Karnataka High Court
Sharnappa S/O Fakirappa Bhairi vs The State Of Karnataka on 3 October, 2012
Author: D V Shylendra Kumar
Bench: D V Shylendra Kumar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
Dated this the 03rd day of October, 2012
PRESENT:
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE A.S.PACHHAPURE
Criminal Appeal No.1561 of 2006
C/w
Criminal Appeal No. 1220 of 2006
C/w
Criminal Appeal No. 1560 of 2006
Criminal Appeal No.1561 of 2006
BETWEEN
THE STATE THROUGH
CHITTAPUR POLICE STATION.
... APPELLANT
(By SMT ANURADHA M. DESAI, ADDL. SPP)
AND
1. SHARANAPPA
S/O FAKIRAPPA BHAIRI,
AGE: 31 YEARS,
R/O ASA MOHALLA,
CHITTAPUR,
DIST. GULBARGA.
2. KASHAPPA,
S/O FAKIRAPPA BHAIRI,
AGE: 28 YEARS,
R/O ASAR MOHALLA,
CHITTAPUR,
DIST: GULBARGA.
2
3. SHIVANNA @ SHIVAPPA
S/O FAKIRAPPA BHAIRI
AGE: 25 YEARS,
R/O ASAR MOHALLA,
CHITTAPUR,
DIST: GULBARGA.
... RESPONDENTS
(By SRI ISHWARAJ S. CHOWDAPURKAR, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 377 CR.P.C.
BY THE SPP FOR THE STATE PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO ENHANCE THE
SENTENCE IMPOSED BY THE P.O. FTC-IV, GULBARGA
IN S.C.NO. 208/04 DATED 29.04.2008 - CONVICTING
THE RESPONDENTS/ ACCUSED NOS. 1 TO 3 FOR THE
OFFENCES P/U/SS. 448, R/W 34 OF IPC, 324 R/W 34
OF IPC, 307 R/W 34 OF IPC AND U/S 302 R/W 34 OF
IPC AND SENTENCING THEM TO UNDERGO R.I. FOR
LIFE AND SHALL PAY FINE OF RS.2,000/- EACH I.D. OF
PAYMENT OF FINE THEY SHALL UNDERGO S.I. FOR 3
MONTHS FOR THE OFFENCE U/S 302 R/W 34 OF IPC
AND FURTHER SENTENCING THEM TO UNDERGO R.I.
FOR 8 YEARS FOR THE OFFENCE P/U/S 307 R/W 34
OF IPC AND FURTHER SENTENCING THEM TO
UNDERGO R.I. FOR ONE YEAR FOR THE OFFENCE
P/U/S/ 448 R/W 34 OF IPC AND FURTHER
SENTENCING THEM TOUNDERGO R.I. FOR 3 YEARS
FOR THE OFFENCE P/U/S/ 324 R/W 34OF IPC. ALL
THE SENTENCES SHALL RUN CONCURRENTLY., THE
APPELLANT/ STATE PRAYS THAT THE ABOVE
SENTENCE MAY BE ENHANCED SUITABLY.
Criminal Appeal No.1220 of 2006
BETWEEN
1. SHARANAPPA
S/O FAKIRAPPA BHAIRI,
AGE: 31 YEARS,
3
2. KASHAPPA,
S/O FAKIRAPPA BHAIRI,
AGE: 28 YEARS,
3. SHIVANNA
S/O FAKIRAPPA BHAIRI
AGE: 25 YEARS,
ALL APPELLANTS ARE
RESIDING AT ASAR MOHALLA,
CHITTAPUR TQ.
GULBARGA DIST.
... APPELLANTS
(By SRI ISHWARAJ S. CHOUDAPUR, ADVOCATE - NOC;
SRI USTAD SADAT HUSSAIN, ADVOCATE)
AND
THE STATE OF KARNATAKA,
(BY CHITTAPU POLICE STATION)
REPRESENTED BY ITS
STATE PUBLIC PROSECUTO,
HIGH COURT OF KARNATAKA,
BANGALORE.
... RESPONDENT
(By SMT ANURADHA M. DESAI, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374 CR.P.C.
BY THE ADVOCATE FOR APPELLANTS AGAINST THE
JUDGEMENT DATED 29.04.2006 PASEDBY THE PO.,
F.T.C.-IV, GULBARGA IN S.C.NO. 208/2004,
CONVICTING THE APPELLANTS/ACCUSED NO. 1 TO 3
FORTHE FOR THEES P/U/S (1) 448 R/W 34 OF IPC, (2)
U/S 324 R/W 34 OF IPC, (3)U/S 307 R/W 34 OF IPC
AND (4) U/S 302 R/W 34 OF IPC AND SENTENCING
THEM TO UNDERGO R.I. FOR LIFE ANDPAY FINE OF
Rs.2,000/- EACH, I.D., TO UNDERGO S.I. FOR 3
MONTHS FOR THE OFFENCE P/U/S 302 R/W 34 OF IPC
(2)FURTHER SENTENCING TO UNDERGO R.I. FOR
FOTHE OFENCE P/U/S 307 R/W 34 OF IPC (3)FURTHER
4
SENTENCING THEM TO UNDERGO R.I. FOR ONE YEAR
FOR THE OFFENCE P/U/S 448 R/W 34 OF IPC (4)
FUTHER SENTENCING THEM TO UNDERGO R.I. FOR 3
YEARS FOR THE OFFENCE P/U/S 324 R/W 34 OF IPC.
