Karnataka High Court
Puttaraja @ Putta vs The State Of Karnataka on 24 July, 2012
Author: D V Shylendra Kumar
Bench: D V Shylendra Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF JULY, 2012
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE B V PINTO
Criminal Appeal No.1144 of 2008
BETWEEN :
1. PUTTARAJA @ PUTTA
S/O NARASIMHAIAH
AGE: 26 YEARS
NO.34 VENKATESHWARA NAGAR
KIMKO CIRCLE, MYSORE ROAD
BANGALORE-26
2. SHANTHA KUMAR @ SHANTHA
S/O LATE NARASIMHAIAH
AGE: 23 YEARS
3. MUNIKRISHNA @ MUNNA
S/O NARASIMHAIAH
AGE: 20 YEARS
4. KUMARA @ KUMARI
S/O NARASIMHAIAH
AGE: 18 YEARS
5. CHANDRASHEKARA @ SHAKERI
S/O BAJJAIAH
AGE: 20 YEARS
ALL ARE R/O.NO.27
VENKATESHWARANAGAR
KIMKO CIRCLE, MYSORE ROAD
BANGALORE-26 ... APPELLANTS
(BY SRI.A.H.BHAGAVAN AND SRI.A.N.RADHAKRISHNA, ADVs.,)
2
AND :
THE STATE OF KARNATAKA
BY BYATARAYANAPURA
POLICE STATION ... RESPONDENT
(BY SRI.P.M.NAWAZ, ADDL.SPP.)
THIS CRL.A IS FILED U/S.374(2) CR.P.C BY THE ADVOCATE
FOR THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DT.18.10.2008 PASSED BY
THE ADDL.SESSIONS JUDGE & PRESIDING OFFICER, FAST TRACK
COURT-I, BANGALORE CITY IN S.C.NO.704/2005-CONVICTING THE
APPELLANTS/ACCUSED NOS.1, 2, 4, 5 & 6 FOR THE OFFENES
P/U/S.143, 147, 148. 302 R/W SEC 149 IPC.AND ETC.,
THIS CRL.APPEAL COMING ON FOR PART HEARD IN HEARING
MATTERS, THIS DAY, B.V.PINTO J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants, who are accused Nos.1, 2, 4 to 6 in S.C.No.704/2005 on the file of Addl. Sessions Judge & Presiding Officer, Fast Track Court-I, Bangalore City, have challenged the Judgment dated 18.10.2008 convicting them for the offences under Sections 143, 147, 148 read with Section 149 of IPC and Section 302 read with Section 149 of IPC and sentencing them to undergo S.I. for six months for each of the offences under Sections 143, 147, 148 read with Section 149 of IPC and to undergo R.I. for life and to pay a fine of `5,000/- each for the offence under Section 302 read 3 with Section 149 of IPC. The parties have been referred according to their rank before the trial Court.
2. It is the case of the prosecution that on 4.9.2004 the appellants along with 13 others [in all 16 accused] entered into a criminal conspiracy to cause the death of deceased Venkatesh on account of prior instances of dispute between the accused Nos.1 to 6 and deceased Venkatesh in respect of riding a Hero Puch vehicle, which happened on 28-9-2004 at 9 p.m. and also on account of the volley ball that had fallen on the roof of the house of Smt.Munirathna-niece of the deceased, thereby, they are alleged to have committed an offence under Section 120(B) of IPC read with Section 149 of IPC.
3. It is the further case of the prosecution that pursuant to the above said conspiracy and with common object of causing the death of deceased Venkatesh on 4.9.2004 at about 3 p.m. the accused formed themselves into an unlawful assembly in front of shop of one Smt.Prema near Masjid of Deepanjalingar 4th Cross, within the limits of Byatarayanapura Police Station with a common object of committing the murder of Venkatesh, thereby, they are 4 alleged to have committed an offence under Section 143 read with Section 149 of IPC.
4. It is the further case of the prosecution on the aforesaid time, date and place, the accused were armed with deadly weapons like chopper, Machu and knife and also some weapon which is if used as a weapon of offence is likely to cause death, thereby they are alleged to have committed an offence under Section 147 read with Section 149 of IPC.
5. It is also the further allegation against the accused that on the alleged date, time and place, being the members of the unlawful assembly to commit the murder of Venkatesh and in prosecution of the above common object, they committed the offence of rioting by possessing lethal weapons, thereby, they are alleged to have committed an offence under Section 148 read with Section 149 of IPC
6. It is further alleged that on the above said date and place, at about 4.30 p.m. the accused committed the murder of Venkatesh by assaulting him with the Machus and other weapons on the head and other parts of the body, thereby, 5 the accused are alleged to have committed an offence under Section 302 read with Section 149 of IPC.
