Karnataka High Court
Sabeer S/O Haji Malang Babgachi Ors vs The State Of Karnataka on 25 July, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2018
PRESENT
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO.3642/2011
BETWEEN
1. Sabeer S/o Haji Malang Babgachi,
Age: 22 years, R/o Noorani,
Mohalla, Gulbarga.
2. Gafar @ Abdul Gafar,
S/o Abdul Sattar Babgachi,
Age: 22 years, Occ: Sapna Bakery,
R/o Hagarga Cross, Ring Road,
Gulbarga.
3. Naheem @ Abdul Naheem
S/o Abdul Hakeem,
Age: 23 years, Occ: Welder,
R/o: Noorani Mohalla, Gulbarga.
4. Sajeed @ Mohd. Sadiq S/o Mohd. Ayub,
Age: 20 years, Occ: Welder,
R/o Noorani Mohalla, Gulbarga.
...Appellants
(By Sri Ameet Kumar Deshpande, Advocate)
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AND
The State of Karnataka
Through Grameen Police Station,
Represented by its
State Public Prosecutor
High Court of Karnataka,
Circuit Bench at Gulbarga.
...Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Appeal is filed under Section 374(2) of
Code of Criminal Procedure praying to call for the records
in Sessions Case No.3/2009 on the file of the I Additional
Session Judge, Gulbarga peruse the same, allow this
appeal and set aside the judgment, order of conviction and
sentence dated 04.07.2011 and set the appellants/accused
at liberty in the interest of justice.
This appeal coming on for Dictating Judgment, this
day, K.N.PHANEENDRA J., delivered the following:
JUDGMENT
The appellants who are the accused Nos.1 to 4
before the Trial Court in S.C.No.3/2009, on the file of the First Additional Sessions Judge, Kalaburagi have preferred this appeal challenging the judgment of conviction and sentence passed against them. The learned Sessions Judge has convicted the appellants for the offences -3- punishable under Sections 302 Indian Penal Code ('IPC' for short) and sentenced them to undergo imprisonment for life with fine of Rs.25,000/- each and also sentencing them to undergo simple imprisonment for one year with fine of Rs.5,000/- for the offence punishable under Section 148 read with Section 149 of IPC and also sentencing them to undergo simple imprisonment for one year with fine of Rs.5,000/- for the offence punishable under Section 504 of IPC.
2. We have heard the arguments of the learned counsel for the appellants and also the learned Additional State Public Prosecutor for the State. We have carefully perused the judgment of the Trial Court and reevaluated the evidence available on record.
3. Before adverting to the grounds urged by the learned counsel for the appellants, we would like to have cursory look regarding the brief factual matrix of the case:
A person by name Ziya S/o Abdul Fazal of New Rahmat Nagar, Hagaraga road, Gulbarga has lodged a first -4- information report on 22.06.2008 stating that, due to some previous ill-will and hatred, the accused persons have assaulted the deceased Syed Tousif Hussain on 26.02.2008 at about 8.00 p.m. near Reeyan Hotel, Hagarga Ring Road, Gulbarga with knives on different parts of the body. Due to the said incident, the deceased Tousif sustained severe injuries to his head and other parts of the body and later he succumbed to those injuries while admitting to the hospital.
4. On the basis of the said first information report, the police have registered a case in Crime No.176/2008 for the offences punishable under Sections 147, 148, 323, 302 and 504 read with Section 149 of IPC. After thorough investigation, the police have laid a charge sheet against the accused persons for the above said offences. The accused persons have been arrested during the course of investigation and the accused Nos.1 and 2 are in judicial custody since 24.06.2008 and the accused Nos.3 and 4 are in judicial custody since 23.07.2008. -5-
5. The learned Sessions Judge secured the presence of the accused, framed charges against them for the aforesaid offences. As the accused pleaded not guilty, they were put on trial.
