Karnataka High Court
Srinivas vs State Of Karnataka on 7 March, 2024
Crl.A.No.228/2018
C/w Crl.A.No.211/2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.228/2018 (C)
C/W
CRIMINAL APPEAL NO.211/2018 (C)
CRL.A.NO.228/2018
BETWEEN:
SRINIVAS
S/O K T NARASAIAH
AGED ABOUT 50 YEARS
OCC: AGRICULTURIST
R/O VIDYANAGARA
1ST CROSS
SHIVAMOGGA - 577 203 ...APPELLANT
(BY SRI.KARTHIK SHANKARAPPA, ADVOCATE FOR
SRI.S.SHANKARAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KOTE POLICE STATION
SHIVAMOGGA
REPRESENTED BY S.P.P.
HIGH COURT COMPLEX
BANGALORE - 560 001 ...RESPONDENT
(BY SRI.VIJAYAKUMAR MAJAGE, SPP-II)
Crl.A.No.228/2018
C/w Crl.A.No.211/2018
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 29.12.2017 AND SENTENCE DATED 02.01.2018 PASSED BY
THE PRINCIPAL SESSIONS JUDGE, SHIVAMOGGA IN S.C.NO.89/2015 -
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
CRL.A.NO.211/2018
BETWEEN:
SRI.MANJUNATHA. C
S/O. LATE CHANDRASHEKHARA
AGED ABOUT 39 YEARS
WORKING IN SHRUTHI MOTORS
1ST CROSS, VIDHYANAGARA
SHIVAMOGGA - 577 201 ... APPELLANT
(BY SRI.P.P.HEGDE, SENIOR COUNSEL FOR
SRI.H MALATESH, ADVOCATE)
AND:
1. SRI. SRINIVAS
S/O. K. T. NARASAIAH
AGED ABOUT 53 YEARS
AGRICULTURIST
R/O. VIDHYANAGARA, 1ST CROSS
SHIVAMOGGA - 577 201
2. SMT. JAYALAKSHMAMMA
W/O. VENKATESH
AGED ABOUT 63 YEARS
HOUSEHOLD WORK
R/O. VIDHYANAGARA
1ST CROSS, SHIVAMOGGA - 577 201
PRESENTLY RESIDING AT BALAJINAGARA
2ND CROSS, THIGALARA PALYA MAIN ROAD
PEENYA, 2ND STAGE,
BENGALURU - 560 072
3. STATE OF KARNATAKA
KOTE POLICE STATION
Crl.A.No.228/2018
C/w Crl.A.No.211/2018
3
SHIVAMOGGA
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001 ... RESPONDENTS
(BY SRI.KARTHIK SHANKARAPPA, ADVOCATE FOR
SRI.S.SHANKARAPPA, ADVOCATE FOR R1;
SRI.GOWTHAM M, ADVOCATE FOR R2;
SRI.VIJAYAKUMAR MAJAGE, SPP-II FOR R3)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 CR.P.C,
PRAYING TO ENHANCE THE QUANTUM OF SENTENCE IMPOSED ON
ACCUSED NO.1 AND SET ASIDE THE JUDGMENT OF ACQUITTAL OF
ACCUSED NO.2 VIDE ORDER DATED 29.12.2017 IN S.C.NO.89/2015
PASSED BY THE PRINCIPAL SESSIONS JUDGE, SHIVAMOGGA AND
CONVICT ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 READ WITH 34 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 29.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals arise out of the judgment and order in S.C.No.89/2015 passed by the Principal Sessions Judge, Shivamogga.
2. The appellant in Crl.A.No.228/2018 is accused No.1 and appellant in Crl.A.No.211/2018 is complainant/PW.1 in S.C.No.89/2015. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 4
3. PWs.1 and 5 are the sons, PW.6 is the wife of deceased Chandrashekara. Accused Nos.1 and 2 are the younger brother and sister of Chandrashekara.
4. The case of the prosecution in brief is as follow:
(i) There was property dispute between Chandrashekara on one hand and accused Nos.1 and 2 on the other hand. In that background, previously also there were quarrels. Accused Nos.1 and 2 and their family members were prosecuted in S.C.No.51/2010 on the file of the FTC-II, Shivamogga on the charge of attempt to commit murder of Chandrashekara. There were cases and counter cases between the parties. The present accused parties were acquitted by the trial Court in S.C.No.51/2010. Against the said judgment, the complainant therein who is incidentally the complainant in this case also preferred Crl.A. No.979/2012. This Court by the judgment dated 25.06.2015 convicted accused No.1 for the offence punishable under Section 324 IPC.
(ii) For the aforesaid reasons the accused were nurturing grudge against Chandrashekara. In that background, on 21.12.2014, between 5.30 PM and 7.30 PM accused Nos.1 and 2 conspired to commit murder of Chandrashekara. Finding Crl.A.No.228/2018 C/w Crl.A.No.211/2018 5 opportunity of he alone going to the land, accused No.1 followed him and assaulted him near the railway bridge situated in Sy.No.60 of Islampura village within the limits of Shivamogga Kote Police station with MO.8 long and committed his murder.
(iii) Since the victim did not respond to the phone calls of PW.6 and on getting the said information from PW.6, PW.1 along with PWs.3 and 4 went in search of Chandrashekara. When they were so going, they found accused No.1 moving from the side of said Railway Bridge holding MOs.3 and 8 in his hands. On PW.5 returning home, his mother informed him about PW.1 going in search of his father. Therefore PW.5 also proceeded towards the land. On the way, he also found accused No.1 passing there and he gave staring look at PW.5.
(iv) On searching the victim, they found him dead near Railway Bridge on the bank of channel with bleeding injuries. Then PWs.1, 3 and 4 shifted the victim to the McGann Hospital where he was declared brought dead. Regarding the incident, PW.1 filed complaint as per Ex.P1 before PW.12. Based on that complaint, PW.12 registered FIR as per Ex.P37 and handed over further investigation to PW.16/the CPI of Kote Police Circle. Crl.A.No.228/2018 C/w Crl.A.No.211/2018 6
(v) PW.16 during the investigation conducted the inquest mahazar on the dead body of the victim, spot mahazar, subjected dead body to PM examination and recorded the statements of the witnesses. PW.13 was deputed to trace the accused. He apprehended accused No.1 and produced him before PW.16. PW.16 recorded his voluntary statement and based on the said voluntary statement, MOs.3, 8 to 11 and Ex.P14-parking slip were seized under mahazars Exs.P5, 10 and
12. The Investigating Officer referred the seized articles to Forensic opinion.
(vi) On the police requisition, PW.9 conducted Postmortem examination on the dead body of the victim, submitted postmortem report Ex.P32 and on receiving Forensic opinion, he issued final opinion regarding cause of death as per Ex.P33. The Investigating Officer on completing the investigation filed charge sheet against the accused for the offence punishable under Section 302 read with Section 34 of IPC.
5. The trial Court on hearing the parties framed the charges against accused Nos.1 and 2 for the offences punishable under Sections 302, 120B read with Section 34 of IPC and Crl.A.No.228/2018 C/w Crl.A.No.211/2018 7 against accused No.2 for the offence punishable under Section 109 IPC.
6. The accused denied the charges and claimed trial. In support of the case of the prosecution, PWs.1 to 16 were examined, Exs.P1 to P44 and MOs.1 to 12 were marked. After their examination under Section 313 of Cr.P.C., accused neither filed their defence statement nor led any defence evidence. On their behalf by way of confrontation to the prosecution witnesses, Ex.D1 to 8 were marked.
7. The trial Court on hearing the parties by the impugned judgment and order acquitted accused No.2 of all the charges. Further the trial Court convicted accused No.1 for the offence punishable under Section 302 IPC. The trial Court by the impugned judgment and order, sentenced accused No.1 to imprisonment for life and fine of Rs.50,000/- for the offence punishable under Section 302 IPC and in default to pay fine directed him to serve sentence of rigorous imprisonment for two years.
8. The trial Court held that though the prosecution case was based on the circumstantial evidence, the prosecution has proved all the circumstances set up by it beyond reasonable Crl.A.No.228/2018 C/w Crl.A.No.211/2018 8 doubt. Thus, passed the impugned judgment and order of conviction as aforesaid.
