Karnataka High Court
Venkatachalaiah vs State Of Karnataka on 4 September, 2000
Equivalent citations: 2001CRILJ1433, 2001 AIR - KANT. H. C. R. 633
Author: B. Padmaraj
Bench: B. Padmaraj, S.R. Bannurmath
JUDGMENT B. Padmaraj, J.
1. Heard the arguments of the learned counsel for the appellant and the learned High Court Government Pleader for the respondent/State and carefully perused the material placed on record by the prosecution with their assistance.
2. This appeal by the appellant Venkatachalaiah, who is the sole accused in the case, is directed against the judgment and order of conviction passed by the trial Court, whereby the appellant has been convicted Under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life, for having caused the death of one Gowramma on 28-1-1995 at about 11.30 a.m. by the side of a road situated behind the house of the appellant at Manchanagondanahalli village within the limits of Kyatasandra Police Station. The appellant is alleged to have assaulted the deceased or committed assault on her with a chopper M.O.5.
3. The incident in question took place on 28-1-1995 at about 11.30 a.m. in the morning by the side of a road situated behind the house of the appellant at Manchanagondanahalli village. Both the accused and the deceased had been residing in the Harijan colony of that village during the relevant time of this incident. Both of them belonged to Harijan community. The deceased is one Smt. Gowramma, wife of Thimmaiah, P.W. 4, aged about 35 years. P.W. 4 Thimmaiah is her husband and P.W. 2 Varalakshmi and P.W. 3 Nagarathnamma are their daughters aged about 15 and 18 years respectively. The deceased and her husband P.W. 4 along with their two daughters P.Ws. 2 and 3 were residing together in a house situated in the Harijan colony of their village. The accused Venkatachalaiah is aged about 24 years and was a bachelor at the relevant point of time. It is alleged that since about two or three years prior to the incident, the accused had illicit intimacy with the deceased Gowramma and in that regard panchayaths were also held in the village and consequent thereupon the deceased had been restricted from meeting the accused due to which it is stated that the accused had some sort of frustractlon and dissatisfaction. Earlier to this, the accused was a frequent visitor to the house of the deceased and P.W. 4. But, after P.W. 4 entertained some suspicion about the relationship between the accused and the deceased, ,he had convened a panchayath and thereafter the accused was not entertained into the house of the deceased and also the deceased had been restricted from meeting the accused. Obviously therefore the deceased had discontinued or severed her relationship with the accused. The accused who was not satisfied or dissatisfied with the said conduct of the deceased, had developed some sort of dislike towards the deceased. While this was so, it is the case of the prosecution that on 28-1-1995 at about 11.30 a.m. in the morning, when the deceased was trying to board the bus In order to go to her parental place called Mookanaballipatna village, the appellant herein came there with a weapon called mochu' and having dragged her from the bus, he took her to a certain distance and committed assault on her with the chopper and thereby caused her death. P.Ws. 1, 2, 5 and 9 claim to be the eye-witnesses to the incident. P.W. 1 Basavaraju besides being an eye-witness to the incident is also the complainant, who had lodged the first information in respect of this incident to the Police Sub-Inspector P.W. 15 at Kyatasandra Police Station situated at a distance of about 6 k.m. from the place of the incident, at about 12.15p.m. on 28-1-1995 in respect of this incident which is as per Exhibit P. 1. P.W. 3 is a witness who speaks to the fact of the deceased having left the house at about 11.00 a.m. on that day in order to go to her parental house and subsequently after hearing the sound of corn-motion, when she came out of the house in order to see what it is, she saw this accused running away towards Kesaramadu village holding a chopper in his hand. P.W. 2, the other daughter of the deceased, had followed the deceased to the bus stop. P.W. 4 is the husband of the deceased and he speaks to the fact of suspecting the relationship of the accused with the deceased and convening a panchayath in that regard and Imposing restrictions thereafter on his wife not to meet the accused. P.Ws. 6 and 8 are the panchayathdars, who had participated in the panchayath that was convened by P.W. 4 regarding the illicit relationship between the accused and the deceased, wherein they had advised both the accused and the deceased not to meet each other. P.W. 6 is also a panch for the inquest proceedings held on the dead body of the deceased as per the inquest report. Exhibit P-3. P.W. 5 besides being an eye-witness to the incident is also a panch for the spot panchanama, Exhibit P-2. P.W. 7 is a co-panch of P.W. 6 for the inquest proceedings held on the dead body of the deceased. P.W. 9, who claims to be an eye-witness to the incident, is a neighbour of the accused and he figures as an eye-witness in the FIR, Exhibit P-1. He is a younger brother of P.W. 4. P.W. 10 is the Doctor who conducted post-mortem examination on the dead body of the deceased as per the P.M. report Exhibit P-4, and has opined that the death of the deceased was due to shock as a result of bleeding from major vessels supplying blood to the brain and other vital organs. According to him, the injury found on the dead body of the deceased was caused by a sharp weapon. He has further opined that the injuries of the type rioted by him in the Post- Mortem Report, Exhibit P-4, can be caused by the weapon of the type M.O. 5. P.W. 11 is the panch witness for the recovery of the weapon M.O. 5 and the blood stained shirt M.O. 9 at the instance of the accused. P.W. 12 is the co-panch of P.W. 11. P.W. 13 is the owner of the bus and P.W. 16 is the Conductor of the bus in question and they have both turned hostile to the prosecution. P.W. 14 is the Head Constable who had apprehended the accused on 29-1-1995 and produced him before the Investigating Officer. P.W. 15 is the PSI who registered the case and initiated the investigation. P.W. 17 is the Investigating Offlceer who took up further investigation of this case from the PSI, P.W. 15, and after completion of the investigation, he submitted charge-sheet to the Court against the accused. P.W. 18 is the Photographer, who had taken photographs of the dead body of the deceased as well as the place of the incident and they are as per Exhibits P-17 to P-21. The accused was arrested by the Investigating Officer P.W. 17 on 29-1-1995 at about 3.30 p.m. and in consequence of the information furnished by the accused as per Exhibit P-14, the shirt M.O. 9 and the chopper M.O. 5 which was used in the commission of the offence, were recovered from the place where they were concealed by the accused under a panchanama Exhibit P-15. The Report of the Chemical Examiner received from the Forensic Science Laboratory, Bangalore, as per Exhibit P-16 would show that the shirt M.O. 9 and the chopper M.O. 5 were stained with blood. M.O. 9 shirt was found to be stained" with blood on its front portion while the chopper M.O. 5 was found to be stained with blood on the blade portion. This is in short the nature of the evidence led by the prosecution before the trial Court in order to establish its case against the accused.