7. It is the further case of the prosecution that accused Nos.13, 15 and 16 had abetted the commission of the offence of murder by accused Nos.1 to 12, thereby they are alleged to have committed an offence under Section 109 read with Section 149 of IPC.
8. The accused have pleaded not guilty to the charges framed against them. Thereafter, the prosecution in order to prove the case has examined in all 24 witnesses and got marked Exs.P1 to P37 and produced MOs.1 to 15. The defence of the accused is one of total denial. After considering the evidence of the prosecution, the learned Sessions Judge was pleased to hold that the prosecution has been successful in bringing home the guilt of the appellants herein while acquitting all the other accused persons giving them benefit of doubt. The convicted accused have filed this appeal.
6
9. Heard Sri A.H.Bhagavan & Sri A.N.Radhakrishna, learned Counsel for the appellants and Sri P.M.Nawaz, learned Addl. SPP for the Respondent/State.
10. Learned Counsel for the appellants submits that in this case though there are 5 witnesses examined as eye witnesses to the incident except PWs.1 and 19, all other witnesses have not supported the case of the prosecution. It is submitted by him that PW.19 was not neither cited in the charge sheet as a witness nor his name is found in the complaint given by PW.1 at the first instance. PW.19 has not at all been examined by the police during investigation and for the first time on 20.2.2006, the prosecution has filed an application under Section 311 Cr.P.C. stating that PW.19 was present along with PW.1 on the date of incident and the prosecution has attempted to show him as an eyewitness to the incident. He has submitted that the name of PW.19 having not been cited anywhere in the prosecution paper, the said PW.19 has been a created witness and his evidence cannot be believed at all for the purpose of supporting the case of the prosecution. He further submits that if the evidence of PW.19 is discarded from the prosecution papers, 7 the evidence of PW.1 only remains on the file as being the eyewitness to the incident. It is submitted by the learned Counsel that though the incident is alleged to have happened between 4 and 4.30 p.m. the complaint came to be lodged in the Police Station at 8 p.m. and there is an inordinate delay of 3½ hours in lodging of the complaint before the police. It is submitted by him that the information regarding the incident that has been transmitted to the Police Station is that 'a group of unknown persons' have committed the murder of the deceased and it is only at about 8 p.m. the names of these accused figured in the police station in the form of a complaint said to have been written by PW.1-V.Srinivas. So far as the presence of PW.1 at the scene of occurrence is concerned, the learned Counsel submits that he is a chance witness since he is a mason by profession and at the time when the incident happened, he is required to be in his place of work. On the other hand, it is the case of PW.1 that he was watching TV when the brother of the deceased was called by the accused and was subsequently done to death in the open day light. The explanation given by PW.1 regarding his presence at the scene of occurrence also varies according to the learned 8 Counsel, in that at one time, PW.1 says he was having slight fever and therefore he had decided not to go to the work on that day, whereas at some other time he says that he had no mood to work on that day. Therefore, he has not gone to work. Yet another place he has stated that the previous work having got over, he was waiting for commencing of new work and therefore on the date of incident he had remained in the house without going to work. Learned Counsel submits that this itself indicates that PW.1 is not trustworthy and therefore as he is the solitary eyewitness regarding the incident, his evidence should not have been considered for convicting the appellants. It is further submitted by him that there is also a doubt regarding the existence of the complaint-Ex.P1. While PW.1 states that since he could not write the complaint he had got written the complaint by one Venkatesh and he identifies in the Court that the complaint given by him as Ex.P1. Whereas in the Court the trial Judge has directed him to write certain words in a paper, which is marked as Ex.C1 and in the said paper, the handwriting drastically differs to the one contained in Ex.P1. Therefore, PW.1 cannot be believed so far as the authenticity of the complaint-Ex.P1 is concerned. It is 9 submitted by the learned Counsel that the alleged scribe of complaint-Ex.P1 namely., one Venkatesh has neither been cited nor examined by the prosecution. Therefore, the very origin of the complaint is doubtful. Learned Counsel further submitted regarding the delay in lodging the complaint and transmission of FIR is concerned, the inordinate delay of 3½ hours for the complaint to be lodged coupled with the fact that the FIR reached to the learned Magistrate at about 11 p.m. creates a doubt on the contents of FIR and that deliberate attempt has been made to include the names of the appellants and other accused and under the circumstances, it is submitted by him that a grave doubt is created regarding the involvement of the accused in the crime and on this ground alone, the entire prosecution story has to be thrown out and the appellants deserve to be acquitted by giving them a benefit of doubt. It is also submitted by him that there is a discrepancy regarding the place at which the complaint was given while PW.1 states that the complaint was given in the Victoria Hospital, the prosecution case indicates that PW.1 has appeared before the Police Station with a written complaint at 8 p.m. as found in the endorsement in Ex.P1 itself. Therefore, he 10 submits that even regarding handing over of the complaint before the police, the prosecution has not come up with clean hands. Naturally, this benefit or lacuna should enure to the benefit of the accused. Hence, he submits that the appeal may be allowed.
