Karnataka High Court
Ganapathi Hanuma Naik vs The State Of Karnataka on 16 March, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.100265/2020
BETWEEN:
1 . GANAPATHI HANUMA NAIK
AGE: 52 YEARS,
OCC: FOREST WATCHMEN,
2 . PRASAD GANAPATI NAIK
AGE: 26 YEARS,
OCC: GOUNDI WORK,
3 . PAVAN GANAPATI NAIK
AGE: 24 YEARS,
OCC: ELECTRICIAN,
ALL ARE R/O: KANGOD,
SIDDAPUR TALUK,
UTTARA KANNADA DISTRICT.
.. APPELLANTS
(BY SRI. B. ANWAR BASHA, ADV.)
AND:
THE STATE OF KARNATAKA
(THROUGH SIDDAPUR P.S.),
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA AT DHARWAD.
.. RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
Crl.A. No.100265/2020
2
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF
CONVICTION DATED 20/11/2019 AND SENTENCE DATED 21/11/2019
PASSED IN S.C. NO.5016/2018 PASSED BY THE IST ADDL. DISTRICT
AND SESSIONS JUDGE, KARWAR SITTING AT SIRSI AND TO ACQUIT
THE APPELLANTS/ACCUSED NO.1 TO 3 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302, 307, 504 R/W 34 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING AND RESERVED
ON 23.02.2022 AT DHARWAD BENCH, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT BEFORE THE PRINCIPAL BENCH AT
BENGALURU, THIS DAY, DR.H.B.PRABHAKARA SASTRY, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The present appellants have challenged their conviction for the offences punishable under Sections 302, 307 and 504 read with Section 34 of the Indian Penal Code (hereinafter for brevity referred to as 'IPC') and order on sentence passed by the learned I Additional District and Sessions Judge, U.K. Karwar, sitting at Sirsi (hereinafter for brevity referred to as 'Session Judge's Court') by its judgment of conviction dated 20.11.2019 and order on sentence dated 21.11.2019 in S.C. No.5016/2018.
2. The summary of the case of the prosecution is that accused No.1 is father of accused Nos.2, 3 and 4. PW-2(CW-15) Kannappa Maryappa Naik is their relative. There was a property dispute between the accused and PW- Crl.A. No.100265/2020 3 2 regarding the vacant space situated between their houses. There were frequent quarrels between PW-2 and the accused over the said property. On the date 14.02.2018, at about 11:00pm, accused Nos.1 to 4 in furtherance of their common intention came to the house of PW-2, abused him and inmates in the house in filthy language regarding the property dispute. Accused Nos.1 to 3 held PW-2 firmly and at that time, accused No.4 assaulted Ravi-son of PW-2 with a sickle with an intention to murder him. At that time, wife of PW-2 by name Smt. Renuka attempted to rescue her son but the blow from the sickle held by accused No.4 fell on her right hand and the said hand was amputated. Accused No.4 assaulted said Renuka with the same sickle on her neck, as a result of such blows, said Renuka, the wife of PW-2 suffered fatal injuries and died on the spot. Accused No.4 also assaulted PW-2 with an intention to murder him with the sickle on his head and caused grievous injuries to him. By that time, on hearing the commotion, the neighbouring residents gathered at the spot. On seeing them, the accused persons left the spot Crl.A. No.100265/2020 4 leaving behind the sickle and a club. Injured PW-2 and his son-Ravi were shifted to the Government Hospital, Siddapura in an ambulance. Said Ravi also expired without responding to the treatment in the hospital at Srisi. The Police Sub-Inspector of Siddapura Police Station and Inspector of Siddapur Police Station, after coming to know about the incident, rushed to the spot, made efforts to obtain complaint from neighbouring residents but nobody came forward to file a complaint. Then PSI of Siddapura Police Station went to Aalalli village in Sagara taluka and woke up the married daughter of PW-2 and informed them regarding the tragic incident and brought them to Siddapura Police Station wherein PW.1(CW.1)-Smt.Sudha, the daughter of PW-2 lodged a complaint against the accused which was registered in the respondent Police Station Crime No.38/2018 against the accused for the offences punishable under Sections 302, 307 and 504 read with Section 34 of IPC. The Police after conducting investigation, filed charge sheet against the accused for the alleged offences. Crl.A. No.100265/2020 5
3. Since the accused pleaded not guilty, the trial was held wherein in order to prove the alleged guilt against the accused, the prosecution got examined seventeen witnesses from PW.1 to PW.17 and got marked sixty seven documents from Exs.P-1 to P.67 and material objects M.Os.1 to 14. Statement of the accused under Section 313 of Criminal Procedure Code was recorded. On accused's side, six witnesses were examined from DW.1 to DW.6 and four documents were marked as exhibits from Exs.D-1 to D-
4.
4. After hearing both sides, the trial Court by its impugned judgment dated 20.11.2019 convicted the accused for the offences punishable under Sections 302, 307 and 504 of IPC and by its order on sentence dated 21.11.2019 sentenced accused Nos.1 to 4 to undergo life imprisonment and to pay a fine of `25,000/- each for the offence punishable under Section 302 read with Section 34 of IPC, in default of payment of fine, to undergo simple imprisonment for a period of three months. Crl.A. No.100265/2020 6
5. The respondent/complainant is being represented by the learned Additional State Public Prosecutor.
6. The trial court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the material placed before this Court.
8. The points that arise for our consideration are:
i) Whether the prosecution has proved beyond reasonable doubt that, on the date 14.02.2018 at about 11:00pm, accused Nos.1 to 4 in furtherance of their common intention came to the house of PW-2-
Kannappa Maryappa Naik at Kaanagodu village within the limits of the complainant Police Station, picked up quarrel with him and his deceased son Ravi, abused them in filthy language, insulted them and thereby gave provocation knowing it to be likely that such provocation will cause them to break the public peace and thereby have committed the offence punishable under Section 504 read with Section 34 of IPC?
ii) Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, accused No.4 in furtherance of common intention of all the accused, assaulted PW-2 Crl.A. No.100265/2020 7 with the sickle on his neck with an intention to murder him which resulted in PW-2 sustaining grievous injuries and thereby has committed an offence punishable under Section 307 read with Section 34 of IPC?
iii) Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, accused No.4, in furtherance of common intention of all the accused, assaulted deceased Ravi-son of PW-2- Kannappa Maryappa Naik with a sickle on his neck, face and right shoulder with an intention to murder him and also assaulted deceased Renuka-wife of PW-2-Kannappa Maryappa Naik with the same sickle, as a result of which, her right hand was amputated and also assaulted on her neck with the sickle voluntarily causing grievous injuries to both of them and killed deceased Renuka on the spot and injured Ravi died in the hospital at Sirsi while under treatment and thereby the accused have committed an offence punishable under Section 302 read with Section 34 of IPC?
iv) Whether the impugned judgment of conviction and order on sentence warrants any interference at the hands of this Court?
Crl.A. No.100265/20208
9. Among the seventeen witnesses examined by the prosecution, PW-1(CW-1)-Smt.Sudha is the complainant. She has spoken about, she receiving information from the Police about the alleged incident, which according to her, has taken place in her parents home at Kaangod where the accused after quarrelling with her parents and elder brother, caused the murder of her mother and assaulted her brother and father. In that regard she has lodged a complaint which she has identified at Ex.P.1. She also stated that she came to know through the Police later that her elder brother also succumbed to the injuries sustained by him in the incident, while under treatment at the Government Hospital, Sirsi. She alleged that it was the accused and the accused alone who had assaulted her father, mother and elder brother and committed the murder of her mother and elder brother.