4. The prosecution sought to establish the guilt of the appellant by adducing evidence relating to the homicidal death of the deceased, the motive of the crime, eye-witnesses to the occurrence and the recovery of the blood stained chopper M.O. 5 which was used in the commission of the offence and the blood stained shirt M.O. 9 which was alleged to have been worn by the accused at the time of commission of offence, in pursuant to a voluntary statement made by the accused.
5. Learned counsel for the appellant has vehemently contended before us that the ocular evidence adduced by the prosecution in the case is not consistent with the medical evidence and that further the ocular evidence is wholly unreliable and is inter se inconsistent. He also contended that the hives tigation is highly unfair and it is tainted. With respect of the circumstances regarding recovery of M.Os. 5 and 9, he contended that the evidence is not so convincing and that further the recoveries being effected from an open place, they have no significance in the matter. She/he also contended in the alternative that having regard to the facts and circumstances of the case, the incident in question must be an outcome of grave and sudden provocation and hence the act committed by the accused at the most would come Under Section 304, IPC. He also contended that there only one injury caused on the deceased even according to the Doc- tor who conducted the post-mortem examination and that being so it is a case where the accused could be staled to have committed the offence not Under Section 302, IPC but the one Under Section 304, IPC. He therefore contended that on the facts and circumstances of this case, the impugned judgment and order of conviction made by the trial Court needs interference at the hands of this Court in the appeal.
6. As against this the learned High Court Government Pleader for the respondent/ State has contended that the evidence of the eye-witnesses is quite consistent and creditworthy and hence there is no reason to disbelieve their evidence with regard to the incident in question which took place in a broad day light by the side of a road. He also contended that there was adequate motive for the accused for committing the crime and hence the said incident could not be as a result of sudden and grave provocation and on the other hand it is a cloak for pre-existing malice. He also contended that the circumstances regarding the recovery is clearly established from the evidence of the Investigating Officer as well as from the two panchas and there is no reason to disbelieve their evidence regarding the recovery. He, therefore, contended that the appeal filed by the appellant is devoid of merits and hence it is liable to be dismissed.
7. In the face of the submissions made on both sides, we shall now proceed to examine the evidence placed on record by the prosecution with regard to each of the aforesaid materials in order to find out whether the trial Court was justified in convicting the accused Under Section 302, IPC.
Homicidal death: --
8. P.W. 10 is the Doctor who held autopsy over the dead body of the deceased on 28-1-1995 between 3.30 and 5.30p.m. and had issued Post- Mortem Report as per Exhibit P-4. He found the following injuries on the dead body of the deceased:
A deep lacerated wound on the left side of the neck starting from Thyroid cartilage just above the back of the left ear and the injury measures 5 inches in length and 2 to 3 inches in depth. The major blood vessel, internal jugular, carotid artery supply blood to the head and brain were cut and torn. The left side of vertebral column was open and there was a fractured transverse proc-ess seen. .
9. In the opinion of the Doctor P.W. 10 the death of the deceased was due to shock as a.result of bleeding from the major vessels supplying blood to the brain and to the vital organs by a sharp weapon. According to him, the injury that was found on the dead body of the deceased was caused by a sharp weapon. He has further opined that the injuries of the type noted by him in the Post-Mortem Report, Exhibit P-4, could have, been caused by a weapon of the type of M.O. 5. It has to be stated that the weapon M.O. 5 is a weapon called 'mochu' or chopper which is fairly a heavy cutting instrument when compared to the sickle, knife, etc. The weapon M.O. 5 was not sent earlier to the Doctor P.W. 10 for his opinion and the same being shown to him in the Court and inviting his 'opinion thereon, he has stated that the same is capable of causing injury that was sustained by the deceased. Under the cross-examination the Doctor P.W. 10 has further stated that he had noticed only one injury on the dead body of the deceased. The injuries noted by him could also be caused by a fall on a sharp edged object, according to the Doctor. Except the injuries noted by him in Exhibit P-4, he has stated that he did not notice any other injury on the dead body. He has denied the suggestion made by the defence that the injury was caused on the deceased due to a fall from the moving vehicle on a sharp edged surface.
10. The inquest proceedings over the dead body of the deceased were held by the Investigating Officer P.W. 17, as per the Inquest Report Exhibit P-3. During the inquest proceedings he found that there was a sharp cut-mark measuring about 2 inches on the head and on the left side of the neck and there was a cut injury measuring about 6 inches in length and 1 to 1.5 inches in depth. P.Ws. 6 and 7 are the panchas for the inquest proceedings held on the dead body of the deceased. Thus, the Inquest Report, Exhibit P-3, stands proved from the evidence of the Investigating Officer, P.W. 17, and the panchas, P.Ws. 6 and 7.
