Karnataka High Court
State By Byatarayanapura Police ... vs Khaleel @ Syed Khaleel on 12 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1518
Bench: Ravi Malimath, H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 12TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.734 OF 2013
BETWEEN:
STATE BY BYATARAYANAPURA
POLICE STATION
BENGALURU CITY. ..APPELLANT
(BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR-II)
AND:
1. KHALEEL @ SYED KHALEEL
SON OF SYED AMEERJAN
AGED ABOUT 30 YEARS
RESIDING AT NO.6/1, 16TH CROSS
7TH MAIN, PADARAYANAPURA
MYSURU ROAD
BENGALURU-560 026.
2. BABU @ WAHEED KHAN
SON OF SABJAN @ MOHAMMED KHAN
AGED ABOUT 40 YEARS
RESIDING AT SABJAN BUILDING
NEAR SANTHOSH TENT
SHYAMANNA GARDEN MAIN ROAD
2
MYSORE ROAD
BENGALURU-560 026.
3. AFZAL @ MOHAMMED AFZAL
SON OF LATE ABDUL MUNAAF
AGED ABOUT 24 YEARS
RESIDING AT NEAR SAVERA HOTEL
BILAL MASJID ROAD
SHYAMANNA GARDEN MAIN ROAD
MYSORE ROAD
BENGALURU-560 026.
4. IMTIYAZ
SON OF SABJAN
AGED ABOUT 25 YEARS
RESIDING AT NO.42
SABJAN BUILDING
NEAR SANTHOSH TENT
SHYAMANNA GARDEN MAIN ROAD
MYSORE ROAD
BENGALURU-560 026. ... RESPONDENTS
(BY SRI. SHAIKH SAOUD, ADVOCATE FOR R1
SRI. HASHMATH PASHA, SENIOR COUNSEL FOR
SRI. KALEEM SABIR, ADVOCATE FOR R2-R4)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378 (1) AND (3) OF CRIMINAL PROCEDURE CODE
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 23.01.2013
PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT-VIII, BENGALURU IN S.C.NO.638 OF 2009
ACQUITTING THE RESPONDENTS/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 341, 307, 302,
114 READ WITH SECTION 34 OF INDIAN PENAL CODE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 13.08.2019 COMING ON THIS DAY,
H.P. SANDESH, J., PRONOUNCED THE FOLLOWING:-
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JUDGMENT
This appeal is filed by the State challenging the judgment of acquittal passed in S.C. No.638/2009 dated 23.01.2013 on the file of the Fast Track Court - VIII, Bengaluru City.
2. The brief facts of the case are;
The case of the prosecution is that on 09.03.2009 at about 3.00 p.m., when the complainant - C.W.1 - Siddique Pasha along with his brother deceased - Muzamil Pasha were proceeding in their scooter in front of Sabjan Building, Shyamanna Garden main road, within the limits of Byatarayanapura Police Station, Bengaluru, accused Nos.1 to 4 wrongfully restrained them in connection with the quarrel took place in respect of purchase of scrap items. The accused No.1 stabbed the deceased - Muzamil Pasha on the chest, left eye, left hand with knife and accused Nos.2 and 3 have assaulted the P.W.1 - Siddique Pasha, the brother of the deceased by means of long on his hand when he tried to rescue his brother. It is the case 4 of the prosecution that accused No.4 abated the accused Nos.1 to 3 to do away the life of deceased and P.W.1. In pursuance of his abatement, accused Nos.1 to 3 have committed the murder of the deceased. The Investigating Officer, after registering the case, investigated the matter and filed the charge sheet for the offences punishable under Sections 341, 307, 302 and 114 read with Section 34 of Indian Penal Code.
3. The matter was committed to the Sessions Court after taking the cognizance and the accused persons were secured before the Court. All the accused did not plead guilty and claims the trial. Hence, the prosecution examined the witnesses P.Ws.1 to 26 and got marked Exs.P.1 to 41. The prosecution also relied upon M.Os.1 to 10. Accused 313 statement was recorded and thereafter, accused did not choose to lead evidence. However, Exs.D.1 to 4 are got marked. The Court below acquitted the accused and hence, the present appeal is 5 filed being aggrieved by the judgment and order of acquittal.
4. The State in the present appeal would contend that the Court below has committed an error in acquitting the accused persons. P.W.1 is the complainant and an eye witness to the incident. P.W.1 has categorically deposed that when he along with his brother deceased were proceeding to their shop, accused Nos.1 to 4 wrongfully restrained them in connection with the earlier ill-will in respect of purchase of scrap items and accused No.1 stabbed his brother and other accused persons also assaulted him, when he tried to rescue his brother. The Court below did not consider the evidence of P.W.1 in a right perspective.
5. The Court below also failed to appreciate the evidence of C.Ws.1, 2, 6 and 7 who have been examined as prosecution witnesses and they are the eye witnesses to the incident. They have specifically stated about the incident and also they knew the assailants and also 6 deposed the overt acts of the accused persons. In spite of it, not properly appreciated the evidence. The Court below has come to a wrong conclusion that after the incident, when the complainant has taken the injured to the Hospital, at that time, the statement has been recorded. He has not named the assailants, which is not been forthcoming in the M.L.C. Register. The other contention that recovery which has been made by Investigating Officer and the evidence of the witnesses clearly show that the materials, which have been recovered are used for committing the offence. Despite the same, the Court without assigning the proper reason, passed an order of acquittal and therefore, the judgment of acquittal requires interference of this Court.
6. The Additional State Public Prosecutor, in his argument, he vehemently contended that P.W.1 is the eye witness who was along with deceased at the time of incident. He categorically deposed that accused No.1 assaulted with knife and other witnesses P.W.2, 3 and 6 7 who are the eye witnesses have also supported the case of the prosecution. P.W.8 also spoken with regard to the galata was taken place in the early morning. Even though these are the materials corroborates the case of the prosecution, the Court below has committed an error in acquitting the accused.
7. Per contra, the learned counsel appearing for accused No.1 in his argument contended that at the first instance, the statement was made that assault by unknown persons and wound certificate which has been produced also does not support the case of the prosecution. The evidence of the Doctor - P.W.23 has categorically deposed that the statement was given that assault made by unknown persons. The names of the assailants were also given and those names are not the names of these accused persons. Hence, the Court below has rightly acquitted the accused.
8. The learned counsel appearing for accused Nos.2 to 4 i.e., respondent Nos.2 to 4, in his argument, he 8 vehemently contended that P.Ws.2 and 3 during the inquest, since they are the inquest witnesses, did not say anything that they have witnessed the incident. In the cross-examination, the evidence of P.Ws.2 and 3 was destroyed that they are not the eye witnesses to the incident. The learned counsel also would submit that since P.W.1 says that assault was made by unknown persons, the evidence of P.W.1 cannot be believed. The photographs which have been produced, shows the scene of occurrence is doubtful. It is further contended that accused No.4 after 22 days stated that he instigated the other accused persons to commit the act of murder. P.Ws.4 and 5 have turned hostile. Hence, the answers elicited from them in the cross examination cannot be believed. The trial Court considering the overall evidence available on record given the benefit of doubt in favour of accused persons since there was a statement before the Doctor that assault was made by unknown persons and there is no any cogent evidence before the Court. The 9 Court below has rightly acquitted the accused and there are no grounds to interfere with the order of acquittal.
9. Having heard the arguments of learned Additional State Public Prosecutor appearing for appellant-State, learned counsel appearing for respondents-accused and having considered the material on record, the point that would arise for our consideration are:
Whether the Court below has committed an error in acquitting all the accused persons for the charges leveled against them and it requires interference of this Court as contended by the State?
