Karnataka High Court
Vishnu Narayan Moger And Another vs The State Of Karnataka on 8 August, 1995
Equivalent citations: 1996CRILJ1121, ILR1996KAR185, 1995(5)KARLJ225
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
JUDGMENT M.M. Mirdhe, J.
1. Criminal Appeal No. 473 of 1989 is preferred by the appellants who were the accused in the trial Court against the judgment dated 6-7-1989 passed by the Sessions Judge, Karwar, in S. C. No. 6 of 1989 convicting the 1st appellant/accused No. 1 for the offences punishable under sections 304 Part II and 324 of the Indian Penal Code and 2nd appellant/accused No. 2 for the offence under Section 114 punishable under Section 109 Indian Penal Code and sentencing the 1st appellant to undergo rigorous imprisonment for 5 years for the offence under section 304 Part II and to undergo rigorous imprisonment for 2 years for the offence under section 324 Indian Penal Code, and ordering the sentences to run concurrently and releasing the 2nd appellant on the Probation of Offenders Act.
2. Criminal Appeal No. 736 of 1989 is preferred by the State against the very judgment of the Sessions Judge, Karwar, acquitting the 1st appellant of the offences punishable under Sections 302 and 307 Indian Penal Code and the 2nd appellant of the offence under section 114 I.P.C.
3. Criminal Appeal No. 473 of 1989 is to be heard by a learned Single Judge. It has been clubbed with Criminal Appeal No. 736 of 1989, since both the appeals are directed against the same judgment of the trial Court. As both the appeals are directed against the same judgment and the parties are also the same, we have heard both the appeals together and pronounced a common judgment in both the appeals.
4. We have heard Shri A. B. Patil, the learned Additional State Public Prosecutor for the State, and Shri V. P. Kulkarni, the learned counsel for the accused, fully and perused the records of the case.
5. The case of the prosecution is as follows :-
Accused No. 1 is the son of accused No. 2 P.W. 1 is the complainant and she is the sister of P.W. 17. P.W. 1 was residing in the house of her brother, husband of P.W. 2. The house of the accused is situated opposite to the house of P.W. 3 Kamala. About 6 months prior to the incident quarrel started between the accused on the one hand and Kamala and her family members on the other on account of Straying of dogs and fowls. About a week prior to the incident the accused is alleged to have assaulted P.W. 3 Kamala and her daughter C.W. 27 Tara. On the advice of P.W. 4 a police complaint was given by C.W. 27 as per Exhibit D.12. The parties were summoned by the Police Sub-Inspector. Bhatkal, and an undertaking was taken from them they would not indulge in quarrelling in future. On 1-12-1988 at about 11.00 or 11.30 a.m. both the accused came in front of the house of P.W. 1 and accused No. 1 told as follows :
Then P.Ws. 1 and 2 came out of the house and questioned accused No. 1 why he wanted to harm them and they also sent a word for P.W. 4 Laxmi to come there. After some time both the accused returned to their house. Thereafter P.W. 1 went and informed P.W. 16, the Mandal Panchayat Chairman, who assured P.W. 1 that he would look into the matter. On the very day at about 1.30 or 2.00 p.m. both the accused came again in front of the house of P.W. 1. Accused No. 1 was holding a broken bottle in his right hand and a bicycle in his left hand. Accused No. 2 was holding a chappal in her hand. Accused No. 1 started abusing the women folk and asked them to come out of the house P.Ws. 1 to 4 came out of the house. P.W. 2 asked accused No. 1 as to why he was abusing them. Then accused No. 2 instigated accused No. 1 to finish all those ladies. Then accused No. 1 threw the broken bottle, kept the cycle on stand, removed a dagger from his waist portion and stabbed P.W. 2. When deceased Venkatamma went forward saying that he has assaulted Narayani, accused No. 1 abused and also stabbed her. After stabbing the deceased, accused No. 1 stabbed P.W. 3 Kamala who was also present there. Accused No. 1 threatened the on-lookers and went towards Shirali on his bicycle after stabbing the ladies. Due to the stab P.W. 2 fell on the road. P.W. 3 fell by the side of a drain and deceased Venkatamma fell inside the compound of P.W. 2's house. Then P.W. 10 Mohan, the son of the deceased, came there and he brought an Autorikshaw and shifted the injured to Shirali hospital where they were examined and P.W. 13 pronounced that Venkatamma was dead and advised to shift P.Ws. 2 and 3 to Bhatkal hospital for further treatment. P.W. 27, the P.S.I. of Bhatkal Police Station, on receipt of the telephone message from C.W. 22 at about 2.10 p.m. came to Shirali hospital where he was informed about the shifting of P.Ws. 2 and 3 to Bhatkal hospital and the death of Venkatamma. He secured P.W. 1 and recorded the complainant Exhibit P.1. The police after completing the investigation filed charge sheet against the accused.