9. Challenging the judgment and order of conviction and sentence passed against him, accused No.1 has preferred Crl.A. No.228/2018 and questioning the acquittal of accused No.2 and adequacy of sentence awarded to accused No.1, PW.1 the complainant has preferred Crl.A.No.211/2018. Submissions of Sri Karthik Shankarappa, learned Advocate on record for accused Nos.1 and 2:
10. (i) There were no eyewitnesses to the incident. The case was based on the circumstantial evidence. Complainant parties due to their long-standing enmity in the background of property disputes have falsely implicated accused parties. There were major inconsistencies and contradictions regarding the last seen theory and the recovery of incriminating materials. PW1/Complainant states that he sighted accused No.1 near scene of offence at 7.30 PM. Whereas, Ex.P14 the prosecution's own document state that accused No.1 parked his vehicle in the bus- stand and left at 7.10 PM. To plug that inconsistency, further statements were recorded regarding the time of offence and PWs.1 and 3 to 5 sighting the accused was brought down to Crl.A.No.228/2018 C/w Crl.A.No.211/2018 9 around 6.00 PM. Even there are inconsistencies regarding location of scene of offence.
(ii) As per the prosecution itself, accused No.1 was apprehended in Bengaluru. Accused No.1 had left Shivamogga on the date of incident at 7.10 PM itself. The incident said to have taken place around 6.00 PM and accused thereafter allegedly returned home, washed his clothes, put them for drying and went back near the scene of offence, concealed the weapons and then went to the bus-stand, parked the vehicle and left at 7.30 PM. It would be highly improbable to perform all those acts within half an hour. Therefore, the recoveries of incriminating materials are also improbable. PWs.7 and 8-the witnesses to the circumstances of last seen and recovery of the incriminating materials are all the friends of PW.1 and they are interested witnesses. Therefore, their evidence cannot be believed. The Medical evidence shows that the victim had suffered 33 injuries. Accused No.1 alone with single weapon could not have inflicted those many injuries. The records show that the deceased had many enemies and he was involved in several criminal cases. Therefore, some other enemies of deceased must have assaulted him. Taking that opportunity, to Crl.A.No.228/2018 C/w Crl.A.No.211/2018 10 wreck their vengeance in the background of property dispute, PW.1 and his family members have falsely implicated the accused in the case.
ⅲ ( ) Medical evidence does not match with the weapons and number of assailants. There are lot of contradictions in the evidence of PWs. 1 to 5 and the police witnesses regarding timing of the offence and overt acts of the accused.
(iv) Ex.D7 an admitted document belies the theory of scene of offence, weapons and involvement of the accused. There was delay in recording the statements of PWs.3 to 5-the alleged witnesses to the last seen theory. The trial Court without noticing all the improvements, material contradictions and improbabilities has wrongly convicted and sentenced accused No.1, probably on the bias that he was already convicted by this Court under Ex.P28. Therefore, the impugned judgment and order of conviction and sentence against accused No.1 is liable to be set aside.
(v) Crl.A.No.211/2018 is not maintainable against accused No.1 in view of provisions of Section 372 of Cr.PC. So far as accused No.2, the trial Court has acquitted her on proper Crl.A.No.228/2018 C/w Crl.A.No.211/2018 11 appreciation of the evidence on record. Therefore, the said appeal is liable to be dismissed.
11. In support of his submission he relies on the following judgments:
i) Pritinder Singh @ Lovely vs. State of Punjab1
ii) Ramesh Baburao Devaskar and ors vs. State of Maharashtra2
iii) Bhupan Vs. State of Madhya Pradesh3
iv) Debapriya Pal vs. State of West Bengal4
v) Jaikam Khan vs. State of Uttar Pradesh5
vi) Takhaji Hiraji vs. Thakore Kubersing Chamansing and ors6
vii) Subhash vs. State of Haryana7
viii) Kamal Prasad and ors vs. State of Madhya Pradesh8 Submissions of Sri P.P.Hegde, learned Senior Counsel for the advocate on record in Crl.A.No.211/2018:
12. Though the case is based on circumstantial evidence, the circumstances set up by the prosecution were proved by cogent and consistent evidence. So far as the circumstance of motive, Ex.P28 shows that present accused Nos.1 and 2 and their family members were prosecuted in Sessions Case 1 (2023)7 SCC 727 2 (2007)13 SCC 501 3 (2002)2 SCC 556 4 (2017) 11 SCC 31 5 (2021)13 SCC 716 6 (2001)6 SCC 145 7 (2011)2 SCC 715 8 (2023)10 SCC 172 Crl.A.No.228/2018 C/w Crl.A.No.211/2018 12 No.51/2010 on the allegation of attempt to commit murder of Chandrashekar the victim of the present case. Though the trial Court acquitted all the accused in SC No.51/2010, this Court under Ex.P28 in Crl.A.No.979/2012 reversing the judgment of the trial Court convicted accused No.1 for the offence punishable under Section 324 IPC. That incident also had taken place due to property dispute. Thus the circumstance of motive was clearly admitted. The evidence of PWs.1,3 to 6 regarding sighting the accused near the scene of offence with weapons and PW.6 sighting him with the weapon when victim was going to the land was cogent and consistent. The death of the victim was homicidal one was not disputed by the accused. The weapons of offence i.e., M.O Nos.3 and 8 the blood stained clothes of the accused, the parking ticket, the motor cycle of the accused were seized at the instance of the accused and the proceedings of such seizures under Ex.P5, 10 and 12 was supported by PW.8 seizure mahazar witness. The evidence of PWs.1, 3 to 6 and 8 was corroborated by the evidence of official witness. There was no reason for the independent witnesses to falsely implicate the accused in the case. The ocular evidence and other circumstantial evidence was corroborated by the medical and Crl.A.No.228/2018 C/w Crl.A.No.211/2018 13 forensic evidence. The variation in the complaint and evidence regarding time of the incident and sighting of the accused were explained. Other inconsistencies pointed out were not material one. Non-examination of the ambulance staff was not fatal since shifting the victim from the scene of offence to the hospital was not in dispute. Investigating Officer has explained the delay for recording the statements of PWs.3 and 4 and the same was plausible. The scene of offence was proved by Ex.P2 and the evidence of PW.1, 3, 4 and 7. The accused failed to explain the blood stains found on his clothes. The non-examination of the parking Manager to prove Ex.P14 was not material as the accused admitted and himself relied on Ex.P14 to advance his defence. Ex.D7 the document of accused themselves shows that accused No.1 was a rowdy sheeter. Accused No.1 failed to probabilise the plea of Alibi. The trial Court on judicious appreciation of the evidence has convicted and sentenced accused No.1. However, the trial Court was not justified in acquitting accused No.2 though the evidence on record clearly showed her involvement.
13. So far as accused No.1 he had once unsuccessfully attempted on the life of his own brother Chandrashekar. Taking Crl.A.No.228/2018 C/w Crl.A.No.211/2018 14 advantage of his acquittal pending Crl.A.No.979/2012 he accomplished his intention of murdering Chandrashekar. The medical evidence shows that victim was brutally assaulted and done to death. Considering the antecedents of accused No.1 and the other material on record, the sentence of imprisonment for life imposed by the trial Court is inadequate. The victim has the right of hearing even if prosecution fails to challenge the adequacy of sentence. Therefore, the appeal under Section 372 Cr.P.C. against accused No.1 is also maintainable.
14. In support of his submissions he relies on the following judgments:
i) State of Karnataka vs. K.Yarappa Reddy9
ii) Neel Kumar @ Anil Kumar vs. State of Haryana10
iii) Swamy Shraddananda vs State of Karnataka11
iv) Vikas Chaudhary vs. State of Delhi12
v) Parvinder Kansal vs. State (NCT) of Delhi and anr13
vi) Sahab Singh & ors vs. State of Haryana14 9 2000 Crl.L.J.400 10 (2012)5 SCC 766 11 (2008)13 SCC 767 12 2023 SCC Online SC 472 13 (2020)19 SCC 496 14 (1990)2 SCC 385 Crl.A.No.228/2018 C/w Crl.A.No.211/2018 15
15. Sri Vijaykumar Majage, learned SPP II supporting the submissions of Sri P.P.Hegde, learned senior counsel seeks to dismiss the appeal of accused No.1. So far as the complainant's appeal he submits that the appeal against acquittal of the accused is maintainable. So far as the enhancement of the sentence of accused No.1 he submits that Section 372 of Cr.PC shall be followed.