ALL THE SENTENCES SHALL RUN CONCURRENTLY.
THE APPELLANTS- ACCUSED PRAY THAT THE ABOVE
ORDER MAY BE SET ASIDE.
Criminal Appeal No.1560 of 2006
BETWEEN
THE STATE THROUGH
CHITTAPUR POLICE STATION.
... APPELLANT
(By SMT ANURADHA M. DESAI, ADDL. SPP)
AND
1. SAIBANNA
S/O MAREPPA BAJANTRI,
AGE: 55 YEARS,
R/O NEAR TAHASIL OFFICE,
CHITTAPUR,
DIST. GULBARGA.
2. FAKIRAPPA,
S/O SANNASHARANAPPA BHAIRI,
AGE: 57 YEARS,
R/O ASAR MOHALLA,
CHITTAPUR,
DIST: GULBARGA.
3. BASANNA
S/O MAREPPA BAJANTRI
AGE: MAJO,
R/O ALLOLLI,
4. BASAMMA,
W/O CHANDRANNA @ CHANDRASHA
BHAIRI,
AGE; MAJOR,
R/O NAGAVI ROAD,
5
CHITTAPUR,
DIST. GULBARGA.
5. KASHAPPA @ RAJU,
S/O CHANDRANNA @
CHANDRASHA BHAIRI,
R/O NAGAVI ROAD,
CHITTAPUR,
DIST. GULBARGA.
... RESPONDENTS
(By SRIYUTHS: USTAD SADAT
HUSSAIN, ADV FOR R-3 TO R-5
D.S.PATIL & IQBAL PATEL FOR R-1 TO R-5)
THIS CRIMINAL APPEAL IS FILED U/S 377 CR.P.C.
BY THE SPP FOR THE STATE PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO ENHANCE THE
SENTENCE IMPOSED BY THE P.O. FTC-IV, GULBARGA
IN S.C.NO. 208/04 DATED 29.04.2008 - CONVICTING
THE RESPONDENTS/ ACCUSED NOS. 1 TO 3 FOR THE
OFFENCES P/U/SS. 448, R/W 34 OF IPC, 324 R/W 34
OF IPC, 307 R/W 34 OF IPC AND U/S 302 R/W 34 OF
IPC AND SENTENCING THEM TO UNDERGO R.I. FOR
LIFE AND SHALL PAY FINE OF RS.2,000/- EACH I.D. OF
PAYMENT OF FINE THEY SHALL UNDERGO S.I. FOR 3
MONTHS FOR THE OFFENCE U/S 302 R/W 34 OF IPC
AND FURTHER SENTENCING THEM TO UNDERGO R.I.
FOR 8 YEARS FOR THE OFFENCE P/U/S 307 R/W 34
OF IPC AND FURTHER SENTENCING THEM TO
UNDERGO R.I. FOR ONE YEAR FOR THE OFFENCE
P/U/S/ 448 R/W 34 OF IPC AND FURTHER
SENTENCING THEM TOUNDERGO R.I. FOR 3 YEARS
FOR THE OFFENCE P/U/S/ 324 R/W 34OF IPC. ALL
THE SENTENCES SHALL RUN CONCURRENTLY., THE
APPELLANT/ STATE PRAYS THAT THE ABOVE
SENTENCE MAY BE ENHANCED SUITABLY.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, THIS DAY,
A.S.PACHHAPURE J., PRONOUNCED THE FOLLOWING:
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JUDGMENT
Amongst the aforesaid three appeals, two appeals are by the State challenging the judgement and order acquitting Accused No.4 Saibanna, Accused No. 5 Fakirappa, Accused No. 6 Bassanna, Accused No. 7 Bassamma and Accused No. 8 Kashappa, on the charges of the offences punishable u/Ss. 147, 148, 120-B, 504, 109 114, 307 and 302 of IPC and to modify the sentence of imprisonment for life imposed on Accused No.1 Sharanappa, Accused No.2 Kashappa and Accused No.3 Shivappa and to award the sentence of death, whereas, in the later, Accused Nos. 1 to 3 have challenged their conviction and sentence for the charge u/Ss. 448, 324, 307 and 302 r/w 34 of IPC.
2. We may notice the necessary facts given rise to the present appeal. PW 1 Fakiramma and PW 2 Sharanappa have stated their relationship with the accused, the prime witnesses PWs 1, 2, 8, 15 and the deceased persons. The pedigree of their family is mentioned below for ready reference.