6. The prosecution in order to bring home the guilt of the accused, examined as many as 24 witnesses as PWs.1 to 24 and got marked 34 documents as per Exs.P1 to P34 and material objects MOs.1 to 18. Exs.D1 and D2 were also marked during the cross-examination of CW.1. The accused persons were also examined by the Court under Section 313 of Criminal Procedure Code and also provided with an opportunity to adduce their evidence. As the accused did not choose to lead to any defence evidence, after hearing both sides, the Trial Court came to the conclusion that, the accused persons are guilty of the aforesaid offences and accordingly convicted and sentenced them as noted supra.
7. In brief, the prosecution has examined the witnesses for various purpose, PW.1 - Shaik Amjad who is -6- inquest witness and also witness to the seizure of the clothes of the deceased as per Exs.P1 and P2 and MOs.1 to 4 which were seized at the spot. PW.2 - Syed Khaja is a witness to the Spot Mahazar as per Ex.P3 under which some material objects MOs.5 to 8 were seized. PW.3 - Jiya was the close friend of the deceased and also eye eyewitness to the incident. PW.3, PWs.5, 7 and 9 are also eyewitness to the incident and they have supported the case of the prosecution. We will discuss in detail so far as the evidence of these witnesses later in the light of the submission made by the learned counsel for the appellants.
8. PW.4 - Pradeep Kolla, the PSI examined before the Court in order to prove the previous enmity between the accused No.1 and the deceased, and he produced the documents in that context as per Exs.P5 to P7. PW.6- Mohammed Ashfaq is on auto driver who shifted the deceased to the hospital along with PWs.3 and 9. PW.8 - Afzal Khan is the witness for seizure of shirt of the -7- deceased, which was bloodstained. PW.10 - Nayeemuddin and PW.11 - Amar are witnesses for seizure panchanama as per ExsP10 and 12 respectively under which some objects have been recovered. It is stated that, from accused No.1 MOs.9, 15 and 16 were recovered, from accused No.2 MOs.10, 17 and 18 were recovered, from accused No.3 MO.11 was recovered, and from accused No.4 MO.10 was recovered.
9. PW.12 - Dr. Veeranna has conducted the postmortem examination on the dead body of the deceased and also gave postmortem report as per Ex.P14. PW.13 - Prashant has drawn the spot sketch, who was working as Assistant Engineer, PWD, Kalaburgi. PW.14 - Syed Mazhar is the brother of the deceased who receives the information from PW.3 and visits the spot and he also speaks about the motive and previous enmity between the accused No.1 and the deceased. PW.15 - Basavaraj is the head constable who shifted the dead body of the deceased to the hospital for postmortem examination. PW.16 - -8- Malappa is also head constable and has carried the articles to FSL and submitted his report as per Ex.P17. PW.17 - Kupendra is another head constable who apprehended accused Nos.3 and 4 and produced them before the Investigating Officer on 22.07.2008, as per Ex.P18. PW.18
- Basavaraj is another head constable who carried FIR to the Court on 23.06.2008, at 1.30 a.m. PW.19 - Channabasappa is a photographer who has produced the photographs as per Exs.P19 to P26 and also identified the accused persons in the photos at the time of recovery of weapons and clothes from the accused. PW.20 - Kalyani is another Assistant Engineer, GESCOM who has given a report as per Ex.P27 with regard to the supply of electricity near the spot at the time of the incident. PW.21 - Suresh has issued Ex.P28 the FSL report with regard to having examined 16 material objects. PW.22 - Shivanand Ghatti who was working as CPI at the relevant point of time who visited the spot and also conducted Inquest and spot mahazar. PW.23 - Basavaraj, PSI who registered a case in FIR No.176/2008 and apprehended accused Nos.1 and 2. -9- PW.24 - Nazeersab is another CPI who has submitted a charge sheet, against the accused.
10. The prosecution, in order to bring home the guilt of the accused persons, mainly relied upon three important aspects in this case i.e., i) the version of the eyewitnesses ii) recovery of the incriminating articles at the instance of the accused persons and; iii) the motive factor. In this context, we have to consider the submission made at the Bar so far as accused persons are concerned.