11. From the above evidence on record, it can safely be concluded that Smt. Gowramma had died of violence on the day, time and place, as alleged by the prosecution. It has to be stated that the medical evidence placed on record cannot be considered in isolation and it must be taken in conjunction with all the circumstantial evidence on record. It has to be further pointed out that in the cross-examination of P.W. 1, the defence has suggested that the deceased had sustained the injuries due to a fall from the bus and also on account of hitting the stone slabs, which has been clearly denied by the complainant P.W. 1. Likewise, it has been suggested to P.W. 2 in the cross-examination by the defence that on the date of the incident, her father P.W. 4 had assaulted her mother and for that reason, her mother had left the house to go to her parents" house which has also beeen denied by P.W. 2. The evidence of the Doctor P.W. 10 would clearly indicate that the death of the deceased was due to shock as a result of bleeding from the major vessels supplying blood to the brain and other vital organs by a sharp weapon and he has clearly denied the suggestion that the said injuries can be caused to the deceased due to a fall from a moving vehicle on the sharp edged surface. No doubt, the Doctor P.W. 10 had stated that he had seen actually only one injury on the dead body of the deceased. But the inquest proceedings held on the dead body of the deceased would clearly reveal that there were two injuries, one on the head and the other on the neck. Of course, the fatal injury was on the neck. Even the photographs of the dead body of the deceased taken by the photographer as per Exhibits P-17 to P-21 would reveal that there was one injury on the head also besides the fatal injury on the neck. It may be that the injury on the Head could have been lost sight of by the Doctor due to the presence of the long hair on the head of the deceased. So, that by itself is not sufficient to discard the medical evidence of the Doctor P.W. 10. Therefore, on the facts and circumstances of the case, it is more realistic to conclude that the death of the deceased was homicidal and not an accidental one as sought to be suggested by the defence.
Motive: --
12 . What led to the killing of the deceased Gowrarnma w/o P.W. 4, aged about 35 years, had connection, according to the prosecution, with the appellant, having an illicit intimacy with the deceased. It may be stated that the deceased and the accused both belong to Harijan community and they were residents of a Harijan colony in Manchanagondanahalli village, Golur Hobli, Tumkur taluk. The deceased Gowramma was married, while the appellant was a bachelor aged about 24 years. P.W. 4 is the husband of the deceased and P.Ws. 2 and 3 are their daughters aged about 15 and 18 years respectively. P.W. 4 has stated in his evidence that the accused used to visit his house, but he was not satisfied with the conduct and behaviour of the accused towards his wife deceased Gowramma. He was suspecting illicit intimacy between the accused and the deceased. He had complained in this regard to the elders of the village. In that connection, a panchayath was also held prior to the death of the deceased, wherein the elders of the village viz., P. Ws. 6, 9 and others had particplated and suitably advised the appellant not to visit his house (the house of P.W. 4). But inspite of that, he says that the accused tried to meet his wife when she was going to the shop. Under the cross-examination, he has stated that he had convened a panchayath as he was suspecting the chastity of his wife and subsequently, he was also not happy with his wife.
13. P.W. 6 Paramashivaiah was a member of the village panchayath. He has stated in his evidence that about 3 or 4 months prior to this incident, a panchayath was held in the village regarding the alleged illicit relationship between the accused and the deceased, which was attended by him, P.W. 8 and the other members of the Harijan colony. The panchayathdars advised both the accused and deceased Gowramma not to meet each other and subsequently the incident in question took place. Under the cross-examination, he has stated that normally the panchayath will be held in the village under his leadership. He has stated that they never asked the accused to leave the village. He has clearly denied the suggestion that after the panchayath, he was not at all in good terms with the accused. He has stated that he cannot given the date of the panchayath.
14. P.W. 8 Syed Ibrahim is another panchayathdar who had participated in the said panchayath held in connection with the illicit relationship between the accused and the deceased. He was also a member of the panchayath. He has stated in his evidence that in connection with the illicit relationship between the accused and the deceased Gowramma, a panchayath was held in which himself and P.W. 6 had participated/The panchayath was attended both by the ac-cused and the Gowramma and the villagers and a decision was taken in the panchayath to the effect that the accused shall not visit the house of the deceased Gowramma and so also Gowramma should not go to the house of the accused and that further they should not talk to each other. Under the cross-examination he has further stated that he cannot give the exact date on which the said panchayath was held. He was not told or informed by P.W. 4 that even after the panchayath; the accused and his wife continued their relationship and for that reason he wanted to drive away his wife from the house.
15. Both P, Ws. 6 and 8 belong to Manchanagondanahalli village and they have been residing in the said village since long. Even according to the defence, they are respectable persons in the village. There is absolutely no reason to doubt or discredit their evidence regarding the panchayath being held in connection with the illicit, inti-ma.cy between the accused and the deceased and a decision being given by the panchayathdars in the manner as aforesaid.
