Karnataka High Court
State Of Karnataka vs Mulabagalappa on 11 March, 2013
Bench: Mohan.M.Shantanagoudar, B.S.Indrakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11th DAY OF MARCH, 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MRS.JUSTICE B.S. INDRAKALA
CRIMINAL APPEAL No. 317/2007
BETWEEN:
State of Karnataka,
By Vermgal Police Station. .. APPELLANT
(By Sri G.M. Srinivasa Reddy, HCGP)
AND:
1. Mulabagalappa,
S/o Chowdappa,
r/o Bettahosapura village,
Vemgal Hobli, Kolar Taluk.
2. Chikkamuniyappa @ Chikkanna,
S/o Chowdappa,
40 years,
R/o Bettahosapura village,
Vemgal Hobli, Kolar Taluk. .. RESPONDENTS
(By Sri Rasheed Khan, Adv. for R-2 &
Sri N.R. Krishnappa, Adv. for R-1)
...
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This Criminal Appeal is filed under Sections 378(1) and
(3) of Cr.P.C. by the State Public Prosecutor praying to grant
leave to file an appeal against the judgment and order dated
27.10.2006 passed by the I Additional District and Sessions
Judge, Kolar in S.C.No. 282/2005 acquitting the
respondents/accused for the offence punishable under
Sections 302 r/w 34 of IPC.
This appeal coming on for Hearing this day, Mohan .M.
Shantanagoudar J., delivered the following:
JUDGMENT
This appeal is by the State against the judgment and order of acquittal, dated 27.10.2006 passed by the I Additional District and Sessions Judge, Kolar in S.C.No. 282/2005.
2. The case of the prosecution in brief is that the two deceased viz., Muniswamy (deceased No.1) and his brother Muniraju (deceased No.2) and accused Nos. 1 and 2 are relatives interse; deceased Nos.1 and 2 are brothers whereas accused Nos. 1 and 2 are also brothers interse and all of them are residents of Bettahosapura village in Vemgal Hobli, Kolar Taluk; deceased No.1 Muniswamy had illicit -: 3 :- relationship with one Venkatalakshmamma - wife of accused No.2; in that regard, there used to be frequent quarrels between the two; on 16.7.2005 at about 7.45 p.m., when Muniswamy -went to the house of accused No.2 and questioned him as to why he had informed certain other matters to the police, accused No.2 stabbed Muniswamy - with the knife on his chest and back; when the other deceased Muniraju (younger brother of Muniswamy) went to the rescue of his brother; accused No.1 stabbed him on his chest with a knife; D1 succummed at the spot itself and the injured Muniraju was taken to the R.L. Jalappa Hospital, Kolar for medical treatment; about 4 hours prior to his death, he was discharged from the hospital; while he was in the house on 22.8.2005, he succumbed to the injuries.
4. A complaint came to be filed by his family member - P.W.1, who is the relative of accused as well as the deceased and had taken the injured to the hospital. Based on the said complaint, a case in Crime No. 116/2005 was -: 4 :- registered in the Kolar Police Station for the offence punishable under Sections 302 and 307 r/w 34 of IPC on 16.7.2005 at about 9.30 p.m. The police after investigation laid the charge sheet against both the accused for the offence punishable under Section 302 of IPC.
5. Both the accused were tried for the offences punishable under Section 302 r/w 34 of IPC. The prosecution in order to prove its case, in all examined 25 witnesses and got marked 21 exhibits as well as 8 material objects. On behalf of the defence, 3 exhibits were got marked. The trial Court on evaluation of the material on record, acquitted both the accused disbelieving the case of the prosecution and by giving benefit of doubt to the accused.
6. The learned advocates on record submitted their arguments in support of their respective cases. -: 5 :-
7. Sri Srinivasa Reddy, learned HCGP submits that the evidence of the eye witnesses more particularly the evidence of P.Ws. 1, 2, 3, 5 and 11 is consistent and is reliable; the trial Court is not justified in acquitting the accused merely on minor variations found in the evidence of these prosecution witnesses; the incident has taken place in the middle of the village wherein the incident in question is witnessed by more than 50 people including the eye witnesses examined by the prosecution; since the electricity was available and as the bulbs were switched on, the incident was witnessed by the eye witnesses in the electrical light; immediately after the incident, the injured were shifted to the hospital; the history recorded by the doctor while admitting Muniraju at R.L. Jalappa Hospital, Kolar clearly supports the case of the prosecution; since the complaint is lodged without any delay in the matter, there was no chance for the prosecution to implicate the accused falsely, more particularly, when the accused are the near relatives of the deceased. He also submits that the recovery of knives is -: 6 :- also proved by the prosecution in as much as the knives were recovered at the instance of the accused themselves.
