Karnataka High Court
The State Of Karnataka Through vs Shivanand S/O Laxuman Kalgonda on 23 August, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF AUGUST 2022
PRESENT
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL APPEAL No.200078 OF 2014
BETWEEN:
The State of Karnataka,
Through Hallikhed-B Police,
Rpted. by its
Addl.State Public Prosecutor. .. Appellant
( By Sri Prakash Yeli, Addl.SPP )
AND:
Shivanand
S/o Laxuman Kalgonda,
Age: 26, Caste: Kuruba,
R/o Nandgaon,
Tq. Humnabad,
Dist. Bidar. .. Respondent
( By Sri B.C.Jaka, Amicus Curiae)
This Criminal Appeal is filed under Section 378(1) & (b) of
Criminal Procedure Code praying to grant leave to appeal
against the judgment and order dated 20.03.2014, passed by
the District & Sessions Judge, Bidar, in Sessions Case
No.107/2013, thereby acquitting the respondent-accused for
Crl.A.No.200078/2014
2
the offences punishable under Sections 302 and 504 of IPC, to
set aside the judgment and order dated 20.03.2014, passed in
S.C.No.107/2013, by the District & Sessions Judge, Bidar, and
to convict and sentence the accused/respondent for the offence
punishable under Section 302 and 504 of IPC, in the interest of
justice and equity.
This Criminal Appeal coming on for Hearing through
Physical Hearing/Video Conference, this day
Dr.H.B.Prabhakara Sastry J., delivered the following:
JUDGMENT
The State has filed this appeal under Section 378 (1) & (b) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.'), challenging the judgment of acquittal dated 20.03.2014, passed by the learned Addl.District and Sessions Judge, Bidar, (hereinafter for brevity referred to as the 'Sessions Judge's Court') in S.C.No.107/2013, acquitting the accused of the offences charged against him.
2. The summary of the case of the prosecution is that, on the date 05.02.2013, at about 1.45 p.m., on Nandgaon-Jalsingi Road, at Topenavar agricultural land belonging to the deceased Manikappa, within the limits of complainant-Police Station, the accused had intentionally Crl.A.No.200078/2014 3 used the insultive and abusive words against the deceased Manikappa and with an intention to cause his death, stabbed him with a knife which he was holding and caused injuries to his abdomen and when injured Manikappa fell on the ground, the accused by picking up huge stones lying nearby, threw it on the head and face of the deceased inflicting fracture injuries upon him and thus, caused the death of the deceased Manikappa on the spot and thereby committed the offences punishable under Sections 504, 302 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC').
3. Since the accused pleaded not guilty, in order to prove the allegations made against the accused, the prosecution got examined in all thirteen (13) witnesses from PW-1 to PW-13 and got marked documents from Exs.P-1 to P-14 and got produced material objects from MO-1 to MO-11. On behalf of the accused, the accused got himself examined as DW-3 and examined two other witnesses as DW-1 and DW-2, however, no documents Crl.A.No.200078/2014 4 were produced and marked from the accused side as exhibits.
4. After hearing both side, the learned Sessions Judge's Court by its impugned judgment dated 20.03.2014, acquitted the accused of the offences punishable under Sections 504, 302 of IPC. Challenging the same, the State has preferred this appeal.
5. The records from the Sessions Judge's Court were called for and the same are placed before this Court.
6. In view of the fact that the learned counsel for the respondent (accused) failed to appear before this Court on several dates of hearing, this Court by its reasoned order dated 01.08.2022, appointed learned counsel - Sri.B.C.Jaka, as Amicus Curiae for the respondent/accused to represent him in this case.
7. Heard the submissions of learned Addl.State Public Prosecutor for the appellant and the learned Amicus Curiae for the respondent/accused who are physically present in the Court.
Crl.A.No.200078/20145
8. Perused the materials placed before this Court, including the memorandum of appeal, impugned Judgment and the records from the Sessions Judge's Court.
9. For the sake of convenience, the parties would be referred to as per their rank before the Sessions Judge's Court.
10. After hearing both side, the points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond reasonable doubt that on 05.02.2013, at about 1.45 p.m., on Nandgaon-Jalsingi Road, at Topenavar agricultural land belonging to the deceased Manikappa, the accused abused the deceased Manikappa in filthy language in a public place with an intention to provoke breach of peace and thereby committed an offence punishable under Section 504 of IPC?
(ii) Whether on the date, time and place mentioned at point No.1 above, the accused with an intention to cause the death of deceased Manikappa, inflicted injuries to the deceased Manikappa by stabbing him with a knife and assaulting him with heavy stones and thus, caused Crl.A.No.200078/2014 6 the death on the spot and thereby has committed an offence punishable under Section 302 of IPC?
(iii) Whether the Judgment of acquittal under appeal deserves any interference at the hands of this Court?
11. The prosecution case begins with the alleged telephonic information said to have been received by the Police Sub-Inspector of the complainant-Police Station i.e., PW-10 Sri Sharanabasappa Kodla. According to him, on 05.02.2013, at about 2.15 p.m., while he was working as Police Sub-Inspector of the complainant-Police Station, he received a telephonic call from PW-1 - Smt.Jyoti, regarding the murder of her husband. Immediately, he rushed to the spot and found PW-1 and recorded her complaint statement as per Ex.P-1. According to PW-10, after returning to the police station, he registered a case in their station Crime No.11/2013, prepared FIR and submitted the same to the Court, with copies to his superiors. He has identified the said FIR at Ex.P-2. Crl.A.No.200078/2014 7
In the said complaint at Ex.P-1, which PW-1 as the complainant too in her evidence has stated that it was given by her to the police, the complainant has stated that she is the wife of deceased Manikappa and on the ill-fated day, the deceased joined by the accused, who was none else than his elder brother's son (nephew), had been to his agricultural land. However, within a short time, while she was going towards the land, their worker CW-2 (PW-2) Praveen, coming from the side of the agricultural land, told to her that accused stabbed Manikappa with a knife and threw stones on his head and face and killed him on the spot. She rushed to the spot only to see that her husband was found as a dead person in a pool of blood. She stated that it was the accused and accused alone who had committed the alleged guilt. The evidence of PW-1 is also on the similar lines. She has reiterated in her examination-in-chief what she has stated in her complaint. She has identified the complaint at Ex.P-1 as lodged by her.
Crl.A.No.200078/20148
12. The other witness who could speak about the incident and identified as star witness, upon whom the prosecution has full hope is CW-2/PW-2 Praveen, who in his evidence has stated that, since about a year prior to the incident, he has been working as a coolie under the deceased and used to attend the agricultural works. The deceased was a School Teacher in Nandgaon village and was also doing agriculture.
About the incident, the witness has stated that, in February 2013, at about 1.45 p.m., while he was in the Topenavar land belonging to deceased Manikappa, both the deceased and accused came to the said land on a motorcycle. At the instruction of his master i.e., the deceased, he was watering the sugar cane crops. At that time, he heard deceased Manikappa screaming as 'yako yako' ('AiÀiÁPÉÆÃ AiÀiÁPÉÆÃ'), due to which, he came out from the sugar cane field and noticed that the deceased had fallen on the ground. The witness has further stated that, while he was witnessing, the accused Crl.A.No.200078/2014 9 was throwing the size stones on the head of the deceased and due to fear, he ran away from the spot towards the village.