16. PW-1 Basavaraju is also a resident of the same village. He has stated In his evidence that there was Illicit relationship between the accused and the deceased and. the said relationship was there for about 2 years prior to the incident. In this connection panchayaths were held by the elders of their village and in the panchayaths, the elders had advised the accused not to go to the house of the deceased Gowramma. But in-spite of it, the accused tried to outrage the modesty of the deceased on one or two occasions. He therefore says that under the circumstances, the accused had committed the murder of the deceased Gowramma. There appears to be no serious cross-examination on this aspect of the case spoken to by P.W. 1, by the defence. He has clearly denied the suggestion that the accused was a witness in the case filed against him, alleging that he tried to outrage the modesty of a certain woman. There is nothing on record to show that the accused was a witness in this case. Even the accused did not say this fact in his statement Under Section 313, Cr.P.C.
17. P.W. 2, the daughter of the deceased, who was aged about 15 years at the time of her evidence in Court has stated that she knows the accused, who is also a resident of Harijan colony of Manchanagondanahalli and he used to visit their house. Under the cross-examination, she has clearly denied the suggestion that her mother and father were not on cordial terms with each other and they were always found quarreling with each other. She has also denied the suggestion that on that fateful day, her father had assaulted her mother and for that reason alone, her mother had left the house to go to her parental house.
18. P.W. 3 is another daughter of the deceased, aged about 18 years at the time of her evidence in Court. She has stated in her evidence that she knows the accused who is also a resident of Harijan colony of their village and he used to come to their house and was calling her mother as an aunt. She has further stated that about 3 ,days prior to the incident, she had matured and for that reason her father had asked her mother to go to her parental house and convey the news to them.
It is in that connection, her mother had left the house on that day at about 11 a.m. in the morning. Under the cross-examination, she has clearly denied the suggestion that her mother died on account, of the injuries sustained by her due to a fall from the moving bus and that taking advantage of the same, her father had got filed a false complaint against the accused through P.W. 1. She would however admit the fact that they were not on good terms with the accused after the panchayath was held in the village.
19. In the cross-examination of P.W. 5, it is elicited on behalf of the accused that he had attended the panchayath of the elders of the village. Then it was suggested to him by the defence that he is not in good terms with the accused after the panchayath and that further, after the said panchayath, the accused was prevented from entering the village, which suggestions have been clearly denied by P.W. 5.
20. Further in the FIR Ex. P-1 lodged by PW-1 with the Police, it is mentioned that since about 2 or 3 years prior to the incident, the accused was having illicit intimacy with the deceased and in that regard the panchayaths were held In their village and thereafter the husband of the deceased had restricted her from meeting the accused and that the accused who did not relish this, had caused the death of the deceased. It is stated that if the deceased is not available to him, she should not be available to anyone. This is the kind of motive alleged in the FIR Ex. P-1 given by the complainant P.W. 1 at the earliest point of time.
21. The above evidence or the materials placed on record would show that the deceased Gowramma who was aged about 35 years and a mother of two grown up daughters had some sort of illicit intimacy with the accused, who was a bachelor and aged about 24 years, and that when their relationship became public, it is quite likely that the deceased Gowramma had tried to discontinue or severe her relationship with the accused, especially when her husband P.W. 4 came to know about their relationship or started suspecting her chastity. In a murder trial, even if motive is not proved, if the evidence of the eye-witness is accepted, the question of motive pales into insignificance and becomes absolutely academic. But it must be remembered that lust for woman or a sexual matter is a very sensitive matter. There are a number of cases resulting in serious crimes over trivial matters. Various persons react differently in similar circumstances and one cannot therefore exclude the possibility of the appellant in the present case having reacted very sharply when the deceased Gowramma tried to discontinue or severe her old relationship with the accused. When the prosecution has succeeded in showing the possibility that there was some reason for the accused to feel dissatisfied or to become frustrated by the behaviour of the deceased Gowramma towards him, the inability to further put on record the manner in which such ire would have swelled up in the mind of the accused to such a degree so as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. Motive for doing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murder has been committed without any known or prominent motive. Be that as it may. We feel that this is a case where the prosecution has succeeded in showing that the accused had some ire or dislike or dissatisfaction towards the behavioral attitude of the deceased Gowramms towards the accused after the panchayath. It appears to be a case of frustrated lover and reluctant beloved. The love affair or illicit intimacy got swerved to the wrong side and sank into a tragedy. The female partner in the affair as it often happens becomes the victim of the tragedy. One cannot fathom, the mental disposition of the assailant, nor could it rule out some cause of immediate provocation for the assailant. It would be known only to the deceased and the assailant. The deceased is not alive to tell to the Court what was that provocation. The accused did not however disclose it to the Court. So it is not ,possible to accept the contention that the motive attributed by the prosecution is either highly inadequate or insufficient to liquidate the deceased.
