Karnataka High Court
Shivappa S/O Mallappa Kalagi vs The State Of Karnataka on 24 July, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JULY 2019
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL APPEAL No.3617/2012
Between:
Shivappa
S/o Mallappa Kalagi
Age: 52 years, Occ: Agriculture
R/o Malaghan
Tq. Basavan Bhagewadi
Dist. Bijapur
...Appellant
(By Sri Iswaraj S. Chowdapur, Advocate)
And:
The State of Karnataka
(Through Kolhar Police Station)
Represented by Addl. State
Public Prosecutor, Circuit Bench
At Gulbarga
...Respondent
(By Sri Prakash Yeli, Addl. SPP)
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This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to set aside the judgment of conviction and
sentence passed in S.C.No.115/2010 by on the II-Additional
Sessions Judge, Bijapur, convicting the accused/appellant
for the offence punishable under Section 302 IPC.
Accused/Appellant is sentenced to undergo rigorous
imprisonment for life and shall pay a fine of Rs.10,000/- for
the offence punishable under Section 302 of IPC. In Default
of payment of fine, he shall undergo simple imprisonment for
a period of six months.
This Criminal Appeal having been heard and reserved
on 27.06.2019 for judgment and coming on for
pronouncement of judgment this day, K.N.PHANEENDRA,
J., delivered the following:
JUDGMENT
The present appeal is preferred against the judgment of conviction and order of sentence passed by II-Additional Sessions Judge, Bijapur, in S.C.No.115/2010 dated 26.03.2012. Under the said judgment, the learned Sessions Judge has convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default, to 3 undergo simple imprisonment for a period of six months. Out of the fine amount, an amount of Rs.5,000/- was also awarded as compensation to the complainant.
2. Before adverting to the grounds urged before this Court by the learned counsel for the appellant, we feel it just and necessary to have brief factual matrix of this case.
3. There is no dispute that, the appellant is none other than the father of the deceased and PW.2 and husband of PW.1(complainant). PW.1-complainant vide Ex.P1 lodged a report before the respondent-Police on 11.04.2010 at about 8.00 a.m., making allegations that the complainant and her husband were residing along with their children i.e., deceased-Shankrappa, PW.2- Renuka and another son Shrishail in the house situated at Malaghan village in Basavana Bagewadi Taluk. It is further alleged that, there was marriage taken place 4 between the deceased-Shankrappa and Sangeetha of Ankalagi village. The accused/appellant was not happy with the said marriage and therefore, there was rift between the appellant and the deceased. It is also alleged that the appellant was quarreling with the deceased often because of this reason and he was often telling that he would do away with the life of the deceased.
4. In the above said backdrop, it is further alleged that, on the date of the incident i.e., on 10.04.2010 in the night, PWs.1 and 2 had been to the house of one Sidramappa Uppar for the purpose of sleeping. Before going to the said house, there was some quarrel between the appellant and the deceased-Shankrappa and in fact, the appellant has threatened the deceased with dire consequences of killing him. The complainant and PW.2 have in fact advised the accused and thereafter, they went to the house of one Sidramappa 5 Uppar for sleeping. Because it was sundry summer, they went to sleep on the roof of house of Sidramappa Uppar. The deceased-Shankrappa on that day was sleeping inside the house. PWs.1 and 2 suspected the conduct of the accused therefore, they did not sleep, they were watching the appellant who was wandering in front of the house. Presuming that he may not do anything to the deceased, they also slept for some time. However, they heard the screaming voice from their house at about 3.30 a.m., immediately they came to their house and saw the appellant holding an axe, a deadly weapon, in his hand and he assaulted on the neck of the deceased. PWs.1 and 2 were afraid after seeing ghastly incident. On seeing these two ladies, the appellant threw away the axe on the spot itself and went away. It is the case of the prosecution that the said incident was informed to the police over phone and police themselves came to the spot. On the spot itself, the complainant gave her report and on the basis of 6 which, the police have registered a case in Crime No.72/2010 for the offence punishable under Section 302 of IPC. After thorough investigation, police had laid a charge sheet against the appellant/accused. After committal proceedings, the trial Court has framed charges against the accused for the above said offence and put him on trial.