The witness has further stated that while running towards the village, he found PW-1 proceeding towards the land and told her about the accused stabbing the deceased Manikappa with a knife and also throwing size stones on the head of the deceased. Then, both himself and PW-1 rushed to the land and noticed that deceased had already breathe his last. He also stated that PW-1 called the police over the phone and informed them about the incident. Further, the witness has stated that, at the time of incident, the accused was carrying the knife that he used. Stating that he would identify the said knife, the witness has identified the knife at MO-5 as the one that was carried with him by the accused. He has also identified three stones in the Court at MO-1 to MO-3 stating that they were the stones used by the accused in the incident. Crl.A.No.200078/2014 10
Though this witness was subjected to a detailed cross-examination, however, he adhered to his original version.
13. After PW-1 and PW-2, who are the star witnesses according to the prosecution, the other witnesses upon whom the prosecution has relied much, excluding the Investigating Officers and Police witnesses, are PW-3, PW-5, PW-6, PW-7, PW-11 and PW-12.
PW-3 (CW-7) Madhukar Rao, who is undisputedly the Head Master of Government Higher Primary School, Nandgaon, has stated that the deceased Manikappa was working in his school as a Teacher. He used to be in the school from morning 9.45 a.m. to 4.30 p.m. from Monday to Friday, however, on Saturdays, he used to be in the school from 9.45 a.m. and was returning home at about 1.30 p.m. The witness has further stated that, on the date of the incident, which was on 05.02.2013, deceased Manikappa though attended to his duty in the school, but, Crl.A.No.200078/2014 11 left for his home at about 1.30 p.m. for his meals, however, he did not return in the afternoon. It was at about 2.30 p.m., he came to know that the accused took the deceased Manikappa to the land and committed his murder.
In his cross-examination, nothing could be elicited favouring the accused. However, the witness in his cross- examination has stated that the house of the deceased was at a distance of about 300 meters from the school. Thus, in his cross-examination, the witness has given the details to the effect that the distance between the house of the deceased and the school where he was working, was not far away and it was hardly 300 meters, as such, the deceased could have visited his house on Saturday afternoon for his lunch.
14. PW-5 (CW-15) Dr.Sangeeta has spoken about she conducting the post mortem examination on the dead body of the deceased Manikappa, son of Laxuman, on 05.02.2013. After giving a detailed account of external Crl.A.No.200078/2014 12 injuries said to have been noticed on the body of the deceased, the witness has stated that those injuries were ante-mortem. The witness has further stated that, after dissection, she noticed the presence of partly digested food in the stomach of the deceased. She opined that death of deceased Manikappa was on account of shock and hemorrhage due to the multiple injuries on the head, brain and intestine. She also stated that the head injury would have been caused by the blunt and hard object like throwing of the stones like MO-1 to MO-3 on the head. She further stated that the injuries caused on the intestine may be caused by stabbing with the sharp object like MO-5 - knife. Stating that in that connection, she has issued a post mortem examination report, the witness has identified the same at Ex.P-3. Further stating that with regard to an opinion regarding the weapon, she had given a written opinion, the witness has identified the same at Ex.P-4.
In her cross-examination, by giving furthermore details as to the condition of the dead body at the time of Crl.A.No.200078/2014 13 autopsy and stating that the rigor mortis was not fully set in the dead body, the witness has shown it clear that, by the time she conducted the autopsy on the body of Manikappa, the time was within twelve hours of the alleged incident and the rigor mortis has not been fully set into the body. She specifically denied the suggestion that the stab injury found on the deceased could not have been possible to be caused with the knife at MO-5 and other injuries found on the face and head of the deceased also could not have been caused to be made by the stones at MO-1 to MO-3. Thus, the evidence of the doctor also has supported the case of the prosecution regarding the alleged nature of death of the deceased.
15. PW-6 (CW-12) Bandayya Swamy, has stated about the Investigating Officers drawing the inquest panchanama on the dead body of the deceased Manikappa as per Ex.P-5 and scene of offence panchanama as per Ex.P-6 keeping him as pancha to the panchanamas. The witness has specifically stated that at the time of inquest Crl.A.No.200078/2014 14 panchanama, he has noticed the stab injuries on the stomach and also injuries on the head of the deceased Manikappa. He further stated that under the scene of offence panchanama at Ex.P-6, the police have collected the blood stained mud and sample mud, besides stones at MO-1 to MO-3 and chappal at MO-4 from the spot. The witness had identified all those articles from MO-1 to MO-4. Further he has also identified the blood stained mud and sample mud at MO-6 and MO-7. His evidence regarding drawing of scene of offence panchanama and inquest panchanama could not be shaken in his cross- examination from the accused side.
16. PW-7 (CW-16) Chandrakanth, has stated that as a Junior Engineer of Public Works Department, he has prepared the sketch as per Ex.P-7 at the request of the police.
17. PW-11 (CW-14) Manikappa, son of Hanmanthappa, has stated that the knife at MO-5 was seized in his presence from the possession of the accused Crl.A.No.200078/2014 15 in the complainant-Police Station by drawing a seizure panchanama as per Ex.P-9. The witness has stated that the said weapon was seized since the accused produced the same in his presence before the police. The witness has further stated that, apart from the knife, the police also seized the clothes of the deceased worn by him at the time of the incident by drawing clothes seizure panchanama as per Ex.P-10. The witness apart from identifying the panchanamas at Exs.P-9 and P-10, has also identified the knife at MO-5 and clothes of the deceased at MO-8 to MO-11.
18. PW-12 (CW-3) Kanthappa though was examined by the prosecution as an eye witness with the fond hope to support its prosecution witnesses, has shown back to the expectation of the prosecution by totally not supporting the case of the prosecution even to the smallest extent. The witness has gone to the extent of stating that though he knows the accused, but, he does not know PW-1 and PW-2. He specifically stated that he has not witnessed the Crl.A.No.200078/2014 16 incident and does not know anything about the case. Thus, even though PW-1 and PW-2 in their evidence have made a reference about PW-12 Kanthappa and he owning an adjoining land to the place of the alleged incident, however, the evidence of said Kanthappa was of no avail to the prosecution.
19. Apart from the above witnesses, the prosecution examined the Police witnesses also, among whom, PW-4 (CW-8) Nagappa, the Police Constable of the complainant- Police Station, has stated about he carrying the FIR from the police station to the Court and submitting the same to the Court.
PW-8 (CW-9) Rajkumar, the Police Constable of the complainant-Police Station, has stated about he collecting the clothes found on the dead body of Manikappa after post mortem examination done by the doctor and producing the same before the Investigating Officer. The witness has identified those clothes at MO-8 to MO-11. As observed above, the very same clothes were also identified Crl.A.No.200078/2014 17 by PW-11 stating that they were the one produced in his presence and seized under a panchanama at Ex.P-10. Thus, the evidence of PW-8 and PW-11 corroborates with each other.