10. PW-2(CW-15)-Kannappa Maryappa Naik has stated that the accused, who are his cousins, are his neighbours and they have killed his wife and son. On the date of the incident, in the night, when himself, his wife and Crl.A. No.100265/2020 9 his son were at home, accused Nos.1 to 3 entered the veranda of the house from the front side at which time, accused No.4 entered from behind holding a sickle in his hand. Accused No.4 assaulted on the neck of his son with the said sickle due to which his son sustained bleeding injuries and fell down. At that time, his wife (mother of the injured) rushed to the rescue of her son but she was also assaulted by accused No.4 with the sickle due to which her right hand got amputated and fell down. Accused No.4 also assaulted on the neck of his wife with the sickle, at that time, accused Nos.1 to 3 had held him (this witness) firmly. Accused No.4 stating that, he would not leave him and that he has already made two persons to fall, he would also remove him, assaulted him (this witness) with the sickle on his head and left hand. At his yelling (of this witness), the neighbours PW-8(CW-16) and PW-3(CW-17) rushed to the spot. The witness also stated that he has seen the accused in the light of an electric lamp. After seeing CW-16 and CW-17, the accused ran away from the place. Thereafter, the injured son, who had fell unconscious, was shifted to Crl.A. No.100265/2020 10 the Government Hospital, Siddapura, and from there to Sirsi hospital. Leaving his son at Sirsi, he(this witness) was shifted to the Hospital at Hubli and from there, he was shifted to the Government Hospital at Siddapura. The witness also stated that the Police had taken him before the Court at Siddapura where he had given a detailed statement before the Magistrate which he has identified at Ex.P-3. This witness has also identified the sickle at M.O.1 stating that it was the same weapon accused No.4 had assaulted them on the said date. This witness identified the T-shirt and pant at M.O.2 and M.O.3 stating that they were the dress which his son was wearing at the time of the incident. Identifying the saree and blouse at M.O.4 and M.O.5, the witness stated that they were the dress material worn by his wife at the time of the incident. The lungi at M.O.6 was identified by him stating it was worn by him at the time of the incident.
11. PW-3(CW-17) Jayashil was examined by the prosecution projecting him as an eyewitness to the incident. This witness stated about he knowing PW-2 as a resident Crl.A. No.100265/2020 11 near to his house at a distance of 30 meters and residing with his wife and son in the house. He also stated that adjacent to the house of PW-2, the house of accused Nos.1 to 4 is situated. In between their house, there is a vacant space. He does not know to whom the site belongs to. About the incident, the witness stated that, on that night, a quarrel was going on between PW-2 and the accused. In February 2018, wife of PW-2 and her son were murdered but he does not know who caused their murder. However, he came to know from the localites that it was accused No.4 who caused their murder. Since he did not support the case of the prosecution to the extent it had expected, after treating the witness as hostile, the prosecution was permitted to cross-examine him. However, the prosecution could not get any further statement in its favour from the witness. This witness was not cross-examined from the accused's side.
12. PW-4(CW-2) Rajesh Ramchandra Naik has stated that, the scene of offence panchanama as per Ex.P-6 was drawn in his presence. From the spot, a wooden club, a Crl.A. No.100265/2020 12 sickle and broken pieces of bangle which had fallen there were seized by the Police. The Police also collected the sample mud and the blood soiled mud from the spot. The witness has identified the broken bangle pieces, blood stained mud and sample mud at M.O.7 to M.O.9. Stating that a photograph was also taken in the spot, the witness has identified the same at Ex.P-7. He identified CW-16 in the photograph stating that he was showing the sickle. The witness has also identified the sickle at M.O.1 and the club at M.O.10.
13. PW-5(CW-3) Gopala Ganapati Madiwala also stated that the scene of offence panchanama at Ex.P-6 was drawn in his presence. During which time, the Police had seized the club, sickle, broken bangle pieces, sample mud and blood stained mud. The witness has identified those articles at M.O.1 and M.O.7 to M.O.10. This witness further stated that, four to five days thereafter, the police had summoned him to the place of offence once again at which time, accused Nos.1 and 2 were also present in the spot. In Crl.A. No.100265/2020 13 that regard, the Police have drawn panchanama as per Ex.P-8 and has taken the photograph as per Ex.P-9.
14. PW.1, PW-2, PW-4 and PW-5 though were subjected to a detailed cross-examination, however, they adhered to their original version even in their cross- examination.
15. PW-6 (CW-4) Hemavathi has stated that inquest panchanama on the dead body of deceased Renuka was drawn in her presence as per Ex.P-10 and photograph was also taken at that time as per Ex.P-11. Her evidence that inquest panchanama was drawn in her presence was not denied in her cross-examination from the accused's side.
16. PW-7(CW-12) Ajjappa Channa Naik has stated that he knows both the accused as well PW-2(CW-15). The Police have drawn a panchanama in his presence when accused No.4 was also there in the spot. The said panchanama, the witness has identified at Ex.P-12 and photographs said to have been taken at that time at Ex.P-2.
17. PW-8(CW-16) Dyavappa, the elder brother of deceased Renuka has stated that, with respect to vacant Crl.A. No.100265/2020 14 space between the house of the accused and his sister's house, a dispute was going on between the accused and the family of his sister. Though he came to know that his sister and her son Ravi were murdered, but he does not know at whose act, they died and that he was not an eyewitness to the incident. The witness has also stated that daughter of Renuka (CW-1) has lodged the complaint and thereafter the Police visited the spot of the offence and collected blood stained mud, sickle and club to their possession while drawing panchanama as per Ex.P-6 and has taken the photographs as per Ex.P-7. The witness has identified those articles at M.O.1 and M.O.7 to M.O.10.
18. PW-9(CW-7) Umesh Bilagi has stated that inquest panchanama of deceased Ravi was drawn in his presence as per Ex.P-14 and at that time, photograph as per Ex.P-15 was also taken.
19. PW-10(CW-19) Srikanth who is the husband of PW-1(CW-1) has stated that he knows the accused. On 14.02.2018, while he was at home, the Police went there in the night and informed them that accused had assaulted Crl.A. No.100265/2020 15 his in-laws and brother-in-law and they were shifted to the hospital, immediately, he joined by his wife and CW-18 and her husband rushed to Siddapura Government Hospital and saw the dead body of his mother-in-law and at Government Hospital, Sirsi, saw the dead body of his brother-in-law. Both the dead bodies shown that, they had sustained injuries. On 15.02.2018, he shifted his father-in-law(PW-2) from Hubli to the Hospital at Siddapura since he had also sustained injuries. This witness stated that when he enquired PW-2, he came to know that it was accused Nos.1 to 4 who assaulted him and also caused murder of his wife (Renuka) and his son (Ravi). Stating that he had handed over the blood stained lungi worn by his father-in-law at the time of incident, this witness has identified at M.O.6, panchanama at Ex.P-16 and photograph at Ex.P-17.
20. PW-11(CW-29) Dr. Raviraj has stated about he conducting post mortem examination of deceased Renuka. He has given the details of the injuries he noticed on the dead body and has opined that, the death of Renuka was caused due to massive loss of blood sustained to the major Crl.A. No.100265/2020 16 blood vessels. Accordingly, has issued postmortem report at Ex.P-18. Stating that subsequently he was shown with the sickle (Katti) for opinion and that he has given opinion that the injuries mentioned in Ex.P-18 and the death of Smt.Renuka might have been caused by assaulting with the said weapon, the witness has identified the requisition sent by the Investigating Officer at Ex.P-19 and his opinion in writing at Ex.P-20. His act of conducting autopsy on the body of Renuka noticing the injuries as described by him were not denied in his cross-examination.