16. Considering the submissions of both side and on examination of the material on record, the points that arise for consideration are:
i) Whether the impugned judgment and order of conviction passed by the trial Court against accused No.1 is sustainable ?
ii) Whether the acquittal of accused No.2 is justifiable ?
iii) Whether the impugned order of sentence passed against accused No.1 is sustainable ?
ANALYSIS Reg. Point No.1 conviction of accused No.1:
17. There is no dispute that PWs.1 and 5 are sons, PW.6 is the wife of the deceased Chandrashekar and accused Nos.1 Crl.A.No.228/2018 C/w Crl.A.No.211/2018 16 and 2 are his younger brother and sister. It is also not disputed that the lands of Chandrashekar and accused No.1 are situated in the same vicinity within the limits of Islampura/Oorugaduru village. It is also not disputed that on 21.12.2014 in the evening Chandrashekar was found dead near his land with homicidal injuries.
18. According to the prosecution, there were long standing property disputes between the accused and the deceased and therefore the accused conspired to commit murder of Chandrashekar. It is the further case of the prosecution, that in execution of such conspiracy on 21.12.2014 at 4.30 p.m. on seeing that Chandrashekar alone was proceeding to his land, at the instigation of accused No.2, accused No.1 followed him with long MO.8, when deceased alone was sitting near the railway bridge with the axe, accused No.1 assaulted him with MO.8 and committed his murder. It is the further case of the prosecution that then accused No.1 washed MO.8 in the nearby channel, he concealed that and MO.3/the axe of the deceased in nearby bush, went home washed MOs.9 and 10 his blood stained shirt and pant, hanged them on a thread for drying, then proceeded on his motorbike to Shivamogga bus stand, on parking the Crl.A.No.228/2018 C/w Crl.A.No.211/2018 17 motorbike in the bus stand, he escaped to the house of accused No.2 situated in Bangalore.
19. There are no eyewitnesses to the incident. The case is based on the circumstantial evidence. The circumstances relied on by the prosecution are as follows:
(i) Motive - property disputes between the accused and the deceased and previous criminal cases against the accused.
(ii) Last seen circumstance - The evidence of PWs.3 to 5 about sighting accused No.1 near the scene of offence and about PW.6 sighting accused Nos.1 and 2 watching the victim while he was leaving the house.
(iii) The recovery of the weapon of offence at the instance of accused No.1 - Ex.P40 voluntary statement, Ex.P5 mahazar and evidence of PWs.3, 8 and 16.
(iv) The recovery of MOs.9 and 10 the blood stained clothes of accused No.1 - Ex.P40 voluntary statement, Ex.P10 mahazar and evidence of PWs.3, 8 and 16.
(v) The recovery of MO.11 the bike of accused No.1 -
Ex.P40 voluntary statement, Ex.P12 mahazar, parking ticket Ex.P14 and evidence of PWs.3, 8 and 16.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 18
(vi) Seizure of the articles during spot mahazar Ex.P2
(vii) Medical evidence;
(viii) Evidence of official witnesses.
20. Regarding the appreciation of circumstantial evidence, Sri Karthik Shankarappa, learned Counsel relied on the judgment in Pritinder Singh's case referred to supra. In para 15 and 16 of the said judgment, the Hon'ble Supreme Court relying on its several earlier judgments on the point reiterated that in such cases, the evidence on chain of circumstances must be so complete leading to the only hypothesis of the guilt of the accused and no other probability. It was further held that the evidence should be so complete not to lead to any reasonable ground for the conclusion consistent with the innocence of the accused. It was held that suspicion however strong cannot take the place of proof and the evidence should be conclusive in nature against the accused. The evidence in these cases has to be re-appreciated keeping the said principles in mind. Motive:
21. The evidence of PWs.1, 5 and 6 the sons and wife of the deceased to the effect that there was a civil dispute pending Crl.A.No.228/2018 C/w Crl.A.No.211/2018 19 between the deceased and accused No.2 in O.S.No.475/2002 was not disputed. Admittedly on the complaint of PW.1, the accused and their family members were tried in S.C.No.51/2010 by FTC-II Shivamogga for the charges of attempt to murder etc. and were acquitted. Against that judgment, PW.1 preferred Crl.A.No.979/2012 before this Court. In that case vide judgment Ex.P28 accused No.1 was convicted for the offence punishable under Section 324 of IPC. Ex.P18 the representation of Chandrashekar dated 29.05.2008 submitted to the Superintendent of Police, Shivamogga, Ex.P19 the endorsement dated 07.08.2009 of Inspector General of Police, Ex.P20 the endorsement of Police Sub-Inspector, Kote Police Station dated 09.08.2008, Ex.P21 another representation of Chandrashekar dated 04.08.2009 to the Superintendent of Police, Shivamogga, Ex.P22 the report of the Circle Inspector, Kote Police Circle, Shivamogga dated 23.12.2009 submitted to the Superintendent of Police Shivamogga, Ex.P23 the requisition of Superintendent of Police, Shivamogga dated 26.10.2009 issued to the Circle Inspector of Kote Circle, Shivamogga, Ex.P24 the representation of Chandrashekar dated 06.10.2009 to the Superintendent of Police, Shivamogga, Exs.P25 and P26 the first information report Crl.A.No.228/2018 C/w Crl.A.No.211/2018 20 and the complaint in Crime No.281/2011 of Tunganagar Police Station, Ex.P27 the endorsement dated 11.09.2013 issued by the Circle Inspector of Police, Kote Police Circle to Chandrashekar regarding Crime No.134/2013 of Kote Police Station and Ex.P28 clearly show that between May 2008 and till the filing of the complaint in this case, Chandrashekar and his family members had given several complaints against the accused and their family members to the local police and the higher police officers alleging assault, criminal intimidation, attempt to murder etc. They had also sought protection from the accused and in one case accused No.1 was convicted (Ex.P28).
22. In Ex.D7 which is marked at the instance of the accused himself, PW.6 has given the list of cases pending against the accused. Pendency of such civil and criminal cases and conviction of accused No.1 by this Court was not disputed by the accused. Those documents are corroborated by the evidence of PWs.1, 5 and 6 the sons and the wife of the deceased and the evidence of PW.16 the Investigating Officer. By such evidence, the circumstance of motive stood proved.
23. Sri Karthik Shankarappa, learned Counsel relying on the judgment in Ramesh Baburao Devaskar's case referred to Crl.A.No.228/2018 C/w Crl.A.No.211/2018 21 supra contended that the proof of motive circumstance alone is not sufficient to convict the accused as the motive is double edged weapon. In para 26 of the said judgment it was held that proof of motive by itself is not a ground to hold the accused guilty as the same is a double edged weapon which may lead to commission of offence by the accused or the other rival party falsely implicating the accused due to such rivalry. Absolutely there can be no dispute with regard to the said proposition. The trial Court also considered that aspect and proceeded to analyse the evidence on other circumstances. Therefore this Court has to examine whether the other circumstances set up by the prosecution are proved.
Last seen circumstance:
24. PW.6 the wife of the deceased deposed that on 21.12.2014 at 4.30 p.m. her husband left the house holding MO.3 axe saying that he is going to clear the fence. At that time, she found accused No.1 standing near his house watching the victim and by that time accused No.2 also came out from the house of accused No.1, both of them were talking to each other for about 10 minutes and then accused No.1 proceeded along with MO.8 in the direction of her husband's departure. She Crl.A.No.228/2018 C/w Crl.A.No.211/2018 22 further deposed that since victim did not return till 5.30 p.m., she called him and his phone was not reachable, being scared of accused No.1, she informed PW.1. Then PW.1 went in search of his father. After sometime her another son PW.5 also went in search of the victim. At about 7.15 p.m. to - 7.30 p.m. she was informed that accused No.1 has killed her husband.
25. PW.1 deposed regarding PW.6 informing him about victim not returning home and at 6.00 p.m. himself along with PWs.3 and 4 going in search of his father. He further deposed that at about 6.00 - 6.30 p.m. they sighted accused No.1 along with MOs.3 and 8 in his hands walking on the pathway near railway track, on seeing that he apprehended some mishap.
