Karnataka High Court
State By Rural Police Station vs Girisha on 28 March, 2014
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH 2014
PRESENT
THE HON'BLE DR. JUSTICE K.BHAKTHAVATSALA
AND
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL No.602 OF 2009 (A)
BETWEEN:
STATE BY RURAL POLICE STATION
SHIMOGA
... APPELLANT
[BY SRI.K.R.KESHAVAMURTHY ASPP.,]
AND:
GIRISHA
S/O SHANKARAPPA, A/A 29 YRS
OCC:COOLIE, R/O VIDYANAGAR
DURGAMMANA VEEDHI
SHIMOGA
...RESPONDENT
[BY SRI.S G RAJENDRA REDDY, ADV.]
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) & (3) CR.P.C BY THE STATE P.P. FOR THE STATE
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
GRANT LEAVE TO FILE AN APPEAL AGAINST THE ORDER
DATED:4.11.08 PASSED IN S.C.NO.46/08 ON THE FILE OF
ADDL.SESSIONS JUDGE, SHIMOGA, THEREBY ACQUITTING
2
THE ACCUSED/RESPONDENT FOR THE OFFENCE
P/U/S.302 R/W 34 OF IPC.
THIS CRIMINAL APPEAL COMING FOR HEARING, THIS
DAY, K.N.KESHAVANARAYANA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal filed under Section 378 (1) & (3) of Code of Criminal Procedure by the State is directed against the judgment and order dated 04.11.2008 passed by the Additional Sessions Judge, Shimoga in S.C.No.46/2008, acquitting the respondent-accused No.1 of the charge leveled against him for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code (for short IPC).
2. During the course of judgment, respondent herein would be referred to as accused No.1, the rank which he held in the Trial Court.
3. The accused No.1 along with his brother Ganjendra arraigned as accused No.2 was charge sheeted by Rural Police, Shimoga for the offence punishable under Section 302 r/w Section 34 of IPC alleging that in the background of civil dispute regarding the land, accused Nos.1 and 2 by 3 sharing common intention of committing murder of deceased Gururaj, husband of PW1-Manjula, assaulted him with a chopper and club at about 1.30 p.m. on 08.02.2006, while the deceased was working in the land bearing Sy.No.5/2 of Islapura Village near Shimoga.
4. According to prosecution, immediately after the incident of assault on the said Gururaj, he was brought to the Megan Hospital at Shimoga at about 4.10 p.m. on the same day and on examination the Doctor declared him brought dead. At about 6.00 p.m. on the same day, PW1- Manjula lodged report about the incident of murder of her husband before the Rural Police Shimoga, based on which case in Crime No.75/06 for the offence punishable under Section 302 r/w Section 34 of IPC came to be registered against accused Nos.1 and 2 and investigation was taken up.
5. During the investigation, inquest was held over the dead body and later the dead body was subjected to post mortem examination. The Doctor who conducted the post 4 mortem examination noticed as many as 12 external injuries and also corresponding internal injuries and opined that the death was due to shock and hemorrhage as a result of injuries sustained. During investigation, accused No.1 was apprehended and at his instance the chopper said to have been used for commission of offence was recovered. However, the accused No.2 could not be traced. Therefore, on completion of investigation, charge sheet came to be filed against accused Nos.1 and 2 by showing accused No.2 as absconding. In spite of the efforts made by the jurisdictional Magistrate, the presence of accused No.2 could not be secured and therefore, the case against him was ordered to be split up and a split up charge sheet in C.C.No.92/2008 came to be registered against accused No.2.
6. On committal of the case to the Court of Sessions, as against accused No.1, his presence was secured, wherein he pleaded not guilty for the charge leveled against him and claimed to be tried.
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7. In order to bring home the guilt of the accused No.1 for the charge leveled against him, the prosecution examined PWs 1 to 12, relied on documentary evidence Exs.P1 to P19 and M.Os 1 to 5. During the course of cross-examination of prosecution witnesses, the defence got marked Exs.D1 to D4.
8. During his examination under Section 313 of Cr.P.C., by the learned Sessions Judge, accused No.1 denied all the incriminating circumstances appearing against him in the evidence of prosecution witnesses. Accused No.1 did not choose to lead any defence evidence. However, the defence of accused No.1 was one of total denial and that of false implication in the background of civil dispute.
9. After hearing both the sides and on appreciation of oral and documentary evidence, the learned Sessions Judge by the judgment under appeal held that though the evidence placed by the prosecution satisfactorily established the death of the deceased as homicidal, the prosecution has utterly failed to prove the complicity of accused No.1 for the 6 homicidal death of the deceased Gururaj. In that view of the matter, the learned Sessions Judge recorded judgment of acquittal against accused No.1. Aggrieved by the said judgment of acquittal, the State is in appeal before this Court.