21. PW-12(CW-30) Dr. Raghavendra Udupa has spoken about he conducting autopsy on the body of deceased Ravi on 15.02.2018. After explaining the injuries said to have been noticed by him on the dead body both external and internal, the witness has stated that according to him, the cause of death was due to hemorrhagic shock with injuries to the spinal cord and major vessels around the neck. He has identified postmortem report issued by him at Ex.P-21. Seeing the sickle at M.O.1, the witness has opined that the injuries mentioned in Ex.P-21 may be Crl.A. No.100265/2020 17 caused by assault with M.O.1 which is a deadly weapon. In his cross-examination also, the evidence of this witness that he conducted autopsy of the deceased and noticed the injuries as stated by him including his opinion as to the cause of death was not denied.
22. PW-13(CW-31) Dr. Padmini Bhimsen has stated that while working as a Medical officer in Taluka Hospital Siddapura, on the midnight at 12'O clock on 14.02.2018, she has examined the injured patient by name Kannappa Marya Naik (PW-2) who had come to the hospital with his son with the history of assault at about 11:00pm on 14.02.2018. The witness has given the details of the injuries said to have been noticed by her on the person of the patient. She opined that, clinically the injures were simple in nature caused by sharp object and fresh. The wound certificate issued by her at Ex.P-22 was identified as the one issued by her.
The witness further stated that on 01.05.2018, she has verified the sickle (katti) sent by the Investigating officer for her opinion. On examining the same, she opined that the Crl.A. No.100265/2020 18 injuries mentioned at Ex.P-22 and the injuries sustained by Ravi Kannappa Naik might have been caused by the said weapon. The witness identified the weapon at M.O.1 and the requisition and her opinion regarding the said weapon at Exs.P-23 and P-24 respectively.
In her cross-examination she has given some more details as to how she conducted the examination of the injured and about her opinion regarding the weapon.
23. PW-14(CW.27) Manjappa has sated that, as then Secretary of Grama Panchayat, Kaangod, he has furnished the details to the Investigating Officer stating that the house where the incident had taken place was standing in the name of PW.2. He has identified the requisition given to him by the Police and his information in writing at Exs.P- 25 and P-26. He also stated that, at the request of the Investigating Officer, he has also given the details of the neighboring properties stating that house No.142/1 was standing in the name of accused No.1. In that connection, the requisition received by him and his report were marked by this witness at Exs.P-27 and P-28 respectively. Crl.A. No.100265/2020 19
24. PW.15(CW-28) Dattatraya Timmayya Hegde, the Assistant Executive Engineer at HESCOM, Siddapura, has stated that, at the request made by the Investigating Officer about the existence and supply of electricity connection to the house of PW-2-Kannappa Maryappa Naik at Kaanagodu village on 14.02.2018, he has furnished his opinion stating that there is no information about any obstruction or interruption in the supply of electricity to the said village Kaanagodu. He has marked the said report at Ex.P-29.
25. PW-16 (CW-32)-Umesh Gutyapavaskar, then Police Sub-Inspector of the complainant Police Station has stated that, on 14.02.2018 at 11:00pm he received an information from the Station House Officer i.e., H.C.No.817 through the phone. Thereafter, he went to the spot and noticed the dead body of deceased Renuka in front of the house of PW-2(CW-15). The blood had spread in the place, the right hand having separated from the main body had also fallen in the spot. PW-2 and his son were already sent to the Hospital in an ambulance. The witness further stated Crl.A. No.100265/2020 20 that he attempted to get a complaint lodged by any of the neighbours but none of the neighbours came forward to lodge any complaint. There was no competent persons who could give a compliant in the house of the injured. As such, when he enquired with CW-16, who was the elder brother of the deceased, he came to know about one of the daughter of PW-2 was residing in Aalalli of Sagar Taluka. Accordingly, he proceeded to the said place along with his staff and informing to the complainant about the incident, brought her to the Police Station and after getting the complaint from her as per Ex.P-1, he registered the same in their Station Crime No.30/2018. The witness has identified the FIR filed by him in the Court at Ex.P-13. He further stated that though he handed over further investigation to CW-33, still according to his direction, on 15.02.2018, he drew the inquest panchanama on the dead body of deceased Ravi as per Ex.P-14 and also got a photograph taken as per Ex.P-15.
26. PW-17(CW-33) Jayant M., the then Police Inspector of complainant Police Station has stated that, on Crl.A. No.100265/2020 21 14.02.2018, in the night at 11:00pm, he received information through Station House Officer of the complainant Police Station about the quarrel which was said to be going on in the house of PW-2 of Kaanagodu village. Instructing the SHO to send few additional staff to the said place, he secured a jeep and accompanied by the staff, proceeded to the place of alleged incident. He noticed the dead body in front of the house of PW-2(CW-15) and amputated hand. He got identified the said dead body as of deceased Renuka. By his enquiry, he also came to know that the son of the deceased by name Ravi and husband of the deceased (CW-15/PW-2) were also injured in the incident and that they were shifted to the hospital in an ambulance. He sent the dead body of Renuka along with amputated hand to the Government Hospital, Siddapura. He also got information that while under treatment, the injured Ravi also succumbed to the injuries. He also attempted to get a complaint lodged by any of the neighbours but none of them came forward. However, by that time, the Police Sub-Inspector (CW-32), who had came Crl.A. No.100265/2020 22 to the spot, had made arrangement to secure the daughter of the deceased from Aalalli village where she was residing. He deputed the Police staff to watch the place of incident and collect information about the dispute between the family of the deceased and the accused about the vacant space located between their houses. He got inquest panchanama of deceased Renuka done as per Ex.P-10 on 15.02.2018 and got a photograph as per Ex.P-11 also taken in the spot. He got the postmortem examination of the said dead body done by the Doctor. On the same day, at about 11:30am, accused Nos.3 and 4 were produced before him by his staff who were deputed to trace and produce the accused. He recorded the voluntary statement of those accused as per Exs.P-32 and P-33. Since both the accused volunteered to show the place of offence, he summoned panchas and along with them proceeded to the place of offence as shown by the accused and drew scene of offence panchanama as shown by the accused as per Ex.P-34 and P-35 and got photographs also taken as per Exs.P-36 and P- Crl.A. No.100265/2020 23