Eye witnesses :-
22. The Central evidence against the appellant consists of the statements of P.Ws. 1,25 and 9, who claim to be the eyewitnesses to the occurrence. P.W. 1 besides being an eye-witness to the incident is also a complainant, who had lodged the FIR to the Police as per Ex. P-1. He has stated in the course of his evidence that on that relevant day, at about 11 a.m., he was on the road leading from Kothamaranahalli to Tumkur. At that time, Rajalakshmi bus came from the direction of Kothamaranahalli, and the said bus stopped near the bridge. Some persons got into the bus. The deceased Gowramma came there from Harijan Colony to board the bus. At about the same time, the accused also came there from the direction of his house holding a chopper. When the deceased Gowramma was in the process of boarding the bus, the accused dragged her from the bus and took her near a drainage behind his house where he committed assault on her with the chopper. He assaulted the deceased with chopper on her head. On seeing the same, both he and PW-2 went there. The accused further assaulted the deceased with chopper on the left side of her neck. The deceased Gowramma who after sustaining serious bleeding injuries to her person, fell down to the ground. In the meanwhile, PW-9 also came there. On seeing their arrival to the spot, the accused ran away from the scene of incident along with the weapon. He has stated that the accused ran towards Kesaramadu village behind his house. Thereafter, he along with P.W. 9 and one Kempaiah C.W. 5 removed the dead body of the deceased from the drain and kept it on the street located in between the house of the accused and PW-4. They put water into the mouth of the deceased, but by then, the deceased had already expired. By that time, many other persons of the locality including C.Ws. 6 and 7 came there. Thereafter, the dead body of the deceased was shifted to her residence. Then, he went to the Police Station at Kyathasandra and lodged his complaint as per Ex. P-1. The PSI P.W.-15 has stated that on 28-1-95 at about 12.15p.m., P.W.-l appeared before him and lodged a complaint as per Ex. P-1 and on the basis of which, he had registered the case and took up investigation. It has to be stated that the incident in question took place at about 11.30 a.m. and a complaint was lodged at the jurisdictional police station situated at a distance of about 6 Kms. from the place of incident at about 12.15 p.m. by the complainant P.W. 1. That means, the FIR was lodged to the police within 45 minutes of the incident. The version of P.W. -1 regarding the occurrence gets a very stable corroboration from the FIR Ex. P-1 which was lodged by him within 45 minutes of the occurrence. In such a situation, the prompt and early lodging of the first information to the Police by the complainant P.W.-l with all its vivid details gives us an assurance regarding the truth of his version in Court. P.W.-l was from Manchagondanahalli village and he knew both the accused and the deceased. He had also pointed out the place of incident to the Police where a spot panchanama was recorded as per Ex. P-2 and he has attested the same at Ex. P-2(a). He also identified the chopper MO-5 with which the deceased had been assaulted by the accused. He has denied the suggestion made by the defence that the accused was a witness in the case filed against him alleging rape. As we have already stated, there is nothing on record to show that the accused had deposed against the complainant P.W.-l in that case. Further, he cannot be described as an interested witness in the case. There cannot be any doubt that having regard to the fact that the incident in question took place in the broad day light by the side of the road, the only natural witnesses who could see the assault would be the persons standing on the road at that time. He cannot even be called as a chance witness because the incident in question took place by the side of a road in a public place. There is nothing on record to show that the complainant P.W.-1 had any grudge against the accused to falsely implicate him in such a ghastly crime. Nothing has been elicited in the cross-examination of P.W.-l to impeach his testimony. That being so, his evidence cannot be discarded merely on the ground that there was a criminal case filed against him. When the incident in question had occurred at the time when he was standing on the road, he cannot be termed as a chance witness. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court . reported in the case of Ramanbhai Naranbhai Patel v. State of Gujarat in 1999 Cri LJ 5013. It is no doubt true that he has stated that he had not tried to rescue the deceased. Perhaps the first reaction of him was to remain stunned for a while particularly after seeing the accused acting in such a cruel manner holding a lethal weapon. If P.W.-l or others did not dare to go near the accused, then, how can that conduct be dubbed as unnatural. The Court cannot expect a set of reaction from the eye-witnesses on seeing the incident like murder. Hence, a reaction not improbable or inconceivable from any human being in similar situations cannot be dubbed as unnatural. As we have already stated, it is not unnatural for a villager like P.W. -1 to stand on the roadside near the bus stop at that hour of the day. He had no reason to falsely implicate the accused nor was he interested in any of the prosecution witnesses. He knew the accused as well as the deceased. He has withstood the test of cross-examination. Consequently, in our view, his evidence needs acceptance. It was suggested to him in the cross-examination by the defence that the deceased had sustained injuries due to a fall from the moving bus and on account of her hitting against a stone-slab, which suggestion has been clearly denied by the complainant P.W.-l. Even the said suggestion made by the defence to P.W.-l would indicate that the incident in question had occurred while the deceased was in the process of boarding the bus and that the incident could have been seen by the complainant P.W.-l. Further, the possibility of sustaining such injuries due to a fall besides being negatived by the medical evidence in the case, it does not even appeal to the common sense if one were to look at the photographs of the dead body of the deceased.
23. PW 2 Varalakshmi is the daughter of the deceased. She has stated that on that relevant day, she was in the house along with her elder sister and mother. Her father PW 4 had gone for coolie work asking her mother to go to Mokanahallipatna Village to inform her parents that PW 3 had matured about three days back. On that day, her father had left the house at about 9 am in the morning. She has further stated that at about 11 or 11.30 am, the bus came from Tumkur as it returned back from Kothamaranahalli. On its return trip, the bus had stopped near the bridge. Their house is at a short distance from the place, where the bus was stopped. After seeing the bus, her mother left the house to board the said bus and she had also followed her mother. At that time, her elder sister PW 3 was alone in the house. She has further stated that when her mother was about to board the bus, the accused came there and dragged her mother from the bus and took her near a drain situated behind his house and assaulted her mother with a matchu on the head. At that time, she raised cries. On hearing her cries and shouts, PW 9 and PW 1 came there. The accused further assaulted her mother on the left side of her neck. Her mother fell into the drain and the accused ran away from the scene of incident along with the chopper. Then both PW 1 and PW 9 lifted her injured mother from the drain and removed her to a nearby place. They put water into the mouth of her mother. But by then, her mother was dead. Thereafter, the dead body of her mother was shifted to their house. Subsequently, PW 1 filed a complaint to the police. She has stated that she knew the accused who is also a resident of their Harijan colony and he used to come to their house. In the cross-examination, she has stated that she is now studying in 10th standard and at the time of the incident she was studying in 8th standard. The incident in question took place on a Saturday and on that day, she had not attended the school as her mother had told her to remain in the house. Her statement was recorded by the police on the same day at about 1.30 p.m. The distance from their house to the scene of incident was about 1/4 km. It was not visible from their house. At the time when the incident took place, the bus had already left the spot and proceeded to some distance. She did not try to rescue her mother when she was being assaulted by the accused. She was able to witness the incident from the place where she was standing. She has denied the suggestion that on that day, her father had beat her mother and for that reason, her mother had left the house in order to go to her parental house. Except this suggestion, there is nothing in the cross-examination to disbelieve her evidence in Court. Non-mentioning of the name of PW 2 by the complainant PW 1 in the complaint lodged by him to the police, cannot be a basis for discarding the evidence of PW 2, who has withstood the cross-examination and was examined by the Police within a short time after the incident.