8. Per contra, the learned advocates for the defence argued in support of the judgment of the Court below. Both of them submitted that the trial Court was justified in disbelieving the version of the prosecution witnesses; all the prosecution witnesses have come to the scene of offence only after the incident and that they had not actually witnessed as to who stabbed the deceased/injured; the trial Court was also justified in disbelieving the evidence relating to recovery of knives in as much as, the evidence of the recovery panchas is totally unbelievable. Though 50 persons had gathered near the scene of offence, neither of them tried to pacify the quarrel nor tried to save the life of the deceased; no independent witness is examined by the prosecution in support of its case. They further submit that the history recorded by the SNR Hospital, Kolar wherein Muniswamy (deceased No.1) was admitted for treatment clearly takes -: 7 :- away the case of the prosecution in as much as history discloses that some unknown persons had assaulted the deceased.
9. P.W.1 is the eye witness to the incident in question. He is the relative of the witnesses and as well as the deceased. He carried the injured to the hospital. He has lodged the complaint as per Ex.P.1 at about 11.00 p.m. on 16.07.2005 in the hospital based on which the crime is registered. It is relevant to note that the incident has occurred at 7.45 p.m. on the very day i.e., on 16.7.2005.
10. P.W.2 is the father of the deceased. He is the eye witness to the incident. P.W.3 is the mother of the deceased, who is also the eye witness to the incident. P.W.4 though eye witness to the incident has turned hostile. P.W.5 is another eye witness. He has also deposed that M.O.2 was in the hand of accused No.2 and M.O.3 was in the hand of accused No.1. P.W.6 is the another eye witness, who has turned hostile. P.W.7 is the sister of the deceased. She -: 8 :- comes to the spot only after receiving the information and is an hearsay witness. P.W.8 is the mahazar witness for the inquest panchanama Ex.P.4 relating to deceased No.1 Muniswamy. P.W.9 who is the wife of deceased No.2 - Muniraju is said to be the eye witness to the incident. P.W.10 - Hanumappa is an eye witness and also the mahazar witness to the seizure panchanama of M.O.3 - knife at the instance of accused No.2 under Ex.P.5, who has also turned hostile. P.W.11 is another eye witness and mahazar witness for the seizure of M.O.2 - knife at the instance of accused No.1 under Ex.P.7. P.W.12 who is the eye witness to the incident has turned hostile in respect of the part of the case of the prosecution. P.W.13 is the relative of the deceased. He is a mahazar witness for the scene of offence panchanama and seizure of M.Os. 4 and 5 - blood stained mud and natural mud respectively under Ex.P.9, who has turned partly hostile. P.W.14 - Narayanappa is the mahazar witness for seizure of M.O.2 (knife) from the house of accused No.1 under Ex.P.5. -: 9 :- P.W.15 - Anjanappa is the mahazar witness for seizure of M.Os.1 and 6 - pant and underwear of Muniswamy under Ex.P.10 and has turned hostile. P.W.16 - Muniraju is a mahazar witness for Ex.P.10 for seizure of M.Os. 1 and 6. However, he supports the case of the prosecution. P.W.17 is the mahazar witness for inquest panchanam relating to deceased No.2 - Muniraju as per Ex.P.11. P.W.18 is the doctor K.N. Siddalingaiah, who conducted the postmortem in respect of the dead body of deceased No.1- Muniswamy as per Ex.P.12. P.W.19 - the Sub-Inspector of Vemgal Police Station, who registered a case in Crime No. 116/2005 based on the complaint lodged by P.W.1. He received the first information report as per Ex.P.3 and sent the same to the jurisdictional Magistrate. P.W.20 is the investigating officer. During the course of investigation, he arrested accused No.1 on 8.9.2005 and accused No.2 on 18.7.2005. After completion of the investigation, he laid the charge sheet. P.W.21 conducted the postmortem examination on the dead body of accused No.2 Muniraju as per Ex.P.18. P.W.22 is -: 10 :- the police constable, who watched the dead body of Muniswamy and participated during the course of investigation. P.W.23 is another police constable, who arrested accused No.1 on 8.9.2005 at Doddaharalegere village and produced him before the concerned officer. P.W.24 - Dr. Ambareesh, who was working in Jalappa Hospital during the relevant time, treated deceased No.2 - Muniraju prior to his death. He has given his opinion regarding M.O.3 - knife as per Ex.P.19. It is relevant to note that deceased No.2 Muniraju was admitted to the hospital on 16.7.2005 and he was under the treatment of P.W.24 till about 4-5 hours prior to his death. P.W.25 is Dr. M. Shanmugam, who speaks about the accident register as per Ex.P.20. He has deposed that the Dr. B.S. Chethana had treated Muniraju at SNR Hospital, Kolar. Since Dr. Chethana is abroad, he has identified the handwriting and signature of Dr. Chethana and through him, the register Ex.P.20 is marked.