37. He also seized the clothes of accused Nos.3 and 4 which he has identified at M.O.11 to M.O.14.
The witness has further sated that he also summoned the dog squad and finger print experts to the spot and proceeded to the spot and drew the scene of offence panchanama at the spot shown by CW-16 as per Ex.P-6. From the spot, he seized a sickle, club and broken bangle pieces and also from the place of incident, he collected blood stained mud and sample mud, which articles the witness has identified at M.O.1 and M.O.7 to M.O.10. He got the photographs taken as per Ex.P-7. The witness has further stated that during the course of investigation, he recorded the statement of several of the witnesses including CW-16, CW-18, CW-20 and CW-21. Seized the clothes found on the body of deceased Renuka under panchanama as per Ex.P-38. Those clothes he has identified at M.O.4 and M.O.5. The photographs taken at that time were identified at Ex.P-39. A report regarding the ornaments found on the dead body of Renuka was also submitted to him by his staff which were identified by him at Ex.P-40. Crl.A. No.100265/2020 24 The witness has also stated that at the instance of accused Nos.3 and 4, who volunteered to show that spot of the offence, he proceeded to the spot with panchas and drew panchanama as per Ex.P-12. The photographs as per Ex.P- 2 was also taken at the spot. The witness stated that, he seized the clothes found on the dead body of Ravi under a panchanama as per Ex.P-41 and got photographs taken as per Ex.P-42. After coming to know that CW-15 had returned to Siddapura Government Hospital from the Hospital at Hubli, he proceeded there and recorded his statement. He also seized the blood stained lungi worn by CW-15 at the time of incident by drawing the panchanama as per Ex.P-16 and photograph as per Ex.P-17 was also taken at that time. The witness stated that on 17.02.2018, his staff produced accused Nos.1 and 2 before him and after following the arrest procedure, he recorded their voluntary statement given by them as per Exs.P-44 and P-45. As stated by accused Nos.1 and 2 in their voluntary statement, he summoned the panchas and proceeded along with the panchas to the place of offence as shown by those accused Crl.A. No.100265/2020 25 and drew the panchanama as per Ex.P-8. The photograph as per Ex.P-9 was also taken by him. The witness stated that with respect to the finger prints and foot prints, photographs were taken as per Ex.P-46 and P-49. The Investigating officer also stated that during the course of investigation, he has got the statement of PW-2(CW-15) recorded by the Magistrate under Section 164 of Cr.P.C. which statement he has identified at Ex.P-15. He also got the sketch of the scene of offence drawn as per Ex.P-13, collected the wound certificate of PW-2(CW-15) and also sent the seized articles for their chemical examination to the RFSL through his staff. On 05.04.2018, he collected house extract with respect to the place of offence from CW- 27 as per Ex.P-25 to P-28. He also requested the concerned authorities at the HESCOM to ascertain the uninterrupted supply of electricity to the house of the PW-2 at the time of the incident and received a report as per Ex.P-29. He also sent the weapons seized in the case for opinion by the Doctor and collected the opinion. He also collected certificate under Section 65B of the Indian Crl.A. No.100265/2020 26 Evidence Act as per Ex.P-63 with respect to copying of the photographs in the Compact Disk (CD). Completing the investigation but keeping pending the receipt of report from RFSL, he filed charge sheet against the accused. All these witnesses were subject to a detailed cross- examination from the accused's side, however, all these witnesses adhered to their original version even in their cross-examination also.
27. In the light of the above, it was the argument of the learned counsel for the appellants that the accused would not deny or dispute that the death of deceased Renuka and deceased Ravi were homicidal in nature. He further submitted that the accused also would not deny that the said homicidal death was culpable homicide amounting to murder. However, they dispute that in the said murder, there was any role of the present appellants, who are accused Nos.1 to 3. He further submitted that admittedly, PW-1 is not an eyewitness to the incident as such her evidence is not believable. Though PW-2 claims to be an Crl.A. No.100265/2020 27 injured in the incident, but there is some contradiction in his evidence, as such, his evidence is also not believable. However, learned counsel did not mention as to what those contradictions are.
Learned counsel for the appellants further submitted that PW-3 and PW-8 have not supported the case of the prosecution. PW-4 being a official witness his statement is not believable. However, he gave more emphasis on the point of his argument that accused Nos.1 and 2 were not at the place of alleged incident and at the alleged time of incident, both of them were taking treatment in the Government Hospital at Siddapura. He also submitted that the evidence of DW.1, DW-2 and DW-6 are to be looked on the said point. As such, the contention of the prosecution that accused Nos.1 and 2 were present in the place of incident is not believable.
Lastly, leaned counsel for the appellants also submitted that the evidence of DW-3, DW-4 and DW-5 go to show that deceased Ravi was a trouble maker in the village and that he was a drunkard. As such, he was being warned by the Crl.A. No.100265/2020 28 local people by holding a panchayat. Therefore, there might be several people who might have grudge against him and has caused his death. With this he submitted that the trial Court since has not appreciated the evidence placed before it in a proper perspective, the appeal deserves to be allowed.
28. The learned Additional State Public Prosecutor in his argument submitted that the motive behind the crime has been clearly explained by PW-2 and also by DW.4 and DW-5 in their cross-examination. It is not in dispute that there existed a property dispute between the accused and family of PW-2. It is in that connection since the incident has taken place, motive is established. He also submitted that common intention of the accused is evident by the evidence of none else than PW-2, as such, each of the accused is liable for the alleged offence. In his support, he relied upon the judgment of the Hon'ble Apex Court in Dharnidhar v. State of Uttar Pradesh and Others reported in (2010) 7 SCC 759. The learned Additional State Public Crl.A. No.100265/2020 29 Prosecutor submitted that the alleged defence of alibi has not been established by the accused. There is time difference between the alleged time of accused Nos.1 and 2 said to have taken treatment in the hospital and the incident in question since the place of incident and the hospital not being at a greater distance. Even, if, it is believed that accused had been to the hospital, it was only after committing murder of Renuka and injuring Ravi and his father (PW-2). Learned Additional State Public Prosecutor further submitted that medical evidence further supports the case of the prosecution. The identification of the accused also cannot be disputed since the parties are known to each other, they were relatives and residing as neighbours since a long time. Stating that the evidence of sole eyewitness cum injured can be believed and acted upon for convicting the accused, learned Additional State Public Prosecutor relied upon a judgment of the Hon'ble Apex Court in State of Madhya Pradesh v. Chhaakki Lal and Another reported in (2019) 12 SCC 326.
Crl.A. No.100265/202030
29. It is not in dispute that the family of the accused and the deceased, apart from being relatives, were also residing as neighbours, except an intervening vacant space in the form of a site between their houses in Kangod Village of Siddapura Taluk. It is also not in dispute that the said vacant site was said to be belonging to the younger brother of PW-2 - Kannappa Marappa Naika, which, according to PW-2, was entrusted to him by his said brother. Though in the cross-examination of PW-2, it was denied that their alleged brother had entrusted the said site to PW-2, but it has not been denied that the families of the accused and the deceased were relatives and that they were neighbours in their residence, except an intervening vacant site between their Houses in Kangod Village. It is also not in dispute that with respect to the said vacant site, both the families of the accused and the deceased/injured were disputing quite often. The evidence to that extent has come out in the evidence of PW-1 and more importantly, in the evidence of PW-2, which has been further elaborated in the cross-examination of PW-2. The said PW-2 has stated that Crl.A. No.100265/2020 31 with respect to the said vacant site, since about ten to fifteen years, the dispute was going on, in which direction, he had even attempted to lodge a Police complaint against them, however, the Police did not receive his complaint. Though it was suggested to the said witness that the Police did not receive his earlier complaints because they were false complaints, the accused did not deny that with respect to the said vacant site, there was a dispute between the families of the accused and the deceased. Therefore, regarding the existence of a dispute between the families of the accused and the deceased with respect to a vacant site in between their houses, has stood established, which dispute, according to prosecution, is the motive behind the alleged crime.
30. The evidence of prosecution witnesses, more importantly, that the incident of assault upon deceased Renuka, deceased Ravi and PW-2 has taken place on the night of the date 14-02-2018 at 11:00 p.m., in front of the house of PW-2 at Kangod Village also has not been Crl.A. No.100265/2020 32 seriously or specifically denied from the accused's side. To that extent, though PW-1 has stated about the incident, but admittedly, she is only a hear-say witness and information to her to that effect was given by none else than the complainant Police. Even the Police Officers who are PW-16 and PW-17 have also stated that, it was them who, after ascertaining from the close relatives of family members of the deceased and injured, gathered the information about PW-1 -Sudha and informed her about the incident. In her cross-examination from the accused's side, the statement of the witness that on date 14-02-2018, an incident of assault has taken place, wherein her mother was killed and her brother and father were injured has not been denied in her cross-examination.
