Karnataka High Court
Somalingappa Yalival S/O Ningappa vs State Of Karnataka on 12 June, 2023
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B. PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE C.M. JOSHI
CRIMINAL APPEAL NO.100251/2019
C/W.
CRIMINAL APPEAL NO.100423/2019
IN CRL.A. NO.100251/2019
BETWEEN
SOMALINGAPPA YALIVAL,
S/O. NINGAPPA,
AGED ABOUT 56 YEARS,
OCC: AGRI.,
R/R HIREHONNALLI,
TQ. KALAGATAGI,
DHARWAD.
...APPELLANT
(BY SRI L.S. SULLAD, ADVOCATE)
AND
1. STATE OF KARNATAKA,
CIRCLE INSPECTOR,
KALAGATAGI POLICE,
REP. BY PUBLIC PROSECUTOR,
2
HIGH COURT OF KARNATAKA,
DHARWAD.
2. BASAVARAJ YALIVAL,
S/O. SHIVAPPA,
AGED ABOUT 36 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
3. SANGAPPA YALIWAL,
S/O. SHIVAPPA,
AGED ABOUT 33 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
4. PRABHU YALIVAL,
S/O SHIVAPPA,
AGED ABOUT 42 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
5. MANJUNATH,
S/O. GURUSIDDAPPA DODAMANI,
AGED ABOUT 38 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
6. KUMAR OLEKAR @ VAJRAKUMAR,
S/O. KALLAPPA,
AGED ABOUT 35 YEARS,
OCC: AGRI.,
3
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
7. MANJAPPA YALIVAL @ GANGADHAR,
S/O BASAPPA,
AGED ABOUT 28 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
8. MATTU CHKALABBI @ MRUTUNJAYA,
S/O. BASAPPA,
AGED ABOUT 21 YEARS,
OCC: AGRI.,
R/R HIREHONALLI,
TQ. KALAGATAGI,
DHARWAD.
...RESPONDENTS
(BY SRI V.S. KALSURMATH, HCGP FOR R1;
SRI K.L. PATIL, ADVOCATE FOR R2 TO R8)
THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.,
SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT IN S.C.
NO.5/2016 DATED 18.04.2019, PASSED BY IV ADDL.
DISTRICT AND SESSIONS COURT, DHARWAD AND CONVICT
RESPONDENT NO. 2 TO 8 FOR THE OFFENCE PUNISHABLE U/S
143, 147, 148, 341, 302 R/W 149 IPC AND CALL FOR THE LCR
IN SESSIONS CASE NO.5/2016 IN THE FILE OF IV ADDL.
DISTRICT AND SESSIONS COURT, DHARWAD.
IN CRL.A. NO.100423/2019
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE
CIRCLE POLICE INSPECTOR,
4
DHARWAD RURAL CIRCLE,
(KALAGHATAGI PS),
DHARWAD DISTRICT,
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI V.S. KALSURMATH, HCGP)
AND
1. BASAVARAJ,
S/O. SHIVAPPA YALIWAL,
AGED ABOUT 36 YEARS,
OCC: AGRICULTURE.
2. SANGAPPA,
S/O. SHIVAPPA YALIWAL,
AGED ABOUT 33 YEARS,
OCC: AGRICULTURE.
3. PRABHU,
S/O. SHIVAPPA YALIWAL,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE.
4. MANJUNATH,
S/O. GURUSHIDDAPPA DODAMANI,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE.
5. KUMAR @ VAJRAKUMAR,
S/O. KALLAPPA WALIKAR,
AGED ABOUT 35 YEARS,
5
OCC: AGRICULTURE
AND KIRANI SHOP.
6. MANJAPPA @ GANGADHAR,
S/O. BASAPPA YALIWAL,
AGED ABOUT 28 YEARS.
7. MUTTU @ MRUTUNJAYA,
S/O. BASAPPA CHAKALABBI,
AGED ABOUT 21 YEARS,
OCC: STUDENT.
ALL ARE R/O. HIREHONNALLI,
TQ. KALAGHATAGI,
DIST: DHARWAD,
PIN CODE: 580114.
...RESPONDENTS
(BY SRI K.L. PATIL, ADVOCATE FOR R-1 TO R-7)
THIS CRIMINAL APPEAL IS FILED U/SEC.378(1) & (3)
OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
18.04.2019 PASSED BY THE IV ADDL. DISTRICT AND
SESSIONS JUDGE DHARWAD IN S.C. NO. 5/2016 AND SET
ASIDE THE JUDGEMENT AND ORDER OF ACUITTAL DATED
18.04.2019 PASSED BY THE IV ADDL. DISTRICT AND
SESSIONS JUDGE, DHARWAD IN S.C. NO. 5/2016 AND
CONVICT AND SENTENCE THE RESPONDENTS/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTION 143, 147, 148,
341, 302 R/W. SECTION 149 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 15.02.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO
CONFERENCING AT BENGALURU, THIS DAY, C. M. JOSHI, J.,
DELIVERED THE FOLLOWING:
6
JUDGMENT
These appeals arise out of the judgment of acquittal in SC No.5/2016 passed by the learned IV Additional District and Sessions Judge, Dharwad, dated 18-4-2019.
2. The complainant-Somalingappa S/o Ningappa Yaliwal as well as the State have approached this Court in these appeals.
3. The parties are referred to as per their ranks before the Sessions Court for the sake of convenience.
4. The brief facts of the case are as below:
Based on the complaint filed by the
complainant Somalingappa Yaliwal (PW12)
Kalghatagi PS registered Crime No.280/2015 on 20-09-2015, wherein it was alleged that the complainant was the resident of Hirehonnalli village of Kalghatagi Taluka, and his son Ningappa was serving in Military for the last six years prior to the 7 filing of the complaint and had come to the village on 16-9-2015 on leave for 20 days. It was stated that there was a dispute in respect of backyard of property bearing No.95 between him and accused persons for about two months. It was stated in the complaint that one Bharamappa Yeliwal and Parvatevva Hurakadli, had allegedly executed a relinquishment deed in favour of accused No.1 and the accused were contending that the said property bearing No.98 was part and parcel of the property No.95 belonging to PW12.
It was stated in the complaint that on
20-09-2015 at about 3.30 p.m. when the
complainant, his wife and children were in his
house, the friend of the deceased Ningappa i.e. PW22 - Mallikarjun Mahadevappa Hatigar had came to his house and asked the deceased Ningappa to accompany him to his groundnut field. Accordingly, 8 they went on a motor cycle. Thereafter, at about 4.45 p.m. when the complainant was standing at Hireagasi, Basalingappa Shivalingappa Yaliwal i.e. PW19 came and informed that PW22- Mallikarjun Hatagar had informed him over phone that the accused had assaulted deceased Ningappa near the crusher of Yaliwal on Dhulikoppa road, Hirehonnalli, in respect of the dispute regarding the open site, with Machhu. Thereafter, Prabhuling Yaliwal i.e. PW13 and Manjunath Yaliwal PW17 brought Ningappa on a motor cycle and the injured Ningappa was taken in a car belonging to PW7- Rudrappa Yaliwal to KIMS hospital, Hubballi. It was stated that, complainant -PW12, his wife Yallavva and PW13- Prabhuling M. Yaliwal and PW14- Mehaboob sab accompanied the injured Ningappa in the said car to the hospital. It was also stated in the complaint that while on the way to the hospital, the deceased Ningappa was enquired by the 9 complainant and he informed that the accused Nos. 1 to 7 had assaulted him while he was returning on the motor cycle near the Yaliwal crusher with the weapons and had injured him. It was stated that the deceased Ningappa had sustained injuries on his head, hands, neck etc., and while they were entering the compound of the KIMS hospital at about 5.30 p.m., Ningappa died. Therefore, he sought for action against the accused.
5. The said complaint was registered by the Investigating Officer for the offences punishable under Sections 143, 147, 148, 341, 302 read with Section 149 of IPC.
6. The accused Nos. 1 to 7 were arrested by the Investigating Officer and they were produced before the Court and later they were enlarged on bail. After investigation, the chargesheet was laid by the Investigating Officer for aforesaid offences and on the 10 committal of the case to the Sessions Court, the Sessions Court secured the accused and framed the charges for the aforesaid offences, for which accused Nos. 1 to 7 pleaded not guilty.
7. In order to prove the guilt of the accused, the prosecution examined 23 witnesses as PWs- 1 to 23, Exhibits P1 to P47 and MO 1 to 19 were marked in evidence.
8. The defence has got marked Ex.D1 to D17 in the cross-examination of the prosecution witnesses. After recording the statements of the accused Nos. 1 to 7 under Section 313 of Cr.PC., the arguments by learned SPP for the State and learned counsel for the accused were heard.
9. Accused had contended in their statement under Section 313 Cr.P.C. that they had not given any voluntary statement before the Investigating Officer and had not produced any incriminating articles, clothes etc. They 11 contended that there was a dispute regarding property No.95 of Hirehonnalli village, but it was the deceased Ningappa, who used to pick up quarrel with various people whenever he comes to the village saying that he is a Military man. They contended that deceased Ningappa has grabbed the property of one Dyavanagouda Govind Patil by threatening him and there was also an assault on one Basayya Chikkamath about 3 years prior to the incident and also there was wrongful confinement of one Nagappa Sheelavantar by the deceased under the pretext of illicit intimacy with one Laxmi and therefore, he had many people who were in enimical terms with him and therefore, they have committed the murder, but not the accused persons.
10. After hearing the arguments, the Sessions Court, by the impugned judgment has recorded the finding of acquittal.
12
11. The Sessions Court raised the following points for consideration which were answered in the negative while coming to such conclusion:
"1. Whether the prosecution proves all reasonable doubt that, on 20/09/2015 at about 4.30 p.m at Yaliwal crusher on Hirehonnalli- Dhulikoppa road, all the accused 1 to 7 being the members of an unlawful assembly came with a common object by holding deadly weapons like longs and sticks, as there was dispute in respect of the property bearing No. 95 of Hirehonnalli with the complainant and with an intention to commit the murder, they have indulged in rioting and wrongfully restrained the deceased Ningappa who was coming with C.W.16 Mallikarjun Hatagar on a motor cycle and thereby all the accused have committed an offence punishable under section 143, 147, 148 and 341 R/w Sec 149 of I.P.C. ?
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, all the accused 1 to 7 being the members of an unlawful assembly came with common object by holding deadly weapons as stated supra and the accused 1, 4, 6 and 7 13 assaulted the deceased Ningappa with longs and the accused 2, 3 and 5 assaulted Ningappa with sticks and who succumbed to the injuries on the way to K.I.M.S hospital Hubballi at 5.30 p.m. and thereby all the accused have committed an offence punishable under Section 302 R/w. Sec. 149 of I.P.C. ?
3. What order ?"
12. Aggrieved by the said judgment, the complainant-Somalingappa S/o Ningappa Yaliwal, who was PW12 before the Sessions Court, has approached this Court in appeal in Crl.A.No.100251/2019 and the State has also approached this Court in appeal in Crl.A.No.100423/2019.
13. The appellants contend that the Sessions Court has seriously erred in appreciating the evidence produced by the prosecution and failed to consider strong material evidence available. It is contended that the evidence on record shows that the accused have participated actively in the commission of the crime and the Sessions Court 14 failed to understand the case of the prosecution in accepting the strong material evidence and that the corroborative evidence put forth by the prosecution has not been considered. It is contended that PWs 12, 13 and 22 and other witnesses have spoken about the motive, the commission of the offence and the oral dying declaration by the deceased Ningappa.
14. It is contended that PW12-Somalingappa Yaliwal, who is none else than the father of the deceased has stated clearly in his evidence about the deceased Ningappa having disclosed the names of the assailants. So also the evidence of the other witness i.e. PW 13 is also believable and the sole eye witness to the incident PW22- Mallikarjun Mahadevappa Hatigar, has stated about seeing the assault by the accused. It is contended that the Sessions Court failed to appreciate that PW7- Rudrappa, the relative of the accused, has obviously turned hostile. It is contended that the Sessions Court 15 unnecessarily placed reliance on the evidence of PW7 and PW14 who had not spoken about the alleged dying declaration made by deceased Ningappa. Therefore, the revelations by the deceased about the assailants corroborate the evidence of PW22, which clearly falsifies the say of PW7 Rudrappa and PW14- Mehboobsab. This aspect has not been properly appreciated by the Sessions court in coming to the conclusion and therefore, they contend that the impugned judgment is perverse, arbitrary and is based on the wrong inferences being drawn from the evidence available on records.
15. The appeals were admitted by this Court and on issuance of notice, accused Nos. 1 to 7 have appeared before this Court through their counsel and trial Court records have been secured.
16. We have heard the arguments by learned counsel appearing for the appellant/complainant and the learned High Court Government Pleader for State. We 16 have also heard the arguments by the learned counsel appearing for the respondents-accused and have perused the records.
17. The points that arise for our consideration in these appeals are:
(i) Whether the prosecution has proved that death of deceased Ningappa was homicidal death?
(ii) Has the prosecution proved beyond reasonable doubt that the accused 1 to 7 have caused the death of deceased Ningappa Yalival?
(iii) Whether the alleged act of the accused in causing death of deceased Ningappa by assaulting him with machetes and sticks is culpable homicide amounting to murder or not amounting to murder?
(iv) What order?
18. Before proceeding to consider the evidence, we are aware that the Appellate Court has to be cautious 17 while considering an appeal against acquittal. The law relating to an appeal in acquittal is settled. The latest decision of the Apex Court in the case of Ravi Sharma vs. State (Government of NCT of Delhi) and Another1 chronicles the consistent stand taken by the Apex Court over a long period of time concerning the appeal against acquittals. It is relevant to note that the decision in the case of Chandrappa vs. State of Karnataka2 in para No.42 lays down the following principles.
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on 1 (2022) 8 SCC 536 2 (2007) 4 SCC 415 18 the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal.
Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 19
19. Thereafter, the Apex Court in the case of Jafrudheen vs. State of Kerala3 in para 25 held as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
20. All the above decisions along with many other precedents have been considered elaborately by the Apex Court in Ravi Sharma's case and it has reiterated those principles and therefore, it is evident that the Appellate Court should be cautious while reversing a judgment of acquittal. The reason behind the principle is that the 3 (2022) 8 SCC 440 20 accused has the benefit of innocence as a basic principle of a criminal jurisprudence. Secondly, the accused has the benefit of acquittal by the Trial Court which had the occasion to peruse and observe the demeanor of the witnesses and the manner in which they had spoken before the Court. The confidence of the Trial Court arises on the basis of the deposition of the witnesses who physically appeared before it. That advantage is not before the Appellate Court and therefore, keeping in view these principles, the case on hand needs to be appreciated by this Court. Therefore only if the approach of the trial Court is perverse and such perversity go to the root of the case, the appellate court can intervene. PROSECUTION CASE:
21. The case of the prosecution as it unfolds from the chargesheet papers is that, there was a dispute between the accused No.1 and PW12 regarding the property bearing panchayat Nos.95 and 98. The accused 21 were trying to construct a building in the property of PW12. The deceased Ningappa was serving in Military and he had informed his higher officers regarding the dispute and as such, they had written a letter as per Ex.P24 on 3-8-2015 to the Tahasildar, Superintendent of Police and other officials of the Government stating that there was forcible, illegal occupation of the property of the deceased Ningappa by one Basavaraj Sangappa Yaliwal and Shivappa Yaliwal. It was also stated in the said letter that all efforts made by the deceased Ningappa went in vain and the family was under the threat of dire consequences from the miscreants. When the request by the higher officers of the deceased Ningappa was not fruitful, Ningappa had come to the village to resolve the matter. The dispute was that the accused were trying to construct the house in property bearing panchayat No. 95 though they are claiming right in the property bearing panchayat No.98. After the deceased came to the village on 20 days leave on 16.9.2015, the deceased as well as the PW12 22 had been to the office of the panchayat and had met the President and complained about the claim by the accused. They were informed that there will be a meeting of the panchayat on 21.9.2015 and they have to come to the meeting and explain their case. But in the meanwhile, Ningappa was murdered on 20-9-2023. Therefore, the prosecution contends that there was a motive for commission of the offence.
22. It is the further case of the prosecution that on 20-09-2015, when the deceased Ningappa was in his house, his childhood friend, PW22- Mallikarjuna Mahadevappa Hatgar came to his house and deceased Ningappa accompanied PW22 Mallikarjun Mahadevappa Hatgar to his groundnut field. While they were returning back there was an assault as contended in the complaint supra. Therefore, accused had a motive in respect of property dispute and the prosecution alleges that the 23 accused mounted assault on the deceased with weapons and killed him.
23. Soon after the receipt of the complaint by PW12, PW18 - Maralusiddappa Doddabasappanavar, registered the case in Crime No.280/2015 and launched the investigation. The case was registered at 9.45 p.m. and the FIR was received by the Court at 2.20 AM.
24. On 21-09-2015, the inquest of the body of the deceased was conducted as per Ex.P23 in presence of PW14. The body was subjected to autopsy by PW6-Dr. A.A. Nadaf. Thereafter, PW18 visited the spot and conducted the spot mahazar as shown by PW22- Mallikarjun Mahadevappa Hatagar and the said spot mahazar is at Ex.P8. A machete was also seized from spot (MO5), along with the blood stained mud, normal mud, blood stained twigs. On the same day, he records the statements of the witnesses and then arrested the accused Nos. 1 and 6 and recorded their voluntary 24 statement. At the instance of accused No.1, the Investigating Officer seized the Long (a machete with long blade) which was used by accused No.1 (MO No.7) and mahazar was conducted as per Ex.P16. Thereafter, their blood stained clothes were seized by the Investigating Officer. The prosecution contends that the accused Nos. 2 to 4 and 7 were arrested on 23-9-2015 and they also gave voluntary statement and on the basis of which, the weapons like machetes and sticks and the vehicle used by them were also seized at their instance under the mahazar.
25. On 29-9-2015, the Investigating Officer received the report of the Post Mortem of the deceased conducted by PW6. Then the investigation was handed over by him to PW23-Motilal Ramaswami Pawar. Thereafter, PW23 recorded the statements of the Police Constables who were involved in the investigation i.e., carrier of the FIR, carrier of the MOs to the FSL etc., and 25 after securing the relevant documents, ultimately, filed the chargesheet. PW22 gave a statement under Section 164(5) of Cr.P.C. before the Magistrate, Dharwad.
26. According to the prosecution, PW22-Mallikarjun Mahadevappa Hatagar, while fleeing away from the spot informed PW19-Basalingappa Yaliwal, over phone to inform the incident to the family members of Ningappa. However, PW13 and PW17 having got the information of assault on deceased Ningappa, went to the spot over the motor cycle and then brought the deceased Ningappa on the motor cycle by triple riding to Hireagasi (a place at Hirehonnalli village). Then PW12-Somalingappa Yaliwal, his wife-Yellavva and PW7-Rudrappa Yaliwal and PW14- Mehboobsab Makandar along with PW13-Prabhuling Yaliwal took the deceased in the car of the PW7 to the KIMS hospital, Hubballi. The prosecution contends that, on the way to the hospital, deceased Ningappa had given a dying declaration informing the names of the assailants. 26 However, before the deceased reached the hospital, when they entered the compound of the KIMS hospital, Hubballi, Ningappa breathed his last. Therefore, the prosecution heavily relies on the evidence of PWs 7,12,13,14, 17 and PW22 in this regard and also the evidence of PW6-Dr.A.A.Nadaf, who conducted the autopsy of the body of the deceased. It also relies on the evidence of expert of FSL i.e. PW20-Dr. Mahadeshwaraswami Y.H., to establish that the blood stains on the clothes worn by the accused also belong to the blood-group which is found on the clothes of deceased Ningappa. Therefore, the prosecution contends that there is evidence to show that the accused had made preparation and in view of the panchayat meeting fixed on 21-9-2019, they were looking for an opportunity to kill the deceased Ningappa. There was also an incident which had taken place in front of the panchayat office, where the accused had threatened the deceased that they will kill someone of the family of the PW12.
27
27. It is in the light of the above contentions of the prosecution that the evidence on record and contentions by defence need to be considered.
EVIDENCE
28. PW1-S.M.Hallad, happens to be the Police Constable, who took the body of the deceased Ningappa to the Post mortem.
PW2-Hema, happens to be the Women Head Constable who collected the PM report and submitted the same to the Investigating Officer.
PW3-Sahadev Siddappa Dharwad, is a Head Constable who carried the articles 1 to 18 to the FSL on the instructions of the Investigating Officer.
PW4-D.R. Kumbar happens to be the AEE of PWD who prepared sketch of the spot as per ExP2. 28
PW5-P.H. Takkalaki happens to be the Police Constable who submitted the FIR to the concerned Magistrate as per instructions of the Investigating Officer. He states that he received the FIR at 9.45 p.m. and he submitted the same to the Magistrate who was sitting at Dharwad at 2.00 a.m. PW6-Dr.A.A.Nadaf, happens to be the Medical Officer, who conducted the autopsy of the body of the deceased and submitted the P.M. report as per ExP5 and the notes of the post mortem are also marked at Ex.D3. The requisition submitted by the Investigating Officer to the PW6 in Form No.146 (ii) is at Ex.D1.
PW7-Rudrappa C. Yaliwal, happens to be the relative of both the parties and car owner, who took the deceased in his car to KIMS Hospital, Hubballi. He has turned hostile to the prosecution case. 29
PW8-B.B. Belliwale, happens to be the pancha of the spot mahazar which is at Ex.P8, Recovery mahazars at Exs.P10 and 11.
PW9-C.K Bommigatti, PW10-P.Y.Kichadi, PW11-I.C. Kamadhenu, PW15-V.M. Mugad, happen to be the panchas who were present at the time of recoveries made by the Investigating Officer at the instance of the accused.
PW12-Somalingappa Ningappa Yaliwal, happens to be the complainant and father of the deceased Ningappa. He speaks about the motive, dying declaration, filing of the complaint to the police.
PW13-Prabhuling M. Yaliwal, happens to be the relative of the deceased Ningappa. He accompanied the deceased from the spot to Hireagasi on motor cycle, along with PW17. Then he accompanied PW12 and deceased to KIMS, Hubballi.
30
PW14-M.M.Makandar has accompanied the complainant and others in the car while going to hospital and he was also a signatory to inquest panchanama.
PW16-D.M.Dhanigonda, happens to be the pancha who was present at the time of seizure of the clothes of the deceased.
PW17-Manjunath.S.Yaliwal, happens to be the brother of the deceased. He and PW-13 had brought the deceased from the spot of the incident to Hireagasi on a motor cycle.
PW19-B.S.Yaliwal, happens to be the person who has received the call from PW22 and had informed PW-12 about the incident. He has turned hostile and denied that he had received call from PW22.
PW20-Dr.Mahadeshwaraswami Y.H., happens to be the expert from FSL who speaks about the blood stains 31 and the groups. He also speaks about the blood stains found on two of the weapons.
PW21-Vinayak Chandrakant Annigeri, happens to be the scribe who wrote the complaint as per Ex.P4 at the instance of the PW12 at KIMS hospital, Hubballi.
PW22-Mallikarjun Mahadevappa Hatagar, happens to be the friend of the deceased and an eye witnesses to the incident.
PW18-M.R. Doddabasappanavar, CPI, who conducted major part of the investigation and PW23- Motilal Ramaswami Pawar, CPI, is the Investigating Officer, who completed the investigation and filed the chargesheet in this case.
THE ARGUMENTS:
29. Learned counsel Sri L.S. Sullad, appearing for the appellant/complainant contended that though the prosecution has proved its case, the Trial Court has 32 placed reliance on the hostile witnesses and inconsistent discrepancies in the evidence to base its finding. The points he contended in his submissions are as below:
(a) He submitted that PW12-Somalingappa Ningappa Yaliwal, PW13-Prabhuling M. Yaliwal, PW17-
Manjunath Yaliwal and PW22- Mallikarjun Mahadevappa Hatagar are important witnesses for the prosecution. He submitted that the evidence of PW12 and the documents at Exs.P24 to P27 show that there was a motive for commission of the offence by the accused. The elaborate cross-examination of PW12 regarding the dispute in respect of the open space of the panchayat Nos 95 and 98 and the fact that the higher officers of the deceased had written letter to the SP, Tahasildar and etc., clearly disclose that there was a motive for the accused for the commission of the offence and the said fact has been proved by the prosecution. He submits that the deceased had only come for resolving dispute on a leave for 20 33 days and the meeting of the panchayat was fixed for hearing the pleas of the parties on 21-9-2015. It is submitted that the accused had the criminal background and therefore, the motive for commission of the offence has been sufficiently established by the prosecution.
(b) He submitted that the accused coming to the spot with preparation by holding the weapons clearly indicate that they were looking for an apt opportunity to finish the deceased Ningappa. The deceased Ningappa and PW22 were found to be going to the land of PW22 and while they were returning on the motor cycle, they were assaulted by the accused. The evidence of the PW22-Mallikarjun Hatagar, being an eye witness clearly establish this aspect. Therefore, he submitted that there was preparation for commission of the offence. Four Longs (machetes with longer blade) and three sticks have been seized by the Investigating Officer at the instance of the accused as well as from the spot. He submitted that 34 the recoveries are proved by the evidence of the panch witnesses.
(c) He submitted that none of the injuries found on the body of the deceased show that he was incapable of speaking. Though there is a small injury which had occurred on the mandible, it cannot in any way show that the deceased was incapable of speaking. Therefore, the ability of the deceased to speak before dying, while entering the compound of the KIMS hospital at Hubballi cannot be doubted. He submits that the minute details about the status of the deceased Ningappa while he was being taken to the hospital, as spoken by PW12, clearly establish that his evidence is believable. He submitted that dying declaration before PW12 and PW13 is clear and there is no reason to discard the same. He also submits that the deceased was fit as suggested by the defence to PW12 and he had undergone the training in the defence. Therefore, he submitted that it cannot be believed that 35 the deceased was not capable of speaking while he was being taken to the hospital. Moreover, from the spot, he was brought on the motor cycle and then he was shifted to the car of the PW7. He argued that this also shows that the deceased was alive when he was taken into the car of PW7-Rudrappa C. Yaliwal. He points out that the say of PW12 that the deceased Ningappa had requested for water while he was being taken to the hospital has not been denied and therefore, the ability of the deceased to speak and inform the names of the assailants cannot be doubted.
(d) He submitted that the evidence of the eye witness PW22 is believable unless the contradictions are substantial. It is submitted that he was under threat and fear by the accused who were having the criminal antecedents. He submitted that he was in the fear of the backslash of taking the deceased to his groundnut field and while returning back the incident had happened. 36 Therefore, the pressure and the fear on PW22 who was the friend of the deceased Ningappa has to be understood in the circumstances of the case. Later, PW22 gave a statement under Section 164 of Cr.P.C. before the Magistrate and there also, he has stated about the names of the assailants. He submitted that some discrepancies in the evidence of PW22 as to whether PW12 and himself had been to the Kalagatagi Police Station in the evening on the date of the incident is minor and it cannot be a factor which would discredit the testimony and that the fact remains that FIR has been registered by the police after receiving the complaint from PW12-Somalingappa Ningappa Yaliwal at KIMS hospital, Hubballi, which was written by PW21-Vinayak Chandrakant Annigeri.
(e) He submitted that the blood stains on the clothes of the deceased and two of the weapons seized clearly show that they belonged to 'AB' group and the clothes of the deceased also have the stains of 'AB' group 37 blood. Therefore, it is submitted that the blood stains of 'AB' blood group on the clothes of the accused should have been explained by them in their statement under Section 313 of Cr.P.C.
