:"conteVr1tior!.,Aoi: ti*-ie"'learned"'l counsel for the respon_dents"'that'ficcused"l\Io';};l~ rushed to the scene of occurrence father and in the scufﬂe, 'the deceased, as such, an act committed in se1f~c1_efenc'eV.:is View of the fact that the e§id§n5e not establish that Accused No.;~1--was assaultedlbyv any of the prosecution witnesses thuemitheory of self-defence putforth by no legs to stand. Therefore, it cannot the act committed by Accused No.4 was an V * act in'"self-defence or in order to protect and rescue his _ .,,,.:Vfg1ther from being assaulted. 42

25. It is the alternative contention of the learned counsel for the respondents that having regard .to--ygthe fact that there was only a single blow sudden quarrel in a spur of moment, the.rac't~-..cornin_itte'd by the accused would not fallIl_unl_der. circumstances of Section 300 IPC' to " constiltute 'mtf.rder"g punishable under Section the other hand, it may homicide not amounting togtrngurdier Section 304 Part II of this contention.

Of blow dealt on the deceased." there was only a single blow inﬂictedlfthat itselﬁcannot be a ground to hold that comrni'tteC1_o.by Accused No.4 would fall outside V ~=any_of4the-four circumstances falling under Section 300 tithe act committed by the assailants falls under any of the four circumstances under Section 300 '.ofl1TPC, it would constitute murder punishable under Section 302 of EPC. As per the ﬁrst circumstance under Section 300 of IPC, no doubt, the culpable homicide is /'I 43 murder if the act by which the death is caused is done with the intention of causing death. However, to attract the other circumstances of Section 300 act by which the death is caused is ~ required to be done with the intention of: nu T he intention in the second and°'third" 'circt1_i°IxSt€tn'e€s_.Aisy only to cause such bodily asthe' 'knows"' V to be likely to cause *d..eath~<o'f =th'e'VV"pe_rson'to whom the harm is caused; or bodily to be inflicted is sufficient nature to cause death; _V the circumstance, culpable homicide'-- isvrnufrder, if-._t'i3e' person committing the act knows thathit. so A.irn:r:r1'inently dangerous that it must in,_'ai1 pr0b_ability'« cauvse death or such bodily injury as is I liliely 'to"cau:s'e_death and commits such act without any excuse _forfiricurring the risk of causing death or such iI1jL11*3r:'A'I.,[\S per the evidence of the material witnesses, t.h_e";act of assault on the deceased occurred when _Accused No.4 stabbed the deceased with a knife. This shows that Accused No.4 had reached the ./7 45 matter, we find no ground to hold that the act committed by Accused No.4 would fall either under Part-I or II of 304 of IPC.

26. In View of the above d1scuss1on_s,_Vi!il"e.Var§:

opinion that the learned in acquitting Accused Noxiaofythefchlarge by him for the offence punishablye under. of A IPC. The evidence Accused No.4 caused si_mpleV',hulrt.. a knife and therefore, isJto_.be_Vcon'victed for the offence of IPC for having caused simple' hurt to 15W; il5'.~{:"

. R'TOlAtl'1€:....€X'*.€nt indicated above, the judgment 'V .'un'dei*...ap:pe:al---passed by the learned Sessions Judge is such, it is liable to be set aside and accordingly, Accused No.4 is required to be convicted for V' 'T Vthle'A_«aforesaid offence. 46

28. In View of the above discussion. the appeal is allowed in part. The judgment and order 'dated 28.05.2004 passed by the Presiding Officer. Court, Bangalore Rural District, lint S.C.No.85/1992 acquitting Acc1L:'seci..l\lo.iL_ aside. In modification 0fr'[l1.E__3. No.4 is convicted for the ':éVl.'-ll-.','3:I"J.CV'€ under Section 302 of we "foi".Aliav§j'r-Q the death of Srinivasa and for. theA"o'ffence" under Section 324 of we «fo'r..hiaying lcausped-._4siimp1le'liurt to PW. 15. to undergo rigorous imprislonrprielnt to pay fine of ?25,000/- [Rupees FiyeVlzl'..l"housand only), in default, to Rigorouvsllmirnprisonrnent for one year for the under Section 302 of IPC. He is furtne-rglscintenced to undergo Simple imprisonment for Inonths for the offence punishable under Section of IPC. The substantial sentences to run 0 concurrently.

47 The judgment of acquittal recorded against Accused Nos} to 3 <3: 5 is hereby confirmed. Accused No.4 shall surrender himself learned Sessions Judge. Upon such learned Sessions Judge shall (::'o»rni*1'1'ite_ I1lI'1'ljtt)'.V lprison to serve the sentence as ordered by7this_ Court~,A"lf Acc,u's-ed, No.4 fails to surrender the'..lear;i-iedvig Sessions Judge shall take presence and to commitgghim sd/-

Sd/-

JUDGE : Pg. ~~1}*;_6 '*-Rs/*:A Pg. 5'»--40 4KGR : Pg_41 ~47

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