5. The prosecution in order to bring home the guilt of the accused examined as many as 19 witnesses and got marked 20 documents as Exs.P1 to P20 and material objects as M.Os.1 to 6. The accused was also examined under Section 313 of Cr.P.C., and he gave some explanation to the incriminating material found against him. But he did not choose to lead any defense evidence. After hearing both the parties and after considering the oral and the documentary evidence on record, the trial Court has arrived at a conclusion that the prosecution has proved the case beyond all 7 reasonable doubt which judgment of conviction is impugned in this appeal.
6. The learned counsel for the appellant after taking us through the evidence of the prosecution witnesses has strenuously contended that, the presence of PWs.1 and 2 who are the so called eyewitnesses is very doubtful and the trial Court has not properly appreciated the evidence of these two witnesses and wrongly arrived at a conclusion that these two witnesses were present at the time of incident. It is further contended that there are lot of discrepancies in the evidence of these two witnesses compared to the complaint at Ex.P1 and also that there is inordinate delay in sending the FIR to the jurisdictional Magistrate. It is also contended that the accused has taken up the plea of alibi stating that he had been to the land on that particular night and he was not at all there on the spot and after hearing about the incident, he came to the 8 house on the next day morning and saw the dead body of the deceased. The learned counsel has further contended that, there was illicit intimacy between PW.1 and Sidramappa Uppar and there was chance of she joining hands with Sidramappa in committing the murder of the deceased and falsely implicating the accused. The learned counsel contended that the motive factor as projected by the prosecution is not established even on preponderance of probabilities. Except PWs.1 and 2, no other witnesses were examined by the Investigating Officer during the course of investigation though it is there in the evidence that place where the incident occurred was surrounded by other neighbouring houses. The learned counsel contended that there are serious lapses in the investigation as no clothes of the accused were recovered particularly, learned counsel concentrated on the point that there was no light near the house of the accused so that anybody could see the incident as 9 projected by the prosecution. The learned counsel also contended before the Court that, there was no existence of any enmity between the accused/appellant and the deceased, they are none other than the father and son. Unless there is strong motive, it cannot be believed that, the accused would venture upon to commit the murder of his own son. Therefore, for the above said reasons, the learned counsel strenuously contended that the prosecution story is improbable and the same has not been proved beyond reasonable doubt. Hence, the trial Court ought to had acquitted the accused. Therefore, he prayed for allowing the appeal consequently, to acquit the accused.
7. Per contra, the learned Additional State Public Prosecutor for the respondent-State submitted before the Court that though there are some lapses in the investigation and delay in sending the FIR to the jurisdictional Magistrate, but there is no material to 10 show that there was any deliberate action in registering the case itself. He further contends that, the motive factor is feeble circumstance. When the eyewitnesses are there, even non-proof of motive by the prosecution would not in any manner discredit the case of the prosecution. It is further contended that evidence of PWs.1 and 2 is so consistent that they have categorically deposed as to how the incident has happened and what was the reason for commission of offence by the accused. Moreover, PWs.1 and 2 are the wife and daughter of appellant. There is no reason for them to screen the real offender and to implicate falsely the appellant into the crime. Even inspite of some lapses on the part of the Investigating Agency in not sending the blood samples of the deceased and blood found on the axe for analysis however, on overall consideration of the entire evidence on record, it establishes that the prosecution has proved the case beyond reasonable doubt against the appellant. 11 Therefore, there is absolutely no room to interfere with the judgment of conviction and order of sentence passed by the trial Court.
8. In the wake of the above submissions made by the learned counsel for the appellant and the learned Additional State Public Prosecutor for the respondent- State, before adverting to the appreciation of material evidence on record, we would like to have brief cursory look at the evidence of the prosecution witnesses.
9. As we have already noted, PW.1-Shanthawwa and PW.2-Renuka are the wife and daughter of the appellant and they are the eyewitnesses to the incident. PW.1 is the author of Ex.P1-complaint. We would like to discuss the evidence of these witnesses in detail little later.