10. Before discussing the merits of the case, we would like to mention the oral and documentary evidence in brief.
11. P.W.1 is none other than the brother of the deceased and also a complainant. According to the prosecution, he is the eye witness. The complaint is marked as Ex.P.1 through the witness. It is the evidence 10 that on 09.03.2009 at about 3.00 p.m., when he was proceeding along with deceased in the scooter near Shamanna Garden, his brother was subjected to assault by accused No.1 with knife. When he went to rescue his brother, accused Nos.2 and 3 assaulted him with long. As a result, he sustained injuries. In the cross-examination of P.W.1, it is elicited that he was having acquaintance with accused No.1 since he used to visit the Shamanna Garden along with his brother - Muzamil Pasha, where they used to do the scrap business. The deceased did not tell the name of accused No.1. Both accused No.1 and his brother were doing scrap business near Sujatha Tent at Shamanna Garden. It is suggested that he did not mention the names of assailants before the Doctor and the same was denied. It is suggested that he made the statement that some unknown four to six persons have assaulted and the said statement was made before the Doctor and the same was denied.
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12. In the cross-examination of P.W.1, it is suggested that accused No.1 did not assault either him or his brother and the same was denied. It is suggested that Afsar and two other persons have committed the murder of his brother and the same was denied. It is elicited that Mr.Habib, resident of Shamanna garden knows the facts of this case. On the date of incident he was riding the motorcycle.
13. In the cross-examination of this witness by accused Nos.2 to 4, it is elicited that the deceased was having mobile bearing No.9880077287. P.W.1 was having Activa Scooter bearing No.KA02 EQ 7786. He knows P.W.6, so also, P.Ws.2, 3 and 7. It is suggested that deceased did not inform the galata which had taken near the factory to his brother and accused on that day at 1.00 p.m. and the same was denied. It is elicited that he himself and his deceased brother both went together and no other persons followed them. Both of them went to Shamanna Garden. He was not having any work at 12 Shamanna Garden. He also admits that his deceased brother did not tell him that the persons who made galata in the morning would be there at Shamanna garden. He accompanied his brother since he called him to come along with him to Shamanna Garden. He admits that he cannot tell when he saw accused No.1. He further admits that he did not come to know that the accused made galata with his brother. It is suggested that when he went to Victoria Hospital he did not mention the names of assailants and the said suggestion was denied. He also admits that the area people came to hospital at around 4.30 p.m. and he did not mention the name of the assailants to them and so also, he did not mention the names of assailants when his brothers came to the hospital. The police took his left thumb impression inside the Victoria hospital compound and he made signature on the instructions of police as per Ex.P1. He further admits that he does not know the contents of Ex.P1 since he does not know reading. Accused No.2 was not introduced to him by anybody. But he claims that he has given the description of accused 13 persons when he gave the complaint. He admits that he does not know the name of the assailants, but he can identify them and he made such statement before the police. He also admits that the police did not show any of the assailants to him from 9.3.2009 to 31.3.2009 in the police station and even thereafter, no other persons were shown to him in the police station. He cannot tell who are all having ill-will against his brother. When the incident has taken place no other known persons were there at the spot. It is suggested that he himself, deceased and his supporters were assaulting a person who was sitting in front of sabjan building and the said suggestion was denied. It is suggested that on that day 10-15 persons went to commit the murder of accused No.1 and the said suggestion was denied. It is further suggested that when accused No.1 exercised his right of private defence to protect his life, when all of them made an attempt to commit his murder, at that time, his brother has sustained injuries and the same was denied.
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14. P.W.2, in his evidence, says that he came to know that there was an incident of galata between accused No.1 and the deceased. He says that accused No.1 inflicted injuries to the deceased on his left chest, left eye, left hand and also on his stomach. The other two persons were holding longs and assaulted P.W.1 and he had sustained injuries to both the hands. When people gathered there, accused persons fled away from the place. He took the injured and also P.W.1 to Bangalore Victoria Hospital and the Doctor has declared that Muzamil Pasha was brought dead. The police have conducted the inquest in terms of Ex.P2. He states that at the time of incident there were three persons. He identifies M.Os.1 and 2.
15. In the cross-examination, it is elicited that P.Ws.3, 6 and 7 have not worked with him, but they are his friends. On the day of incident, he was in the hospital till 7.30 p.m. He did not mention the names of assailants to the doctor. When the police came to the hospital at around 4.00 p.m. he did not mention that he witnessed the 15 incident and also did not mention the names of the assailants. He states that after the assault people were taking the names of accused No.1 and Babu and hence, he has mentioned their names and he cannot tell the names of the persons who told the names of those two accused persons. He says that he went to the hospital in an autorickshaw. He admits he did not mention before the police that someone mentioned the names of accused Kaleel and Babu and if such person did not mention the name of Kaleel and Babu, he was not aware of the same. He admits that he is not having any acquaintance with accused No.2 and also he had seen accused No.2 when he came to Court. He cannot tell in which cross the accident has taken place. He admits that on that day he did not accompany the deceased and P.W.1. The deceased did not call him to spot. When he went to spot, Muzamil Pasha was already lying on the ground and his hands and clothes were blood stained.
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16. P.W.3, in his evidence, says that himself, P.W.2, deceased and P.W.6 were all proceeding and he found knife in the hand of accused No.1 and another person was holding a long. Both of them ran away. P.W.1 and injured were sent to the hospital in an autorickshaw and P.W.1 also had sustained injuries to his hand and blood was oozing from the deceased stomach. The injured persons were shifted to the hospital. He says that when he went to the spot P.W.1 and deceased Muzamil Pasha had already sustained injuries and accused persons had fled away from the spot. He says that on 9.3.2009 at about 3.00 p.m. all the accused persons were standing in front of Sabjan building. He further says that P.W.1 and deceased came in a scooter, by that time, accused persons wrongfully restrained both of them. He further says that all of them scolded deceased as to why he is coming in the way of their business. Accused No.1 inflicted injuries with knife on his chest, near left eye and also to his left hand. When P.W.1 came to rescue his brother, accused No.2 assaulted with long on his left hand. Accused No.3 Afzal assaulted 17 with another long on the right hand of P.W.1. He also says that when people gathered, accused persons ran away from the spot and he has given statement before the police in this manner.
17. This witness was subjected to cross-
examination. He admits his signature as per Ex.P2. He admits that himself, P.Ws.2, 6 and 7 are residents of J.J.Nagar. P.Ws.1, 2 and deceased are all his friends. He admits that P.W.2 was working as Welder, but does not know where he works. He states that he does not know the contents of Ex.P2. He also states that he has not given statement before the police and further admits that he has given the statement before the police that when he went to spot already injured Muzamil Pasha and P.W.1 were taken in an autorickshaw to the hospital. He does not know why galata had taken place between the deceased and accused persons. He also admits that deceased is known to him.
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18. P.W.4, in his evidence, says that when he was proceeding, he found Muzamil Pasha lying on the spot and he took the injured to Victoria Hospital. P.W.1 brought the injured near the clinic and he did not witness who assaulted the deceased. The witness is treated as hostile witness. The learned Public Prosecutor cross-examined him. It was suggested that accused No.1 inflicted injury to deceased, accused Nos.2 and 3 assaulted P.W.1 and he made statement before the police in terms of Ex.P3 and the said suggestions were denied.
19. P.W.5 did not support the case of the prosecution.
20. P.W.6 is the other eye witness. In his evidence, he states that on 9.3.2009 around 2 to 3.00 p.m. near Shamanna Garden, four persons were assaulting the deceased Muzamil Pasha and one person was holding knife and other two were holding longs and another person was not having any weapon, but he was instigating others to kill him. He states that accused No.1 inflicted injury on 19 Muzamil Pasha on his chest, stomach and also on left eye. Himself and C.W.7 shifted the injured Muzamil Pasha in an autorickshaw to Victoria Hospital. He also identifies accused No.4 before the Court that he was not having any weapon on the day of incident. He states that injured P.W.1 was also there along with the deceased Muzamil Pasha. He has sustained injuries to his left and right hand fingers when he tried to rescue his brother. He was subjected to cross-examination.