10. The case of the prosecution as projected before the Trial Court was as under:
The deceased Gururaj, Shankarappa father of two accused persons, Parashuram S Durgappa & Mahadevappa are the brothers being the sons of Garebasappa and they are all residents of Vidayanagar Durga Temple Street, Shimoga. The said family owned extensive properties in and around Shimoga. There was a partition among the brothers in 1984, wherein land bearing Sy.No.5/2 of Islapura Village near Shimoga was allotted to the share of their mother. Since, the date of partition, the brothers started residing separately enjoying the properties allotted to their respective share. Their mother died sometime in the year 1990 leaving behind a Will where under she bequeathed the property allotted to 7 her in the partition in favour of the deceased Gururaj. Acting on that, the deceased got his name mutated in the revenue records in respect of the said property. This was objected to by the accused. There were revenue proceedings in respect of the said dispute. There was also a civil suit filed for partition and other reliefs, which was pending between the parties. Thus, there was ill-will between the two families in the background of civil dispute. The accused were objecting for the deceased alone enjoying the property left behind by their paternal grand mother and were demanding share in the said property. Since, the deceased was refusing to accede to their demand, the accused were proclaiming that they would somehow get a share in the property and if required even by eliminating the deceased. In the morning of 08.02.2006, the deceased Gururaj left the house to go to the land for carrying out agricultural operations. PW9-Naveen, son of elder sister of PW1-Manjula also accompanied the deceased at that time. PW9-Naveen was working as tiller driver under PW3-Eshwarappa. On 08.02.2006, the deceased engaged the service of the tiller of 8 PW3- Eshwarappa to plough his land bearing Sy.No.5/2 for the purpose of transplanting the paddy seedlings. PW9 was ploughing the land with the tiller while the deceased Gururaj and PW11-Hanumanthappa, who had been engaged by the deceased as a coolie worker were cutting the ridge in the land. At about 1.30 p.m., PW1-manjula came near the land carrying lunch for her husband Gururaj. At that time, the accused armed with chopper and club came near the land and on seeing the ploughing of the land with the tiller, they picked up quarrel with the deceased taking objection for the deceased alone enjoying the property and usufructs there from and started assaulting the deceased. Though, PWs 1, 9 & 11 tried to rescue the deceased, accused No.1 by assaulting with chopper and accused No.2 by assaulting with a club on the head ran away from the place. At that stage, PW1 raised hue and cry, which attracted persons working in the neighbouring lands and all of them came there. Auto rickshaw driven by PW5-P.Lokesh was secured to the land, in which the injured was taken to the hospital, where the Doctor on examination, declared him brought 9 dead. As noticed supra, thereafter, PW1 set criminal law into motion by lodging a report as per Ex.P2, based on which case came to be registered and investigation was taken up.
11. We have heard Sri.K.R.Keshavamurthy, Additional State Public Prosecutor for the appellant-State and Sri.Rajendra Reddy, learned counsel for the respondent- accused No.1.
12. Mr.K.R.Keshavamurthy, learned Additional State Public Prosecutor would submit as under:
The judgment under appeal is highly perverse and illegal inasmuch as the learned Sessions Judge has failed to consider the material evidence on record and for irrelevant reasons has discarded the evidence of PWs 1, 9 & 11 by raising a doubt about them having witnessed the incident of assault on the deceased; that the learned Sessions Judge has not appreciated various circumstances brought on record, which would clearly establish the presence of PWs 1, 9 & 11 at the scene of occurrence and they having witnessed the incident of assault on the deceased, as such, they are 10 eye-witnesses; that since, the presence of PW9 as spoken to by PW5-P.Lokesh, auto driver has not been challenged, the learned Sessions Judge ought to have accepted the testimony of PW9 as an eye-witness; that though, PW11 in his evidence has not whole heartedly supported the case of the prosecution, his evidence would indicate the presence of PW9 as well as PW1 and the accused No.1 at the time of the incident and the said aspect has not been controverted in the cross-examination; that the learned Sessions Judge has committed serious error in law in holding that PWs 1, 9 & 11 are not the eye-witnesses; that the learned Sessions Judge without properly appreciating the fact that the ghastly incident occurred near the land and thereafter the injured was brought to the hospital where the Doctor declared him brought dead at about 4.00 p.m. and thereafter, a report as to the incident came to be lodged by PW1 at about 6.00 p.m. and having regard to the fact that the FIR reached the jurisdictional Magistrate at about 7.45 p.m. on the same day, has committed serious error that there has been delay in lodging the report; that the learned Sessions Judge has 11 committed an error in doubting the scene of occurrence; that the learned Sessions Judge is not justified in doubting the presence of PW1 at the scene of occurrence on the ground that no one had seen her going from the house to the land carrying lunch for her husband; that non seizure of the clothes of the deceased lying in the land as well as the food carrier, which was said to have been dropped by PW.1 at that place, though trivial in nature and lapse on the part of the I.O. in not seizing those articles would not be a circumstance to doubt the presence of PW1; that the learned Sessions Judge has failed to appreciate that the woman folk carrying lunch for the men folk working at the land in rural area being a natural event, the presence of PW1 as spoken to by her at the scene of occurrence was quite natural and therefore, the learned Sessions Judge ought not to have discarded the testimony of PWs 1, 9 & 11. According to the learned State Public Prosecutor, the learned Sessions Judge has scanned the evidence of material witnesses with jaundice eyes without properly evaluating the evidentiary value in proper perspective and this has resulted in 12 miscarriage of justice and an unmerited judgment of acquittal and therefore, the judgment of acquittal calls for interference by this Court. Therefore, he sought for setting aside the judgment of acquittal and for conviction of accused No.1 for the charge levelled.