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11. As aforementioned, P.Ws. 1, 2, 3, 5, 9 and 11 are the eye witnesses to the incident who supported the case of prosecution and the evidence of all these witnesses are relied upon by the prosecution to prove the incident in question. The circumstances on which the prosecution based its case are as under:
a) motive;
b) Ocular testimony of accused Nos. 1, 2, 3, 5, 9 and 11;
c) Recovery of knives at the behest of accused Nos. 1 and 2 as per Exs.P.5 and 7 and P.Ws. 10, 11 and 14 are examined in support of the said point;
d) The other circumstances such as availability of electricity connection at the scene of offence, history recorded at R.L. Jalappa hospital, etc.
12. The prosecution as well as the defence do not dispute that there was rivalry between accused No.2 - Chikkamuniyappa @ Chikkanna and deceased No.1 - -: 12 :- Muniswamy. The grievance of accused No.2 was that deceased No.1 - Muniswamy had got illicit relationship with the wife of Chikkamuniyappa (accused No.2) and in that regard, frequent quarrels used to take place between the two. In this background, the incident has taken place. On the date of the incident, according to the case of the prosecution, deceased- Muniswamy went to the house of Chikkamuniyappa (accused No.2) and questioned him as to why Chikkamuniyappa had informed the police about the previous incidents. In that context, quarrel took place between the two. Accused No.2 - Chikkamuniyappa suddenly stabbed the deceased Muniswamy with the knife on his stomach, consequent upon which deceased Muniswamy fell down on the ground and he was taken to the SNR Hospital, Kolar and in the said hospital, he was declared dead. Deceased- Muniraju came to the rescue of his brother deceased- Muniswamy and he was stabbed by accused - Mulabagalappa on various parts of the body with the knife, consequent upon which deceased sustained -: 13 :- number of injuries and he was shifted to R.L. Jalappa Hospital, Kolar for treatment. Later, he succumbed to the injuries after about one month. Thus the motive practically is admitted by the defence as well as the prosecution. The incident has happened because of the aforementioned motive and quarrel between accused No.2 and deceased No.1
- Muniswamy as also because of frustration of accused No.2 Chikkamuniyappa in view of the attitude of deceased Muniswamy. Thus the motive is proved in the matter.
13. So also the death of two persons in question was homicidal death. The same is also not in dispute. Even before this Court, it is not disputed. Even otherwise, the postmortem report as well as the version of the doctors clearly reveal that the death of both persons viz., Muniswamy and Muniraju was as a result of the injuries sustained by them in the incident in question. Thus the trial Court has rightly concluded that the death of both the deceased was of homicidal in nature.
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14. The trial Court has disbelieved the ocular testimony of all the eye witnesses. In this context, the learned advocates for the defence as well as the learned High Court Government Pleader have taken us through the entire material on record and the judgment of the Court below.
15. As aforementioned, P.Ws. 4, 6, 10 and 12 though were eye witnesses, have turned hostile. On going through the depositions of those witnesses, we find that no value can be attached to the evidence of those witnesses in as much as they are not coming out with truth. Even in their cross- examination by the prosecution, nothing worth is elicited in the evidence of these witnesses. Therefore, the trial Court is justified in disbelieving the version of the aforementioned eye witnesses. However, what remains to be considered is the evidence of P.Ws. 1, 2, 3, 5, 9 and 11.