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Fakirappa Bhairi
Kashappa Yallawwa Sharanappa Sanna- Ramchandra
Kashappa
(PW 2) Sharanappa
Fakiramma Fakirappa (A-5)
(PW 1)
Laxmibai (wife)
(Deceased)
Shashikala Shanta Chandrakala Renuka
(PW-8) (PW-15) (Deceased) (Deceased)
Sharanappa Kashappa Shivappa Ramesh
(A-1) (A-2) (A-3)
Bassamma Saibanna Basanna
(A-7) (A-4) (A-6)
Kashappa
(A-8)
(1) PW 2 Sharanappa, (2) Kashappa, (3) Sanna Sharanappa, (father of Accused No.5), (4) Ramchandra, (5) Yallavva, the mother of PW 1 Fakiramma and Kashavva, 8 the mother of Accused Nos. 4, 6 & 7 are the full brothers and sisters. They are all residents of Bhairi Lane at Nagavi Chowk of Chittapur town. The two sisters i.e., Yallavva and Kashavva though were given in marriage to different places, were residing at Bhairi Lane at the time of incident. Smt Sabavva the first wife of PW 2 was dead. Laxmibai (the deceased) was the second wife and PW 8 Shashikala, PW 15 Shanta, Chandrakala (the deceased) and Renuka (the deceased) are the four daughters of PW 2 through his second wife. Accused No.1 Sharanappa, Accused No.2 Kashappa and Accused No.3 Shivappa are the sons of Fakirappa - Accused No. 5, whereas Accused Nos. 4,6 and 7 are the sons and daughter of Kashawwa and Accused No. 8 is son of Accused No. 7 Bassamma.
3. In the year 1956 - 1957 there was a partition amongst the brothers of PW 2 Sharanappa and the facts reveal that as on the date of incident all the brothers and their sons were residing separately. There were litigations and criminal cases between families of Accused and PW 2 Sharanappa related to immovable properties and on 08.03.2004 at about 06.00 a.m. while PW 2 Sharanappa was in his house, it is alleged that Accused Nos. 1 to 8 9 formed an unlawful assembly and in prosecution of their common object to commit murder of (1) PW 2 Sharanappa, (2)Laxmibai, his wife (3) Chandrakala, (4) Renuka, his daughters trespassed into the house after conspiring to commit murder, abused and insulted PW 2 Sharanappa and the deceased persons and assaulted PW 2 Sharnappa with the sword and knives with intent to cause his death and intentionally murdered (1)Laxmibai (2)Chandrakala in their house and chased Renuka who was running scared towards the house of PW 1 Fakiramma. Accused No.1 is said to have caused her death by assault with the sword and it is further alleged that Accused Nos. 4, 5 & 6 abetted the commission of murder and all the Accused said to have ran away from the place after this incident.
4. After receiving information of the said incident, on phone PW 39 Veeresh, Police Sub Inspector went to the place of incident and found PW 2 the injured and saw the dead bodies of Laxmibai and Chandrakala in the house and that of Renuka in the front yard of PW 1 Fakiramma and arranged to send the injured PW 2 to the hospital and went to the police station.
10
5. PW 1 Fakiramma appeared in the police station and the PSI recorded her complaint Ex.P-1 and sent FIR Ex.P-36 to the Magistrate and at that time Accused Nos. 1 to 5 appeared in the police station with the weapons and they were kept in a room. He went back to the place of incident and on the instructions of the CPI held inquest Ex.P-11 on the dead body of Laxmibai and entrusted the investigation to CPI PW 36. During the course of the investigation PW 35 and PW 36 held inquest on the bodies of Chandrakala and Renuka as per Ex.P-13 and P-14 and entrusted their bodies for P.M.examination. Accused Nos. 1 to 5 were arrested on their appearance in the police station. Accused Nos. 1 to 3 produced sword and two knives MOs 1 to 3 respectively and also the blood stained clothes on their body i.e., MOs 22 to 26. They were seized under mahazar Ex.P-15 in the presence of attesting witnesses. The spot mahazar was also held under Ex.P-12 and MOs 4, 16 to 21 were seized. The statement of witnesses were recorded. Accused No.2 had sustained injury, he was sent for medical examination. The Post mortem of the deceased was held and the P.M.reports Ex.P-27, P-32 and P-33 were collected. PW 29 PSI, PW 35 11 and PW 36 CPIs during the investigation collected all the relevant documents including photographs and videos of the scene of occurrence and on completion of investigation filed the charge-sheet against the accused for the aforesaid offences.
6. After framing charge Accused pleaded not guilty and therefore, the prosecution examined PWs 1 to 37 and in their evidence the documents Ex.P-1 to P-72and MOs 1 to 26 were marked. The Accused have taken defence of total denial. They have not led any defence evidence, but got marked Ex.D-1 toD-4 during the cross examination of PWs 2, 3 and 10.
7. The Trial court after hearing the counsel for the Accused and the Public Prosecutor and on appreciation of the material on record convicted Accused Nos. 1 to 3 for the aforesaid offences whereas acquitted Accused Nos. 4 to 8 of all the charges. After hearing on the point of sentence the court ordered rigorous imprisonment for life and to pay fine of `2,000/- each on Accused Nos. 1 to 3 for the offence u/s 302 r/w 34 of IPC and lesser sentence for other offences.