20. PW-9 (CW-10) Basawaraj, the Police Constable of the complainant-Police Station, has spoken about he carrying the seized articles in the matter to their chemical examination by the Forensic Science Laboratory and submitting a report before the Investigating Officer to that effect as per Ex.P-8.
21. The last witness is the Investigating Officer in the matter, who is PW-13 (CW-18) M.Anil Kumar. The evidence of the said witness that after taking up further investigation in the matter on 05.02.2013 from PW-10, he visiting the spot and drawing an inquest panchanama as per Ex.P-5 in the presence of PW-6 and CW-11, has been corroborated by the evidence of PW-6. His further evidence that he sent the dead body of deceased Manikappa through PW-8 for its post mortem examination Crl.A.No.200078/2014 18 and after the post mortem examination, seized the clothes worn by the deceased as per MO-8 to MO-11 which were produced before him by their Police Constable i.e., PW-8, is further corroborated by the evidence of the doctor i.e., PW-5 and the Police Constable i.e., PW-8.
His further evidence that during the investigation, he also drew a scene of offence panchanama as per Ex.P-6 in the presence of PW-6 and CW-11 and from the spot, seized three stones suspecting that they were used in the commission of the alleged crime, which were at MO-1 to MO-3 and blood stained mud and sample mud at MO-6 and MO-7 respectively, are further corroborated by the evidence of PW-6 as observed above.
The further evidence of PW-13 that on the very same day, at about 8.30 p.m., the accused was produced before him by PW-10 and after his arrest, the accused produced the knife stating that the same was used in the commission of the crime and that he seized the said knife by drawing a seizure panchanama as per Ex.P-9, is Crl.A.No.200078/2014 19 corroborated by the evidence of PW-10 and PW-11 respectively. His evidence that he requested PW-7 to visit the spot and drew a sketch of scene of offence, has been corroborated by the evidence of PW-7, who has identified the sketch prepared by him at Ex.P-7. The evidence of PW-13 that he sent the viscera of the deceased through PW-9 to Forensic Science Laboratory, Gulbarga, for its chemical examination, is corroborated by the evidence of PW-9, who carried the articles to the Forensic Science Laboratory. The witness has identified and got marked the Forensic Science Laboratory report said to have been received by him at Ex.P-12.
Thus, the evidence of Investigating Officer, which could not be shaken in his cross-examination, stands corroborated by the evidence of independent and departmental witnesses whom the prosecution got examined.
22. The accused who in the cross-examination of PW-1, PW-2 and PW-13 had taken a specific defence Crl.A.No.200078/2014 20 stating that as at the time of the alleged incident, he was not in the place of the incident and that he was in his hostel situated in a place called Bidar, got examined two witnesses on his behalf as DW-1 and DW-2 and also got examined himself as DW-3.
DW-1 - Subhash and DW-2 - Prakash, claiming themselves to be the classmates, as well the hostelmates of the accused, have stated that the accused was arrested by the police on 05.02.2013 at 6.30 p.m. from the hostel premises. Thus, they attempted to show that the accused was in the hostel at the time of his arrest.
23. Continuing the contention of DW-1 and DW-2, which were in his support, the accused who got himself examined as DW-3, continued to say that though the deceased was his paternal uncle, but, he has no nexus for the death of his uncle. He specifically stated that there was enmity between his father and deceased Manikappa though they were full-blood brothers. He stated that, his father and deceased Manikappa were not in Crl.A.No.200078/2014 21 talking terms and they were not attending the family functions of each other. He denied that PW-2 Praveen was working as a coolie under the deceased. He specifically stated that he has not committed the murder of his uncle Manikappa. On the other hand, he stated that, on the date of alleged incident i.e., on 5th February 2013, he was in the hostel at Naubad and on that day, he attended the classes at the college. He attended the classes between 8.00 a.m. to 11.00 a.m. on the said day. He concluded his evidence stating that the police have registered a false case at the instance of wife of Manikappa perhaps on account of the enmity developed between Manikappa and his (of this witness's) father.
DW-3 was subjected to a detailed cross-examination from the prosecution side, wherein certain statements were elicited from him.
24. In the light of the above, it was the argument of learned Addl.State Public Prosecutor that the trial Court has utterly failed to appreciate the evidence placed before Crl.A.No.200078/2014 22 it in their proper perspective. In the process of appreciation of the evidence, the trial Court has chosen only certain stray sentences or few words from here and there in the evidence of prosecution witnesses and attempted to show that they weaken the case of the prosecution. In continuation of the same exercise, the trial Court has totally ignored the documents at Exs.P-13 and P-14, which had clearly diminished the defence of alibi taken by the accused.
The learned Addl.State Public Prosecutor further stated that the cogent evidence of all the prosecution witnesses, except PW-12 Kanthappa, would lead to only conclusion that it was the accused and accused alone who has committed the murder of the deceased Manikappa. However, the trial Court making a hill out of a mole opining that the non-seizure of the motorcycle upon which the deceased had taken the accused with him to his lands, has disbelieved the case of the prosecution, which was totally contrary to the evidence of the prosecution witnesses. With this, he submitted that the impugned Crl.A.No.200078/2014 23 judgment warrants interference at the hands of this Court and the accused deserves to be convicted for the alleged offences.
25. Learned Amicus Curiae for the respondent/ accused in his argument submitted that the prosecution has utterly failed to prove that there exists any motive behind the alleged incident. When admittedly the partition between the brothers i.e., the deceased and his remaining brothers had taken place, the question of accused or his family expecting or anticipating any share in the property of the deceased would not arise. He further submitted that Exs.P-13 and P-14 cannot be believed in view of the fact that the author of those documents was not examined by the prosecution. Further the learned Amicus Curiae submitted that the defence of alibi was not just taken by the accused in the cross-examination of prosecution witnesses, but, the accused by leading evidence from his side, has proved that he was not in the place of the incident at the time of the incident. He further submitted Crl.A.No.200078/2014 24 that non-seizure of the motorcycle is fatal to the case of the prosecution. Even with respect to the presence of the motorcycle in the spot of the offence, there are variations in the evidence of prosecution witnesses, which further weakens the case of the prosecution.
Learned Amicus Curiae also submitted that PW-11 though has submitted that the knife at MO-5 was seized in his presence, has not whispered the presence of blood stains upon the knife. So also, the alleged seizure panchanama at Ex.P-9, which speaks about the knife at MO-5, also does not mention about the presence of blood stains on the weapon. In such a situation, it cannot be believed that the knife at MO-5 was used in the commission of the crime. With this, he submitted that there is no piece of evidence to suspect the role of the accused in the alleged incident though the death of deceased Manikappa might have been unnatural or even homicidal. Thus, the trial Court by properly appreciating the evidence placed before it since has pronounced the Crl.A.No.200078/2014 25 judgment of acquittal, the same does not warrant any interference at the hands of this Court.