31. PW-3, who, admittedly is a resident in the same locality having her house at a distance of about 30 meters from the house of PW-2, has also spoken about the dispute that was going on with respect to the vacant site between the houses of the accused and the deceased and also a Crl.A. No.100265/2020 33 quarrel taking place on the night of the alleged date of incident. Her evidence that it (the incident) was in the month of February-2008 and in the said incident, the wife and son of CW-15 (PW-2) were murdered, has not been denied. Her statement that according to the information received by the localities that, it was accused No.4, who committed the murder of the wife and son of CW-15 (PW-2) also has not been denied, as the said witness was not cross- examined from the accused's side. However, the material evidence with respect to the alleged incident and the death of deceased Renuka, deceased Ravi and injuries caused to PW-2 - Kannappa Mareppa Naika has come from none else than the alleged injured witness, i.e. PW-2 - Kannappa Mareppa Naika himself. The evidence of the said witness given in his examination-in-chief, that on the night of the date of incident, all the accused entered the verandah of his house and among those accused, it was accused No.4, who, with a sickle, assaulted his son on his neck and also assaulted his wife, who had rushed to the rescue of her son, in which process, the accused No.4 cut her right hand and Crl.A. No.100265/2020 34 assaulted on her neck, due to which, she succumbed to the injuries on the spot and his son also died while under treatment in the Hospital, was further elaborated in his cross-examination.
Regarding the alleged incident, more details were brought out from this witness in his cross-examination. He has stated as to how the accused entered the premises of his house and how accused No.4 assaulted his wife and son. He has given further details that, on the said night, himself and his son were sitting beneath the pendal put up in the premises of their house and his wife was on the back side of the house, where one more pendal was erected for the purpose of preparation of food. He has also given description regarding the lighting arrangement that was made in those pendals. He has specifically stated that, when he saw, accused Nos.1 to 3 were standing near the gate and accused No.4, who had entered the premises from the backyard was also present in the premises of his house. He also stated that, accused Nos.1 to 3, after entering the verandah, had held him and his son from behind. At that time, accused No.4, who had entered the Crl.A. No.100265/2020 35 premises from the backyard, came in front of his son and assaulted on his neck. The sickle that was swung by accused No. 4 while assaulting the deceased Ravi did not touch accused Nos.1 to 3, who were holding deceased Ravi's hands from behind. In this way, PW-2 has given a detailed picture about the incident which is said to have taken place on that night. The said cross-examination of PW-2 rather than imbibe any doubt in the statements made by the witness in his examination-in-chief has further elaborated those statements and given more details about the incident and has given fine touch of the picture of incident drawn by PW-2 in his examination-in-chief. Even though there are no other material witnesses who have spoken in support of the prosecution about the incident and more particularly, about the alleged assault upon deceased Renuka, deceased Ravi and PW-2, but evidence of none else than the injured eye witness, i.e. PW-2 cannot be dis- believed.
32. Our Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Chhaakkilal and another (supra), Crl.A. No.100265/2020 36 which was with respect to an offence involved under Section 302 read with Section 34 of the IPC, was pleased to observe in paragraph 24 of its judgment that, it is fairly well settled that it is not the number but the quality of the evidence that matters. In terms of Section 134 of the Evidence Act, no particular number of witnesses shall in any case be required for the proof of any fact. In the same case and in the same paragraph of the judgment, it has referred its previous judgment in the case of Prithipal Singh Vs. State of Punjab (2012) 1 SCC 10, wherein at para 49, the Hon'ble Apex Court has observed as below:
"49. This court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The Crl.A. No.100265/2020 37 legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
The same principle was reiterated by the Hon'ble Apex Court in the case of Sudip Kumar Sen Vs. State of West Bengal reported in (2016) 3 SCC 26. Thus, the evidence of PW-2, who is none else than the injured in the incident, that it was accused and accused persons alone who have caused the act of killing of his wife Renuka and inflicting fatal injuries to his son Ravi and also inflicting injuries upon him, cannot be dis-believed.
33. The above evidence of PW-2 that, his wife Renuka and son Ravi were murdered is further corroborated by the inquest panchanama and the medical evidence. In fact the accused have even denied the nature of death of deceased Renuka and his son Ravi. This is also clear by the fact that Crl.A. No.100265/2020 38 the evidence of PW-3 that deceased Renuka and deceased Ravi were murdered has not been denied from the accused's side, since they have not chosen to cross- examine PW-3. Still, the evidence of PW-6 that the inquest panchanama on the dead body of deceased Renuka was drawn in his presence as per Exhibit P-10 and that he has signed the said panchanama as a panch witness has not been denied in her cross-examination. She has also identified the photograph of the dead body at Exhibit P-11 which also shows the position of the dead body and the alleged blood stains on the dead body including the injuries sustained by the deceased.
Similarly, another witness - PW-9 also has stated that the inquest panchanama on the dead body of deceased person was drawn in his presence as per Exhibit P-14 and that he has signed the said inquest Panchanama. The witness also has identified the photograph of the dead body of the deceased person at Exhibit P-15. The evidence of these two panchas, i.e. PW-6 and PW-9 corroborates the evidence of the Investigating Officers, i.e. PW-16 - Police Crl.A. No.100265/2020 39 Sub-Inspector and PW-17 - Police Inspector, who have stated that the inquest panchanama as per Exhibit P-14 and as per Ex.P-10 were drawn by them in the presence of Panchas.
34. The medical evidence with respect to the nature of death of deceased Renuka and deceased Ravi have come from PW-11 -Dr. Raviraj Kariyappa Shet and PW-12 - Dr Raghavendra Subray Udupa respectively. PW-11 - Doctor has stated that on the body of deceased Renuka, he noticed the following injuries:
"1) Chopped wound measuring 12 c.m. x 3 c.m. x4 c.m. in the front portion of the neck extending from mid line laterally up 5 c.m. below the mastoid process on palpation under lying muscles, internal jugular vein, internal cartoid artery and nerves were cut.
2) lacerated wound measuring 5 c.m. x 3 c.m. x 1 c.m. over right side of upper part of the neck extending from mid line up to the mid point of lower part of mondible.
3) Chopped wound measuring 6 c.m. x 4 c.m. x 2 c.m. on the back of the neck at level of cervical verterbra C.4 & C.5. The spinal card is cut Crl.A. No.100265/2020 40 into multiple slices adjoining soft tissue, nerves, vessels, subcutenious tissue has been cut off.
4) Right distal fore arm and hand amputated and separated at level of 10 c.m. below elbow and underlying muscles, vessels, both bones cut (chopped wound).
5) Incised wound measuring 3 c.m. x 1 c.m. x skin deep present on the dorsum of left hand."
On dissection of the dead body, he noticed the following injuries:
"1) Trachia cut approximately between second and third tracial ring just below the thyroid cartilage 2/3rd circumference.
2) Oesophegous was through and through cut just below the level of thyroid cartilage.
All other internal organs were found intact." With the said observation regarding the injuries, the said Doctor has opined that the death of deceased was caused due to massive loss of blood sustained to the major blood vessels, in his post-mortem report and marked it Ex.P-18. After seeing the weapon at MO-1, which was sickle, the Doctor has opined that, the injuries mentioned it Exhibit P-18 and the death of deceased Smt. Renuka might Crl.A. No.100265/2020 41 have been caused by assaulting with the said weapon. PW-2, the injured eye witness has identified the said weapon at MO-1 and stated that it was the very same weapon with which accused No.4, with the help of the remaining accused has inflicted injuries upon both his wife Renuka and son Ravi. The injuries sustained by deceased Renuka cannot be called as self-inflicted injuries of amputating her own arm or cutting oesophegous below the level of thyroid cartilage, cutting of trachia at the same time by a single person of his or her own body and also inflicting several chopped and lacerated wounds cannot be self-inflicted. As such, those injuries which have led to the death of deceased Renuka are inflicted by human agency, which, as per the evidence of PW2, is by the accused, making use of MO-1. As such, the death of deceased Renuka has proved to be a culpable homicide.
35. PW-12 - Dr. Raghavendra Subray Udupa has stated that in the post-mortem examination of the dead Crl.A. No.100265/2020 42 body of Ravi Kannappa Naik, he noticed the following external injuries:
" 1) cut incised wound over left side of the face and neck extending from left maxillary bone up to posterior aspect of the neck measuring 17 x 6 c.m.
red coloured bony depth exposing left lower ear lobe, under lying muscels and fracture of left mandible, cut major vessels, carotid artery and veins, cut cervical spine C2-C3 exposing base of skull.