6. The trial Court after assessing the evidence held that the prosecution has proved the incident in which accused No. 1 assaulted the deceased Venkatamma and caused injuries to P.Ws. 2 and 3 and accused No. 2 abetted her son in the commission of the offence. The trial Court also held that the offence committed by the accused does not come under Section 302 or 307 I.P.C. but under Sections 304 Part II and 324 I.P.C. and sentenced accused No. 1 as mentioned above and gave the benefit of the Probation of Offenders Act to accused No. 2.
7. It has been proved that Venkatamma death a homicidal dealt by the evidence of P.W. 13 Dr. Arvind Metri and the Post-Mortem Report. Exhibit P.12. P.W. 13 has stated that the injuries found on her were antemortem and the death of the deceased was due to shock as a result of injuries in the vital organs and due to profuse internal haemorrhage. His evidence proves beyond doubt that the deceased died a homicidal death.
8. P.W. 13 has examined P.W. 3 Kamala and noticed the injury mentioned in the Wound Certificate Exhibit P. 13. He has stated that the injury was dangerous in nature and it requires treatment for about 15 days. When he examined P.W. 3 the age of the injury was of 6 hours and caused by a sharp instrument.
9. P.W. 13 has examined P.W. 2 also and noticed the injuries mentioned by him in the Wound Certificate Exhibit P. 14. He was of the opinion that the injuries were dangerous in nature and caused by sharp instrument.
10. Hence, the evidence of P.W. 14 proves that the prosecution has established the fact that P.Ws. 2 and 3 also sustained injuries caused by sharp instrument and the injuries found on them were dangerous. It is the case of the prosecution that it was accused No. 1 who caused injuries to Venkatamma which resulted in her death and also to P.Ws. 2 and 3.
11. There were quarrels between the accused and the family members of P.W. 3. About 10 days prior to the incident accused Nos. 1 and 2 assaulted P.W. 3 and her daughter. A complaint was lodged with the police and than complaint was marked as Exhibit D. 12. Even the other witnesses have also spoken on this aspect of the prosecution case. From the evidence on record it is apparent that there was ill-will between accused Nos. 1 and 2 on the one side and P.W. 3 and her family members on the other on account of their dog and fowls entering into the house of the accused. Against this background of motive the evidence of P.Ws. 1 to 7 have to be assessed.
12. P.W. 1 has stated in her evidence that on 1-12-1988 at about 11.00 a.m. both the accused came in front of her house. Accused No. 1 was holding a broken bottle and telling -
At that time, she was stitching clothes inside her house and her sister-in-law C.W. 9 Narayani was spreading the clothes in the backyard. She along with C.W. 9 and C.W. 11 asked accused No. 1 why he wanted to harm them. By then the deceased Venkatamma and C.W. 10 Kamala also came there. It is her further evidence that thereafter she went to Shirali to inform the Mandal Panchayat Chairman. When she informed the Chairman, he promised that he would look into the matter and set right all things. Further evidence of P.W. 1 is that at about 1.00 or 1.30 p.m. both the accused again came near her house. Then accused No. 1 was holding a broken bottle in his right hand and a bicycle by his left hand and accused No.2 was holding a slipper in her hand. Accused No. 1 then shouted and asked P.W. 1 and others to come out of the house, as he wanted to finish them off. At that time P.W. 1, Narayani C.W. 9, Kamala C.W. 10, Laxmi C.W. 11 and the deceased Venkatamma were present. When C.W. 9 went and asked accused No. 1 why he is using the word "Rande", he told that he would finish them off. Accused No. 2 also instigated accused No. 1 to commit the offence. Then accused No. 1 threw the bottle and parked the bicycle, took out a dagger from his waist portion and stabbed C.W. 9 Narayani and, when the deceased Venkatamma intervend, accused No. 1 stabbed her too by saying "Rande". Thereafter, accused No. 1 stabbed C.W. 10 Kamala. He also threatened that, if anyone came forward, he could finish him also. So saying, he was about to go on his bicycle, when C.W. 9 Narayani tried to hold his bicycle, she was stabbed by him. Thereafter, accused No. 1 took the cycle and went away. Her evidence is similar to the evidence of P.Ws. 2, 3, 4 and 7. Their evidence including the evidence of the two injured witnesses go to prove beyond all reasonable doubt that on account of the previous enmity accused Nos. 1 and 2 came near the house of P.W. 1 in the morning on 1-12-1988, abused P.W. 1 and others, went away, again came in the afternoon and stabbed P.Ws. 2 and 3 and the deceased.