13. Per contra, Sri.Rajendra Reddy, learned counsel appearing for the respondent/accused sought to justify the Judgment under appeal and contended as under:
That the Judgment under appeal does not suffer from any kind of perversity or illegality since the learned Sessions Judge, on proper appreciation of oral as well as documentary evidence, has recorded a finding that the prosecution has failed to establish the complicity of Accused No.1 for the homicidal death of the deceased and since the said finding is sound and reasonable regard being had to the evidence on record, this Court, sitting in appeal against the Judgment of acquittal should not lightly interfere with such findings; that interference by the Appellate Court with the Judgment of acquittal, as held by catena of decisions of the Apex Court, is warranted only for very substantial and 13 compelling reasons, when it is established that the Judgment of acquittal is palpably wrong or based on an erroneous view of law or has resulted in grave miscarriage of justice etc., and since in the case on hand, there are no substantial or compelling reasons for interference with the Judgment of acquittal, the appeal has no merit and is liable to be rejected. In this regard, reliance was placed on the decision of the Apex Court in GHUREY LAL Vs- STATE OF U.P ((2008) (10) SCC 450) and S.ANIL KUMAR Vs- STATE OF KARNATAKA ((2013) 7 SCC 219)) and other decisions; that as pointed out by the learned Sessions Judge in the Judgment under appeal, the genesis of the case has not been established by the prosecution; that there has been delay in lodging the report which has not been properly explained; that the prosecution has not established by satisfactory evidence the actual scene of occurrence since according to P.Ws.1, 9 and 11, the incident occurred in the wet land where there was slush whereas there is absolutely no evidence of the presence of slush or the mud particles on the person of the deceased, as such, the story put forth by 14 the prosecution about the incident having occurred in the wet land is falsified, therefore, the learned Sessions Judge is justified in entertaining doubt about P.Ws.1, 9 and 11 being eye-witness to the incident; that though according to the case of the prosecution, the incident said to have occurred at about 1.30 p.m., the injured was said to have been brought to the hospital at about 4.10 p.m. Therefore, the time at which the injured was brought to the hospital creates a great amount of doubt as to the exact time at which the incident of assault took place and therefore, the learned Sessions Judge is justified in entertaining the doubt as to the story put forth by the prosecution regarding the place and time of the incident; that according to the contents of the P.M report, the stomach contained partially digested rice meal, and this factual aspect would render the testimony of PW1 totally unreliable as according to P.W.1, the incident of assault occurred when she reached the land with the lunch box, which indicates that the deceased had not taken his lunch, however, the medical evidence indicates that he had taken lunch. Therefore, this creates a doubt as to the time 15 of incident and also the presence of P.W.1 at the scene of occurrence; that the prosecution has examined only interested and related witnesses before the Court though there were independent eye-witnesses cited in the charge- sheet as C.Ws.7, 8 and 15 who have not been examined before the Court. He contends that had this independent witness cited in the charge-sheet been examined, the truth would have been revealed and therefore, the prosecution has deliberately kept them back from examination before the Court. As such, the case of the prosecution has been rightly viewed with suspicion by the learned Sessions Judge; that the recovery of the chopper at the instance of Accused No.1 is highly doubtful regard being had to the evidence of P.W.1 that she saw the chopper in an unsealed state at 10.00 a.m., even before the purported time of its seizure and in addition to this, the seized chopper has not been subjected to forensic examination. In the light of the aforesaid submission, the learned counsel contended that the learned Sessions Judge having taken into consideration all these improbabilities in the case of the prosecution, infirmities in the evidence, has 16 recorded a finding that the prosecution has failed to establish the complicity of Accused No.1 with the homicidal death of the deceased and the said finding being sound and reasonable, does not warrant interference by this Court. Therefore, he sought for dismissal of the appeal and confirmation of the Judgment of acquittal.
14. In the light of the facts and circumstances of the case and the submissions made on both sides, the points that arise for our consideration are:
i) Whether the Judgment under appeal acquitting the respondent/Accused No.1 of the charge levelled against him suffers from any perversity or illegality warranting interference by this Court?
ii) Whether the prosecution has proved beyond reasonable doubt the complicity of the accused No.1 to the homicidal death of the deceased?
15. We have bestowed our anxious consideration to the submissions made on both sides. We have carefully examined the record secured from the Trial Court. We have 17 scanned the evidence and also gone through the Judgment under appeal.
16. Before considering the merits of the case, it is necessary to note the feature of the Judgment under appeal. After the preamble portion, the reasoning part of the Judgment is comprised in Paragraphs 6 to 23. Out of that from Paragraphs 6 to 22, the learned Sessions Judge has verbatim extracted the evidence of P.W.6 to 22. In Para No.23, the details of the documentary evidence has been extracted. In Page No.45 of the Judgment, Paragraph again numbered as '18', the learned Sessions Judge has noticed the principles of law in relation to evaluation of evidence of related and interested witnesses. Thereafter, he refers to the arguments of both sides. In paragraph again numbered as '20' at Page No.49 of the original Judgment, he has referred to several case-laws cited by both sides. The actual evaluation of evidence and conclusion are found in Para No.22 at Page Nos.54, Para No.23 in Page No.56. For the sake of convenience, we find it proper to extract the concluding paras of the Judgment.
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17. As could be seen from the aforesaid conclusion, the learned Sessions Judge has recorded the Judgment of acquittal on the following grounds:
There is a doubt as to the place and time of incident. There has been delay in lodging the report. P.Ws.1, 9 and 11 cannot be treated as eye witnesses. The seized chopper is 25 not subjected to forensic examination. The other material witnesses cited in the charge-sheet have not been examined.
The law as to the scope of interference by the High Court sitting in appeal against the Judgment of acquittal recorded by the trial court is well settled by catena of decisions of the Apex Court. In GHUREY LAL's case referred supra, though the Apex Court has held that the Appellate Court may review the evidence in appeal against the acquittal under Sections 378 and 386 of Cr.P.C., and its power of reviewing the evidence is wide and it can re-appreciate the entire evidence available on record and also can review the trial Court's conclusion with respect to both facts and law, it has been held in the said decision that the accused is presumed innocent until proven guilty and the accused possessed this presumption when he was before the trial Court and the trial Court's acquittal bolsters the said presumption. It is further held that due or proper weight and consideration must be given to the trial Court's decision more especially when a witness's credibility is at issue and it is not enough for the High Court to take a different view of the evidence and there 26 must also be substantial and compelling reasons for holding that the Order of Trial Court was wrong.