(f) He submitted that the evidence of the PW18, Investigating Officer shows the investigation done by him though there are some lacunae in such investigation. He submitted that such lacunae will not go to the root of the case and it cannot be a circumstance which would favour the defence. It is submitted that the investigation done by PW18 and PW23 do not show anything which is fatal to the case of the prosecution.
(g) He submitted that the Trial Court suspected the presence of PW12-Somalingappa Ningappa Yaliwal, in the car on the basis of the evidence of PW7. More importantly, PW13, PW14 and PW17 support the case of the prosecution that the PW12 traveled in the said car and therefore, the say of PW12 cannot be brushed aside. 38 He submitted that the Trial Court erred in coming to the conclusion that the deceased was not capable of speaking or giving any dying declaration. The injuries sustained by the deceased were not properly assessed by the Trial Court in coming to such conclusion. He submitted that the evidence of the PW6-Dr.A.A.Nadaf, clearly establishes that there was nothing to believe that the deceased could not have spoken about the names of the assailants. In fact, the evidence of PW6 throws light on the nature of the injuries sustained by the deceased and it clearly establish that the death of the deceased Ningappa was a homicidal death. He further submitted that the Trial Court disbelieved the evidence of PW22 due to inconsistency in the evidence and his statement under Section 164 of Cr.P.C. He submitted that the statement under Section 164 of Cr.P.C. was made by the PW22 under distress during the investigation and it is the testimony before the Trial Court which gains importance. He points out that the discrepancy is not in respect of the contradictions in 39 material evidence, but it is only as to whether subsequent to the incident PW12 and PW22 had been to the police station at Kalagatagi or not.
(h) Lastly, he submits that the Trial Court erred in holding that the clothes of the father, brother and mother of the deceased were not seized by the Investigating Officer to establish that they bore the blood stains of the deceased while he was being taken to the KIMS hospital. He submitted that this observation by the Trial Court is unnecessary when PW12, PW13, PW7 and PW14 also say that PW12 was also present in the car, it was not at all necessary that their clothes be seized.
30. In support of his contentions, he relies on the decision of the Apex Court in the case of Kushal Rao Vs. State of Bombay4 the Apex Court in para 16 has laid down the following principles:
4
AIR 1958 SC 22 40 "(i) that it cannot be laid own as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated,
(ii) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made,
(iii) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence,
(iv) that a dying declaration stands on the same footing as another piece of evidence has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence,
(v) that a dying declaration which has been recorded by a competent magistrate in the proper manner that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon the oral testimony which may suffer from all the infirmities of human memory and human character, and
(vi) that in order to test the reliability of a dying declaration the court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the 41 earliest opportunity and was not the result of tutoring by interested parties."
31. Regarding the proof of the oral dying declaration, the learned counsel for the appellant has relied on the decision in the case of Atbir vs. Government of NCT of Delhi5 wherein, in para 22 it is observed as below:
"(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot be the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.5
2010 (9) SCC 1 42
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii)Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
32. He also relied on the decision in the case of Parbin Ali and another Vs. State of Assam6 to contend that the statements made by the deceased can very much be believed if found credible.
33. Learned High Court Government Pleader appearing for the State has adopted the arguments by 6 (2013) 2 SCC 81 43 the learned counsel appearing for the complainant PW12. He submitted that the evidence of the PW5-P.H.Takkalaki P.C., sufficiently explains the delay in reaching the FIR to the concerned Magistrate and therefore, the judgment of acquittal by the Trial Court is not sustainable under law.
34. Thus, both the counsel appearing for the appellants have sought for setting aside the acquittal judgment and seek for conviction of the accused.
35. The learned counsel Sri K.L.Patil, appearing for the accused has argued on the following lines:
(a) He submits that the motive for the commission of the offence has not been proved by the prosecution by producing sufficient evidence. He submits that if at all there was a dispute, the matter is of civil in nature. It is submitted that the meeting fixed by the panchayat on 21-9-2019 is not established and it was only the say of PW12 but not the matter of the investigation. He submits that whenever the deceased used to come on leave, he 44 used to have rubbings with the localites. This is stated by the accused in their statement under Section 313 of Cr.P.C. as well as suggested to PW12, though he has denied.
(b) He submits that the alleged FIR at Ex.P4 is not the real first information report. It is contended that PW12 allegedly gave statement to the SP at KIMS hospital at 6.20 p.m. and it was the real first information report. The said statement has not been produced by the prosecution before the Court and as such, the one which was written at about 9.00 p.m. cannot be termed to be a First Information Report. He submitted that Ex.P4 was written by PW21. But the identity of PW21 is not proved and it is doubtful as may be seen from the evidence of PW21. He was not from the same village as that of PW12 and therefore, why he wrote the complaint even though there were other police constables and officers present at KIMS hospital, is not explained properly. It is submitted 45 that though the alleged incident had taken place at about 4.00 p.m. and by 5.30 p.m. the body of the deceased was at KIMS hospital, the first information report was received at 9.00 p.m. This delay is not explained properly and therefore, the false implication of the accused cannot be ruled out. He submits that PW22-Mallikarjuna Hatagar, in his statement under Section 164 of Cr.P.C. states that he along with PW12 went to the Police station at Kalagatagi in the night and gave the complaint. This is contrary to the evidence of the PW12 and as such, there is material discrepancy which goes to the root of the case.
(c) He relies on the evidence of PW7 and PW14 who have not supported the prosecution. He points out that PW7 denied that PW12 was present in the car while the deceased Ningappa was taken to KIMS hospital. Therefore, the very presence of PW12 is doubtful and therefore, the dying declaration of the deceased as stated 46 by PW12 becomes unreliable. He also points out that the PW14-Mehboobsab Makandar, also do not say anything about the dying declaration of the deceased Ningappa. Therefore, the prosecution heavily relies on the close relatives of the deceased and PW12; and as such, the evidence is unreliable. He submits the alleged dying declaration cannot be believed as it is difficult to accept that the deceased was capable of making a statement. In this regard, he relies on the decision in the case of Uttam vs. State of Maharashtra.7 In this decision, the Apex Court after considering decisions concerning dying declaration came to the conclusion that when there are two contradictory dying declarations, the accused is entitled for the benefit of doubt.
Obviously, in the present case, there are no such multiple dying declarations and therefore, this decision cannot be useful for the accused.
7 (2022)8 SCC 576 47
(d) He points out that OPD chit at Ex.D2 clearly establishes that the deceased was brought dead. He points out that OPD chit also mention that the deceased was brought by Mahaboobsab Makandar i.e. PW14, but not the PW12-Somalingappa Yaliwal, the complainant. If the complainant, PW12 was present, his name would have been found in the OPD chit as he was none else than the father of the deceased Ningappa.
(e) The learned counsel for the accused also contends that there are many discrepancies in the evidence of the prosecution witnesses. He submits that the Trial Court has considered these discrepancies in detail while discussing the evidence on record. He submits that PW-13 says that he does not know whose motor cycle was used to bring the deceased Ningappa from the spot to the Hireagasi. It is pointed out that there are contradictions and improvements in the evidence of PW-12 and the Investigating Officer had never secured 48 any documents in respect of the civil dispute between the accused and the PW-12. It is submitted that PW-12 is trying to falsely implicate the accused in the matter and his evidence in seeking to produce certain documents before the Trial Court which were not secured by the Investigating Officer clearly establish this aspect. He also points out the improvements and the contradictions in the evidence of PW-22 regarding the place where the incident took place, the conduct of the PW-22 after the incident etc. It is pointed out that there are vague replies in the evidence of the PW-22 and as such his evidence is not reliable.
(f) The learned counsel for the accused also submitted that the descriptions of the weapons are not properly established. He points out that whether it was a 'machu' or a 'long' is in dispute. Initially PW-22 says that it was a 'machu' or 'chopper'. Later, he makes a U-turn and say that it was a 'long'. His evidence before the Court 49 as well as the statement made under Section 164 of Cr.P.C. are totally contradictory in this regard. The discrepancy regarding the wooden handle or metallic handle is also pivotal in this regard and therefore, the use of such weapon is not established by the prosecution.
(g) He submits that the recovery of the weapons made by the Investigation Officer at the instance of the accused do not fall within the scope of provisions of Section 27 of Evidence Act. He contends that, allegedly the Investigating Officer knew about the voluntary statement, the place of concealment of weapon and thereafter, he had secured the panchas and then went to the alleged spot. When the Investigating Officer had the knowledge of the spot where the alleged weapons were kept, such recoveries do not fall within the scope of the provision of Section 27 of the Evidence Act. In this regard he relies on the decision in the case of Thimma Reddy 50 Vs State of Karnataka8 where the law relating to recovery made under Section 27 of the Evidence Act is dealt with.
(h) The learned counsel for the accused submits that manner in which the accused came to know about the movement of the deceased is not forthcoming in the prosecution evidence. When the deceased had come to the village on leave, the accused coming to know about such movement of the deceased and he going to the land of PW-22 is totally by chance and therefore, it cannot be said that the accused knew about the fact that deceased Ningappa had been to the land of PW-22. This aspect has not been brought out by the prosecution and therefore, it is totally improbable that the accused had committed the said offence.
(i) Lastly, he contends that the Post Mortem report clearly establishes that there was fracture of mandible 8 2018(2) AKR 577 51 and therefore, the deceased could not have spoken and disclosed the name of the assailants to either PW-12 or anybody else. Therefore, he contends that dying declaration is not feasible and the evidence of PW-22 is not reliable and as such, the conclusion reached by the Trial Court that there is insufficient evidence against the accused is correct. Hence, he prayed for dismissal of the appeals.
36. In the light of the above submissions by the rival parties, let us examine the points raised by this Court supra.
WHETHER HOMICIDAL?
37. The first aspect to be considered by this Court is, whether the death of the deceased Ningappa is homicidal?
The evidence of PW6- Dr.A.A. Nadaf, throws light in respect of the injuries sustained by the deceased. The 52 autopsy report, coupled with the inquest mahazar of the body of the deceased which is at Ex.P23 show the nature of the injuries sustained by the deceased. The PW14- Mehaboobsab Makandar and one Gangappa were the panchas of the said inquest mahazar-Ex.P23. The other relevant evidence in respect of the nature of the death of the deceased Ningappa is that of the eye witness PW22.
38. The perusal of the evidence of PW6 and P.M. report produced at Ex.P5 show the following injuries on the body of the deceased Ningappa, which are as below:
"1. Vertically placed abraded laceration measuring 4cmsx 1cms x bone deep present over right side of forehead above right eyebrow.
2. Horizontally placed chop wound measuring 7cms x 1.5cmsx bone deep present over left side of forehead situated 5cms above left eyebrow, underlying bone is cut.
3. Obliquely placed chop wound measuring 5cms x 1cms x bone deep present over front region situated 1 cms above external injury No.2, underlying bone is cut.
4. Chop wound measuring 7.5cms x 1.5cms x bone deep present over left side of head situated 5cms above 1cms behind left ear, underlying bone is cut.53
5. Chop wound measuring 5cms x 0.5cms x bone deep present over left side of head situated 1cms inner to external injury No.4, underlying bone is cut.
6. Horizontally placed chop wound measuring 6cms x 0.5 cms x bone deep present over top of back of head situated 12cms above left ear, underlying bone is cut.
7. Vertically placed chop wound measuring 6cms x 0.5cms x bone deep situated 1 cms right of external No.6, underlying bone is cut.
8. Vertically placed laceration measuring 3cms x 0.5cms x bone deep present over top of head situated 3cms right of external injury No.7.
9. Horizontally placed laceration 3cms x 0.5cms x bone deep present over back of head situated 8cms behind right ear.
10. Vertically placed chop wound 5cms x 0.5cms x bone deep present over back of head situated 12cms behind right ear, underlying bone is cut.
11. Horizontally placed chop wound measuring 7cms x 3cms x muscle deep present over right side back (nape) of neck situated 5cms behind right side angle of lower jaw.
12. Obliquely placed incised wound measuring 5cms x 0.5cms x skin deep present over back of nape of neck 1cms left of external injury No.11.
13. Horizontally placed chop wound measuring 6cms x 0.5 cms x muscle deep present over back of left side nape of neck situated 6cms back of left side angle of lower jaw.
14. Horizontally placed chop wound measuring 12cms x 2cms x vertebra deep present over back of right side of neck situated 2cms below external injury No.11 underlying C5, C6 vertebrae are fractured.54
15. Horizontally placed chop wound measuring 4cms x 1cms x muscle deep present over back of right side lower part of neck situated 2.5cms below external injury No.14.
16. Obliquely placed chop wound measuring 2cms x 1cms x bone deep present over top of right shoulder 8cms inner to tip of right shoulder, underlying bone is cut.
17. Horizontally placed chop wound measuring 3cms x 1cms x muscle deep present over back of right shoulder situated 3cms below external injury No.16. Its inner end shows tailing (Superficial incised wound) up to 11cms.
18. Horizontally placed incised wound measuring 11cms x 2cms x muscle deep present over back of right shoulder situated 1cms below external injury No.17. Its inner end shows tailing up to 4cms.
19. Two superficial linear incised wound each measuring 12.5cms present over back of right shoulder separated 0.5cms apart situated 3cms inner to tip of right shoulder.
20. Obliquely placed chop wound measuring 8cms x 1cms x muscle deep present over back of upper part of right arm situated 1cms above and right of right armpit.
21. Horizontally placed superficial linear incised wound measuring 11cms present over back of right shoulder situated 6cms below external injury No.18.
22. Vertically placed chop wound measuring 6cms x 2.5cms x cavity deep present over right side back of chest 6cms below external injury No.21 and 13cms from right of midline, underlying bone is cut.
23. Horizontally placed chop wound measuring 2cms x 1cms x bone deep present over right side back of chest 55 situated 9cms below external injury No.22 and 14cms right of midline underlying bone is cut.