10. PW.3-Shrishail is another son of the appellant and PW.1. He came to the spot little later after hearing 12 about the incident and he came to know about the incident from PWs.1 and 2. PW.4-Laxmi Mallappa Sanshi is a relative of the appellant and PW.1 and also neighbour of the appellant. The prosecution has styled this witness as eyewitness but she has not supported the case of the prosecution fully. PW.5-Chandrakant Akhandappa Shirol is the panch witness to inquest proceedings as per Ex.P3 and spot mahazar as per Ex.P4 under which the police have seized an axe and he is also a panch witness to seizure panchanama as per Ex.P5 under which clothes of the deceased were seized. PW.6-Basappa Beerappa Kalburgi was examined to establish the motive factor but he has not supported the case of the prosecution. PW.7-Revanasiddappa Thippanna Kolhar has deposed that he went to the spot at about 7.30 a.m., after hearing about the incident. He has also not supported the case of the prosecution fully. PW.8-Sangeetha is the wife of the deceased. In fact, the prosecution examined her to establish the motive as to 13 what was the situation in the family prior to she went to her parental house. She has not supported the case of the prosecution. PW.9-Bheemabayi is the mother of PW.8. She has also not supported the case of the prosecution. PW.10-Thukkappa is the father of PW.8. He has also not deposed in favour of the prosecution. PW.11-Annaraya was also examined to establish the motive factor but he has not supported the case of the prosecution. PW.12-Rachappa Girimallappa Thalawar is another important witness who received the complaint from PW.1 as per Ex.P1 and registered a case in Crime No.72/2010 at 9.00 a.m., in the morning and he dispatched the FIR as per Ex.P11. PW.13-Sadashiva Bheemappa Yaragatti is the Police Constable, after receiving the FIR he carried the same to the jurisdictional Magistrate and handed over the same to the Magistrate at 10.00 p.m. PW.14-Asif Iqbal Indikar is the person who carried five sealed articles to FSL, Belgaum. PW.15 is the doctor who conducted autopsy 14 on the dead body of the deceased and gave report specifically stating that, the death was due to head injury sustained by the deceased. PW.16-Sathyappa Bheemappa Malagonda is a PSI who partially investigated the matter and later handed over the investigation to CPI. PW.17 is the Engineer attached to PWD who went to the spot and drew up spot sketch as per Ex.P15. PW.18 is the Police Constable who transmitted the dead body to the hospital for postmortem examination and after inquest proceedings and after postmortem examination, he collected the clothes of the deceased and produced the same before the Investigating Officer which were seized by the Investigating Officer under Ex.P5. PW.19-Sheelwant is the Investigating Officer who has thoroughly investigated the matter and submitted a charge sheet against the appellant.
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11. On careful perusal of the entire materials on records, as rightly contended by the learned counsel for the appellant, evidence of PWs.1 and 2 who are the eyewitnesses play a dominant role in this case. Inspite of other discrepancy in the evidence of the prosecution, if the Court believes the evidence of PWs.1 and 2 who are the eyewitnesses to the incident, the Court can lay its hands to convict the accused person. However, the Court has to examine whether other discrepancies in the prosecution case, like contradictions and omissions in the evidence of PWs.1 and 2 and non-examination of any neighbour in any manner impair the case of the prosecution and those mitigating circumstances are sufficient to throw out the case of the prosecution and that they are sufficient to give a clean chit to the appellant/accused. In this background, we would like to discuss the material evidence on record. 16
12. Though the entire case revolves around the version of the eyewitnesses but before adverting to the evidence of the eyewitnesses, it is just and necessary to discuss with regard to the homicidal death of the deceased and the motive factor in this case. HOMICIDAL DEATH:
13. There is no much dispute so far as this particular aspect of homicidal death of the deceased is concerned. PW.1 Shantawwa, PW.2 Renuka were the eyewitnesses who have stated about the death of the deceased and also the injury found on the neck portion of the deceased. PW.3 Shrishail who is also another son of the accused, came later to the house. However, he has also stated about the injuries sustained by the deceased. Likewise, PW.4 Laxmi who immediately came to the spot has also deposed about the injury found on the neck of the deceased. Apart from them, PW.5 Chandrakant who is panch witness to the inquest 17 proceedings (Ex.P3), has supported the case and stated that in his presence, the police have conducted the inquest panchanama as per Ex.P3. In the above said circumstance, the evidence of the doctor also play a dominant role, so far as this aspect is concerned. PW.15, Dr.Sanjay, who has conducted the post mortem examination on the deceased has issued the post mortem examination report as per Ex.P14. He has categorically stated that the death of the deceased was due to the injuries sustained by him on the neck portion of his body. He found as many as 7 external injuries on the body of the deceased. The injuries found on the dead body were explained in his evidence stating that there were as many as six incised wounds on the sternum portion, right mastoid portion and occipito- parietal area with fracture on his right scapula and also over the middle of right scapula and also over the left occipito-parietal area. On having found those injuries, he gave his opinion that, the above said injuries were 18 the root cause for the death and the deceased died due to injuries on the vital organs and due to hemorrhagic shock.