18. After referring the several earlier Judgments, the Apex Court has held that the Appellate Courts should follow the well-settled principles crystalized by number of Judgments if it is going to over-rule or otherwise disturb the Trial Court's acquittal and it would do so when it has "very substantial and compelling reasons." The Apex Court, has illustrated certain instances which could constitute "very substantial and compelling reasons" as under:
i) The Trial Court's conclusion with regard to the facts is palpably wrong.
ii) The Trial Court's decision was based on an erroneous view of law
iii) The Trial Court's Judgment is likely to result in "grave miscarriage" of justice.
iv) The entire approach of the Trial Court in dealing with the evidence was patently illegal.
v) The Trial Court's Judgment was manifestly unjust and unreasonable.27
vi) The Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. Of course, as observed by the Apex Court, the list is only illustrative and not exhaustive.
Again in S. Anil Kumar Vs. State of Karnataka [(2013) 7 SCC 219] it has been held that, only in exceptional cases, where there are compelling circumstances and where the judgment in appeal is found to be perverse, the High Court can interfere with the order of acquittal and that interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
19. Keeping in mind the aforesaid well-settled principles, we proceed to consider the case on hand. 28
20. There is no serious dispute that the death of Gururaj was homicidal. Perusal of record secured from the Trial Court indicates that during the trial of the case, Accused No.1 did not seriously dispute the factum that the death of the deceased was homicidal. The contents of inquest report as well as the PM report, oral evidence of the Investigating Officer who conducted inquest as well as the evidence of doctor who conducted P.M examination, the opinion furnished by the doctor as to the cause of death, the nature of the injuries found on the dead-body as indicated in the P.M report would clearly establish that the death of the deceased was homicidal. Therefore, the learned Sessions Judge is justified in holding that the death of the deceased was homicidal. The crucial aspect required to be considered is as to whether the Accused No.1 was in any way responsible for the homicidal death of the deceased.
21. As noticed supra, the criminal law as to the incident in question was set on motion by the purported report lodged by P.W.1 as per Ex.P.2. As could be seen from the endorsement on Ex.P.2, the said report was lodged at 29 6.05 p.m., on 08.02.2006. As per the endorsement made by the jurisdictional Magistrate on the F.I.R, it reached him at 7.45 p.m., on the same day. Having regard to the time at which, the case came to be registered by the jurisdictional police and the time at which FIR reached the jurisdictional Magistrate it cannot be said that there was any delay in F.I.R reaching the jurisdictional Magistrate. However, the learned Sessions Judge has recorded a finding that there has been delay in lodging the report. The incident, as per the contents of the report/Ex.P.2, occurred at about 1.30 p.m., near the land. Thereafter, the injured was brought to the hospital at about 4.10 p.m., on the same day where the doctor declared him brought dead. Thereafter, P.W.1 said to have lodged a report. At this stage, it is necessary to note the argument canvassed as to the genuineness and admissibility of Ex.P.2 as the report received first in point of time. According to the learned counsel, P.W.1 in her evidence has stated that while she was in the hospital, she made a statement before the police about the incident which was recorded by policeman, whereas, according to the evidence of P.W.8/Madappa SHO 30 of rural police station, P.W.1 came to police station at 6.05 p.m., and lodged a written report as per Ex.P.2. Thus, according to the learned counsel, the initial statement of P.W.1 recorded in the hospital by a policeman which ought to be the report received first in point of time should be the F.I.R and not Ex.P.2. It is also his contention that the earlier statement of P.W.1 has been suppressed and subsequently, after due deliberation and consultations, a report as per Ex.P.2 appears to have been made by falsely implicating the accused in the back-ground of the civil dispute. In the light of the submissions, we have perused the evidence carefully. No doubt P.W.1, in Para No.32 of her deposition has stated that after some time of her reaching the hospital, two to three policemen came there and in the hospital, she made a report, but since she was highly in scared state, did not notice as to which police officer recorded the said statement. No doubt from the perusal of Ex.P.2, it is clear that it is not a recorded statement, but it is a written report lodged by P.W.1. It is necessary to note that in the entire cross-examination of P.W.1, it is not suggested 31 to her that Ex.P.2 is not the report which she made before the police in the police station. It is not suggested to her that apart from Ex.P.2, there was yet another report lodged by her and that is not produced before the Court. In the absence of any such suggestion to P.W.1, the evidence of P.W.1 that she lodged a report as per Ex.P.2 before the police, cannot be doubted. On that basis, the genuineness and admissibility of Ex.P.2 could not be doubted. It is also necessary to note that no such suggestion has been put to the I.O in the cross-examination that while P.W.1 was in the hospital, her oral statement was reduced into writing and that was treated as an F.I.R. Therefore, in the absence of any such evidence, Ex.P.2 has been rightly accepted as the report received first in point of time. As such it is the F.I.R based on which the jurisdictional police registered the case and set the criminal law into motion.