26. Before analysing the above evidence of the prosecution witnesses, as well the evidence of witnesses examined from the accused side, it must be borne in mind that it is an appeal against the judgment of acquittal for heinous offence punishable under Section 302 of IPC. As such, the Court must be very careful in analysing the evidence placed before it. It also cannot be forgotten that if there is any iota of serious doubt weakening the case of the prosecution, naturally and obviously the benefit of the same must be given to the accused and accused alone. As such, in case if it is noticed that any such doubt was noticed by the trial Court, then, it has to be held that the accused deserves the benefit of the same, as such, the impugned judgment does not warrant any interference. With this caution in the background, the evidence of prosecution witnesses is required to be scrutinised carefully.
Crl.A.No.200078/201426
27. As observed above, even though the prosecution has examined thirteen witnesses from its side, however, the witnesses who strongly supports the case of the prosecution at the first instance are mainly PW-1 and PW-2.
Admittedly, PW-1 - Jyoti, is the wife of deceased Manikappa. Her evidence about the details of members of the family of the accused to the extent that the deceased had five brothers and that accused is none else than the son of one of the elder brother by name Laxuman, has remained an undisputed fact. Further, her evidence and also the statement brought in her cross-examination from the accused side, so also, the evidence of DW-3 that the house of the accused and deceased were abutting to each other and they had got their respective share in a single house under the family partition, after which, they started living separately in two portions of the same house, has also remained as an admitted fact. It is also not in dispute that, among the vast portion of the landed property owned Crl.A.No.200078/2014 27 by the father of the deceased, after partition, each of the sons, including the deceased and his elder brother Laxuman, got some portion of the land respectively to their share and they were cultivating the same. The evidence of PW-1 that the deceased out of his own earnings, has enlarged the extent of his landed property by 4 more acres, is also not seriously disputed. The evidence of PW-1 and PW-2 to the extent that the distance between the land of the deceased and his house in the village was about 1 KM. to 1.5 KM. is also not in dispute. It is in the light of these admitted facts and undisputed statements of the witnesses, the evidence of PW-1 and PW-2 with respect to the alleged incident is required to be analysed.
28. PW-1 has herself stated that she is only an hearsay witness. No where she claims that she is an eye witness to the incident. All the evidence she has given in her oral evidence about the occurrence of the incident stating that it was the accused who after stabbing her husband Manikappa with a knife, had also assaulted him Crl.A.No.200078/2014 28 by throwing heavy stones on his head, were all hearsay and given information to her by none else than PW-2 Praveen. According to her, PW-2 was a worker under them, who was working in their land and staying with them. No doubt, from the accused side, a suggestion was made to PW-2 Praveen in his cross-examination that he was not working under the deceased Manikappa, but, the said PW-2 has categorically denied the said suggestion. On the other hand, he himself has stated in his examination-in-chief that since prior to the date of the incident, he was working as a coolie under the deceased Manikappa and was attending to his agricultural field work. Apart from stating that he was working under Manikappa, the witness has also given the details of his prior employments under two other persons in the village by name Jalal Sab and Baba Sab. Those details elicited in the cross-examination of the said witness from the accused side would add more details about the employment of PW-2 under different persons and makes it to believe that, Crl.A.No.200078/2014 29 as at the time of the incident, PW-2 was working as a coolie/worker under PW-1 and deceased Manikappa.
29. The said PW-2 in his examination-in-chief has shown that as a coolie, attending the agricultural works in the land of Manikappa, he had been to the lands of deceased Manikappa on the ill-fated day i.e., on 5th February 2013. The said witness in his examination-in- chief has not stated that he has seen the accused stabbing the deceased. On the other hand, he has stated that at the time of the incident, he was amidst of grown-up sugar cane crops watering them. However, after hearing the screaming of his master i.e., the deceased Manikappa, as 'yako yako' ('AiÀiÁPÉÆÃ AiÀiÁPÉÆÃ'), he came out of the sugar cane field only to see that his master Manikappa had fallen on the earth and the accused who was standing there was throwing size stones on the head of the deceased. He further stated that being frightened by the scene and out of fear, he ran away towards the village. While running towards the village, he met PW-1 and narrated her about the incident Crl.A.No.200078/2014 30 and joined by her, came back to the land only to see that his master had lost his breathe in the incident.
The said evidence of PW-2 has come in a very normal and natural sequence. Had really PW-2 been an installed or a created witness or even a tainted witness, he had all the possibility of stating that he was an eye witness to the entire incident. He even could have stated that he was standing exactly near the spot of the incident and had witnessed it. However, he has stated in his evidence that, at the time when the incident is said to have begun, he was amidst of the grown-up sugar cane crops watering them as per the directions of his master. He even stated that, just before then, his master Manikappa had been to the said land along with accused upon his motorcycle and had asked him to water the plants. The undisputed said statement of his master's direction to water the plants would make his statement to believe that his master Manikappa had been to the said land joined by the accused and as such, he could get a direction from his master as to Crl.A.No.200078/2014 31 what work he was required to do at that time and on that day. Accordingly, PW-2 was said to be watering the sugar cane crops at the time when the incident began.
30. It is quite, but, natural that when a person is all of a sudden attacked and was assaulted, he screams or make some unusual or abnormal noise or voice. In the instant case, the deceased is said to have screamed as 'yako yako' ('AiÀiÁPÉÆÃ AiÀiÁPÉÆÃ'). Admittedly, the deceased and accused are very close relatives and family members. The accused is none else than the son of elder brother of the deceased. That being the case, when a known person, that too, a very close family relative, if done something unnatural, unusual or unexpected, the reaction which could be expected from the affected person would be rather than screaming for help, would be as to questioning as to what is happening, that is why, the deceased is said to have screamed as 'yako yako' ('AiÀiÁPÉÆÃ AiÀiÁPÉÆÃ',) which was heard by PW-2. Crl.A.No.200078/2014 32
Immediately after hearing the screaming noise, which was none else than the screaming of his master, PW-2 rushed out of the grown-up sugar cane field and saw that accused was throwing heavy stones on the head and face of the deceased. Though as the servant of his master, PW-2 could have rushed to the rescue of his master, but, PW-2 in his evidence has made it clear that, he was frightened by seeing the said scene and due to fear and after seeing the injuries on the head of the deceased Manikappa, he ran towards the village. The said act of PW-2 also cannot be called as abnormal or unnatural. Thus, the evidence of PW-2 that he was an eye witness and in what circumstance and in what manner he saw the incident, cannot be disbelieved.
31. Learned Amicus Curiae for the accused/ respondent has raised a doubt as to the very statement that accused and the deceased went together to the field on the date of the incident itself is doubtful. In that regard, he raised a point that non-mentioning about the Crl.A.No.200078/2014 33 presence of the motorcycle in the spot by PW-10 and mentioning about the motorcycle by another Investigating Officer i.e., PW-13 and non-siezure of the said motorcycle also leads to a serious doubt in the case of the prosecution, which further leads to disbelieve the evidence of PW-1 and PW-2 that they had seen the accused lastly in the company of the deceased. He also submitted that the admitted fact of the enmity between father of the accused and the deceased also makes it highly improbable and impossible to believe that the accused could have accompanied the deceased to the spot of the offence on the date of the incident.
