Karnataka High Court
Chandregowda vs The State Of Karnataka on 21 April, 2020
Bench: K.N.Phaneendra, S R.Krishna Kumar
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2020
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE S.R. KRISHNA KUMAR
CRL.A. NO. 49/2015
C/W
CRL.A. NOS. 168/2015, 169/2015 & 170/2015
IN CRL.A. NO. 49/2015
BETWEEN
CHANDREGOWDA
S/O. LATE PUTTEGOWDA
AGED ABOUT 38 YEARS
R/O. KUDLUR VILLAGE,
KOODLIPET HOBLI,
SOMWARPET, KODAGU-571231
... APPELLANT
(BY SRI. HASHMATH PASHA, SR. ADVOCATE FOR
SRI. KALEEM SABIR, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY SHANIVARASANTE P.S.
KODAGU - 571231
REP. BY S.P.P., HIGH COURT COMPLEX,
BENGALURU-560 001.
... RESPONDENT
(BY SRI. DIWAKAR M. MADDUR, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2)
Cr.PC. PRAYING TO SET ASIDE THE ORDER DATED
2
08.12.2014 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KODAGU-MADIKERI IN SC
NO.29/1998, CONVICTING THE APPELLANT (A3) FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 143,
147, 148, 341, 307 R/W 149 OF IPC.
*****
IN CRL.A. NO. 168/2015
BETWEEN
DEVRAJU
S/O. LATE PUTTEGOWDA
AGED ABOUT 48 YEARS
R/O. KUDLUR VILLAGE,
KOODLIPET HOBLI,
SOMWARPET, KODAGU-571231
... APPELLANT
(BY SRI. HASHMATH PASHA, SR. ADVOCATE FOR
SRI. KALEEM SABIR, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY SHANIVARASANTE P.S.
KODAGU - 571231
REP. BY S.P.P., HIGH COURT COMPLEX,
BENGALURU-560 001.
... RESPONDENT
(BY SRI. DIWAKAR M. MADDUR, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2)
Cr.PC. PRAYING TO SET ASIDE THE ORDER DATED
08.12.2014 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KODAGU-MADIKERI IN SC
NO.29/1998, CONVICTING THE APPELLANT (A6) FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 143,
147, 148, 341, 302 R/W 149 OF IPC.
*****
3
IN CRL.A. NO. 169/2015
BETWEEN
SURESHA
S/O. LATE PUTTEGOWDA
AGED ABOUT 38 YEARS
R/O. KUDLUR VILLAGE,
KOODLIPET HOBLI,
SOMWARPET, KODAGU-571231
... APPELLANT
(BY SRI. HASHMATH PASHA, SR. ADVOCATE FOR
SRI. KALEEM SABIR, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY SHANIVARASANTE P.S.
KODAGU - 571231
REP. BY S.P.P., HIGH COURT COMPLEX,
BENGALURU-560 001.
... RESPONDENT
(BY SRI. DIWAKAR M. MADDUR, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2)
Cr.PC. PRAYING TO SET ASIDE THE ORDER DATED
08.12.2014 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KODAGU-MADIKERI IN SC
NO.29/1998, CONVICTING THE APPELLANT (A5) FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 143,
147, 148, 341, 302 R/W 149 OF IPC.
*****
IN CRL.A. NO. 170/2015
BETWEEN
NINGEGOWDA
S/O. LATE PUTTEGOWDA
AGED ABOUT 42 YEARS
4
R/O. KUDLUR VILLAGE,
KOODLIPET HOBLI,
SOMWARPET, KODAGU-571231
... APPELLANT
(BY SRI. HASHMATH PASHA, SR. ADVOCATE FOR
SRI. KALEEM SABIR, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY SHANIVARASANTE P.S.
KODAGU - 571231
REP. BY S.P.P., HIGH COURT COMPLEX,
BENGALURU-560 001.
... RESPONDENT
(BY SRI. DIWAKAR M. MADDUR, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2)
Cr.PC. PRAYING TO SET ASIDE THE ORDER DATED
08.12.2014 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, KODAGU-MADIKERI IN SC
NO.29/1998, CONVICTING THE APPELLANT (A2) FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 143,
147, 148, 341, 302 R/W 149 OF IPC.
THE ABOVE NOTED CRIMINAL APPEALS HAVING
BEEN RESERVED FOR JUDGMENT ON 18.03.2020,
COMING ON FOR 'PRONOUNCEMENT OF JUDGMENT'
THIS DAY, K.N.PHANEENDRA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The above said four appeals are arising out of common Judgment passed by the Principal District and Sessions Judge, Kodagu-Madikeri, in SC No.29/1998 particularly in Criminal Appeal No.49/2015 filed by 5 Accused No.3, Criminal Appeal No.168/2015 filed by Accused No.6, Criminal Appeal No.169/2015 filed by Accused No.5 and Criminal Appeal No.170/2015 filed by Accused No.2 against the judgment of conviction and sentence passed against them vide judgment dated 08.12.2014, under which the learned Sessions Judge has convicted the accused persons for the offence punishable under Sections 143, 147, 148, 341, 302 and 307 of IPC with the sentence of imprisonment and fine as under:-
i) Each of the Accused Nos.2, 3, 5 & 6 were sentenced to undergo six months simple imprisonment and to pay fine of Rs.1,000/-
each with default sentence of simple
imprisonment for a further period of one
month for the offence punishable under
Sections 143 r/w Section 149 of IPC;
ii) Each of the Accused Nos.2, 3, 5 & 6 were also sentenced to undergo simple imprisonment for one year with fine of Rs.2,000/- with default sentence of simple imprisonment for two months for the offence punishable under Section 147 r/w. Section 149 of IPC;6
iii) Each of the Accused Nos.2, 3, 5 & 6 were also sentenced to undergo simple imprisonment for two years and to pay fine of Rs.3,000/- with default sentence of simple imprisonment for three months for the offence punishable under Section 148 r/w Section 149 of IPC;
iv) Each of the Accused Nos.2, 3, 5 & 6 were
further sentenced to undergo simple
imprisonment for one month and to pay fine of Rs.500/- each for the offence punishable under Section 341 r/w Section 149 of IPC.
v) Each of the Accused Nos. 2, 5 & 6 were sentenced to undergo imprisonment for life for the offence punishable under Section 302 r/w 149 of IPC and to pay fine of Rs.50,000/- with default sentence of five months;
v) Lastly, Accused No.3-Chandregowda was sentenced to undergo imprisonment for a period of eight years and to pay fine of Rs.2,000/- for the offence punishable under Section 307 r/w Section 149 of IPC, in default to undergo imprisonment for a further period of two months.
The trial Court has also awarded a sum of Rs.75,000/- out of the fine amount as compensation to PW.5-Sibbegowda.
7
2. Though the appellants have differently and separately filed their appeals, but the sum and substance of the grounds urged in all the Memorandum of Appeals are almost one and the same. Therefore, all the said appeals are heard together and this common judgment is passed. Before adverting to the present appeals, some of the facts very much relevant to the main aspect of the case are to be looked into.
3. It is an undisputed fact that, one Mr.Gopala (not examined before the trial Court) has lodged a complaint as per Ex.P.29 on 25.12.1997 at 2.30 p.m., on the basis of which, a has been registered in Crime No.224/1997. It is not in dispute that, on the same day, Accused No.5-Suresh has also lodged a complaint as per Ex.P31, on which basis a case has been registered in Crime No.225/1997. Both the cases were investigated by different Investigating Officers. In Crime No. 224/1997 a charge sheet has been filed against Accused Nos.1 to 7 before the committal Court and 'B' Summary Report has been filed so far as Crime No.225/1997 is concerned and it is also not in dispute 8 that it has come on record by way of evidence with Crime No.224/1997 and after committal, registered as SC No.29/1998. Further, it is also not in dispute that the 'B' Summary Report was challenged by the complainant in respect of Crime No.225/1997, by filing objections in the nature of a Private Complaint. Cognizance was taken by the learned Magistrate and summons were issued to three accused persons in the said case by name Sibbegowda, Palaksha and Suresha @ Thimmegowda (son of the deceased-Gowramma), who are examined as PW.5, PW.2 and PW.4 respectively, in the Sessions Case. As there was an application made by the complainant in the said case, the same was also committed to the Court of Sessions registered in SC No.13/2004. It is also not in dispute that both the said criminal cases were tried distinctly and separately and separate judgments have been pronounced simultaneously by the trial Court, wherein the appellants who are Accused Nos.2, 3, 5 & 6 were convicted and sentenced as noted above and the 9 accused persons in SC No.13/2004 were acquitted of the charges levelled against them.