22. No doubt alleged incident occurred at about 1.30 p.m., near the land. The report came to be lodged at 6.05 p.m., on the same day. It has to be kept in mind that the incident occurred in the land. From there, the injured was 32 required to be brought to the hospital. At that stage, the paramount interest of the persons present there was only to save the life of the injured by shifting him to the hospital rather than rushing to police station to lodge a report. P.W.1 being wife of the injured is expected to take necessary steps to take the injured to the hospital. That is what she has done. Her conduct in this regard is quite natural and it is only when the injured was brought to the hospital, the doctor, on examination declared him brought dead. On hearing such a shocking news, it is reasonable to presume that she being the wife of the deceased must be under great state of shock. Certainly she required some reasonable time to come out of the shock and take steps to lodge a report. This reality in life appears to have been lost sight of by the learned Sessions Judge in holding that there has been delay in lodging the report. In our considered opinion, having regard to the facts and circumstances of this case, the time at which the incident said to have occurred near the land and the time at which, the injured was brought to the hospital and declared dead, there is absolutely no delay in 33 lodging the report. Even if there is little delay in lodging the report, the circumstances brought on record satisfactorily explains the delay. It is now well settled law that every delay in lodging the report would not be fatal to the case of the prosecution, unless, it is established that such delay has been utilized to falsely implicate the person. Having regard to the materials on record and the evidence, we find no delay much less inordinate delay in lodging the report to doubt the case of the prosecution on that score. The finding recorded by the learned Sessions Judge in this regard is highly perverse and contrary to the well settled principles of law.
23. The learned Sessions Judge has entertained doubt as to the place of occurrence on the ground that according to the case of the prosecution, the incident occurred in the wet land which had been ploughed and was in the stage of transplantation of paddy seedlings. In other words, the land was full of slush and if the incident had occurred in a place of that nature and the injured had fallen there, the slush in the land should have been found on the person of the deceased, whereas there is absolutely no evidence brought 34 on record as to the presence of slush and this is sufficient to entertain the doubt as to the actual place of occurrence. No doubt the evidence on record establishes that on the date of the incident, the land in question had been ploughed with a tiller and they were preparing the land for the transplantation of paddy seedlings. Therefore, the land must have been with some slush. It is also in the evidence of the material witnesses that on account of the assault, the deceased fell on the ground with bleedings injuries. It is in the evidence on record that while P.W.9 was ploughing the land with a tiller, the deceased was cutting ridge with a spade and, he had removed his pant and shirt and was working wearing half-pant and banian. The perusal of the contents of the P.M. report indicate that all the serious injuries were on the head. Of course, there is no evidence to indicate that before the injured was brought to the hospital, the slush was washed in the land. Never the less, in our considered opinion, it is reasonable to hold that after the fall on the ground with slush the attendant present there must have certainly washed the slush before bringing him to the 35 hospital. As the injuries were on the head, in the absence of positive evidence to show that even the head portion of the deceased came in contact with the ground, the absence of mud particles on the head would not in any way create doubt as to the place of occurrence. Regard being had to the consistent evidence of PWs.1, 9 & 11, as to the fact that the incident of assault occurred in the land while the deceased was working there, merely because the I.O. did not seize the pant and shirt of the deceased lying on the ridge as well as the food carrier said to have been dropped by P.W.1, the case of the prosecution cannot be doubted. It is well settled law that the lapses on the part of the I.O. cannot be a ground to reject the case of the prosecution unless it is shown that such lapses are material and has resulted in creation of some right in the accused. In our considered opinion, the non seizure of the pant, shirt as well as the food carrier is not of much importance and the said circumstance cannot be a basis to doubt the case of the prosecution. Having regard to the evidence on record we are of the considered opinion that the prosecution has satisfactorily 36 established the place of incident and the finding of the learned Sessions Judge in this regard is the resulted improper reading of the evidence on record as a whole, as such it is perverse.
24. According to the prosecution, P.Ws.1, 9 and 11 are the eye witnesses to the incident of assault. P.W.1 is the wife of the deceased, P.W.9 is the son of the elder sister of P.W.1, while P.W.11 is stated to be a coolie engaged by the deceased to work in the land on that day. Thus it can be termed that PWs 1 & 9 are related witnesses. However, it is well settled law by catena of decisions the testimony of a witness cannot be rejected on the ground of he or she being related to the victim or the deceased. Nevertheless, the Court will have to closely scrutinize the testimony of such witnesses before accepting the same. The veracity of such testimony of witnesses will have to be decided in the light of the tenor of cross examination which may indicate as to whether or not their credibility has been impeached in any manner. Though the learned Sessions Judge has noticed 37 this principle of law during the course of the judgment, has recorded a finding that since P.Ws.1 and 9 are related witnesses their testimony cannot be relied on. P.W.1 in her oral evidence has clearly stated that on 8.2.2006, at about 1.00 p.m., she left the home with lunch to her husband and went near the land and reached land at about 1.30 p.m. It is her further say that in the land her husband was working by cutting the ridge with a spade, while P.W.9 was ploughing the land with the tiller and P.W.11 was also working in the land. According to her evidence, when she reached the land, she saw the two accused quarreling with her husband taking objection to the deceased alone enjoying the property and the