Karnataka High Court
Soma @ Somashekar @ Kothisoma vs State Of Karnataka By S R Patna Police on 7 February, 2013
Bench: K.L.Manjunath, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF FEBRUARY, 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L. MANJUNATH
AND
THE HON'BLE MR. JUSTICE H.S. KEMPANNA
CRIMINAL APPEAL No.36/2008 (C)
C/w
CRIMINAL APPEAL Nos.125, 532/2008 & 102/2013(C)
IN CRL.A.No.36 OF 2008:
BETWEEN:
SOMA @ SOMASHEKAR @ KOTHISOMA
AGED ABOUT 28 YRS
S/O P.V.MARIGOWDA
R/AT OLD B.C.ROAD
PALAHALLI VILLAGE
S.R.PATNA TQ
MANDYA DIST ... APPELLANT
(By Sri : H C HANUMAIAH,ADV. )
AND :
STATE OF KARNATAKA BY S R PATNA POLICE
BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE ... RESPONDENT
(By Sri: N.S.SAMPANGIRAMAIAH,HCGP FOR
RESPONDENT)
2
THIS CRL.A. FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANT AGAINST THE
JUDGEMENT DT.4.8.2007 PASSED BY THE P.O., FTC-
II, MANDYA, IN S.C.NO.188/02 - CONVICTING THE
APPELLANT/ACCUSED NO.1. FOR THE OFFENCE
P/U/S.143, 144, 147, 148 OF IPC & 341, R/W. 149 OF
IPC, 506(II) R/W. 149 OF IPC & 302 R/W. 149 OF IPC.
& 324 OF IPC. AND SENTENCING HIM TO UNDERGO
S.I. FOR LIFE & SHALL ALSO PAY A FINE OF
RS.50,000/- I.D., OF PAYMENT OF SAID FINE, HE
SHALL UNDERGO ONE YEAR S.I. FOR THE OFFENCE
P/U/S.302 R/W. 149 OF IPC. FURTHER SENTENCING
HIM TO UNDERGO S.I. FOR ONE MONTH FOR THE
OFFENCE P/U/S.341 R/W. 149 OF IPC. AND
FURTHER SENTENCING HIM TO UNDERGO S.I. FOR 2
YEARS FOR THE OFFENCE P/U/S.506(II) R/W. 149
OF IPC. FURTHER SENTENCING HIM TO UNSERGO
S.I. FOR 6 MONTHS FOR THE OFFENCE P/U/S.143
OF IPC. FURTHER SENTENCING HIM TO UNDERGO
S.I. FOR ONE YEAR FOR THE OFFENCE P/U/S.144 OF
IPC. FURTHER SENTENCING HIM TO UNDERGO S.I.
FOR ONE YEAR FOR THE OFFENCE P/U/S.147 OF
IPC. AND FURTHER SENTENCING HIM TO UNDERGO
S.I. FOR ONE YEAR FOR THE OFFENCE P/U/S.148 OF
IPC. FURTHER SENTENCING HIM TO UNDERGO S.I.
FOR 2 YEARS FOR THE OFFENCE P/U/S.324 OF IPC.
SUBSTANTIVE SENTENCE IMPOSED FOR THE ABOVE
REFERRED DIFFERENT OFFENCES OF HIM SHALL
RUN CONCURRENTLY. SENTENCE OF IMPRISONMENT
IMPOSED IN RESPECT TO DEFAULT OF PAYMENT OF
FINE OF THE ACCUSED SHALL RUN SEPERATELY.
AND THE APPELLANT/ACCUSED PRAYS THAT THE
ABOVE ORDER MAY BE SET ASIDE.
IN CRL.A. No.125 OF 2008:
BETWEEN
1 RAGHU @ HEMANTHKUMAR
S/O RAMANNA
AGED ABOUT 22 YEARS
GOTEKATTE BEEDI
3
PALAHALLI VILLAGE
2 KUMARA @ MOHAN KUMAR
S/O RAMANNA
AGED ABOUT 20 YEARS
GOTEKATTE BEEDI
PALAHALLI VILLAGE ... APPELLANTS
(By Sri : HASHMATH PASHA, ADV. FOR A1)
AND :
1 STATE OF KARNATAKA
BY S.R PATNA POLICE ... RESPONDENT
(By Sri: N.S.SAMPANGIRAMAIAH,HCGP FOR
RESPONDENT)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE
ADVOCATE FOR THE APPELLANTS AGAINST THE
JUDGMENT DT.4.8.2007 PASSED BY THE P.O., FTC-II,
MANDYA, IN S.C.NO.188/02 - CONVICTING THE
APPELLANTS/ACCUSED NO.3 & 4 FOR THE OFFENCE
P/U/S.143, 144, 147, 148 OF IPC AND 341 R/W. 149
OF IPC, 506(II) R/W. 149 OF IPC AND 302 R/W. 149
OF IPC. AND SENTENCING THEM TO UNDERGO S.I.
FOR LIFE AND SAID EACH ACCUSED SHALL ALSO
PAY A FINE OF RS.50,000/- I.D., OF PAYMENT OF
SAID FINE, EACH SAID ACCUSED SHALL UNDERGO
ONE YEAR S.I. FOR THE OFFENCE P/U/S.302 R/W.
149 OF IPC. FURTHER SENTENCING THEM TO
UNDERGO S.I. FOR ONE MONTH FOR THE OFFENCE
P/U/S.341 R/W. 149 OF IPC. AND FURTHER
SENTENCING THEM TO UNDERGO S.I. FOR 2 YEARS
FOR THE OFFENCE P/U/S.506(II) R/W. 149 OF IPC.
AND FURTHER SENTENCING THEM TO UNDERGO S.I.
FOR 6 MONTHS FOR THE OFFENCE P/U/S.143 OF
IPC. FURTHER SENTENCING THEM TO UNDERGO S.I.
FOR ONE YEAR FOR THE OFFENCE P/U/S.144 OF
IPC. FURTHER SENTENCING THEM TO UNDERGO S.I.
FOR ONE YEAR FOR THE OFFENCE P/U/S.147 OF
IPC. AND FURTHER SENTENCING THEM TO
4
UNDERGO S.I. FOR ONE YEAR FOR THE OFFENCE
P/U/S.148 OF IPC. SUBSTANTIVE SENTENCE
IMPOSED FOR THE ABOVE REFERRED DIFFERENT
OFFENCES OF EACH ACCUSED SHALL RUN
CONCURRENTLY. SENTENCE OF IMPRISONMENT
IMPOSED IN RESPECT TO DEFAULT OF PAYMENT OF
FINE OF EACH ACCUSED SHALL RUN SEPERATELY
AND THE APPELLANTS/ACCUSED PRAY THAT THE
ABOVE ORDER MAY BE SET ASIDE.
IN CRL.A.No.532 OF 2008:
BETWEEN:
1 SRI VENKATESHA
S/O P MARIGOWDA
AGED ABOUT 27 YEARS
PALAHALLI VILLAGE
SRIRANGAPATNA TALUK ... APPELLANT
(By Sri : RAJAMANI, ADV.FOR APPELLANT )
AND :
1 STATE OF KARNATAKA
S R PATNA
MANDYA TALUK POLICE
... RESPONDENT
(By Sri : N.S.SAMPANGIRAMAIAH, HCGP FOR
RESPONDENT )
THIS CRL.A FILED U/S.374(2) CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DT. 4.8.2007 IN
S.C.NO.188/02 ON THE FILE OF THE SESSIONS
JUDGE, FAST TRACK COURT-II, MANDYA -
CONVICTING THE APPELLANT/ACCUSED NO.5 FOR
THE OFFENCE P/U/S.143, 144, 147, 148 OF IPC AND
341 R/W 149 OF IPC, 506(II) R/W 149 OF IPC AND 302
R/W 149 OF IPC AND SENTENCING HIM TO
UNDERGO S.I. FOR LIFE AND ALSO PAY A FINE OF
5
RS.50,000/- IN DEFAULT OF PAYMENT OF SAID FINE
AND HE SHALL UNDERGO ONE YEAR S.I. FOR THE
OFFENCE P/U/S.302 R/W 149 OF IPC AND
SENTENCING HIM TO UNDER GO S.I. FOR ONE
MONTH FOR THE OFFENCE P/U/S.341 R/W 149 OF
IPC AND SENTENCING HIM TO UNDER GO S.I. FOR
TWO YEARS FOR THE OFFENCE P/U/S. 506(II) R/W
149 OF IPC AND SENTENCING HIM TO UNDER GO S.I.
FOR 6 MONTHS FOR THE OFFENCE P/U/S. 143 OF
IPC AND SENTENCING HIM TO UNDER GO S.I. FOR
ONE YEAR FOR THE OFFENCE P/U/S. 144 OF IPC
AND FURTHER SENTENCING HIM TO UNDER GO S.I.