16. P.W.1 is the neighbour of accused No.2 as well as related to the accused as well as deceased. According to him, himself, accused and deceased are staying nearby. He -: 15 :- has deposed that about 7.45 p.m., he was standing outside his house and the quarrel was taking place between the accused and the deceased; accused No.2 -
Chikkamuniyappa stabbed Muniswamy (deceased No.1) on the chest and neck, due to which Muniswamy fell down on the ground there itself. After hearing the cries of the injured Muniswamy, deceased No.2 Muniraju rushed to the spot in as much as Muniraju was also standing in the nearby area. At that point of time, accused No.1 Mulabagalappa stabbed deceased No.2 Muniraju on his chest and other parts of the body. Thereafter, both the accused ran away from the scene of offence. P.W.1 has deposed that Mulavagilappa -P.W.2, Hanumakka - P.W.3, Anjanappa P.W.4, Narayanamma P.W.6, Narayanamma P.W.7 and some other persons were present at the scene of offence. Thus he confirms specifically the presence of P.Ws. 1, 2, 3, 4, 6 and 7 also at the scene of offence. Thereafter, the injured Muniswamy was shifted by him to S.N.R. Hospital, Kolar and by the time, the injured reached the said hospital, he had lost his life. -: 16 :- He also deposes that another injured - Muniraju was shifted to R.L. Jalappa Hospital since the doctors at S.N.R. Hospital recommended for such shifting of patient to R.L. Jalappa hospital - a higher medical centre; Muniraju was in the said hospital for about 1½ months and thereafter he was discharged. Immediately after 3 to 4 hours of discharge, Muniraju also expired. He has confirmed that he had lodged the complaint as per Ex.P.1. He has also deposed about the motive relating to the incident in question viz., the quarrels had taken place between accused No.2 and deceased No.1 Muniswamy. He has further deposed that accused ran away from the scene along with knives held by them. He identified the blood stained clothes of deceased - Muniswamy as M.O.1. In the cross-examination, a suggestion was made to him that there was darkness in the area but the said suggestion is denied by him. He has also clarified that the electrical bulbs were on and electricity was being emanated from the bulbs. A suggestion is also made to him that he was not present in the scene of offence when -: 17 :- the incident took place and that he has not admitted the deceased to the hospital and he has denied such suggestions. He has withstood in his cross-examination in respect of material particulars. However, he has admitted in the cross-examination that he is the accused in number of criminal cases and that he had gone to prison number of times. The allegations of theft, murder, etc., were made against him in those criminal matters. However, he has denied the suggestion that he has lodged a false complaint in order to help the deceased.
17. P.W.2 as aforementioned is the father of both deceased. He has also deposed that there used to be frequent quarrels between accused No.2 and the deceased Muniswamy. He has seen accused No.2 stabbing deceased No.1 Muniswamy and consequently, Muniswamy fell down on the ground. Immediately thereafter, the deceased Muniraju went to the rescue of his elder brother Muniswamy and he was also assaulted by accused No.1 Mulabagalappa -: 18 :- with the knife on various parts of the body. Thereafter, the accused ran away from the scene of offence. He has further deposed that the injured Muniraju was admitted to R.L. Jalappa Hospital, Kolar, and said injured was not in a position to talk. Further he got him discharged from the hospital and immediately thereafter, deceased No.2 Muniraju expired. He identified M.Os. 2 and 3 as the knives held by accused Nos. 1 and 2. However, in the cross- examination, he has admitted that at about 9.00 p.m., for half an hour on the date of the incident, the galata took place and 50 to 60 persons had gathered and he does not know the names of other people. After hearing the galata, he started going out of the scene. At that time, both the injured had fallen down and one of injured was being shifted to the hospital. He has also deposed about the names of the persons, who shifted the injured to the hospital. He has further admitted in the cross-examination that the deceased
- Muniswamy used to quarrel frequently with public after consuming liquor and that P.W.2 was advising the deceased -: 19 :- not to consume liquor. A suggestion was made to P.W.2 by the defence that accused themselves assaulted each other but the same was denied by P.W.2. The trial Court has made much about the deposition of P.W.2 that while he was coming out, he saw both the injured on the ground and one of the injured was being shifted to the hospital. The trial Court has misconstrued the said evidence to the effect that P.W.2 while coming out of the house, saw the injured, who had already fallen. Nowhere in the cross-examination, P.W.2 has stated that while he was coming out of the house, he saw the injured, who had fallen down. On the other hand, in the cross-examination, he has stated that while coming out after hearing the quarrel, he saw both accused had fallen down and one of the injured was being shifted. Therefore, in our opinion, the trial Court has misread the cross-examination of P.W.2. The entire evidence of P.W.2 has to be considered while evaluating the material. Single sentence cannot be misconstrued.