4. In the light of the above said admitted facts, the brief facts of the case have to be borne in mind before adverting to appreciate the material evidence on record.
5. A person by name Gopal in the First Information Report, has informed the police that, on 25.12.1997 at about 11.30 a.m., when he was proceeding from his land on a Tractor to his house at Koodlur Village, his brother by name Subbegowda and his Wife Gowramma were coming towards the house from their land for the purpose of taking food. At that time, the accused persons by name Puttegpwda (A1), Ningegowda (A2) Chandregowda (A3), Siddaramegowda (A4), Suresh (A5) and Devaraju (A6) have intercepted the way of the said Subbegowda and his wife-Gowramma and questioned Subbegowda as to why he has given a complaint against Suresh on the allegations that Accused No.5-Suresh has spoiled the life of the Subbegowda's daughter by name 10 Chandramathi. It is alleged that, in this context, there was a scuffle and quarrel between two groups and in fact the Puttegowda (A1) has splashed chillipowder on the face of Subbegowda and Gowramma; Accused No.2-Ningegowda has assaulted with club on the head and also on the right leg of Gowdamma; Accused No.3- Chandregowda assaulted Subbegowda on his head; Accused No.4 assaulted with club on the hands of Subbegowda and and Accused No.5-Suresha has assaulted on the head of Gowramma with crowbar and he has also assaulted on the hands of Subbegowda. Accused No.6-Devraju assaulted Subbegowda with chopper (Katthi) on the head of Subbegowda and attempted to kill him and murdered Gowramma. Due to the alleged assault, the said Subbegowda and Gowramma have sustained severe injuries. At that time, the said Gopala, the complainant and other witnesses by name Thimmegowda and PW.3-K.H. Swamy have resolved the dispute. In fact the Gowramma sustained severe injuries and succumbed to 11 injuries on the spot. Subbegowda by screaming went towards his house.
6. On the basis of the above said FIR lodged by Gopala as noted above, the police have registered a case in Crime No. 224/1997 and submitted the charge sheet against the accused persons.
7. After committal proceedings, the learned Sessions Judge secured the presence of the accused persons and framed charges against Accused Nos. 1 to 6 for the offence punishable under Sections 143, 147, 148, 341, 302 and 307 r/w Section 149 of IPC.
8. The prosecution in order to bring home the guilt of the accused, examined as many as 31 witnesses viz., PWs. 1 to 31 and got marked Exs. P1 to P.50 and material objects as MOs. 1 to 34. All the accused persons were examined under Section 313 of Cr.PC. and in fact the defense also examined Accused No.5- Suresha as DW.1 and got marked Exs. D1 to D3. After appreciation of the oral and documentary evidence on 12 record, the learned Sessions Judge has passed the impugned judgment.
9. Before adverting to appreciation of material evidence on record, we would like to have a brief cursory look at the evidence of the prosecution witnesses.-
9.1. PW.1-Dr.Subhra Chakravarthy is an Assistant Serologist and Chemical Examiner (Scientific Officer) at FSL, Bengaluru, who has examined 23 articles sent by the Investigating Officer and furnished his report as per Ex.P1 narrating as to how many articles were stained with blood and the blood group etc.;
9.2. PW.2-K.S. Palaksha, PW.3-K.H. Swamy, PW.4-Suresha, PW.5-Subbegowda are the eyewitnesses to the incident. PWs.2, 4 & 5 are actually injured eyewitnesses and PW.3 is an independent eye witness. Amongst them PW.3 has turned hostile and his contradicted portion of statement is marked at Ex.P3. He has not supported the case to any extent. 13 We would like to discuss the evidence of PWs. 2, 4 & 5 later, as they are the prime and star witnesses to the prosecution.
9.3. PW.6-H.S. Manjunath is the panchwitness to Ex.P4, who has not supported the case of the prosecution. But, according to the prosecution, the police have seized the clothes of the deceased Gowramma as per MOs. 6 to 9 after the post-mortem examination of the dead body.
9.4. PW.7-Raghavachar is a formal witness, who is a goldsmith, who has weighed gold ornaments of the deceased, which were brought to the Police Station after post-mortem examination and which were seized under Mahazar Ex.P4. A formal cross-examination has been made to this witness and he also turned hostile to the effect that the clothes of the deceased were also seized under the mahazar. In the course of cross- examination he has stated that, he do not know anything about the case except signing the mahazar- Ex.P4.
14
9.5. PW.8-Ningaiah, has also not supported the case of the prosecution. The prosecution examined this witness to prove that the police have seized the clothes of Accused Nos. 2 & 3 which were produced by the complainant Gopal under Mahazar- Ex.P6 in the presence of PWs.2, 3 & 5.
9.6. PW-9-Mallesh is also a witness to Exs.P7, P8 & P15. It is the case of the prosecution that, under Ex.P7, the blood-stained clothes of Accused Nos.1 & 4 were seized under mahazar- Ex.P8 and also the seizure of Chopper from Accused No.6 was under
Mahazar-Ex.P50. It is also the case of the prosecution that, on the date of the incident, after coming to know about the alleged assault on Subbegowda and his wife-
Gowramma and death of Gowramma, PW.9-Mallesha went to the lands of Accused No.1-Puttegowda and himself and Palaksha took Subbegowda to hospital for treatment and Subbegowda told this witness that the accused persons have assaulted him and his wife and also chased his sons for the purpose of assaulting them because of the previous motive between them. But, he 15 has not supported the case of prosecution to any extent. His contradicted portion of statement is marked at Ex.P9.
9.7. PW.10-Annegowda has not given a detailed version about the seizure of blood-stained clothes. He in a very vague manner stated that, there were about four persons in the Police Station about nine years back, one is Puttegowda (A1) and another is Ningegowda (A2) and he do not now anything about other two persons. But, the police have seized some clothes under Mahazars-Exs.P10 & P11. No cross-
examination has been done to him by the public prosecutor to elicit in detail about those seized clothes and got them marked by showing to the same to this witness. Though this witness has not turned hostile, but there is no help to the prosecution, as he has not distinctly and definitely stated about such seizure.
9.8. PW.11-Kalingappa is also a panchwitness to the Mahazar- Ex.P12. He says that, no property was seized in his presence. But, it is suggested to him in the course of cross-examination that, after treating him 16 hostile, the police have seized the clothes of Accused Nos. 1 & 4 in his presence. Again the Public Prosecutor for the reasons best known to him, has not even shown the seized clothes to this witness to elicit anything about the same. Therefore, the evidence of this witness is also not much helpful to the prosecution and he was also treated hostile.
9.9. PW.12- Shanthamallppa is a panchwitness. Ex.P13 is also a mahazar regarding seizure of clothes of PWs. 5-Subbegowda. He has also not supported the case of the prosecution. No clothes were shown to this witness and got them marked. The evidence of this witness is also not helpful to the prosecution.
9.10. PW.13 -Basavaiah is a panchwitness to Ex.P14. He has also not supported the case of the prosecution. According to the prosecution, the police have shown a packet which contained pieces of scalp and prepared mahazar. But, no details have been put to his mouth, as the police have shown the scalp which was seized by the police. Therefore, the evidence of 17 this witness was also not much helpful to the prosecution.