21. In the cross-examination, it is elicited that deceased Muzamil Pasha did not call him to Shamanna garden. He claims on that day, P.Ws.2, 3 and 7 were proceeding towards Shamanna garden. He found P.Ws.2, 3 and 7 near Shamanna garden entrance around 2.45 p.m. He cannot tell at what time deceased and P.W.1 came to the spot and what had happened there. He did not pacify the quarrel. He admits that when he went to spot, injured Muzamil Pasha was lying on the ground. The doctor did not 20 ask how P.W.1 and the deceased Muzamil Pasha have sustained injuries.
22. P.W.7, in his evidence, he says that accused No.1 inflicted the injuries on the chest and stomach of the deceased and accused No.4 instigated all the accused. P.W.1 had sustained the injuries to his left and right hand. The people who gathered at the spot, shifted the injured and P.W.1 in a Autorikshaw and later, came to know that injured - Muzamil Pasha passed away. The police called and recorded the statement. The police came and arrested accused Nos.1 and 4. He identifies the signature in Ex.P.5. This witness was treated as hostile by the learned Public Prosecutor and suggested that while assaulting Muzamil Pasha, P.W.1 came to rescue him, at that time, accused Nos.2 and 3 have assaulted with long and as a result, he sustained injury to the left and right hand and he admits the same. He also admits that at the spot, the police have collected blood stained mud in a pot.
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23. He was subjected to cross-examination by the learned counsel for accused Nos.2 to 4. In the cross- examination, he admits that he did not see the deceased and P.W.1 prior to the incident. He gave the complaint in the police station and he has signed the complaint at around 3.30 p.m. It is elicited that he did not mention the names of assailants before the Doctor. But, he claims that while making the statement before the police, he has mentioned the names of assailants. Except the statement made at 3.30 p.m. before the Police, he did not make any statement before the Police. He cannot tell who mentioned the name of accused No.4 to him. He admits that for the first time, he was telling before the Court that accused No.4 was telling to assault Muzamil Pasha. He admits that he was not aware of the names of assailants of P.W.1. He cannot tell the names of accused Nos.2 and 3. He admits that first time, he has deposed before the Court that accused Nos.2 and 3 assaulted P.W.1. In the cross- examination of learned counsel for accused No.1, it is elicited that he cannot tell who mentioned the name of 22 accused No.1 but people were talking. He cannot mention the names of the people who were gathered at the spot.
24. P.W.8, in his evidence, he says that he knows the P.W.1 and deceased Muzamil Pasha. He himself and the deceased Muzamil Pasha doing the scrap business together. That on 09.03.2009, he himself and the deceased Muzamil Pasha went to Nelamangala near Zinc Sheet Factory for scrap business at around 11.00 a.m., Both the deceased and Afsar Pasha - C.W.13 went inside the factory to talk in connection with the scrap business. He himself and C.W.12 another Afsar waiting outside the factory, at that time, Babu who is doing the scrap business in the said factory, asked him, why they came there. By that time, the deceased Muzamil Pasha was standing near the factory gate. The said Pasha told that he has received a phone call from the factory and hence, he came near the factory. The accused Babu assaulted him near the gate where Imtiyaz and Afzal were standing. Muzamil Pasha also assaulted the said Babu with his hands. Afzal and 23 Imtiyaz came to rescue the Babu and they pacified the galata. The factory people came and advised not to do the galata. They went inside the factory. Muzamil Pasha within twenty minutes came out running and when enquired, he told that they may assault him and hence, he would leave the place and accordingly, he left the place. The accused Kaleel, Ameed, Nayaz, Imtiyaz and Afzal came to assault Muzamil Pasha and thereafter, they left the place in a motorcycle. He himself and Afsar both went in search of Muzamil Pasha in a motorcycle and did not find him, thereafter they returned back to factory. He himself and C.W.12 went towards the Shamanna Garden. When they reached the Himalaya Drug Factory, they came to know that they assaulted Muzamil Pasha. Immediately, they went to Victoria Hospital and found the dead body of Muzameel Pasha. He can identify Babu, Afzal, Kaleel and Imtiyaz and identified the accused Nos.2 to 4 and not accused No.1, since he was not before the Court. He admits that the name of the person, who is mentioned as Babu is that of Wahidkhan and he says that he does not 24 know. He admits that accused No.2 had sustained the injuries in the accident and he took treatment at Bengaluru Malya Hospital. It is suggested that accused No.2 cannot hear and he lost the control of his right hand and he says he does not know the same. It is suggested that on 05.03.2009 and 06.03.2009, he did not go to near the said factory and the same was denied. He says that on 09.03.2009, himself and the deceased Muzamil Pasha, C.Ws.12 and 13 and one Kareem went inside the factory. It is elicited that when the accused No.2 went inside the factory, he himself and the deceased Muzamil Pasha and other partners went inside the factory. He admits that when he went near the Victoria Hospital, he did not mention that accused No.2 assaulted the deceased. The fact that the deceased assaulted accused No.2 has not been stated before the Police. He admits that after the incident and pacifying both of them, accused No.1 went inside the factory to purchase the scrap. He also admits that at around 2.00 clock, Babu came out from the factory. Accused No.2 was there till 4.00 p.m. when they came 25 back from Nelamangala side and may be it is around 3.00 clock, he also admits that along with Babu, Moseen was also there. He is the resident of Shamanna Garden. He admits that in order to come to Bengaluru from Nelamangala, it consumes time. He admits that earlier, there was no galata between the deceased and Muzameel Pasha along with his partners so also with accused No.2 and there was no any enmity between the accused with them. In the cross-examination of learned counsel for accused No.1, he admits that he himself, Afsar and another Afsar and Kaleel jointly invested Rs.10,000/- each to do the business. It is suggested that in his statement before the Police, he did not mention that accused Nos.1 to 4 came to assault Muzamil Pasha and thereafter, they went in the motorcycle and the said suggestion was denied.
25. P.W.9 is the Mahazar witness with regard to the seizure of the blood stained mud in respect of the mahazar
- Ex.P.5. It is suggested that P.W.1 and himself are 26 relatives and the same was denied. He admits that C.W.19
- Afsar Pasha is the resident of J.J Nagar. He did not dictate the Ex.P.5. He cannot tell the contents of Ex.P.5.
26. P.W.10, in his evidence, he says that on 14.03.2009 at around 10.30 to 11.00 a.m., he was called to near the burial ground situate at Haleguddadahalli. He also says that at that time, accused No.3 was there along with them. Accused No.3 produced the long i.e., MO.3 and the same was seized by the police and taken his signature on the chit which was pasted on the cloth and drawn the mahazar in terms of Ex.P.6. He admits that P.W.1 and the deceased known to him. He admits near the burial ground, there is a compound around the said place and there is a gate. When he went near the spot, the police were there outside the burial yard. MO.3 may be available in the market. He says that after reading the contents, he has signed the mahazar but he did not dictate. It is suggested that the long was not kept inside the stones slabs and the same was denied. It is suggested that accused No.3 did 27 not lead the police and also not produced any weapon and no mahazar was drawn in terms of Ex.P.6 and the same was denied.
27. P.W.11, in his evidence, he says that accused No.2 led all of them and produced the chopper which was kept in the bush. The police seized the same by drawing the mahazar in terms of Ex.P.7. He identifies the chopper. In the cross-examination, he admits that he is the resident of J.J.Nagar, Bengaluru. It is suggested that he is having acquaintance with P.W.1 and the deceased and the same was denied. He says that when he went to the spot, the police and publics were there. It is suggested that the place in which MO.2 was hidden, anybody can access the same and the same was denied. He cannot tell the contents of Ex.P.7 and also not having any identification mark on MO.2. It is suggested that for the first time, he is seeing the MO.2 before the Court and the same was denied.