The case of the prosecution is that, on the date of the incident, the accused and the deceased went together on the motorcycle of the deceased to the land of the deceased where the incident is said to have taken place. It is PW-1 and PW-2 who have spoken about the deceased and the accused going together on the motorcycle to the land. Admittedly, PW-1 is none else than the wife of the deceased. Even though learned Amicus Curiae submitted Crl.A.No.200078/2014 34 that she has not in specific terms stated that she has seen the accused accompanying the deceased on his motorbike and both of them going to their land, but, a reading of the evidence of PW-1 in its entirety and more particularly, her statement made in her examination-in-chief that on the date of the incident, her husband Manikappa along with accused had been to his land on a motorcycle and that her request that it was her to accompany him was reacted by her husband, who told her that the accused would accompany him, would clearly go to show that she has not only seen the deceased taking the accused with him on the said day to the land, but, also questioned her husband i.e., the deceased as to why he is not taking her though it was she who was accompanying him regularly. Thus, there is no reason to disbelieve her statement that she had seen the accused accompanying the deceased lastly before she could hear about the occurrence of the incident of death of her husband.
Crl.A.No.200078/201435
Similarly, the evidence of PW-2 that on the date of the incident, his master i.e., Manikappa came to the field along with the accused and gave him instructions to water the sugar cane plants, also find no reason to disbelieve the same. Though PW-2 was subjected to a detailed cross- examination, but, nothing could be elicited in favour of the accused to suspect that the accused had accompanied the deceased to his land on the date of the incident. Therefore, merely because the Investigating Officer has not recorded the statements of any of the villagers to the effect that they had seen the accused accompanying the deceased on the ill-fated day, by that itself, the evidence of PW-1 and PW-2, which has withstood the searching cross-examination, cannot be disbelieved. As such, it stands established that it was only PWs.1 and 2 who had lastly seen the deceased in the company of the accused just prior to the incident.
32. Both PW-1 and PW-2 have stated that deceased had taken the accused to the land in his motorcycle. No Crl.A.No.200078/2014 36 doubt, the motorcycle is having some link to the incident and might have been one of the supporting evidence in the case of the prosecution to show that the same was the motorcycle upon which the deceased and accused had travelled upto the spot of the offence. However, it cannot be ignored of the fact that, except describing the motorcycle as the vehicle which carried the accused and the deceased from the house of the deceased upto the field of the deceased, no further role or use of the said vehicle in the alleged incident has been shown by the prosecution. It is nobody's case that for the alleged commission of the crime, the vehicle was a planned installation and used. It is also nobody's case that, at the time of the incident, the vehicle which was said to be used in reaching the spot had also some role to play, like the deceased falling on the vehicle or the vehicle falling on the deceased or even the accused fleeing from the spot of the offence upon the very same motorcycle after the alleged commission of crime. Thus, when there is no involvement of the vehicle in any portion of the commission of the Crl.A.No.200078/2014 37 alleged offence or the conclusion of the alleged offence or post-facto incident, the mere fact that the said vehicle which was used by the deceased to reach his agricultural land was not seized would not weaken the case of the prosecution. As such, the said argument of learned Amicus Curiae for the accused that the non-seizure of the motorcycle is fatal to the case of the prosecution is not acceptable. On the contrary, the argument of learned Addl.State Public Prosecutor that the non-seizure of the motorcycle is not fatal to the case of the prosecution is acceptable.
33. No doubt, PW-12 Kanthappa has not supported the case of the prosecution even though he was examined by projecting him as an eye witness, however, as analysed above, the evidence of PW-1 that the deceased and accused went together to the place of the offence on the date of the incident and more importantly, the evidence of PW-2 that he is an eye witness to the incident Crl.A.No.200078/2014 38 and has seen the accused inflicting fatal injuries upon the deceased by throwing heavy stones on his head, finds no reason to disbelieve the same.
The said evidence of PW-2 about the act of the accused in throwing the stones on the head and face of the deceased and carrying the knife along with him, which according to the prosecution, was used in the commission of the crime, has been further corroborated by the prosecution witnesses, more particularly, the evidence of PWs.5, 6 and 11, which evidence have been reflected above.
34. As observed above, PW-6 - a pancha to the inquest panchanama, has not only stated that the inquest panchanama was drawn in his presence, but, also has stated as to what injuries he noticed on the dead body of the deceased Manikappa. He has specifically stated that he noticed injuries on the stomach and also injuries on the forehead on the dead body of Manikappa. PW-2 has also stated that accused threw stones on the head and face of Crl.A.No.200078/2014 39 Manikappa. Thus, the evidence of PW-6 corroborates the evidence of PW-2.
35. In addition to the above, PW-5 Dr.Sangeeta, who conducted the autopsy over the dead body of the deceased, clearly mentions that she has noticed the following external injuries on the dead body of Manikappa :
(i) Head injury with crush deep laceration over the right frontal region, tempro perital and oxcipatal region, that was at the bone depth, with the expulsion of the part of the brain.
(ii) Deep lacerated wound measuring 5 x 3 x 2 cm x bone depth over frontal aspect of right side of forehead, with fractures.
(iii) Deep lacerated wound measuring 10 x 3 x 2 cm on right tempro parietal region of scalp with expulsion of brain, blood clot.
(iv) Deep lacerated wound measuring 6x3x2 cm x bone deep over occipital region of scalp bleeding.
(v) Stab injury measuring 3x2 cm x 5 cm on the anterior abdomen wall 1 inch above the Crl.A.No.200078/2014 40 umbilicus with expulsion small intestine at the injury level with perforation for small intestine over multiple size measuring 1 cm x 1 cm, blood clot.
The above injuries mentions that the deceased sustained crush injury on the head, including deep laceration over the right frontal region. There was also fracture of bone in the forehead region. More importantly, on right tempro parietal region of scalp, there was expulsion of brain. A suggestion was made to the very same doctor in her cross-examination from the accused side that the stones at MO-1 to MO-3 are heavy stones, the witness has admitted the said suggestion as true. That means, the accused by himself has suggested to the doctor that the stones at MO-1 to MO-3 are heavy stones. The said doctor has opined in her examination-in-chief that the injuries found on the deceased on the head and face, as described above, are possible to be caused when a man is assaulted with MOs.1 to 3. Therefore, what is the nature of the stone, though neither PW-2 nor PW-5 have Crl.A.No.200078/2014 41 themselves stated in their examination-in-chief, but, the accused himself got the same elicited in the cross- examination of PW-5 by suggesting that those stones were heavy stones. This further go to show that the doctor's opinion that the crush injury, fracture injuries on the scalp and head region, which ultimately has resulted even in expulsion of brain of the deceased, are possible to be caused with MO-1 to MO-3.
Further, the doctor has also noticed a stab injury measuring 3 x 2 x 5 cm on the anterior abdomen wall 1 inch above the umbilicus with expulsion of small intestine at the injury level with perforation on small intestine. Even the inquest panchanama at Ex.P-5 also shows that panchas have noticed the stab injury on the abdomen region near anterior and protrusion of the intestine from the stabbed portion.