13. The learned counsel for the appellants submitted that the evidence of all these witnesses is unbelievable, as these witnesses are related to each other and they are interested witnesses. They have also got a motive to depose against the accused.
14. It is well settled principle of law that the evidence of a witness cannot be rejected merely on the ground that he/she is an interested, related or partisan witness. If a witness is related or interested, it is a ground to assess his/her evidence more cautiously. If the evidence of such witness is found acceptable, there is no bar in law to act on such evidence.
15. The learned counsel for the appellants also submitted that their evidence is not corroborated by any independent witness. He cited P. W. 9 as an example in support of his argument. P.W. 9 has not supported the prosecution case.
16. If an independent witness, like P.W. 9 does not support the prosecution case probable on account of being won over by the defence, it cannot be a ground to reject the evidence of other witness if it is found acceptable.
17. The learned counsel for the appellants also submitted that P.W. 1 had given a false complaint against 24 persons and that she had falsely implicated them in that case and therefore she is not truthful.
18. The evidence of a witness will have to be assessed by its intrinsic worth. If there are contradictions in the evidence and if by such contradictions the veracity of the evidence is affected, it can be a ground for the Court to reject the evidence of such witness. But, merely because the previous complaint of the witness against some other persons has been dismissed, it cannot be a ground for the Court to disbelieve the witness in the subsequent case. The argument of the learned counsel for the appellants regarding truthfulness of P.W. 1 amounts to saying that, if a witness lied in one case, he/she must be branded as liar in the subsequent cases as "once liar is always liar". That is not the principle of law. Law permits a Court to believe a witness even if he/she has spoken both falsehood and truth in a particular case and if the truth can be separated from falsehood, law permits the Court to act on that part of the evidence which is truthfull and separable from the falsehood spoken by the witness. Therefore, this argument of the learned counsel for the appellants cannot be accepted.
19. The learned counsel for the appellants further submitted that P. W. 1 is a dangerous woman as her own evidence discloses that her husband left her and after being left by her husband she has an illicit relationship with another man and she has even filed a case for maintenance against that man.
20. This ground urged by the learned counsel for the appellants also cannot be a ground to infer that P.W. 1 has not told truth in respect of the incident. This Court is not trying to find out the motive as to why her husband left her and as to why she lives with other man. In order to assess the intrinsic worth of her evidence relating to the incident in this case the failure of her married life with her husband and her subsequent living with another man cannot be a ground to discard her evidence in this case which is found acceptable. The Doctors who conducted post-mortem examination over the dead body of the deceased Venkatamma and who examined P.Ws. 2 and 3 have deposed that the injuries noticed by them on the persons can be caused by a weapon like M.O. 4. M.O. 4 is a knife. In this context it is to be noted that the learned counsel for the appellants tried to attack her evidence on the ground that she has stated that the accused used a dagger in the assault. But in her statement before the police she has stated and identified M.O. 4 as the weapon with which the accused assaulted the deceased and other witnesses. A wrong description of the weapon as 'dagger' at one place of her evidence cannot be a ground to discard her entire evidence. The evidence of this witness which is corroborated by the evidence of other witnesses proves beyond reasonable doubt that accused No. 1 assaulted the deceased with the knife and caused injuries on P.Ws. 2 and 3.