12
8. The State aggrieved by the acquittal of the Accused Nos. 4 to 8 and seeking enhancement of sentence as against Accused Nos. 1 to 3 has filed two appeals, whereas , the other appeal is filed by the Accused Nos. 1 to 3 challenging their conviction and sentence.
9. We have heard Sri. Ishwaraj S. Chowdapurkar, learned counsel appearing for the Accused and also Smt Anuradha Desai, the Addl. State Public Prosecutor for the State.
10. In the appeal by the Accused challenging their conviction, the learned counsel for the appellants has taken us through the statements of witnesses and submitted that the evidence of PWs 1 and 2 is unreliable and other material witnesses have turned hostile to the prosecution and as PW 1 Fakiramma is also partly hostile, he contends that the evidence of PW 2 Sharanppa alone is unreliable for the reason that he is not a witness to alleged murderous assault on his wife and daughters and as there are material contradictions as per Ex.D.1 and D.2 in his evidence, he submits that conviction based on the evidence of PW 2 is wholly erroneous and illegal. It is 13 also his submission that as the relationship between the Accused and PW 2 Sharanappa was cordial, the prosecution has not proved the motive and in the absence of corroboration the interested version of PW 2 cannot be relied on to base the conviction. So far as, in the appeal against acquittal, he contends that there is no clinching evidence against Accused Nos. 4 to 8 and as the case on hand is not rare incident amongst rarest, he submits that there is no merit in the appeals filed by the State.
11. The learned counsel appearing for the State submits that PW 2 Sharanappa is an injured and his evidence is further corroborated by PW 1 Fakiramma and therefore, she contends that the Trial court was justified in awarding conviction as there are other strong circumstances leading to recovery of clothes and weapons from Accused Nos. 1 to 3 and therefore, pleads that there are no valid grounds to interfere with the conviction. So far as the appeal against acquittal is concerned, she contends that there is ample material on record to award conviction as against Accused Nos. 4 to 8 and the Trial court committed an error in granting an order of acquittal. She also contends that convicted Accused have 14 committed a brutal act by cutting throats of three persons and caused many injuries on PW 2 and others and their act is merciless and without any provocation. Therefore, she claims that the incident of causing death of three persons and injury to others is a rare incident amongst rarest and death penalty is warranted.
12. We have considered rival submissions made by learned counsel for the parties and perused the record. To prove the incident the prosecution relies upon (1) homicidal death of Laxmibai, Chandrakala and Renuka, wife and daughters of PW 2 Sharanappa (2) Motive, (3) the evidence of injured PW 2 Sharanappa and that of PW 1 Fakiramma, (4) the early information to the authorities, (5) the medical evidence and (6)recovery of blood stained clothes and weapons from Accused Nos. 1 to 3.
13. PW 31 Mohanbabu is the photographer who on the request of the Investigating Officer came to the place of incident and obtained Ex.P-41 to P-48. The negatives are at Ex.P-41(a) to P-48(a). Perusal of his evidence and the photographs would reveal the position of dead bodies of Laxmibai and Chandrakala in the house and that of 15 Renuka outside the house. Inquest on the bodies of deceased were prepared in the presence of witnesses by the Investigating Officer and they are at Ex.P-11, P-13 and P-14. The position of the bodies, the injuries on them have been stated in the reports. Though attesting witnesses have turned hostile to prove the reports, there is no reason to disbelieve the evidence of Investigating Officer to accept these reports. Ex.P-27 is the P.M.report of Renuka (the deceased) and Dr. Balachandra (PW 26) held autopsy on the body and gave the report. As could be seen from injuries mentioned therein a cut throat injury on the middle of the anterior part of the neck just below the thyroid cartilage extending to both the sides of the neck, deep extension up to vertebral column in the back side of the neck mesuring 15cms x 5cms x 5 cms was found. The trachea was completely cut. Jugular veins, carotid artery, great blood vessels, neck muscles were cut and the doctors have certified the injury as ante mortem and it is said to have been caused by heavy sharp edged weapon. The autopsy was held on the same day between 11.00 a.m. to 12.30 noon and as opined by the doctor, the death is due to shock and hemorrhage due to the 16 aforesaid injury and time since death is approximately 06
- 12 hours before P.M.examination.
14. PW 28 Dr. Nanda held autopsy of Laxmibai W/o PW 2 Sharanappa and both in her evidence and report Ex.P-32 it is stated that injury No.1 is similar to the one, on the neck of deceased Renuka and it measures 16.05cms x 5 cms x 4.8 cms, ante mortem in nature and is caused by heavy sharp edged weapon. Likewise Ex.P-33 is the P.M.report of Chandrakala (the deceased) and Dr. Nanda PW 28 held autopsy on the body. Injury No.1 is similar to the one which was found on the body of deceased Renuka and Laxmibai i.e., a cut throat injury on the neck measuring 14 cms x 4.5 cms x 4.5 cms. It is ante mortem in nature and caused by a heavy sharp edged weapon. So as could be seen the same type of injury on the same place i.e., on the neck of three deceased persons, measurement being proportionately the same, gives a clear indication that these injuries and the consequent death is homicidal. There is no serious dispute of homicidal death even by defence in the cross examination of the doctors PW 26 and PW 28 and taking into consideration the fact that two bodies were lying in 17 the house of PW 2 Sharanappaa, that of Renuka was found in front yard opposite to the house of PW 1 Fakiramma, their position, the bleeding and other attendant circumstances in the context of defence having not disputed homicidal death, we safely conclude that the aforesaid persons died a homicidal death.