FOR ONE YEAR FOR THE OFFENCE P/U/S. 147 OF
IPC AND SENTENCING HIM TO UNDER GO S.I. FOR
ONE YEAR FOR THE OFFENCE P/U/S. 148 OF IPC.
ALL THE SENTENCES ARE RUN CONCURRENTLY.
IN CRL.A.No.102 OF 2013:
BETWEEN:
1 RAJASHEKARA P G
S/O GANGADHARA
AGED ABOUT 24 YEARS
KARIMANTI BEEDI,
PALAHALLI,
S.R.PATNA TALUK
MANDYA DIST. ... APPELLANT
(By Sri: M SHARASS CHANDRA, ADV. FOR
APPELLANT)
AND :
1 STATE OF KARNATAKA BY
S.R.PATNA POLICE
... RESPONDENT
THIS CRL.A FILED U/S.374(2) CR.P.C, PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DT. 4.8.2007 IN
S.C.NO.188/02 ON THE FILE OF THE SESSIONS
6
JUDGE, FAST TRACK COURT-II, MANDYA -
CONVICTING THE APPELLANT/ACCUSED NO.5 FOR
THE OFFENCE P/U/S.143, 144, 147, 148 OF IPC AND
341 R/W 149 OF IPC, 506(II) R/W 149 OF IPC AND 302
R/W 149 OF IPC AND SENTENCING HIM TO
UNDERGO S.I. FOR LIFE AND ALSO PAY A FINE OF
RS.50,000/- IN DEFAULT OF PAYMENT OF SAID FINE
AND HE SHALL UNDERGO ONE YEAR S.I. FOR THE
OFFENCE P/U/S.302 R/W 149 OF IPC AND
SENTENCING HIM TO UNDER GO S.I. FOR ONE
MONTH FOR THE OFFENCE P/U/S.341 R/W 149 OF
IPC AND SENTENCING HIM TO UNDER GO S.I. FOR
TWO YEARS FOR THE OFFENCE P/U/S. 506(II) R/W
149 OF IPC AND SENTENCING HIM TO UNDER GO S.I.
FOR 6 MONTHS FOR THE OFFENCE P/U/S. 143 OF
IPC AND SENTENCING HIM TO UNDER GO S.I. FOR
ONE YEAR FOR THE OFFENCE P/U/S. 144 OF IPC
AND FURTHER SENTENCING HIM TO UNDER GO S.I.
FOR ONE YEAR FOR THE OFFENCE P/U/S. 147 OF
IPC AND SENTENCING HIM TO UNDER GO S.I. FOR
ONE YEAR FOR THE OFFENCE P/U/S. 148 OF IPC.
ALL THE SENTENCES ARE RUN CONCURRENTLY.
APPELLANT-ACCUSED NO.2 PRAYS THAT HE BE
ACQUITTED.
THESE APPEALS COMING ON FOR FINAL
HEARING THIS DAY, KEMPANNA J. DELIVERED THE
FOLLOWING:
JUDGMENT
These appeals are preferred by A-1, A3, A4, A5 and A2 respectively, challenging the legality and correctness of the judgment and order dated 4.8.2007 passed in SC No.188/2002 by the Presiding Officer, FTC-II, Mandya convicting them for the offences punishable under Secs.143, 144, 147, 148, 341 R/w 7 Sec.149, 506-II R/w 149, 302 R/w Sec.149 of IPC and further convicting A-1 for the offence punishable under Sec.324 of IPC and sentencing them to undergo imprisonment for six months for the offence punishable under Sec.143 IPC, to undergo SI for one year for the offence punishable under Sec.144 of IPC, to undergo SI for one year for the offence punishable under Sec.147 IPC, to undergo SI for one year for the offence punishable under Sec.148 IPC, to undergo SI for one month for the offence punishable under Sec.341 R/w Sec.149 of IPC, to undergo SI for two years for the offence punishable under Sec.506-II R/w Sec.149 of IPC, and to undergo imprisonment for life and to pay a fine of Rs.50,000/- each in default to undergo SI for one year for the offence punishable under Sec.302 r/w 149 IPC and further sentencing A-1 to undergo SI for two years for the offence punishable under Sec.324 of IPC.
2. Brief facts of the case are:
These appellants/accused along with three others who have been arrayed as A-6 to 8 in the case were tried on the charges for the offences punishable under 8 Sec.143, 144, 147, 148, 341 R/w 149, 114 R/w 302, 302 R/w 149, 506 R/w Sec.149 of IPC and 324 IPC.
2.1 It is alleged that on 9.6.2002 at about 9-20 p.m. in front of the shopping complex of S.Linganna situated at Palahalli village coming within the Jurisdiction of Srirangapatna rural police station, accused formed themselves into an unlawful assembly armed with deadly weapons like knife, choppers, iron rods, wooden bars, common object of which was to commit murder of the deceased Prasanna Kumar and in furtherance of the common object of their unlawful assembly at the instigation of A-6 to 8, A1 to A5 did commit the murder of the deceased Prasanna Kumar by intentionally assaulting him with knife, choppers, wooden bars and iron rods and also threatened PWs-1 to 5 with dire consequences and thereby committed the afore-mentioned offences.
3. It is the case of the prosecution that deceased Prasanna Kumar and PWs-1 to 5 are residents of Palahalli village situated within the limits of 9 Srirangapatna Rural Police station. Likewise, all the accused in the case are residents of Palahalli village.
They are all agriculturists by occupation.
4. It is further the case of the prosecution on 1.11.2001 a function had been arranged at Palahalli village in connection with Kannada Rajyotsava celebration. Deceased Prasanna Kumar had arranged the said function as he was the President of Kaveri Kannada Yuvakara Sangha. In the said function girls from Palahalli village and in and around the village had participated. A-1 had teased the said girls and it is the prosecution case, he also had peeped into the green room where the girls were dressing up themselves for presenting their programmes in the celebration. Deceased, who was the President and who had organized the said function, on learning about the teasing and A-1 peeping into the green room, assaulted A-1 on his cheek. On account of this, differences started between the deceased on the one hand and A-1 on the other hand, due to which A-1 was nursing grudge against the deceased. It is also the case of the 10 prosecution about 4 days prior to the date of occurrence which took place on 9.6.2002 deceased and A-2 were returning from Srirangapatna to Palahalli in a vehicle. During the journey on account of A-2 stamping the deceased, altercation took place between them. On account of this also, differences had arisen between A-2 on the one hand and the deceased on the other hand.
Such being the case, it is the case of the prosecution on 9.6.2002 in the evening at about 7-30 p.m. an altercation took place between the deceased on the one hand and the accused on the other hand, near Marigudi circle of Palahalli village. The villagers on seeing the said quarrel pacified the accused and the deceased and thereafter accused and the deceased left the said place.