11. The learned counsel for the appellants Sri Ameet Kumar Deshapande, took us through the evidence of eyewitnesses and has submitted that on overall reading of the papers, absolutely there is no intention on the part of the accused persons to kill the deceased. In view of the injuries on the deceased and also the evidence of the Doctor, no prudent person can come to a conclusion that, there was any intention to kill but there may be intention to cause some injuries or to assault, the deceased. He also contends that there is evidence before -10- the Court that the deceased fell on a road divider and sustained some injuries, due to which, he might have died but the Doctor's evidence is ambiguous with regard to cause of death. He further submits that, sofar as this case is concerned even on perusal of the entire materials on record, the offence may not fall under Section 302 of IPC but it may fall under Section 304(ii) of IPC.
12. He also contended that there are lot of discrepancies in the evidence of the eyewitnesses. They have not specifically stated about weapons, which were held by the accused persons and who assaulted on which part of the body of the deceased. Therefore, it is apparent on record that, all the eyewitnesses are friends of the deceased. Therefore, their evidence could not have been believed by the Trial Court to record judgment of conviction.
13. The learned counsel also contended that, at the earliest point of time there was an opportunity to PWs.3, 5 and 7 to inform the said incident to the police but -11- they did not inform the police. There was a delay of one and half hours and there is exaggeration in the evidence of the eyewitnesses. Therefore, he contends before the Court that for all the said reasons, the benefit of doubt should be given in favour of the accused persons and the accused persons are entitled for acquittal.
14. Per contra, the learned State Public Prosecutor has submitted before the Court that, of course there are some discrepancies in the cross-examination of the eyewitnesses, but the core of the prosecution case has not been disturbed. There may be some contradictions and omissions when number of eyewitnesses are examined before the Court. But on overall consideration of the evidence, there is consistency with regard to the presence of the accused and the deceased at the spot and as well as the eyewitnesses and that the accused persons assaulting the deceased and due to which the deceased sustained injuries and breathed his last even before taking him to hospital.
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15. Coupled with the evidence of the eyewitnesses there are strong incriminating materials being recovered at the instance of the accused persons which connect the accused persons to the crime as all those articles were stained with blood which corroborate with the blood group of the deceased as per the report of the Forensic Science Laboratory.
16. Though the motive may not be so strong in this case, that accused No.1 and deceased quarreled with each other sometime prior to the incident but there exists some motive sofar as the accused persons are concerned. Therefore, under the above facts and circumstances, the trial Court has properly appreciated the oral and documentary evidence. Therefore, he argued that there is no scope to this Court to interfere with the judgment of conviction and sentence passed by the trial Court.
17. Under the above said backdrop this Court has to examine :-
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1. Whether the prosecution has proved the alleged guilt of the accused persons beyond all reasonable doubts ?
2. Whether the trial Court has committed any serious error in convicting and sentencing the accused persons ?
18. In order to answer the above said two points, we have to re-appreciate the materials on record. First, we would like to discuss with regard to the evidence of the eyewitnesses. There are many number of eyewitnesses to the incident. We should bear in mind that, while appreciating the evidence of the eyewitnesses, when particularly multiple eyewitnesses are examined before the trial Court, the Court has to consider whether on overall appreciation the evidence of the witnesses there is any consistency with regard to the core of the prosecution case inspite of there being some contradictions and omissions in the evidence of the witnesses.
19. In this context, we would like to rely upon the decision of the Apex Court in AIR 1983 Supreme Court -14- 753 between Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, wherein it is observed thus ;-
"that over importance should not be attached to omissions, contractions and minor discrepancies, which do not go to the root of the matter and shake the basic version of the prosecution, and observed inter-alia, that a witness though wholly truthful is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel, and out of nervousness mix up facts, get contused regarding the sequence of events, or fill up details by imagination on the spur of moment."
20. When multiple eyewitnesses are there to the incident, there could be different types of reactions from each of them. Therefore, the Court should not confuse itself for the purpose of considering whether it is a tutored impact or a structure reaction on the part of the eyewitnesses. Therefore, the Court has to consider whether the evidence of the eyewitnesses, though they are -15- related or friends of the deceased but on analyzing the evidence the Court has to find out whether their evidence is so improbable which cannot be accepted at all inspite of some minor contradictions and omissions.