14. In the course of cross-examination alternatively sustaining of those injuries were suggested stating that those injuries would be caused if a person falls on a sharp and hard object. Doctor though admitted this particular aspect but the fact remains that deceased sustained those injuries and died due to those injuries.
15. Particularly, in the course of cross- examination of PW.1 and 2, the accused has suggested that the deceased PW.1 and her paramour have joined hands with them and committed the murder of the deceased. It is also suggested to PW.2 that the deceased was having some illicit intimacy with some ladies in the said village and those persons were not happy with the conduct of the deceased. Therefore, 19 some persons who have enemically disposed of with the deceased might have committed the murder. Therefore, looking from the above said evidence the death of the deceased was due to sustaining of injuries to different parts of his body is not disputed. The Court has to find out who actually has caused those injuries. Therefore, the prosecution, in our opinion, has proved the homicidal death of the deceased beyond all reasonable doubt.
MOTIVE:
16. The motive factor in this particular case as projected by the prosecution is that, the deceased who is none other than the son of the accused had married in a group marriage (Saamuhik Vivah) and accused was not willing to get one Sangeeta in marriage to the deceased. In spite of protest by the accused, the deceased married the said Sangeeta i.e. PW.8 and therefore, often there was quarrel between the accused 20 and the deceased. In this context, it is alleged that, on the date of the incident also the accused started quarrelling with the deceased and PW.1 on the same night, might have committed the murder of the deceased.
17. So far as this motive is concerned, PW.1 and 2 have categorically stated that, in their evidence they have specifically stated that, the accused was addicted to alcohol and used to quarrel with the deceased Shankrappa as he married one Sangeeta much against to the protest of the accused and in this context, he had been always threatening the deceased Shankrappa with dire consequences of killing him.
18. Of course, in the course of cross-
examination, this particular aspect is not much denied except suggesting that PW.1 herself had developed illicit intimacy with one Sidramappa Uppar and in fact she herself along with the help of Sidrammappa had 21 committed the murder of the deceased, so far as this motive aspect is concerned. In the course of cross- examination, it is suggested that the marriage of Shankrappa and Sangeeta was in fact conducted by the accused himself and he never objected to the same. It is reiterated in the cross-examination that the accused was not happy with the marriage of the said Shankrappa. Learned counsel tried to persuade this Court that this particular aspect has not been stated by PW.1 in the complaint as per Ex.P1. However, though not in specific words it has been stated but it is narrated in Ex.P1 that after marriage between Sangeeta and deceased Shankrappa, accused started quarrelling with the deceased and also he was preparing to assault the deceased. It is also stated that, on the date of the incident also for the same purpose quarrel took place. PW.2 also in fact reiterated the same in her examination-in-chief but in the course of cross- examination, except suggesting that she is deposing 22 falsehood so far as motive is concerned, nothing worth has been elicited. She has also stated in the cross- examination and admitted that accused had also given consent for the marriage of the deceased with Sangeeta, so far as this aspect is concerned, it is isolated sentence elicited in the cross-examination but on overall reading of the entire evidence, nothing worth has been elicited so far as this motive factor is concerned. PW.4 also to some extent, supported this particular aspect. Though not she has stated about the specific motive, but she told about the accused coming to the house with drunken state and quarreling with the deceased and PW.1. In the course of cross-examination also she has stated good and bad about the accused stating that accused was a good man earlier but later he started quarreling with the family members and he was addicted to alcohol, etc. It is suggested to this lady that some persons who are enemically disposed of with the 23 deceased might have committed the murder, the said suggestion was denied.