24. Horizontally placed superficial incised wound measuring 2cms x 0.5cms x skin deep present over top of left shoulder situated 4cms inner to tip of left shoulder.
25. Horizontally placed chop wound measuring 3cms x 1cms x bone deep present over back of left shoulder situated 11cms down of top of left shoulder and 10cms left of midline.
26. Obliquely placed three linear contusions measuring 22cms, 9cms, 12cms present over right side back of chest.
27. Obliquely placed three linear superficial incised wound measuring 21cms, 5cms, 13cms present over back of lower part of chest and upper part of abdomen.
28. Obliquely placed chop wound measuring 15cms x 4cms x bone deep present over outer side of lower part of left arm and left elbow, underlying bone is cut.
29. Abrasion measuring 3cms x 1cms present over front of lower part of left arm situated 3cms above left elbow.
30. Abraded contusion measuring 11cms x 10cms present over outer side of right shoulder.
31. Abraded contusion 8cms x 6cms present over outer side of middle of right arm.
32. Obliquely placed chop wound measuring 9cms x 2.5cms bone deep present over back of middle one third of right forearm, situated 15cms below right elbow, underlying bone is cut.
33. Obliquely placed chop wound measuring 5cms x 2cms x bone deep present over back of right wrist, underlying bone is cut.
56
34. Obliquely placed chop wound measuring 1cms x 0.5cms x bone deep present over tip of little finger, underlying nail is avulsed.
35. Vertically placed chop wound 1cms x 1cms present over right side of neck 3cms below right side angle of mandible, underlying lower jaw bone is cut.
36. Horizontally placed chop wound measuring 2cms x 0.5cms x bone deep present over right side of face 1cms in front of right ear lobule, underlying bone is cut."
39. According to PW6, the external injury Nos. 28,29,32,33 and 34 are possibly the defence injuries. It is the case of the prosecution that the deceased was assaulted by the accused with long and sticks. Obviously, he being a defence personnel (a PT instructor in army -as stated by PW17), had resisted and brought his hands across his head in order to avoid the assault. As a result, assault was received on his hands and the above mentioned injury Nos. 28,29,32,33 and 34 were inflicted on the arms and elbow. Therefore, it is evident that he offered resistance. These injuries cannot be termed to be accidental injuries at any stretch of imagination. So also, 57 the inquest mahazar produced at Ex.P23 also discloses that there were several injuries which can only be inflicted by way of assault. These two documents which are at Ex.P23-Inquest mahazar and Ex.P5-PM report disclose the nature of the injuries that could be inflicted only by way of an assault by a third party. The cause of death is stated to be hemorrhage and shock as a result of injuries sustained.
40. A perusal of the evidence of PW14-Mahaboob sab Makandar, shows that he was present at the time of the inquest mahazar on the next date of the incident and the it was conducted in his presence.
41. It is relevant to note that the defence does not dispute the fact that deceased died due to the above said injuries. The defence contends that the accused were not involved in the commission of the offences, but it was somebody else who had inimical terms with the deceased Ningappa might have committed said assault which has 58 resulted in his death. Therefore, there being no resistance by the defence about the nature of the death that it was a homicidal in nature, it can easily be concluded that the nature of the death of the deceased Ningappa was homicidal in nature. Hence, we answer Point No.1 in affirmative.
WHETHER THE ACCUSED CAUSED THE DEATH?
42. Once we conclude that the nature of death of the deceased Ningappa is homicidal in nature in view of the injuries sustained by him as above, the next question that arises is, whether the accused 1 to 7 committed the culpable homicide?.
In this regard, the evidence of PW7-Rudrappa C. Yaliwal, PW13-Prabhulig M. Yaliwal, PW17-M.S. Yaliwal and PW22-Mallikarjun Mahadevappa Hatagar, coupled with the evidence of PW6-Dr.A.A.Nadaf and PW20- Dr.Mahadeshwaraswami Y.H., gain much importance. The motive to commit the offence, the evidence of eye 59 witness, the oral dying declaration of the deceased and the recoveries are the factors to be considered by the court.
THE MOTIVE:
43. The first aspect to be considered by this Court is, whether there was motive for the commission of the offence. Of course, we are aware that the motive is of greater importance when the prosecution relies on the circumstantial evidence. In the case on hand, the prosecution relies heavily on the alleged dying declaration by the deceased Ningappa and the eye witness account of PW22. Therefore, though motive is not of greater importance in the matter, it is necessary to ascertain that the accused had the reason to have grudge against the deceased Ningappa and PW12.
44. PW12-Somalingappa Yaliwal, has stated in his testimony before the Trial Court that, he has backyard bearing panchayat property No.95 and it is a open space 60 and his relative Bharmappa Basappa Yaliwal and Parvatevva Huragadali were owning property bearing panchayat No.98. He states that the said property No.98 was relinquished in the name of accused No.1 and that the said Bharmappa Basappa Yaliwal died in the year 2011. Parvatevva is still alive. The alleged relinquishment was in the year 2014 and as such it was fake. Thereafter, the accused started asserting that the said property bearing panchayat No.98 comes within the property bearing panchayat No.95 belonging to PW12 and therefore, there was a dispute. He states that the accused No.1 and his family members i.e. accused Nos. 2,3,6 and 7 had forcibly tried to construct a house in the property belonging to PW12. The said dispute was informed to the deceased Ningappa and the deceased Ningappa had apprised his higher officers, who had written a letter to the Superintendent of Police, Dharwad and the Deputy Commissioner, Dharwad etc. The said letter is produced at Ex.P24. Even then the concerned 61 authorities had not taken any action and therefore, deceased Ningappa came to the village on 16-9-2015, on 20 days leave. On 19-9-2015, PW12 and said Ningappa had been to the office of the President of the Panchayat and appraised their contention regarding the property. The President of the panchayat had informed that on 21- 9-2015 there will be a meeting of panchayat and PW12 should come and appraise the members of the panchayat. These facts which are mentioned by PW12 gets support from the document at Ex.P24. It is relevant to note that the fact that there was a dispute in respect of the property bearing panchayat No. 98 and 95 is not much in dispute. However, it is the contention of the accused that the deceased Ningappa had other people who are in enimical terms with him in the village and they might have committed the offence.
45. The evidence of PW12 coupled with Ex.P24 and also the evidence of PW7 and other witnesses show that 62 there was a dispute regarding the open space in respect of property bearing panchayat No. 95 and 98. Under these circumstances, it is evident that there was a motive for the accused to commit an offence is fairly established by the prosecution.
46. Apart from that, it is the case of the complainant, PW12 that while he and Ningappa were coming out of the Panchayat Office on 19-9-2015, the accused had also threatened that one of the members of his family would be killed or injured. It is relevant note that the said alleged incident on 19-9-2015, obviously, was not mentioned in the complaint. It is evident that the complaint need not be an encyclopedia and it was written by PW12 while he was in grief of the death of his son Ningappa. Under these circumstances, even though the accused denied that there was any such incident infront of the office of the Panchayat, Ex.P24 indicates that there were threats by the accused and therefore, the higher 63 authorities of the deceased had written letter to the Deputy Commissioner and others. Obviously, Ex.P24 mentions that the deceased had complained of the forcible illegal occupation of his immoveable property adjoining his parental house by one Basavaraj Shivappa Yelival and Sangappa son of Shivappa Yelival of the same village. It was also stated in Ex.P24 that all efforts to persuade the miscreants to vacate the land has been futile, rather the family is under the threat of dire consequences from miscreants. It was also stated that the police of Kalaghatagi Police station were complained about the said acts of the accused, but they had not registered the FIR. Under these circumstances, the Ex.P24 dated 3-8-2015 is clear indication to show that there was the motive for the accused to commit the offence.
47. The next aspect to be considered is, whether the accused are involved in commission of the offence? 64 THE SOLE EYE WITNESS:
48. According to the prosecution, PW22-Mallikarjuna Hatagar is an eye witness to the incident. PW22- in his testimony before the Trial Court states that he knew accused Nos. 1 to 7. He also states that deceased Ningappa was his childhood friend. He states that on 16-9-2015 deceased had come to the village on leave for 20 days. He states that on 20-9-2015 at 2.30 p.m. he had been to the house of the deceased Ningappa and called the deceased to go to the groundnut field where they are harvesting the ground nut. Accordingly, both of them went to their field on their bike and by parking the bike at some distance they walked to their land. They spent some time in the field, ate groundnut, got pan from father of PW22 and at about 3.30 pm they wanted to come back. The deceased was riding the motor cycle and PW22 was the pillion rider and near the crusher of one Yeliwala, the accused Nos. 1 to 7 came suddenly from 65 behind the fencing bushes and pulled their (of PW22 and deceased) shirts and therefore, both of them fell down. He states that when accused assaulted the deceased, he shouted and the accused shouted that PW22 should also be killed and therefore, being frightened he fled away into the fields. He states that accused Nos. 2, 3 and 5 were holding the sticks and the other accused were holding the machete, called as long. While running away, he informed PW19-Basalingappa Yaliwal over phone that the accused had attacked the deceased Ningappa and PW19 had retorted him as to why they had gone there. Then he went to his house. Further PW22 has also identified the accused Nos. 1 to 7 before the Trial Court.
49. PW22 further states that on the same day after about 10 p.m. PW12 came to his house and informed that Ningappa had died and thereafter, they went to the Police station and PW12 confirmed as to whether the FIR was registered. He also states about the motive for the said 66 assault and states that the accused were shouting as to whether the deceased want to take the backyard. PW22 states that on the next day police had came to the spot and he showed the spot and they conducted the spot mahazar and the 'long' used by accused No.6 was lying there and he showed the same and mahazar was prepared as per Ex.P8. The other articles seized i.e., normal mud, blood stained mud, blood stained twigs etc., are identified by him and MOs 6, 10, 13 and 14 are marked.
50. It is also elicited in his evidence by the prosecution that on 4-11-2015, the police had brought him to the Court at Dharwad and he had given a statement before the Court. The said statement made by him before the learned Magistrate is at Exs. P46 and 47. In the said statement, he had stated that while they were returning back by walk from their field, about five persons came towards them from behind the fence and 67 among them, he identified Basavaraj, Prabhu, Muthu and Kumar and they were holding the sticks and machu. Fearing the assault, he ran away from the spot and he also saw that Manjunath and Manjappa (accused No.4 and 6) were also going towards the field holding sticks. He also saw that the accused were assaulting the deceased. Then he informed the same over the phone to Basalingappa Yaliwal -PW19 and thereafter, he mentioned the names of the accused.
In the cross-examination of PW22, much is elicited as to how he has come to the Court or whether the summons was served or not. Obviously, PW22 had stated that he was under threat which he had mentioned on 18-7-2017 at the time of the trial. The defence had sought for time for his cross-examination and by observing that the witness was secured on proclamation, with necessary directions for the safety of PW22 the Trial Court had granted the time. Therefore, it is evident that 68 PW22 being the star witness, had been subjected to detailed cross-examination. In the cross-examination, nothing is elicited which discredits his testimony.
Para 25 of the cross-examination of PW22 shows that he did not inform the incident to PW12 but returned to his house. It is evident that PW22 expected the backlash of the assault on the deceased and therefore, he had informed PW19 and did not speak to PW12 who was standing near Agasi. It is further elicited that when he visited the police station during night on the same day along with PW12 police had not enquired him. It is also elicited that somebody had pelted stone on his house during night. It was suggested to PW22 that on that night, the brothers of deceased Ningappa had caused galata by visiting the house of PW22, suspecting his involvement in the incident, which is denied by him. Thus, it is evident that PW22 had feared the backlash as the incident had occurred when he had taken the 69 deceased to his field and while returning back, the assault had occurred. Obviously, it is for this reason that he did not orally inform the PW12 who was standing near the Agasi. This conduct of the PW22 is noteworthy.
It is further elicited that he felt that he should rescue the deceased, but he says that the accused had threatened him also. Para 29 and 30 of his cross- examination is relevant in this regard. It shows a natural conduct. It is elicited that he had seen the deceased Ningappa having fallen down on account of the assault. This elicitation in cross-examination of PW22 gains much importance about the nature of the injuries. Certain minor omissions, which he had not stated before the Magistrate under Section 164 of Cr.P.C. are suggested to him. Also he contradicted his say in 164 Cr.P.C. statement that he and PW 12 and some others had gone to Police station and lodged complaint (Ex D13). It is pertinent to note that the substantial evidence of PW22 is 70 that he had identified the accused before the Court and he had identified the accused at the time of the incident and he had mentioned the names of the accused to the police clearly. He was an eye witness to the incident and when the accused started assaulting the deceased, he shouted and when he was also threatened, fled away from the spot. It is also elicited in the cross-examination of PW22 that while he gave a statement before the Magistrate, he was under fear. This mental state of PW22 needs to be appreciated by the Court in the light of the fact that there was a backlash on account of the death of the deceased that he may be the reason for the incident. If PW22 had not called the deceased to his groundnut field, the incident might not have occurred. This aspect was in the mind of PW22 when he gave statement before the police. However, PW22 has categorically stated that they were returning on the motor cycle and accused had pulled the shirts and therefore, they fell down. He pleads ignorance as to whether they were riding motor cycle 71 while returning from the land was stated before the learned Magistrate while recording the statement under Section 164 of Cr.P.C. These are the minor discrepancies and cannot discredit his testimony.
In the cross-examination dated 21-7-2017, PW22 clarifies, as to whether they were walking back or they were on the motor cycle. He says that they walked for some distance and then they were on the motor cycle. It is also elicited as to whether it is a Machu or long. When he has identified the weapons, the question as to whether it is called 'machu' or 'long' is of no relevance. The evidence of PW22 shows a natural conduct during and after the incident. He feared to face PW12 and inform the incident and therefore, went back to his house via backyard. The cross-examination in no way discredits his testimony.