Thus, the medical opinion, as well as the opinion of the panchas under inquest panchanama, so also, the evidence of PW-11 that he noticed the injuries on the Crl.A.No.200078/2014 42 abdomen of the deceased corroborates with each other. After giving the description of the injuries, the doctor has also opined that the knife that was sent to her for her opinion, which knife, she has identified at MO-5 in the Court, can cause such type of injury on a person. In that regard, the witness has issued her opinion as per Ex.P-4. She has reiterated the same even in her examination-in- chief.
Thus, the evidence of PW-2 that he saw the accused throwing stones, which means, more than one stone, upon the deceased and inflicting injuries upon the deceased and that he saw the injuries on the head of the deceased, is further corroborated by the medical evidence also. The said medical evidence also corroborates the use of the weapon at MO-5 and MO-1 to MO-3 in the commission of the crime.
36. PW-2 has not stated that he has seen the accused inflicting the stab injuries upon the deceased though he stated that he has seen the accused throwing Crl.A.No.200078/2014 43 stones on the head and face of the deceased. However, the very same witness in the very same evidence has stated that the accused carried the knife along with him. Stating so, the witness has identified the said knife at MO-5. Thus, PW-2 has shown very clearly that though he has not seen the accused inflicting stab injuries upon the deceased, but, he has not only seen the accused carrying the knife with him, but, has identified the said knife at MO-5.
37. The said evidence of PW-2 that accused carried the knife with him stands further corroborated by the evidence of PW-13 and PW-11.
PW-13 the Investigating Officer has stated that, when the accused was produced before him, he summoned the pancha and in his presence, he seized the knife that was produced by the accused by drawing a seizure panchanama at Ex.P-9. PW-11 has also supported the said evidence by stating that it was in his presence, the knife at Crl.A.No.200078/2014 44 MO-5 was seized by drawing a seizure panchanama as per Ex.P-9.
Thus, PW-2, an eye witness, PW-11 a pancha for the seizure panchanama of the knife and PW-13 the Investigating Officer, have all referred to the very same weapon i.e., the knife and identified the same at MO-5. Thus, the seizure of the weapon alleged to have been used in the commission of the crime also stands established.
38. Learned Amicus Curiae for the accused raised another serious point by mentioning that neither PW-11 nor the seizure panchanama at Ex.P-9 mentions about the presence of the blood stains on the knife. A careful perusal of the evidence of PW-11, as well the seizure panchanama at Ex.P-9 shows that neither of it mentions about the presence of the blood stains on the knife. However, the Forensic Science Laboratory report, which is at Ex.P-12, not only mentions about the presence of blood stains on the said knife, but, it also mentions that the Crl.A.No.200078/2014 45 blood stains were present on the blade of the knife and it was human blood belonging to `A' group.
It is nobody's case that after the seizure of the knife under Ex.P-9, it was openly kept as it is or it has been tampered with or even handled in a different manner so as to result in improper or unclear report by the chemical examiner. Ex.P-9 go to show that, immediately after seizure, it was wrapped in a white cloth and sealed and was retained by the Investigating Officer. The evidence of PW-13 go to show that he obtained the Court's permission to retain the said knife and to send it to Forensic Science Laboratory. The Forensic Science Laboratory report at Ex.P-12 shows that after receiving the articles for their chemical examination, they noticed that the seals and the description found on the articles were intact and correspond with the sample seal sent and invoice respectively. Thus, from the moment it was seized till it was subjected to chemical examination, it is shown that the said knife and other articles were not tampered or Crl.A.No.200078/2014 46 mishandled. The chemical examination shows the stains of the blood on the blade of the knife.
Therefore, merely because PW-11 and PW-13 have not spoken about the presence of the blood stains, it cannot be said that there were no blood stains on the knife. There could have been blood stains which have not been noticed by these witnesses or there could have been blood stains of such a small nature which could not have been easily noticed by a naked eye. In such a circumstance, in order to strengthen their contention that the presence of blood stains should have been necessarily described by the pancha to the seizure panchanama and also the Investigating Officer, it was necessary from the accused side to elicit in the cross-examination of the relevant witnesses, who are PWs.11 and 13 in the instant case, that MO-5 the knife bears visible blood stain marks upon it. In the absence of any such elicitation of the details, the revelations made by a Chemical Examiner in his chemical examination, which chemical examination is Crl.A.No.200078/2014 47 meant for exposition and disclosure of several of the important matters, including the aspects which could not have been noticed by a naked eye, since has revealed the presence of blood stains on the blade of the knife and also has clarified that it was human blood of `A' group, the argument of learned Amicus Curiae for the respondent/ accused that the non-mentioning of the presence of the blood stains on the knife by PW-11 creates a doubt in the case of the prosecution, is not acceptable.
On the other hand, the evidence of PWs.2, 5, 9 and 13, coupled with Ex.P-12, establish beyond reasonable doubt that the deceased was inflicted with a stab injury making use of knife at MO-5 and that the said inflicting of stab injury using MO-5 was done by the accused and accused alone.
39. The alleged place of incident, which is said to be the Topenavar land belonging to the deceased on Nandgaon - Jalsingi road, which is within the limits of complainant-Police Station, is not in dispute. In that Crl.A.No.200078/2014 48 regard, the evidence of PW-6, the scene of offence panchanama as per Ex.P-6 which was drawn in his presence and MOs-1 to 3, 4, 6 and 7 which were seized on the spot under the said panchanama, corroborates the evidence of PW-13 that he drew scene of offence panchanama and seized MOs-1 to 3, 4, 6 and 7 from the spot. The unshaken evidence of PWs.6 and 13 and also the evidence of PWs.1 and 2 about the place of offence would establish that the place of the offence was the Topenavar land belonging to the deceased on Nandgaon - Jalsingi road within the limits of complainant-Police Station.
40. The alleged motive behind the commission of the crime appears to be slightly at variations. The prosecution though in its charge sheet alleged that the accused was not happy with the deceased accumulating wealth by earning as a Teacher and increasing his land-holding, but, refusing to share his acquisition of the property with the family of the accused, the same could not gain any support Crl.A.No.200078/2014 49 either in the oral or documentary evidence placed by the prosecution. However, the evidence of the prosecution witnesses, more particularly PW-1, to some extent PW-2 and also to certain extent, the evidence of none else than DW-3, would go to show that the landed property of the father of the deceased was partitioned among the brothers of the deceased, wherein both the deceased and father of the accused had got their respective shares and cultivating them respectively. The evidence of PW-1 that the accused being the son of elder brother of the deceased was not happy with the deceased enlarging the extent of his property has not been categorically denied or disputed. Still, there is no reason to disbelieve the evidence of PW-1 that the accused as the son of elder brother of the deceased had all the reason to feel jealous about his paternal uncle acquiring large number of property. However, the evidence of none of the prosecution witnesses have specifically established a link that it is for the said jealousy, the accused caused the death of his uncle Manikappa. Thus, the said aspect of motive though Crl.A.No.200078/2014 50 attempted to be brought on record by the prosecution, but, could not reach its expected end.