24. Now we shall advert to the evidence of PW 3 who is another daughter of the deceased. No doubt she is not an eye-witness to the incident. But she is a circumstantial witness who speaks to the facts immediately prior to the incident and also subsequent to the incident. She has stated in her evidence that she knew the accused who was coming to their house. Her father is a coolie. About 3 days prior to the incident, she had matured and for that reason, her father had asked her mother to go and inform this fact to her parents at Mookanahalli patna. After so telling to her mother, her father left the house to go for coolie work. After her father left the house, herself, her mother and her sister PW 2 were only present in the house. At about 11 a.m., on that day, her mother left the house to go to the bus stop. Her sister PW 2 had also followed her mother to the bus stop. Within a short while thereafter, she heard the noise or sound of commotion and she came out of the house in order to see what it is. At that time, she saw this accused running towards Kesaramadu village holding a matchu in his hand. Later, the dead body of her mother was brought to the house. Her mother had sustained injuries on her head and on the left side of her neck. The police had visited their house on the same day and questioned her. Under the cross-examination, she has stated that on that relevant day, her sister PW 2 had not attended the school. It is no doubt true that she has stated that she does not remember whether in her statement made before the Police she has stated that PW 2 had followed her mother to the bus stop on that day. Then, it was suggested to her that she is deposing falsely in Court that her sister had followed her mother. But. then, it has neither been suggested to her that she has not stated this fact to the Investigating Officer, nor it has been proved through the Investigating Officer as an omission. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of State of Kerala v. Babu, reported in 1999 Cri LJ 3491 : (AIR 1999 SC 2161). On the other hand, It has been brought out in the cross-examination of PW 17 by the defence that the eye-witnesses to the incident are Dasappa PW 9, Varalakshmi PW 2 and Venkatesh. It is also elicited in the cross-examination of the Investigating Officer by the defence that the incident took place when the bus was moving. It was a regular route-bus. He has denied the suggestion that PW 2 is not an eye-witness to the incident. It is no doubt true that the Investigating Officer PW 17 has stated that, in Col. No. 21 of the inquest report Ex. P-3, it is not stated that PW 2 had accompanied the deceased to the bus stop. But the inquest report Ex. P-3 would clearly indicate that the statement of PW 2 had been recorded during the inquest proceedings and she has figured as an eye-witness to the incident. Therefore, mere non-mention of the name of PW 2 either in the FIR or in Col. No. 21 of the inquest report cannot be the basis for discarding the evidence of the eye-witness PW 2 which is consistent, trustworthy and corroborated from the other evidence on record including the statement of PWs 1 and 3 given in Court. It is pertinent to note that there is no serious challenge to the statement made by PW 3 that when she came out of her house on hearing sound of some galata, she saw this accused running towards Kesarmadu village holding a chopper in his hand. It is only brought out in her cross-examination that she cannot tell the time when she saw this accused running with a chopper and that they are not in good terms with the accused after the panchayath. Except this, there is not even a suggestion to PW 3 that she did not see the accused running with a chopper towards Kesarmadu village on that day.
25. Thus, the evidence of PW 2 finds substantial support from the evidence of PW 3 on the material aspect of the case.
26. Now coming to the evidence of PW 4, the husband of the deceased, he has stated that on that day, he had left his house around 8 a.m. to go for coolie work and when he had so left the house, his wife and two daughters were in the house, He has further stated that as PW 3 had matured, he had told his wife to go to convey the said news to her parents at Mookanahallipatria village near Gubbi. Under the cross-examination, he has clearly denied the suggestion that on account of a quarrel, his wife was going to her parental house and that she died due to a fall from the moving bus.
27. The fact that there was a reason for the deceased Gowramma to come to the bus stop on that date and hour is not in dispute and the incident having occurred near about the place where the bus used to stop, the same being witnessed by the persons who were In the near vicinity, is quite natural and probable.
28. PW 9 is the elder brother of PW 4. He is neighbour of the accused. He has stated that on that day, at about 11.30 a.m. he had gone to the bus stop of their village to catch Rajalakshmi bus. But he missed the bus'on that day. Then, he saw the accused assaulting Gowramma with a matchu when she was lying in the drainage. He saw the accused assaulting with a matchu on the rieck' of the deceased. In the meanwhile, Basavaraju and Kempaiah came there and they all shifted the deceased Gowramma near her House. He has also stated that immediately after assaulting Gowramma, the accused/ran away along with the weapon. But he did not see in which direction the accused ran away. Under the cross-examination, he has further stated that he is an illiterate person. He had reached the bus stop about 15 minutes after the bus had left the placb. He has also stated that when he saw theideceased Gowramma, she was lying in the charandi and he does not know as to how she had fallen into the charandi. He has seen the accused assaulting the deceased with a chopper. But he did not see as to how many places the accused inflicted with the matchu and on what parts of the body of the deceased Gowramma. He has also stated that by the time he reached there, the accused had left the scene. A careful perusal of his evidence would show that he appears to be an illiterate rustic villager.