11. Learned Counsel for the appellants has relied on the following three decisions:-
(1) 2001 SCC (Cri) 439 [STATE OF RAJASTHAN v. TEJA SINGH AND OTHERS;
"B. Criminal Trial - Appreciation of evidence - Murder -Prosecution failed to produce the available independent corroborative evidence to support the evidence of interested witnesses - One of the eyewitnesses was a very old person having problems with his eyes which made it difficult to believe that he was really in a position to identify the accused persons - Evidence of another eyewitness became suspect because of the fact that though he was available in the village, his evidence was recorded only after 5 days of the crime for which the explanation given by the investigating officer was not satisfactory- Presence of the third eyewitness also doubtful because of the fact that even though she stated that she had lifted the body of the deceased which was bleeding and her clothes had become bloodstained, the investigating officer failed to recover the said clothes - Fact that Sarpanch of the village in his evidence stated that when he was told about the incident these eyewitnesses did not mention the name of the accused persons to him, also makes the prosecution case doubtful 11
- Held on facts, High Court was justified in not placing any reliance on the evidence of these 3 eyewitnesses without any independent corroboration-Penal Code, 1860, Ss.302/34."
(2) AIR 1978 SC 1647 [MUTHU NAICKER AND OTHERS ETC., v. STATE OF TAMIL NADU];
"(E) Evidence Act (1872), S.3-Partisan witnesses -Evidence of - Appreciation-
Evidence must be scrutinised with more than ordinary care.
Although the evidence of a partisan witness must not be discarded on that ground alone, the Court must be on guard to scrutinise their evidence with more than ordinary care. It must focus its attention on whether there are discrepancies in the evidence; whether the evidence strikes the court as genuine and whether the story as narrated is probable, judicial approach has to be cautious in dealing with such evidence. AIR 1975 SC 216 Rel.on." (3) (2009)2 SCC (Cri) 115 [JARNAIL SINGH v. STATE OF PUNJAB] "C. Criminal Trial- Appreciation on evidence - Contradictions, inconsistencies, exaggerations or embellishments - Conviction on the basis of unreliable and untrustworthy evidence- Impropriety of - Murder trial- Trial court convicting appellant-accused under S.304 Pt. II
- High Court, while maintaining finding of guilt, converting the conviction of appellant from S.304 Pt. II to S.304 Pt.I - Challenge to -
Contention of appellant-accused that courts below failed to properly analyse and scrutinise the evidence of the solitary witness and that presence of said solitary witness at the place of occurrence was not natural and also that his testimony was not free from embellishment- Sustainability- Held, entire story put forth by prosecution and PW 7, the alleged eyewitness, 12 particularly, appears to be doubtful and full of contradictions - It would be unsafe to convict a person on the basis of such unreliable and untrustworthy evidence, particularly when such statements are full of embellishment and contradictions, without corroboration in material particulars by reliable testimony, direct or circumstantial - Consequently, order of conviction and sentence passed against appellant-accused set aside, giving him benefit of doubt - Penal Code, 1860-Ss.304 Pt.I and Pt.II -Benefit of doubt."