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28. P.W.12 who is the Doctor, who conducted the Post Mortem Examination and in his evidence, he says that he conducted the Post Mortem Examination and issued Ex.P.8. He handed over the blood stained cloths of the deceased to the police. He has narrated the nature of internal injuries found on the dead body. In the cross- examination, he admits that the police was given the history regarding the incident and injury in Ex.P.11. He admits that he did not find any rice particles in the stomach of the deceased. He further admits that if the deceased has consumed rice about one and half hour or two hours prior to his death normally semi digested rice particles would be found in the stomach. He admits that he did not mention the time of death in Ex.P.8. He admits that he has not given any opinion as to which type of weapon the injuries might to have sustained in Ex.P.8 - PM Report. The injury No.1 as mentioned in Ex.P.8 is definitely due to striking of a cutting edge of the weapon and injury No.2 cannot be commented, as he is a drawing or striking of the weapon. He admits that it is not possible 29 to give any opinion as to the type and size of the weapon except the extent that they could have been caused any sharp edged weapon. He admits that he has not weighed the MO.1 cutting weapon. As per his opinion, if a weapon is long cutting edge, they can call it heavy cutting weapon. He admits that injury No.4 in Ex.P.8, he has not mentioned the total depth of the wound but he has mentioned it has gone to the cavity deep. He admits generally the length of the stab injury corresponds to the width of the weapon. He further admits that the width varies and changes with rocking of the weapon. He did not find the rocking of the weapon in respect of injury No.3. He admits that injury No.3 could have been caused the weapon having pointed tip with a cutting edge having maximum width of 1 cm. It is suggested that he has issued the opinion at Ex.P.9 to oblige the police and the same was denied. Injury No.5 could have been caused if a person falls on a hard surface. It is suggested that if a person falls on a hard surface and turned certain extent the injury No.6 could be possible and admits the same.
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29. P.W.13 is the mahazar witness for seizure of the knife M.O.1. In his evidence, he states that when he was proceeding near the railway gate, Police called him and he accompanied them and accused No.1 produced the knife from the vacant place. He has signed the mahazar Ex.P.12 and identifies his signature as Ex.P.12(a). He also identifies accused No.1 before the court saying that he only produced M.O.1. In the cross examination, he admits that the place from which accused No.1 produced M.O.1 is 50 ft away from the railway gate. He further admits that it is a vacant place. He claims that there were trees and he cannot tell the names of those trees. He admits that there were houses at a distance of 100 ft. It is suggested that P.W.1 brought him by paying money to give evidence and the same was denied. It is suggested that mahazar was drawn in the police station and the same was denied. It is suggested that accused No.1 did not produce M.O.1 from the said place and the same was also not seized, the same was denied.
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30. P.W.14 did not support the case of the prosecution and he turned hostile. He is an employee of Eskan Genset Private Limited. P.W.15 is the in charge scientific officer FSL at Bengaluru. In his evidence, he states that he received 8 seized articles from Byatarayanapura Police Station on 08.05.2009. The seal was intact. He conducted test and found the presence of blood stains on article Nos.3 to 8 except article No.2. Blood stains found in item Nos.3 to 8 are human blood belonging to 'A' 'B' Group. The blood clots in item No.1 was disintegrated. He states that he has given opinion in terms of Ex.P.14 and identifies his signature as Ex.P.14(a). He was subjected to cross examination. In the cross examination, it is suggested that he is not an expert in examining the articles and not undergone any training and the same was denied. It is suggested that he has not examined article No.4 - knife and the same is also denied. It is suggested that he is falsely deposing that blood stains on articles 3 to 8 are of 'A' 'B' blood group. 32
31. P.W.16 and 17 have turned hostile. They are working as Purchase Manager and Director of Eskan Genset Private Limited.
32. P.W.18 is the Police Constable who was in charge of Post Mortem examination of body of the deceased. He states that he collected the clothes of the deceased from the doctor and produced the same before the Investigating Officer. It is suggested that he did not collect any clothes of the deceased and has not given any report in respect of Ex.P17, the same was denied.
33. PW.19 is another Constable. He states that accused No.2 was apprehended at Ramanagar bus stand on 13.03.2009 and produced before the PSI on the same day at 2.45 p.m. He identifies accused No.2. In the cross examination, it is suggested that accused No.2 was not in Ramanagar bus stand and was not apprehended and produced before the Inspector and he is falsely deposing before the Court, the same was denied.
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34. PW.20 in his evidence states that accused No.1 was apprehended on the same day at 9.30 p.m. and produced before the Police Inspector at 9.55 p.m. He was in the house of Babu which is situate near Shamanna Garden in the Subjan building. He gave the report in terms of Ex.P18. He identifies accused No.1 before the Court. In the cross examination, it is elicited that in Ex.P18 he did not mention that he was deputed to apprehend accused. It is suggested that accused No.1 is in no way connected to the deceased; that accused No.1 was not apprehended in the sabjan building from the house of Babu and he has given the false report, the same were denied.
35. PW.21 is another Police Constable. He states that accused No.4 was apprehended in the Tanery road bus stand on 31.03.2009 and produced before the Inspector on the same day at 9.30 p.m. and gave report in terms of Ex.P19. He admits in the cross examination that he has not received any information that accused No.4 was 34 near the Tanery road. He admits that it is a busy place and also admits that when accused No.4 was apprehended, Mahazar and report were not prepared at the spot and also did not inform the local Police. It is suggested that they did not receive any information and also did not go to Tanery road and the said suggestion was denied.
36. PW.22 Sub Inspector of Police states that he was on patrolling duty on 09.03.2009 at about 3.30 p.m. and received the information from Control room to go to Shamanna Garden as galata was taking place in the said place. Immediately he went to the spot and the public who were there at the spot told that both the injured were taken to the Victoria hospital. Immediately he went to Victoria hospital and recorded the statement of PW.1 in terms of Ex.P1 based on which he registered the case in Crime No.128 of 2009 and thereafter sent the FIR to the Magistrate. He identifies his signature in Ex.P1(b). He also says that on 13.03.2009 he himself, ASI Shivanna and 35 Police Constable Ramesh were deputed to apprehend the accused persons. Accused No.2 was apprehended in Ramanagar Bus stand and thereafter produced before the Police Inspector and gave the report in terms of Ex.P21. On the same day, accused No.3 was also apprehended at Gangondanahalli Bus stand and produced before the Inspector at 09.30 p.m. and gave the report in terms of Ex.P22.
37. He admits that he did not note down the message which he has received from the Control Room. He was on patrolling duty at a place which was 3 kms away from the place of incident. When he went to the spot, public informed about the incident. He did not record the statements of the persons who gave the information about the shifting of the injured persons. He admits that when he went to the spot, he did not know about the names of the assailants. He identifies the photos at Exhs.D1 and D2. He admits that he went along with the writer to Victoria hospital and he took him from the station after 36 coming from the spot. He did not mention the same in the diary. While recording the statement of PW.1, he himself and writer Puttaswamy were there. He also states that he noticed that the statement given by PW.1 before the doctor the reason for death of Muzamil Pasha. It is suggested that PW.1 has given information that unknown persons assaulted them and he replies that he does not know except the endorsement. He did not mention anything in Ex.P1. It is suggested that he did not go to Victoria hospital and recorded the statement of PW.1 and the same was denied. He admits that the name of accused No.2 was mentioned as Babu @ Wahid Khan in his report.