After searching for about 45 minutes to one hour, they found their father lying in the channel bank near the railway track. They brought the victim near railway track and found chop injuries on his forehead, head, shoulders, neck and back. He further deposed that he informed the same to his house and PW.1, 5 and others came to the spot. The injured was shifted in an Ambulance to Mcgann Hospital, Shivamogga, where he was declared dead.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 23
26. PWs.3 and 4 deposed that on 21.12.2014 at 6.00 p.m. when they were standing near the house of PW.4 talking to each other, PW.1 came and informed about his father going to the land and being not reachable on the phone and asked them to accompany him to search his father. They further deposed in line with PW.1 about they sighting accused No.1 on the pathway near the railway track holding MOs.3 and 8 in his hands and then on search they finding Chandrashekar lying on the side of the channel with injuries, securing ambulance and shifting the injured to the hospital etc.
27. The evidence of the above witnesses was sought to be challenged on the ground that PWs.1, 5 and 6 being the children and wife of the deceased and PWs.3 and 4 being the friends of PW.1 are interested witnesses. Secondly, on the ground that there are material contradictions in the documentary evidence and the ocular evidence about the time of PWs.1, 3 and 4 going in search of the victim, sighting the accused and the deceased. It was further contended that even assuming that the evidence of PW.1 is true, that does not amount to sighting the accused and the deceased together soon before his death. It was Crl.A.No.228/2018 C/w Crl.A.No.211/2018 24 also contended that to match the timings with regard to the circumstance of accused handling his blood stained clothes, the weapons, motorbike and parking ticket Ex.P14, the time of sighting the accused is totally changed during the evidence, that amounts to material contradictions.
28. It is no doubt true that PWs.1, 5 and 6 are the relatives of the deceased and PWs.3 and 4 are the friends of PW.1. But by that itself, they cannot be branded as interested witnesses. The evidence on record shows that the accused party were involved in several criminal cases. Under such circumstances, generally nobody in the village will be ready to incur the wrath of the persons of such antecedents by helping the complainant party. In such circumstances, friends of PW.1 joining him to go in search of his father is not uncommon or unnatural. The implication of accused in a case was not enuring any benefit to PWs.3 and 4. Therefore they cannot be called as interested witnesses.
29. As per the evidence of PWs.1 and 6, victim left home at 4.30 p.m. and he was found with homicidal injuries at about 6.30 p.m. No doubt in Ex.P1 the complaint, the complainant Crl.A.No.228/2018 C/w Crl.A.No.211/2018 25 stated that he left the home at 7.30 p.m. in search of his father. In para 35 of his deposition, PW.1 has explained the variation in the timings in the complaint and the deposition about he going in search of his father. He stated that such variation has occurred due to shock of his father's death and on realizing the same he has given further statement before the Investigating Officer. The Investigating Officer PW.16 also in his deposition stated about he recording the further statement of PWs.1, 5 and 6.
30. The medical evidence shows that the victim was assaulted in a very horrific manner. He had suffered 33 injuries on his body, innumerable amongst them were chop wounds. One can imagine the trauma a person suffers on seeing such sudden death of his near and dear ones. In addition to that PW.1 was engaged in shifting the injured to the hospital, informing his relatives etc. The fact that the victim left the house at 4.30 p.m. to go to the land is established by the evidence of PW.6 the wife of the deceased. Thereafter the victim was found with homicidal injuries by PWs.1, 3 to 5. PWs.3 and 4 consistently deposed about they going along with PW.1 in search of the deceased at about 6.00 p.m. Crl.A.No.228/2018 C/w Crl.A.No.211/2018 26
31. Therefore the explanation regarding variation of timing mentioned in the complaint and evidence of PW.1 was rightly found reasonable and accepted by the trial Court. In view of the aforesaid facts and circumstances, the judgment in Subhash's case relied on by Sri Karthik Shankarappa is not applicable.
32. Sri Karthik Shankarappa relying on Ramesh BabuRao Devaskar's judgment referred to supra contends that such variation in the first information report about timings of PW.1 going in search of the victim is material variation, therefore the trial Court was not justified in believing the version of PWs.1, 3 and 4 as the same amounts to material improvements/contradictions. Reading of the judgment shows that in that case first information report was lodged after the inquest mahazar and there was unexplained delay in lodging the first information report and though the informant was aware of the name of the assailant, the same had not reflected in the first information report. In the present case, in the FIR not only the names of the accused, but also the names of PWs.1, 3 and 4 were reflected. At least their evidence regarding they sighting the accused as deposed by them was found reliable. Further in Crl.A.No.228/2018 C/w Crl.A.No.211/2018 27 the very same judgment, it is held that the first information report need not be encyclopedia, but it should not be sketchy as to render the investigation impossible. Ex.P1 was not sketchy, but it included the required material particulars, therefore the said judgment in no way advances the case of the accused in that regard.
33. The Hon'ble Supreme Court in K.Yarappa's case relied on by Sri P.P.Hegde, learned Senior Counsel held that the evidence of one witness cannot be contradicted by citing that during the other witnesses' evidence. It was further held that the reaction of each person to a given situation will be different and Court should not expect uniform reaction from any witness on seeing incident like murder. In the light of the said judgment, the variation about the timing mentioned in Ex.P1 and the evidence of PW.1 about he going in search of his father and his explanation for the same was rightly accepted by the trial Court, more particularly when PWs.3 and 4 corroborated the said evidence of PW.1 regarding timing. That does not amount to material contradiction.
34. It is true that the name of PW.5 did not figure in the first information report regarding last seen theory. But that itself Crl.A.No.228/2018 C/w Crl.A.No.211/2018 28 did not dent the evidence of PWs.1, 3 and 4 regarding last seen theory with reference to accused No.1.
35. The other ground urged to disbelieve the evidence of PWs.3 to 6 is the alleged delay in delivering the first information report. As per Ex.P1 the complaint and Ex.P37 the first information report coupled with the evidence of PW.1 the complainant and PW.12 the Assistant Sub Inspector of Police who registered the first information report, PW.1 submitted Ex.P1 in the police station at 11.30 p.m. PW.12 further says that on registering the first information report, he forwarded the same to the Court and copies to his higher Officers and then PW.13 took over the investigation.
36. Ex.P37 shows that the first information report was delivered to the Magistrate on 22.12.2014 at 8.05 a.m. PW.12 says that he does not remember the name of the constable who carried the first information report, but the said constable informed him over wireless message that the first information report was delivered to the Magistrate at 12.30 night. PW.14 the then Constable of Kote Police Station states that he took the first information report from the police station at 12.30 hours and reached the residence of the jurisdictional Magistrate, on he Crl.A.No.228/2018 C/w Crl.A.No.211/2018 29 pressing the door bell, he did not get any response for about one hour, therefore he returned to the police station and delivered the first information report to the Magistrate on the next day at 7.30 a.m. He claims that he gave an oral report to PSI. It is no doubt true that such evidence of PW.14 is contrary to the evidence of PW.12 that he was informed at 12.30 night about delivery of the information.
37. Relying on such contradictions, it was argued that the complaint and the first information report were manipulated belatedly and the accused were implicated on deliberations. If the complaint was manipulated, name of PW.5 also could been reflected in Ex.P1 for the last seen circumstance. More over, the first information report was registered late night and within about 8-9 hours, the same is delivered to the Magistrate. Therefore it cannot be said that there was inordinate delay in delivering the first information report. Further it is settled law that in cases involving heinous offence like murder, such lapses if any on the part of the police officers itself does not demolish the core of the prosecution case, if other evidence on record is found acceptable. Thus the finding of trial Court on this circumstance is sustainable.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 30 Recovery of weapons of offence, blood stained clothes of the accused etc.
38. According to the prosecution, on 23.12.2014 on his arrest accused No.1 gave statement as per Ex.P40 before PW.16/the Investigation Officer, volunteering to show the places where he had concealed the weapons of offences, his blood stained clothes, motorcycle used by him during the course of the offence. According to the prosecution, PW.16 secured PWs.3 and 8 as witnesses for the recovery mahazars. It is the further case of the prosecution that then accused No.1 led the Investigating Officer and the panchas first to the channel near the scene of offence, took out MOs.3 and 8 the axe and long from the bushes grown on the bank of the channel, produced them and the Investigating Officer seized the same under the mahazar Ex.P5 and the said proceedings took place between 10.30 and 11.30 a.m.