15. Motive or strain in relation is not an absolute requirement of law, but is always relevant factor for analying prosecution evidence and determining the guilt of the accused. In this context it is relevant to refer to the evidence of PW 2 Sharanappa and as on the date of incident he was 91 years old and he states that in the year about 1956-1957, there was division in the family amongst the brothers and he started residing in a new house after its construction. As his first wife was dead he was living with his second wife Laxmibai and as his two daughters PW 8 Shashikala and PW 15 Shanta were married, his unmarried daughters Chandrakala (the deceased) and Renuka (the deceased) were staying with him. The later developments in the case and the consequent incident that occurred would be an instance of what is said by seers of this country, that craving has 18 direct link with suffering. He educated Accused No.4 Saibanna and purchased 22 acres of land in the name of Accused No. 6. In the year 1978 he was elected as Member of Legislative Assembly and thereafter purchased lands and later on one occasion he had kept about 200 bags of food grains in his house. In his absence Accused No. 4 is said to have sold the food grains and did not pay the amount collected. Therefore, he personally started supervising, cultivation of the lands by Accused No. 4, but later a dispute arose between him and Accused No.4 which led to civil litigation. Accused No.4 started conspiring with Accused No.1 to 3 and thereby Accused Nos.1 to 3 started demanding their share in the shop premises. He also states, in the year 2002 on one day Accused Nos. 1 to 3 stopped him on the way near Nagavi chowk and threatened him to give share in the shop premises and at that time Accused No.5 beat him and a complaint in this regard was lodged to the police.
16. The prosecution to prove motive and strain in relationship amongst Accused and PW 2 Sharanappa relies upon Ex.P-59 the certified copy of the judgement and order in CC No. 811/2002 dated 10.10.2003 wherein 19 Accused Nos. 1 to 3 and Accused No. 5 are the Accused and they were charge-sheeted for the offences punishable u/Ss. 341, 323, 324,504, 506 r/w 34of IPC and were ordered to pay fine. Ex.P-56 to P-58 are the copies of complaints filed by PW 2 to the police. Perusal of the evidence of PW 2 and the documents produced would clearly reveal that there was strain in relationship between PW 2 Sharanappa and Accused Nos. 1 to5. Though PW 2 admits in his cross examination that he had love for his grand children i.e., Accused Nos. 1 to 3, at the most it is the approach of PW 2 towards Accused, but the fact that Accused Nos. 1 to 3 had quarrelled for share in the shop premises and a complaint was filed against them for causing assault and they were ordered to pay fine in that criminal case would clearly infer that they had a motive to cause the incident, and the purpose was to eliminate the family of PW 2 to grab the property.
17. To prove the incident the prosecution relies upon the evidence of PW 2 Sharanappa, the injured and PW 1 Fakiramma and though PWs 3 to 7 are the eye witnesses they have turned hostile to the prosecution. PW 2 Sharanappa was in his house and at about 05.30 a.m. 20 when he came out from the toilet and saw Accused Nos. 1 to 3, 5 and 7 coming down from the stair to the ground floor. He was surprised to see them and questioned them as to their presence. At that time Accused No. 7 asked the other Accused to finish PW 2 Sharanappa and Accused No.1 who was armed with sword caused assault on the back, whereas Accused Nos.2 and 5 caused assault with jambiya on the chest and Accused No. 3 pierced his jambiya on the left side of the abdomen. Accused No. 7 also asked them to kill the other members of the family. Accused No.1 first assaulted Laxmibai and then Chandrakala on their neck. Whereas Accused Nos. 2 & 3 caused many more injuries on PW 2. Accused No.1 chased Renuka and caused assault on her neck with the sword and when she was running all the Accused dragged her. Meanwhile PW 2 fell near the steps of the toilet and the Accused Nos. 1 to 3 went out chasing Renuka.
18. PW 1 is the niece of PW 2 and was residing in the house opposite to the house of PW 2. She stated that at about 06.00 a.m. she heard shriek of Renuka and opened the door and saw Accused Nos. 1 to 3 chasing Renuka who had sustained bleeding injury over the neck. 21 After assault on Renuka the Accused ran away from the spot. To analyse the evidence of PWs 1 and 2, the presence of PW 2 Sharanappa in his house, particularly in the early hours of the morning, is natural. He has spoken to the presence of Accused Nos. 1 to 3, 5 and 7. But the presence of Accused No. 5 and 7 is not stated by PW 1. So it is only the evidence of PW 2 to prove the presence of Accused Nos. 5 and 7. PW 2 was shifted in the jeep for treatment and was examined by Dr. Nanda PW 28 who gave first aid and later he was taken to Basaveshwar hospital, Gulbarga and was treated by PW 32. Scrutiny of the evidence of PW 32 reveals that PW 2 was conscious and he found injuries on the abdomen, left hand, left wrist, left leg and Ex.P-50 is the injury certificate and PW 33 Shivashankar who examined PW 2, performed surgery and at the time of examination he found as many as 16 injuries on body of PW 2. The particulars of the injuries are in Ex.P-53. All the injuries are caused by sharp edged weapons. The statement of PW 2 was recorded few days after the incident as he was not in a condition to give statement and therefore, there is some delay in recording 22 his statement. Evidence of PW 32 and PW 33 reveal that PW 2 had sustained many grievous injuries.