9.11. PW.14-Chandrashekara is a panchwitness to the seizure of clothes of Accused No.5 under a Mahazar at Ex.P15. He did not support the case of the prosecution. Again, no such clothes were shown to this witness.
9.12. PW.15-Pavi Kumar. He has heard the sound of galalta from the land of Accused No.1- Puttegowda and he went to show the dead body of Gowramma lying in the land of Accused No.1. He has stated that, at about 11.00 to 11.30 a.m., on that day, when the Gowramma was got murdered, he was at a distance of about ½ or ¾ km. from the place of incident. He stated that, he heard the sound of galata from the land of Accused No.1-Puttegowda. When he went there, he saw Gowramma suffered head injury and slightly breathing. PW.5-Subbegowda has also suffered severe bleeding injuries and he stated not to reveal as to how he and his wife suffered injuries. He did not actually witnessed the incident. In the course of 18 cross-examination also he did not support the case of the prosecution, except stating that he has just seen the injured persons in the land of Accused No.1. His contradicted portion of statement is marked at Ex.P16. In course of cross-examination, he has just admitted that, when he went to the land of Accused No.1, he saw Gowramma was lying nearby Subbegowda and after seeing them in that position, he ran to his mother being afraid of the incident. He also never stated about the presence of any accused persons on the spot.
9.13. PW.16 is a formal witness. On 25.12.1997, he was in the Police Station working as a Police Constable, he has taken the FIR and handed over the same to the Jurisdictional Magistrate at 8.45 pm., on the same day. There is no much cross-examination, except putting a suggestion that, he has not delivered the FIR to the jurisdictional Magistrate.
9.14. PW.17-Ganapathy, is a person working as a Police Constable in the Out post of Kudlipet, attached to Shanivarasante Police Station. He has stated that, on 24.12.1997, at about 12.00 noon, he went along 19 with Daffedar to Kuldlur in connection with that case and on the same day at 12.00 noon and when he came to Police Station, PW.2-Palaksha and the complainant Gopala were there in the Police Station and they have informed about the incident orally and he went to the spot and saw the dead body of Gowramma and PW.5-Subbegowda was sitting having sustained head injury and Subbegowda informed that the accused persons threw chillipowder on the face of him and his wife and assaulted them, and this witness sent Subbegowda to the hospital along with Prakash and Mallesh. He has also carried a piece of skull bone of the dead body of the deceased-Gowramma. He has also stated that he had brought the clothes, jewellaries of the deceased after post-mortem examination of her dead body and produced the same before the Circle Inspector of Police and the said ornaments were seized under a Mahazar-Ex.P4. the said articles were marked as MOs. 6 to 9. He has also handed over the seized packet containing skull bone received from the Doctor 20 to the Circle Police Inspector and the same was seized under Mahazar-Ex.P17.
9.15. PW.18-Srinivas, who was working as a Police Constabe in Shanivara Santhe Police Station. He stated that, he has taken Accused No.5-Suresha to Government Hospital at Hassan on 06.01.1998 and after treatment, brought him back and clothes worn by him (A5-Suresh) viz, Shirt, Pant, underwear and banyan were produced and seized by the Investigating Officer under Ex.P18 and the Investigating Officer submitted a report to that extent as per Ex.P19.
9.16. PW.19-Venkatesh is the Police Constable, who carried the articles to FSL at Bengaluru on 7.3.1998 and he is also a formal witness and no much cross-examination has been done to him.
9.17. PW.20-J.T. Somaiah, who apprehended Accused Nos.2 & 3 on 26.12.1997 and produced them before the Investigating Officer with a report at Ex.P20, which is not much disputed in the course of cross- examination.
21
9.18. P.W.21 Dr C.K. Jayaram, was working as Senior Specialist in Chama Rajendra Hospital at Hassan. He has issued wound certificate pertaining to PW.5. He has stated that PW.5 has not suffered any fracture, and he has deposed, that he cannot say whether the said Subbegowda PW.5 has suffered any grievous injuries. Therefore, it goes without saying that PW.5 has not suffered any grievous injuries.
9.19. PW.22 Puttappa was examined to establish the fact that he received the information about PW.5 sustaining injuries, and death of Gowramma from Ravikumar and Puttamma. Thereafter, he went to the spot and saw PW.5 sustained with injuries and dead body of Gowramma at the spot. He was also examined to prove the motive, and is also a witness to inquest Ex P.22, but he has totally turned Hostile.
9.20. PW.23 is one Dodda Ningegowda. Through this witness the prosecution tried to establish the recovery of some articles like clubs, choppers at the instance of A2, A3 and A4 and A5 under mahazars, Exs. 22 P.24 to P.26. But this witness has not fully supported the case of the prosecution to any extent.
9.21. PW.24. Manjunath was another panch witness to Inquest Mahazar Ex.P22. But this witness was also not supported the case of the prosecution.
9.22. PW. 25 Mr. A.C. Siddaiah who was working as Police constable, who had the surveillance over accused No.5, who was in the Hassan Hospital up to 06.01.1998. Later this witness has produced accused No.5 and his clothes, as per M.Os. 12 to 14 the same were seized under Mahazar P-18. He has deposed that he has shifted Accused No.5 from Shaniwar Santhe Hospital to Hassan Hospital.
9.23. PW.26 Ashwath Murthy has deposed that he was working as PSI at Shaniwar Santhe Police Station during that relevant time. He has deposed that on 25.12.1997, at about 2.30 P.M., Head Constable from Kudlipet Out Post Police Station, brought one Gopal along with Complaint Ex.P-29, on which basis a 23 case in Crime No.224/1997 has been registered and dispatched the FIR to the Court as per Ex.P-30.
9.24. PW.27 Sreekantaiah was working as Head Constable at Kodli Pet out post Police Station during the relevant period. On 25.12.1997, he went to the spot along with P.C. Ganapati at 10.30 a.m.After inspecting the spot, he came back along with a person by name Gopal (Complainant in this Case), Palaksha (Injured), who have told that accused No.1 and his party have assaulted deceased Gowramma and caused injury to one Subbe Gowda. This witness has sent P.C. Ganapati to the spot and he took Gopal to the Station House Office at Shaniwar Santhe Police Station.
9.25. PW.28 E. Nagaraj, Head constable, has deposed that while he was working as Head Constable at Shaniwar Santhe Police Station, on 25.12.1997 he went to Shaniwar Santhe Hospital at 3.30. P.M. and saw the injured (Accused No.5) Suresh. He has also recorded the statement of the said Suresh and registered a case in Crime No. 225/1997 under Section 324 R/w. 34 of IPC as per Ex-P-31 (FIR).
24
9.26. P.W.29 Dr. Sridhar, has deposed before the Court that he was working as Medical Officer at C.H.C. Shaniwar Santhe. He has examined the injured (P.W.5) on 25.12.1997 at 3 P.M. He has issued a wound certificate as Per Ex-P.32 stating that, the said Subbe Gowda had suffered 4 injuries which were all simple in nature which could be caused with a weapon like MO.5 a Kathi. He has also conducted P.M. examination on the dead body of Gowramma on 26.12.1997 and issued P.M. report as per Ex. P-33 stating that, she died due to the head injury suffered by her. He has also given his opinion as per Ex.P-35 dated 23.04.1998 that the said injury could be caused if a person is assaulted with crowbar like M.O. 4.
9.27. P.W.30 Jayaram was the Investigating Officer who conducted the investigation after taking over the same from PSI shaniwar Santhe on 25.12.1997 and after competition of the investigation, filed the charge sheet.
10. In the light of the above evidence, we have heard the extensive submissions made by the learned 25 Senior Counsel for the appellants Shri Hashmath Pasha, for the accused and the Learned High Court Government Pleader for the State. We have carefully re-evaluated the oral and documentary evidence on record.