12. Sri P.M.Nawaz, learned Addl. SPP on the other hand went through the entire evidence on record and has submitted that the submissions made by the learned Counsel may not be appropriate for this case insofar as classifying PW.1 as a chance witness. He submits that PW.1 was in his own house at the time when the incident happened. Therefore, his presence in his house at or around the time of offence is natural. The deceased was having his own house in the neighbourhood but at the time the deceased was called outside he was in fact in the same house, where PW.1 was there. Both of them were watching TV at the relevant time. Therefore, it cannot be said that PW.1 is a chance witness, since he was found in his natural place. It is further submitted by him that PW.1 is a mason and that he may not have the significance of the complaint 13 either being written by himself or through Venkatesh. However, PW.1 in the Court has admitted that the contents of Ex.P1 is in his own handwriting and therefore much cannot be said about the author of Ex.P1. He further submits that the incident has taken place at about 4.30 p.m. and immediately thereafter the injured had to be shifted to the hospital for treatment. Having regard to the fact that the injured was taken to the another hospital, where he was advised to take the injured to the Victoria Hospital, certain amount of time would have lapsed in giving first aid to the injured and therefore one cannot expect that he should have rushed to the Police Station first before giving any first aid to the injured. Having regard to the circumstances under which the incident has happened, the time of 8 p.m. at which the complaint was registered cannot be said as the delayed lodging of information. Therefore, much cannot be said about the said delay insofar as the lodging of information of commission of offence is concerned. He further submits that after the complaint is received by the police, it is the duty of the police to transmit the FIR to the Court and the complainant has no part to play in the transmission of FIR to Court. So far as the examination of 14 PW.19 as an eyewitness is concerned, learned Addl. SPP submits that when PW.1 and other witnesses are examined in Court, they had specifically mentioned about the presence of PW.19 as having been present in the house of PW.1 and watching TV at the relevant time. Based on the said evidence of the eye witnesses, the prosecutor had filed an application under Section 311 of Cr.P.C., seeking to examine PW.19 as an eyewitness. Having regard to the fact that more than 25 injuries have been caused on the person of the deceased and that he was profusely bleeding, there might have been some slip in mentioning the names of PW.19 while giving the complaint, but that cannot be taken as a ground to assail the effort of the prosecution to bring truth before the Court. However, he submits that the prosecution is heavily relying on the eyewitness account of PW.1 supported by corroborative evidence of FSL report. Since the incident has happened during broad daylight, the power of PW.1 as having witnessed the incident and having repeated the same in the complaint cannot be challenged at all, more particularly, in view of the fact that there had happened two earlier instances between the deceased and the accused and in both the cases the deceased had taken a leading part in 15 pacifying both the groups during the quarrel, one at the time of demand regarding Hero Puch vehicle and the second at the time of a ball falling on the roof of Smt.Munirathna, cousin of the deceased. He submits that minor discrepancies insofar as the narration of incident cannot be blown up to the disproportionate levels. The contents in the FIR insofar as the overtacts of the convicted accused/appellants is corroborated by his evidence before the Court and there is absolutely no discrepancy so far as the weapons, overtacts and the injuries caused on the deceased by the appellants. The learned Sessions Judge has been very cautious in accepting the cogent and clear evidence in respect of these appellants is concerned and the Sessions Judge has rightly convicted only 5 accused persons while acquitting others giving them the benefit of doubt. It is submitted by him that PW.1 cannot be considered as a partisan witness also because when the deceased and PW.1 were watching the TV in the house when the deceased was called outside, in view of the previous altercations between the accused and the deceased, it was but natural for PW.1 to follow the deceased and in fact at that time the incident had happened. PW.1 is the most natural and truthful witness and there is nothing 16 for him to exaggerate and to see that the appellants are convicted and sent behind bars by letting of the real assailants on his brother. Hence, the incident narrated by him is nothing but truth. Further, he submits that the post- mortem report of the deceased corroborates the contents of the complaint insofar as the weapons and injuries are concerned and so also the FSL report. Under the circumstances, he submits that there is absolutely no material to interfere with, with the Judgment of conviction passed by the learned Sessions Judge and he submits that the appeal may be dismissed.
13. Sri P.M.Nawaz, learned Addl. SPP cited the following rulings:-
(1) (2012)5 SCC 777 [RAMESH HARIJAN v. STATE OF UTTAR PRADESH], at para 29 reads as follows:-
" xxxxxxxxxxx The maxim falsus in uno, falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow 17 as a matter of law that it must be disregarded in all respects as well."
(2) (2003)7 SCC 643 [SUCHA SINGH AND ANOTHER v. STATE OF PUNJAB] "The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. This maxim has not received general acceptance nor has it come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". The doctrine is a dangerous one, especially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. 18
So even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. It is the duty of the court to separate grain from the chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto."