19. Evidence of an injured has a higher value compared to the evidence of any other witnesses. An injured generally does not implicate an innocent and does not leave a person who has really caused the harm, his evidence lends more credence. But as he is a person interested, his evidence needs a severe scrutiny, particularly in the circumstances where there are material contradictions. Ex.D-1 is one such contradiction got marked by the defence in the evidence of PW 2, in which he states "due to the injuries and the pain suffered I lost consciousness and regained consciousness when I was in Basaveshwar hospital at Gulbarga." He also states that he came to know the death of his wife and two daughters due to assault by the Accused, through his daughter Shanta (PW 15). So from this contradiction which has been proved in the evidence of Investigating Officer is a material contradiction and therefore, the fact that he saw Accused Nos. 1 to 4 causing injuries on his wife and his two daughters cannot be accepted, as he had sustained 16 severe injuries and he might have gone into coma. His 23 version is the contradiction. Ex. D-1 appears to be true and if once accepted, his evidence having seen the Accused assaulting his wife and daughters cannot be accepted. We therefore, feel that his evidence needs corroboration.
20. PW 1 Fakiramma is both related to PW 2 Sharanappa, her maternal uncle and also the Accused. As she is closely related to both the parties, her evidence lends more credence. She has stated the manner of attack by Accused Nos. 1 to 3 on Renuka. During her evidence she was crying, shivering, repeatedly drinking water and was not giving the proper answers. It is only because she had seen a ghastly incident and saw three bodies of the persons who were very closely related to her and also had seen injuries to PW 2 who had sustained many injuries and on the other hand there are Accused Nos. 1 to 3 her close relatives, who had chased Renuka (the deceased). Because of this close relationship with the both the parties she must have been in agony and was in a confused state of mind and may be even hesitating to support the prosecution. But when she states the presence of Accused Nos. 1 to 3 and they chasing Renuka, 24 we do not have any hesitation to accept her evidence. It is relevant to note that PW 1 does not refer to the presence of either Accused No.5 or Accused No. 7 at the relevant point of time. Therefore, the scrutiny of the evidence of both these witnesses reveal inconsistent version relating to the presence of Accused Nos. 5 and 7 and it is in this context we feel that the contradiction Ex.D-1 is material and therefore, it is for this reason, the Trial court held that the presence of Accused Nos. 5 and 7 is not proved.
21. To further analyse the evidence of these two witnesses it is clear that early part of the incident was witnessed by PW 2 and later part was witnessed by PW 1. Anyhow as per the version of these witnesses the incident took place in between 05.30 a.m. to 06.00 a.m. and it is at this time that PW 2 had sustained the injuries at the hands of Accused and within a fraction of minute PW 1 saw Accused Nos. 1 to 3 chasing Renuka (the deceased). Therefore, so far as death of Laxmibai and Chandrakala is concerned it has occurred in between the period after the assault on PW 2 and before the assault on Renuka (the deceased). Therefore, the circumstances could be linked and it could be said from the evidence of PWs 1 and 2 that 25 death of Laxmibai and Chandrakala in the house was by the Accused Nos. 1 to 3 only.
22. Further more as could be seen from the nature of injuries sustained by three deceased persons on the neck were the injuries of similar type approximately same measurement and at the same place, therefore, an inference could be drawn that Accused No.1 was responsible for these injuries as he had sword in his hand
- a sharp edged weapon. It may be for this reason PW 2 could have thought that Accused No.1 caused injuries to deceased persons and hence improved his version and told before the court as if he saw Accused No.1 causing assault on deceased persons. Though there are some other minor discrepancies and contradictions Ex.D-2 to D-4 in the evidence, this Court has to keep in mind the fact that the incident had occurred on 08.03.2004 while witnesses were examined after some time, it may not be possible for the witnesses to depose which would be the absolute repetition of their earlier statement line by line or minute to minute, the correct reproduction of occurrence. This Court has to have a reasonable and practical approach and it is only the material contradiction or 26 variation in the nature of Ex.D-1 which can be of some consequence to create dent in the case of prosecution. There appears to be a discrepancy relating to the weapons held by Accused Nos. 2 and 3. At some place it is said that the said Accused No.3 holding jambiya and at other place it is said that they were holding knives. So far as these weapons are concerned, the size, length and the handle there are similarities. Except that jambiya has a blade, both edges of which are sharp and there is a curve, there is no much difference between the weapons. Therefore, we feel that it is a minor discrepancy and has no bearing over the case of the prosecution. The evidence of the witnesses is to be read in its entirety to examine their truthfulness and the veracity or otherwise. So even accepting Ex.D-1 as material contradiction and assuming for the time being that PW 2 did not see, the assault by the Accused on the deceased persons, the fact that PW 2 sustained injuries in the incident and that the Accused No.1 to 3 were seen by PW 1 chasing Renuka (the deceased), a conclusion has to be arrived at that Accused Nos. 1 to 3 were also responsible for the death of Laxmibai, Chandrakala and Renuka.