11. The learned Counsel for the appellants submitted that, the trial court has not properly appreciated the oral and documentary evidence on record. The trial court merely accepting the evidence in the examination-in-chief of the so called eye witnesses without even examining their veracity during the course of cross examination, mechanically convicted the accused persons. If the cross examination of the eye witnesses with reference to the evidence of the Accused No.5 who was examined as DW1, is appreciated in proper perspective, it creates a serious doubt with regard to the presence of PWs. 2 and 4 at the spot on the date and time and place of the alleged incident. Except the evidence of these two interested, and related witnesses no other incriminating evidence is available against the accused persons. He has further 26 submitted that when the case of the prosecution is entirely depends upon the interested, related and inimical witnesses, the courts should always be slow in recording the judgment of conviction.
12. Secondly, he seriously canvassed that, the trial court has not properly bestowed its attention, to the fact that, there was a case and counter case, and in counter case Accused persons have been acquitted. In this case the injuries on Accused No.5 Suresh has not been explained by the prosecution. On the other hand, the circumstances clearly disclose that the Accused No.5 has also suffered serious head injury in the same incident. The suggestions made to the prosecution witnesses, coupled with the defense oral and documentary evidence, it creates a serious doubt that, perhaps the accused No.5 while exercising his right of private defense has done some act, the said aspect has not been properly appreciated by the trial court.
13. The Learned Counsel also submitted that recovery of alleged incriminating articles has not been legally proved, and there is no connectivity between 27 alleged recovery with the crime. There is long delay in sending the seized and recovered articles to the F.S.L. None of the witnesse for recovery of any incriminating articles have supported the case of the prosecution.
14. The Investigating Officer has not properly done the investigation. He has not taken into consideration the counter case. But, in the course of cross examination he pleaded his ignorance regarding the injury to the accused No.5, and about the counter case. There are serious lapses in the investigation.
15. Last but not least he submitted that, even if the court comes to the conclusion that the prosecution has proved its case, but the offence may not fall under section 302 of Indian penal code but it may fall under Section 304 part II of IPC, so far as accused NO.5 is concerned. He has also submitted that offence under section 307 of IPC is also not made out by the prosecution. The facts even if it is accepted as it is, the offence may fall under section 324 or 325 of I.P.C. so far as other accused are concerned. 28
16. On the above grounds the learned counsel for the appellants have sought for allowing these appeals.
17. Per Contra, the Learned H.C.G.P Submitted that, there was a strong motive on the part of the accused, is established. The Eye witnesses are though relatives but their evidence is so creditworthy for acceptance. In fact, the accused persons during the course of cross examination have admitted the incident. The accused No.5 has specifically stated that he has also sustained injuries in the incident. On the other hand he pleads existence of right of private defense, but the same has not been proved. Therefore, the trial court has correctly arrived at a conclusion that the accused persons have committed the offences for which they are convicted. There is no ground or reason to interfere with the judgment of conviction and sentence passed by the trial court. Hence, he pleaded for dismissal of the appeals.
29
18. In the wake of the above said submissions now we would like to examine and re-evaluate the entire oral and documentary evidence on record.
19. The prosecution has mainly relied upon the evidence of the eye witnesses, motive factor and the recovery of incriminating articles at the instance of the accused, and their connectivity to the crime coupled with the admission of the incident by the accused, particularly by leading defense evidence also.
20. Now, we would like to consider the evidence of the eye witnesses first and the other circumstances later, to consider as to whether the prosecution has proved the case against the accused beyond reasonable doubt.
21. PWs.2, 4 and 5 are the eyewitnesses. Of course, they are related to each other. PWs.2 and 4 are the sons of the injured eyewitness PW.5. Deceased Gowramma is the wife of P.W. 5, and mother of P.W.2 and 4. There is no dispute that, there was a case and counter case, and in the counter case, PWs.2, 4 and 5 30 who were arraigned as accused, have been acquitted by the trial court on the same day of the judgment in this case. Another Eye witness PW.3 has not supported the case of the prosecution. Therefore, the evidence of these witnesses is only available to the prosecution to prove the incident, motive factor. In this background, it has to be examined.
22. We are also conscious of the principle that, when the case revolves around the related, interested, or inimical witnesses, the court should be very carefully and meticulously, scan the evidence of those witnesses to ascertain the reliability and credibility, before accepting their evidence.
23. In this back ground it is worth to mention here a decision of Apex Court reported in A.I.R. 1981 S.C. 942, between Ram Ashrith and others Vs State of Bihar, wherein the Hon'ble Apex Court has laid down certain guidelines, at para 12 and 18, which reads as follows:
"When all the material witnesses in a murder case were either, related or 31 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, in the absence of corroboration to a material extent, in all material particulars. It was extremely hazardous to convict the accused persons on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable versions and material infirmities.
Bearing in mind the above principles now we proceed to analyze the evidence of these witnesses first.
24. PWs.2, 4 and 5 have almost deposed in the similar way regarding the happening of the incident. They have stated in their examination chief that, on the date of the incident, PWs.4, 5 and the deceased Gowramma had been to their land at 7.a.m. for the purpose of harvesting crop. PW.2 who was in Hassan town also came to the land at about 9 a.m. The incident actually happened at 11 or 11.30 a.m. They further deposed that, at about 11 or 11.30 a.m. they all started moving towards their house for the purpose of taking 32 food. The deceased Gowramma and PW.5 Subbegowda were moving little ahead of PWs. 2 and 4. When P.W 5 and Gowramma reached near the Kana (cleaned portion in a land for separating the grains from paddy hay) of the Accused persons. At that time all the accused who were holding deadly weapons like clubs and choppers in their hands, abruptly intercepted the way of P.W. 5 and the deceased Gowramma. Accused No.1 Puttegowda was holding a box containing chili powder, Accused No.2 was armed with a club, Accused No.3 and Accused No.6 were holding choppers (kathi), Accused No.5 was holding a Crowbar (Haare), Accused No.4 was also holding a Club. It is further deposed by them that Accused No.1 Puttegowda splashed chili powder on the face and eyes of deceased Gowramma and on the chest of PW.5 Subbegowda and the other accused have assaulted PW.5 Subbegowda and Gowramma, due to the impact Subbegowda suffered some serious injuries, and later shifted to hospital. However Gowramma who had suffered head injury died at the spot. They all further explained the injury sustained by accused No.5, 33 deposing that, in the galata, accused No.6 attempted to assault PW.5 as PW.5 avoided the blow, the blow fell on accused No.5, due to which he also might have suffered some injury. They have also identified before the court the material Objects such as MOs.1 to 5 weapons used by the accused persons on that day.
25. PW.2 has specifically stated about the overt acts of other accused except Accused No.4. He has stated that Accused No.5 has assaulted with a Crowbar on the head of deceased. Accused No.2 assaulted on the leg of the deceased. Accused No.3 and 6 have assaulted PW.5 Subbegowda on the head and leg with choppers. Due to the impact, deceased Gowramma died at the spot, whereas PW.5 was shifted to the Hospital. His father Subbegowda suffered injuries to his head and leg. He has further deposed that himself and PW.4 ran towards a road situated at a distance of 20 ft, they met C.W.1 Gopal, and went to Kodli pet police station and along with a police constable they went to Shanivaarsanthe police station, and there, C.W. 1 has lodged a police report as per Ex.P.2. In the mean time 34 Mr. Mallesh and Prakash shifted P.W. 5 Subbegowda to the hospital.
26. PW.4 has specifically stated about the overacts of all the accused in similar fashion but in addition he has stated that A2 has also assaulted with a club on the head of deceased Gowramma. Both of them have invariably stated that the incident was actually seen by C.W.1 Gopala and their aunt Lakshmamma, Ravi, and Swamy. But except Swamy, others have not been examined by the prosecution.