21. Both the accused have filed written statement under Section 313 Cr.P.C. which reads as follows :-
"We, the undersigned, being accused Vishnu and his mother Smt. Narayani both being accused Nos. 1 and 2 do hereby make this humble submission as follows :
1. We have committed no offence at all much less an offence of either murder, or attempt to kill, either d/d Venkattama, or the injured 2 ladies Narayani or Kamala Moger of Venkatapur. All that happened on 1-12-1988 was sheerly accidental, or was under helpless circumstances, or purely in self defence of accused No. 1.
"2. We are poor people living in a hutment at Kadvinkere and in that locality there are about 50 houses of Moger Community who are all dominated by P.W. 17 Ganapati Durga Moger, and his friend Rama Durgappa Moger - the wiseman (or Buddhivant) or our Community at Venkatapur. In our community, it is taken as an act of belittling the caste if any of the Moger man were to marry a woman or girl from moger community girl from Kundapur side where in that community the law of 'aliyasantana' prevails. Thus, I accused No. 1 having married a girl from Kundapur side i.e. from Kota Village in Kundapur Taluka, this P.W. 17 and the Buddhivant, kept me and my people from out of community and put a social ban on all the members of the family; so much so that 2 of my sisters i.e. Nagamma sister of accused No. 1 and Laxmi Kom Ramkrishna Moger sister of accused No. 2 Narayani, were got discarded by their respective husbands and the unmarried sister Suman of accused No. 1 and another daughter of accused 2 were also ostracised so that nobody could negotiate for the marriage of said sister Suman.
3. 2ndly, a just infront of our house or hut at Kadavinkere, there was the house of Smt. Kamala (P.W. 3) and P.W. 17 Ganapathi and it was said Ganapathi who killed one hen from our hut and ate mutton out of it and apprehending trouble to "him, he got a false complaint filed against accused No.2 by taking advantage of the fact that her son accused No. 1 had gone to his father-in-law's place at Kota for the Tulsi habba on 22-11-1988. This complaint was got filed on 28-11-1989 and when accused No. 2 exposed the truth of the matter and told the P.S.I. Bhatkal how P.W. 17 Ganapathi was perpetrating the high-handedness, he and his henchman Dinkar Achari (P.W. 16), instigated the women folk to teach a lesson to accused No.1 when he were to return from Kundapur village. Accused No. 1 did not know all this all this at first. On his return on 1-12-1988, he met his mother in Shirali Bazaar and learnt of it and was proceeding to his house in the morning by 10.30 a.m. or so.
4. When accused Nos. 1 and 2, were so passing in front of house of P.W. 1. Devamma, the said complainant and her elder brother's wife Smt. Narayani began hurling abuses towards them. Accused No. 1 could not afford to go on quarrelling with the women-folk and as such both the accused went to their house at the other end unmindful of the abuses by P.W. 1 and others. Accused No. 1 finished his midnoon food by 2.00 p.m. and started to go to his master's house at Alvekodi on his bike and even when he was so proceeding, and was passing in front of P.W. 1's house, he found there 5 to 6 women who all of a sudden came out of the compound armed with brooms and chappals, surrounded his bicycle and began to assault him or thrash him out with the brooms and abusing him simultaneously.
5. Accused No. 1 felt greatly humiliated and could not known what he should do and so out of sheer desperation and in order to threaten the ladies and out of sheer sense of self-protection he just took out the small pen-knife from his shirt pocket and moved it this way and that so that he could dispel the attack or thwart the attempt of the ladies to thrash him out. In that process, 2/3 ladies got some minor injuries and they stopped the attack and then accused No. 1 left for Alvekodi on the bike that he had brought. Accused No. 2 ran for help to the spot when she saw her son being attacked from a distance; she did not participate in the counter assault or instigated anybody to commit any offence.