21. On careful perusal and re-evaluation of the evidence of the eyewitnesses, of-course PW.3 is the friend of the deceased and PWs.5, 7 and 9 are also friends and otherwise related to the deceased. PW.14 though he is not an eyewitness to the incident, he came to the spot a little later in time who is none other than the brother of the deceased.
22. The evidence of PW.3, who has filed Ex.P.4 which is the first information report, in our opinion play a dominant role in this case. On careful perusal of the first information report, as we have already referred to, in Ex.P.4, PW.3 has categorically stated in his statement that, on that particular day due to previous illwill and hatred between accused No.1 and the deceased, all the accused persons have gathered together, chased the deceased and -16- assaulted him with the help of the knives in their hands. In detail, he has categorically deposed that, accused No.1 with the help of the knife assaulted on the head of the deceased, accused No.2 assaulted on the private part of the deceased; and on his legs; and accused Nos.3 and 4 assaulted on the shoulder and wrist and also on the neck of the deceased, due to the impact of assault the deceased sustained serious injuries. Of-course he has also stated during the course of the evidence that the deceased fell on the road divider, and thereafter, succumbed to the injuries, when there was an attempt to shift the deceased to the hospital. PW.3, during the course of the evidence before the Court, in fact, has fully reiterated the said aspect as stated in the first information report.
23. In the course of cross-examination it is suggested to this witness that he was not at all present at the time of the incident, but he came to the spot a little later and he was not present when the actual incident started. It is specifically suggested that he went to the -17- spot by that time the deceased had already fallen on the road divider. Of-course there are some contradictions elicited with regard to the knife, the nature of the knife, which was held by, accused No.3 and also the other accused persons. There are some discrepancies only with regard to the assault made by the accused persons on different parts of the deceased. It is also elicited in the course of cross-examination that the accused persons have chased the deceased till the road divider and assaulted the deceased. Though it has not been specifically stated in the first information report regarding the deceased falling on the road divider, but it is affirmed during the course of examination-in-chief and also during the course of the cross-examination, and infact the same has been fully corroborated by the other witnesses. The said evidence cannot be discarded because of the simple reason that, the accused has also taken the defence as one of the grounds that, the deceased might have suffered the injuries due to the chase of the accused and falling on the road divider. Therefore, this fact remains that the accused persons have -18- actually chased the deceased for the purpose of assaulting him till the road divider and there, actually, the accused have assaulted the deceased and after sustaining some injuries, the deceased fell on the road divider.
24. The other eyewitnesses PWs.5, 7 and 9 also categorically stated about the incident. PW.5 contradicted with respect of using of the weapons by the accused when compared to the police statement infact which has been proved during the course of evidence of the Investigating Officer. PW.7 also contradicted to his earlier statement before the police with the one made before the Court. But, as could be seen, from the evidence of these witnesses irrespective of contradictions and omissions what we could able to ascertain is that, the core of the prosecution case i.e., with regard to the presence of the accused persons, presence of the deceased and presence of the eyewitnesses has not been distorted in the evidence in the cross-examination. Only contradiction elicited are with reference to holding of different weapons by the accused -19- and assaulting the deceased on different parts of the body. It should be borne in mind that when as many as seven accused persons have gathered there, all of them surrounded the deceased, and mercilessly assaulted the deceased, in such an eventuality the mathematical expectation from the witnesses with regard to holding of the weapons by the accused and also on which part of the body of the deceased the accused persons have inflicted the injury, cannot be expected. Therefore, in view of the above decision of the Apex Court, even in spite of contradictions and omissions if the core of the prosecution case is not disturbed, in such situation, the Court should not normally disbelieve the evidence of the eyewitnesses.