41. In addition to the above, the prosecution through PW-1 and making suggestions to DW-3 in his cross- examination, took up another contention as a defence stating that couple of years prior to the alleged incident, with respect to sharing of the drinking water, there was a dispute between the accused and the family of the deceased. A denial suggestion was made to PW-1 in her cross-examination, so also, DW-3 has not admitted the suggestion made to him from the prosecution side in his cross-examination. Therefore, in the absence of any corroborative evidence, the mere statement of PW-1 with no required details as to the alleged dispute regarding sharing of water and also the said dispute on its face value appearing to be not as a grudge and serious resulting in the murder of a member of a family, that too, two years after the alleged incident, the same cannot be held that the motive is established by the prosecution for the Crl.A.No.200078/2014 51 commission of the crime.
However, the learned Addl.State Public Prosecution in his argument made a submission stating that when there is reliable evidence of ocular witness, the non-establishing of motive goes to the background. In support of his argument, he relied upon a judgment of Hon'ble Apex Court in Khurshid Ahmed -vs- State of Jammu and Kashmir, reported in (2018) ACT 696, wherein the Hon'ble Apex Court with respect to an offence punishable inter alia under Section 302 of IPC and about the concept of motive was pleased to observe in Paragraph-16 of its judgment after referring to its previous judgment in Shivaji Genu Mohite -vs- State of Maharashtra, reported in AIR 1973 SC 55, that motive is an emotion which compels the person to do a particular act. But, in all the cases, it will be very difficult for the prosecution to prove the real motive. The motive is a double edged weapon, when there is a direct and reliable evidence available on record, motive loses its importance. In a case of circumstantial evidence, motive assumes greater importance than in the case of direct evidence. In Crl.A.No.200078/2014 52 a case of direct and compelling evidence, even assuming that no motive is attributed, still the prosecution version has to be examined.
42. In the instant case, even though PW-1 has spoken about the accused not feeling happy with the deceased enlarging the extent of his landed property and also has spoken about a dispute in connection with sharing of the water said to have arisen about two years prior to the incident, but, they cannot be considered as an established motive behind the alleged commission of the crime. On the other hand, the evidence of none else than PW-2, who was an eye witness to the alleged partial act of the accused in throwing heavy stones upon the deceased, which has resulted in the deceased sustaining fatal injuries and the evidence of PW-2 further being corroborated by the evidence of other witnesses, including the evidence regarding seizure of knife and chemical examination report on the said knife, suffice it to say, the evidence of ocular witness i.e., PW-2 (CW2) overtakes the absence of establishment Crl.A.No.200078/2014 53 of motive behind the act of the accused in the commission of the crime. As such, non-establishment of the motive that was contended in the charge sheet would not take away the case of the prosecution in proving the alleged guilt against the accused.
43. The defence of the accused, who has not denied or disputed the place, nature of death of the deceased and the relationship of accused with the deceased, was only that he (accused) has not committed the alleged act and that he was not in the place of the incident as at the time of the incident. Thus, it is the plea of alibi the accused has taken in the form of suggestions made to PW-1, PW-2 and PW-13 in their cross-examination. However, all these three witnesses have denied the suggestion of alibi. Thus, it is for the accused to establish his defence of alibi. In that regard, the accused who did not whisper about the alibi in his statement recorded under Section 313 of Cr.P.C., but, examined three witnesses.
Crl.A.No.200078/201454
44. As observed above, DW-1 and DW-2 are said to be his hostelmates and DW-3 is accused by himself. A careful reading of evidence of DWs.1 and 2, which is almost identical in their entirety, would go to show that accused was staying in the hostel and on the date of the incident i.e., on 05.02.2013, the police visited their hostel in the evening and enquiring the whereabouts of the accused and identifying the accused, took the accused with them stating that one of the brother of the accused had committed suicide on the same day.
The younger brother of the accused having committed suicide on the same day is not in dispute. Even the accused as DW-3 has also stated about the same in his evidence. However, a careful reading of evidence of DW-1 and DW-2 would only go to show that the police went to their hostel in Bidar in the evening of the said day and took the accused with them. Even according to PW-13, the Investigating Officer, the accused was produced before him at 8.30 p.m. in the evening. PW-10, the Police Crl.A.No.200078/2014 55 Sub-Inspector says that he arrested the accused near Dubalgundi cross at 8.00 p.m. Assuming for a moment that accused was not arrested at Dubalgundi cross, still, his arrest would be only in the evening and his production before PW-13 was at 8.30 p.m. Thus, the presence of accused even if it is taken as in the hostel premises, it would be only in the evening, but, not at the time of commission of crime. None of the witnesses, including DW-3 himself, have stated that as at the time of the alleged crime, which according to the prosecution has taken place at 1.45 p.m. on 05.02.2013, the accused was in the hostel. It is nobody's case that the place of the incident and the hostel are at a distant place so that it is impossible for one to travel from the place of the incident to the hostel.
However, these are all the hypothesis and if the accused could create doubt about his presence in the place of offence, he is entitled for the benefit of doubt. But, in the instant case, the defence of alibi stands smashed by the prosecution evidence in the form of Crl.A.No.200078/2014 56 Exs.P-13 and P-14, which are nothing but the Attendance Certificates shown to have been issued by the college authorities about the absence of the accused on the two consecutive dates i.e., on 04.02.2013 and 05.02.2013. Ex.P-13 issued by the Principal, Siddartha Arts and Commerce Degree College, Bidar, where admittedly the accused was pursuing his B.Com. third semester course, as stated by him in his evidence as DW-3. Ex.P-13 gives a detailed account in a tabular column about the attendance of both the accused and DW-1, his hostelmate, which shows that accused had remained absent from attending classes on all the three days i.e., on 4th, 5th and 6th of February 2013, which has spread into six periods on each day. Even according to DW-3, his class hours were from 8.00 a.m. to 11.00 a.m. After 11.00 a.m., he had no classes. Still, even for the classes from 8.00 a.m. to 11.00 a.m., on all these three days, more particularly on 4th and 5th February 2013, which were the previous day and the day of the incident, the accused had remained absent from attending the classes. The said certificate, Crl.A.No.200078/2014 57 apart from being signed by the Principal, is also shown to have been signed by the respective Teachers in six different places in six periods.
45. Similarly, Ex.P-14 which is also a letter written by the Warden of the hostel where the accused was said to be staying, go to show that the accused was staying in Room No.2 of their hostel and he had remained absent in the hostel from the date 04.02.2013 to 06.02.2013. Even according to DW-3, the hostel Warden used to visit the hostel everyday. When the said Warden who admittedly was visiting the hostel everyday has noticed the absence of the accused all those three days, including the date of the incident, had given a certificate as per Ex.P-14 to the Investigating Officer, there is no reason to disbelieve either Ex.P-13 or Ex.P-14.
46. Learned Amicus Curiae for the accused no doubt contended that the author of the said documents since have not been examined, the said documents cannot be accepted, but, the said contention is not acceptable for Crl.A.No.200078/2014 58 the reason that, when the said documents were confronted to DW-1 in his cross-examination, he did not raise any objection. The witness neither denied nor disputed the said documents or its authenticity. At least, even in the cross-examination of PW-13 also, the authenticity of the said documents was not categorically disputed. In such an event, when even according to DW-3 - the accused, he was studying in Siddartha Arts and Commerce Degree College, Bidar, and staying in hostel corresponding to the college, the documents issued by the said college and the Warden of the hostel finds no reason to disbelieve them or suspect them. As such, the contention of the accused that he was not in the spot of the offence at the time of the incident and that he was in the hostel at Bidar on the relevant day, is not acceptable.