19. The kith and kin of the deceased particularly PWs.1 to 4 have categorically stated about the existence of the motive. Of course, PW.6, Basappa, PW.7 Revansiddappa, PW.8 Sangeeta, PW.9 Bhimbai, PW.10 Tukappa, PW.11 Annaray Ankalagi have not supported the case so far as motive is concerned. PWs.6 and 7 are not the relatives, however, PW.8 is none other than wife of the deceased Shankrappa, PW.9 and PW.10 are the mother and father of PW.8 Sangeeta, respectively. It is the case of the prosecution that after marriage of Shankrappa and Sangeeta she had gone to her parental house. Therefore, they may not be knowing as to what was happening in the house of the accused between the accused and the deceased. PW.6 and 7 are in fact, the neighbors and it cannot be expected from them to depose in detail as to what was happening in the house 24 of the accused. Therefore, though these witnesses turned hostile, but the other evidences available on record from the above said relative witnesses, in our opinion, shows that all was not well between the accused and the deceased and they were quarreling with each other, whether it was in respect of the marriage of the deceased with Sangeeta or for any other purpose but the evidence disclose that the accused and deceased were quarreling with each other. Therefore, we are of the opinion that the prosecution has also established the existence of some motive in the mind of the accused. Though, we cannot definitely, say that said motive was sufficient to cause the death of the deceased. In this background, the evidence of the eyewitness have to be examined.
EVIDENCE OF EYEWITNESSES:
20. We are conscious of the principles that the Court has to very meticulously scan the evidence of 25 eyewitnesses particularly when eyewitnesses are close relatives of the deceased. We are also conscious of the principles that, the eyewitnesses version has to be very carefully scrutinized in order to ascertain whether they falsely implicate the accused to the crime so as to screen some other person who actually committed the offence as alleged by the defense. In this background, we remind ourselves to the decision of the Apex Court reported in 1981 Criminal Law Journal page No.484 (SC) between Ram Ashrit and others vs. State of Bihar wherein the Apex Court has observed that:
" When all the material witnesses in a murder case were either related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon."
21. It is also worth to refer another ruling of the Apex Court with regard to the quality and quantity of evidence, in such an eventuality how 26 the Courts have to appreciate the evidence on record. The Apext Court in a decision reported in 1995 (4) crime page No.516 between Karthik Malhar vs. State of Bihar has observed that:
(i) Conviction based on testimony of a
single witness whether legally
sustainable 'yes'--provided his
credibility is not shaken by any adverse circumstances appearing on record against him, and the Court is convinced that he is truthful witness. The Court will not then insist on corroboration, by any other eyewitness particularly as the incident might have occurred at a time or place when there was no possibility of any other eyewitnesses being project. Indeed the Court insist on the quality and not on the quantity of evidence.
(ii) Three eyewitnesses produced -- two turned hostile -- solitary eyewitness being wife and deceased --concurrent finding that she was present at the spot from the very beginning -- she had seen the whole of incident -- She 27 accompanied informed to police station
- report lodged in her presence - her statement fully were located --
conviction based solely on her testimony
-- sustainable -- the case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eyewitness, nor can it be insisted that the corroboration of the statement of the witness was necessary by other eyewitnesses. The instant case it may be pointed out does not strictly fall within the category of those cases where only one witness is present and the case of the prosecution is sought to be proved by the statement of that witness alone here three of witnesses were produced but two of them turned hostile, leaving the third above and therefore on the principles already discussed, if the remaining eyewitness if found to be trustworthy it becomes the duty of the Court to convict the accused.