25. On re-appreciation of the evidence of the eyewitnesses we find though some of them are relatives or friends of the deceased, but their evidence on the same ground cannot be discarded. It is the fundamental basic principles of criminal jurisprudence that merely a witness being a relative or a friend with the deceased, that itself -20- ipso-facto not be sufficient to discard the evidence of other witnesses. It should be shown or established before the Court abundantly that only because of that reason of relationship though such incident has not been happened, they have improved the version before the Court and exaggerated the case only with an intention to see that the accused are convicted. Though the accused persons were successful in showing that the eyewitnesses are relatives or friends of the deceased but sofar as the other materials are concerned there is no abundant material to draw any adverse inference against the witnesses nor say that their evidence cannot be totally disbelieved. The evidence of the eyewitnesses, in our opinion, is corroborated with each other sofar as the core of the prosecution case is concerned. Therefore, though there are some discrepancies as we have noticed above, the evidence of the eyewitnesses cannot be altogether discarded unless it is shown to the Court that there is any false implication by the witnesses.
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26. Though there was more opportunity to PW.7 and also PW.14 to inform the police as early as possible, as rightly contended by the learned counsel that there is some delay in lodging the first information report which is about 2½ hours. A mere delay itself is not sufficient to throw out the case of the prosecution, the delay must be deliberate and only after discussion between the witnesses and as well as the complainant if such delay has been occurred, then it may be fatal to the prosecution in the given set of circumstances of the case.
27. In this particular case as could be seen from the evidence of the eyewitnesses they have stated that, after the incident they went away from the spot and even they did not come and see the injured in the hospital as to what happened to him, and thereafter, they came to know about the death of the deceased. That clearly indicates that PW.14 or PW.7 had no opportunity to meet the other eyewitnesses and further added to that PW.1 who is the close friend of the deceased who was throughout along -22- with the deceased had been to the hospital and he is the person who later went to the police station and lodged the complaint as per Ex.P4. Therefore, when such a ghastly incident had happened in presence of the close friends and he was standing at the said spot looking at the incident helplessly, it is but natural that, he might have been frightened on seeing the such incident and perhaps that may be the reason he might have not gone to the police station to lodge a complaint but rightly preferred to go to the hospital. Such a reaction only going to the police station cannot be expected from a close friend or relative who actually saw such a ghastly incident.
28. So far as PW.14 is concerned the learned counsel Sri Ameetkumar Deshpande submitted that, this witness according to his statement in the inquest is actually narrated styling himself as an eyewitness to the incident. He came to the spot saw the incident, when the accused persons were assaulting the deceased. He would be the proper person to go to the police station and lodge -23- the complaint. But, here on perusal of the evidence led through this witness, he has categorically deposed stated that he went to the spot after receiving the information that, his brother being assaulted by the accused persons near Reeyan Hotel. It is his evidence that when he went to the spot he came to know from PWs.3 and 8 that accused persons have assaulted the deceased and ran away from the spot. Though there is some discrepancy with regard to his statement in the inquest and the evidence before the Court but the said statement of the witness has not been brought to his notice during the course of evidence and got that portion marked. Unless such portion is marked the same will not become substantive evidence for the purpose of consideration. Even otherwise if the Court excludes the evidence of PW.14 to that extent the other evidence led by the prosecution sofar as the eyewitnesses are concerned when their evidence is consistent and can be relied upon the evidence of this witness PW.14 who is only a circumstantial evidence, is of less the importance sofar as the incident is concerned. Of course PW.14 had some -24- opportunity go to the police station and lodge the complaint. In our opinion, the same principle is also applicable when he saw his brother was lying in the pool of blood and he might have felt that, it was primary duty to shift him to the hospital and then to take appropriate action, no fault can be found with sofar as the conduct of this PW.14 is concerned. Therefore, in our opinion, looking to the above facts and circumstances inspite of some discrepancies no fault can be found with the evidence of the eyewitnesses and PW.14.
29. This PW.14 has also spoken with regard to the motive of previous quarrel between accused No.1 and the deceased coupled with the evidence of the Investigating Officer i.e., PW.4.