usufructs therefrom, thereafter, accused No.1 assaulted the deceased with chopper on the head repeatedly and accused No.2 with a club, as a result, her husband fell on the ground and on hearing her hue and cry, persons working in the neighbouring lands also came there and immediately an autorickshaw was secured in which the injured was shifted to Megan hospital at Shimoga. P.W.9 in his oral evidence has stated that for about one week prior to the date 38 of incident, he was working as a driver of tiller owned by P.W.3 and on 8.2.2006 as directed by P.W.3 in the morning, he went to the land of P.W.3 to plough the land with the tiller and at about 12.00 noon, as directed, he came to the land of the deceased with tiller for the purpose of ploughing. According to him, when he was tilling the land, at about 1.30 p.m., P.W.1 came there with lunch to her husband. It is his further say that the accused came there and picked up quarrel with the deceased and assaulted him. Of course P.W.3 who is admittedly the owner of the tiller, has not supported the case of the prosecution as to sending the tiller for the purpose of ploughing the land of the deceased and also engaging the services of P.W.9. therefore, he was declared hostile and he was cross examined by the learned Public Prosecutor. In the cross examination by the learned Public Prosecutor, he admits that he does not know the ploughing of the land with the tiller and for the purpose of using power tiller he was taking services of some other persons. He volunteered to state that he had engaged the services of his brother. Whereas in the examination in chief 39 he has stated that he himself was driving the tiller. This indicates that P.W. 3 has deliberately deposed falsehood before the court and he did not want to support the case of the prosecution. Obvious beneficiary of this would be the accused. Admittedly, P.W.3 is the owner of the power tiller. He does not know driving the power tiller. He was required to take assistance of some persons. Though he says that his brother was assisting him, that was not his say in the examination in chief. Therefore, reading the evidence of P.W.3 as a whole, would indicate that he would engage another person for driving the power tiller. The evidence of P.W.9 that he had been engaged by P.W.3 for driving the power tiller for about one week prior to the incident has not been impeached in the cross examination. Of course during the investigation, the power tiller was not seized as contended by the learned Counsel for the accused. Having regard to the fact that power tiller was not used in the commission of the offence, in our considered opinion, seizure of the power tiller was not necessary. It is also necessary to note that the I.O. on visiting the scene of occurrence on the 40 next day, the power tiller was not found there. Therefore, there was no occasion for him to seize the same. It is suggested to P.W.9 that he did not possess the licence to drive the power tiller. However, he says that no licence is required to drive the power tiller in the land used for agricultural purpose. Learned Counsel for the accused is not able to place before us any provisions of law which requires licence to drive the power tiller used for agricultural operations. There appears to be some inconsistency in the evidence of P.W.1 and 9 as to P.W.9 leaving the house with deceased in the morning. According to P.W.1, P.W.9 accompanied her husband while he left home to the land, while according to P.W.9, in the morning, he went to the land of P.W.3 to plough the land with tiller and at about 12.00 noon, he came to the land of the deceased for ploughing with the tiller. In our considered opinion, this inconsistency does not affect the substratum of evidence of P.Ws.1 and 9 about the presence of P.W.9 in the land. P.W.5 is an auto driver in which the injured was taken to the hospital from near the land. In his evidence, he has stated 41 that on 8.2.2006 at about 2.30 p.m., while he was proceeding towards his house for lunch, near Durgamma Temple street, P.W.9-Naveen called him and accordingly, when he took the autorickshaw near railway station, the injured Gururaj was found there and in the autorickshaw, the injured was taken to the hospital. P.W.5 has not been cross-examined by the defence counsel stating that he has no cross-examination. Thus, the unchallenged evidence of P.W.5 indicates the presence of P.W.9 with the injured at about 2.30 p.m. P.W.11-Hanumanthappa who is a coolie engaged by the deceased of course has not whole-heartedly supported the case of the prosecution. However, never the less, in his examination-in-chief, he has stated that on the date of the incident, he was engaged by the deceased Gururaj for cutting the ridge in the land, therefore, he had been to the land at about 8.00 a.m. He has further stated that on that day, power tiller owned by P.W.3/Eshwarappa had been brought to the land on hire for ploughing. However, according to him, he does not know the name of the person who was driving the tiller. Never the less he says 42 that the land was being ploughed with the help of a power tiller. It is his further say that there was a quarrel between Accused No.1 and the deceased at about 1.30 p.m., in the land. According to him, Gururaj fell into the slush, but he (PW11) was standing at a distance. He has also stated that at that time, P.W.1/Manjula was present and immediately, an autorickshaw was brought in which the injured was shifted to the hospital. The witness was declared hostile and permitted to be cross-examined by the learned Public Prosecutor. Of course, in the cross-examination, he has denied the suggestions that he has made a statement before the police at the time of investigation that he witnessed the accused assaulting the deceased with a chopper. It is now well settled law that evidence of a hostile witness is not required to be discarded in totality and such part of evidence corroborates the evidence of other witnesses it could be relied upon by the Court. Evidence of P.W.1, read as a whole, would clearly corroborate the fact that the power tiller of P.W.3 was being used in the land of deceased for ploughing and that was being ploughed by some person and 43 in the land at about 1.30 p.m., there was a quarrel between deceased and accused and during such quarrel, the deceased fell on the ground and was immediately taken to the hospital. His evidence also would corroborate the fact that at that time, P.W.1 was present at that place. This part of the evidence of P.W.11 has not been controverted in the cross-examination by the learned defence counsel. The fact that PW.11 was engaged by the deceased on that day for working in the land is not