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18. P.W.3 is the mother of the deceased. Her evidence is on par with the evidence of P.W.2. However, in the cross- examination, P.W.3 has deposed that while she went to the spot after hearing the quarrels, both her sons had suffered injuries. However, a suggestion was made to her that both the accused were not present on the scene of offence and that they had not stabbed the injured but the same is denied by her. She has also stated that the deceased Muniswamy used to quarrel with the public after consuming liquor. It is no doubt true, in one sentence, P.W.3 has deposed that while she came to the spot, both her sons had sustained injuries. However, in the examination-in-chief, she has clarified that she has seen accused No.2 assaulting and stabbing Muniswamy whereas Muniraju was assaulted by accused No.1 Mulabagalappa with the knife on various parts of the body.
19. P.W.5 is again the neighbour of accused and the deceased. According to her at about 7.00 p.m. on the date of -: 21 :- the incident, she heard hue and cries in front of her house and immediately she came out of the house. At that point of time, she saw the accused as well as both the injured. She saw accused No.2 stabbing the deceased Muniswamy and accused No.1 stabbing the deceased Muniraju. Thereafter, she has further deposed that both the injured were shifted to the hospital. In the cross-examination, she has admitted that after hearing the hue and cry from outside her house, while she was coming out of the house, deceased No.2 Muniraju was about to fall to the ground. She saw Hanumanthappa, Santhosh and others shifting Muniraju to the hospital. However, she had denied the suggestion that she did not see any accused on the spot. She has further admitted that deceased No.1 Muniswamy was drunkard and that he used to quarrel with his parents after consuming liquor. She has further deposed that wife of Muniswamy had committed suicide by falling into a well. Though Muniswamy was advised suitably by the elders, he did not mend his conduct. She has confirmed in the cross- -: 22 :- examination that the incident had taken place in front of the house of accused No.2. Based on the stray admission of P.W.5 that while she came out of her house, the deceased Muniraju was about to fall to the ground, the evidence of P.W.5 is totally disbelieved by the trial Court.
20. P.W.9 is another eye witness relied upon by the prosecution, who is none other than the wife of the deceased Muniraju. Though she has stated in the examination-in- chief that she has seen the incident in question of stabbing by accused Nos. 1 and 2, in the cross-examination, she has clearly admitted that she could not come out of the house since she was pregnant. However, she has further admitted that after some time, she came out of the house and by that point of time, she saw both injured had fallen down and that they were being shifted to the hospital. After seeing the injured with bleeding injuries, she fell down unconscious. However, to a suggestion made by the defence that the accused were not present on the scene, she has denied the -: 23 :- same. From the aforementioned admissions in the cross- examination, it is clear that though P.W.5 is not the eye witness to the incident but she confirms the presence of accused on the spot and that both the injured had sustained injuries on the spot in question.
21. P.W.11 is another eye witness, who is the neighbour of accused No.2. So also he is the relative of the deceased and consequently of the accused. He has clearly deposed in the examination-in-chief that accused No.2 - Chikkamuniyappa stabbed the deceased Muniswamy on the chest, stomach, etc. At that point of time, the deceased Muniraju rushed to the spot for rescuing his elder brother Muniswamy. He was also stabbed by accused No.1 Mulabagalappa on the chest and stomach and thereafter both the accused ran away. He has further deposed that M.O.2 knife was held by accused No.1 Mulabagalappa whereas M.O.3 - knife was held by accused No.2 Chikkamuniyappa and that both accused ran away towards -: 24 :- their house along with the blood stained knives. He has further deposed about accused No.1 being taken by the police inside the house of accused No.1 and about he producing two knives M.Os. 2 and 3 from his house. He identifies his signature on the panchanama Ex.P.7. He also identifies the knives as M.Os. 2 and 3. Though P.W.11 is subjected to searching cross-examination by the prosecution, nothing is elicited to discard his evidence by the defence. He has withstood in his cross-examination. Though specific suggestion was made to him to the effect that while he came to the spot, he saw only the injured who had already fallen down, he has not only denied the said suggestion but has also volunteered to make a statement to the effect that, he has seen the actual assault as well falling of the injured to the ground. He also further confirms that at the time of the incident, the electric bulbs were glowing in front of the houses.