14. The prosecution in this case commenced with the filing of a complaint by PW.1-V.Srinivas through the Station House Officer, Byatarayanapura Police Station on 4.9.2004 at about 8 p.m. In the complaint, it is stated that he is working as a Mason and he is residing at the aforesaid address along with his father, wife, children and his brother 19 Venkatesh. On 4.9.2004, he had not gone to the work. At about 4.15 p.m. when he was watching the TV in the house, one Srinivasa s/o Venkatachala come to his house and on seeing his brother Venkatesh went outside the house. Since on 29.8.2004 in the night there were some altercations between Venkatesh and Srinivas, apprehending something, he followed his brother. His brother thereafter went along with Srinivas and PW.12-H.Chandrashekar to Deepanjalinagar and was standing in front of the petty shop near a railway bridge. At that time about 10 to 15 persons came suddenly holding Machu, Long, Knife and Chaku in their hand and came near Venkatesh. Venkatesh along with others started running towards the Masjid and at that time the persons who came chased Venkatesh and out of the persons who came there A1-Puttaraja stabbed Venkatesh on his stomach strongly; A2-Shanthakumar held a long chopper in his hand and assaulted on the head of Venkatesh; A3-Narayanaswamy hold another long chopper in his hand and assaulted Venkatesh on his stomach; Puttaraju again assaulted Venkatesh by means of a knife; Shanthakumar again assaulted on the head of the deceased Venkatesh by means of a long chopper and thereafter 20 Narayana again assaulted on the head of Venkatesh; A4- Munikrishna assaulted on the head by means of a chopper; A5-Kumara assaulted by means of a sickle on the left side of his neck and A6-Chandrashekara assaulted on the head of Venkatesh by means of a sickle and A7-Anil assaulted on the left side of ear near the head. His brother Venkatesh fell down by raising voice "¸ÀvÉÛ£À¥ÉÇàÃ"[I am dead]. At that time, A13-Hutchaiah was instigating other accused saying that the activities of the deceased is increased and telling them to finish the deceased, immediately the other accused namely., A8-Umesh; A9-Ravi; A10-Basavaraju; A11-Venkatesha; A12- Shivashankar also assaulted by means of knifes on the various parts of the body of his brother and thereafter all of them ran away from the scene of occurrence. PW.12- H.Chandrashekar, who was there along with his brother, ran away out of fear since his brother had fallen down in a pool of blood and his intestine was protruding outside the stomach. Immediately, himself and PW.21-Srinivasa and another relative by name Srinivasa s/o Kumara Muthuraju lifted Venkatesh and put him in an autorickshaw and took him to Sharavathi Nursing Home in Vijayanagar. Doctor in 21 Sharavathi Nursing Home saw Venkatesh and informed them that it is not possible to treat Venkatesh there and thereafter he was advised to take injured to Victoria Hospital. When they reached Victoria Hospital, the Doctor after testing the deceased, announced that the deceased had died. It was about 5 p.m. PW.1 has further narrated the reason for the incident namely the fight between them on 29.8.2004 for demand regarding one Hero Puch vehicle and also regarding the enemity between his brother and the accused. Based on the said information, the Byatarayanapura Police registered a case in Crime No.354/2004 for the offences punishable under Sections 143, 147, 148, 109, 120(B), 302 read with Section 149 of IPC, Section 3(10) of the Scheduled Castes & Scheduled Tribes [Prevention of Atrocities] Act, 1989. During investigation, the accused and others were arrested and based on their information the police have seized the weapons said to have been used for the commission of the offence. The dead body of deceased Venkatesh was subjected to post-mortem examination and after completion of investigation the charge sheet came to be filed. 22
15. Out of the 24 witnesses examined by the prosecution in order to prove the case, PW.12-H.Chandrashekar; PW.13- Mahesh; PW.14-Raju; PW.15-Rajanna; PW.20- Smt.Vipulkumari; PW.21-Srinivasa; PW.22-Prema have turned hostile to the case of the prosecution and they have not supported the version of the prosecution regarding the incident. Out of the other witnesses, the main witnesses, who have supported the case of prosecution is PW.1- V.Srinivas-Complainant, PW.19 who was summoned by the prosecution by filing an application under Section 311 Cr.P.C, PWs.22 and 23, who are the Investigating Officers and PW.11-Dr.K.H.Manjunath, who has conducted the post- mortem examination. Other witnesses are formal in nature. PW.5-Govindappa is a panch witness, who has supported the case of the prosecution regarding recovery of the weapons.
16. PW.1 in his examination-in-chief has virtually reproduced the version made by him in the complaint, more particularly he has given specific overtact for accused Nos.1 to 6 insofar as their complicity is concerned. He has clearly stated regarding the weapons used by accused Nos.1 to 6 23 and also the assault made by them on the various parts of the body of the deceased including neck, head, stomach and other parts of the body. In the cross-examination, an attempt has been made to dislodge his version as an eyewitness and it is suggested that he was not present at the scene of occurrence and that he has subsequently arrived but the said suggestion has been denied by him. It is also further suggested to PW.1 that after knowing that his brother has died, a false story has been concocted in view of the existing enemity between himself and the accused in respect of the previous quarrels between them. But PW.1 has withstood the test of cross-examination and his evidence so far as the incident is concerned has not been slightly taken away by the cross-examination by the accused persons.
17. PW.2-Jayamma is the sister-in-law of the deceased. She has spoken regarding the volley ball ground/Court near the house of the deceased and their house. Accused by name Huchaiah and his son had played volley ball along with others. At that time volley ball fell on the roof of the house of her daughter-Smt.Munirathna-niece of the deceased. PW.2 24 and her daughter-Smt.Munirathna questioned the same with the son of Huchappa. The deceased Venkatesh had come to pacify them on 29.8.2004 when a quarrel took place between himself and other accused. PW.2 has also stated that accused Nos.14, 15 and 16 were also having enimity with the deceased and they were planning to finish the deceased Venkatesh.