It is further the case of prosecution that on that very night at about 9-20 p.m. when the deceased was in front of the house of A-1 at Palahalli village, a clash took place between the deceased and the accused. When the altercation went to a high pitch, deceased tried to 11 escape from the clutches of the accused who according to the prosecution at that time had formed into an unlawful assembly armed with deadly weapons like knife, chopper, iron rods, wooden sticks, etc. Thereafter, it is the case of the prosecution, deceased, who was trying to escape, was caught hold of by A-6 to 8 in the case in front of the shopping complex of one S.Linganna situated at Palahalli village, which according to the prosecution, is situated opposite to the house of A1. After the deceased was caught hold by A-6 to 8, they instigated and abated A-1 to 5 to finish him of, in pursuance of which, A-1 stabbed the deceased with knife on the right side of pectoral region (near abdomen), A-2 assaulted with chopper on the head, A-3 & 5 assaulted with reaper and A-4 assaulted with iron rod. The same was witnessed by PWs.1 to 5 and when they intervened to rescue the deceased, PW-1 was assaulted by A-1 with knife MO-1, on account of which, he sustained an injury and thereafter accused threatened the said witnesses with dire consequences and took to their heels along with the weapons. After 12 the accused left the place, PWs-2, 3, 5 to 7 and 10 removed the deceased to K.R. Hospital at Mysore in the tempo driven by PW-8. Deceased on the way to the hospital expired. Therefore, PWs-2, 3, 5 to 7 and 10 brought back the body of the deceased to Palahalli and kept at the place where occurrence had taken place. In the mean time, PW-1 proceeded to K.R. Hospital, Mysore for taking treatment for the injuries, which he had sustained at the hands of A-1. At K.R. Hospital he was examined by PW-13 Medical Officer and after his examination he was sent back to Palahalli village. PW- 13 issued wound certificate Ex.P-17 for having examined PW-1 at K.R. Hospital at about 10-20 p.m. on that day. According to PW-1 he returned to Palahalli village at about 10-45 p.m. on that night. In the mean time, a commotion had taken place in the village on account of the incident that had taken place and in the said commotion people had set fire to the houses of some of the villagers and also damaged the properties.
5. It is the further case of the prosecution, in the mean time, Srirangapatna Rural Police were 13 informed of the occurrence who in turn informed the same to PW-24 Investigating Officer who was in his house at about 11-30 p.m. on that day. Immediately PW-24 came to the police station and after confirming the information that had been received through wireless came to Palahalli village accompanied by his staff and reached the same at about 12 mid night. While he was in the said village, according to the prosecution, on the intervening night of 9.6.2002 and 10.6.2002 at about 01-00 Hrs. PW-1 filed his complaint Ex.P-1 which he had got written through PW-19 before PW-24. PW-24 on receipt of Ex.P-1 at Palahalli village, forwarded the same through HC 135 PW-18 to the police station with instructions to get a case registered on the basis of the same and to return to the village with copy of FIR. Accordingly, PW-18 carried Ex.P-1 to the police station and produced the same before PW-22 who was the SHO, who in turn registered a case in Cr.No.159/2002 for the offences punishable under Secs.143, 144, 147, 148, 341 R/w 149, 114 R/w 302, 302 R/w 149, 324 IPC and 506 R/w Sec.149 of IPC against A-1 to 5 and issued FIR as 14 per Ex.P-22 to the jurisdictional Magistrate and forwarded copy of Ex.P-22 through PW-18 to PW-24, who had camped at Palahalli village.
6. PW.24 on receipt of the copy of Ex.P22 first held inquest over the body of the deceased Prasanna Kumar on 10.06.2002 in between 2.00 a.m. and 4.30 a.m. and drew up the inquest panchanama as per Ex.P.21 in the presence of panchas PW.15 and others. At the time of inquest he recorded the statements of the mother of the deceased and PW.16 - elder brother of the deceased. After completing Ex.P.21 he forwarded the body for subjecting to postmortem examination to K.R. Hospital, Mysore, along with a requisition, in response to which, PW.14- Medical Officer conducted autopsy over the body of the deceased on that very day i.e. on 10.6.2002 and issued postmortem report as per Ex.P.18. Thereafter, PW.24 on 10.6.2002 drew up spot panchanama as per Ex.P.35 in the presence of panchas PWs.31 and 32. On the very day he also seized MOs.10 to 15 - clothes found on the body of the deceased handed over by the Medical Officer under the panchanama Ex.P.23 in the 15 presence of panch PW.25. Continuing the investigation PW.24 on 11.06.2002 recorded the statements of PWs.2, 3 and 5 and further statement of PW.1 and on 12.6.2002 he recorded the statement of PW.4 and other witnesses in the case. He also deputed his staff to apprehend the accused, who were at large. Accordingly, on 28.6.2002 PW.24 first arrested A.5, interrogated him and recorded his voluntary statement - Ex.P.29. In pursuance of the same, he seized MO.5 - wooden reaper under Ex.P.5 in the presence of panch PW.4 and another. Thereafter, on completing the arrest formalities, he got him remanded to Judicial custody. On 17.7.2002 PW.24 arrested Accused Nos.6, 7 and 8 and on completion of their arrest formalities got them remanded to Judicial custody. Thereafter, continuing the investigation PW.24 forwarded the seized articles in the case for subjecting to chemical examination to FSL office. He also took steps to trace the other accused, who were absconding till such time. On 25.07.2002 A.1 to A.4 surrendered before the Jurisdictional Magistrate at Shrirangapatna. They were remanded to judicial 16 custody. On 8.8.2002 on the application made by PW.24 they were given to police custody from that day i.e. on 8.8.2002 to 11.8.2002. PW.24 on taking custody of A.1 to A.4 arrested them and on 9.8.2002 interrogated A.1 to A.4 and recorded their voluntary statements as per Exs.P.31, 32, 33 and 34 respectively. In pursuance of the said voluntary statement, PW.24 recovered MOs.1, 2, 3 and 4, which are knife, chopper, reaper and iron road at the instance of A.1 to A.4 under the panchanama Ex.P.8 in the presence of panchas PW.9 and PW.11. Thereafter, he got them remanded to judicial custody. PW.24, thereafter recorded the statements of the official witnesses examined before the Court and also the witnesses, who have been cited in the charge sheet. He also secured relevant documents namely, postmortem report, wound certificate of PW.1, FSL Report - Ex.P.38 from the concerned authorities. Thereafter, on completion of the investigation of the case submitted final report against all the accused i.e. A.1 to A.8 before the Jurisdictional Magistrate. The learned Magistrate thereafter committed the case of the 17 accused to the Court of Sessions, which in turn, on receipt of the records, secured the presence of the accused, framed charges against them as aforesaid, to which they pleaded not guilty, but claimed to be tried.
7. The prosecution in support of its case in all examined PWs.1 to 24 and got marked Exs.P.1 to P.42 and MOs.1 to 15. The accused have not got marked any defence exhibits during the course of examination of the prosecution witnesses.
8. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. They denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses and also submitted they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
9. The learned trial Judge on considering the oral and documentary evidence on record came to the conclusion that the prosecution has failed to establish all the charges as against A.6 to A.8, but has 18 established the charges framed against A.1 to A.5 and accordingly, by his impugned judgment and order acquitted A.6 to A.8 and convicted the appellants/ accused Nos.1 to 5 and sentenced them as aforesaid.
10. The appellants/accused being aggrieved by the judgment and order of conviction and sentence are in appeal before this Court.
11. During the pendency of these appeals, it is reported that accused No.4 expired while in custody on 12.3.2010. To that effect, a memo is filed before the Court today. In view of the death of A.4, the appeal preferred by him stands abated. Therefore, we are proceeding with the appeal preferred by A.1 to A.3 and A.5.