47. Added to the above, it also cannot be ignored of the fact that the accused who has taken a specific plea of alibi as his sole defence in the matter, has at several places taken only contention that as on the date of the incident, he was in the hostel and that he was arrested Crl.A.No.200078/2014 59 from the hostel premises. However, the case of the prosecution is that the Police Sub-Inspector i.e., PW-10 traced and arrested the accused at Dubalgundi cross and apprehended him at 8.00 p.m. on 05.02.2013. The said accused who took the defence of his presence only at the hostel in Bidar has suggested to PW-10, the very same Police Sub-Inspector in his cross-examination that the accused was arrested on that evening from his house. He has not disputed the timings of his arrest as at 8.00 p.m. A person physically and actually cannot be at two places at the same time. Thus, the accused cannot be at his house and also in the hostel at Bidar on the same day and at the same time. Therefore, the plea of alibi taken by the accused itself suffers with great contradiction. Thus, apart from failing to establish the defence of alibi, the accused has also shown that his plea of alibi in its inception is erroneous and contradictory. As such, the defence taken up by the accused of alibi also does not sustain. Crl.A.No.200078/2014 60
48. However, the trial Court without noticing the convincing evidence placed by the prosecution in proving the alleged guilt against the accused, has chosen to pick up few stray sentences from the evidence of prosecution witnesses and particularly, few words regarding the place of presence of the motorcycle and non-seizure of the motorcycle etc., In the said process, it failed to notice the cordial principle of law that the evidence of witnesses has to be read, understood and analysed in its entirety and stray words or sentences cannot be isolated from the main context of what the witness is stating before the Court. In that regard, a judgment relied upon by the learned Addl.State Public Prosecutor in support of his arguments requires a reference. The Hon'ble Apex Court in Rakesh and another -vs- State of Uttar Pradesh, reported in (2021 7 SCC 188, in Paragraph-14 of its judgment was pleased to observe as below :
" 14. ......... One is required to consider the entire evidence as a whole with the other evidence on record. Mere one sentence here or there and that too to the question asked by the defence in the Crl.A.No.200078/2014 61 cross-examination cannot be considered stand alone. ............"
Thus, a reading of evidence of PW-1 and PW-2 in their entirety, which are further corroborated by the evidence of other prosecution witnesses as analysed above, makes it very clear that the prosecution has proved the alleged guilt against the accused. The non- seizure of the alleged motorcycle, as analysed above, would not result as fatal to the case of the prosecution. Its further observation that PW-13 has stated about presence of motorcycle near the spot of the offence, whereas, PW-10 has stated that within the vicinity of 10 to 15 ft. of the spot, he did not notice the motorcycle, is also not a variation, for the reason that, statement of PW-10 was confined to a vicinity of 10 ft. from the place of the incident, whereas, no such boundary was there when PW-13 stated that he noticed the presence of motorcycle near the spot of the incident. However, the trial Court without noticing these aspects and without reading the evidence of material prosecution witnesses in its entirety Crl.A.No.200078/2014 62 has chosen to isolate the words and sentences and brought out certain alleged discrepancies though they were unfounded in the case of the prosecution which has resulted in it passing an erroneous judgment of acquittal of the accused for the offence punishable under Section 302 of IPC.
49. However, we find no material to hold the accused guilty of the offence punishable under Section 504 of IPC. As such, it is only to the extent of maintaining the judgment of acquittal under Section 504 of IPC, the impugned judgment requires no interference, whereas the judgment of acquittal of the accused for the offence punishable under Section 302 of IPC since now found to be erroneous and the finding of the trial Court ought to have been the other way, we find reason to interfere in the judgment of acquittal of the accused for the offence punishable under Section 302 of IPC.
50. Accordingly, we proceed to pass the following: Crl.A.No.200078/2014 63
ORDER
(i) The Criminal Appeal is allowed in-part.
(ii) The judgment of acquittal passed by the learned Addl.District and Sessions Judge, Bidar, in S.C.No.107/2013, dated 20.03.2014, stands set aside only to the extent of accused found not guilty of the offence punishable under Section 302 of IPC.
(iii) The accused - Shivanand, son of Laxuman Kalgonda, residing at Nandgaon, Humnabad Taluk, Bidar District, is convicted for the offence punishable under Section 302 of Indian Penal Code.
(iv) The impugned judgment of acquittal of the accused for the offence punishable under Section 504 of IPC remains unaltered.
Heard the learned counsels from both side regarding the sentence.
Crl.A.No.200078/201464
It is the sentencing policy that the order of sentence must be proportionate to the gravity of the proven guilt. It must be neither exorbitant nor for name sake.
In the instant case, the trial Court has acquitted the accused for the offence punishable under Section 302 of IPC. Learned Amicus Curiae for the accused submits that the accused is an young aged youth who has lot of desire, ambition and dream in his life, as such, he must be given an opportunity to carry out his ambition and have a family life as desired by him. With this, he requests for the lowest possible punishment to be awarded to him.
Per contra, learned Addl.State Public Prosecutor submits that it is not only the offence committed by the accused is heinous in nature, but, the manner how the accused has committed and against whom is also very heinous. As such, the accused deserves maximum punishment affordable for the proven guilt. Crl.A.No.200078/2014 65
The present case is not the one of the rarest of the rear case attracting maximum punishment which can be awarded for the proven guilt punishable under Section 302 of IPC. Considering the age of the accused, his future life and also of the fact that he was initially acquitted by the Sessions Judge's Court under the impugned judgment, we are of the view that, accused has to be sentenced proportionately to the gravity of the proven guilt keeping the facts and circumstances of the case also in mind.
Accordingly, we proceed to pass the following:
ORDER ON SENTENCE [1] The accused - Shivanand, son of Laxuman Kalgonda, residing at Nandgaon, Humnabad Taluk, Bidar District, is sentenced to undergo simple imprisonment for life and to pay a fine of `20,000/- (Rupees Twenty Thousand Only), in default of payment of fine, to undergo simple imprisonment for further Crl.A.No.200078/2014 66 period of six months, for the offence punishable under Section 302 of IPC.
[2] The period of, accused undergone in judicial custody, if any, in the matter, be given set off under Section 428 of the Code of Criminal Procedure, 1973.
[3] The respondent/accused shall voluntarily surrender before the Sessions Judge's Court within 30 days from today and to serve the sentence.
MO-1 to MO-11 since held to be worthless, be destroyed only after the period of appeal and in the absence of any communication of preferring any appeal in the matter.
The registry to furnish a free copy of this judgment to the respondent/accused immediately. Crl.A.No.200078/2014 67
The Court, while acknowledging the services rendered by the learned Amicus Curiae for the respondent - Sri.B.C.Jaka, recommends an honorarium of a sum of not less than `6,000/- payable to him by the Registry.
The Registry is directed to transmit a copy of this judgment to the learned Sessions Judge's Court along with its records immediately.
Sd/-
JUDGE Sd/-
JUDGE bk/