18. PW.3-Smt.Munirathna is a relative. The deceased Venkatesh is her uncle. She has stated that a few days prior to the date of incident of murder of Venkatesh, there was a quarrel regarding the volley ball falling on the roof of her house and consequently an altercation having taken place between herself and her mother on the one hand and the accused on the other. Therefore, the deceased had intervened between them and pacified the quarrel between them. It is stated by her that the accused-Huchaiah had threatened that the deceased would be taught a lesson, if he comes to fight again. It is also in her evidence that on the date of incident, accused Nos.15 and 16 were instigating other accused and were encouraging them saying that whatever happens they are there to support them even for 25 engaging a lawyer for defending them and that they should finish Venkatesh. It is brought to the notice of PW.1 that, she has not stated these facts before the police at the time of her questioning. However, she has denied the said suggestion PW.4-Chandrashekar has stated that on 4.9.2004 at about 8.30 p.m. when he was going to his house at Venkateshwaranagar PW.1 called him to the spot where the deceased was murdered. He had signed the Mahazar prepared by the police, wherein, the police have seized the Machu, 5 pairs of slippers and the same were packed and sealed in his presence, he has signed the same as per Ex.P2- spot mahazar.
19. PW.5-Govindappa, is a resident of Venkateshwaranagar, who has stated that he was called by the police to witness a Mahazar for the seizure of the weapons recovered at the instance of accused Nos.1 to 4 as per Ex.P3-Seizure Panchanama. He has signed Seizure Panchanama at Ex.P3(a) for having witnessed recovery of MOs.7, 8, 9 and 10, the weapon used in the commission of offence and recovered at the instance of the accused. 26
20. PW.6-B.R.Prakash, is a witness to Inquest Report- Ex.P5. PW.7-Manjunath & PW.8-K.N.Basappa are the Photographer and Police Constable, respectively, who had assisted in the investigation. PW.9-Bhadramadaiah, speaks about the previous complaint dated 29.8.2004 in which the deceased as well as the accused had gone to the Police Station regarding the quarrel that took place between them. PW.10-Kumara is a colleague and he stated that at about 4 p.m. on 4.9.2004 he came to know about the death of the deceased and when he went near the scene of occurrence, PW.1 and PW.19-Nagaraja, were present at the scene of occurrence. He has further stated that Venkatesh had fallen on the ground and he was struggling for life. He has further stated that Srinivas, Nagaraj and another took the deceased in an autorickshaw to Sharavathi Nursing Home and thereafter to the Victoria Hospital. He has also stated that the police have enquired him on 5.9.2004 and recorded his statement.
21. PW.11-Dr.K.H.Manjunatha is a Professor of Forensic Medicine, Victoria Hospital. He has stated that on 5.9.2004, he has conducted the post-mortem examination on the dead 27 body of the deceased and he was found the following external injuries:-
1. Sutured wound measuring 4 cm present at left frontal region of scalp 8 cms above the left eyebrow and 8 cms above left ear.
2. Chop wound measuring 6 cm x 1 cm x bone deep with underlying skull bone cut present at mid frontal region of scalp 4 cm above the hair line.
3. Chop wound measuring 7 cm x 1.5 cm x bone deep with underlying bone cut present over left temparoparietal region of scalp, 8 cm above left ear and 5 cm behind the injury No.2.
4. Chop wound measuring 8 cm x 2 cm x skull cavity deep present at left parietal region 3 cm behind the injury No.3, underlying the injury, bone is cut.
5. Chop wound measuring 5 cm x 1.5 cm x bone deep present 3 cm behind the injury No.4.
6. Chop wound measuring 9.5 cm x 2.5 cm x skull cavity deep with underlying bone cut present at right parietal region and 3 cm right of injury No.3.
7. Chop wound measuring 9 cm x 1.5 cm x skull cavity deep with underlying bone cut 2 cm below and to left of injury No.5.
8. Chop wound measuring 6.5 cm x 1.5 x bone deep present over left temporal region 3 cm above the left ear.
9. Chop wound measuring 6 cm x 2 cm x bone deep present at the left side of upper part of 28 nape of neck, 4 cm below and behind the left ear.
10. Chop wound measuring 7.5 cm x 1.5 cm x bone deep with underlying bone cut present at left occipital region of scalp 9 cm behind left ear.