2) Transverse cut lacerated wound over left supra scapular region red in color measuring 7 c.m. x 2 c.m. exposing muscles.
3) incise like cut wound over right side face measuring 9 c.m. x 2 c.m. red in colour.
4) Abrasion over nose measuring 5 c.m. x 2 c.m.
5) Abrasion over right cheek measuring 2 c.m. x 1 c.m.
6) Abrasion over anterior aspect of left knee joint measuring 2 c.m. x 1 c.m. dark red in colour.
The above said injuries are Ante-mortem in nature"
He has opined that the death of Ravi Kannappa Naik was due to haemorrhagic shock with injuries to the spinal Crl.A. No.100265/2020 43 cord and major vessels around the neck. The said evidence of the witness also, after seeing MO-1 in the Court, has opined that the injuries found on deceased Ravi Kannappa Naika are possible to be caused by the said weapon. Even in this case also, PW-2 has specifically and categorically stated that, it was with the very same MO-1, the accused No.4, with the help of remaining accused, has inflicted injuries upon the deceased Ravi Kannappa Naika. As such, the death of deceased Ravi Kannappa Naika also proves to be homicidal amounting to culpable homicide. This part of the alleged incident is not in serious dispute. PW-2 himself being the injured eye witness has stated that, it was within the premises of his house, more particularly, on the front side of his house, which is an open space(verandah), the incident has taken place. PW-4, PW-5 and PW-8 also have stated about the same space as the place of the offence and have identified the panchanama drawn in their presence. The said evidence of PW-2 and PW-4 corroborates the evidence of the Investigating Officer that, he has drawn a scene of offence panchanama as per Ex.P-6. Crl.A. No.100265/2020 44
36. The identity of the accused though has been at the earliest mentioned by the complainant in her complaint at Ex.P-1 itself, but admittedly, she is not an eye witness to the incident. It is only based upon the information given to her, she has revealed the names of the accused as the culprits in the alleged offences. However, PW-2, who is an injured eye witness to the incident, has categorically, specifically and clearly stated that, it was accused and accused persons alone who have committed the alleged offences. It is nobody's case that, since the incident had taken place at 11:00 p.m. on that day, there was total darkness in that area, as such, nobody could identify the accused persons. On the other hand, PW-1, PW-2 and PW-4 have spoken about the presence of electricity light in that place. From the evidence of prosecution witnesses and also in the evidence of PW-16, it has come out that there was a jaatra (fair) of Marikamba Temple just three days after the incident, as such, there was lighting arrangement near the temple, where the pendal was being put. The said temple as has been stated by PW-16 was at a distance of Crl.A. No.100265/2020 45 about 100 ft. from the spot of the offence. There were people putting up the pendal near that temple at that time. Further, PW-2 also has stated that, in the pendal put up in his premises due to the festival, the lighting arrangement was also made.
37. PW-15 the Engineer from HESCOM has stated that there was no information with them about any interruption or disconnection of electricity supply to the said village Kangod on the said night. Most importantly, it has remained an undisputed fact that the members of the families of the accused and the deceased were very close relatives and that they were residing in adjacent houses with only a vacant site in between their respective houses.
38. PW-3, who is a resident of the same area having her house at a distance of about 30 meters from the house of PW-2, has stated that, the said PW-2 (CW-15) and accused were in good terms and were talking to each other. Her said evidence has remained un-denied since she was not cross-examined from the accused's side. Thus, all the Crl.A. No.100265/2020 46 four accused persons, being close relatives, neighbours and very well known to the family of PW-2, their identity at the time of accident cannot be doubted or suspected.
39. The next point that remains to be considered is, whether the homicidal death of deceased Smt. Renuka and deceased Sri. Ravi was caused by none else than by the accused and accused alone. According to injured witness, i.e. PW-2, it is accused and accused persons alone who have killed his wife Renuka and Son Ravi and thus have caused their murder. He is an eye witness to the incident. He has given a detailed account of how his wife and son were killed and how he was assaulted by the accused. There is nothing to disbelieve his evidence. He has withstood the thorough and searching cross-examination and answered all questions put by the accused's side, which have thrown more light about the manner how the incident has occurred. However, the defence of the accused was that, the deceased Ravi was a drunkard and was causing trouble to the residents in the village, as such, he had large Crl.A. No.100265/2020 47 number of enemies and some among them might have committed his murder. The other defence taken up by the accused's side is the defence of alibi. According to them, at the time of incident, the accused were taking treatment at the Government Hospital, Siddapura. Suggestions to that effect were made in the cross-examination of PW-1, PW-2 and PW-16. However, none of those witnesses have admitted those suggestions as true.
In order to establish that accused No.4 was a drunkard, as such, his conduct was questionable, therefore his enemies, if any, might have caused his murder, the accused has examined three witnesses on their behalf as DW-3 - Hanumanth Ira Naik, DW-4 - Mahabaleshwara Chowda Doddamani and DW-5 - Rama Keriya Naik. Even in their statements recorded under Section 313 of the Cr.P.C. also, the accused have taken the same defence. All these three witnesses, in their evidence, have stated that they know deceased Renuka, deceased Ravi as well the accused. With respect to the dispute between them, a Crl.A. No.100265/2020 48 panchayat was held. The said panchayat discussed the complaints against deceased Ravi, who used to quarrel with the accused and also had caused damages to the property of the Temple in an inebriated condition. They have stated that in panchayat, the act of deceased Ravi causing damage to an article of the Temple called 'panchavaadya' was discussed and he was censured and advised that he should not repeat those acts. They have also stated that one more date for the panchayat was fixed, on which date, none of the family members of the deceased Ravi appeared, as such, a reference was made to that effect in the minute Book of the Temple, which Book was produced by DW-5 and got it marked as Ex.D-4.
Even if the evidence of DW-3, DW-4 and DW-5 is taken as true that the deceased Ravi was in the habit of consuming liquor and that he had caused damage to the Temple property, by that itself, it cannot be inferred that, he had any enemies in the village and that any of his alleged enemies might have caused his murder. None of Crl.A. No.100265/2020 49 DW-3, DW-4 and DW-5 have spoken about he having any enemies and the possibility of any of his alleged enemies causing his murder. Merely because the deceased Ravi is said to have caused damage to the Temple property called "panchavaadya", it cannot be inferred that it was such a serious damage that there would be enemies against deceased Ravi and that they would go to the extent of killing him for such an alleged act. Therefore, the said defence of the accused that the deceased Ravi was a drunkard and had enemies, as such, he must have been killed by some such enemies, is not acceptable.
40. The second defence taken up by the accused's side is that of alibi. PW-2, in his evidence has clearly, categorically and specifically stated that, as was seen by him, it was accused and accused alone who have caused murder of his wife and son. He has also categorically and specifically stated that, he too was assaulted by the accused, due to which, he sustained injuries and was shifted to the Hospital. In such a circumstance, when the Crl.A. No.100265/2020 50 prosecution has discharged its onus regarding the presence of the accused on the spot and it is established, the burden of proving the plea of alibi will be upon the accused.
41. Our Hon'ble Apex Court in the case of Shaikh Sattar Vs. State of Maharashtra reported in (2010) 8 Supreme Court Cases 430, while dealing with an appeal involving the offences punishable under Sections 302 and 498-A of the IPC, was pleased to observe that, the plea of alibi has to be established by the accused by leading positive evidence. Failure of said plea would not necessarily lead to success of the prosecution case which has to be independently proved by the prosecution beyond reasonable doubt.