29. No doubt PWs 2, 3, 4 and 9 are closely related to each other and were also related to the deceased. But that by itself is not sufficient to discard their evidence. Ordinarily a close relative of the deceased would be the last to screen the real offender and falsely implicate an innocent person.
30. Therefore, for these reasons, we are unable to reject the evidence of PWs 1, 2, 3, 4 and 9 regarding the facts deposed to by them in Court.
31. PW 5 is a resident of A.K. Colony of Manchagondanahalli village. He knew the accused as well as the deceased. He has stated that on that day, he was sitting near the bridge which is situated after the house of PW 1. At about 11 or 11.15 a.m., a bus from Byrasandra side proceeding towards Tumkur stopped near the bus stop of their village which is near his house. At that time, the accused came from the direction of his house and dragged the deceased Gowramma who had come there to board the bus. The bus proceeded further. At that time, PW 1 made hue and cry and he also came running there. By the time he could reach the spot, the deceased Gowramma was lying in the charandi which is situated behind the house of the accused and the accused had disappeared from the scene. The deceased Gowramma had sustained injuries on her head and on the left side of her neck. Thereafter, PW 1, himself and others lifted the body of Gowramma and shifted it to a nearby place and tried to put water into her mouth. But by then, she had already died, .At that time, besides himself, PW 1, PW 2 PW 3, CW 5 Kempaiah and many others were present. Later, the dead body was shifted to the house of the deceased. After this PW 1 went and lodged the complaint before the Police.
32. He was also present when the police conducted the spot panchanama and he has attested the same as per Ex. P-2(b) under which MOS 1 to 4 were seized. Merely because a theft case had been filed against him, his evidence cannot be rejected. He has withstood the cross-examination but nothing substantial has been brought out in the cross-examination to discard his evidence. On the other hand, it is elicited in the cross-examination of PW 5 that he was sitting at a distance of 50 meters from the bus stop and the distance from the bus stop and the house of the accused was about 10 ft. and not 30 ft.as suggested. He has stated that he cannot say in which hand the accused had held Gowramma and dragged her. He has further stated that the accused dragged her to a distance of about 10 ft. from the bus stop. The bus in question had left the bus stop soon after the accused dragged the deceased Gowramma. He has denied the suggestion that he had not at all seen the incident and that he has been deposing falsely at the instance of the police.
33. As we have already noticed, the owner and conductor of the bus who were examined in the case have turned hostile and they did not support the case for the prosecution.
34. It would be of some relevance to note here itself that in the cross-examination of the PSI PW 15, it is elicited that PW 9 is shown as an eye-witness to the incident in the complaint Ex. P-1 lodged by PW 1. It is to be seen therefore that PW 9 has figured as an eye-witness in the FIR lodged by PW 1 at the earliest point of time to the Police.
35. Though the conductor of the bus PW 16 had turned hostile, he has however stated that on that day, the bus had reached the village Manchagondanahalli at about 11.30 a.m. The incident in question having taken place at the time when the deceased was about to board the bus, it would clearly indicate that the incident in question took. place at about 11 or 11.30 a.m. in the morning.
36. It is to be seen therefore that the presence of the above eye-witnesses at the place of occurence is found to be natural. They have no reason to falsely implicate the accused at the cost of any other real culprit. The other evidence available on record including the medical evidence and the inquest proceedings held on the dead body of the deceased and even the photographs of the dead body of the deceased would lend assurance to their evidence in Court. Added to this, there are also the circumstances regarding the recovery of the chopper MO 5 which was used in the commission of the offence at the instance of the accused. It would be of some relevance to note here itself that the theory of the defence that the deceased fell from the bus and sustained injuries besides being negatived from the evidence on record, is also belied from the evidence of the bus conductor PW 16.
37. Once the evidence of the above eyewitnesses is accepted and held to be trust worthy, then there could be no cogent reason for not acting upon their testimony. The fact that the other persons who were present at the spot and had witnessed the occurrence have without any good reason and perhaps with oblique motive, chosen not to state the truth in Court and thereby to obstruct the course of justice would, in our opinion provide a sound reason for accepting the testimony of the prosecution witnesses for sustaining the conviction of the accused. To decline to act upon the testimony of the above witnesses merely because of the absence of other witnesses to corroborate them in Court is to defeat the cause of justice in this case. We find absolutely no reason to reject the evidence of the eye-wlt-riesses. Their testimony leaves no scope for any doubt about the complicity of the appellant in the crime. To us there appears to be an intrinsic ring of truth in the statements of the eye-witnesses, which discloses no infirmity. In the present case, the straight forward nature of the deposition of the eyewitnesses and the fact that the incident in question took place in the broad day light in the public place, their presence at the spot and witnessing the incident appears to be quite natural and probable. Their evidence clearly establishes the guilt against the accused. It has to be stated that unless the discrepancies and contradictions are so material and substantial, the witnesses cannot be condemned and their evidence discarded in its entirety. Thererefore, we find no good ground to discard the evidence of the eye-witnesses to the occurrence in this case.