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22. The trial Court has disbelieved the evidence of P.W.1 only on the ground that he was a criminal and he had gone to the prison number of times and was accused in number of cases. Merely because a witness is a criminal in some other matter, his version cannot be disbelieved in this matter. Nodoubt it is true that P.W.1 was a criminal and he had gone to prison on the allegations of theft and murder, but that does not mean that he is not a truthful witness in this matter. He is the relative of both the accused and the deceased. There is no reason as to why he should depose falsehood against the accused. His evidence relating to actual assault has remained uncontroverted and unchallenged in the cross-examination. Even in the cross- examination, he has deposed that the electrical bulbs were on and the light was being emanated. Virtually there was no cross- examination by the defence to P.W.1 in respect of the incident in question.
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23. It is also observed by the Sessions Court that P.W.1 has improved his version before the Court from that of the version found in the first information report. There are bound to be exaggerations or improvements during the course of the evidence particularly when the evidence is recorded after a long lapse of time. Minor variations are bound to be there but the evidence of P.W.1 in so far as it relates to the actual incident in question has remained uncontroverted. Moreover, FIR cannot be treated as encyclopedia. It need not contain every minute detail. FIR is lodged after 2 to 3 hours of the incident in question. At the time of lodging the FIR, one person had died and another person was in serious condition and was in the hospital for treatment. In such circumstances, the first information is lodged by P.W.1.
24. Be that as it may. We do not find any ground to disbelieve the evidence of P.W.1. Merely because there are some minor variations in his evidence compared to that of -: 27 :- the first information, his evidence cannot be discarded. As aforementioned, the actual incident is spoken to by him to the effect that accused No.1 assaulted deceased No.2 Muniraju whereas accused No.2 stabbed deceased No.1 Muniswamy with the knife and accused ran away from the scene of offence. On this aspect of the matter, there is no cross-examination at all by the defence. On the other hand in the cross-examination, P.W.1 has volunteered to depose that, there electricity bulbs were on and that he saw the incident in the electrical light. Thus the trial Court, in our considered opinion, was not justified in disbelieving the evidence of P.W.1 and so also the evidence of P.W.2 - the father of the deceased. The presence of P.W.2 is spoken to by P.W.1. P.W.2 after coming out of the house, had gone to the spot immediately after hearing the galata. He saw the incident of accused No.1 assaulting deceased No.2 Muniraju and accused No.2 assaulting deceased No.1 Muniswamy. He was aged about 60 years as on the date of recording of evidence. At the time when the injured were being shifted to -: 28 :- the hospital, he left the place obviously to go to the hospital. He has further deposed that the deceased Muniraju was treated as inpatient for 1½ months and he was not in a position to speak. The trial Court has virtually misread the evidence of P.W.2. In the 3rd sentence of his cross- examination, P.W.2 has merely deposed that while he was going out after hearing the quarrel, he observed that accused had fallen and they were being shifted to hospital. He has never admitted in his cross-examination that while he came out of the house, he saw the deceased being shifted to the hospital. Not even a suggestion is made to P.W.2 that when he came out of the house, he saw only from the post incident stage, but on the contrary, in the cross- examination, P.W.2 has merely stated that when he was going away, he saw both accused being shifted. The word 'going away' should not have been meant by the trial Court as 'going away from the house' or 'going out of the house'. The evidence has to be read as it is. The Court cannot imply something from the said evidence in support of any of the -: 29 :- parties. However, P.W.2 has fairly admitted that the deceased Muniswamy was drunkard and he used make galata with the public in the village after consuming liquor.
25. Though the evidence of P.Ws. 3, 5 and 9 may be shaky in respect of the actual incident in question, the evidence of P.W.11 is fully believable. In her cross- examination, P.W.3 has admitted that when she went to the spot after hearing the quarrel, both her sons had suffered injuries. The same is the evidence of P.Ws. 5 and 9. Though the evidence of P.Ws. 3, 5 and 9 do not make it clear as to whether they had actually seen the incident or not; but their evidence is clear to the effect that, they went to the spot and saw the injured on the spot and at that time, the accused were also present along with other persons. Thus, their evidence can be relied upon to prove the circumstances in respect of the presence of the accused on the spot and the exact place of incident, so also the sustaining of stab injuries by the injured.