42. The Hon'ble Apex Court in its another judgment in the case of Vijay Pal Vs State (Government of NCT of Delhi) reported in (2015) 4 Supreme Court Cases 749, in an appeal involving an offence punishable under Section 302 of the IPC, had an occasion to discuss the concept of alibi. The Hon'ble Apex Court was pleased to observe that, Crl.A. No.100265/2020 51 when a plea of alibi is taken by the accused, the burden is upon him to establish the same by positive evidence after onus as regards the presence on the spot is established by the prosecution. The burden of accused is rather heavy and he is required to establish the plea of alibi with certitude, so as to raise a reasonable doubt regarding the prosecution version. Plea can succeed, if it is shown that the accused was so far away at the relevant point of time that he could not be present at the place where the crime was committed.
It is in the light of the above principle enunciated by the Hon'ble Apex Court, the plea of alibi taken up by the accused in the instant case is to be analysed.
43. As already observed above, the prosecution has discharged its onus about the presence of the accused in the spot of the offence and at the time of the offence, whereas it is the accused who have taken the defence of alibi. The said defence of alibi, was, for the first time, taken up by the accused in the cross-examination of PW-2, by suggesting to the witness that, on the said date, due to Crl.A. No.100265/2020 52 the assault made by deceased Ravi, in order to lodge a complaint and take medical treatment, all the four accused had been to Siddapura (Taluka place) and that they were in the Government Hospital, Siddapura till 11:00 p.m. The witness has not admitted the said suggestion as true. By making the said suggestion to PW-2, the accused themselves have attracted a burden initially of proving that, on that night, before 11:00 p.m. deceased Ravi had assaulted them. Secondly, in order to lodge a complaint, they had been to Siddapura, as such, they were away till 11 O' clock in the night, when the incident in question is said to have taken place. It is to prove the same, the accused have examined three witnesses from their side. They are DW-1 - Smt Rekha, DW-2 -Narayana and DW-6 - Harisha.
DW-1 - Smt. Rekha is a staff Nurse, working on contract basis at the Taluka Hospital at Siddapura. She has stated that, on the night of the date 14-02-2018 (alleged date of incident), she was on duty in the Hospital and one Crl.A. No.100265/2020 53 Dr. Padmini was the duty Doctor. She stated that she could not identify the accused in the Court and she is not familiar with their faces. Stating that, looking at what is written in the prescription or OPD slip by the Doctor, they would make entries in the register, the witness stated that some portion of the extract of the register shown to her and marked as Ex.D-3, was in her handwriting. She stated that the said portion pertains to a patient by name Sri. Ganapathi Hanuma Naika (accused No.1). He was treated in the said Hospital by the duty Doctor by applying stitches and administering TT injection and pain killers. In her cross- examination, she has stated that she was working as a staff Nurse in the said Hospital, more particularly, she being on duty on the night of the date 14-02-2018 itself was questioned. However, she stated categorically in her cross- examination that she could not identify the patient who had come to the Hospital on the said day even if they are shown in the Court.
DW-2 - Narayana has been the Assistant Sub- Inspector of Police in the complainant Police station. He has Crl.A. No.100265/2020 54 stated in his evidence that, on the date 14-02-2018, he was working as Head Constable in the complainant Police Station and that he was on duty at 8:00 p.m. He stated that he has not received any Medico-Legal Case (MLC) from the Hospital since those MLCs would be received by the Station House Officer and that he was not Station House Officer on that night. He denied a suggestion that on that night, he was the Station House Officer and that the accused No.1 had come to his Police Station sustaining some injuries and that he sent him to the Hospital. The witness did not admit few such suggestions as true. Thus, by the evidence of DW-2, the contention of the accused that the deceased Ravi had assaulted them, as such, to lodge a complaint, all the four accused persons had been to complainant Police station on that night at 11:00 p.m., remains un-established.
DW-6 - Harisha, who is a mason, has stated that he knows the deceased Ravi as well the accused. On date 14-02-2018, in the night at about 10 O' clock, he was working near Maarigudi for putting up a pendal. At that Crl.A. No.100265/2020 55 time, accused No.2 went there and stated that, his father (Accused No.1) has sustained an injury due to assault on his hand, as such, he must be shifted to the Hospital. Accordingly, he took both Accused No.1 and Accused No.2 on his motor cycle to Siddapura Police Station. The Police told them to go to Hospital and that they would also come there. After that, the Police coming to Hospital, took the signatures of accused No.1 and accused No.2. Thus from 10 O' clock in the night till 12:15 in the midnight, himself along with accused No.1 and accused No.2 were in the Siddapura Police Station and in Government Hospital only. He stated that, leaving accused No.1 and accused No.2 in the Hospital itself, in the midnight at 1:00 O' clock, he came back to his house. The said witness in his cross- examination could not able to say as to who had asked him to erect the pendal at Maarigudi. He could not even say the registration number of his alleged motor cycle though he stated that it bears registration number as KA-31/9394. But in the very next sentence, he has stated that he does not remember it properly. Interestingly, in his cross- Crl.A. No.100265/2020 56 examination, he stated that the time when they went to the Government Hospital was 12 O' clock in the midnight. Prior to that for about half an hour, they were in the Police Station and then they had been to the Government Hospital where they were there for about three hours. It is at that time, the Police went there and took the signatures of accused No.1 and accused No.2 on some papers. He also stated that he does not know how accused No.1 sustained injuries by whom and with what (article).
44. When the evidence of DW-1 and DW-6 is carefully verified, it can be seen that, DW-1, the staff Nurse has specifically stated that she cannot identify any of the accused persons. It is only based upon OPD slip or prescription, she makes entries in the register. The said register extract which is marked in her evidence is at Ex.D-3. It shows that one Sri. Ganapathi Hanuma Naika (accused No.1) was treated in their Hospital by Dr. Padmini at 11:15 p.m. But it does not say on which date. Ex.D-3 is Crl.A. No.100265/2020 57 a single sheet of paper and appears to be independent of Ex.D-2.