challenged. Therefore, the presence of P.W.11 in the land could be reasonably accepted in the light of his evidence. Therefore, from the evidence of P.W.5, the presence of P.W.9 and from the evidence of P.W.11, the presence of P.Ws.1 & 9 at the scene of occurrence is corroborated. Therefore, the testimony of P.Ws.1, 9 & 11 cannot be viewed with suspicion only on the ground that they are related to the deceased. P.Ws. 1, 9 & 11 have consistently stated about the accused No.1 assaulting the deceased with a chopper on the head. Their testimony in this regard is consistent with the medical evidence as to the site of injury. As could be seen from the 44 contents of the P.M report, there were three lacerated wounds and two chopped wounds over the different parts of the head. Injury Nos.6 and 7 are the contusions found on the scapular region. Injury No.8 was abrasion over the chest and abdomen. Injury Nos.9 and 10 are chop wounds on the upper left arm. Injury Nos.11 and 12 are the chopped wounds. Injury Nos.11 and 12 are described as defence wounds. The learned Sessions Judge has observed that P.W.1, in her evidence, has not explained as to how this defence wound has occurred. Therefore, on that basis, the learned Sessions Judge has doubted the presence of P.W.1. We fail to understand as to how these circumstances would create doubt as to the presence of P.W.1. P.W.1, when reached near the land, saw the assault on her husband. When such an incident of assault was going on, one cannot expect a person like P.W.1 to observe in minute detail and come out with a photographic details of the incident. Obviously, the injured, in the course of assault, must have tried to ward off the blow by raising his hand, which has resulted in a defence wound. Merely because P.W.1 has not 45 explained the said defence wound, her presence cannot be doubted. Yet another circumstance relied upon by the learned Sessions Judge to doubt the presence of P.W.1 is that while she was moving from the house to the land, no body has seen her and the prosecution has not examined any of the in-mates of the houses on the way to the land from their house. This observation of the learned Sessions Judge appears to be on the premise that the in-mates of the houses should at all time be present outside their houses to see as to who moves on the road. Merely because no one has seen PW.1 moving from the house to the land and the prosecution has not examined any of the in-mates of the houses in the neighbourhood, her say that she went to the land with lunch to her house cannot be doubted. Judicial notice of the fact may be taken that in rural areas, the women folk even to this date, would carry lunch to their men-folk working in the land. Therefore, her say that she went to the land with a lunch box cannot be termed as unnatural. On the other hand, in our opinion, it is quite natural. The reasonings adopted by the learned Sessions 46 Judge to doubt the presence of P.W.1 at the scene of occurrence on this ground is highly perverse. Of course, there is some inconsistency between the stomach contents as stated in P.M. report and the evidence of P.W.1. According to P.W.1, when she reached the land with a lunch box, she saw the incident and on seeing that she dropped the lunch box there and rushed to the rescue of her husband and thereafter, the injured was taken to the hospital. If that is accepted, the deceased had not yet taken the lunch brought by PW.1. According to the contents of P.M report, the stomach contained partially digested rice meal, which suggests that he had consumed rice meal roughly about two to three hours prior to the death. It is brought out in the cross-examination of P.W.1 that when her husband left the house in the morning, he did not take break-fast in the house. It is her say that he might have taken the breakfast in the hotel. Of course, if the evidence of P.W.1 is accepted, deceased did not consume the lunch brought by her. However, it does not rule out any possibility he having taken food in between while working in the land. 47 It is pertinent to note that during the cross-examination of P.W.9 or P.W.11, there is no suggestion that the deceased had not gone out of the land for any purpose. Therefore, the possibility of the deceased having gone out of the land prior to arrival of PW.1 and having consumed food, cannot be ruled out. In addition to this, merely on the basis of stomach contents, the testimony of witnesses which are otherwise acceptable cannot be rejected. Therefore, there is no substance in this contention.
25. Having regard to the nature of the evidence on record, we are of the considered opinion that P.Ws.1 and 9 are natural witnesses. Their testimony is not impeached in the cross-examination as to their presence and they having witnessed the incident of assault on the deceased by Accused No.1, which resulted in his death. The evidence on record clearly establishes that the accused had a strong motive for commission of this offence. It is not in serious dispute that there was a partition among the five brothers in the year 1984 and in the said partition, the land in dispute 48 bearing Survey No.5/2 of Islapura village, had fallen to the share of their mother. The deceased was claiming that his mother had left behind a will wherein the land in question had been bequeathed to him and therefore, he is enjoying the land. This was being objected to by the accused being the nephews of the deceased. In fact the two accused along with their sister had filed a civil suit in O.S.No.104/2006 on the file of Civil Judge (Senior Division), seeking partition and separate possession of their share in several lands including the land bearing Survey No.5/2 of Islapura. The said suit was still pending. It is also on record that on the basis of the Will, after the demise of his mother, the deceased got his name mutated into the revenue records and in respect of the same, certain proceedings before revenue authorities were also pending. There were earlier criminal cases against the Accused No.1 and his brothers registered on the basis of the report lodged by the police alleging assault on him. Thus, there were several reasons for Accused No.1 to nurture ill- will against the deceased. It is in the evidence of P.Ws.1 & 9 that Accused No.1 along with his brothers, was proclaiming 49 in the neighbourhood that he would some how get the share in the property division, if required, by eliminating the deceased Thus, the evidence on record would establish presence of a strong motive for Accused No.1 to do away with the life of the deceased. It is in this background the Accused No.1 is shown to have assaulted the deceased with a chopper on the head repeatedly resulting in his death.