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26. However, as aforementioned, the evidence of P.W.11 is fully believable. He is a neighbour of accused No.2. He is the relative of both parties. He has also deposed that accused No.1 stabbed Muniraju with the knife and accused No.2 stabbed the deceased Muniswamy with the knife. He also identifies the knives held by the accused. Though his evidence relating to the recovery of knife is slightly shaky, but in respect of actual incident in question cannot be disbelieved. Even in the cross-examination, he has reiterated that, he saw the incident of actual assault as well as both injured falling on the ground. He has reiterated that the electric bulbs were glowing at the time of the incident and he saw the incident in the said light. Nothing is elicited in the cross-examination of P.W.11 so as to discard his evidence.
27. From the aforementioned material, we find that the evidence of P.Ws. 1, 2 and 11 is consistent, cogent and reliable. All the three witnesses have deposed about the -: 31 :- actual incident in question. The presence of these witnesses in the spot is natural. According to the case of the prosecution as found under Ex.P.1, accused No.1 stabbed deceased No.2 Muniraju with the knife whereas accused No.2 stabbed deceased No.1 Muniswamy with the knife. Same is the version of P.Ws. 1, 2 and 11. Their evidence has remained unshaken in their cross-examination. They are the natural witnesses to the incident in question. All these witnesses are neighbours and relatives interse.
28. The evidence of P.Ws. 1, 2 and 11 is fully supported by the evidence of P.W.3 - the mother of the deceased, P.Ws. 5 and 9. Though in the cross-examination, it was brought out by the defence that these witnesses have not actually witnessed the incident but the fact remains that they came to the incident immediately after the incident. All of them have categorically deposed that when they came out of the house, they saw the injured with the bleeding injuries and the incident has taken place at the spot in question. -: 32 :- They have also deposed that injured were shifted to the hospital. They have also confirmed the presence of the accused.
29. The scene of offence panchanama as well as the oral evidence on record clearly reveal that the incident has taken place in the middle of the village. The house of the deceased is about 15 to 20 feet away from the scene of offence and the house of accused No.2 is about 50 feet from the scene of offence. The house of the deceased as well as the house of the accused are situated in the very locality and close by. It has also come in the evidence of all the prosecution witnesses that, all the people residing in the area are belonging to the same community as that of the accused as well as the deceased. Since the deceased and accused are close and near relatives, we do not find any ground to disbelieve the version of the prosecution witnesses in as much as nothing on record to suggest that these witnesses are interested in the injured in one way or the -: 33 :- other. There is no reason as to why the independent witnesses P.Ws. 1 and 11 should be disbelieved. They are the close relatives not only of the deceased but also of the accused. The material also reveals that the electricity light were switched on and the incident was witnessed by the witnesses in the electrical light. Under these circumstances, in our considered opinion, the ocular testimony more particularly of P.Ws. 1, 2 and 11 is fully reliable and ought to have been relied upon by the trial Court for coming to the conclusion.
30. The postmortem report relating to deceased Muniraju (deceased No.2) reveals that he has suffered number of injuries on the stomach. The doctor has opined that the death is due to cerebellar infarction, left lower lobe infarction, jejunum infarction. Whereas the postmortem report in respect of the deceased Muniswamy (deceased No.1) reveals that he has sustained two injuries - one on the sternum and another on the right arm. The doctor has -: 34 :- opined that the death is due to hemorrhage and shock as a result of cardiac tamponade following the injury to aorta, a major blood vessel. Since the second injury on the deceased Muniswamy was on the right arm, the death must have occurred due to the first injury. Be that as it may. The deceased Muniswamy had suffered two injuries on his person.
31. Admittedly, the deceased Muniswamy was a drunkard and quarrelsome person. He used to create galata in the village after consuming liquor. The evidence also reveals that he was a womanizer and he had illicit relationship with number of women. He was advised not only by others but also by his parents. His wife had committed suicide by falling into a well. The material on record also reveals that the deceased Muniswamy himself had gone to the house of accused No.2 and created galata on that day. Actually prior to the incident in question, accused No.2 had complained to the police about the problems -: 35 :- created by deceased Muniswamy. The accused No.2 seemed to have been enraged by the said act of deceased Muniswamy in as much as Muniswamy had illicit relationship with the wife of accused No.2. Therefore, Muniswamy had started quarreling with accused No.2. At that point of time, the incident has taken place. It seems accused No.2 in a fit of rage and being intolerant, must have taken out the knife and stabbed deceased Muniswamy, who has sustained two injuries. Thus, in our considered opinion, the crime may fall under Section 304 Part-II of IPC in so far as it relates to accused No.2 is concerned but the same cannot be said in respect of accused No.1.