Ex.D-2 was not shown or confronted to DW-1. It was not elicited from DW-1 that Ex.D-2 is also a part of the Hospital record. However, looking at the rubber stamp on the said sheet of paper which shows that it is issued by the Administrative Medical Officer, Taluka Hospital, Siddapura, even if it is taken that it is a part of the Hospital document, still, it says that one Ganapathi had approached the said Hospital with the history of assault at Kangod at 10:45 p.m. on date 14-02-2018, which means the history recorded is an alleged assault said to have taken place at 10:45 p.m. When the documents at Ex.D-2 and Ex.D-3 are read together, the patient is appearing to have been treated not earlier to 10:15 p.m., whereas the evidence of DW-6 would go to show that by the time they went to the Hospital, it was 12 O' clock in the midnight and prior to that for half an hour, they were in the Police Station. Thus, the very evidence from the accused's witness (DW-6) who is said to have shifted the alleged injured accused No.1 along with Crl.A. No.100265/2020 58 accused No.2 to the Hospital falsifies what is mentioned in Ex.D-3. Further, according to DW-6, half an hour prior to that, they were in the Police Station, which means between 11:30 p.m. and 12:00 O' clock in the midnight, they are said to be in the Police Station. But DW-2 - the Head Constable of the Police Station has stated that none of them had come to the Police Station and none of them had been referred to the Hospital. Thus, the alleged defence of the accused as suggested to PW-2 in his cross-examination that, all the four accused persons, i.e. accused No.1, accused No.2, accused No.3 and accused No.4 were at Siddapur Hospital at that particular point of time, has been abandoned by accused themselves by confining the said plea of alibi only in respect of accused No.1 and accused No.2 only. Even to believe that accused Nos.1 and 2 were there in the Hospital at the time of the alleged offence, the evidence of DW-1 is not supportive. The defence of the accused and the document at Ex.D-3 is that accused No.1 was treated at 11:15 p.m., whereas DW-6 has stated that, they went to the Hospital at 12 O' clock in the Crl.A. No.100265/2020 59 midnight. Therefore, there is no uniformity as to how many accused persons had been to Siddapura Hospital and at what time. Still, assuming for a moment that accused Nos.1 and 2 had been to Siddapura Taluka Hospital, it was only at 11:15 p.m. on that day. By that time, the alleged incident of assault on PW-2 and deceased Ravi and killing Smt. Renuka had already been over. As has come out in the cross-examination of PW-2, the undisputed fact is that, the distance between the place of offence to the Government Hospital, Siddapura is only eight kilometers. Therefore, even if it is assumed that, accused Nos.1 and 2 had been to the Hospital on that night, still, it is only after the incident. The history of the patient recorded in Ex.D-2 also shows that the incident is shown to have taken place at 10:45 p.m. Therefore, there is no evidence to believe that at the time of the alleged incident, which has taken place at 11:00 p.m. on the night of the date 14-02-2018, the accused were not in the spot of the offence. As such, the defence of alibi taken by the accused would not stand. Crl.A. No.100265/2020 60
45. Resultantly, the evidence of PW-2 alone, who is the sole surviving eye witness cum injured in the incident coupled with other circumstantial evidence, as analysed above, beyond any reasonable doubt, would go to prove that, it was the accused and accused persons alone who have assaulted PW-2 with a sickle at MO-1, attempting to commit his murder and it was the accused, who, knowing the consequences of their act, have killed Smt. Renuka and inflicted fatal injures to deceased Ravi, the son of PW-2, to which injuries, he succumbed while under treatment and thus have committed the murder of Smt. Renuka and Sri.Ravi and attempted to commit murder of PW2.
46. The act of inflicting injuries with sickle, both on the person of Smt. Renuka and Sri. Ravi is attributed to accused No.4 - Prathvi Ganapati Naik. According to the learned counsel for the appellants as well the learned Additional State Public Prosecutor for the respondent -State, the said accused No.4 has not preferred any appeal challenging the judgment of his conviction and order on Crl.A. No.100265/2020 61 sentence. By that itself, it cannot be inferred that it was accused No.4 and accused No.4 alone, who has committed the alleged act of murder and attempt to murder. If the act shows that the remaining accused persons, i.e. accused No.1, accused No.2 and accused No.3 had showed common intention with accused No.4, then, all the accused would be held liable under Section 34 of the IPC.
47. Learned Additional State Public Prosecutor for the respondent-State contending that the evidence placed before the Court would go to show that, accused Nos.1 to 3 had common intention with accused No.4 and in furtherance of their common intention, they have committed the alleged act, has relied upon a decision of the Hon'ble Apex Court in the case of Dharnidhar v. State of Uttar Pradesh and Others (supra) in his support.
In the said judgment, which also did involve an offence punishable under Section 302 read with Section 34 of the IPC, the Hon'ble Apex Court had an occasion to reiterate the principle to attract Section 34 of the IPC. In Crl.A. No.100265/2020 62 paragraphs 38 to 41 of the said judgment, the Hon'ble Apex Court was pleased to observe as below:
"38. Let us examine the judgments of this Court in relation to common intention and commission of crime by the members of an unlawful assembly. It is a settled principle of law that to show common intention to commit a crime it is not necessary for the prosecution to establish, as a matter of fact, that there was a pre-meeting of the minds and planning before the crime was committed.
39. In Surendra Chauhan v. State of M.P.(2000) 4 SCC 110 , this Court held that common intention can be developed on the spur of the moment. Also, under Section 34, a person must be physically present at the place of actual commission of the crime. The essence is the simultaneous consensus of the minds of persons participating in the criminal act and such consensus can be developed on the spot.
40. It is not mandatory for the prosecution to bring direct evidence of common intention on record and this depends on the facts and Crl.A. No.100265/2020 63 circumstances of the case. The intention could develop even during the course of occurrence. In this regard reference can be made to Ramaswamy Ayyangar v. State of T.N (1976) 3 SCC 779 and Rajesh Govind Jagesha v. State of Maharashtra (1999) 8 SCC 428.
41. In other words, to apply Section 34, two or more accused should be present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 moreover, involves vicarious liability and therefore, if intention is proved but no overt act is committed, the section can still be invoked. In the present case all the four accused had gone together armed with three guns and one sphere and after shouting, making their minds clear, had fired at Bahadur Singh causing gun injuries and sphere injury on his shoulder. Thus, for applicability of Section 34 of the IPC, two or more accused should be present and common intention and participation of accused in the crime must be established. The essence is simultaneous consensus of minds of persons participating in the criminal act and such consensus can be Crl.A. No.100265/2020 64 developed on the spot. However, it is not mandatory for the prosecution to bring direct evidence of common intention on record and this depends upon the facts and circumstance of the case. It is also not necessary for the prosecution to establish as a matter of fact that, there was pre-meeting of minds and planning before the crime was committed.
48. In the instant case, as analysed above, it is all the four accused who went together to the house of PW-2- injured eye witness. As established by the prosecution, and more particularly, as has come out in the evidence of PW-2- the injured eye witness, though it was accused No.4 who was in possession of a sickle with him and with it he assaulted his son Ravi and also PW-2's wife Smt. Renuka, but his (PW-2's) hands were held firmly by the remaining three accused i.e. accused No.1, accused No.2, and accused No.3, from behind, restraining his movement.
49. Thus, it is clear that accused No.1, accused No.2 and accused No.3, knowing fully well and also seeing that Crl.A. No.100265/2020 65 their own family member, i.e. accused No.4 is armed with a deadly weapon like sickle and he is about to assault the deceased Ravi, have enabled him to proceed with the said act of assault and inflicting injuries on Ravi and also Smt. Renuka, who rushed to the rescue of the said Ravi, by restraining the movements of PW-2 by holding his hands firmly from behind. Thus, their act of coming together to the house of PW-2, when one of them (accused No.4) was armed with a deadly weapon and enabling accused No.4 to assault and cause the death of Smt. Renuka and to inflict fatal injuries upon the deceased Ravi, clearly establishes that, they had common intention and in furtherance of the same, the alleged offence was committed. As such, Section 34 of the IPC also stands proved in the instant case.
50. Lastly, the evidence of PW-2 would further go to show that, the accused persons, apart from inflicting injuries to him, his wife Smt. Renuka and son Ravi, they also abused them in filthy language and insulted them. Thus, in an open area, in the premises of the house of Crl.A. No.100265/2020 66 PW-2, the accused have provoked the assaultees to commit breach of public peace and also knowing the consequences of their act, have thus insulted them. Thus, the offence punishable under Section 504 of the IPC against the accused has also been proved by the prosecution beyond all reasonable doubts.
51. Since it is appreciating the evidence in this regard in their proper perspective, the learned Sessions Judge's Court has convicted the accused persons for the alleged offences and has sentenced them proportionately corresponding to the gravity of the proven guilt against them, we do not find any reason to interfere in the impugned judgment of conviction and order on sentence under appeal.
Accordingly, we proceed to pass the following:
ORDER [i] The Criminal Appeal is dismissed as devoid of merits;Crl.A. No.100265/2020
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[ii] The impugned judgment passed by the learned I Additional District and Sessions Judge, U.K. Karwar, sitting at Sirsi, in Sessions Case No.5016/2018, dated 20-11-2019, is confirmed. Registry to transmit a copy of this judgment along with the Sessions Judge's Court's records to the concerned Court, without delay.
Sd/-
JUDGE Sd/-
JUDGE Kmv/BMV*