26. According to the I.O, after the arrest of the Accused No.1 pursuant to his voluntary statement, the chopper used for the commission of the offence was recovered from inside a Lantana bush. The chopper has been marked as M.O.1. No doubt, according to the evidence of I.O, he has not sent the chopper to the forensic science laboratory for examination. However, forensic report, a copy of which is marked as Ex.P.18 would indicate that the chopper was not sent for examination to the laboratory. Based on the contents of Ex.P.18, the learned Judge has held that the seized chopper said to have been used for the commission of offence has not been subjected to examination by the forensic expert and therefore, the usage 50 of M.O.1 in the commission of offence is highly doubtful. In this regard, it is necessary to note that according to the contents of the mahazar/Ex.P.15 where under the chopper was recovered, the Accused No.1, after commission of the offence, stated to have washed the chopper and hid the same inside the bush. The alleged voluntary statement of accused was also to that effect. It is in the light of that probably, the I.O must have thought it fit not necessary to send the chopper for examination by the forensic expert. Therefore, the non-examination of the chopper/M.O.1 by the forensic expert cannot be viewed seriously having regard to the peculiar facts of this case. The reasoning adopted by the learned Sessions Judge to doubt the usage of M.O.1 in the commission of the evidence is perverse. It is necessary to note that P.W.4/Dr.Rudramurthy who conducted autopsy on the dead-body, in his evidence, has stated that later, the I.O sent the chopper for examination and after examining the said weapon, he furnished his opinion as per Ex.P.9 to the effect that all the chop wounds mentioned in the P.M report could have been caused by the type of the chopper 51 examined. This part of the evidence of P.W.4 has not been controverted in the cross-examination. The contents of Ex.P.9 has not been challenged. This shows that M.O.1 was sent to P.W.1 for examination and after examining the same, the doctor has furnished his opinion which clearly indicates that the chop wounds found on the deceased could have been caused with the weapon like M.O.1. Unless the accused had furnished the information as to the place where the chopper was hidden, there was no way for the I.O to recover the same. Therefore, the evidence of the I.O that after apprehension of Accused No.1, he made voluntary statement leading to the recovery of weapon of offence deserves to be accepted and pursuant to such voluntary statement, the chopper/M.O.1 has been recovered. That part of the case of the prosecution has been satisfactorily established from the evidence of the I.O. There is no rule that the evidence of a police officer should be rejected. It is not the law that the evidence of I.O should be viewed with suspicion. The evidence of the police officer should also be considered on par with other witnesses. Having regard to 52 the evidence of the I.O, in our considered opinion, the seizure of M.O.1 has been established and it is user in the commission of the offence has been established on the basis of opinion, furnished by the doctor. The material eye- witnesses P.Ws.1 and 9 have identified M.O.1 as the weapon used. Therefore, in our considered opinion, the learned Sessions Judge is not justified in discarding the testimony of P.Ws.1, 9 and 11. The reasonings adopted by the learned Sessions Judge to discard their testimony is highly perverse and suffers from inherent infirmity. The evidence of these witnesses have not been properly appreciated in its proper perspective. In our opinion, the manner of evaluating and appreciation of oral evidence by the learned Sessions Judge during the course of the Judgment is, highly improper and contrary to well settled principles of law. Evaluation and appreciation of evidence by the Court is not by merely extracting the evidence. The evidentiary value, and credibility will have to be decided by considering the evidence as a whole and not by reading some answers taken out of context nor by reading a sentence in isolation. The 53 learned Sessions Judge, in our considered opinion, has not undertaken proper exercise while evaluating and appreciating the oral evidence. We have independently re- assessed the evidence and have found that the findings recorded by the learned Sessions Judge is perverse and illegal and that has resulted in an unmerited acquittal of the accused.
27. Learned counsel for the respondent/accused sought to contend that the deceased was associated with bad elements and he had several enemies to his credit and some person enemical to him must have killed him and that has been utilized by P.W.1 to falsely implicate the accused in the background of the civil dispute. We find no substance in this contention. All suggestions put to P.W.1 as to the antecedent of the deceased have been either denied or she has pleaded her ignorance. It is well settled law that mere suggestions during the cross-examination of a witness are not substantive evidence. The defence will have to substantiate such suggestions by placing positive evidence or by bringing out circumstances which probabalise such 54 defence theory. In the case on hand, except suggesting to P.W.1 in the cross-examination, no other circumstance is brought out to substantiate such defence theory. Therefore, we find no circumstance to indicate that the deceased had bad antecedent and that he was killed by some persons enemical to him. On the other hand, the strong motive proved as discussed supra, would suggest that the accused and accused alone was responsible for the homicidal death of the deceased. Therefore, the learned Sessions Judge, in our considered opinion, is not justified in acquitting the accused. In the light of the discussions made supra evidence on record, would clearly establish that the Accused No.1 is liable to be convicted for the charge levelled against him in reversal of the Judgment of acquittal. Therefore, we find Accused No.1 guilty of the offence punishable under Section 302 of IPC.
28. The offence under Section 302 of IPC is punishable with death or imprisonment for life. It is well settled law that the maximum sentence of death could be imposed only in rarest of rare cases. Having regard to the 55 facts and circumstances of this case, we are of the opinion that this is not a case falling into the category of rarest of rare cases warranting imposition of death sentence. Hence the only alternative is imposition of sentence of life. According, we proceed to pass the following Order:
i) Appeal filed by the State is allowed.
ii) The Judgment and Order dated
4.11.2008 passed by the Addl.
Sessions Judge, Shimoga, in
S.C.No.46/2008- acquitting the
respondent/Accused No.1 of the
charge levelled against him is hereby
set aside. In reversal of the said
Judgment, respondent/Accused No.1
is convicted for the offence punishable
under Section 302 of IPC.
iii) He is sentenced to undergo
imprisonment for life and also to pay
fine of Rs.25,000/-. In default to pay
fine, he shall undergo S.I for six
months. On realization of the fine
amount, entire fine amount shall be
56
paid to P.W.1 by way of compensation
under Section 357 of Cr.P.C.
iv) The bail and surety bonds executed
by the Accused No.1 is cancelled.
v) In terms of the bail bond, the Accused
No.1 is directed to surrender himself
before the Trial Court forthwith.
vi) Upon such surrender, learned
Sessions Judge shall commit him to
prison to serve the sentence.
vii) In case of failure on the part of
Accused No.1 to surrender, learned
Sessions Judge shall secure him and
commit him to prison.
viii) In view of the fact that split up case
as against accused No.2, is still
pending before the jurisdictional trial
Court, it is made clear that the
observations made in this judgment
are all with reference to Accused No.1
and the learned Trial Judge before
whom the case as against Accused
No.2 is pending, shall not be
influenced by any of the findings
57
recorded in this case and dispose off
the case, in accordance with law.
ix) Return the LCR to the Court
concerned.
x) Registry is directed to furnish a free
copy of this Judgment to the Accused
No.1 through his counsel.
SD/-
JUDGE
SD/-
JUDGE
SS/bnv*