51. The next evidence which is of relevance is of PW19-Basalingappa Yaliwal, who was the second person 72 to know about the assault by the accused. PW19 states that, he only knows about the death of the deceased Ningappa, but he denies that PW22-Mallikarjun Hatagara had informed him over phone that the accused had assaulted the deceased. Therefore, he was treated as hostile and the cross-examination by prosecution has not yielded any results. Therefore, the phone call made by PW22 to PW19 does not get support from the evidence of PW19.
THE DYING DECLARATION:
52. The next important witness in the matter is none else than PW12-Somalingappa Ningappa Yaliwal, who happens to be the father of the deceased Ningappa.
PW12 states that on 20-9-2015, PW22 had called on the deceased Ningappa while PW12 and his family members were in their house. PW22 took deceased Ningappa to his ground nut field on a motor cycle. Thereafter, at 4.00 p.m. PW-12 came to his another 73 house at Hireagasi at their village. While he was there, PW19- Basavalingappa Yaliwal, came there and informed that PW-22 Mallikarjuna Mahadevappa Hatagar, had called him over phone and informed that Ningappa was assaulted with long and sticks by accused Nos. 1 to 7 on Dhulikoppa road near the crusher of one Yaliwal. After getting the information from PW19, PW13-Prabhulinga and PW17-Manjunatha, together went on a motor cycle and brought the deceased Ningappa on a motor cycle near the place where PW12 was standing. He states that many people gathered at the spot and the PW14- Mahaboobsab also came there. Thereafter, PW7 who was in his house nearby also came there. Deceased Ningappa was helped to alight from the motor cycle of PW13 and PW17 and then PW7 brought his car and with the help of PW14 and PW7, the deceased Ningappa was taken into the car. He states that PW12, PW13 and the wife of PW12 Yellavva, sat in the rear seat of the car and deceased Ningappa was made to sleep on their thighs in supine 74 position. While PW7 drove the car towards the hospital, PW14 was on the left front seat of the car. It is stated that while they were coming to KIMS Hospital, Hubballi, he enquired Ningappa as to what had happened. Then he states that, Ningappa had informed that when PW22 and Ningappa were returning on the bike along Dhulikoppa road and when they were to join Dhulikoppa road, Basya, Sangya, Prabhya, Doddamani Manjya, Valikar Kumya, Sotta Manjya, Mutthu (the names as they are called in local slang) i.e., accused Nos. 1 to 7 had come with long and sticks and had assaulted him on the neck, head, forehead, back of the head, arms etc. When PW-12 enquired the reason for such assault, Ningappa informed that it was regarding the dispute of the backyard. He also stated that when the deceased moaned, he was provided with water.
53. It is further stated by PW-12 that Ningappa informed to make him to sleep face down i.e., in prone 75 position and therefore, he was made to sleep facing down with his legs protruding out of the window of the car. Ningappa stated that he be saved and then they came to KIMS hospital where the deceased was taken into the hospital on a stretcher and after 30 minutes of examining the deceased, the Doctors of the KIMS hospital informed that he was dead. Later, he says in his testimony before the Trial Court that deceased had informed that accused Nos. 1, 4 6 and 7 were holding longs and the accused Nos. 2, 3 and 5 were holding sticks.
In the cross-examination of PW-12, only denials are elicited by the defence. The suggestion to PW-12 that the deceased was not in a condition to speak was denied. He also denied the suggestion that PW-12 was not in the said car. Much of the cross-examination is in respect of dispute in respect of back yard and the manner in which the accused were asserting their rights on the said property. It is relevant to note that, much of the cross- 76 examination of the PW-12 is about the denials. The examination-in-chief of PW-12 is put to PW-12 verbatim, word to word to be false. All such suggestions are denied by PW-12 meticulously. It is significant to note that the say of PW-12 that the deceased moaned for water and then PW-12 had provided water to the deceased Ningappa was not denied by the defence.
54. A perusal of the evidence of PW-13-Prabhuling Yaliwal, discloses that on 20-09-2015 he and PW-17- Manjunath Yaliwal, were going on their motor cycle to their land at about 4.00 p.m. via Hireagasi. The people were coming saying that Ningappa had been assaulted near the crusher on Dhulikoppa road. Therefore, they went there. When they reached the spot, deceased Ningappa had sustained injuries and the blood was oozing out and Ningappa pleaded them to take him to the hospital and be rescued. Immediately, PW-13 and PW-17 took the deceased Ningappa on their motor cycle and 77 made him to sit in between them and brought him near Hireagasi. At Hireagasi PW-7 saw that the deceased had bleeding injuries and therefore, he brought his car and in the said car PW-12, his wife (of PW-12) Yellavva and PW- 14 took the deceased Ningappa to the hospital. He states that PW-7 drove the car and PW-14 was sitting in the front and deceased Ningappa was made to sleep on the thighs of PWs 12, 13 and Yellavva. He states that, when the deceased was enquired, he stated that while Ningappa and PW-22 Mallikarjun Hatagar were returning from their land and while they were about to reach Dhulikoppa road, the accused Nos. 1 to 7 were standing by the side of the bushes holding weapons in their hands and suddenly, they came and assaulted the deceased. He also states that the deceased Ningappa had informed that the assault was regarding the dispute in respect of the backyard. He also states that the deceased had requested to make him to sleep in prone position. When the deceased demanded water, he was provided with the 78 water and by that time, they reached KIMS hospital compound and after entering the hospital compound, the deceased had stopped speaking and his eyes were looking up. He was taken inside the hospital and Doctors informed that Ningappa was dead. He also states that PW-22 has also informed about the incident on the next day that the accused Nos. 1 to 7 had assaulted the deceased with long and sticks. He states that PW-22 had informed that accused Nos. 1,2 and 6 assaulted deceased Ningappa with long and accused Nos. 4 and 7 were also holding similar weapon and when they started assaulting the deceased Ningappa, accused Nos. 2,3 and 5 assaulted with sticks and longs and seeing the same, PW-22 had run away from the spot.
In the cross-examination it is elicited that there is dispute in respect of the land. It is elicited that there are hospitals at Hirehonnalli and Kalagatagi. He states that they reached KIMS hospital at 5.30 p.m. and he returned 79 to the village at about 10.30 p.m. He states that the police had come to the hospital at about 6.30 p.m. It is elicited that after knowing about the assault near Hireagasi, he did not try to inform either to PW-12 or others. However, when he returned with the deceased, PW-12 and Yellavva were there. It is elicited that distance from the spot of the incident to the Hireagasi is about 1.5 kilometers. He is unable to say about the name from whom, he came to know about the assault on the deceased Ningappa. He states that he do not know about the motor cycle of PW-22 which was used by him and the deceased on that day. He denies that the deceased was not in a position to speak. He states that before they went to KIMS hospital, he had not met PW-22 or PW-19. He states that he was not in a position to file the complaint to the police on that day. It is elicited in the cross examination that it was PW-14-Mahaboob sab, who got the chit prepared in KIMS hospital. Rest of the cross examination is about the denial of the statement in the 80 examination in chief. It is again, significant to note that his evidence that the deceased has moaned and had asked for water was not denied in the cross examination. Para 32 of the cross-examination clearly shows that deceased demanding water and PW-12 and PW-13 providing water to him was not specifically denied by the defence.
55. The other important witness of the prosecution is, PW-17-Manjunath Yaliwal. It was PW-17 and PW-13 who have brought the deceased Ningappa from the spot of the incident to Hireagasi. In his examination- in- chief, he states that deceased was serving in the Military and he came to the village on 3-9-2015 on 20 days leave. He reiterates what has been stated by PW-s- 12 and 13 in respect of the dispute in respect of back yard of the house. He states that on 20-9-2015, between 2 to 3 p.m., he and his family members along with the deceased were in the house and PW-22 came on his motor cycle 81 and called deceased Ningappa to go to their land. Then at about 4.00 p.m. he and PW-13 were going to the land on the motor cycle via Hireagasi and came to know from the people that deceased Ningappa was assaulted by accused No.1 and his companions. Therefore, they went near the crusher of Yalivala on Dhulikoppa road and saw that the deceased Ningappa had fallen with injuries. Deceased Ningappa pleaded to take him to the hospital and save him and blood was oozing from the injuries. They brought him to the Hireagasi and thereafter, the deceased was taken to the hospital in the car belonging to PW-7. He also states that PWs-12, 13 and mother of the deceased Yallavva had gone to the hospital along with PW-7 and PW-14. Thereafter, PW-17 and his uncle Mahadevappa went to KIMS hospital by bus and came to know that Ningappa died. He also states that he enquired with PW- 13, who informed about the information divulged by the deceased while coming to the hospital that accused Nos. 1 to 7 have assaulted the deceased Ningappa while PW- 82 22 and deceased Ningappa were coming on the Dhulikoppa road. He reiterates what has been stated by PW-13 in his evidence. He also states that PW-22 knew about the incident that the accused Nos. 1 to 7 have assaulted the deceased.
In the cross- examination, it is elicited that before he reached KIMS hospital, police had arrived there and he states that it was about 7 or 8 p.m. when he reached the hospital. He states that his father had given complaint to the police and he had not given any information to the Kalagatagi police. He states that when he and PW-13 reached the spot, there were none in the vicinity. It is relevant to note at this juncture that PW-s- 13 and 17 had come to know about the incident from the people who were near Hireagasi.
56. The cross-examination of PW-17 shows that there was no public near the crusher or near the Dhulikoppa road where the deceased had fallen. 83 Obviously, the distance between Hireagasi and the spot is about 1.5 KMs. Therefore, at no stretch of imagination, the argument of defence that the evidence of the PW-17 is contra to the evidence of PW-13, (who says that there are many people from whom he came to know about the assault) can be accepted. In the cross- examination, it is elicited that the police have not seized the blood stained clothes of PWs 13 and 17. The rest of the cross examination is verbatim denial of the examination- in- chief.
57. The next important witness is, PW-14-Mahaoob Sab Makandar. He states in his examination-in-chief that he knew accused Nos. 1 to 7 as well as PW-12- Somalingappa Yaliwal and the deceased Ningappa. He states that deceased Ningappa had come to the village on leave on 16-9-2015 and there was a dispute between the accused No.1 and the deceased Ningappa. He states that on 20-9-2015 at about 4 to 4.30 p.m. some people have 84 gathered near Hireagasi and therefore, he also joined them. He states that PWs- 13 and 17 also came on motor cycle with the deceased Ningappa from Dhulikoppa road side and deceased Ningappa had bleeding injuries and the people gathered were saying that they had to take Ningappa to the hospital. In the meanwhile, PW-7- Rudrappa came there with his car and he and PW-7- Rudrappa along with the PW-12, wife of PW-12 -Yallavva and PW-13 took the deceased Ningappa in car to the KIMS hospital. When they entered the KIMS hospital, the Doctors examined Ningappa and informed that he was no more. On enquiring the PW-12, he (PW-14) came to know that the deceased Ningappa and Mallikarjuna had been to the land and while returning, near the quarry of Ulavappa Yalivala, accused No. 1 to 7 have assaulted Ningappa with sticks and longs. It is relevant to note that PW-14 had enquired the PW-12 and that PW-12 had informed that the deceased Ningappa had told him that the accused had assaulted the deceased Ningappa. This 85 say of PW-14 in para 3 of his examination-in-chief is relevant to show that PW-12 had informed about the statement made by the deceased Ningappa to PW-12. He further states that on the next day, police had called him for the inquest mahazar and he had seen the injuries on the body of the deceased and the inquest mahazar was prepared between 8.00 am to 10 a.m. He identifies his signature on Ex.P23.
In the cross-examination, much is questioned as to how he received the Court summons and warrants etc. We do not find that such cross- examination is of any relevance here.
58. It is pertinent that after issuance of summons and warrants, the presence of PW-14 was secured by the Trial Court and he has deposed before the Trial Court. This elicitation in the cross-examination about PW-14 that he not appearing before the Court immediately on receiving the summons reflects that the witnesses who 86 had deposed before the Court were under pressure by someone. However, the evidence of PW-14 so far as it relates to the fact that PW-12 had also accompanied the deceased Ningappa in the car to the KIMS Hospital is clear and is contrary to what has been stated by PW-7 that PW-12 had not come in the car. In the cross- examination, it is further elicited that there was dispute in respect of the Panchayat Property Nos. 95 and 98 between the accused, PW-12 and the deceased Ningappa. It is elicited that there are various private hospitals between Hirehonahalli and KIMS Hospital and he had prepared the chit at the KIMS Hospital. Obviously, the perusal of the said chit marked at Ex D2 show that it was PW-14 who is said to have accompanied the deceased to the Hospital. He states that they did not make any effort to take the deceased to any private hospital in between. It is also elicited that the clothes of PW-13 and PW-17 were blood stained and there were also blood stains in the car. Further in para-11 of the cross-examination, it 87 was again elicited that the Police were writing as stated by PW-12 and he had seen the same. Curiously, the time when the Police were writing the statement of PW-12 is not elicited. The suggestion that he had not at all gone to the hospital and that PW-12 and his wife Yellavva also had not gone to hospital has been denied by him.
59. The other witness who had accompanied the deceased Ningappa to the hospital as per the case of the prosecution is, PW-7-Rudrappa Yeliwala. He states that usually he is residing at Dharwad and occasionally he goes to Hirehonnalli village. He states that at about 4.00 p.m. he came to know that near the bus stand, the deceased Ningappa, PW-13 and some others were there and Ningappa had sustained injuries. He pleads ignorance as to how the injuries had happened and states that he took the deceased Ningappa to KIMS hospital, Hubballi. The mother of deceased Ningappa i.e,. Yellavva and PW- 13 as well as PW-14 Mehaboob Sab were in the car. He 88 categorically says that PW-12 had not accompanied him in the car. Therefore, he was treated as hostile and cross- examined by the learned Public Prosecutor.