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Wife of the deceased was the first to object to the beating of her husband in the first round, she also noticed that the appellant went back to his house and come again at the spot with a "pharsa" by which he gave the fatal blows to the deceased. Though, two of the eyewitnesses had turned hostile, her statement was fully corroborated by other circumstances of the case including the medical evidence."
22. With the above said principles, now we will proceed to ascertain the credibility of the eyewitnesses.
23. PWs.1 and 2 Shantavva and Renuka in their examination-in-chief have categorically deposed about the family background and also, the relationship between them and the accused as well as deceased. They have further stated that the deceased Shankrappa married a lady by name Sangeeta about three months prior to his death. The accused was not willing so far as that marriage was concerned because of that, he started 29 quarrelling with Shankrappa and often he was threatening Shankrappa with dire consequences of killing him. It is further deposed by both the witnesses that on the date of the incident, at about 10.00 p.m., the accused started quarrelling with PW.1 with reference to the marriage of Shankrappa. In fact, PWs.1 and 2 were frustrated with the act of the accused. Therefore, they went to the house of one Sidramappa Uppar to sleep on the roof top of his house. However, they suspected the conduct of the accused as Shankrappa slept in the house where the accused also slept on that day. It is stated that, at about 3.00 a.m. they heard some screaming voice from the direction of their house. Immediately, they went to their house and saw, at that time, the accused was holding an axe in his hand and was assaulting the deceased Shankrappa on his neck, chest and other portion of the body. Immediately, both of them screamed for help and thereafter the accused ran away from the said spot. 30 They went near Shankrappa and found him dead in the pool of blood. Thereafter PW.1 informed the same to the police and police came to the spot and taken the complaint from PW.1 and taken her signature as per Ex.P1(a). She also identified the accused before the Court and also MO.1 and virtually after seeing the clothes of the deceased at MOs.2 to 4, she became emotional and started weeping in the Court. She also identified the blood stained earth and unstained earth taken from the spot as per MOs.5 and 6. Both the witnesses have categorically and in unequivocal terms have spoken about the incident as to how it had happened.
24. In the course of cross-examination much has been elicited with regard to the topography of their house. But it is not argued in any manner as to how the topography of the house would come to the help of the accused. Of course, learned counsel contended that, in 31 the cross-examination, these witnesses have admitted that, there existed lot of residential houses situated near by the house of the accused where the incident had happened. If at all screaming voice came from the said house at 3.00 a.m. there is no reason as to why other persons did not come out from their houses and only PW.1 and 2 came to the spot. He argued that this creates a serious doubt with regard to the presence of PWs.1 and 2 at the spot. But these witnesses have categorically stated that after screaming voice from the house, they went near their house and found the accused assaulting the deceased. Thereafter, they also screamed for help and afterwords some people came to that particular spot including PW.4. On careful perusal of the evidence of other witnesses including the evidence of PW.4, particularly inquest witness and PW.3 Shrishail S/o Shivappa, PW.5, Chandrakant, PW.7 Revansiddappa Kolar who all went to the spot (though they turned hostile) after hearing some noise, they went 32 there and saw the dead body of the deceased with bleeding injuries on his body. In our opinion, we cannot expect a set of reaction or a set of action by the people who were residing surrounding to the place of the incident. Moreover, it was at about 3.00 a.m. the incident happened, people must have gone into deep sweet sleep. Therefore, they might not have heard screaming voice. Perhaps that may be the reason that these two witnesses who were actually suspecting the accused on that day heard that noise. Therefore, they might have not fully slept on that particular night and may be for the reason that they immediately after hearing the screaming voice went to the spot and saw the incident. Therefore, in our opinion, these circumstances, may not be so sufficient to discard the evidence of these two witnesses.