Recovery of the Chopper :-
38. Each of the above witnesses have consistently stated that the accused ran away from the scene of the incident along with the chopper. In this context the evidence of PW 14 who knew the accused would show that on 28-1-1995, he was deputed along with CW 32 to trace the accused as he was absconding and on that day they searched for the accused in Gulur and other places and halted at Nagavalli village. On 29-1-95, at about 1.30 p.m. they apprehended the accused at Honnudke village and produced him before the Inspector of Police at about 3.30 p.m. and gave a report to that effect as per Ex. P-7. Now the evidence of the Investigating Officer PW 17 would show that on 29-1-95, at about 3.30 p.m., the Head Constable Nos. 210 and 269 produced the accused before him along with their re-port Ex. P-7. He arrested the accused and after observing the arrest formalities, he re-cordedt the voluntary statement of the accused as per Ex. P-14, wherein the accused had stated that he would point out the place where he had kept the weapon used for the commission of the offence if he is taken. Thereafter the accused led him and the panchas to Kesarmadu village. The accused further led them to Sy. No. 183 belonging to one Syed Naser Mohiddin and lead them to a place where actually he had hidden the chopper wrapped in his shirt. The accused took out the same from the bush and produced it before him and the panchas. The same was seized under a panchanama Ex. P-5. The weapon that was recovered at the instanpe,,of the accused is as per MO 5 and the shirt; in which the weapon was found to be wrapped is as per MO 9.
39. Under the cross-examination he has further stated that the weapon was found inside the bush in the paddy field near a Canal. He went in a Jeep along with the accused who led them to the place from where the weapon was recovered. He has denied the suggestion that the accused has not shown; the place where he had hidden the weapon, and that the weapon was not recov-ered ered at the instance of the accused and thai he had Prepared a false panchanama as per
40. WPWs 11 and 12 are the panchas for the recovery of MOs 5 and 9 at the instance of the accused and they have both supported the case of the prosecution regarding, the recovery.
41. Thus, the recovery at the instance of the accused stands proved from the above evidence on record. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of State of Himachal Pradesh v. Jeet Singh, reported in 1999 SCC (Cri) 539 : (AIR 1999 SC 1293) wherein it is held as under (Paras 26, 27 and 28):
There is nothing in Section 27 which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence Under Section 27. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
It is now well settled that the discbvery of fact referred to in Section 27 is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it.
In the present case, the fact discovered by the Police with the help of (1) the disclosure statements, and (2) the recovery of incriminating articles on the strength such statements is that it was the accused who Concealed those articles at the hidden places. It is immaterial that such stStement of the accused is inculpatory because Section 27 renders even such inculpatry statements given to a police officer admissible in evidence by employing the words'" whether it amounts to confession or not.
It must have been during the Interrogation of the accused that he would have made the disclosures. It is not necessary that other witnesses should be present when the ac-cueused was interrogated by the Investigating Officer. On the contrary, Investigating Officers interrogate accused persons without the presence of others. So the mere fact that any witness to the recovery did not over-(hear the disclosure statements of the accused is hardly sufficient to hold, that no such disclosures were made by the accused.
42. The accused has offered no explanation regarding this fact except denying the whole thing as false. When once the recovery is proved and when there is no explanation on the part of the accused, the only inference is that he is the author of the concealed objects.
43. Now adverting to the contention of a single fatal blow, it may be pointed out that there is no principle that in all cases of a single blow, Sec. 302, I.P.C. is not attracted. A single blow may in some cases entail con-viction Under Section 302 I.P.C, in some cases Under Section 304. I.P.C. and in some other cases Under Section 326, I.P.C. The question with regard to the nature of the offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was dragged when she was in the process of boarding the bus and the accused inflicted the blows with the chopper on the head as well as on the neck. It is no doubt true that the blow that was dealt on the neck proved to be fatal. But when the intention of the accused while inflicting such blows on the deceased was clear that he intended to commit the murder of the deceased. Therefore, the facts and circumstances of this case would clearly establish that the appellant had the intention to kill the deceased. In any event, the appellant can safely be attributed the knowledge that the chopper blow given by him on the neck of the deceased was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. We are therefore of the view that there is no merit in the contention urged on behalf of the appellant that the offence committed by the accused would fall Under Section 304 and not Under Section 302, I.P.C. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of Rajender Singh v. State of Bihar, reported in 2000 SCC (Cri) 796 : (AIR 2000 SC 1779), wherein it is held as under (Para 5) : --
The necessary ingredients of Exception 4 to Section 300 are : --
(a) a sudden fight;
(b) absence of pre-meditation;
(c) no undue advantage or cruelty, but the occasion must be sudden and not as a cloak for pre-existing malice. It is only an unpremeditated assault committed in the heat of passion upon a sudden quarrel which would corne within Exception 4 and it is necessary that all the three Ingredients must be found. From the evidence on record it is established that while the prosecution party was on their land it was the accused who protested and prevented them from continuing with ploughing but when they did not stop the accused persons rushed to the nearby plot which was their land and got weapons in their hands and assaulted the prosecution party ultimately injuring several members of the prosecution party and causing the death of one of them while they were fully unarmed. So this is a case where Exception 4 is not applicable.
44. The aforesaid being the position regarding the materials placed on record by the prosecution to bring home the guilt of the appellant, we are of the view that the trial Court was justified in convicting the accused Under Section 302, I.P.C.
45. Hence we find no merit in any of the contentions urged on behalf of the appellant. There is no good ground to interfere with the judgment of the trial Court convicting the accused Under Section Under Section 302, I.P.C.
46. In the result, therefore, this Criminal Appeal filed by the appellant is hereby dismissed. The impugned judgment and order of conviction and sentence passed by the trial Court against, the appellant is confirmed.