30. The evidence of this eyewitness as well as PW.14 is also fully corroborated by the evidence of PW.6 who is actually not an interested witness, he is an auto driver who came to the spot immediately after the incident and he came to know about the incident from PWs.3, 9 -25- and 14. He assisted PWs.3, 9 and 14 to shift the deceased in his auto rickshaw to hospital. He has categorically stated that the deceased had sustained severe injuries to his different parts of the body and by the time he was shifted to the hospital, the victim died on the way.
31. Further added to that the evidence of PW.8 with regard to seizure of shirt of PW.3 which was also stained with blood which was recovered as per Ex.P.8 and marked at M.O.No.13, the bloodstains of the deceased tallied with the bloodstains contained on the seized shirt of PW.3. So this also amplifies the situation that PW.3 was present throughout at the time of the incident and while shifting the deceased to hospital. Under the above circumstances we don't find any strong reasons even after re-appreciation of the evidence of the eyewitnesses to differ from the opinion expressed by the trial Court.
32. Now coming to the recovery of some incriminating articles and connection of the articles with that of the crime, PW.10 Mr.Nayeemuddin has deposed -26- before the Court that accused No.1 and 2 have led the police and recovered pants and shirts of the accused Nos.1 and 2 which were stained with blood under the mahazar Exs.P.10 and 11.
33. The learned counsel for the appellants has contended that the said articles were recovered in an open space and it is accessible to the other people. In this regard it is worth to refer the evidence of these two witnesses. PW.10 has stated that accused No.1 on 23.06.2008 at about 4.30 p.m. has led the police to his house and went inside a house to a particular room and took out one blood stained shirt and pant which were kept (hidden) underneath a table and also took out a knife which was stained with blood which was on the upper lintle of the house i.e., called as 'sajja'. The police have recovered the same under Ex.P.10 and he has also identified the said knife and as well as the clothes of accused No.1. In the course of cross-examination, of course it is elicited that when the police and the accused -27- reached the said house the door of the house was open and a lady was standing infront of the house she went away after seeing the police and nobody was there inside the house. There were three rooms in the said house and accused went to a particular room which was on the northern portion of the said house, to bring those incriminating articles.
34. Likewise accused No.2 also took the police to his house and he also produced M.O.Nos.17 and 18 which are pant and shirt and a knife which was inside the house in a particular room and in a particular place though the house was open at that particular point of time it is not established that whether that house was accessible to any other persons. Even otherwise, the knowledge of the articles which were kept by the accused persons whether it was known to anybody including the police is not even suggested during the course of cross-examination of these witnesses. In the absence of such materials the witnesses who were not interested in the case and they have -28- categorically stated about the recovery. In our opinion the said evidence cannot be discarded.
35. Of-course in the course of cross-examination there is some discrepancy in the evidence of PW.10 with regard to the identification of the knife, he identified it as M.O.No.12 under Exs.P10 and 11. However in the course of examination-in-chief he has categorically identified as to which are the weapons which were recovered at the instance of the accused. Even otherwise when during the course of cross-examination if there is any discrepancy that should be tested with the evidence of the Investigating Officer and the mahazar itself which is marked before the Court. On perusal of the mahazars Exs.P.10 and 11 there is specification of the properties i.e., knives recovered at the instance of accused Nos.1 and 2. It is corroborated by the evidence of the Investigating Officer and as well as examination-in-chief of these two witnesses. When such being the case the discrepancy, -29- even if there is any, is only a mere discrepancy, which will not go to the root of the prosecution case.