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23. While scrutinising the evidence the Court has to adopt the norm of removing the chaff from the grain. When there is consistent version of PW 1 to prove the presence of Accused Nos. 1 to 3 in the incident, when PW 2 speaks of Accused Nos. 5 and 7 we think that this part of the evidence of PW 2 lacks corroboration and therefore, the benefit of doubt granted by Trial court to Accused Nos. 5 and 7 appears to be just and reasonable. The defence of the Accused that the death of Laxmibai, Chandrakala and Renuka have not been spoken by the witnesses at the hands of the Accused and that they might have died at the hands of dacoits in the night hours cannot be accepted for the sole reason that PW 2 after he got up in the morning had seen his wife, two daughters in the house when he sustained injuries at the hands of the accused and even assuming that he fell unconscious within a fraction of moment and it is PW 1 who has seen the later part of the incident wherein she speaks of Renuka running out chased by Accused Nos. 1 to 3 and therefore, the theory put-forth by the defence has no basis.
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24. The evidence of PWs 1 and 2 is further supported by the medical evidence. In the incident that occurred, Accused Nos. 1 to 3 were holding sharp edged weapons. Further PW-2, and the deceased have sustained injuries like stabs, incised wounds and cuts. The doctors have stated that the injuries could be caused by sharp edged weapons. There is nothing to disbelieve the evidence of the doctors. Hence the medical evidence also corroborates the ocular evidence.
25. It is in the evidence of PW 29 PSI that he received information about the incident when he was in the house and went to the spot at 06.30 a.m. i.e., just within half an hour of the incident. He saw the dead bodies of Laxmibai and Chandrakala in the house near the kitchen and that of Renuka in the front-yard and injured PW 2 Sharanappa was lying in front of the latrine in the house. He made arrangements to shift injured to the hospital, informed the fact to his superiors and when he came to the police station PW 1 appeared and submitted her complaint Ex.P-1. So PSI PW 29 registered complaint Ex.P-1 in Cr.No. 30/2004 at 07.00 a.m. and sent complaint and FIR Ex.P-33 to the Magistrate and 29 that can be seen from the endorsement by the Magistrate it was in his hands at 08.25 a.m. So the facts of the incident reached the hands of Magistrate within 02 hours 15 minutes, within an hour complaint was registered by PW 29. So when PW 1 had seen a ghastly incident at 06.00 a.m. after making arrangements to PW 2 to shift to hospital, she came to police station and lodged the complaint. None of the family members of the PW 2 were present by that time and therefore there was no opportunity for PW 1 concoct a false case against Accused Nos. 1 to 3. Therefore, the contents must be true. In this context we are of the opinion that the receipt of the information both by the police and Magistrate within short time after the incident and the absence of opportunity to concoct a false case adds strength to evidence of PW 1 and PW 2. Though PW 29 the PSI after receiving information of the incident went to the place of incident, the fact of collecting a cryptic information is not sufficient to term it as a FIR. When he went to the place, he had an important duty to arrange for shifting of injured (PW 2) to the hospital and therefore, recording of complaint of PW 1 after reaching the police station is not 30 hit by Section 161 of Cr.P.C. The receipt of complaint from PW 1 in the police station is itself a first information and thereafter its registration is valid in law.
26. When PW 29 registered complaint, Accused Nos. 1 to 5 appeared in the police station and at that time Accused No.1 was armed with a sword, Accused Nos. 2 and 3 were holding knives. PW 29 informed the appearance of the Accused Nos. 1 to 5 in the police station to his superiors and it is PW 35 the CPI, arrested the Accused and interrogated Accused Nos. 1 to 3 and they volunteered to produce the weapons and accordingly Accused No.1 produced the sword and Accused Nos.2 and 3 produced the knives. These weapons MOs 1 to 3 were seized under mahazar Ex.P-15 in the presence of PWs 14 and 16. The clothes of Accused Nos. 1 to 3 were also blood stained. The shirt of Accused No.1, the shirts and pants of Accused Nos. 2 and 3 (MOs 23 to 26) were also seized.