25. These two witnesses have further said in their deposition that, they have not stated in their 33 statement before the police that, the accused was keeping an axe and a club along with him on every day in order to do something to the deceased. However, they have denied in their evidence that, the accused was always used to go to the land in night hours for sleeping and that they also stated before the Court suggesting that PW.1 has developed illicit intimacy with Sidramappa Uppar and therefore she joined hands with said Sidramappa and committed the murder of her husband. All these witnesses have been categorically denied by these two witnesses. Further, learned counsel argued that, PWs.1 and 2 have never stated about any light being there to see the accused committing the murder of the deceased. Nowhere, in the course of cross-examination, it is elicited from these two witnesses that at about 3.00 a.m., it was so dark at the spot so that anybody could witness any incident or they could see anybody in their house, etc. therefore, when there being no evidence to that effect on that 34 ground, the evidence of these witnesses cannot be easily brushed aside, merely because the hostility of some other witnesses, who were cited as eyewitnesses to the incident. In our opinion, that is not sufficient to discard the evidence of these two witnesses. It is well profound principle that quality of evidence required before the Court and not the quantity.
26. In the above said background, the evidence of PW.4 also play a dominant role. PW.4 has stated that she is also a close relative of the accused and the PW.1. She has stated that, at about 6.00 a.m., itself on the date of the incident, she had been to the house of the accused, she saw the dead body of the deceased and she came to know on the spot that accused has committed the murder of the deceased. PWs.1 and 2 have told this lady about the incident and accused assaulted the deceased, but she categorically admitted that she did not actually see the incident. Therefore, 35 though this witness has not fully supported the case of the prosecution but she has actually stated the presence of PWs.1 and 2 at the spot and they were weeping and screaming for help at about 6.00 a.m.
27. In the course of cross-examination, it is suggested that she is a very close relative of the deceased and the accused. In fact she has admitted that she was grown up in the house of the accused. She further stated that accused was a good man earlier but not at the time of incident, he was always quarrelling with other members of his family. The above said factors clearly disclose that, PWs.1 and 2 were present and immediately after the incident they disclosed about the incident i.e. accused committing the murder of the deceased. This also strengthen the evidence of PWs.1 and 2.
28. Apart from the above, it is not made out in the course of cross-examination of these witnesses i.e. 36 PWs.1 and 2 as to why they have to falsely implicate the accused. Though, it is suggested in the course of cross- examination of PW.1 that she committed the murder with the help of Sidramappa Uppar but no material is placed before the Court about the said alleged illicit intimacy between said Sidramappa and PW.1. It is not even suggested to other witnesses and elicited any material that the said suggestion made to PW.1 is probabalized, on the other hand, it is suggested to PW.4 that deceased himself was having very bad antecedents and he had developed illicit intimacy with many women in the said village, and perhaps some people who were enemically disposed against the deceased might have committed the murder of the deceased. Therefore, from the above said inconsistent suggestions which are quite opposite to each other, the accused himself is not sure as to what defence he has to take in the case but has made contrary suggestions which clearly disclose that he wants to throw the burden on some other person i.e. 37 particularly PW.1 without any basis. Therefore, there is absolutely no material to draw an interference on the basis of preponderous of probabilities, therefore the Court cannot disbelieve the evidence of PW.1 and 2.
29. Added to the above, PW.1 to 4 are no other than the close relatives of the accused, there is no enmity whatsoever elicited between the accused and PW.1 to 4. There is no reason as to why they have to falsely implicate the accused, knowing fully well the evil consequences of their evidence before the Court i.e. the accused will be convicted and sentenced to imprisonment for life. Therefore, when such a serious consequence is there, on the basis of their deposition, in our opinion, they would not venture upon to falsely implicate the accused, who is no other than husband of PW.1 and father of PW.2. Therefore, from the above said facts and circumstances, the prosecution has 38 successfully established the guilt of the accused through eyewitness version.