11. Abrasion measuring 4.5 cm x 1.5 cm present at the top of left shoulder.
12. Abrasion measuring 3 cm x 1 cm present at the outer aspect of upper part of left arm.
13. Superficial incised wound measuring 7.5 cm x 0.5 cm x muscle deep almost vertically placed, present at the middle of the front of the chest 1 cm to the right of midline, 4 cm below the level of nipples.
14. Stab wound measuring 3.25 cm x 1.75 cm x abdominal cavity deep present at front of left side of abdomen, 8 cm left of the umbilicus, margins clean cut, lower end is sharp and inner upper end is blunt.
Through the wound coils of intestine and mesentery are seen protruding out.
15. Stab wound measuring 3 cm x 1.25 cm x abdominal cavity deep present at the right iliac fossa region just above the iliac crest, transversely placed, margins clean cut, inner end is blunt and outer end is sharp.
16. Incised wound measuring 6.5 cm x 1.5 cm x muscle deep present over the outer aspect of lower third of right thigh.
17. Incised wound measuring 5 cm x 2 cm x 3 cm into the muscle plain present over the front of the lower third of left thigh.
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18. Incised wound measuring 3.5 cm x 1 cm x muscle deep present at the outer aspect of the middle of left thigh.
19. Incised wound measuring 2.5 cm x 0.5 cm x muscle deep present over the front of middle phalynx of right hand ring finger, and is transversely placed.
20. Incised wound measuring 1.75 cm 0.5 cm x muscle deep present transversely over the front of middle phalynx of left middle finger.
21. Superficial incised wound measuring 7.5 cm x 0.5 cm x skin deep present over the right suprascapular region of back.
22. Superficial incised wound measuring 20 cms x 0.75 cm x muscle deep with a tailing towards left for 4 cm present 8 cm below the injury No.21 across the back of the chest.
23. Two parallel superficial incised wounds each measuring 10 cm x 0.5 cm x skin deep present at the left scapular region of the back.
24. Stab wound measuring 2.25 cm x 0.75 cm chest cavity deep with margins clean cut present obliquely at left infrascapular region with upper outer end sharp and lower inner blunt end.
25. Stab wound measuring 2.75 cm x 3 cm x chest cavity deep with margins clean cut, almost transversely present over the middle of back, 23 cm below the root of neck and 25 cm above the level of iliac crest.
26. Stab wound measuring 2.5 cm x 1 cm x 4 cm into the muscle plan, margins clean cut present 4 cm below injury No.25 with a outer blunt and inner sharp ends.
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27. Superficial incised wound measuring 11 cm x 0.25 cm x skin deep present transversely, 11 cm below the injury No.24.
28. Superficial incised wound measuring 8 cm x 0.25 cm x skin deep present over the back, 8 cm below the injury No.27.
29. Abrasion measuring 3 cm x 2 cm present over the right side of face.
He has opined that the death is due to shock and hemorrhage as a result of multiple injuries sustained.
22. PW.19-Nagaraja is examined by the prosecution as an eyewitness and he has stated regarding the incident that the deceased Venkatesh is known to him and as on the date of incident he was in the house of PW.1 and both himself and PW.1 were watching TV. One Seena called up Venkatesh by eye-sign and Venkatesh went out of the house. Since Venkatesh had some quarrels with others, he followed Venkatesh at his request. It is his case that he has seen the incident of murder of the deceased near the railway bridge and he has stated that about 5 to 10 persons came from the railway bridge to the place, where the deceased was standing. He has also stated regarding the assault to the deceased by A1, A3 and others by means of various weapons. PW.19 has been extensively cross-examined by the 31 defence and it is suggested that he has been a planted witness and that he has not been cited by the police as a witness nor has been questioned by the police during the investigation and that he has deposed falsely at the instance of PW.1 and the family members of the deceased.
23. PW.23-H.Thimmappa is the Inspector of Police, who has conducted the investigation and has arrested the accused, recovered the weapons at the instance of the accused after recording the voluntary statement of the accused and after completion of investigation he has handed over further investigation to PW.24-Basavanagouda Ramegouda Hiregouda ACP of Kengeri Gate Sub-division during the relevant period, who completed the investigation.