39. According to the prosecution after the proceedings under Ex.P5 the accused led the Investigating Officer and panchas to his house situated in I cross, Vidyanagar Shimoga and produced his blood stained pant and shirt MOs.9 and 10 Crl.A.No.228/2018 C/w Crl.A.No.211/2018 31 which were hanged on the thread for drying and Investigating Officer seized the same under the mahazar Ex.P10 between 11.45 a.m and 12.45 pm. It is the further case of the prosecution that after the proceedings under Ex.P10 accused No.1 led Investigating Officer/PW.16 and panchas PWs.3 and 8 to BMV parking service area near KSRTC Bus stand Shimoga and produced his bike No.KA 14 EA 4359 which was parked there. One Suresh was there in the parking Office counter and he produced Ex.P14/the parking service chit. The bike MO11 and parking chit Ex.P14 were seized under the mahazar Ex.P12 between 1.10 p.m. and 2.00 p.m.
40. The seizure proceedings under Ex.P5,10 and 12 were supported by PW.3 and 8 in their evidence. During the course of their evidence, they identified the seized articles. The only attack about the reliability of PWs.3 and 8 is that both of them were friends and PW.3 was the close acquaint of PW.1 and no independent witnesses were taken as mahazar witnesses. The evidence of PW.3 and 8 that at the relevant time they were working in Sri Ram Finance, police summoned PW.3 for the mahazar and he took PW.8 also along with him was not Crl.A.No.228/2018 C/w Crl.A.No.211/2018 32 impeached. An attempt was made to elicit that, that day was a working day and the Investigating Officer did not take them as mahazar witnesses by issuing requisition to their higher officers and they had not taken the permission of their higher Officers. According to the defence counsel himself PW.3 was the friend of PW.1. When such untoward incident takes place in the house of a friend and the Police summoned him for investigation there is nothing unnatural in PW.3 rushing to the Police Station along with PW.8. If PWs.3 and 8 violated any office discipline that may entail disciplinary action against them by their employer, but that itself does not falsify their evidence regarding the mahazar proceedings.
41. Regarding the seizure of Ex.P14 and the motor cycle MO.11, it was contended that one Suresh who was employed in parking office had produced Ex.P14 and he was not examined. Therefore the said seizure shall be disbelieved. While marking Ex.P14 in evidence, the defence counsel did not raise any objection on such ground. Despite PWs.3 and 8 speaking about production of Ex.P14 by Suresh before the Investigating Officer in the cross examination of PW.3 absolutely the said fact was not disputed.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 33
42. PW.16 the Investigating Officer deposed about the seizures under Ex.P5, 10 and 12, the role of Suresh in the proceedings under Ex.P12 and recording of the statement of Suresh. The said Suresh was cited as CW.13 in the charge sheet. Even in the cross examination of PW.16 nothing was whispered denying the presence of Suresh during the proceedings under Ex.P12 or recording of his statement. It was only suggested to him that for the proceedings under Exs.P5, P10 and P12 he did not secure the local witnesses. Such being the things the public prosecutor has given up the examination of CW.13 before the trial Court. To crown all these, accused No.1 himself during his examination under Section 313 of Cr.P.C. by way of answer to question No.17, which was with reference to the evidence of PW.3 where Suresh handing over Ex.P14 was elicited, specifically admits that he parked the motorcycle there and went to Bengaluru and photograph was taken there at the time of seizure of mahazar.
43. When the evidence of PWs.3, 8 and 16 was not impeached denying the presence of Suresh and in view of the admission of the accused referred to supra, the submission of learned counsel for the appellant/accused No.1 before this Court Crl.A.No.228/2018 C/w Crl.A.No.211/2018 34 for the first time about non examination of Suresh cannot be countenanced. Consequently the judgment in Takhaji Hiraji's case referred to supra relied on by the learned counsel for the appellant/accused No.1 cannot be justifiably applied to the facts of the present case.
44. In the judgment in Bhupen's case referred to supra it was held that since all other circumstances set up by the prosecution were not proved, the accused cannot be convicted based only on the recovery circumstances. In Debapriya Paul's case referred to supra, considering that the blood group of the accused persons was not ascertained, it was held that the accused could also have the same blood group, therefore, recovery of blood stained clothes do not lead to the conclusion of the guilt of the accused. But for that appellant/accused No.1 should have taken a defence that the blood stains found on his clothes MOs.9 and 10 were of his blood. He had a duty to explain that. It was not his case that he had suffered certain injuries when he was wearing MOs.9 and 10 that is how those clothes got the stains of his blood. Therefore the said judgment is not applicable to the facts of the present case.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 35
45. The Larger Bench of the Hon'ble Supreme Court in paragraphs 22 and 23 of the judgment in Balwan Singh v. State of Chattisgarh15 discussing the legal position in cases where the blood group could not be ascertained despite proof of recovery of the blood stained weapons or clothes etc held as follows:
"22. The cases discussed above highlight the burden that the prosecution would ordinarily have to discharge, depending on the other facts and circumstances of the case, for the evidence relating to recovery to be considered against the accused. At the same time, as mentioned above, we are conscious of the fact that it may not always be possible to inextricably link the bloodstains on the items seized in recovery to the blood of the deceased, due to the possibility of disintegration of bloodstains on account of the time lapse in carrying out the recovery. For this reason, in Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC 127, where one of us (Mohan M. Shantanagoudar J.) had the occasion to author the judgment, this Court, relying on State of Rajasthan vs. Teja Ram (1999)3 SCC 507, had held that the failure to determine the blood group of the bloodstains collected from the scene of offence would not prove fatal to the case of the prosecution. In Prabhu Dayal case (supra), although the FSL report could not determine the blood group of the bloodstains on account of disintegration, the report clearly disclosed that the bloodstains were of 15 (2017) 7 SCC 781 Crl.A.No.228/2018 C/w Crl.A.No.211/2018 36 human origin, and the chain of circumstantial evidence was completed by the testimonies of the other witnesses as well as the reports submitted by the Ballistic Expert and the Forensic Science Laboratory regarding the weapon used to commit murder.
23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match."
(Emphasis supplied)
46. In this case also, the recovery of the blood stained weapon and clothes of the accused is proved. Therefore, the said judgment has to be followed. The medical evidence and forensic evidence which is discussed in the later part of this judgment shows that in the seized articles blood group of deceased was found.
47. It was argued that the prosecution was not sure which was the scene of offence and the evidence regarding Crl.A.No.228/2018 C/w Crl.A.No.211/2018 37 scene of offence is not cogent. The other contention is that it could be impossible for the accused to go to his house, wash his clothes and return to the place where he had allegedly concealed the weapons and then go back to the bus stand within one hour. As the prosecution claims that the incident took place at around 6.00 p.m., the trial Court considered both aspects and rejected the said contention.
48. As rightly pointed out by the trial Court, Ex.P34 the sketch of the scene of offence shows the place where the dead body had fallen was the bank of the channel. Even Ex.P2 the spot mahazar states that the scene of offence was the said bank of the channel and some of the plants in that area were disrupted, the blood stains were found on the leaves of the plants. Much was sought to be made out relying on the recitals in Ex.P2 that only one chappal of the victim was found. The other one was not found, therefore the scene of offence shall be disbelieved. One chappal being not found at the scene of offence does not itself falsify the case of the prosecution. The evidence of PWs.1, 3 and 4 about finding of the dead body in that place is consistent. As per Ex.P34, the distance between the place where the dead body was lying and the railway bridge across the Crl.A.No.228/2018 C/w Crl.A.No.211/2018 38 channel is four meters. Therefore the contention that the scene of offence was not identifiable or there was inconsistency with regard to the same has no merit.
49. So far as availability of time to accused No.1, to return home and again come back to the scene of offence to conceal the weapons etc., according to the prosecution the victim left home at 4.30 p.m. and he was found dead at about 6.30 p.m. by PWs.1, 3 and 4. As there were no eyewitnesses, exact time of assault between 4.30 p.m. and 6.30 p.m. would be within the special knowledge of accused No.1. Further as per Ex.P5 the distance between the police station and where accused No.1 stopped the jeep for producing MOs.3 and 8 is ½ KM.