30. Though the learned counsel for the accused has pointed out some other important lapses during the course of investigation i.e. delay in FIR and also weapons seized in this case were not sent to the doctor for identification. Of course, there is delay in sending the FIR to the jurisdictional Magistrate. It is worth to note here the evidence of PW.1, who has categorically stated that on the same day in the morning the police came to the spot and taken her statement. In this context, the evidence of PW.12 and 13 play a dominant role. PW.12 who was working as HC734 in Kolhar Police station deposed that on 11.04.2010 he received a complaint as per Ex.P1 at about 8.00 a.m. on the basis of the same, he registered a case in crime No.72/2010 and prepared the FIR and sent the same to the Jurisdictional Magistrate and the FIR is also marked at 39 Ex.P.11, except denying this particular fact, nothing has been elicited whether there was any delay in recording the statement of PW.1 or receiving the complaint as per Ex.P1. In fact, Ex.P1 discloses that the same was recorded at 6.30 a.m. and the same was sent to police station at 8.00 a.m. on 11.04.2010 and a case was registered. Therefore, at 6.30 a.m. in the said day itself, the police have received the complaint as per Ex.P1 and registration was done at about 8.00 a.m. itself. So far as this aspect is concerned, there is no denial or suggestion made to this witness that the information was not recorded at 6.30 a.m. but in cross-examination, it has been concentrated with regard to dispatching of the FIR to the Magistrate.
31. PW.13, Sadashiva he has stated that on 11.04.2010 he was working as PC at Kolhar Police station, he received the FIR at about 9.00 a.m. in the morning on 11.04.2010 and he went to Basavana 40 Bagewadi by catching a vehicle and he went to Basavana Bagewadi at about 6.00 p.m. or 7.00 p.m. and handed over the FIR to the Magistrate at about 10.00 p.m. He categorically stated in the course of cross-examination by the defence counsel that, as there were no sufficient vehicles or conveyance to go to Basavana Bagewadi, therefore, there was some delay in handing over the FIR to the Jurisdictional Magistrate. Though, there is suggestion to this witness that sufficient conveyance was available, there was delay in handing over the FIR to the Magistrate, but the said suggestions were denied.
32. The above said evidence disclose, of course, there was some delay in handing over the FIR to the jurisdictional Magistrate, but in all the cases delay may not be fatal to the prosecution. The delay has been explained by PW.13, it is not that, delay was occurred because they wanted to manipulate the FIR itself given 41 by PW.1. There is no dispute or any suggestion that, the FIR was not registered at 8.00 a.m. itself, but it is only the case of the defence that FIR was handed over to the Magistrate in a delayed manner. Unless there is suggestion that, the FIR itself was not registered at 8.00 a.m. and it was registered later after due deliberations, therefore, there was delay in handing over the FIR to the Magistrate. Unless there is evidence to substantiate this aspect mere delay in handing over the FIR to the Magistrate is not sufficient to throw out the case of the prosecution.
33. Though, the material object MO.1 was not sent to the Doctor (PW.15) for identification but during the course of evidence, the Doctor has categorically stated that injuries on the dead body could be caused by assaulting a person with the help of MO.1. Doctor has also stated about alternative sustaining of the injuries that, if a person falls on a sharp and hard 42 object with sufficient force, injuries Nos.2 to 7 as shown in the post mortem examination report may be caused. The Doctor also clarifies that, injury No.1 can be caused, if a person falls on a hard surface and also such injury can be caused if a person is assaulted with a blunt object like MO.1. Therefore, looking to the above said evidence, the doctor has categorically given his opinion with regard to MO.1.
34. Looking to the above said facts and circumstances, though there are some contradictions, omissions and lapses in the investigation here and there, but all those materials do not go to the root of the prosecution case so as to totally disbelieve and discard the prosecution version. It is trite to say that on over all analysis of the oral and documentary evidence on record, if the Court comes to the conclusion that in spite of some contradictions and omissions, the prosecution has established the case beyond reasonable 43 doubt that is sufficient to convict the accused. Exactly the same has been done by the trial Court.
35. Hence, for the above said reasons, we absolutely find no reason to interfere with the judgment of conviction and sentence passed by the trial Court, as such we proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE NB*/VNR Ct:RRJ