27. PW.5 injured eye witness apart from deposing in similar fashion in addition to the above he has deposed that, Accused No.6 has also assaulted with a chopper on the head of the deceased Gowramma. Accused Nos.3 and 6 have assaulted this witness with chopper and club. Accused Nos.2 to 6 have also chased PWs.2 and 4 but they successfully ran away from the spot. Mr. Mallesh and Prakash have shifted this witness to the Hospital. He has also deposed that he has taken treatment at Shanivaarsanthe and Hassan Government Hospitals. Very peculiarly enough, he had not stated 35 about any assault by Accused No.2 on any part of the deceased.
28. It is specifically noticed that none of the above witnesses have stated anything about the overt act of accused No.4 Siddaramegowda. Perhaps that may the reason the trial court has rightly acquitted the said accused. There is no need for us to discuss anything more on this aspect.
29. Before adverting to the cross examination of these witnesses we feel it just and necessary to have the evidence of DW.1, as it would be easy to appreciate the other evidence on record.
30. DW.1 Suresh (Accused No.5) has deposed that PW.2 Palaksha and PW.5 Subbegowda have assaulted him with a Sickle, PW.4 Suresh assaulted him with a club and he sustained injuries. He has also lodged a complaint before Shanivaarsanthe Police registered in F.I.R. No 225/97 (but wrongly stated as F.I.R No 657/97). The said fact is also evidenced by Ex. P.31. It is also admitted by him that, after investigation 36 the police have filed a 'B' summary report in the said case. But after contest a counter case has been registered on the basis of objections filed to 'B' report as per EX.D-1 and later committed to the trial Court and a Sessions case has been registered in SC No.13/2004. It is also not in dispute that in the said case the accused have been acquitted. He has also produced his deposition copy as per Ex.D2. (Evidence recorded in SC No.13/2004), and the injury certificate to show that he has also suffered injury in the same incident as per Ex.D.3.
31. In the light of the above said evidence, it is clear that the accused have actually admitted the incident happened. However, DW.1 has not in detail stated as to how the incident started, who assaulted first on whom and what are all the injuries sustained by the parties to the gallate etc. But in a very vague manner and in an omnibus manner he has given the skeletal picture of the incident. He has also not made any efforts to explain the injuries found on the deceased Gowramma and Subbegowda (PW.5) and as 37 to how the death of the deceased Gowramma occurred. Therefore, his evidence is not a complete evidence to draw any inference. Here itself we may also mention that his evidence is far away from the contents of Ex.P.31 and Ex.D1. As admitted by him about filing of the complaint by him as per the said document, there is no legal impediment for this court to rely upon the same.
32. In Ex.P.31 (F.I.R. in the counter Case) he has little bit in detail explained as to how the incident has happened. It is stated therein that, on 25.12.1997 at about 11.00 a.m. when this witness was proceeding towards his land and when he reached the Kana in the said land, at that time PW.2 Palaksha, and deceased Gowramma came from backside, and saying that DW.1 has spoiled the life of sister of PW.2, and also abusing DW. 1 with filthy language. P.W. 2 has assaulted with a chopper (Kathi) on the left side head and right hand of D.W.1. At the same time P.W. 5 Subbegowda assaulted D.W.1 with a club on the left side thigh, due to the impact D.W.1 fell down, but swiftly he rose up and 38 snatched the club from the hand of Subbegowda, and assaulted deceased Gowramma and Subbegowda, and thereafter he lost his consciousness. It is further stated therein that he was admitted to the Hospital and there he has lodged a report as per Ex. P31.
33. Of Course, the evidence of D.W.1 is also to some extent corroborated by Ex.D3 Injury Certificate, which shows that on the said date he has suffered some injury to his head and hand. But for the reasons best known to D.W.1, the contents of Ex. P31 has not been translated into evidence so as to draw any inference that P.Ws.2, 5 and deceased Gowramma were the aggressors, and in exercise of his right of private defense Accused No.5 (D.W.1) has assaulted the deceased and P.W.5. In the absence of any such evidence on record it is not safe on the part of this court to re-construct the case in consonance with EX.P.31 or Ex. D1. However, it can only be taken as an admission on the part of D.W. 1. Therefore, from reading the evidence of D.W.1 and also Ex.P.1, EX. D1 and D3, there is no difficulty for the court to draw an 39 inference that some gallata had taken place between two groups and some of them have suffered injuries. In this back drop the cross examination of P.Ws. 2, 4 and 5 has to be tested, as to whether there is any evidence to show as to who was the aggressor and how actually the incident happened, whether it was as per the story narrated by prosecution witnesses or D.W.1. Suresha.
34. P.Ws.2, 4 and 5 in fact have similarly cross examined with regard to the incident apart from eliciting, delay in lodging the F.I.R. and as to why PWs.2 and 4 themselves have not lodged the complaint, and also the topography of the scene of offence etc. ln our opinion all those things will become insignificant, in view of the incident being admitted by both the parties. Though it was argued by the learned Counsel for the appellants that the presence of P.Ws. 2 and 4 was doubtful, but in view of the specific admission on the part of D.W. 1 that P.Ws. 2, 4 and 5 have assaulted him with sickles and club, and also spoken about the presence of deceased Gowramma in EX.P.31 and Ex.D1. 40 There is no need for us to discuss that evidence in the cross examination of P.Ws. 2, 4 and 5.
35. In the Course of Cross examination of P.Ws. 2, 4 and 5, regarding the incident, particularly it is suggested and elicited that; on the date of incident both the parties had been to their respective lands. Accused persons had already cut the crop in their land. P.W.2 has stated that the accused persons were hiding in their land, and he has seen them but he did not inform his father and mother not to pass through the land of the accused. He also followed his father and mother. Perhaps he might not be knowing that the accused may attack them, but as usual the accused might have gone to their land. There is no explanation as to how the accused could hide themselves in the paddy land. The growth of paddy in our opinion and experience may not be more than 2 feet to 2 and a half feet, if any body doing work inside the paddy land, one will be visible to another. Therefore, this might have been misconceived by PW.2, that the accused persons were hiding in their kana. Moreover, in Kana no body can hide because it is 41 an open and cleaned place. Of course, from the evidence of PWs. 2 and 4 it reveals that, they have not lodged any complaint, but there is no reason to disbelieve them for that reason, because C.W. 1(who is also an eye witness) is no other than the brother of P.W.5. and no reason for C.W. 1 to falsely implicate the accused. As nothing is elicited that C.W. 1 has any enmity against the accused. It is also in the evidence that, he actually frightened with the incident, himself and P.W. 4 have explained the incident to C.W.1 and in turn he lodged a complaint. The lodging of a counter complaint was suggested and witnesses have also admitted a case being registered against them in Cr. No 225/97 by Shanivaarsanthe police. It is also invariably suggested to P.Ws.2, 4 and 5 by virtually translating the contents of Ex.P.31 and counter complaint (Ex.D1) to the effect that; on 25/12/1997, P.Ws. 2, 4 and 5 have assaulted accused No.5 with a bill hook at 11 a.m. on which basis a counter Session case has been registered against them in S.C. No.13/2004. This version by way of suggestion amply clears the doubt 42 that, the Accused persons commonly accepted the presence of P.Ws.2, 4, 5 and the deceased and Accused No.5 at the time of the incident. It is also suggested that; on the day and time of the incident, P.Ws.2, 4 and 5, after assaulting Accused No.5, who sustained injury and fell down, thereafter thinking that he is dead, all of them were returning, at that time deceased Gowramma questioned P.Ws.2, 4 and 5, in turn all of them have also assaulted Gowramma , therefore, she sustained injuries and died, in this context P.W.5 also sustained some injuries. These suggestions have been denied by the witnesses. In fact, these suggestions, runs contrary to Ex.P.31, Ex. D.1 and the evidence of D.W.1, as we have already discussed. The story suggested to the witnesses do not stand to any logic at all because, why P.Ws. 2 and 4 have to assault their father and mother, is not at all with acceptable evidence established. Therefore, such fertile imagination cannot be accepted. But by these suggestions the facts remain that, the accused have virtually admitted the happening 43 of the incident in their own way with different story which they have failed to establish.