12. Sri.Hasmath Pasha, learned counsel appearing for A.3 contended that Ex.P.1 cannot be treated as first information in the case, as it is hit by Section 162 of Cr.P.C. Elaborating his submission, he contended that PW.1 in his evidence has clearly admitted that he had given detailed description of the 19 occurrence before the Police in K.R.Hospital at Mysore where he took treatment immediately after the occurrence at the hands of PW.13 - Medical Officer at about 10.20 p.m. He also submitted that PW.1 has admitted that he has given a complaint in writing before the police at K.R.Hospital. Further, he contended that PW.4's evidence reveals that he informed the police after the murder of the deceased at about 9.45 or 10.00 p.m., on receipt of which information, the police in turn informed PW.24, who in turn, came to Palahalli village where the occurrence has taken place. Ex.P.1, according to PW.24, was lodged before him on the intervening night of 9.6.2002 and 10.6.2002 at about 1.00 a.m., which has reached the Jurisdictional Magistrate at about 7.45 a.m. on 10.6.2002. According to the prosecution, the contents of Ex.P.19 were written by PW.19 as narrated by PW.1. A perusal of original of Ex.P.1 reveals that it has the name of one Manjuanth, which has been erased and the name of the complainant Jagadish has been inserted. Pointing out this aspect of the matter, he contended that if according 20 to the prosecution, PW.1 was the author of Ex.P.1, then PW.19 would not have written the name of Manjunath and by striking it of, then written the name of Jagadish, which would go to show that PW.19 had already prepared Ex.P.1 and handed over to the police, which also cannot be believed as first information, as it is hit by Section 162 of Cr.P.C. He also further contended that the evidence of PWs.2, 3 and 5 reveals that the police had arrived at Palahalli village where the occurrence has taken place at about 10.45 p.m. on 9.6.2002 on the information about the occurrence received from PW.4. If according to PW.4, he had already informed the police about the murder of the deceased and the police had arrived to the village at about 10.45 p.m. as claimed by PWs.2, 3 and 5, Ex.P.1 cannot be treated as first information by any stretch of imagination. It has been got-up after much water has flown under the bridge in falsely implicating the accused on account of rivalry/differences that existed between the deceased on the one hand and accused on the other hand. He further contended that PWs.2, 3 and 5 have come out 21 with the version of they having witnessed the occurrence belatedly. Therefore, their testimony is untrustworthy having regard to the fact that they have not come out with the version of they having seen the occurrence before the police either on the very night of the occurrence or at the time the inquest was held on 10.6.2002 or at the time postmortem was held in the hospital on that very day. He further contended that they were also present at the time the spot panchanama Ex.P.35 was drawn up by PW.24 on 10.6.2002 and at that time also they have not come out with the version of having witnessed the occurrence. In view of they having not come out with the version of they having witnessed the occurrence on 10.6.2002 before the police, their testimony does not inspire confidence to place any reliance on them.
13. Insofar as PW.4 is concerned, he contended that his name does not find a place in Ex.P.1. Nextly, his statement has been recorded by PW.24 on 12.6.2002 nearly about two days after the occurrence. Further, PW.4 himself claims that his statement came 22 to be recorded about 10 to 15 days after the occurrence. In view of the same, no reliance can be placed on his testimony also.
14. Sri.Hasmath Pasha, further contended that the evidence of the eyewitnesses cannot also be believed because, it is in direct conflict with the medical evidence and further insofar as recovery of weapons is concerned, as the accused have been taken into police custody after they were remanded to judicial custody and as the recovery is a joint recovery made under Ex.P.8 in view of the ocular testimony being untrustworthy, the recovery of weapons does not in any way further the case of the prosecution in pointing towards the guilt of the accused. The learned trial Judge without appreciating their evidence in its right perspective has committed an error in coming to the wrong conclusion that the accused have committed the murder of the deceased relying on their testimonies. Hence, the impugned judgment and order of conviction and sentence cannot be sustained in toto.
23
15. Alternatively, he also contended that the evidence on record reveals that the accused at the first instance were not found armed with any weapons. According to him, the material on record more particularly the recitals in Ex.P.1 and the evidence of PWs.1 to 5 reveal a quarrel was taking place in front of the house of A.1. When the said quarrel was going on, the deceased tried to escape. Thereafter, according to the prosecution, he was apprehended within a short distance and has been done to death. In this connection, he submitted earlier at 7.30 p.m. an altercation had taken place between the deceased on the one hand and the accused on the other hand near Marigudi Circle at Palahalli village. The said quarrel had been pacified by the villagers thereafter deceased and the accused left from the said place. Thereafter, it is the case of the prosecution at about 9.20 p.m. altercation took place in front of the house of the accused. That would indicate it is the deceased, who has initiated the wordy-dual by coming in front of the house of A.1 and at that juncture, the evidence on record does not 24 disclose that all the accused were armed with any of the weapons and therefore, even if the accused have inflicted any injury on the deceased, it was not with an intention to commit his murder. Nextly, A2 to A5 had no knowledge that accused No.1 was armed with MO1. According to medical evidence on record, injury No.10 is the fatal injury caused on the right pectoral region of the deceased. That injury, according to the prosecution, has been inflicted by A.1. The other accused, according to the prosecution, have inflicted injury on the left arm. He further contends that insofar as injury caused by A.3 is concerned, he is alleged to have inflicted injury with a wooden reaper. There is only one contusion as observed by the postmortem doctor. The evidence on record also reveals A.5 has also assaulted the deceased with wooden reaper. Further, according to the prosecution, A.4 has assaulted with iron-rod. Therefore, if this is taken into consideration, if the assault is made by A.3, A.4, A.5, there should have been at least three contusions. The evidence of PW.14 reveals that the deceased had sustained only one contusion. In 25 addition, he submitted that none of these accused Nos.2 to 5 could have imagined accused No.1 was in possession of knife and that he would inflict fatal injury on the deceased. Therefore, he contends that there is no evidence firstly to show that there was an unlawful assembly. Even if it is assumed that unlawful assembly was suddenly constituted at the spot, each of the accused will have to be held individually for the acts attributed to them and they cannot be legged in by invoking Section 149 of IPC to hold as being the members of unlawful assembly, they have committed the murder of the deceased. Therefore, he submits that if at all the offence committed by these accused namely, A.2, A.3, A.4 and A.5 would be only a simple hurt caused on the deceased having regard to the overt-act attributed to them and accordingly, are liable to be convicted either for the offence under Sections 323 or 324 of IPC at best. At any rate, he submits that the said accused cannot be said to have had any intention to commit the murder of the deceased and they had assaulted the deceased with the common object of an 26 unlawful assembly to do away with his life. Therefore, he submits that the said accused are liable to be acquitted of the offence punishable under Section 302 of IPC.
16. The learned counsel appearing for Accused Nos.2 and 5 adopting the submissions made by Sri.Hasmath Pasha also contended that having regard to the overt acts attributed to their respective accused for whom they are appearing, by no stretch of imagination, it could be said that they were the members of an unlawful assembly and in furtherance of the common object of their unlawful assembly they have inflicted the fatal injury on the deceased. They also reiterated that these accused namely A.2 and A.5 had no knowledge that A.1 was in possession of knife, with which he has inflicted injury on right pectoral region of the deceased. Therefore, in view of material on record, they also submitted that the offences for which they could be held guilt is only one falling under Section 323 or 324 of IPC and at any rate, they cannot be held guilty of the offence under Section 302 of IPC. Accordingly, 27 they submit that the finding of the trial Judge convicting them for the offence under Section 302 of IPC be set aside.
17. Nextly, Sri. Hanumaiah, learned counsel appearing for accused No.1 adopting the submissions made by Sri.Hasmath Pasha on merits of the case submits that the evidence of the prosecution witnesses namely PWs.1 to 5 is untrustworthy and as it is in direct conflict with the medical evidence, no reliance can be placed on them. He also submits that accused No.1 has been falsely implicated in the case on account of previous enmity that existed between the deceased and accused No.1. Therefore, the finding of the trial Judge that he is guilty of the offence punishable under Section 302 of IPC cannot be sustained.