50. As observed by the trial Court, the distance between the scene of offence and the house of the accused was hardly ¾ kms. As per Ex.P40, the admissible portion of the voluntary statement of the accused, after commission of the offence accused No.1 concealed MOs.3 and 8 near bushes near the scene of offence, then went home, washed Mos.9 and 10, hanged them under thread for drying, left to Shivamogga bus stand on MO.11. Thus from his house to the bus stand he went Crl.A.No.228/2018 C/w Crl.A.No.211/2018 39 on motorcycle. Therefore it cannot be said that the time gap between 4.30 p.m. to 7.00 p.m. was not sufficient enough to do all those acts. Therefore the ground of doubt sought to be raised on such hypothetical argument was rightly rejected by the trial Court.
51. In view of the above discussions, there is no illegality or perversity in the trial Court's finding that recovery of MOs.3, 8 to 11 and Ex.P14 under Ex.P5, P10 and P12 was proved. Medical and forensic evidence:
52. PW.9 Dr.Santhosh Kumar deposed about he conducting the postmortem examination on the dead body of Chandrashekar, 33 external and internal injuries found on the deceased, he handing over the blood, mud stained clothes, waist thread with amulet, MOs.1, 5 to 7 found on the dead body to the police, and issuing postmortem report as per Ex.P32. He further deposed that on requisition, he examined MO.8 the long and issued his opinion Ex.P33. According to him, the chop wounds shown in the postmortem examination report could be caused by MO.8 and other injuries namely abrasions and lacerations found in Ex.P32 could be caused due to victim falling during the struggle. He denied the suggestion that 33 injuries Crl.A.No.228/2018 C/w Crl.A.No.211/2018 40 can happen only if the victim was assaulted by several persons by different weapons. He also denied the suggestion that to cause such injuries both the edges of the weapon shall be sharp. Though he admitted that abrasions and lacerated wounds could be caused by blunt weapon, again he says that the contusion, abrasions and laceration wounds could be sustained by fall in a scuffle. He denied the suggestion that such injuries are the result of gang war. Whereas in the cross-examination of PWs.1, 5 and 6 it was not even suggested that Chandrashekhar died in a gang war. Though an attempt was made to suggest to PWs.1 and 5 that deceased was involved in land grabbing, illegal activities and was lending money on exorbitant interest etc., therefore he had several enemies including the members of Dalitha Sangharsha Samiti, they denied suggestions about the deceased lending loan or had fights with the borrowers and also about ill- will with DSS members. Moreover in his examination under Section 313 of Cr.P.C., accused No.1 himself does not say that Chandrashekar was killed in a gang war. Therefore there was no reason to disbelieve the medical evidence regarding cause of death.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 41
53. The evidence of PW.16 the Investigating Officer and PW.11 the Scientific Officer of RFSL, Davanagere shows that the Investigating Officer had sent sample blood, waist thread of the deceased, iron long, clothes of accused No.1 and deceased and blood stained leaves for chemical analysis. The evidence of PW.11 further shows that out of them M.O.2 blood stained leaves, M.Os.6 to 10 the clothes of the deceased and accused No.1 and waist thread of the victim were stained with O Group blood. Relying on the judgment in Debapriya's case referred to supra learned counsel for the appellant/accused No.1 contended that the Investigating Officer should have collected the blood group of accused and deceased both to rule out the possibility that the blood stains found on those articles were that of accused No.1.
54. So far as non-collection of blood sample of the accused and the deceased, the Hon'ble Supreme Court in para 15 to 20 of the judgment in Balwan Singh's case referring to its earlier judgments held as follows:
"15. We are also conscious of the fact that, at times, it may be very difficult for the serologist to detect the origin of the blood due to the disintegration of the serum, or Crl.A.No.228/2018 C/w Crl.A.No.211/2018 42 insufficiency of blood stains, or haematological changes etc. In such situations, the Court, using its judicious mind, may deny the benefit of doubt to the accused, depending on the facts and circumstances of each case, if other evidence of the prosecution is credible and if reasonable doubt does not arise in the mind of the Court about the investigation.
16. Thus, in the case of R. Shaji v. State of Kerala, (2013) 14 SCC 266, this Court had observed: (SCC pp.279-80, para 31) "31. A failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or nonmatching of blood group(s) loses significance."
17. Similar observations were made by this Court in the case of Gura Singh v. State of Rajasthan, (2001) 2 SCC 205, wherein it was observed that it was not possible to accept the submission made on behalf of the accused that in the absence of the report regarding the origin of the blood, the accused could not have been convicted, Crl.A.No.228/2018 C/w Crl.A.No.211/2018 43 inasmuch as it was only because of the lapse of time that blood could not be classified successfully.
18. In the case of Jagroop Singh v. State of Punjab, (2012) 11 SCC 768, this Court had ruled that as the recovery was made pursuant to a disclosure statement made by the accused, and the serological report had found that the blood was of human origin, the nondetermination of the blood group had lost its significance.
19. In the case of State of Rajasthan v. Teja Ram and Others, (1999) 3 SCC 507, the Court had observed that the failure of the serologist to detect the origin of the blood, due to disintegration of the serum, did not mean that the blood stuck on the weapon could not have been human blood at all. In this context, it was noted that it could not be said that in all cases where there was a failure in detecting the origin of blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. It was thus observed that unless the doubt was of a reasonable dimension which a judicially conscientious mind entertained with some objectivity, no benefit could be claimed by the accused.
20. However, we cannot lose sight of the fact that the accused would be in a disadvantageous position in case if the aforementioned dictum laid down by this Court in R. Shaji (supra), Gura Singh (supra), Jagroop Singh (supra) and Teja Ram (supra) relating to the bloodstains is applied in each and every case. Nonconfirmation of blood group or origin of the blood may assume importance in cases where the accused pleads a defence or alleges mala fides on the part of the prosecution, or accuses the prosecution of Crl.A.No.228/2018 C/w Crl.A.No.211/2018 44 fabricating the evidence to wrongly implicate him in the commission of the crime.
21. In John Pandian v. State Represented by Inspector of Police, Tamil Nadu, (2010) 14 SCC 129, this Court, on facts, observed that the evidence of recovery of weapons was credible. The Forensic Science Laboratory (FSL) report had disclosed that the blood was of human origin. The Court proceeded to conclude that since the evidence of recovery of weapon was proved to the satisfaction of the Court, it was sufficient that the prosecution had proved that the bloodstains were of human origin, even though the blood group could not be ascertained."
(Emphasis supplied)
55. The reading of the above judgment goes to show that even in the absence of collection of the blood sample and sending the same for serology report if other facts and circumstances of the case connect the accused to the crime, the Court using its judicious mind may deny the benefit of doubt to the accused. The Court is satisfied that failure of the Investigating Officer to collect the blood sample of the deceased and the accused itself does not confer any benefit on the accused. At the most that may amount to lapse on the part of Investigating Officer to do his duty.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 45
56. Though PW.11 spoke about receiving the blood sample, the doctor said that he had not collected the blood sample and sent it to the Investigating Officer. Any way the blood sample which was allegedly sent to PW.11 for analysis was disintegrated and could not be analysed. Therefore, the question of whether it was sent from the body of the victim does not survive. Still the fact of the seizure of M.O.8 weapon, clothes of the deceased and the accused was proved and they contained the common blood group of human origin. The evidence of PWs.1 to 6 shows that due to the assault the clothes of the victim were stained with blood. PW.9 says that during the post mortem examination he removed the clothes of the deceased found on the dead body and handed over them to the Police. Therefore, there is no reason to disbelieve that the stains found on those articles were that of the victim. In Neelkumar's case referred to supra, the Hon'ble Supreme Court held that where the accused is required to explain the incriminating circumstances proved against him, he keeping silent without furnishing any explanation for such stains amounts to an additional link in the chain of circumstances to sustain the charges against him.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 46
57. Since seizure of M.Os.8, 9 and 10 were proved, it was for accused No.1 to explain how those articles got the blood stains. It is not the defence of accused No.1 that he had suffered some injuries either accidentally or inflicted by others and that way he got blood stains on his clothes. The said fact was within the special knowledge of accused No.1. Section 106 of the Evidence Act requires him to explain the same. When the prosecution had discharged its initial burden of proving the circumstance relied by it, on accused No.1 failing to explain how M.Os.8 to 10 got blood stains, that becomes an additional link in chain of circumstances against him and the prosecution case has to be accepted. Therefore, the judgment in Debapriya's case referred to supra is not applicable.