36. It is evident from the record that in Counter case in S.C. No.13/2004, P.Ws.2, 4 and 5 who are arraigned as accused acquitted by the trial court on the same day on which day, the judgment in this case was pronounced. Against the said judgment of acquittal, the Accused No.5 has also preferred an appeal before this Court in Criminal Appeal No.586/2016. We have heard the said appeal along with these appeals and dismissed the said appeal filed by Accused No.5 as no grounds are made out to interfere with the judgment of the trial court in acquitting P.Ws.2, 4, and 5( accused) in the said case. This also strengthens the case of the prosecution.
37. It is also observed by us in the cross examination of these witnesses, that, on the day of incident, admittedly both parties had been to their lands in the morning itself. They had done some harvesting work in their respective lands. There was no quarrel till 11 or 11.30 a.m. It is the case that when P.Ws.2, 4 44 and 5 and the deceased were passing through the land of Accused No.1, the gallate suddenly cropped up, and an unpleasant incident had taken place. Therefore, as rightly submitted by the learned counsel the court cannot infer any premeditation or preplan to execute the same on that day by the accused persons. It also goes without saying that for the purpose of harvesting the crop both the parties had some agricultural equipment's like sickles in their hands. In a quarrel both of them might have used the weapons against each other. This aspect also should be borne in mind by the court while considering the overacts of the accused persons.
38. Regarding injury to Accused No.5 an unsuccessful attempt was made without any basis by P.Ws.2, 4 and 5 by creating a story that; when Accused No.6 made an attempt to assault P.W.5, then P.W. 5 escaped, and the blow fell on the head of Accused No.5. But all of them have admitted, that they have not stated the said fact before the police in their statement recorded under section 162 Cr.p.c. The Investigating 45 Officer P.W.30 has also admitted the same in his evidence. This material improvement has been proved before the court. Therefore, such portion of the evidence of these witnesses cannot be accepted. Therefore, the facts remain that the prosecution has not successfully explained the injuries sustained by the accused No.5. The evidence of DW.1 Suresh (Accused No 5) is also supported by the evidence of P.W. 25 who apprehended Accused No.5 from Hassan Hospital. It is also clear from the evidence of D.W.1 that though he has stated something else in Ex.D-1, regarding happening of the incident and as to how Gowramma and P.W.5 Subbegowda have sustained injuries, but in the evidence he has also not explained as to how the injuries sustained by Gowramma and why she died, and how P.W. 5 sustained injuries. Therefore, it is clear that none of the parties have satisfactorily explained the injuries sustained each other. The evidence of D.W.1 does not disclose that, P.Ws.2, 4 and 5 have first assaulted him and therefore while exercising his right of private defence he assaulted Gowramma and 46 Subbegowda. In the absence of such evidence it cannot be said that P.Ws.2, 4 and 5 are the aggressors. On the other hand P.Ws.2, 4 and 5 have categorically stated that Accused No.1 started the quarrel and Accused Nos.2 to 6 have assaulted them, but they never stated who assaulted Accused No.5, when the story of accused No.6 attempted to assault P.W.5 and the blow fell on accused No.5 is not accepted.
39. In the above said circumstances, it can be safely said that, without there being any pre- meditation, or pre-plan by both the parties, the incident must had happened in a spur of a moment after both of them met in the land of accused. When common intention and formation of unlawful assembly with common object, prior to the parties gathering on the spot, cannot be successfully delineated by the court, in such an eventuality the individual intention or knowledge of their acts have to be taken in to consideration.
40. Before proceeding to other aspects, the defence taken up by Accused No.5, that he has 47 exercised his right of private defence is required to be considered in detail. Of course we are also conscious of the legal principle that under section 105 of the Indian Evidence Act, the burden of proving that the alleged offence falls within the exception of exercise of right of private defence under sections 96 to 100 of Indian Penal Code, lies on the accused, and that, the said burden can be discharged on the basis of preponderance of probabilities. However, it is also to be borne in mind that the accused at least has to satisfy the standard of a prudent man. He must also be fair and honest in explaining the circumstances under which he was inevitably forced to exercise his right of private defence. Of course, accused No.5 need not even raise that plea either in his 313 Cr.PC. statement, nor if he needs to enter into defence evidence, but his fairness and honesty in disclosing the facts must be borne out from the entire records by the court, which is conspicuously absent in this case. It is the duty of the accused also to explain the overt acts done by him, then only such act done by him can be tested whether 48 he has done that act in exercise of his right of private defence or not. When particularly Accused enters into the witness Box he has all the opportunity to give a full picture of the incident as to how he reacted to the acts of the prosecution witnesses who alleged to have assaulted him. On facts, Accused No.5, examined as D.W. 1 has never even spelled out that he assaulted any body on that day to protect himself. He also not explained how P.W.5 and deceased Gowramma have sustained injures. At the cost of repetition, we may say that, there is no allegations of whatsoever against deceased Gowramma that she has assaulted Accused No.5, but he dealt a severe blow on her head to cause the death. This fact in our opinion is sufficient to hold that he has not satisfied the standard proof at least as an ordinary prudent man.
41. In the above context before dealing with individual acts, we would like to precisely deal with other evidence, like medical evidence, and recovery of incriminating articles and motive factor. 49
MEDICAL EVIDENCE.
42. The prosecution has also placed sufficient materials to establish the injuries suffered by P.W. 5 Subbegowda, and regarding Homicidal death of deceased Gowramma. More so there is no dispute so far as these aspects are concerned. We have extensively discussed about the evidence of Eye witnesses and the evidence of D.W. 1, wherein the incident, and injuries to P.W. 5 and death of Gowramma are not in dispute rather both facts are admitted. However, in order to ascertain the nature of the injuries suffered by P.W.5 and the deceased, and in turn to consider the other submissions made by the learned counsel for the appellants, it is just and necessary to refer the same.
43. P.W. 29 Dr Sridhar has deposed that he was working as Medical officer in C.H.C. Shanivaarsanthe. He has examined P.W.5 Subbegowda on 25.12.1997, and he found the following injuries.
(1) Incised injury on left occipital area measuring 1cmx1cmx1cm.50
(2) Incised injury on right occipital area measuring 1cmx1cmx1cm (3) Incised injury on the middle of the head measuring 1and half inch x1cmx1cm (4) Swelling on both hands.
He has also issued would certificate as per Ex.P.32 stating that those injuries are simple injuries.
44. He has further deposed that on the same day he has also conducted the post mortem examination on the dead body of deceased Gowramma between 9.a.m. to 11.30 a.m. He found the following injury.
1. 15cmx9cmx6cm, dimension deep seated injury on occipital area of the head. The occipital bone was made into pieces and one piece measuring 3 x 1- inchdimension, and another was missing. Brain pieces were oozed out from that place.
2. Big contusion 14 cm x 10 cm on right leg calf region.
51He has also opined that occipital bone and cerebral membrane and brain tissues were severely injured blood was oozing out from the injury. On the basis of such observation he has issued a P.M. report as per Ex. P 33 stating that the death was due to injury No 1, to the vital organ brain. He has also opined that such injuries could be caused if a person is assaulted with a crow bar like M.O.4.
45. In the course of cross examination, there is no much dispute regarding sustaining of injuries by P.W. 5 and deceased Gowramma. On the other hand, it is suggested that the injury No.1 on P.W. 5 could be caused due to fall on hard object, and injury No.2 to 4 could be caused in a mob fighting. The doctor has accepted the said suggestion.
46. So far as deceased Gowramma is concerned, it was suggested that, the injuries could be caused by a fall from a height, but the said suggestion was denied. However, he has admitted that the second injury was a simple injury. He has also accepted the suggestion that 52 the first injury could also be caused even by assault with a club.