Alternatively, he contended that even taking the case of the prosecution as projected, the material on record reveals A.1 has inflicted injury on the deceased at the spur of moment. According to the prosecution, he has inflicted only one knife injury on the right pectoral 28 region of the deceased. While causing that injury he had no intention to commit the murder of the deceased. He further submitted that he had no knowledge that injury would result in the death of the deceased. According to him, if he had intention of committing the murder of the deceased, he would not have assaulted the deceased only once, but would have inflicted many more injuries, which itself goes to show that he had no intention to commit the murder of the deceased. He further contended that since the deceased had come near the house of A.1 and had picked up quarrel, which is fortified from the evidence of PWs.1 to 5 and in the said quarrel A.1 has inflicted this injury, by no stretch of imagination, it can be said that his act would fall within the ambit of Section 300 of IPC, which is culpable homicide amounting to murder. According to him, in the facts and circumstances having regard to the act committed by A.1, it would not amount to culpable homicide amounting to murder, on the other hand, it would amount to culpable homicide, not amounting to murder and therefore, the offence as 29 against A.1 would at best fall under Section 304 - I and in that view of the matter, the case of Accused No.1 be considered accordingly and the impugned judgment and order convicting him for Section 302 of IPC be set aside.
18. In sum and substance, learned counsels for the accused contended that taking from any angle the evidence on record does not clinchingly establish that the accused have committed the offence punishable under Section 302 r/w. Section 149 of IPC. The accused have to be held in the facts and circumstances of the case for the individual acts that they have committed as against the deceased, as the occurrence has taken place suddenly in front of the house of A.1 at the instance of the deceased. Therefore, they submitted that firstly the accused are entitled for acquittal or in the alternative, they are liable to be held guilty for lesser offence as aforesaid and convicted accordingly for the same.
19. Sri.Hasmath Pasha, learned counsel in support of his submission relied upon the decision 30 reported in AIR 1958 SC 465 (V 45 C 71) in the case of Virsa Singh Vs. State of Punjab.
20. Countering the submissions made by the learned counsel for the appellants, Sri.Sampangiramaiah, learned HCGP supporting the impugned judgment and order contended firstly, Ex.P.1 is not hit by Section 162 of Cr.P.C. According to him, the evidence of PW.1 clearly goes to show that he has filed the complaint before PW.24 at Palahalli village. The evidence on record reveals though the information regarding the occurrence had been given to the police that information though revealed the murder of the deceased, it was also followed that there was a commotion at Palahalli village, which has resulted in setting fire to some of the houses and destroying the properties of the villagers. Therefore, that information did not have the specific allegation as found in Ex.P.1. PW.24 immediately on receipt of the information at about 11.35 p.m. on that night while he was in his house has immediately rushed to the police station and thereafter, to Palahalli Village where the occurrence has 31 taken place and there, his first duty was to maintain the law and order as there was commotion in the village. He could not have bestowed his attention fully to the murder of the deceased. Therefore, under these circumstances, Ex.P.1 is the first information that has been given to the police on that intervening night. He further contended that PW.1 who has given certain admissions in the cross-examination has been recalled at the stage of arguments in the case. He has been cross-examined about two years after his examination before the Court at the first instance. In his cross- examination, he has given certain admissions which diluted the prosecution case. Therefore, he has been treated hostile at that juncture by the prosecution. In view of the fact that PW.24 was vested with the responsibility first to maintain the law and order in view of the commotion that had sprang-up due to setting fire and destroying the properties of the villagers, he submits that Ex.P.1 cannot be stated to be the first information in the case hit by Section 162 of Cr.P.C and it has seen the light of the day after much water has 32 flown under bridge. He also further contends that when PW.1 was examined by PW.13 at K.R.Hosptial Mysore, he has taken out the name of his assailant as A.1 at the first instance and that would fortify the recitals in Ex.P.1 also. Though the counsels for the accused vehemently submitted that the evidence of PW.21 reveals that he has narrated in detail of the occurrence to the police at K.R.Hospital Mysore, the Court will have to take into consideration the circumstances of the case and that grain has to sifted from chaff to find out the truth. Therefore, in the circumstances, he submits that Ex.P.1 is not hit by Section 162 of Cr.P.C.
21. He further contended in so far as the delay in recording the statements of PWs.2, 3, 5 on 11.6.2002 and the statement of PW4 on 12.6.2002, PW24 apart from maintaining law and order at Palahalli village was also to take steps to conduct other part of the investigation, namely holding inquest, drawing up the spot Mahazar, taking steps to send the body for PM examination. He submitted that the plight of the Investigating officer under these circumstances will 33 have to be taken into consideration to find out whether the delay in recording the statements of PWs.2, 3 and 5 on 11.6.2002 and the statement of PW4 on 12.6.2002 would be sufficient to hold that their testimony is untrustworthy. According to him, in the facts and situation that existed on the intervening night on 9.6.2002 and 10.6.2002, the delay in recording of the statements of the witnesses by PW24 would not take away the prosecution case. The evidence of PWs.1 to 5 is consistent with regard to the acts of the accused committed on the deceased vis.a.vis. the assault made by A1 to A5. Their evidence is natural and there is no inconsistency in their testimonies. The attack is only that their statements have been recorded belatedly nearly about 1 ½ or 2 days and for the reasons which he has submitted, it would not take away their testimonies. He also further contended in a case of this nature, it is unthinkable for any person to give the individual acts of the accused vis.a.vis. with reference to the assault made by them on the deceased. The entire occurrence has taken place in front of the house of A1, 34 in that occurrence that too at that hour it is difficult for them to find out whether who was holding which weapon with him. But inspite of it they have stated that A1 inflicted the knife injury, A2 assaulted with the chopper, A4 assaulted with iron rod, A5 with wooden reaper. There may be some exaggeration in the evidence of these witnesses. The occurrence has taken place in the year 2002. They have tendered evidence before the court in 2004. Therefore, this time gap might have resulted in some lapse in their evidence and that by itself would not go to the root of the prosecution case. He further contended, the testimonies of these witnesses is also fortified from the medical evidence and there is no conflict with the same. Apart from this, the recovery that has been made at the instance of these accused would further point towards the guilt of the accused and merely because, there are lapses on the part of the investigation, it would not take away the prosecution case. As already pointed out what is to be seen is only that grain has to be sifted from chaff to find out the truth in the facts and circumstances of the case. 35 Having regard to the background in which occurrence has taken place, the Trial Judge on appreciation of the entire material on record has come to the right conclusion in holding that the prosecution has established the charges leveled against these appellants/accused and accordingly has convicted and sentenced them, which finding does not suffer from any infirmity calling for interference in these appeals and therefore, they be dismissed.
22. In the wake of the rival submissions made, the evidence and the documents on record, the points that arise for our consideration are:
1) Whether the prosecution has established that the deceased Prasanna Kumar has died an homicidal death and PW1 Jagadish has sustained injury on his person?
2) If so, whether the prosecution has established that the accused are responsible for the homicidal death of deceased Prasanna Kumar and causing injury to PW1? 36
3) Whether the impugned Judgment and order of conviction and sentence of the Trial Court calls for any interference?
23. Re. Point-1:
PW14 is the Medical officer who has conducted Autopsy over the body of the deceased. He in his evidence has stated that he conducted Autopsy over the body of the deceased on 10.6.2002 and found the following external injuries:
1. Chop injury - present over right side middle, top of head situated 10 cms above the right eyebrow. Obliquely placed, measuring 4.5 cms x 0.5 cms x bone deep underneath bone is clean cut.