38. PW.23 is the doctor who examined the injured PW.1 and he says that on examination, he found lacerated injury on the right index finger with tear flexor tendon injury. After discussion with plastic surgeon, he opined that the said injury is grievous in nature and he issued Ex.P23. He also states that he has received two weapons i.e., iron long and sword. He examined the same and gave opinion 37 in terms of Ex.P24. Those two weapons could cause injuries found on PW.1. The injured Muzamil was brought dead to the Hospital. In the cross examination, he admits that the injured has appeared before him and he has given history as assaulted by unknown persons near Shamanna Garden, at Mysuru Road on 09.03.2009 by using rod. The lacerated injury with a tear which he has noted in the wound certificate would definitely correspond to the weapon mentioned in the history as rod. He further admits that injury as mentioned in Ex.P23 could be caused if it comes into contact with iron door accidentally. The nature of the injury as it was grievous was not his own opinion. Ex.P23 wound certificate is based on the entries made in the Accident Register. He admits that M.Os.2 and 3 are heavy cutting weapons. It is suggested that generally sharp edged weapons like M.Os.2 and 3 cannot cause lacerated injury which he has described in the wound certificate and the same is denied. In the further cross examination, he states that the deceased was brought dead by one Moin with a history of assault by 38 Imtiyaz Khan and Hamid at 3.00 p.m. on 09.03.2009 near Shamanna Garden with knife and machu. The relevant entry portion is marked as Ex.D4.
39. PW.24 is the auto driver who is the signatory to Ex.P2 for seizure of blood stained clothes of the accused. He identifies his signature as per Ex.P27(a). In the cross examination, he admits that he does not know reading and writing Kannada. It is suggested that he has falsely deposed that clothes were seized and the said suggestion was denied. It is suggested that he did not witness accused No.1 in the Police Station and the same is also denied. He admits that at the instance of Police, he has signed Ex.P27.
40. PW.25 is the Police Constable at Byatarayanapura Police station. In his evidence, he states that he was deputed to produce the seized articles before the FSL and accordingly he went and handed over the seized article. After the examination, he had obtained the report in terms of Ex.P28. He identifies his signature. In 39 the cross examination, it is suggested that he was not deputed to FSL and also did not obtain the report and he has given false report in terms of Ex.P28. The same was denied.
42. PW.26 is the Investigating Officer. In his evidence, he states that on 09.03.2009 he went to Victoria hospital at 4.45 p.m. and recorded the statement of PW.1 and told the Sub-Inspector to register the case. He also states that he conducted inquest from 5.30.p.m. to 7.30 p.m. in terms of Ex.P2. He also recorded the statement of Iliaz, Nayaz, P.W.6 Moin and PW.7 Muzamil at the time of inquest. The dead body was given to the custody of CW.8. He went to spot and conducted the spot mahazar from 8.15 p.m. to 9.10 p.m. He also seized M.Os.4 and 5. He also prepared the sketch in terms of Ex.P31. It is his further evidence that on the same day, accused No.1 was produced before him and gave report in terms of Ex.P18. He recorded the voluntary statement of accused No.1. Accused No.1 told that his shirt was blood stained and torn 40 at the time of the incident. The shirt was seized by drawing mahazar Ex.P27 and recorded the statement of Nadeem and Azhar. Accused No.1 also has sustained simple injuries and he was sent to Victoria hospital and kept in the custody till the next day. Accused No.1 took him and his staff and panchas near the Eskan Genset Private Limited and showed the place where galata had taken place on the previous day. He also recorded the statement of employees of the said factory. Accused No.1 also led the team near the Railway gate saying that he had kept the knife near the bush and in the presence of panchas knife M.O.1 was recovered. He has drawn mahazar in terms of Ex.P12. He identifies voluntary statement as Ex.P35. It is also his evidence that accused No.2 was apprehended on 13.03.2009 and produced before him and he gave voluntary statement. It is also his evidence that accused No.2 led the panchas and staff near the Santhosh tent which is situate near the Shamanna Garden on the back of Railway track and produced long M.O.2 and he has drawn the mahazar in terms of Ex.P7. 41 He identifies his signature in the mahazar. It is also his evidence that accused No.2 volunteered that he will produce the long. The voluntary statement is marked as Ex.P36. On the same day accused No.3 was produced before him and he recorded the voluntary statement. Accused No.3 took him near the Haleguddadahalli burial ground and produced long M.O.3. The same was seized in the presence of panchas in terms of Ex.P6. His voluntary statement is marked as Ex.P38. It is also his evidence that he has recorded the statement of eye witnesses and other witnesses. On 31.03.2009 accused No.4 was apprehended and produced before him and his voluntary statement was recorded. It is also his evidence that he continued the further investigation and collected the relevant documents from the concerned authorities and thereafter filed the charge sheet.
43. In the cross examination, it is suggested that PW.22 went to spot and came back to station and the same was denied. He admits that the information was 42 received at 3.30 and PW.22 went to Victoria hospital. He admits that except in terms of Ex.P1 no document is produced. There is no document to show that PW.1 was admitted in Victoria hospital. He did not obtain the permission to record the statement of PW.1. It is suggested that on 09.03.2009 he did not visit Victoria hospital and statement of PW.1 was not recorded and the same was denied. It is elicited in the cross examination that the place of incident is a public place and it is a slum area. It is further elicited that he did not record the statement of public who were present near the place of incident and also they have not been cited as witnesses. He admits that Ex.D2 is in respect of Sabjan building passage and there were blood stains. He admits that it is the photo of place of incident as per Ex.D2 and it was taken in the said place. He admits that CWs.1 to 7 did not make any statement as to how accused No.1 has sustained injuries. He admits that he did not produce the wound certificate of Accused No.1. It is suggested that deceased came with deadly weapon to assault accused No.1 and as 43 a result accused No.1 has sustained injuries for which he states that he enquired into the matter during the course of investigation and found that accused No.1 assaulted the deceased and hence blood stains were there in the said spot. C.Ws.2, 3 and 10 are the inquest witnesses in respect of Ex.P2. They did not mention that they are eye witnesses and the same is also not mentioned in Ex.P2. He also admits that in the inquest he did not mention that accused Nos.2 to 4 have caused the injuries on the deceased. He admits that name of accused No.2 is mentioned as Babu till his arrest and after his arrest his name is mentioned as Babu @ Wahid Khan. He also admits that M.O.Nos.2 and 3 were not sent to obtain opinion from the person, who conducted post mortem examination. It is suggested that accused Nos.2 and 3 did not inflict any injuries with M.O.Nos.2 and 3, hence, the same were not sent to the opinion of the Doctor, who conducted the post mortem examination and the same is denied. It is suggested that M.O.Nos.2 and 3 were not used to assault P.W.1 and the same was denied. He 44 admits that the name of accused No.4 was not mentioned in Ex.P2 and in First Information Report and also in the remand application dated 10.03.2009, 13.03.2009, 14.03.2009, 24.03.2009 and 26.03.2009. For the first time, his name is mentioned in the remand application dated 31.03.2009. It is suggested that accused No.1 was not sent to Victoria Hospital and the same was denied. It is suggested that P.W.6 took the injured and P.W.1 to Hospital and the same is admitted.
44. Having considered both oral and documentary evidence of the prosecution and also the contentions urged by the learned State Public Prosecutor-II appearing for the state - appellant and also the learned counsels appearing for the respondents, this Court has to re-appreciate the material available on record, whether the Court below has committed any error in acquitting the accused persons.
45. Now let us consider the evidence available on record, keeping in view the contentions urged by learned State Public Prosecutor-II appearing for the appellant- 45 State and also the learned counsel appearing for the respondents-accused.
46. The case of the prosecution is that accused No.1 along with accused Nos.2 to 4 restrained deceased Muzamil Pasha and P.W.1 when both were proceeding on the motorcycle. Accused No.1 inflicted injuries with knife on the deceased and accused Nos.2 and 3 assaulted P.W.1 with M.Os.2 and 3. Accused No.4 instigated the accused persons to commit the murder of the deceased and also to assault P.W.1. The incident has taken place on 09.03.2009 at 3.00 p.m. when PW.1 and deceased were proceeding on the motorcycle. P.W.1 in the complaint has stated that when the deceased came to house, he had informed that in connection with scrap business, galata had taken place between him and accused Nos.1 to 3. It is also mentioned in the complaint that both of them when they were proceeding in front of the house of accused No.1 near Santhosh tent, accused No.1 was standing along with his friends accused Nos.2 and 3 and they suddenly came 46 and wrongly restrained them. Accused No.1 inflicted injuries on his brother stating that he is challenging his business and accused Nos.2 and 3 assaulted with long. When he tried to rescue his brother, accused Nos.2 and 3 assaulted him with long on his hands and tried to take away his life, as a result, he sustained injuries. Accordingly, complaint came to be filed as per Ex.P1. There is an endorsement in the complaint that statement of the complainant was recorded on the same day at 16.45 by P.W.22 and case was registered.