47. The above evidence rather fully supports the story narrated by the eye witnesses. It is the argument of the learned Counsel for the appellants, that Accused No.5 has actually suffered injury to his head due to the assault by P.Ws. 2, 4 and 5 with choppers and club, he fell down and immediately he snatched the club from the hand of P.W.5 and assaulted the deceased Gowramma and P.W.5. But the injuries suffered by Subbegowda are all incised wounds which cannot be caused if a person is assaulted with a club. There is not even a suggestion that injuries found on P.W. 5, could be caused with a club. Therefore, the story stated by Accused No 5, is not acceptable. The injury suffered by Smt. Gowramma was so serious, only one blow was damaged the head and head was broken into pieces. The doctor though stated that injury could also be caused by a hit with a club, but there is no cross examination so far as the dangerous nature of the injury sustained by her. Therefore, the case of the 53 prosecution as projected by it is fully supported by the Medical evidence also.
47. However, on perusal of the injuries sustained by P.W.5 which are not grievous in nature, and the doctor has also not stated that those injuries, though suffered by P.W. 5 on his head and to his hand etc, are sufficient to cause the death of a person in the ordinary course, in a straight jacket manner attract, so as to attract the provisions of Section 307 I.P.C. When the injuries are simple, though they are on vital part, and no further attempt was made by the accused persons to further assault PW.5, it cannot be said that the prosecution has made out a case against Accused Nos. 3 and 6 for the commission of an offence under section 307 of I.P.C. However, it can be said that the offence would fall under section 324 of IPC.
RECOVERY:
48. So far as recoveries are concerned, the prosecution has only the evidence of the Investigating Officer P.W.30 Jayaramu. So far as other witnesses are concerned, they have not supported the case of the 54 prosecution. Whether his evidence can be solely relied upon is the question that has to be considered after evaluating his evidence.
49. It is the case of the prosecution that under Ex.P.4 the investigation officer has seized the articles, clothes belonged to the deceased Gowramma, which are marked at M.Os.6 to 9. Of course, P.W. 6, has supported this aspect. Those items were according to the prosecution were stained with blood.
50. P.W.30. has deposed that after arrest of the accused persons he has recovered certain articles from them. Under Ex.P.39 he has recovered the clothes of Accused Nos.2 and 3 that is Shirt, pant of A2 marked at M.Os.24 and 25, Shirt, Pant and Sweater of A3 marked at M.Os.26 to 28. P.Ws.8, 9 and 10 are the witnesses to this mahazar, they have not supported the case of the prosecution. P.W.10 though stated that A1 and A2 were present in the police station on the day of recovery but not identified the cloths.55
51. He has also deposed that under Ex.P.41 he has recovered some clothes from A-1 and A-4. A shirt and Panche of A-1 marked at M.Os 29 and 30, a shirt and a lungi from A-4 marked at M.Os. 31 and 32. In the presence of panch witnesses, P.W.9, 10 and 11.
Those witnesses have turned Hostile to the prosecution.
52. He has further deposed that, under Ex P.42 he has recovered blood stained clothes of P.W.5 Subbegowda which are marked at M.Os. 11 and 12, in the presence of mahazar witnesses P.Ws. 8 and 12. Those witnesses have also not supported the case of the prosecution.
53. It is the case of the prosecution that under Ex.P.18 in presence of Panch Witness P.W.14, a shirt and pant of Accused No.5 were seized. But P.W. 14 also not supported the case of the prosecution.
54. Apart from the seizure and recovery of above articles, like clothes, the Investigation Officer P.W.30 has also deposed that, after arrest of the accused Nos.1 56 to 6, he has also recovered, some incriminating weapons, from the accused persons, on the basis of the voluntary statements of the accused person. He has stated that, under Ex.P.24 he has recovered a club M.O.2 from A-2, under EX.P.25, he has recovered a club M.O. 3, from Accused No 4, under Ex.P.26 recovered one Chopper (Kathi) marked M.O.5 from accused No 3, under EXP.44 recovered , a crowbar (Haare) from A.5. For all these mahzars, P.W. 23 was a panch witness, who has not at all supported the case of the prosecution. P.W.30 has also further deposed that after arrest of Accused No.6 after long time he has recovered one Chopper (Kathi) under a mahazar Ex.P.50. P.W. 3 and 9 are the panch witnesses to this mahazar, they have also turned Hostile to the prosecution.
55. P.W. 30 in his evidence has clearly admitted that he has sent the articles seized and recovered F.S.L. report for chemical examination on 3.3.1998. It is evident from the records, that he has recovered all the articles lastly on 1.2.1998, from A-6 and other articles 57 he had recovered before 7-1-1998, but for the reasons best known to him he has kept all the articles with him till 3.3.1998. He has not given any explanation for the same. This attitude of the Investigation Officer severely damaged the recovery story of the prosecution, if we read the evidence of PW. 1 with reference to Ex. P.46 and Ex. P1.
56 P.W.1 has deposed that he was working as Asst. Serologist and Chemical examiner in the institute of Serology at Calcutta. He has received 23 samples from Karnataka State Forensic Science laboratory Bangalore and he found item numbers 3, 4, 9, 14, 16, 19, 20, 21 and 22 were only stained with human blood. However the origin of the remaining samples could not be ascertained. He has also deposed that items 9, 13, 14, 19 and 21 were found with "B' group blood. Remaining were insufficient for the test.
57. On careful examination of the evidence and materials by the Court, Item Nos.9 and 19 are the shirt and Banian of P.W.5. Item Nos. 13 and 14, a shirt and 58 Panche, said to have been recovered from Accused No.
1. And Item No.21 belonged to Accused No.5 were only stained with "B" group blood. Which only tallied with the Blood group of P.W.5. The other material objects pertaining to deceased were not subjected to test as they were all disintegrated. Further all the weapons, alleged to have been used by the accused though sent to F.S.L and for chemical examination, no results available supporting the case of the prosecution.
58. Therefore, first of all the sole evidence of the Investigation Officer considering his conduct regarding recovery of articles, and keeping them with him for such a long time without any explanation cannot be relied upon. Even for the worst his evidence is as it is accepted, the Chemical examiners report also does not in any way supports the case of the prosecution. Therefore, no reliance can be placed on alleged recovery of material objects from accused persons. Hence, the prosecution has not proved this circumstance beyond reasonable doubt. 59
MOTIVE
60. The evidence on record disclose that both parties had strong motive, to inflict against each other. The evidence of P.Ws.2, 4 and 5 evidence require to be considered in this regard. It is a time tested settled principle of law that, motive takes the back seat when the prosecution is able to establish its case through the credible and reliable evidence of eye witnesses. The motive is double edged weapon which may cut the root of the prosecution or it may also strengthen the case of the prosecution. It can only be tested with other circumstances, to ascertain whether it probabalises the case of the accused compared to the proved case of the prosecution. In this backdrop the motive factor has to be considered.
61. The evidence of the prosecution as per the say of P.Ws.2, 4 and 5, is that, the accused No.5 had developed love affair with the daughter of P.W.5, by name Chandramathi due to which she became pregnant and delivered a child. The family members of P.W. 5 have requested Accused No.1 to perform the marriage 60 of Chandramathi and Accused No.5, and also requested Accused No.5 to marry Chandramathi, in that context they refused for the same and denied such relationship between accused No.5 and Chandramathi. This attitude of the accused persons frustrated Chandramathi, and due to such frustration, she committed suicide with the child, by jumping into a well.
62. P.Ws.2, 4 and 5 have invariably stated about the existence of the above motive. It is also stated by them that on the day of the incident also for that reason only the quarrel took place. On the date of the incident, the accused have started quarrelling questioning P.W. 5 as to why he has lodged a complaint against Accused No.5, making such false allegation, regarding the relationship with Chandramathi, and there after incident appears to had happened.