2. Pressure abrasions 3 in number present over forehead region, right to the mid line over an area of 8 cms x 4 cms measuring 5 cms x 1 cms, 4 cms x 1 cm and 1.5 cms x 1 cms.
3. Abrasion present over right side out canthus of right eye region measuring 4 cms x 1.5 cms.
4. Pressure abrasions present on the left side of face 2 cms away from left eyebrow measuring 2 cms x 1 cm.37
5. Pressure abrasions present over front and top of left shoulder region measuring 9 cms x 3 cms.
6. Contusion present over front of chest measuring 3 cms x 2 cms situated 4 cms medial and inner to previous injury no.5
7. Pressure abrasion present over right side medial clavicular joint region measuring 1 cm x 1 cm.
8. Chop wound present over outer aspect of right forearm, measuring 5cms x 2cms x bone deep situated 10 cms above wrist joint.
9. Grazed abrasion present over outer aspect of right arm measuring 3 cms x 3 cms situated 4 cms above elbow joint.
10. Stabbed wound present over right side chest obliquely placed measuring 5cms x 3 cms situated 15 cms from the midline and 18 cms above right anterior superiod iliac spine, upper outer end and inner lower end are sharp. Margins are clean cut coils of intestine were seen propelled out of the above wound.
He has further stated on dissection of injury No.10 it was observed that after cutting the skin and sub cutaneous tissue the weapon had entered 8th inter costal space cutting carcostal cartilage and its inner line 38 obliquely placed, which measured 5 cms x 1.5 cms. According to him, it had entered the pleurae cutting the basal lob of right lung and had entered diaphragm and had cut the adjacent liver and abdominal acea situated 14 cms above its bifurcation of abdominal. Blood had extravasated all over the track and blood clots all over the track of huge size were seen in both the cavities. The weapon had entered inwards, backwards and towards left for a depth of 14 cms. He has further stated that all the above injuries which he noticed were antemortem and fresh in nature. He is of the opinion that death was due to shock and hemorrhage and he has issued the PM report as per Ex.P18.
24. In the cross-examination of PW14, we find nothing has been elicited to discard his testimony as to the injuries sustained by the deceased which has resulted in the death of the deceased. Apart from this, the evidence of PW.24 - Investigating Officer reveals that he had held inquest over the body of the deceased on the intervening night of 9.6.2002 and 10.6.2002 and drew up inquest panchanama as per Ex.P21 in the 39 presence of pancha PW15. On perusal of the evidence of PW.15 and PW.24, the same also corroborates the injuries that have been noticed on the body of the deceased as reflected in the PM report Ex.P18 issued by the Medical Officer PW14. Apart from this the evidence of PWs.1 to 5 and that of PW16 the brother of the deceased who has been examined in the case also reveals that the deceased has succumbed to the injuries which he sustained on his body. The evidence of these witnesses also has not been seriously challenged in respect of the deceased having sustained the injuries. On the other hand homicidal death of the deceased on account of sustaining injuries is also not seriously disputed. In that view of the matter having regard to the evidence adverted to above, we hold that the deceased Prasanna Kumar has died on account of the injuries caused on him due to violence and therefore the prosecution has established that he has died an homicidal death.
25. In so far as PW1 is concerned, he has claimed in his evidence that he sustained injury on the left 40 Lumbar region on account of assault made by A1 with knife. He has been examined by PW13 Medical Officer at K.R.Hospital on that very night i.e. 9.6.2002 at about 10.20 p.m. The evidence of PW13 Medical Officer reveals that on his examination of PW1, he has noticed an injury on the left Lumbar region and he has issued the Wound Certificate in respect of him as per Ex.P17. The testimony of PW.13 in respect of PW1 sustaining injury is also not seriously challenged in the case. The evidence of PW.13 is further corroborated from the testimony of PW1. In that view of the matter, we are of the clear view that the prosecution has also established that PW1 has sustained injury on his person as claimed by him and projected by the prosecution.
26. Re. Point-2:
The prosecution in order to connect the accused with the homicidal death of the deceased Prasanna Kumar and causing injury to PW1 have relied upon the direct testimony of PWs.1 to 5. The recovery of MOs.1 to 5 at the instance of A1 to A5 and that of the evidence of the Investigating Officer PW24. It is the case of the 41 prosecution that on 9.6.2002 at about 9.20 p.m. in front of the shopping complex of one S.Linganna at Palahally village, the accused formed themselves into an unlawful assembly armed with deadly weapons, like knife and chopper, iron rod, wooden reaper with the common object of committing murder the deceased Prasanna Kumar and in prosecution of the common object of the said assembly on that day wrongfully restrained the deceased Prasanna Kumar, who was near the house of A1, picked up quarrel with him and in the said quarrel when the deceased tried to escape from their clutches he was chased and caught hold of by A6 to A8 in front of the shopping complex of one Linganna, which is situated right opposite to the house of A1 and thereafter, A1 inflicted stab injury on the right pectoral region of the deceased with knife, A2 assaulted with chopper, A3 and A5 assaulted with wooden reaper and A4 with a iron rod, on account of which, he sustained severe injuries and fell down at the said place. The same was witnessed by PWs.1, 2, 3 and 5, who were on their way to their house, among them PW1 went to the 42 rescue of the deceased. At that point of time, he was assaulted by A1 with knife on his Lumbar region. The accused after assaulting the deceased and PW1 took to their heels with the weapons. PW1 in his evidence has claimed that after the accused left the place, he went to K.R.Hospital and there he took treatment for the injury which he had sustained at the hands of A1 with PW13. The evidence of PW13 reveals that he examined PW1 on 9.6.2002 at about 10.20 p.m. and he noticed the injury on his left Lumbar region and he has issued the wound certificate Ex.P17 in respect of him. This evidence of PW1 is corroborated from the evidence of PW13 and it is fortified from the wound certificate Ex.P17. According to PW1 after taking treatment he returned back to the Village Palahalli by about 10.45 p.m. or 11,00 p.m. Thereafter, according to him, he filed his complaint Ex.P1 before PW24 after getting the same written by PW19 Ramegowda. He filed the complaint at about 1.00 a.m. according to the prosecution.
27. Sri. Hashmath Pasha attacking the evidence of PW1 contends that Ex.P1 is not the First Information, 43 it is hit by Sec.162 Cr.P.C. In this connection, he submitted that the evidence of PW1 reveals that he had reported the occurrence in detail at K.R.Hospital, Mysore, to the Police, that information which he had furnished to the Police at K.R.Hospital, Mysore as admitted by him has not seen the light of the day. He further submitted that Ex.P1, according to the prosecution has come into existence at 1.00 a.m. at Palahalli village, prior to that the evidence on record reveals more particularly that of PW4 that he had informed the occurrence to the Police on phone which had reached at about 10.45 p.m. The evidence of PW24 also reveals that he received the information about the occurrence particularly the murder of the deceased at Palahalli village, while he was in his residence at 11.30 p.m. Thereafter, he came to the Police Station and from there he reached Palahalli village by about 12.30 a.m. on 10.6.2002. Therefore, he contends that since the police had already known about the occurrence that is the murder of the Prasanna Kumar, Ex.P1 which has been received by PW24 from PW1 cannot be treated to 44 be the first information in the case as the Police had already known about the occurrence. In this connection, he also drew the attention of the court in respect of the time given by PW1 about he having narrated the occurrence to the Police much prior to filing of Ex.P1. The evidence of PW24 reveals that he received the information about the occurrence at 11.30 a.m. while he was in his residence at Srirangapatna and immediately he came to the Police Station and after collecting his staff he came to Palahalli village at 12.30 a.m. on 10.6.2002 and by the time he reached Palahalli village, he noticed a commotion had taken place in the village. The houses belonging to one Ramanna and Kunni Mariyappa had been set fire and damages had been caused to the property of the villagers. Therefore, PW24 was under an obligation to first maintain law and order in the Village, in order to avoid further loss of life and property of the villagers of Palahalli village. The information he had received did not disclose that these accused were involved in the murder. It is only when Ex.P1 was filed at the dead of night at about 1.00 a.m. 45 on the intervening night of 9.6.2002 and 10.6.2002 the full picture of the occurrence has come to light. PW1 has testified to that effect. His testimony is further fortified from the testimonies of PWs.2, 3 and 5 who have consistently spoken about the occurrence and the acts of each of the accused.