6. Accused No. 1 does not own any bike at all; the bike that he had carried with him on 1-12-1988 was a hired one and accused No. 1 returned it back to the owner the same evening and accused No. 1 left for Kota in Kundapur Taluka since he felt highly humiliated and insulted and could not dare to show his face in the locality and was also afraid that Mogar Community People of the locality led by P.W. 17 Ganapathi, P. W. 16 Dinkar Achari and the Buddhivants would retaliate and take revenge on him. When he was so staying in his father-in-law's place at Kota village, the police came and arrested him nearly 2 months after the incident.
Thus both the accused pray that they have committed no crime and they may kindly be acquitted of the charges levelled against them. The whole case is machination of P.W. 1 and P.W. 17 who are well-versed in this art of creating false stories & versions against anybody to achieve their own ends. (2 documents are produced herewith).
Sd/-
Sd/-
Accused No. 1.
(L.T.I. of Narayani Kom Narayan Moger) (Accused No. 2) Presented, Dated, 28-6-1989.
Contents explained to the accused and statement typed but as per their say.
Sd/-
G. K. Haldipurkar.
Advocate.
Documents Produced are :-
1. C C of Statement by P.W. 1 in S. C. No. 15/84 20-1-1986.
2. C C of Judgment in S. C. No. 15/84 dated 31-1-1986."
22. The learned counsel for the appellants submitted that the accused have not filed any statement under Section 313 Cr.P.C. and therefore this statement cannot be made use of. This statement discloses that it has been filed under Section 313 Cr.P.C. and the accused have also stated that they are filing the written statement. Therefore, the argument of the learned counsel for the appellant that the accused have not filed this statement under Section 313 Cr.P.C. is not correct. We are aware that the statement of the accused under Section 313 Cr.P.C. cannot be made use by the Court to fill up the lacuna in the prosecution case. But, the law does not prohibit the Court from looking into the written statement to see whether it corroborates the prosecution case. From the statement it is clear that accused Nos. 1 and 2 were passing in front of the house of P.W. 1 and accused No. 1 felt humiliated and in order to threaten the ladies and for self-protection he took out a pen-knife to dispel the attack or thwart the attempt of the ladies to thrash him out and in that process P.Ws. 2 and 3 got some minor injuries. The presence of P.W. 1 and the presence of accused Nos. 1 and 2 and also other ladies are admitted by the accused in the written statement. It is also admitted by the accused in the written statement that accused No. 1 took out a knife and by that knife some ladies were injured. Of course, the case of the accused is that what he did was for his self defence. (We will examine this aspect a little later). But the case of the prosecution in this material aspect is fully corroborated by the statement under Section 313 Cr.P.C. Another ground which shows the guilty conduct of accused No. 1 was absconding for 2 months. He could not be apprehended for 2 months. This could not be the conduct of an innocent person. It is also the prosecution case, that after the arrest of accused No. 1 he made a voluntary statement and in pursuance of the statement M.O. 4 was produced. Submission of the learned counsel for the appellants of course is that P.Ws. 1 to 3 have stated that they were present when accused No. 1 led the Police to produce M.O. 4 before the Police. But, they did not say that M.O. 4 is the one that was used by the accused. Their evidence will have to be assessed in a proper and meaningful manner. The entire evidence of the prosecution is to the effect that accused No. 1 stabbed the ladies with M.O. 4. Recovery of M.O. No. 4 is spoken to by the Investigating Officer and P.Ws. 1 to 3. Merely because they have not stated that M.O. No. 4 was used by accused No. 1 in the assault, it cannot lead to an inference that M.O. No. 4 was not connected with the crime involved in this case. If the evidence of P.Ws. 1 to 3 is assessed in a meaningful manner, the only inference that can be drawn is that they identified M.O. 4 as the weapon which was used by accused No. 1 in the incident.
23. All the pieces of evidence referred to above and the written statement of the accused prove beyond reasonable doubt that accused No. 1 assaulted the deceased Venkatamma and P.Ws. 2 and 3 with M.O. 4 and caused injuries which led to the death of Venkatamma.
24. The next contention of the learned counsel for the appellants is that accused No. 1 committed the offence as an act of his self-defence.