In the cross-examination, it was elicited that he knew that on 16.09.2015 Ningappa had come to the village on leave. He denies about the knowledge of the dispute in respect of the backyard. Thus, his evidence is only to the effect that he had taken the injured Ningappa along with his mother Yellavva and Mehboob Sab to the hospital. He also does not say that PW-13 had accompanied the deceased Ningappa to the hospital. In the cross-examination, it was elicited that he is cousin of the accused No. 1 to 3. In the cross-examination by the defence, it was elicited that it will take about 30 minutes to 45 minutes to reach KIMS hospital from Hirehonnalli. He states that the Police had visited the hospital at about 6.30 to 7.00 p.m. It is elicited that since PW-14 informed that deceased Ningappa had already died and therefore, they have to go to KIMS hospital and as such, the 89 deceased was taken to the KIMS hospital. He has denied the suggestion that he did not take the deceased Ningappa to the KIMS hospital. It is pertinent to note that he do not say as to why the dead body of the deceased was taken to KIMS without informing to the police. Curiously, the defence has not elicited at what time PW- 12 came to hospital and he gave statement to police.
60. The above evidence on record shows that PWs- 12 and 13 categorically say that the deceased Ningappa had disclosed about the assault by the accused No. 1 to 7 on him near the crusher of one Yalivala. The evidence regarding the dying declaration made by the deceased Ningappa is clear and categorical. Obviously, they were sitting at the rear of the car and therefore, their proximity to the deceased was more than PW-7 and PW-14. There is a possibility that PW-14 might not have heard what the deceased Ningappa had informed to PWs-12 and 13. The 90 evidence of PWs-12 and 13 show that their testimony has not been impeached in anyway.
61. The evidence of PWs-12 and 13 show that there is nothing elicited in the cross-examination which would render their testimony unbelievable which discredit their ability to say about the incident. Their evidence appear to be natural and they were not impeached in any way by the cross- examination. It is relevant to note that there may be certain minor contradictions or omissions which do not render their testimony unbelievable. Obviously, PW-s- 12 and 13 were in grief when the incident happened and their first response was to save the deceased Ningappa.
62. It was elicited in the cross-examination of PW- 12 that there were many hospitals on the way to KIMS hospital, Hubballi. It was replied that, it was a Sunday and there are no hospitals where the Doctors in the hospitals are available. It is evident that only hospital 91 available for the public in and around the village is the KIMS Hospital only. Of course, there may be certain private hospitals on the way to Hubballi but the explanation given by PW-12 is sufficient enough to show that their intention was to bring deceased Ningappa to KIMS hospital which had better facilities.
63. It is also pertinent to note that the evidence of PW-14 shows that he partially support the prosecution case but the prosecution has not cross-examined him as to whether he had heard the statement made by the deceased that the accused had assaulted him. He clearly states that the deceased was injured and that there was a dispute between the deceased and accused in respect of the backyard i.e. property Nos. 95 and 98. He states that he accompanied the deceased, PWs-12 and 13 and Yellavva to the hospital. He also states that PW-14 has driven the car to the hospital. However, he does not say that the deceased Ningappa had stated before PWs- 12, 92 13 and Yellavva that accused had assaulted him with long and sticks. This evidence of PW-14 that PW-12 was in the car is of much importance as he is a witness not related to either the deceased or the accused. On the contrary, PW-7-Rudrappa happens to be cousin of accused No. 1 to
3. When the evidence of PW-7 and PW-14 are contradictory to each other, the evidence of PW-14 gains credibility since he is not related either to the accused or to the deceased. Therefore, when the evidence of PW-14 substantially support the say of PW-12, we do not find any reason to hold that the testimony of PW-12 has to be discarded. Thus, the testimony of PW-12 holds ground and there is no reason to disbelieve his version. The fact that PW-14 is also from the Hirehonnalli village and that the accused are also from the Hirehonnalli village is an aspect which needs to be borne in mind. Further, the cross-examination of PW-14 by learned counsel appearing for the defence shows that initially he was little reluctant to appear before the Court when the summons 93 were issued by the Trial Court. It was only on the coercive actions being employed by way of issuance of the warrants that PW-14 had appeared before the Court. Under these circumstances, we find that the testimony of PWs-12 and 13 having supported substantially by the PW-14, there is no reason as to why the say of PW-12 and 13 is not to be accepted.
64. The next aspect which needs to be ascertained is, whether the deceased was capable of giving the statement in the light of the injuries sustained by him.
It is pertinent to note that the deceased had sustained 36 injuries on his body. The injury Nos.35 and 36 were on the neck and mandibles of the deceased. It is evident that the injuries were on the neck and on the jaws. Therefore, it is possible that the deceased Ningappa was capable of speaking and he disclosed the name of the accused to PWs-12 and 13 while they were in the car. It has also come in the evidence of PWs- 13 and 17 when 94 they reached the spot where the deceased had fallen near the crusher at the place of assault, he was pleading for saving his life and to take him to the hospital. The evidence of PWs- 13 and 17 is clear in this regard. Therefore, the contention of the prosecution that deceased was capable of speaking gains importance.
65. The evidence of PW-6 shows that there were no such injuries which affected the speech of the deceased Ningappa. There were no injuries to the larynx and the throat. The injuries were on the back of the neck. Therefore, when the evidence of PW-6 clearly show that larynx was not injured, it is not possible to hold that the deceased was incapable to speak. More importantly, the PM report shows that brain was intact though there were several injuries on head. This rules out that the deceased died at the spot.
66. Significantly, either the prosecution or the defence has not elicited or cross-examined PW-6, on the 95 aspect as to whether the injuries had any effect on the speech of the deceased Ningappa. Therefore, the injuries sustained by the deceased Ningappa do not show that he was incapable of making any oral statement.
67. The Trial Court has come to the conclusion that considering 36 injuries suffered by deceased Ningappa, it cannot be said that he is capable of giving any statement. It is relevant to note that PWs-13 and 17 state that when they reached the spot where the deceased had fallen he was pleading for the medical help and to save him. This say of the PW-s-13 and 17 coupled with the time gap between the deceased being picked up by PW-s-13 and 17 from the spot and the statement given by him on the way to the hospital plays a vital role. It is necessary to note that unless the injuries are directly on the larynx and it damages the larynx, a person who suffers injuries would continue to speak till he fades out. Under these circumstances, we find that the say of PWs-13 and 17 96 coupled with the testimony of PW-12 establish that the deceased was capable of giving the statement and he had made statement before PWs-12 and 13 that the accused 1 to 7 had assaulted the deceased with longs and sticks. Further, there is no reason as to why the testimony of PWs- 12, 13 and 17 should be discarded. When PW-7 and PW-14 have not fully supported the case of the prosecution, that portion of the evidence which they have supported the case of the prosecution has to be accepted. When the evidence of PW-14 supports the version of PWs- 12 and 13 that they have accompanied the deceased Ningappa in the car to the hospital and when PW-7 admits that he drove the deceased to the hospital, such evidence has to be accepted and it supports the case of the prosecution. In no way, the testimony of PWs- 12 and 13 was impeached by the defence.
THE RECOVERIES:
68. The evidence of PW-18- M.R. Doddabasappanavar, Investigating Officer, who had 97 initiated the investigation since inception shows that the accused Nos. 1 and 6 were arrested on 21-9-2015 and on questioning them, accused No.1 gave voluntary statement as per Ex.P35 and informed that he would produce the weapon used for the commission of the offence. As such, the Investigating Officer has summoned PW-10-P.Y.Kichadi and CW7 and then accused No.1 led to the spot where he had hidden the Long which he had used for commission of the offence. The said weapon at MO 7 was seized under Ex.P16. Thereafter, on return to the police station accused No.1 also produced the clothes and were seized under the mahazar in the presence of PW-8-B.B.Belliwale and CW-4.
69. Thereafter, accused No.6 also gave a voluntary statement as at Ex.P36 and produced the clothes worn by him and they were seized under mahazar as per Ex.P11 in the presence of PW-8-Belliwale and CW4. Thus, PW-8 and CW 4 were the panchas in respect of the recovery of 98 clothes of accused Nos. 1 and 6. The evidence of PW-10-
P.Y. Kichadi, who is the pancha for the recovery discloses that on 21-9-2015 the police had called him and he and CW7 went to the police station. The police enquired the accused No.1 and he informed that he had hidden the long by the side of the land of one Basamma and they went in police jeep and accused No.1 led the police to the said spot and picked up the MO 7 from the bushes and produced it. It was seized under the mahazar as per Ex.P16. This evidence of PW-10 shows that the accused No.1 was questioned in the police station and accused No.1 led police and panchas to the spot. It corroborates the evidence of PW-18 who states that soon after the accused gave the voluntary statement, he had summoned the panchas and they went to the place where MO 7 was hidden.
70. After return from the spot, the clothes worn by the accused Nos. 1 and 6 were seized by the 99 Investigating Officer and they were seized under the two mahazars i.e. Exs.P10 and 11. PW-8-B.B.Belliwale, was the pancha for the said mahazars. The evidence of PW-8 discloses that accused No.1 had produced his blood stained full shirt and jeans pant and it was seized under mahazar Ex.P10. He has identified the same as MO 15 and 16. He states that after half an hour of the said mahazar, the accused No.6 also produced his T shirt and the pant and they were seized under the mahazar as per Ex.P11 and they were at MO 17 and 18.
In the cross- examination of PW-8, it is elicited that the signatures were taken by the police on 4 to 5 blank papers. However, the evidence of the investigating officer in this regard is clear. Sofar as recovery is concerned, PW-8 states that he was present in the police station in the evening on 21-9-2015 and denies that the police had not recovered the clothes of accused Nos. 1 and 6. Even though, his testimony creates doubt in respect of the 100 mahazar prepared at spot of incident (Ex.P8), his testimony withstands the say of the police that the clothes of the accused Nos. 1 and 6 were recovered in the police station.
71. Sofar as PW-10-P.Y. Kichadi, is concerned, his cross examination is clear and categorical in saying that accused No.1 led the Investigating Officer to the spot where he had hidden the weapon. He has denied the suggestion that no such weapon was seized and he has replied that the said spot was about one kilometre from the village. He is also clear and categorical in saying that mahazar was drawn between 3.50 to 4.20 p.m. Therefore, there is no reason to disbelieve the evidence of PW-10 regarding the said recovery.
72. The Investigating Officer- PW-18 states that accused Nos. 2 to 4 and 7 were arrested on 23-9-2015 and they also gave voluntary statements as per Exs.37, 38, 39 and 41. He states that when the accused No.2 and 101 3 gave the voluntary statement, he summoned panchas PW-9 and CW-8 to the police station and the accused led for the recovery of the sticks. The perusal of evidence of PW-9 discloses that the accused No.2 was enquired by the investigating officer and he informed that he would produce the stick which was used by him. Accordingly, the police and the panchas went to the spot where the stick was thrown and he produced the said stick and it was seized under the mahazar as Ex.P12. He identifies the said stick at MO8.
73. Thereafter, accused No.3 was enquired, he also led the police and panchas to the spot where he has hidden the stick and mahazar was drawn for the recovery of MO.9 as per Ex.P14. The cross examination of the PW- 9 discloses that, it was suggested to him that his son was working as the driver on the vehicle belonging to PW-12 Somalingappa. He has denied the said suggestion. The cross- examination tries to elicit that he had political 102 connections and he had stated that he had contested for Panchayat, but had lost. It is elicited that he did not give the information to the police to write the mahazar, but he has read the mahazar and thereafter, he signed it. An effort was made in the cross examination to elicit that he is an interested witness. But there is no clear elicitation that he is an interested witness as he is close to the family of PW-12. Thus, the evidence of PW-10 shows that the accused Nos.2 and 3 had mentioned about the sticks and they had led the police for the recovery of MOs 8 and
9.
74. In pursuance to the voluntary statements of accused Nos. 4 and 7, Investigating Officer states that he has summoned PW-11 and CW10 and accused were enquired and they disclosed that they would produce a stick and Long and they led the investigating officer and panchas to the respective spots. The perusal of evidence of PW-11- Irappa Kamadhenu, shows that he and CW10 Manjunath were called to the police station. On enquiry, 103 accused No.4 had told that he would produce the long which was used for commission of the offence. Accordingly, accused No.4 led the police and panchas to the place on Hubballi Karwar road near bridge and produced the Long which was seized by the police.
After that, when PW-11 and CW10 were about to return to their house, police said that there is another mahazar to be done and accused No.7 was in police station and on enquiry, accused No.1 told about the place where he had kept the long. Accordingly, they went to the place along with accused No.7 and he produced the weapon. Thus, the evidence of PW-11 in this regard clearly establish that recoveries were made as per the statement made by the accused Nos. 4 and 7 in his presence. The police have conducted the mahazars as per Exs.P18 and P21 and he has identified his signatures and the contents of the mahazars to be correct. 104
In the cross-examination, PW-11 states that he is from Begur village and he is a distant relative of PW-12. He states that when he went to the police station PW-12 was not in the police station. In the cross-examination, it is categorically elicited that when he was in the police station, accused 4 and 7 have not stated the place where they have kept the weapon but only say that they will produce the weapons if they go to the said spot. This elicitation in the cross- examination of PW-11 discloses that the Investigating Officer did not have prior information as to the place where the weapons were kept.
75. PW-18, Investigating Officer states that accused No.5 gave voluntary statement as per Ex.P41 and said that he would produce the stick and Scorpio vehicle which was used to come to the spot of the incident. Accordingly, PW-15-V.M.Mugad and CW13 were summoned to the Police station and in their presence again accused was 105 enquired and then he led the police and panchas to the spot. The perusal of evidence of PW-15 shows that accused No.5 was enquired by the Investigating Officer and he said that he would show the vehicle and the stick. Accordingly, they went in the police jeep and the accused No.5 produced the vehicle bearing No.KA.41.P.6657. He also produced the stick which was kept in the dickey of the said vehicle. They were seized under the mahazar as per Ex.P33. PW-15 has identified his signature on the same.