27. Before the Accused Nos. 1 to 3 produced their weapons, the police were not aware as to where they were. The voluntary statements were recorded and they 31 volunteered to produce the blood stained weapons. Therefore, the recovery of the weapons is at the instance of the Accused. It has an evidentiary value u/s 27 of Evidence Act, reliance is placed in the case of Khatri Hemraj Amulakh .vs. The State of Gujarat, reported in (1972) 3 Supreme Court Cases 671. So for as recovering of blood stained clothes and the weapons, though the attesting witnesses to the mahazars are hostile, there is no reason to disbelieve the evidence of PW 35 the CPI. The aforesaid seized articles including blood stains fallen at the place of the dead bodies in all 22 articles were sent for chemical analysis to the Forensic Science Laboratory and PW 34 examined all these articles and submitted report Ex.P-60, P-61 and P-62. It is relevant to mention here that even the blood stained clothes of the body of the deceased persons were also sent along with sealed articles for report of PW 34. The report Ex.P-61 reveals that blood stains on the clothes of deceased persons, the clothes of Accused and the weapons MOs 1 to 3 contain "O" group blood in the stains of these articles. Therefore, from this evidence a direct inference could be drawn that it is the Accused Nos. 1 to 3 who were holding sword and knives 32 were responsible for the death of the deceased persons as well. So from these strong circumstances which have been brought on record by the prosecution retain no doubt in our minds that it is Accused Nos. 1 to 3 who at the first instance caused assault on PW 2 Sharanappa intending to kill him and thereafter caused injuries to Laxmibai, Chandrakala and Renuka. Further more the fact that there were no weapons in the hands of Accused Nos. 4 and 5 when they appeared in the police station and as their clothes were not blood stained leads to a doubt of their presence on the scene. Therefore, the evidence of PW 2 so far as presence of Accused Nos. 4, 5 and 7 lacks corroboration. Therefore, we are of the opinion that the acquittal of other Accused by the Trial court is justified as there is no consistent, cogent and clinching evidence so far as their involvement in this crime.
28. There is no evidence to prove that Accused Nos. 4 to 8 were members of unlawful assembly or that there is conspiracy by the said Accused with Accused Nos. 1 to 3 to cause death of the deceased persons and to cause injury to PW 2 and though PW 2 has stated an act of instigation of Accused No. 7 as her presence is not 33 corroborated, the acquittal by the Trial court even for the other offences is justified and there cannot be any interference in the order of acquittal.
29. It is well established principle of law that in an appeal against acquittal when there are two views possible, the one accepted by the Trial court cannot be disturbed. Hence, for the reasons stated above we decline to interfere in the judgement and order of acquittal of Accused Nos. 4 to 8.
30. So far as the appeal by the State relating to enhancement of the sentence is concerned, we have looked into the aggravating and mitigating circumstances brought to our notice by the learned Addl. State Public Prosecutor and the authorities relied upon. The Apex Court in Ramnaresh and others v. State of Chattisgarh the decision reported in 2012 CRI.L.J. 1898 has referred to the following aggravating and mitigating circumstances in awarding death penalty. They are extracted hereunder.
Aggravating Circumstances:
(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a 34 prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody. (8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43, Cr.P.C. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.35
(11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating Circumstances;
(1) The manner and circumstance in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradiction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. .
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(6) Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eye-
witness though prosecution has brought home the guilt of the accused."
31. On the basis of aforesaid circumstances it is held that the Court has to apply a test to determine, if it was also rarest of rare case for imposition of death sentence and that in the opinion of the Court imposition of any other punishment i.e., life imprisonment would be completely inadequate and would not meet the ends of justice and further it said that life imprisonment is a rule and death sentence is an exception. The nature and circumstances of the crime, the manner in which the crime was committed, the circumstances leading to such heinous crime are the material circumstances to consider the death penalty. In this context if we see the facts on hand Accused Nos. 1 to 3 are in the age group of 20 - 30 years. There was a long-standing enmity between the 37 parties. It may be that the Accused were comparing their financial status as it was prior to the partition and the fact that PW 2 Sharanappa after partition, constructed a house, purchased properties, spent money for election and acquired huge properties thereafter might have created feeling of an inequitable partition and might be jealous of the financial prosperity of PW 2. May be due to this reason that they were taken to peak of human behaviour and they might have felt the moral justification to eliminate the family of PW 2. This in our opinion is a mitigating circumstance and therefore does not warrant the penalty of death to one for life imprisonment. At the same time there are aggravating circumstances and as the crime is enormous in proportion, as the Accused attempted the murder of PW 2 and caused the death of other three members of the family and therefore, we are of the opinion that by drawing balance sheet of aggravating and mitigating circumstances we have to strike a balance between the two and though we feel that death penalty would be harsh, the Accused have to undergo a longer period of imprisonment for a mere 14 years of imprisonment, as in all cases of imprisonment 38 for life, a practice and convention has developed to commute the balance period of imprisonment after the convicts have suffered imprisonment for a period of 14 years and a minimum period of 20 years of imprisonment is warranted and justified in the circumstances of the present case. We trust, the aggravating circumstances stated above will be kept in mind by the Government while considering commutation of sentence of the convicted persons. For these reasons we do not find any grounds to interfere with the judgement and order of the Trial court. In the result, we proceed to pass the following:
ORDER The appeals are dismissed. The judgement and order of the Trial court is affirmed.
Sd/-
JUDGE Sd/-
JUDGE *MK