47. P.W.22 also in his evidence says that on the information he went to spot and at that time, the injured and P.W.1 were already shifted to the hospital and immediately, he went to Victoria Hospital. He recorded the statement of P.W.1 in terms of Ex.P1. Hence, it is clear that the statement of the injured P.W.1 was recorded within a span of 1 hour and 45 minutes of the incident by P.W.22. Though P.W.26-Investigating Officer claims that he recorded the statement, the same cannot be accepted. 47
48. In the complaint Ex.P1, P.W.1 has mentioned the names of accused Nos.1 to 3. On perusal of Ex.P20 FIR it discloses that FIR has reached at 7.00 p.m. on the same day. The Magistrate has made an endorsement on Ex.P20. There was no delay in sending the FIR. It has to be noted that Ex.P2 inquest discloses that the same was done from 5.30 p.m. to 7.30 p.m. by the Investigating Officer P.W.26. P.W.26 also reiterates that he conducted the inquest from 5.30 p.m. to 7.30 p.m. It is pertinent to note that in Ex.P2 also the names of accused Nos.1 to 3 is specifically mentioned. It is mentioned at Ex.P2 that Muzamil, Moin, Ataulla and Fazil (who have been examined as P.W.7, P.W.6, P.W.2 and P.W.3 respectively) have shifted the deceased Muzamil Pasha to Victoria hospital and they are the eyewitnesses to the incident. No doubt, in the cross-examination of P.W.26, it is elicited that P.Ws.2 and 3 are the witnesses to the inquest Ex.P2, but in the inquest they did not give any statement that they witnessed the incident. The contention of the learned Counsel for accused that P.Ws.2, 6 and 7 are not 48 eyewitness to the incident cannot be accepted on the ground that they are not the witnesses to the inquest. Normally, inquest witnesses would be the family members. But P.Ws.6 and 7 have given statement at the time of inquest that they have witnessed the incident
49. We have already pointed out that inquest was conducted between 5.30 p.m. and 7.30 p.m. within a span of two hours of the incident. It is also important to note that the Doctor who has been examined as P.W.23 before the Court has stated that he has recorded the statement of P.W.1 and he gave the history as assault by unknown persons. That does not mean that these accused persons have not assaulted them. However, in the cross- examination of P.W.23, Ex.D4 is got marked wherein it is admitted that the injured was brought by Moin who has been examined as P.W.6. The very evidence of P.W.23 is contradictory. At one breath, he says that P.W.1 gave the history of assault as by unknown persons and at another breath he contends that history was given by Moyin P.W.6 49 that he brought the deceased and mentioned the name of other persons. It is also the case of the prosecution that P.W.6 only took the injured to hospital. It is pertinent to note that though P.W.6 in his evidence says that he witnessed the incident of inflicting the injuries to the deceased and P.W.1. In the cross-examination, he categorically admits that when he went to spot already the deceased was lying on the ground and he did not go to pacify the galata. Hence, it is clear that he came to spot immediately after the incident when the injured Muzamil Pasha was lying on the spot. The Court also cannot expect the names of assailants from the mouth of P.W.6. However, the material witness is P.W.1 who was along with the deceased and also has sustained the injuries and he has given the names of accused Nos.1 to 3 while giving statement in terms of Ex.P1 within 1 hour 45 minutes of the incident. The Court can rely upon the sole evidence of the injured. In this regard, in the judgment of the Apex Court in the case of Jaspal Singh, Deputy Superintendent of Police Vs. State of Punjab with 50 Prithipal Singh and others Vs. State of Punjab and another reported in (2012)1 Supreme Court Cases (Cri) 1, regarding reliability of the testimony of sole/solitary witness, in para No. 49, it is held as under:
"49. This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
50. Further, in the case of Mukesh and another Vs. State for NCT of Delhi and others reported in AIR 51 2017 SUPREME COURT 2161 in para No.439 held as under:
"439. When recovery is made pursuant to the statement of accused, seizure memo prepared by the Investigating Officer need not mandatorily be attested by independent witnesses. In State Govt. of NCT of Delhi Vs. Sunil and Another (2001) 1 SCC 652: (2000 AIR SCW 4398), it was held that non- attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles' list consequent upon the statement of the accused. It was further held that there was no requirement, either under Section 27 of the Evidence Act or under Section 161, Cr.P.C. to obtain signature of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos."
51. The wound certificate is marked as Ex.P23. The Doctor who is examined as P.W.23 also says that P.W.1 has sustained lacerated injury on the right index finger with flexor tendon injury (tear). He also says that he has received two longs from the Investigating officer. He examined and gave the report that one of the weapons can cause the injury as mentioned in Ex.P23. Even in the cross-examination he says that lacerated injury with a tear 52 which he noted in the wound certificate would definitely correspond to the weapon mentioned in the history as rod. He also admits that the injury mentioned in the wound certificate could be caused if it comes in contact with iron door accidentally. Hence, it is clear that P.W.1 has sustained injuries in the incident.
52. It is also pertinent to note that a suggestion was made to P.W.1 by the defence that he himself and other 10-15 persons in order to take away the life of accused No.1 went and attacked accused No.1 and at that time, accused No.1 in order to protect his life, has exercised the right of private defence, as a result, his brother sustained injuries. This suggestion clearly shows that when accused No.1 tried to exercise his private defence, deceased had sustained injuries. Hence, the very contention that P.W.1 and P.W.6 gave statement before the Doctor that assault was made by unknown persons cannot be accepted. The doctor appears to be negligent in making such entries. Though there is a discrepancy in the information given by 53 the persons who took the injured to the hospital, as we have already pointed out while giving complaint in terms of Ex.P1 and also in Ex.P2 inquest conducted immediately after the incident, a specific mention is made that accused Nos.1 to 3 were present at the time of incident. The defence also suggested that accused No.1 has exercised his private defence when deceased Muzamil Pasha made an attempt to attack accused No.1. The defence has also relied upon the photos Exs.D1 and D2 and the same is also elicited from the mouth of P.W.26 that those photos depict the place of incident and the same is passage of the Sabjan building.
53. The learned counsel appearing for the respondents/accused relying upon Exhibit D2 would contend that the incident had taken place inside the passage of Sabjan building. It has to be noted that though defence was taken that accused No.1 has exercised his private defence in order to protect his life, in his statement under Section 313 of Cr.P.C. nowhere he has stated that 54 he has exercised such private defence. The statement of accused Nos.1 to 4 was total denial. In the judgment of the Apex Court in the case of Neel Kumar alias Anil Kumar Vs. State of Haryana reported in (2012)3 Supreme Court Cases (Cri) 271 at para 30, it is held as under:
"30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him."
54. Hence, it is clear that accused No.1 himself inflicted injuries on the deceased with M.O.1.
55. The learned counsel for the respondents/accused persons also would contend that in Ex.D4, the history of assault, it is stated that the assault on the deceased was by Imtiyaz khan and Hameed. No doubt there is an entry of assault by Imtiyaz khan and 55 Hameed, but in the case on hand, no person by name Hameed is the accused and accused No.4 is Imtiyaz and not Imtiyaz khan. Even as regards the date, time and place of incident is concerned, it is specifically mentioned that on 9.3.2009 at 3.00 p.m. near Shamanna garden and assault with knife and machu. It is clear that P.W.6 Moyin, who is the relative of the deceased has given the history and not P.W.1 as deposed by P.W.23 and we have already pointed out that there is a discrepancy with regard to the history of assault. But, in the case on hand, when there are eyewitness to the incident and when P.W.1 was present along with the deceased Muzamil Pasha at the time of incident, the same cannot be disbelieved by considering the discrepancies.