28. Having regard to the facts, circumstances and the background, in which the occurrence has taken place, we are unable to accept the submission of Sri.Hashmath Pasha that Ex.P1 is hit by sec.162 Cr.PC. According to prosecution, PW.24, on receipt of information, came to the police station and from there he came to Palahally Village along with staff. At that time, he noticed there was commotion in the village, which had resulted in setting fire to some of the houses and damages to the property. The information that he had received had not revealed in detail about the occurrence. His first duty was to maintain law and order in the village. Under these circumstances, it cannot be said that police had definite information of the occurrence involving the accused. Apart from this, 46 we find that PW1 has been recalled and cross-examined about 2 years after he was completely examined, i.e. he has been further cross-examined nearly about 2 years after his examination and cross-examination was completed in the year 2004. In that cross-examination he has diluted the prosecution case. Though an attempt was made that in the earlier cross-examination itself he has admitted about the filing of the information, we find in the facts and circumstances as on that day itself he has tendered his evidence two years after the occurrence. Having regard to the time- gap that admission would not in any way go to the root of the prosecution case to throw away Ex.P1 as not the one being the first information in the case. Therefore, we do not find any merit in the contention of Sri.Hashmath Pasha.
29. In so far as PWs.2, 3 and 5 is concerned, the attack is that their statements have been recorded belatedly i.e. on 11.6.2002 and therefore their testimonies cannot be believed in view of they having come out with the version of having seen the occurrence 47 nearly about 1 ½ days after the occurrence despite they having been present on the night of the occurrence with the Police at the time inquest was held, at the time PM was conducted at K.R.Hospital and at the time the spot Mahazar was drawn on 10.6.2002 by PW24. The evidence of PW24 reveals as already pointed out on his arrival to Palahalli Village, many people had gathered, a commotion was taking place. The houses belonging to Ramanna and Kunni Mariyappa had been set fire and damages had been caused to the properties of the villagers. Therefore, the first duty expected to be discharged by PW24 was to take steps to control the situation in order to maintain law and order, that too when he has noticed thousands of people having gathered and when the whole village was under tense. Under those circumstances, it is highly unthinkable for an Investigating Officer in that situation to record the statement of the witnesses. He has recorded their statements on 11.6.2002 despite they being in the village on 10.6.2002. In a situation of this nature, we find no lapses on the part of the Investigating Officer in 48 recording the statements of these witnesses on 11.6.2002 as he was to bestow his attention not only to maintain law and order in the village and also to take necessary steps to hold inquest, to conduct spot Mahazar and to get the body subjected to PM examination. Therefore, we are of the view the submission of the counsel for the accused that the evidence of PWs.2, 3 and 5 does not inspire confidence having regard to the delay in coming out with the version of they having seen the occurrence, does not merit any consideration.
30. In so far as PW4 is concerned, his statement has been recorded on 12.6.2002. It was contended not only there is delay in recording the statement but also his name does not find a place in the First Information that has been lodged by PW1 before PW24 which runs into nearly 3 pages. We are unable to accept the said submission for the very same reason, which we have adverted to above, while dealing with the evidence of PWs.2, 3 and 5. On a careful consideration, we are of the view that evidence of PWs.1 to 5 is trustworthy and 49 it inspires confidence to place reliance on their testimonies though some minor contradictions and omissions have been brought on record, which in our view, does not go to the root of the prosecution case as they have tendered evidence before the court nearly about 2 years after the occurrence.
31. Insofar as the recovery of the weapons at the instance of the accused is concerned, according to PW24 he has first recovered MO5 at the instance of A5 on 28.6.2002 under the panchanama Ex.P7. Thereafter he has recovered MOs.1 to 4 at the instance of A1 to A4 under Ex.P8 on 10.08.2002. P.Ws.4, 9 and 11 have testified to recovery made by PW24 at the instance of the accused. It was strongly contended that the recovery of the weapons at the instance of A1 to A4 being a combined recovery made under Ex.P8 and not an individual recovery made at their instance it cannot be held to be proved in accordance with law. Apart from the same, this recovery at the instance of A1 to A4 is made after they were taken to Police custody from 8.8.2002 to 11.8.2002 and the recovery having made on 50 10.8.2002. Therefore, their submission, this recovery which has been made belatedly on 10.08.2002 despite they having been taken into Police custody on 8.8.2002 would go a long way in placing reliance on the recovery made at their instance.
32. We do not find merit in this contention also because the evidence of the ocular witnesses which we have adverted to above and which we have perused has inspired confidence to place reliance on their testimonies. Therefore the recovery in our view also further points towards the guilt of the accused in the facts and circumstances of the case.
33. In so far as the evidence of PW24 is concerned, he being the Investigating Officer, we have to visualize the circumstances under which he was placed on the night of occurrence and next day of the occurrence. The Investigating Officer has bestowed his attention not only to control the situation in the village which was tense, but also to maintain the law and order apart from directing his attention towards the investigation of the case. Therefore, we do not find any 51 infirmity in his evidence in taking steps in respect of recording the statement of the witnesses. However, there are some latches in his investigation. We are of the view that on account of the lapses of the Investigating Officer, in view of the direct account of the eye witnesses, it does not in any way affect the prosecution case.
Therefore, from the evidence on record we are of the view that the prosecution has established that the accused are guilty of the offences for which they have been convicted.
34. Now, coming to the alternative submission made by the learned counsel for the respective accused, according to Sri.Hashmath Pasha, the evidence on record reveals that it was the deceased who was near the house of A1 on that night at the time of occurrence despite having been sent back after an earlier quarrel which had taken place at 7.30 p.m. near Marigudi temple at Palahalli village. It is he, according to the recitals in the complaint which goes to show picked up quarrel with the accused. According to Mr.Hashmath 52 Pasha when quarrel was going on in front of the house of A1, at that point of time, none of the accused knew what were the weapons that each of the other accused had with them. That was in the personal knowledge of respective accused. A2, A3, A4, A5 did not know that A1 was armed with knife. He submits in view of the quarrel that was going on in front of the house of A1, it would indicate, it was deceased who had come there deliberately with an intention to pick up quarrel. In the said quarrel, suddenly A1 has inflicted knife injury on the deceased, A2 has assaulted with chopper on the head, A4 has assaulted with iron rod and A3 and A5 assaulted with wooden reaper. He submits that PWs.1 to 5 could not have seen the weapon at all at the hands of A1 having regard to its size. Likewise, the other accused namely, A2 to A5 could not have imagined that A1 was armed with knife at that point of time. According to him, A1 has inflicted the blow on the right pectoral region which has resulted in the death of the deceased. In so far as the other accused are concerned, according to him, A2 has assaulted with chopper on the 53 head, A3, A4 and A5 with iron rod and wooden reaper. In view of this he contends that none of the injuries that have been caused on account of the assault made by A2, A3, A4 and A5 has resulted in the death of the deceased. It is only the injury that has been inflicted by A1 that has resulted in the death of the deceased. Therefore, he contends since the quarrel had ensued in front of the house of A1 and that quarrel had suddenly erupted on account of the deceased coming in front of the house, the accused could not be said to have formed themselves into unlawful assembly at that point of time and they had assaulted the deceased with the common object of the unlawful assembly along with A1 to commit the murder. According to him, at best each of these accused will have to be held as to the individual overt-acts that has been attributed to each of them. Therefore, he submits since the fatal injury that has resulted in the death of the deceased, is inflicted by A1, the other accused cannot be held to be guilty of the offence punishable u/s 302 IPC at best it might either fall under sections-323, 324 or 325 of IPC having regard 54 to the act attributed to them. Hence, he submits that firstly there was no unlawful assembly and the accused were not members of an unlawful assembly armed with deadly weapons and therefore having regard to the individual overt-acts attributed to them, they can be held guilty only for the offence either punishable under sections-323, 324 or 325. In this connection, he placed reliance on the Judgment reported in AIR 1958 Supreme Court 465 in the case of Virsa Singh -Vs- State of Punjab and also in 2004(1) Supreme (Cr.) 229 in the case of Ramu -Vs- State of U.P.