In the cross- examination, PW-15 states that he knew the accused but he do not know the PW-12 or his wife. Much of the cross-examination is in respect of the manner in which the summons by the trial court was served upon him and how he came to the court to depose. He states that police had not issued him notice to come to the police station for the purpose of the mahazar and police had not recorded the voluntary statement in 106 his presence. However, he categorically says that Ex.P33 is the said mahazar. Rest of the cross-examination is denials.
76. Ex.P8 happens to be the spot mahazar under which one of the weapon i.e. MO 5 was seized. It is none else than PW-8 who was present at the time of spot mahazar and he has stated that in a channel near the spot, the MO 5- Long had fallen and it had blood stains.
77. PW-8 clearly says that he was also summoned to the spot of the incident and police had conducted the mahazar. However, in the cross examination, he has stated that he has signed on blank papers. He identified his signature on Ex.P8 and he did not say that mahazar was prepared in his presence at the spot. He identifies the contents of the mahazar. The recovery of MO5 from the spot is spoken by the Investigating Officer as well as by PW-22 also.
107
78. It is the case of the prosecution that these weapons which were recovered and the clothes of the accused as well as deceased were sent to FSL, which was examined by PW-20-Dr.Mahadeshwaraswamy Y.H. There appears to be some discrepancy in respect of the numbering of the material objects and the articles. It is to be noted that PW-8-B.B.Belliwale, was shown MOs 15 to 18 to be the clothes of the accused Nos. 1 and 6 and he identified them. The evidence of PW-18-M.R. Doddabasappanavar, also shows that the MOs 15 to 18 are the clothes of the accused Nos. 1 and 6. However, the evidence of PW-20 is not clear as to which are these objects in his report. Para 4 of the examination in chief of PW-20 describes the articles which he had examined and co relates the same to the MO 5 to 18. This evidence of PW-20 does not co-relate to the material objects and there appears to be certain discrepancy. However, it is relevant to note that PW-20 is categorical in saying and describing the articles which he had examined. Obviously, 108 PW-20 did not have the information as to which articles were seized and from whom. It was for the Investigating Officer to clarify this aspect and such co-relation between the articles examined by PW-20 and the material objects which were marked are not available in the deposition of PW-20. It appears to be a small lacunae in the investigation.
79. The evidence of PW-20 discloses that the clothes of the accused Nos. 1 and 6 which are MOs 15 to 18 had the blood stains. So also the two of the Longs which were allegedly seized from accused Nos. 1 and 6 had blood stains and Ex.P43 issued by PW-20 clearly shows this aspect. Under these circumstances, the blood stains on two of the weapons tallied with the blood stains which were found on the clothes of the deceased. Obviously, the undergarments of the deceased Ningappa were also blood stained and they were of 'AB' blood Group. Therefore, it is evident that the weapons as well 109 as the clothes of the accused and the deceased contained 'AB' group blood. The cross-examination of PW-20 does not discredit his testimony. The evidence of the Investigating Officer and the documents produced though have some lacunae, they would not discredit their testimony.
80. The learned counsel for the accused submitted that the Investigation Officer had the prior information of the place where the weapons were hidden by the accused and therefore, there is no such discovery of the weapons as envisaged under Section 27 of the Evidence Act. We find considerable force in this argument as the voluntary statements at Ex P 31 to 37 disclose the place where they were hidden/thrown. The decision in the case of Thimma Reddy Vs Vs State of Karnataka9, referred by learned counsel for the accused, wherein, the law relating to discovery of the fact and recovery of the incriminating 9 2018(2) AKR 577 110 material was considered by the co- ordinate Bench of this Court at length, which was authored by one of us. It was observed that "procedures followed in the alleged recovery of the weapon was not proper and in fact, there was no such recovery of the incriminating material". Therefore, we have restricted our discussion to the blood stains found on the clothes worn by the accused 1,6 and the clothes of the deceased.
DEFENCES AND DELAY IN FILING FIR
81. One of the main defence of the accused is that there is delay in registering the FIR. According to the PW- 12 and other witnesses, the incident had occurred around 4.00 p.m. and the deceased along with PWs-12, 13 and others reached KIMS hospital, Hubballi, around 5.30 p.m. The First Information report as per Ex.P4 was received by PW-18 at 9.00 p.m. It is contended that this delay of 3 1/2 hours is fatal to the prosecution case. 111
82. It is pertinent to note that soon after the deceased brought to Hireagasi at around 4 to 4.30 p.m., without delay he was taken to KIMS Hospital, Hubballi. The PW-12 says that the deceased was taken into the hospital on a stretcher and within 30 minutes the Doctors informed that he was brought dead. Simultaneously, PW- 14 prepared the OPD chit as per Ex.D2, wherein it is mentioned that the deceased Ningappa was brought dead. It was subsequent to this information received by PW-12 that the filing of the First Information Report is relevant. In all probability, only after recovery from the initial shock of the death of deceased Ningappa, PW-12 could have lodged the complaint.
83. In the evidence of PW-12, it is elicited that the Superintendent of Police and other officials had come to the hospital at around 6.30 p.m. It is elicited that he gave a statement to the Superintendent of Police and it was recorded by him. It is this statement of PW-12 in the 112 cross- examination at para 80 and 81 which is heavily relied by the defence. The Trial Court in its judgment, holds that the said statement made before the Superintendent of Police, Dharwad, is the first information under Section 156 of Cr.P.C. and therefore, conclude that the Ex.P4 is doubtful.
84. It is pertinent to note that a mere enquiry by the Superintendent of Police, Dharwad, cannot be termed to be the first information report. PW-18 reached the KIMS hospital, Hubballi, after getting information and visiting the spot of the incident. As such, the receipt of the Ex.P4 by PW-18 at 9.00 p.m. cannot be termed to be an outcome of delay and that it was a product of consultation and deliberation. There is nothing elicited in the cross- examination of PW-12 which establishes that PW-12 has consulted anyone who were in the knowledge of the incident and there was room for embellishments. The Ex.P4 was written by PW-21- Vinayak, who was a 113 resident of Hebballi. Though PW-21 says that he is a stranger to PW-12, PW-12 states that PW-21- Vinayak had come to see his son. PW-21 has been elaborately cross examined and he says that he is a resident of Hebballi and not a resident of Kalaghatagi. Though he admits that his signature on Ex.P4 and the summons Ex.D12 differs, he categorically identifies his signature and handwriting on Ex.P4. Therefore, the contention of the defence that the identity of PW-21 is doubtful cannot be accepted.
85. Evidently, PW-12 was in grief of the death of his son Ningappa and an oral enquiry by the police who were present at the KIMS Hospital, Hubballi, may be Superintendent of Police, Dharwad, cannot be termed to be a first information report. What he has stated was reduced into writing by PW-21 and it was received by PW-18 at 9.00 p.m. Then he returned to Kalaghatagi, registered the same and commenced the investigation. 114 Therefore, this contention of delay in registering the FIR is not acceptable.
86. Here it is relevant to refer the decision in the case of Ashok Kumar Pandey Vs. State of Delhi10 which lays down that, "it is a natural conduct of a normal human being to rush the injured persons to the hospital, particularly, when they are his near and dear ones, instead of leaving them in the place of occurrence to die and to go to the police station to give information about the occurrence." In the said decision, there was delay in filing the FIR by a few hours. In para 9 it was observed that, "the incident had occurred in the mid night and the FIR was received by the Magistrate at 7.30 hours and considering the same, the Apex Court held that it cannot be construed to be a delay".
87. The learned counsel for the accused has pointed out several discrepancies in the evidence of PW-22 vis-a- vis, the statement under Section 164(5) of Cr.P.C. This 10 (2002) 4 SCC 76 115 aspect has been dealt with in the above paragraphs while considering his evidence as an eye witness. The substantial evidence of PW-22 regarding the incident remain unimpeached. Whether PW-22 and PW-12 visited the Kalaghatagi Police station after 10.00 p.m. to verify whether the case was registered or not is not of much importance which would negate the entire evidence of PW-12 or PW-22. Obviously, PW-22 was under pressure. His statement under Section 164 of Cr.P.C. says that PW- 12, one Gurulingappa, Nagu, Eerappa had been to the police station to lodge the complaint. Obviously, the complaint was received by PW-18 at 9.00 p.m. Under these circumstances, this discrepancy pales into insignificance. Moreover, there is nothing wrong in PW-12 visiting the police station on his return from hospital.
88. The defence has pointed out that all the supporting witnesses are the close relatives and therefore, their evidence cannot be relied to base the 116 conviction. We are afraid that such a contention could hold any water. It is settled principles of law that, the evidence of the interested witnesses, if it is clear, cogent and natural, can be the basis for conviction. The contradictions pointed out by the defence in the evidence of PWs- 12 and 22 are the two perceptions of these witnesses. None of these contradictions, like visiting the police station after 10.00 p.m., PW-22 seeing PW-12 in the evening, say of PW-22 that he was under fear, etc., do not go to the root of the case. Rather they are only superficial in nature and bound to occur when the witnesses are deposing out of their memory after certain period of time.
89. Another point raised by the defence is about the description of the weapons. The question is, whether it is a machu or a long? When the witnesses have identified the weapons, the question whether it is called as 'machu' or ' long' is not of much relevance. It is to be noted that if 117 the blade of the weapon is little longer, it is described as 'long' and if it is shorter, it is described as 'machu'. Moreover, PW-6 in his opinion has stated that the injuries found on the body of the deceased may be inflicted by the weapons seized and examined by him.
90. The last point raised by the learned counsel appearing for the accused is that, the accused could not have known that PW-22 and deceased are visiting the land of PW-22. It is evident that the investigation does not show a previous conspiracy among the accused to commit the crime. It is for this reason that PW-22 feared the backlash that he may be the perceived to be the informant (of movement of deceased) to the accused. However, PW-22 has deposed before the Court and also before the Magistrate under Section 164 of Cr.P.C. that it was the accused Nos. 1 to 7 who had assaulted the deceased Ningappa. Therefore, the question whether the accused had kept a surveillance about the movements of 118 the deceased Ningappa is not the subject matter of the investigation and as such, this point raised is of no relevance. The fact remains that on 19-9-2015 the accused as well as PW-12 and the deceased had faced each other at the panchayat office, when the President of the panchayat had informed that there would be a meeting on 21-9-2015.
CONCLUSIONS:
91. The above discussions show that the accused had the motive and they had also expressed that one of the family member of the PW-12 would be killed or injured. The motive regarding the dispute in respect of property Nos. 95 and 98 has been elicited in the cross- examination by the accused. Ex.P24 is a clinching document to establish that the deceased had expressed about the threats to him and his family. It has also come in the evidence of PW-12 that after the dispute regarding the backyard commenced, there were police complaints 119 filed by him as well as by the accused. This aspect is elicited in the cross-examination of PW-12. It is not known whether investigation was done in this regard. Therefore, the motive has been sufficiently proved by the prosecution. The Trial Court holds that the motive is not proved by any clinching evidence. We are unable to accept the reasoning by the Trial Court in this regard.
92. The revelations by the deceased while he was being taken to KIMS hospital, Hubballi, is spoken by PW- 12 and PW-13. The presence of the PW-12 in the car is fortified by the evidence of independent witness i.e., PW- 14-Mahaboob Sab. Though PW-7 denies the presence of PW-12, his evidence has to be termed to be biased as he is cousin of accused Nos. 1 to 3. Therefore, the Trial Court expressing that PWs 7 and 14 do not vouch for the dying declaration and it creates a doubt cannot be accepted. It is trite law that such portion of the evidence of a hostile witness which is of relevance to the 120 prosecution case may be accepted. The Trial Court failed to note that the evidence of PW-14 falsifies the say of PW-7 regarding the presence of PW-12 in the car. We see no reason not to accept this evidence of PW-14 which supports the prosecution case regarding the presence of PW-12.
93. Soon after the deceased Ningappa was declared brought dead at KIMS Hospital, Hubballi, PW-12 and his wife Yellavva were in grief. PW-12 has stated that he was in grief and do not know who were the police authorities visited the hospital. It is also relevant to note that PW-12 was cross-examined on 7 different dates. There is repetition of many facts in the cross-examination. Therefore, it is quite natural that discrepancies creep in when the witness is deposing repeatedly on the same aspect at different points of time. One cannot expect that on each occasion, the witness has to depose in a parrot like manner.
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94. The recovery of the weapons and clothes as discussed above show that on the basis of the voluntary statement by the accused, PW-18 knew the place where they were hidden. Therefore, such recovery of the weapons was known to PW-18 as may be seen from the voluntary statements and therefore, such recovery do not fall within the scope of Section 27 of the Evidence Act. It is not a fact which has been discovered. It has to be termed to be recovery simplicitor. The clothes of the accused Nos. 1 and 6 are also the recovery simplicitor. These clothes of the accused Nos. 1 and 6 had the bloodstains of AB+ human blood. The clothes of the deceased also bore the stains of AB+ human blood. This circumstance, as may be found from the evidence of PW- s 20 and 18 is of some relevance. The Trial Court has totally discarded the matching of the blood group by holding that PW-6 had not collected the sample blood from the body of the deceased and PW-18 had not collected the sample blood of the accused. Such 122 observation could not have been the basis to hold that the prosecution has failed to prove its case. Similarly, non-seizure of the motor cycle used by PW-13 and 17 to bring the deceased Ningappa from the spot to Hireagasi and the non seizure of clothes of PW-s-12, 13,17 and Yellavva, also cannot be a ground to disbelieve the prosecution case. We note that the Investigating Officer has not seized the said motor cycle or the car used for ferrying the deceased to the hospital. There are also certain lacunae in the investigation which we have pointed out while considering the recoveries under the mahazars. Such lacunae in the investigation cannot be a ground to hold that the prosecution has not proved its case if there is other evidence.