24. From among the above evidence of the prosecution witnesses, the learned Sessions Judge has not believed the eyewitness account of PW.19, but has placed heavy reliance on the evidence of PW.1. We have carefully gone through the evidence of PW.1 who is also the complainant with reference to the submissions made by the learned Counsel appearing for the appellants, so far as the presence of PW.1 at the scene of occurrence is concerned. We find that PW.1 was in 32 his house at the time when the incident took place and that being a mason, it is his case that on the date of incident he did not go to work. Submission that the presence of PW.1 in the house itself is doubtful has to be seen in the circumstances of the case. The house where the PW.1 was staying at the time when the deceased went outside is his own house [PW.1], so also of the deceased. There is nothing unnatural or artificial in PW.1 being in his own house. The submission of the learned defence Counsel that usually PW.1 goes to work at that time and his presence in the house is doubtful cannot be accepted for the simple reason that it is possible that PW.1 had taken a day or two off from work and he has explained that he had some fever and he was not in a mood to work. Only on this explanation given by PW.1, it cannot be said that PW.1's presence is improbable on the date of offence. Except that he has given different explanation for his presence on that day, we do not find any such inconsistencies in that explanation, since being a mason, not going to work on that day is nothing improbable. If he was not fully well on that day, he is not having an inclination to work is also not inconsistent or that one work having been completed he had to take up the next 33 work and in between feeling not well and hence not going to work is also a reasonable explanation for his presence in the house. Therefore, we do not see any inconsistency or improbability about the presence of PW.1 at his residence on the date and time of the incident.
25. Insofar as his presence at the scene of occurrence, it is his case that in two earlier incidents the deceased had taken part in pacifying the quarrel in locality and that one Huchaiah was announcing that the deceased should be finished on the background of these two instances. It is but natural that when a brother goes outside in the evening hours, PW.1 follows his brother the deceased Venkatesh and there can be nothing unnatural about PW.1 following the deceased being the elder brother of the deceased. So far as the narration of incident is concerned, there is complete corroboration between his version in the FIR as well as in the evidence before the Court. Only insofar as the appellants is concerned, he has specifically spoken regarding the weapons used in the offence and specific part at which the blow was dealt on the body of the deceased. It is also to be noted that he has specifically stated that one weapon was 34 bent at the tip due to the assault and therefore we have absolutely no doubt to hold that PW.1 is an eyewitness to the incident and that he has narrated the incident as it happened giving specific part to the 6 convicted accused and omnibus overtacts attributed to the other accused.
26. The Learned Sessions Judge has rightly rejected the evidence of PW.1 insofar as the part played by the other accused is concerned and has rightly acquitted them, whereas as the evidence given by PW.1 insofar as these accused are concerned being truthful and trustworthy has been accepted by the learned Sessions Judge to hold them guilty of the offences charged against them.
27. So far as the delay in FIR is concerned, it is to be noted that PW.1 and others are rustic citizens who were working as masons or manual workers. It is possible that there is slight discrepancy in narrating the incident subsequent to the murder insofar as their narration of the incident to the police is concerned. Having regard to the fact that Ex.P1 contains a clear and correct narration of the incident and in between the deceased was taken to two hospitals, one Sharavathi Nursing Home and later to Victoria Hospital and 35 had gone back to Byatarayanapura Police Station for registering the case, we do not consider the delay in between the incident and the time at which the FIR is registered is inordinate or unusual particularly having regard to the traffic movement in the city of Bangalore during evening hours.
28. The learned Counsel for the appellants submits that this delay has been made use of for the purpose of concocting a false case against the appellants by naming them in the complaint and assigning them with specific overtacts. We do not consider that this proposition is either probable or reasonable since though the case of the appellants is that the deceased was a rowdy sheeter and that there were many enemies against him, the suggestions remained only as suggestions and no material was brought out by the defence to show that the deceased had many enemies who also could have attempted on the life of the deceased. Further, the manner in which the incident is described in the complaint and the version narrated before the Court by PW.1 and fully corroborated by the evidence of the Doctor-PW.11 regarding injuries and also the nature of 36 weapons produced before the Court, clearly establishes that there is complete corroboration between the evidence of PW.1 and the prosecution case and therefore under the circumstances we do not find any illegality or perversity in the finding of the learned Sessions Judge in arriving at the conclusion that PW.1 is a true and natural eyewitness and that the appellants have committed the murder of the deceased. Of course, the learned Counsel has pointed out the discrepancy in so far coming into existence of complaint, while PW.1 states that he has got written the complaint through one Venkatesh, it is noted that the written complaint was brought to the Police Station as per the endorsement in Ex.P1. It is also his further case that police had come to the Victoria Hospital, where the complaint was received by the police. We are of the view that whatever is the manner by which the complaint has reached the Police Station, we find a ring of truth in the manner in which information is given to the police by PW.1. We also observe that there is no strong reason for PW.1 to falsely implicate the accused leaving behind the real assailants. 37
29. We have gone through the Judgment of the trial Court and the reasoning given by the learned trial judge convicting the appellants while acquitting the other accused persons by giving benefit of doubt. We hold that there is neither any perversity nor any illegality in the Judgment of conviction passed by the trial Court and we find that there is no material to interfere with the order of the learned Sessions Judge in this appeal and accordingly this appeal is liable to be dismissed. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE cp*