58. Apart from that in the present case the recovery of blood stained weapon and clothes of the accused at his instance was proved. Further the recovery of the clothes of the deceased was proved and they contained the common blood group. Therefore, applying the judgment in Balwan Singh's case referred to supra it can be said that failure to collect the blood Crl.A.No.228/2018 C/w Crl.A.No.211/2018 47 group of the accused or determination of the blood group of the deceased from his sample blood was not fatal. Conduct of Accused
59. The other circumstance relied on by the prosecution was that after the incident, accused fled away. The accused himself admitted that on the day of the incident he went to Bangaluru. According to him, he went to Bengaluru to see his daughter but as per the Police he was hiding himself in the house of accused No.2 in Bengaluru and he was searched and apprehended by PW.13 on 23.12.2014 at 3.00 a.m. and on the same day at 9.00 a.m. he was produced before the Investigating Officer/PW.16 who arrested him.
60. Though accused No.1 in his examination under Section 313 Cr.P.C. claimed that he was summoned from Bengaluru to the Police Station and when himself and accused No.2 appeared in the Police Station, the Police arrested both of them saying that PW.1 has filed complaint against him. He says despite they pleading innocence, they were arrested. The committal Court records show that accused Nos.1 and 2 were produced before the Magistrate on 23.12.2014 at 4.40 p.m. The order sheet of the Magistrate's Court dated 23.12.2014 shows Crl.A.No.228/2018 C/w Crl.A.No.211/2018 48 that the accused did not whisper anything about securing them to the Police Station and then arresting them. Therefore, the contention of accused No.1 that he had come to the Police Station on the phone message of the Police cannot be accepted. Accused No.1 did not even state in his examination under Section 313 Cr.P.C. that he had gone to see his daughter in Bengaluru. Therefore that contention also fails and the prosecution version that he was found in the house of accused No.2 in Bengaluru, after committing the offence and fleeing away from his house can be accepted. That is also a connecting link in the evidence led by the prosecution against accused No.1. Plea of Alibi
61. Accused No.1 contended that at the time of the offence he had been to Bengaluru to see his daughter and even as per Ex.P14 he had left Shimogga on the date of incident. Therefore, his presence at the scene of offence was not probabilised. According to the prosecution after commission of offence he parked his vehicle in parking area at 7.10 p.m. and he fled away.
Crl.A.No.228/2018C/w Crl.A.No.211/2018 49
62. Regarding the plea of alibi, both counsel relied on the judgment of Hon'ble Supreme Court in Kamal Prasad's case. In para 24 to 24.5 of the said judgment it was held as follows:
"24. The principles regarding the plea of alibi, as can be appreciated from the various decisions of this Court, are:
24.1 It is not part of the General Exceptions under IPC and is instead a rule of evidence under Section 11 of the Indian Evidence Act, 1872.
24.2 This plea being taken does not lessen the burden of the prosecution to prove that the accused was present at the scene of the crime and had participated therein.
24.3 Such plea is only to be considered subsequent to the prosecution having discharged, satisfactorily, its burden.
24.4 The burden to establish the plea is on the person taking such a plea. The same must be achieved by leading cogent and satisfactory evidence.
24.5 It is required to be proved with certainty so as to completely exclude the possibility of the Crl.A.No.228/2018 C/w Crl.A.No.211/2018 50 presence of the accused at the spot of the crime. In other words, a standard of "strict scrutiny" is required when such a plea is taken.
(Emphasis supplied) The reading of the above paragraph goes to show that even if the accused takes the plea of alibi, the initial burden of the prosecution to prove the presence of the accused is not lessened. Once the said burden of the prosecution was discharged, the accused has to establish his plea by leading cogent and satisfactory evidence completely excluding the possibility of his presence at the crime spot.
63. In the present case the offence has taken place between 4.30 p.m. and around 6.15 p.m. or 6.30 p.m. viz., the time when the victim left the house and was found dead by PWs.1, 3 and 4. It is already held that the prosecution has established the presence of the accused near the scene of offence by the evidence of PWs.1, 3 and 4. The accused parked his vehicle at 7.10 p.m. and left. Therefore he had to improbabilise his presence at the scene of offence or in the town between 4.30 and 7.10 p.m. but he did not establish that during that time he was in Bengaluru or in some other place. Crl.A.No.228/2018 C/w Crl.A.No.211/2018 51
64. In para 28 of the judgment in Kamal Prasad's case referred to supra the Hon'ble Supreme Court held that the plea of alibi is to be established by something other than the ocular statement. Otherwise the unrefuted conclusion is that the convict was present on the spot. Such non-explanation is an additional link to connect the accused to the crime. Therefore, the judgment in Kamal Prasad's case advances the case of the prosecution rather than the case of accused No.1.
The above discussions go to show that the prosecution established the circumstances relied on by it by cogent and consistent evidence. Under the circumstances, suffice it to say that the judgment in Jaikam Khan's case referred to supra in no way advances the case of accused No.1. The trial Court on sound appreciation of the evidence convicted accused No.1. The said finding does not warrant interference of this Court. Reg. Point No.2 acquittal of accused No.2
65. So far as the acquittal of accused No.2 the allegation against her is that she instigated accused No.1 to commit the murder of Chandrashekar. As rightly pointed out by the trial Court the only evidence in that regard was of PW.6. While Crl.A.No.228/2018 C/w Crl.A.No.211/2018 52 seeing off her husband at 4.30 p.m. on the date of the incident PW.6 said to have witnessed accused No.2 coming out of the house and talking to accused No.1 for about 10 minutes and then accused No.1 proceeding in the direction of her husband's departure. If that be so, the same should have been reflected in Ex.P1 the complaint. As already noticed, PW.1, 3 and 4 found the victim dead at about 6.30 p.m. According to the prosecution witnesses themselves after PWs.1, 3 and 4 sighting the victim PW.5 and 6 also came to the scene of offence. Then she would have disclosed about she sighting accused No.2 or they conspiring etc. As rightly pointed out by the trial Court the evidence of PWs.1 and 5 regarding accused Nos.1 and 2 speaking to each other when their father was going to the land was based on the statement of PW.6. Therefore, that was a hearsay evidence. Admittedly there was rivalry and suit was pending between accused No.2 and the deceased since 2002. Though the very same complainant party implicated accused No.2 in two criminal cases earlier on the same motive ground in both cases herself and her sons were acquitted. In the present case also PW.1 had filed complaint not only against accused Nos.1 and 2 but also against two sons of accused No.2. Police Crl.A.No.228/2018 C/w Crl.A.No.211/2018 53 themselves did not find any material to proceed against those two sons. Except for the said circumstance, there was no other material against her and charge against her was not proved beyond reasonable doubt. There was no other material to connect her to the crime. Therefore, the trial Court was justified in acquitting accused No.2. The said order of the trial Court does not warrant any interference of this Court. Reg. Point No.3 adequacy of sentence of accused No.1.
66. The complainant has filed this appeal challenging acquittal of accused No.2 and questioning the adequacy of sentence awarded to accused No.1. It is contended that proviso to Section 372 Cr.P.C. empowers the victim to file appeal only against the acquittal of the accused, inadequacy of the compensation awarded or conviction of the accused for the lesser offence and not against the adequacy of the sentence awarded.
67. Sri Karthik Shankarappa, learned counsel relying on paras 29 to 32 of the judgment in Mallikarjun Kodagali's case referred to supra argued that victim has no right to prefer appeal on the ground of inadequacy of sentence. Reading of the said Crl.A.No.228/2018 C/w Crl.A.No.211/2018 54 judgment shows that in paras 29 to 32 only the full Bench judgment of the Gujarat High Court in Bhavuben Dineshbhai Makwana Vs. State of Gujarat (2013) Crl.Law J. 4225 was extracted and that was not the view of the Hon'ble Supreme Court. Thereafter the Hon'ble Supreme Court referred to the other full bench judgments of Kolkata High Court and Punjab and Haryana High Court on the point. Ultimately, in para 35 of the said judgment, the Hon'ble Supreme Court disagreeing with the view of the Gujarat High Court in Bhavuben Dinesh Bai's case held as follows:
"In our opinion, the Gujarat High Court made an artificial and unnecessary distinction between a victim as a victim and a victim as a complainant in respect of filing an appeal against an order of acquittal. The proviso to Section 372 of Cr.P.C. does not introduce or incorporate any such distinction."