95. In this regard, the Apex Court in the case of Dhanaj Singh @ Shera and others Vs. State of Punjab11 observed that the defective investigation would 11 (2004) 3 SCC 654 123 not come in the way of convicting the accused. It was held as below:
"5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
6. In Paras Yadav v. State of Bihar (1999) 2 SCC 126 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party."
96. Sofar as the dying declaration is concerned, we have noticed that in the cross-examination of PW-6 nothing is elicited that the injuries suffered by the deceased Ningappa incapacitated him from speaking. PW- 6 was an expert and could have deposed about the time that would take for a person to fade out and die after suffering the injuries as found on the body of the 124 deceased. Therefore, there is no reason to disbelieve the say of PW-s 12 and 13. We have noticed that the brain was intact and there was fracture of C5 and C6 vertebrae. Therefore, we hold that the deceased was capable of giving an account of the incident and divulging the names of the assailants. The decision in the case of Parbin Ali and another Vs. State of Assam12 chronicles most of the decisions rendered by the Apex Court till then, including the decision in the case of Lakshman Vs. State of Maharastra13. It is held that the oral dying declaration have to be considered with care and caution and when there is no cross- examination about the capability of the victim giving the dying declaration to the Medical Officer, there was no reason to discard such dying declaration. In paras 11 to 21, it is held as below:
12
(2013) 2 SCC 81 13 (2002) 6 SCC 710 125 "PW- 1 (relative of deceased), PW- 2 (wife of deceased), PW- 3 and PW- 5 (father-in-law of deceased), deposed that the deceased had named three accused persons as the assailants. PW- 6, who came later to the place of occurrence, had found that the deceased was not in a position to speak. PW- 8 did not support the prosecution case in entirety.
Thus, the real witnesses to the oral dying declaration were PW-s 1,2,3 and 5 and hence, the veracity of their version is required to be scrutinized. The wife, father-in-law and two other relatives clearly stated that the deceased had informed them about the name of the assailants. Nothing was elicited in the cross-examination which would discredit the testimonies of the PW-s. They have deposed in a categorical manner that by the time they arrived at the place of occurrence, the deceased was in a fit state of health to speak and make a statement and, in fact, he did make a statement as to who had assaulted him. Nothing was suggested to these witnesses in cross-examination about the fitness of deceased to make declaration. Again, the final opinion of PW- 4 (doctor who performed the post- mortem) was that death was caused due to shock and haemorrhage as a result of ante-mortem injuries in the abdomen caused by sharp weapon and which injuries were homicidal in nature. Said opinion of the doctor was not challenged either before the trial court or before the High Court. The doctor was not at all cross-examined. Hence, whether such a person (herein deceased), receiving certain injuries, would be in a position to speak or not, was not brought out any where in the evidence. In this backdrop, it can safely be concluded that the deceased was in a conscious state and in a position to speak. Thus, it is difficult to accept that the wife, father-in-law and other close relatives would falsely implicate the appellant-accused by attributing a false oral dying declaration to the deceased. That apart, in the absence of any real discrepancy or material 126 contradiction or omission and additionally non-cross- examination of the doctor in this regard, makes the dying declaration absolutely credible and conviction based on the same really cannot be faulted. Hence, the conviction of the appellants is confirmed."
97. The learned counsel appearing for the appellant has also placed reliance on the decision in the case of Kamal Kudal Vs. State of Assam14 wherein, it was observed as below:
"21. The law regarding the nature, scope and value as a piece of evidence of oral and written dying declarations is now fairly well settled by various judicial decisions of this Court. A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross examination to test is genuinity or veracity. The court has, therefore, to subject it to close scrutiny. But once the court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon. However, 14 2022 SCC Online SC 882 127 if there are infirmities and the court does not find it safe to base any conclusion on it without some further evidence to support it, the question of corroboration arises.
22. We may refer to one of the decisions of this Court in the case of Heikrujam Chaoba Singh v. State of Manipur, (1999) 8 SCC 458, wherein in para 3 this Court observed as under:
"3. An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. ..."
23. "Truth sits upon the lips of a dying man."
98. The above facts and circumstances show that the Trial Court jumped to the conclusion that the prosecution has not proved its case by cogent evidence. 128 The reasons assigned by the Trial Court are prima facie perverse and was not in the light of the settled principles of law governing the oral dying declarations. There was no reason to hold that PW-12, PW-13 and PW-22 were deposing falsehood and PW-7 was truthful. But it was otherwise. The Trial court also erred in holding that the motive is also not proved. Therefore, we have no hesitation to hold that the impugned judgment is not sustainable under law.
99. The discussions made supra, clearly establish that the accused Nos. 1 to 7 came to the spot knowing that the deceased Ningappa and PW-22 had come to the ground nut field of PW-22 by forming an unlawful assembly. When PW-22 and deceased Ningappa were returning on their motor cycle, way laid them, pulled them holding their shirts and made them to fall. While the deceased Ningappa was beaten the PW-22 raised hue and cry and then he was also threatened which made him 129 to run. The assault on the deceased continued till he fell down. This shows that the accused had come with preparations with weapons to assault the deceased Ningappa and to kill him. The object of all the accused was to annihilate the deceased Ningappa.
100. The assault on the deceased was premeditated, with preparations and with an object of preventing him from appearing before the Panchayat on the next day. The injuries sustained by the deceased as may be found from Ex.P5 show that the assault was brutal and the deceased succumbed to the injuries due to hemorrhage within a span of two hours. The intention of the accused was clear and it was to annihilate the deceased Ningappa. Hence, we have no doubt in our mind that the act of the accused is a culpable homicide amounting to murder.
101. Hence, the points raised above are answered accordingly and accused Nos. 1 to 7 are liable to be 130 convicted for the offences punishable under Sections 143, 147, 148, 341, 302 read with Section 149 of IPC.
ORDER [i] Both the appeals are allowed.
[ii] The judgment in SC No.5/2016 by IV Additional District and Sessions Judge, Dharwad, dated 18-4-2019 acquitting the accused Nos. 1 to 7 for offences punishable under Sections 143, 147, 148, 341, 302 read with Section 149 of IPC is hereby set aside and the accused Nos.1 to 7 are convicted for the said offences.
To hear on sentence, the matter is passed over.
(DR. H.B. PRABHAKARA SASTRY) JUDGE (C M JOSHI) JUDGE tsn* 131 ORDER ON SENTENCE
102. Learned High Court Government Pleader appearing for State submitted that the accused have taken the law into their hands and killed the deceased, who was a soldier. He submits that age of the accused cannot be ground for seeking any lenient view since all the accused are aged more than 21 years. It is submitted that the criminal antecedents of these accused are also to be borne in mind while awarding sentence coupled with the gravity of the offence committed by these accused. There was motive, preparation and then the crime was executed. Therefore, he contends that the accused Nos.1 to 7 are to be punished with the severest sentence possible. He also relied on the decision in the case of Manoharan Vs. State by Inspector of Police, Variety Hall Police Station, Coimbatore15, wherein it was held that opinion of the society and not the personal opinion of the 15 2020 (1) Crimes 335(SC) 132 judge should be considered whilst awarding sentence of death.
103. Per contra, learned counsel appearing for accused Nos.1 to 7 submits that these accused are at the prime of their age, have to look after their parents and families and therefore lenient view may be taken. He has placed reliance on the decision in the case of Yogendra Alias Jogendra Singh vs. State of Madhya Pradesh16 to contend that this case do not fall within the purview of rarest of the rare case and by relying on the case of Machhisingh & others Vs. State of Punjab17 wherein the Court has held that when there is no depravity or brutality in the acts of the accused, it does not fall within the purview of rarest of the rare case. In Machhisingh & others Vs. State of Punjab18 the Hon'ble Apex Court in para-39 laid down tests for the rarest of rare case as below-
16 (2019) 9 SCC 243 17 (1983)3 SCC 470 18 Supra 133 "39. In order to apply these guidelines interalia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?:
104. Learned counsel for accused submit that the benefit of set off may be given to them under Section 428 of Cr.P.C.
105. Sentence prescribed for various offences under which the accused are convicted are as below:134
Sl. Indian Penal Maximum Minimum Fine
No. Code, 1860 ImprisonmentImprisonment
1. 143 unlawful 6 months - Or fine
assembly
2. 147 Rioting 2 years or - Or both
fine or both
3. 148 Rioting with 3 years or - Or both
fine or both
weapons -
4 341 1 month Fine of Rs.500 Or both
imprisonment
/ fine/ both
5 302 Death and Life shall
fine imprisonment
and fine
106. There has been much debate about the capital punishment and the sentencing policy in the Country.
After such debate about the sentencing policy and catena of decisions rendered by Hon'ble Apex Court, general agreement seems to be that there should be balancing of the mitigating and aggravating circumstance and balance has to be struck between the two set of facts and adequate and deterrent sentence has to be imposed. At the same time, the cardinal principle of any sentencing 135 that sentencing is based on reformative theory (of the convict) should not be forgotten. The decision of the Hon'ble Apex Court in the case of Bachan Singh Vs. State of Punjab19 and thereafter, a clarification issued by the Hon'ble Apex Court in Machhi Singh Vs. State of Punjab20 almost settled all the issues in this regard. Over ruling of the judgment in the case of Rajendra Prasad Vs. State of Uttar Pradesh21 by the decision of the Bachhan Singh Vs. State of Punjab22 clarifies the situation applicable as of now. In Bachan Singh23 it was observed that judges should not be blood thirsty. A real and abiding concern for the dignity of human life postulates resistance to taking life through law's instrumentality. That ought not to be done say in the rarest of rare cases when the alternative option is unquestionably foreclosed. This view was followed by the Courts in various subsequent decisions. In the case of 19 (1980) 2 SCC 684 20 Supra 21 AIR 1979 SC 916 22 Supra 23 Supra 136 Machhi singh, the Hon'ble Apex Court has laid down the two tests which are to be considered by the Court. It is in the background of these tests laid down that the adequate sentence has to be imposed on the accused. When we examine the factual matrix of the present case, it is evident that the aggravating circumstances are that the i) deceased was a soldier, ii) he was killed with 36 injuries, majority of which are on his head portion, iii) the crime involved preparation and motive to usurp property and iv) the available civil remedy was ignored.
107. The circumstances which are contended to be mitigating one are: i) the accused are in the age group of 21 years to 42 years and ii) they have families to look after.
108. Now the question is, whether it falls within the category of rarest of rare case. In order to ascertain this aspect, the two questions raised in Machhi singh supra need to be answered. First one is, is there something 137 uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? The urge of a person for wealth and pecuniary gain is the cause for committing crimes. The accused No. 1 to 7 were trying to usurp the property of the complainant and the deceased. They did not opt for the civil remedy which was available. The criminal antecedents are not proved. There are no convictions against them. Mere pendency of a case cannot be a proven criminal antecedent. Therefore, we do not find that aggravating circumstances contended by the learned High Court Government Pleader would fall within the purview of rarest of rare case. Therefore, we are unable to accept the contention that there is something uncommon about the crime which renders the sentence of imprisonment for life inadequate.
109. Second question is - Are the circumstances of the crime such that there is no alternative but to impose 138 death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? It is relevant to note that the aggravating circumstances, though indicate that there was planning and implementation, it cannot be said that there is no alternative but to impose death sentence. In our considered opinion, life sentence would be adequate since it is not brought to the notice of this Court that in any case of similar nature, accused has been sentenced for capital punishment. Had they been suffering an earlier sentence, it could have been said that there is no such alternative. In the circumstances of the case, except the fact that they have families and parents to look after, none other contentions are mitigating factors.
110. It is the duty of the Court to consider grant of compensation to the victims of the crime. PW-12- Somalingappa Yaliwal, is the father and CW21-Yellavva, is mother of the deceased-Ningappa. By act of crime, 139 they have lost their son, who was a soldier. It is not possible to fathom the loss of life of son of parents. Compensation in terms of money cannot be equivalent of the loss. However, the law takes into its fold to do its bit in compensating the victims. Hence they are to be compensated.
111. Hence, the following:
ORDER
(i) For offence under Section 302 r/w.Section 149 of IPC, each of accused Nos.1 to 7
are sentenced to undergo imprisonment for life and to pay fine of `25,000/- each. In default to pay the fine, they shall undergo additional imprisonment for six months each.
(ii) For offence under Section 143 r/w.
Section 149 of IPC, each of accused Nos.1 to 7 are sentenced to undergo simple imprisonment for 6 months and each to pay a fine of `2,000/-. 140 In default to pay the fine, they each shall undergo imprisonment for three months each.
(iii) For offence under Section 147 r/w. Section 149 of IPC, each of accused Nos.1 to 7 are sentenced to undergo simple imprisonment for two years and to pay fine of `5,000/- each. In default to pay the fine, they each shall undergo imprisonment for three months.
(iv) For offence under Section 148 r/w.
Section 149 of IPC, each of accused Nos.1 to 7 are sentenced to undergo simple imprisonment for two years and to pay fine of `5,000/- each. In default to pay the fine, they each shall undergo imprisonment for three months.
(v) For offence under Section 341 r/w.
Section 149 of IPC, each of accused Nos.1 to 7 are sentenced to undergo simple imprisonment 141 for one month and to pay fine of `2,000/- each. In default to pay the fine, they each shall undergo imprisonment for one month.
(vi) Term sentences of punishment for the above offences shall run concurrently, followed by life imprisonment.
(vii) Convicts are entitled for set off under Section 428 of Cr.P.C. in respect of period of their detention in judicial custody.
(viii) Out of fine amount, a sum of `1,00,000/- each is ordered to be paid to PW12-Somalingappa Yaliwal and CW21- Yellavva, as compensation under Section 357 of Cr.P.C.
(ix) The Trial Court is directed to secure the accused No. 1 to 7 and commit them to suffer sentences.
142
(x) The Trial Court is also directed to pass appropriate orders regarding the disposal of the property seized.
Registry to transmit a copy of this judgment to the Sessions Judge's Court, forthwith along with its records, for doing the needful in the matter in securing the accused Nos.1 to 7 for serving the sentence in accordance with law.
Accused Nos. 1 to 7 are entitled for free copies of this judgment immediately.
Sd/-
JUDGE Sd/-
JUDGE tsn*