36. Likewise PW.11 has deposed with regard to the recovery of the weapons M.O.Nos.11 and 12 at the instance of accused Nos.3 and 4. This witness has stated that accused Nos.3 and 4 were in the custody of the police on 22.07.2008. Accused No.3 took the police to a field and particularly near Deccan College. He particularly went and put his hand underneath a stone slab and took out a chopper like knife and produced the same before the police which was recovered under Ex.P.12 and the said chopper is marked at M.O.No.11. Accused No.4 also took the police to the ground floor of a building situated near the same Deccan College and he also took out a knife underneath a stone slab and produced the said knife to the police and the same was recovered under Ex.P.13 mahazar as per M.O.No.13. No much cross-examination has been adverted to sofar as this witness is concerned, except suggesting that, those places were also accessible to some other -30- persons. But the question remains is the manner in which the accused persons have led the police to the said place. Who else could have shown that, particular place is not elicited in the evidence. Therefore, when it is the specific evidence by the witnesses that the accused persons have led the police to that particular places and the accused persons have disclosed those important places and articles, took out them and from the hidden places before the police, no other inference can drawn by the Court that, the said places and the weapons were known to some other persons also. There is no alternative theory placed before the court by the accused as to who else could have kept those articles in those particular places. Moreover, it is quite evident from these articles that they were all stained with blood, particularly it tallied with the blood group of the deceased. The onus shifted on the accused to establish by means of preponderance of probabilities i.e., as to how those bloodstains of the deceased came on to their clothes and the weapons which were alleged to have -31- been used by them. In the absence of any such materials recovery it cannot be disbelieved.
37. PW.21 Mr.Suresh Gaonkar has issued Ex.P.28 which is the forensic science laboratory report. Of-course in the examination-in-chief he has not in categorical terms stated about the bloodstains on the clothes of the accused persons and the weapons etc., However, the document itself produced before the Court Ex.P28 discloses that as many as 16 items were sent to forensic science laboratory for examination, those include the sample mud and blood stained mud and stones that were found near the dead body, shirt, banian, pant of the deceased and shirt, pant and knifes seized from the custody of the accused persons. The report show that all those items were examined and serology report was submitted. It is opined that blood group of the bloodstains are stained with 'O' group of blood. This clearly indicates that the bloodstains of the deceased were found on the clothes of the accused and as -32- well as the weapons which were seized from the custody of the accused.
38. Even in the absence of the evidence of PW.21 document itself can be read as evidence as per the provision of the Code of Criminal Procedure. Therefore, the contents of Ex.P28 when it can be read as evidence before the Court, it is the duty of the accused to show any discrepancy in the said document. As we could see, that no much cross-examination except some suggestions to PW.21. Therefore, the prosecution was also successful in proving the recovery at the instance of accused Nos.1 to 4, and connection of those articles with the crime.
39. Last but not least the learned counsel has much commented with regard to the post mortem examination report and the evidence of the Doctor. In order to draw the attention of the Court that, the offence may not be fall under Section 302 of IPC but at the most fall under Section 304(2) of IPC, he submits before the Court that there are no injuries on the vital parts of the -33- body to the deceased and further the heart chamber was empty, that clearly discloses that blood was oozed out due to the fall of the deceased on a road divider and it may not be due to the injuries sustained by the accused. When two views are available that one view, which is favourable to the accused has to be adopted. Therefore, if the court cannot over rule the possibility of accused sustaining the injuries by falling on the road divider such benefit has to be given in the light of no injuries on the vital part of the deceased as per the report of the Doctor who conducted the autopsy.
40. On the above submissions, we have carefully examined the evidence of the Doctor. PW.12 Dr.Veeranna Walikar has categorically stated that, the deceased has suffered as many as nine injuries which are almost incise injuries on different parts of the body. The incise injuries were found on the head, 1/3rd of the left upper arms on medial aspect, 1/3rd of left upper arm on posterior aspect, posterior aspect of left elbow joint and -34- left femoral triangle and right hand on dorsal aspect and also on the right side of neck with different sizes. On careful perusal of the above said injuries the Doctor has opined that the cause of death was due to haemorhagic shock as a result of the injuries to the axillary and femoral blood vessels by sharp cutting instruments. Therefore, it is clear from the evidence of the Doctor that the injuries found on the deceased were with all probabilities caused by using of a sharp cutting instrument.
41. In this particular case there is no evidence whatsoever elucidated from the evidence of the accused or from the mouth of the Doctor or even from the mouth of Investigating Officer that the road divider had got any sharp edges and as there is no suggestion to the Doctor that if a person falls a road divider can sustain such injuries. Therefore, in order to probabalize that the deceased sustained injuries due to the fall on the road divider and sustained those injuries, there must be some -35- legal evidence available before the Court. In the absence of that, the court cannot draw any inference as such.