56. Apart from that, it is important to note that shirt of accused No.1 was seized and P.W.24, in his evidence, categorically says that he was called to the police station on 9.3.2009 at 10.00 p.m. and police have shown the blood stained shirt of accused No.1. The mahazar was 56 drawn in terms of Ex.P27 and he identified his signature as per Ex.P27(a) and further says that accused No.1 was present at that time.
57. In the cross-examination it is suggested that he is falsely deposing that the shirt of accused No.1 was seized. The said suggestion was denied. It is also suggested that he did not see accused No.1 in the police station and the same was also denied. However, he states that he has signed the mahazar Ex.P27 at the instance of the police, but, denies the suggestion that he is falsely deposing before the Court. It is also important to note that he identified accused No.1 before the Court. No enmity is elicited from the mouth of P.W.24 though he is an independent witness. P.W.24 withstood in his cross- examination.
58. P.W.26 Investigating Officer who seized the shirt of accused No.1 also reiterates in his evidence that the seized articles were sent to FSL through the Police 57 constable and the FSL Expert has been examined before the Court as P.W.15.
59. P.W.15, in her evidence, states that articles No.3 to 8 were stained with human blood belonging to 'A' and 'B' blood group. She has given the report in terms of Ex.P14. Though an attempt is made to elicit that she is not an expert and did not conduct any Serology test, she has categorically denied the suggestion. Hence, it is clear that the shirt belonging to accused No.1 was also stained with human blood. No doubt, it is elicited that accused No.1 also sustained injuries in the incident. P.W.26- Investigating Officer also admitted that accused No.1 has sustained simple injuries and also subjected him for medical examination. But he admits that he did not collect the wound certificate of accused No.1. Hence, it is clear that both deceased and accused No.1 have sustained injuries.
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60. Having considered the evidence of P.W.15, P.W.26 and the evidence of seizure mahazar witness P.W.24, it is clear that the shirt of accused No.1 was blood stained and the same was seized. It is pertinent to note that accused No.1 was apprehended on the same day at 9.30 p.m. and blood stained shirt was seized at 10.00 p.m. by drawing mahazar as per Ex.P27, which also substantiates the case of prosecution. The seizure of shirt of accused No.1 corroborates with the evidence of P.W.15 and P.W.24 coupled with the evidence of Investigating Officer P.W.26 and their evidence is consistent. The fact that accused No.1 also sustained injuries is not disputed. In the cross examination, a suggestion was made that he has not sustained injury, hence wound certificate was not collected, the same is denied. No doubt P.W.26 admitted that he did not collect the wound certificate of the accused but no explanation is furnished by the accused in his 313 statement.
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61. The prosecution with regard to seizure of M.O.1 at the instance of the accused No.1, has relied upon the evidence of P.W.13.
62. P.W.13, in his evidence, states that on 10.03.2009 when he was proceeding near Shamanna Garden railway gate, police called him. Accused No.1 took out M.O.1 knife from the vacant land situate near the railway gate and the same was seized as per mahazar Ex.P12. He also identified his signature as Ex.P12(a). This witness also identified accused No.1 before the Court as the person who produced M.O.1 knife.
63. In the cross-examination it is elicited that the place from which M.O.1 was seized was a vacant land situate about 50 ft. from the railway gate. He claims that there were trees around the said place. He also admits that there are houses at the distance of 100 ft. from the said place. It is suggested to this witness that his signature was taken in the police station and the same was denied. Nothing is elicited in the cross-examination of 60 P.W.13 except the suggestion that accused No.1 did not produce M.O.1 and no mahazar was drawn. The evidence of P.W.13 is consistent with regard to recovery. The Investigating Officer also categorically deposes that P.W.13 was called to the spot and he is the signatory to the mahazar Ex.P12. In the cross-examination of P.W.26, he confirms that Mahazar was drawn in the presence of P.W.13. The P.W.13 is also an independent witness. M.O.1 was seized on the next day of the incident and the evidence of P.W.15 is clear that the same was blood stained. Hence, the recovery of incriminating article i.e., seizure of knife corroborates the case of the prosecution as per Section 27 of the Indian Evidence Act. In this regard we would like to refer to the relevant portions of the judgment of the Apex Court, referred to above, in the case of Mukesh and another Vs. State for NCT of Delhi and others, wherein it is held that:
"......
135. In the instant case, the recoveries made when the accused persons were in 61 custody have been established with certainty. The witnesses who have deposed with regard to the recoveries have remained absolutely unshaken and, in fact, nothing has been elicited from them to disprove their creditworthiness. Mr. Luthra, learned senior counsel for the State, has not placed reliance on any kind of confessional statement made by the accused persons. He has only taken us through the statement to show how the recoveries have taken place and how they are connected or linked with the further investigation which matches the investigation as is reflected from the DNA profiling and other scientific evidence. The High Court, while analyzing the facet of Section 27 of the Evidence Act, upheld the argument of the prosecution relying on State, Govt. of NCT of Delhi v. Sunil and another[58], Sunil Clifford Daniel v. State of Punjab[59], Ashok Kumar Chaudhary and others v. State of Bihar[60], and Pramod Kumar v. State (Government of NCT of Delhi)[61].
136. On a studied scrutiny of the arrest memo, statements recorded under Section 27 and the disclosure made in pursuance thereof, we find that the recoveries of articles belonging to the informant and the victim from the custody of the accused persons cannot be discarded. The recovery is founded on the statements of disclosure. The items that have been seized and the places from where they have been seized, as is limpid, are within the special knowledge of the accused persons. No explanation has come on record from the accused persons explaining as to how they had got into possession of the said articles. What is argued before us is that the said recoveries 62 have really not been made from the accused persons but have been planted by the investigating agency with them. On a reading of the evidence of the witnesses who constituted the investigating team, we do not notice anything in this regard. The submission, if we allow ourselves to say so, is wholly untenable and a futile attempt to avoid the incriminating circumstance that is against the accused persons.
.....
431. As noted in the above tabular form, various articles of the complainant and the victim were recovered from the accused viz., Samsung Galaxy Phone (recovered at the behest of A-2 Mukesh); silver ring (recovered at the behest of A-3 Akshay); Hush Puppies shoes (recovered at the behest of A-4 Vinay) and Sonata Wrist Watch (recovered at the behest of A-5 Pawan). Recovery of belongings of PW-1 and that of the victim, at the instance of the accused is a relevant fact duly proved by the prosecution. Notably the articles recovered from the accused thereto have been duly identified by the complainant in test identification proceedings. Recovery of articles of complainant (PW-1) and that of the victim at the behest of accused is a strong incriminating circumstance implicating the accused. As rightly pointed out by the Courts below, the accused have not offered any cogent or plausible explanation as to how they came in possession of those articles.
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436. Even though, the arrest and recovery under Section 27 of the Evidence Act is often sought to be misused, the courts cannot be expected to completely ignore how crucial are the recoveries made under Section 27 in an investigation. The legislature while incorporating Section 27, as an exception to Sections 24, 25 and 26 of the Evidence Act, was convinced of the quintessential purpose Section 27 would serve in an investigation process. The recovery made under Section 27 of the Evidence Act not only acts as the foundation stone for proceeding with an investigation, but also completes the chain of circumstances. Once the recovery is proved by the prosecution, burden of proof on the defence to rebut the same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making the recoveries, especially when the recovery is corroborated by direct as well as circumstantial evidence, especially when the investigating officer assures that failure in examining independent witness while making the recoveries was not a deliberate or mala fide, rather it was on account of exceptional circumstances attending the investigation process."