35. Sri.Hanumaiah, learned counsel for A1 contended that the overt act attributed to A1 is that he has inflicted one knife injury on the right pectoral region of the deceased which has resulted in his death, according to PW15, the medical officer who has conducted autopsy. But what is to be considered is in the facts and circumstances coupled with the evidence and record since A1 has inflicted that injury in the quarrel that took place in front of his house when the deceased has come near the house, it cannot be said 55 that he inflicted that injury on the deceased with an intention to commit his murder or he had the knowledge that his act would result in the death of the deceased. Therefore, he submitted that the offence committed by A1 would be culpable homicide not amounting to murder. Hence at best A1 could be held guilty for the offence which falls u/s.304 Part I of IPC and at any rate he cannot be held guilty of the offence punishable under Section 302 of IPC.
36. In this connection, all the learned counsel also submitted that since the evidence on record does not show that all these persons were members of an unlawful assembly armed with deadly weapons and in prosecution of the common object of the unlawful assembly, they had assaulted the deceased and had committed the murder, they have to be held guilty for the individual overt-acts committed by them.
37. We find no merit in any of these submissions. The evidence on record reveals that on that day at about 9.20 p.m. when the deceased was in front of the house of A1, all the accused and the deceased were quarreling 56 with each other. In the said quarrel, when the deceased tried to escape, he was chased and caught hold of by A6 to 8 at some distance in front of shopping complex of S.Lingappa. Thereafter, A1 has inflicted injury on the right pectoral region with knife, A2 has assaulted him with chopper, A3 and A5 assaulted with wooden reaper and A4 has assaulted with an iron rod. The fatal injury which has resulted in the death of the deceased has been inflicted by A1 with knife. At that point of time A2 to A5 were present along with him armed with choppers, wooden reapers, iron rod and assaulted the deceased. The evidence on record more particularly that of PWs 1,2,3 and 5 reveal that all these persons were assaulting the deceased in front of the house of A1. That evidence would clearly go to show that the accused were present near the house of A1 having formed into an unlawful assembly armed with deadly weapons.
38. Nextly, we also do not find any merit in the submission of the counsel that the accused in the present case in the facts and circumstances cannot be 57 held to be members of the unlawful assembly for holding them liable for the acts committed by each other and on the other hand they are liable for the individual overt act attributed to them.
In the decision reported in AIR 1958 Supreme Court 465 in the case of Virsa Singh -Vs- State of Punjab Singh's case it has been held as follows :-
" Penal Code (1860) S.300, thirdly-Applicability- Essentials to be proved - Inference of intention from nature of injury - When can be made - Effect of seriousness or otherwise of injury. The prosecution must prove the following facts before it can bring a case under S. 300, "thirdly"; First, it must establish, quite objectively, that a bodily injury is present ; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the 58 type, just described, made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300, thirdly.. It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature ( there is no real distinction between the two) or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
In Virsa Singh's case adverted to above, the Apex Court has indicated the four elements which are to be established to prove the offence of murder u/s.300, thirdly.
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39. In this particular case we find from the evidence on record that A1 was armed with knife-MO1 and he has inflicted injury on the right pectoral region of the deceased which has resulted in his death. A2 has assaulted with chopper on head, A4 has assaulted with iron road and A3 and A5 have assaulted with wooden reaper. Further A1 has assaulted PW1. PW14 is the medical officer who has conducted autopsy over the body of the deceased. His evidence reveals the injury inflicted by A1 had cut the skin and rib tissue as follows:-
" On dissection of injury No.10 it is observed that after cutting the skin and sub cutaneous tissue. The weapon had entered 8th inter costal space cutting carcostal cartilage and its inner and obliquely placed on which it measures 5cms x 1.5 cms. It has entered the pleurae cutting the basal lobe of right lung had entered diaphragm and has cut the adjacent liver and abdominal aorta situated 14 cms above its bifurcation of abdominal aorta. Blood had extravasated all over the track and organs. Blood clots of huge size seen over both cavities. The weapon has 60 entered inwards, backwards and towards left for a depth of 14 cms."
Further the evidence of PW1 reveals that on account of the injury inflicted by A1, intestine had come out of the body of the deceased. The evidence on record also reveals that the deceased apart from the said injury inflicted by A1 had also sustained injuries on other parts of his body due to the assault made by A2 to A5. In view of the nature of injury that has resulted in the death of the deceased, the only inference that could be drawn in the circumstances of the case having regard to the evidence on record is that the prosecution has established that the accused have committed the offence of culpable homicide amounting to murder.
Insofar as the other decision relied upon by the counsel for the accused reported in 2004(1) Supreme (Cr.) 229 in the case of Ramu -Vs- State of U.P. it has been held as follows :-
"Indian Penal Code, 1860 - Section 304-
Culpable homicide - PW1 with her son deceased went to house of A1 to demand their 61 money Rs.50/- which led to altercation -A2 appellant, arrived armed with bhala and they chased deceased-four other accused joined them-deceased suffered lathi blows and one incised wound on abdomen dealt by appellant and died-Trial Court convicted all accused u/s 302/149 IPC - High Court held appellant guilty u/s 304 IPC but convicted other accused only u/s 147 and 324/149 IPC-Appeal -
Appellant did not have motive whatsoever to cause fatal injury-Injury on abdomen was caused in melee- in the facts and circumstances act of appellant could not be construed even one of culpable homicide not amounting to murder-He was liable to be held guilty for causing grievous hurt- Incident was of 1978, sentence of 3 years imprisonment awarded."
The facts in this case are not identical with the facts of the case relied upon by the counsel for the accused . Though it was contended that it is the deceased who had gone near the house of A1 from the evidence on record we find on the other hand, the accused have attacked the deceased in front of the house of A1. In that view of the matter the aforesaid 62 decision relied upon by the counsel for the accused is of no avail to them.
40. In view of the evidence on record, we are of the clear view that all these accused had formed themselves into an unlawful assembly and in furtherance of the common object of the said assembly they have assaulted the deceased and have committed his murder and by no stretch of imagination it can be said that there was no unlawful assembly and the accused are also to be held as to the individual acts that have been attributed to them and the offence would not come within the ambit of Sections 302 r/w 149 of IPC. Since the evidence on record clearly goes to show that the accused being members of the unlawful assembly have committed the murder of the deceased, each one of them are liable for the act committed by the other accused.
41. Therefore, in the facts and circumstances, we do not find any merit in the submission of any of the counsel to hold that the act committed by the accused does not amount to culpable homicide not amounting to 63 murder, on the other hand it is a case of culpable homicide amounting to murder.
42. The learned Trial Judge on a consideration of the entire evidence and the documents on record, in our view has come to the right conclusion in holding the prosecution has established the charges against these appellants/accused and accordingly has convicted and sentenced them, which finding in our view having been based on facts and law does not suffer from any infirmity calling for interference in these appeals.
Accordingly, we do not find any merit in these appeals and they are dismissed.
Sd/-
JUDGE Sd/-
JUDGE R/SA/Ak