42. On the other hand there is ample and abundant materials before the Court from the evidence of the eyewitnesses that, the injuries were caused by the accused persons with the help of sharp cutting instruments. The consistency with regard to the injuries being sustained by the deceased, as spoken to by the eyewitnesses, and in the absence of any other parallel material to the Court, this Court cannot draw any inference that the deceased might have sustained injury due to the fall on the road divider and due to such injury he might have died. The evidence of the Doctor also does not clarify the main reason for oozing out of the blood in the heart chambers. It may happen due to various reasons due to the cutting of the blood vessels, the heart chambers might have been emptied or even due to the fall on the road divider the blood might have shed out. As we have stated that in the absence of any material to the alternative -36- theory putforth by the accused we have to accept the theory of the prosecution as the same is fully corroborated by the materials things before the Court. Even accepting that there were no injuries on the vital part of the body of the deceased but we cannot accept that there should be an injury on the vital part of the body but ultimately the intention of the accused persons as many as seven in number gathering and surrounding the accused with the deadly weapons like knives, assaulted on the deceased it clearly indicates that, they have come prepared fully for the purpose of causing death of the deceased and cumulative effect all the injuries death was occurred.
43. In the absence of any material things before the Court that the accused persons quarreled with the deceased and at that time and there was an enrage, so in a spur of moment the accused persons have committed such mistake, in that eventuality the Court could not draw the alternative inference in the absence of such elucidation -37- of facts showing that, the proves case falls under Section 304(ii) of IPC.
44. We are of the opinion the trial Court, after appreciating the materials on record, has rightly come to the conclusion that the offence falls under Section 302 of IPC.
45. Though the motive is not so strong enough in this particular case merely because accused No.1 and deceased quarreled with each other and first information report was lodged, but nothing is there as to what happened to that first information report lodged etc. but when the strong version of the eyewitnesses and the recovery is available, in our opinion, the motive will take the back seat. In the event of any motive the absence of other materials on record, which are sufficient to draw the inference of the guilt of the accused, there is no reason to disbelieve the same. The prosecution in our considered view has established the beyond all reasonable doubts. -38-
46. The learned counsel also contended that earlier the Court has farmed charges invoking the provision under Section 34 of IPC for the same substantive offence under Section 504 and 302 of IPC. But subsequently altered the charges invoking the provision of Sections 216 of Code of Criminal Procedure, invoking the provision under Section 149 of IPC. But as could be seen from the alteration of the charges as many as seven accused persons alleged to have been involved in a particular case though three persons were not traced, rightly the police have invoked the provisions under Section 149 of IPC. There is no question of invoking Section 34 of IPC because more than four persons have been involved in that particular case. Of-course in order to prove the common intention, the prosecution has to show some material to show meeting of minds by the accused persons, so far as Section 149 of IPC is concerned the same is not necessary. Even otherwise what we find on the above said material on record is that the accused persons came to that particular spot with fully prepared with deadly weapons like knives, the same has -39- not been explained as to why they have come there with knives and assaulted the deceased. Therefore, though there is no evidence regarding meeting of minds earlier but, even then the intention of the accused could be gathered from their conduct on the said place and time. Perhaps this may be the reason the trial Court persuaded itself to invoke Section 149 of IPC. After the alternation of the charges it appears neither the prosecution nor the accused have prayed for further cross-examination or examination-in-chief of the witnesses. Perhaps that may be the reason the Court has proceeded to hear the arguments on merits. We do not find any strong reasons to find any fault with the learned Sessions Judge in modifying the charges invoking Section 149 of IPC.
47. Therefore, we are of the opinion that the accused persons have not made out any reasonable or substantial grounds to interfere with the judgment of conviction and sentence passed by the trial Court. Accordingly, we answer Point No.1 in the affirmative and -40- Point No.2 in the negative and proceed to pass the following :
ORDER The appeal filed by the accused is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE Srt/sn