64. The other contention of the prosecution is that earlier to the alleged incident, a galata had taken place on the same day in the morning between accused No.1 to 4 and the deceased. In this regard, the prosecution relies upon the evidence of P.W.8.
64
65. In his evidence, P.W.8 states that on 09.03.2009 himself and deceased Muzamil Pasha went to Genset factory located at Nelamangala around 11.00 a.m. Afsar Pasha C.W.13 and deceased Muzamil pasha went to discuss with the owner of the factory regarding the scrap business. He along with C.W.12 Afsar were standing outside the factory. At that time, accused No.2 came and questioned as to why they came near the said factory and that he is doing scrap business there. Even deceased Muzamil Pasha was standing near the gate and he answered that he received call from the factory as such, he has come to the said place. At that time, accused No.2 assaulted the deceased with his hand. Afzal and Imtiyaz accused Nos.3 and 4 who were standing near the gate also came to pacify the galata. The factory people came and told that if all of them combine together to do business, then only they would do business with them and asked them not to make any galata. Thereafter, the deceased, Afsar and Babu went inside the factory. The deceased came and told P.W.8 not to stand near the gate, as such, 65 Afsar and P.W.8 went towards the hotel. Within twenty minutes thereafter, deceased Muzamil Pasha came running towards them saying that they may hit him and so saying, he went away in his motorcycle. He states that Khaleel, Ameed, Nayaz, Imtiyaz and Afzal had come to hit the deceased. Later, Khaleel and Hameed both left the said spot on their motorcycle. Again they went near the factory. At that time, Afzar and accused No.2 Babu came near them and he told accused No.2 that their brothers are making galata with them. Later, P.W.8 and Afsar went towards Nelamangala on a motorcycle in search of deceased, but they did not find him. He was subjected to cross-examination.
66. In the cross-examination, it is elicited that accused No.2 did not come out of the factory till the deceased left the place on the motorcycle. It is also elicited that accused No.2 came out of the factory around 2.00 p.m. Till the time they came back from Nelamangala side, accused No.2 was there near the factory and at that time it 66 was around 3.00 p.m. They were near the factory till 4.00 p.m. on that day.
67. As per the evidence of P.W.8 it is clear that on the date of the incident galata had taken place between the deceased and accused Nos.1 to 4. The said incident was not denied by the accused persons. The evidence of P.W.8 is consistent with regard to the said incident and hence, it is clear that there was a motive to commit the murder of the deceased. The presence of accused No.2 near the factory is also clear. It is also pertinent to note that P.W.1 in his evidence also says that when the deceased came to house, he revealed him that galata had taken place near the Genset factory at Nelamangala. The case of the prosecution that there was a motive to commit the murder of deceased Muzamil Pasha is substantiated by the evidence of P.W.8 and P.W.1. Further, there is an averment in the complaint Ex.P.1 that on the date of the incident, in the morning, an incident has taken place near 67 the factory and the same was revealed to P.W.1 by the deceased when he had come to house.
68. Having considered the evidence of prosecution witnesses and also the defence evidence, it is clear that an incident had taken place on the date of incident. It is the defence of learned counsel appearing for the respondents/accused that deceased and his other supporters have chased and assaulted accused No.1 and also a suggestion was made to P.W.1 in his cross- examination that when accused No.1 exercised his private defence, the deceased had sustained injuries.
69. As we have already pointed out, though in the history of assault it is mentioned that assault by unknown persons and P.W.23 has given contra version at one breath saying P.W.1 has given statement regarding the assault and at another breath saying P.W.6 has given history of assault, but the very presence of accused No.1 has not been disputed through out the cross examination of P.W.1. Further, Exs.D1 and D2, the photos disclose the fact that 68 the dead body was lying in a passage of sabjan building. In the cross-examination of P.W.6 he categorically admits that he came to spot after the incident and that the deceased was lying at the spot. Though he is not an eyewitness, he is a circumstantial witness and he shifted the injured to the hospital and there is an entry in the MLC record that P.W.6 took the injured to the hospital. Further, seizure of blood stained shirt of accused No.1 is supported by seizure witness P.W.24 and recovery of knife at the instance of the accused No.1 is supported by panch witness P.W.13. The evidence of seizure witnesses P.Ws.24 and 13 establishes the fact that accused No.1 only inflicted injuries on the deceased Muzamil Pasha.
70. The trial Court taking note of the contradictory entries found in the MLC extract regarding mentioning the name of the person who brought the deceased and given the history of assault in the hospital as per Ex.D4, has given benefit of doubt to all the accused persons. The material evidence on record has not been considered by 69 the trial Court in proper perspective while acquitting the accused persons. The Court below did not consider the evidence of the prosecution and also the defence. The defence did not dispute the fact of incident and admitted the presence of accused No.1 and did not dispute the injuries sustained by him. The recovery at the instance of the accused i.e., blood stained shirt and recovery of M.O.1 has been proved beyond reasonable doubt and the same has not been considered. Hence, the finding of the trial Court that all the accused persons have not committed the murder of deceased Muzamil Pasha cannot be accepted and it requires interference by this Court.
71. With regard to the presence and participation of accused Nos.2 to 4 is concerned, it is clear that accused No.4 was arrested on 30.3.2009 almost after 21 days of the incident. The evidence of the Investigating Officer is also clear that accused No.4 has been implicated only after 21 days. The name of the Accused No.4 is not found in the FIR and also in the inquest. P.W.1 has not stated his name 70 in his complaint and the admission of P.W.26 during the cross-examination is that the presence of Accused No.4 at the spot is doubtful. Though P.W.2, 3, 6 and 7 says that Accused No.4 was present and instigated, the same is an after thought and their presence itself is doubtful at the time of incident having considered their admission the Cross Examination. It appears all of them came to spot after the incident and hence they did not mention the name of assailants before the doctor as well as before the police when they made the statement. Further, though the prosecution witnesses contends that accused Nos.2 and 3 also assaulted the deceased and P.W.1 in his evidence says that accused Nos.2 and 3 assaulted him with long to his left and right hand and P.Ws.2, 3, 6 and 7 says the same, in the wound certificate marked as Ex.P23, the doctor has opined that P.W.1 has sustained lacerated injury on the right index finger and no injuries are found on the left and right hand as deposed by the P.Ws.1 to 3, 6 and 7. Apart from that, P.W.8 in his evidence categorically contends that accused No.2 was present near 71 the Genset factory at Nelamangala around 3.00 p.m. Such being the case, inflicting of injuries by accused Nos.2 and 3 as deposed by P.W.1, 2, 3, 6 and 7 does not tally with the wound certificate and the medical evidence. Since the participation of accused Nos.2 and 3 in the alleged incident is doubtful, the benefit of doubt goes in favour of accused Nos.2 to 4. No doubt, it is evident in the evidence of P.W.8 that these accused persons were present in the early morning, but no cogent evidence to show that these accused persons also participated and inflicted injuries. Hence, we do not find any reason to reverse the finding of the trial Court with regard to accused Nos.2 to 4. Hence, we pass the following:
ORDER
(i) Appeal is allowed in part.
(ii) The impugned judgment dated 23.1.2013 passed in S.C.No.638/2009 by the Fast Track Court No.VIII, Bengaluru is hereby modified in so far as accused No.1 is concerned.72
(iii) Accused No.1 is convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to undergo life imprisonment and to pay a fine of Rs.50,000/-, in default of payment of fine, he shall undergo further simple imprisonment for a period of one year.
(iv) The Court below is hereby directed to secure
accused No.1 and subject him to serve
sentence.
(v) The judgment of acquittal passed in respect of
accused No.2 to 4 in so far as the offences
punishable under Sections 341, 307, 302, 114 read with Section 34 of Indian Penal Code is confirmed.
Sd/- Sd/-
JUDGE JUDGE
NBM/AKC/Bkp