68. To appreciate the rival contentions it is useful to examine the provisions of Section 372 Cr.P.C. which read as follows:
"372. No appeal to lie unless otherwise provided- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:Crl.A.No.228/2018
C/w Crl.A.No.211/2018 55
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court."
The reading of the above provision shows that prior to insertion of proviso to Section 372 Cr.P.C. by way of amendment no appeal other than the one contemplated under Sections 372 to 380 Cr.P.C. were permissible against the order of the Sessions Judge or other subordinate Court. The proviso to Section 372 of Cr.P.C., has not expressly barred the victim preferring an appeal against inadequacy of the sentence. But the language of the proviso is silent about the same. Therefore the question is whether such silence shall be interpreted as a bar to the victim to prefer an appeal against inadequacy of sentence.
69. Needless to say that prior to Code of Criminal Procedure Amendment Act 2008 under Act No.5 of 2009 (for short 'Act 5 of 2009) Section 372 of Cr.P.C., 1973 barred any appeal against the judgment of the criminal Court except as provided in the other provisions of the code. The proviso to Section 372 of Cr.P.C. was introduced giving right to the victim Crl.A.No.228/2018 C/w Crl.A.No.211/2018 56 to prefer an appeal. To ascertain whether the said proviso barred the victim from preferring appeal against inadequacy of sentence, the object of Act No.5 of 2009 has to be examined which reads as follows:
"Prefatory Note- State of Objects and Reasons:
The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant-cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. Also, as per the Law Commission's 177th report relating to arrest, it has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the society's interest in maintenance of peace as well as law and order.
2. The need has also been felt to include measures for preventing the growing tendency of witnesses being induced or threatened to turn hostile by the accused parties who are influential, rich and powerful.Crl.A.No.228/2018 C/w Crl.A.No.211/2018 57
At present, the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system. The application of technology in investigation, inquiry and trial is expected to reduce delays, help in gathering credible evidences, minimize the risk of escape of the remand prisoners during transit and also facilitate utilization of police personnel for other duties. There is an urgent need to provide relief to women, particularly victims of sexual offences, and provide fair-trial to persons of unsound mind who are not able to defend themselves. To expedite the trial of minor offences, definition of warrant-case and summons-case to be changed so that more cases can be disposed of in a summary manner."
The above paragraphs show that the amendment was brought into considering the worst sufferings of the victims and realising the need to give them certain rights to avoid distortion of criminal justice system, further the Parliament considered the urgent need to provide relief to women in heinous cases etc.
70. Considering such object of the amendment and taking the view that the proviso to Section 372 of Cr.P.C. shall be given a purposive interpretation in para 8 of the judgment in Crl.A.No.228/2018 C/w Crl.A.No.211/2018 58 Mallikarjuna Kodagali's case itself the Hon'ble Supreme Court held as follows:
"8. The rights of victims, and indeed victimology, is an evolving jurisprudence and it is more than appropriate to move forward in a positive direction, rather than stand still or worst, take a step backward. A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard."
(Emphasis supplied) The above observation goes to show that the judicial interpretation of the provision needs to be raised on a higher decibel, to move forward in a positive direction, rather than stagnating. Holding so, the Hon'ble Supreme Court upheld the right of the victim to prefer appeal against order of acquittal though the incident had taken place prior to the amendment.
71. Further expanding the said view, the Larger Bench of the Hon'ble Supreme Court in paras 24.1 and 24.2 Jagjeet Singh vs. Ashish Mishra16 held as follows:
"24.1. First, the Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, 16 (2022)9 SCC 321 Crl.A.No.228/2018 C/w Crl.A.No.211/2018 59 especially in cases involving heinous crimes, is increasingly being acknowledged.
[ 24.2. Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses."
(Emphasis supplied) On reading the above judgment, it cannot be said that the proviso to Section 372 of Cr.P.C. barred the victim from preferring appeal against imposition of inadequate sentence. Bearing in mind the object and purpose of the law in question, the Courts have to infuse life into the same otherwise law remains a dead letter on the white paper. Whether the sentence imposed is inadequate or not has to be decided on merits of the case. But at the threshold the victim is not barred from preferring the appeal itself on the ground of inadequacy of sentence. In many cases we come across trial Courts imposing Crl.A.No.228/2018 C/w Crl.A.No.211/2018 60 less than the minimum prescribed sentence or shockingly inadequate sentence disproportionate to the crime. In such cases, if the State does not prefer an appeal for any reason, justice becomes casualty, if victim is also barred from filing the appeal. Therefore this Court is not inclined to accept the arguments that the proviso to Section 372 of Cr.P.C. bars the victim from questioning the adequacy of the sentence awarded.
72. Having held that the victim can maintain the appeal questioning the adequacy of sentence, the next question is whether the sentence passed against accused No.1 is grossly inadequate or disproportionate to the offence. On convicting accused No.1 for the offence punishable under Section 302 of IPC the trial Court has sentenced him to undergo imprisonment for life and to fine of Rs.50,000/- in default to pay the fine amount to undergo rigorous imprisonment for two years.
73. The complainant/victim claims that accused No.1 shall be handed over death sentence. All along right from the cases of Bachan Singh v. State of Punjab17 and Machi Singh vs. State of Punjab18 the Hon'ble Supreme Court has held that 17 (1980) 2 SCC 684 18 (1983)3 SCC 470 Crl.A.No.228/2018 C/w Crl.A.No.211/2018 61 death sentence shall be imposed only in rarest of the rare cases. Previous planning, extreme brutality and exceptional depravity in commission of crime are the aggravating circumstances. The mitigating circumstances are age, earlier family background, present family background, type and level of education, socio- economic background including the conditions of poverty or deprivation, criminal antecedents, income and the kind of employment of the accused or his other factors such as history of unstable social behaviour, mental or psychological ailments, alienation of the individual. The above said information should be mandatorily available to the trial Court at the sentencing stage and accused should be given opportunity to lead rebuttal evidence for establishing all mitigating circumstances. In the present case, such evidence was not led by the prosecution nor the accused had the opportunity to lead evidence on the mitigating circumstances.
74. It is true that accused No.1 was already convicted in one case for a lesser offence and the injuries inflicted on the victim show that he has done his own elder brother to death in a very brutal manner. But the evidence on record itself shows that brothers had the rivalry for a long time. The deceased and his Crl.A.No.228/2018 C/w Crl.A.No.211/2018 62 wife were in government employment and they were very flourishing compared to accused No.1. The records further show that in the previous criminal cases the complainant had implicated accused Nos.1 and 2 along with their other family members and accused No.2 and the other family members were acquitted in those cases. In Crl.A.No.979/2012 reversing the acquittal order this Court convicted him for the offence punishable under Section 324 of IPC and sentenced to five and half months the period of detention which he had already undergone.
75. The apprehension of the complainant is that the state may give remission to accused No.1 in the sentence of life imprisonment and again accused No.1 may indulge in the similar offences against the complainant and his family members. Having regard to the nature of the offences and conviction of accused No.1 in the previous offences modifying the sentence of life imprisonment without remission for 20 years will meet the ends of justice. Therefore, the appeal of complainant regarding adequacy of sentence deserves to be allowed only to that extent. Crl.A.No.228/2018 C/w Crl.A.No.211/2018 63
76. For the aforesaid reasons Crl.A.No.228/2018 is liable to be dismissed and Crl.A.No.211/2018 deserves to be allowed in part. Hence the following:
ORDER
i) Crl.A.No.228/2018 is hereby dismissed. Conviction of accused No.1 is hereby confirmed.
ii) Crl.A.No.211/2018 is partly allowed.
iii) The impugned order of sentence of accused No.1 is
modified as follows:
a) For the offence under Section 302 of IPC, accused No.1 is sentenced to undergo imprisonment for life without any remission for a period of twenty years and fine of Rs.50,000/-.
b) In default to pay the fine amount accused No.1 shall undergo rigorous imprisonment for two years.
c) The judgment and order of the trial Court with regard to accused No.2, disposal of the properties and victim compensation is confirmed.
d) The trial Court shall issue modified conviction warrant accordingly.
Sd/-
JUDGE Sd/-
JUDGE PKN/AKC/KSR