25. The three persons who sustained injuries were ladies. They were not armed with any deadly weapon. Even according to the written statement of the accused they were holding only broom-sticks and chappals and they surrounded his bicycle and began to assault him or thrash him out with the brooms and abusing him simultaneously. Law gives right to one to kill another only in the situation where there is imminent danger to his life or in other situations enumerated in Section 100 of the Indian Penal Code. Here, there was no danger to the lives of accused Nos. 1 and 2 from the ladies who were alleged to have been armed with chappals and broom-sticks. Therefore, there was no justification for the accused to exercise their right of self-defence.
26. The learned counsel for the appellants further submitted that, if the Court is not inclined to accept the plea of private defence of the accused, the Court may accept that accused No. 1 acted on the great provocation by the 3 ladies on account of their abusing him in public place.
27. We are unable to accept this argument of the learned counsel for the appellants also because, there was enmity brewing between accused Nos. 1 and 2 on the one side and the deceased Venkatamma and others on the other. Even on the day of the incident accused Nos. 1 and 2 came to the house of P.W. 1 earlier and after abusing her and others went away. If there was really a provocation, the incident would have happened at the first occasion itself. Instead, both the accused came again at 1.30 p.m. and accused No. 1 caused injuries to 3 persons, viz. P.Ws. 2 and 3 and the deceased Venkatamma. When accused No. 1 was about to go on his bicycle after assaulting them, P.W. 2 tried to prevent him from going from there. Then accused No. 1 again stabbed her. All these facts clearly show that accused No. 1 acted in a calculated manner to wreak vengeance on them. In the circumstances, it is difficult to accept the contention of the learned counsel for the appellants that the accused committed the offence on account of provocation. After assessing the evidence in this case, we are of the opinion that the trial Court erred in convicting accused No. 1 (Appellant No. 1 herein) for the offence punishable under Section 304 Part II, when the evidence clearly discloses the homicidal death of Venkatamma was the result of the act of accused No. 1 to cause her death, and the offence committed by accused No. 1 falls under Section 302 of the Indian Penal Code and we hold accordingly.
28. Coming to the conviction of accused No. 2 (Appellant No. 2 herein), she has been convicted for the offence under Section 114 I.P.C. on the ground that the prosecution has proved beyond any reasonable doubt that she abetted her son to commit the offence punishable under Section 302 I.P.C. But, in the complaint there is no mention that accused No. 2 abetted accused No. 1 abetted accused No. 1 to commit the offence so also in the evidence of P.Ws. 5 and 6 who had come to the place of incident. They have not stated that accused No. 2 had instigated accused No. 1 to commit the offence or accused No. 1 would not have committed the offence unless accused No. 2 instigated him to do so. The evidence of the prosecution witnesses is not consistent in this regard to come to the conclusion that accused No. 2 committed the offence punishable under Section 109 I.P.C. Therefore, we are of the opinion that it will not be safe to act on such evidence to infer that accused No. 2 instigated accused No. 1 to commit the offence and that the trial Court erred in convicting accused No. 2 for the offences under Section 114 read with Sections 302 and 324 I.P.C.
29. For the above reasons we proceed to pass the following order :
Both the appeals are allowed in part. The judgment of the trial Court convicting accused No. 2 (Appellant No. 2 herein) is set aside. She is acquitted of the offences with which she has been charged.
Accused No. 1 (Appellant No. 1 herein) is convicted for the offence punishable under Section 302 I.P.C. in place of the offence punishable under Section 304 Part II I.P.C. and he is sentenced to undergo rigorous imprisonment for life and to this extent the judgment of the trial Court is modified. So far as the conviction of accused No. 1 for the offence punishable under Section 324 I.P.C. by the trial Court and sentencing him to undergo rigorous imprisonment for 2 years is concerned the judgment of the trial Court is confirmed. The sentences awarded to accused No. 1 are ordered to run concurrently.
Accused No. 2 was released under the Probation of Offencers Act on her entering into a bond. Accused No. 1 was granted bail on his executing a self bond for Rs. 5,000/- with one surety for a like sum. The bail bonds stand cancelled.
Accused No. 1 is ordered to be taken into custody and sent to undergo the sentence awarded to him. He is entitled to set off of the period of R.I. already undergone by him against the sentence awarded to him by this Court.
30. Appeals partly allowed.