32. On hearing the galata between accused No.2 and the deceased Muniswamy, deceased No.2 Muniraju as a dutiful younger brother of Muniswamy came to the rescue of his elder brother Muniswamy. Accused No.1 without there being any reason whatsoever stabbed deceased No.2 Muniraju with the knife, who lost his life because of the -: 36 :- injuries after 1½ months. Thus the crime committed by accused No.1 clearly falls under the offence punishable under Section 302 of IPC.
33. It is relevant to note here itself that the case of the prosecution is definite. It is not that both the accused assaulted both the deceased. On the other hand, the definite case of the prosecution is that accused No.1 assaulted deceased No.2 Muniraju whereas accused No.2 assaulted deceased No.1 Muniswamy. In view of the clear evidence on record, it cannot be said that the provisions of Section 34 of IPC is applicable. There was no common intention between the accused. Actually as aforementioned, the quarrel took place between accused No.2 and deceased Muniswamy. There was no meeting of minds of accused No.1 and accused No.2. Immediately after the quarrel, accused No.2 assaulted the deceased Muniswamy and his brother Muniraju, who went to protect his Muniswamy, was also stabbed by accused No.1. Thus the provisions of -: 37 :- Section 34 of IPC may not be applicable at all. Both the accused are liable to be punished for the acts done by them.
34. The trial Court may be justified in not relying upon the evidence of the witnesses relating to recovery of knives. The place in which the knives were hidden though was not a public place, it cannot be said that such place is not accessible to any members of that respected families. According to the prosecution, the knives were hidden in the bathroom on the sajja of the house, which is a joint family house of the accused. One more factor to be noted is that in the matter on hand, there is no FSL report. Though knives were stated to have been sent to serologists test, no report is made available to the Court. There is nothing on record to show that the knives were stained with human blood. Under such circumstances, the trial Court was justified in not relying upon the evidence relating to recovery of knives. It is also relevant to note that the knives were recovered at the behest of both accused individually used by them. However, -: 38 :- P.W.11 has deposed that accused No.1 took out both the knives from inside the house. Since the recovery aspect is unbelievable, the Court below is justified in disbelieving the case of the prosecution relating to recovery.
35. Be that as it may. Since we find ocular testimony of eye witnesses P.Ws.1, 2 and 11 and their evidence is fully supported by the evidence of P.Ws. 3, 5 and 9 in all material particulars and as the actual place of incident, time and date of incident, presence of the accused and the deceased on the spot are not disputed, the trial Court was not justified in acquitting the accused.
36. On re-appreciation of the material on record, we find that the only view possible under the facts and circumstances of the case, is that accused No.1 has committed the murder of deceased No.2 Muniraju punishable under Section 302 of IPC and that accused No.2 has committed the offence falling under Section 304-II of IPC -: 39 :- (culpabale homicide not amount to murder) in as much as he stabbed deceased No.1 Muniswamy.
37. We are conscious of the legal position that if two views are possible based on material on record and one of the possible view is of acquittal of accused, this Court would not normally interfere with the order of acquittal passed by the Court below. But in the matter on hand, we find that the view taken by the trial Court in acquitting the accused is not at all the possible view. The only possible view under the facts and circumstances of the case is that, the accused have committed the crime as aforementioned. We have heard the advocates regarding the sentence to be passed. Accordingly, we pass the following ORDER
a) Accused No.1/respondent No.1 is convicted for the offence punishable under Sections 302 of IPC and is sentenced to undergo imprisonment for life;
b) Accused No.2/respondent No.2 is convicted for the offence punishable under Section 304 Part-II of -: 40 :- IPC., and he is sentenced to undergo imprisonment for five years and to pay a fine of Rs.15,000/- in default to undergo simple imprisonment for six months;
c) The order of acquittal passed by the Court below against accused Nos.1 and 2 is set aside accordingly.
d) The period of detention of accused Nos.1 and 2 during trial shall be given set off.
Appeal is allowed accordingly.
Sd/-
Judge Sd/-
Judge Nsu/-