63. This motive factor is also fully supported by the documentary evidence placed before the court. Ex.P.47 and Ex.P.48, are the First information reports registered on the basis of the complaint lodged by Chandramathi against Accused No.5, for the offence 61 punishable under section 417 of IPC (initially registered), in Crime No.154/97 later after the death of the said Chandramathi and the child, further provision have been added under sections 376, 420, 306 and 506 of Indian penal code. The said Chandramathi has alleged that accused with an assurance to marry her, committed rape on her, later he refused to marry her and therefore she committed suicide with the child. This factum lodgement of the complaint by Chandramathi has not been denied by the other side. In fact, the suggestions made to P.Ws.2, 4 and 5 amplifies the said fact. It was suggested to them that, Chandramathi had illicit intimacy with some of her co-worker, as the said person has not acceded to marry her, P.W5 and his family members have created a story against Accused No.5, to see that Chandramathi was given in marriage to accused No.5, so as to avoid disgrace to their family. It was also suggested that they also requested Accused No.1 Puttegowda to screen the pregnancy and terminating the pregnancy of Chandramathi, and Accused No.1 refused for the same. This also fortifies 62 that some talks do taken place between the parties in this regard. What was the necessity for P.W.5 to request Accused No.1 to help for terminating the pregnancy of Chandramathi, if at all there was no truth in the relationship between Chandramathi and accused No 5. It is also suggested to them that the accused No. 5 has been acquitted in the case filed against him by Chandramathi registered in S.C. No.34/99. This aspect also shows that, there was no denial of the case being registered against Accused No.5. Though Accused No.5 was acquitted in the said case perhaps due to the death of Chandramathi the fact remains that the allegations have been seriously made against Accused No 5.
64. Coupled with the above facts, the accused have also made suggestions admitting certain facts. It was suggested to P.W.2 that; after the death of Chandramathi, P.Ws. 2, 4 and 5 were watching the movements of A5 to murder him, A5 has lodged complaints against them. It was also suggested, after the death of Chandramathi, Manjunath, and Nagraj have assaulted Accused No.5 in his room and also 63 abducted him and threw him into a well etc. This aspect also suggestive of existence of strong motive, that both the parties have been seeking opportunities to inflict against each other.
65. Apart from the above, it is also not in dispute as per the suggestions made to P.Ws. 2, 4 and 5, that, Accused No.1 Puttegowda was also murdered, and there was a case against P.Ws.2, 4 and 5 as accused persons in S.C. No 67/2002, and that in that case also P.Ws. 2, 4, and 5 were acquitted.
66. These admitted facts show that though the accused persons and eye witnesses were acquitted in some other cases, but the fact remains that they had long standing enmity between each other. Therefore, we are of the opinion that the prosecution has also established the existence of motive as projected by it. But we may also say that by means of preponderance of probabilities the accused have also established the motive on the part of P.Ws.2, 4 and 5. Therefore, both parties had enmity between each other. This aspect has to be borne in mind by the court.
64
67. After due appreciation, we are of the opinion that the prosecution has proved beyond reasonable doubt, the happening of the incident, death of deceased Gowramma, and injuries sustained by P.W. 5 at the instance of the accused persons. As we have already observed that, there was no premeditation, or preplan by either of the parties to inflict injuries against each other. Therefore, the common intention or common object cannot be in a strait jacket manner inferred. Hence, we are of the opinion, that the individual act of the accused shall be taken into consideration for the purpose of ascertaining what offence exactly they have committed.
68. At the cost of repetition, and looking back to the evidence of P.Ws.2, 4 and 5. P.W 2 has specifically stated that A-5, assaulted the deceased with a Crowbar on the head. A-2 has assaulted on the right leg calf of the deceased. A-3 and A-6 have assaulted P.W. 5. P.W. 4 has stated that A-5 has assaulted on the head of the deceased and A-2 has assaulted on the head and leg of the deceased, A3 and A6 have assaulted P.W. 5. 65 In fact, P.W. 5 injured has stated A-5 assaulted the deceased with crowbar, A3 and A6 have assaulted him. But he has not stated any assault by A.2 on the deceased. None of them have implicated Accused No 4. The above said evidence if it is seen in the light of the evidence of the Doctor P.W. 29, who has stated that there, was only one injury on the head of the deceased which caused the death of the deceased. Therefore, it must be the blow given by A-5 which caused the death of the deceased. There is no corresponding injury to the alleged blow by A-2 and A-6. There is no consistency in the evidence with regard to A-2 and A-6 assaulting the deceased. Therefore, it cannot be said that the prosecution has proved the case under section 302 I.P.C. so far as A-2 and A-6 are concerned. However, it is clear that the prosecution has made out a case against A-2, that he has caused simple injury to the deceased to her right leg calf which attract section 324 of I.P.C. There is consistency and strong evidence to establish that A-3 and A-6 have assaulted P.W.5 and caused simple injuries to him. There is no evidence 66 from the doctor that the injuries suffered by P.W. 5 are sufficient to cause the death in the ordinary course. Therefore, it cannot be said that A-3 and A-6 had any intention to commit the murder of P.W.5. so as to attract and attempt in that line to invoke section 307 of I.P.C. However, it is clear from the evidence that they have also caused simple injuries to P.W. 5 which would attract section 324 of I.P.C.
69. Remaining is the act of Accused No 5. In the light of the re-appreciation of entire evidence, we have observed by us that, there was no pre-meditation or pre-plan, or preparation by either of the parties to quarrel or to fight with each other. Though both parties had been to their lands in the morning hours approximately at 7.a.m. there was no quarrel till 11 a.m. However, when both parties confronted each other at 11.a.m. suddenly the quarrel appears have taken place, and the incident had happened. The Accused No 5 has also suffered injury. In the Gallata, the accused might had hit the deceased. He has given only one blow. That shows that he might not had any 67 such intention to cause the death of the deceased, but in the gallata it must had unknowingly happened. However, weapon used by Accused No 5 and the selection of head portion of the deceased to hit, shows that he had sufficient knowledge, that there is likely hood of his act causing the death of the deceased. Therefore, in our considered opinion the act of Accused N 5 falls under section 304 part II of I.P.C. land not Under section 302 of I.P.C. Therefore, we prefer to convict him for the said offence.
70. For the afore mentioned reasons we proceed to pass the following order:
ORDER
1. The appeals are here by partly allowed.
2. The judgment of conviction and sentence passed by the trial Court, in S.C. No.29/1998 dated 8-12-2015, for the offence punishable under sections 143, 147, 148, 341, 302 read with Section 149 against Accused No.2, 5 and 6, and also under sections 143, 147, 148 and 307 I.P.C. against Accused No.3, are here by set-aside.68
3. The accused are acquitted for the above said offences.
4. However, Accused No.5 is convicted for the offence punishable under section 304 (II) of I.P.C. and sentenced him to under go rigorous imprisonment for 8 years and to pay a fine of Rs.50,000/- in default to under go simple imprisonment for 2 years.
5. Accused Nos.2, 3 and 6 are convicted for the offence under section 324 of I.P.C. and they sentenced to undergo Simple imprisonment for a period of 3 years, and to deposit compensation of Rs.10,000/- each, before the trial Court within Three months from the date of pronouncement of this judgment. Otherwise the same shall be recovered by the trial court.
6. The entire compensation amount and out of the fine amount if deposited, an amount of Rs.30,000/- shall be paid to P.W.5, by the trial Court on proper acknowledgment and identification.
7. The substantive sentence of imprisonment shall run concurrently.
8. Appellants/Accused are entitled for set-off under section 428 of Cr.PC.
9. The rest of the order passed by the trial court regarding disposal of the properties are not disturbed.69
Registry is here by directed to communicate this order to the concerned jail authorities forthwith for implementation and to release the accused/appellants, if they are in jail, who have already served the sentence passed above and paid the fine amount, and if they are not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE KGR/PL*