Karnataka High Court
Raghu vs State Of Karnataka on 11 September, 2018
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 11TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.942 OF 2015
C/W
CRIMINAL APPEAL No.1001 OF 2015
CRIMINAL APPEAL No.1002 OF 2015
CRIMINAL APPEAL No.549 OF 2015
CRIMINAL APPEAL No.942 OF 2015
BETWEEN:
RAGHU
AGED ABOUT 30 YEARS,
S/O DASAN,
R/O KALLOTTUKANDIMANE,
MARADAIPALAM,
MATTANNUR, KANNUR DISTRICT,
KERALA STATE . ... APPELLANT
(BY SRI: D NAGARAJA REDDY, ADVOCATE)
AND
STATE OF KARNATAKA
THROUGH KUNDAPURA POLICE STATION,
UDUPI
2
REPRESETNED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE 560001. ... RESPONDENT
(BY SRI: I.S.PRAMOD CHANDRA, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT ORDER DATED
04.03.2015 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, UDUPI (SITTING AT KUNDAPURA) IN
S.C.NO.15 OF 2013 - CONVICTING THE APPELLANT/ACCUSED
NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
332,302 READ WITH SECTION 34 OF IPC. THE
APPELLANT/ACCUSED NO.1 IS SENTENCED TO UNDERGO LIFE
IMPRISONMENT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC. FURTHER THE APPELLANT/ACCUSED NO.1
IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 2
YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 332
READ WITH 34 OF IPC. THE APPELLANT/ACCUSED NO.1 PRAYS
THAT HE BE ACQUITTED.
*****
CRIMINAL APPEAL No.1001 OF 2015
BETWEEN:
STATE BY C .P. I
KUNDAPURA CIRCLE 576201. ... APPELLANT
(BY SRI: I.S.PRAMOD CHANDRA, SPP-II)
AND
RAJESH PUDUKUDI @ RAJU
3
S/O NARAYANAN,
AGED ABOUT 33 YEARS,
R/O RAJEEVA NIVASA,
KOLARI, MARADAIPALAM,
MATTANNUR,
KANNANUR DISTRICT,
KERALA STATE.670002. ... RESPONDENT
(BY SRI: NISHIT KUMAR SHETTY, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377
CR.P.C PRAYING TO MODIFY THE JUDGMENT AND ORDER
DATED 04.03.2015 PASSED IN S.C.NO.15 OF 2013 BY THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI (SITTING
AT KUNDAPURA), KUNDAPURA IN SO FAR AS IT RELATES TO
IMPOSING INADEQUATE SENTENCE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 307 READ WITH 34 OF IPC AND
IMPOSE ADEQUATE AND PROPER SENTENCE ON THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 307 READ WITH 34 OF IPC AND THE
RESPONDENT/ACCUSED NO.2 IS SENTENCED TO UNDERGO
IMPRISONMENT FOR 5 YEARS AND ALSO IMPOSED FINE OF
RS.10,000/- IN DEFAULT TO PAY FINE AMOUNT, TO UNDERGO
SIMPLE IMPRISONMENT FOR 1 YEAR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 307 OF IPC AND FURTHER THE
APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 2 YEARS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 332 R/W SECTION 34 OF IPC.
*****
CRIMINAL APPEAL No.1002 OF 2015
BETWEEN:
STATE BY C P I
KUNDAPURA CIRCLE-576201. ... APPELLANT
4
(BY SRI I.S.PRAMOD CHANDRA, SPP-II)
AND
1. RAGHU
S/O DASAN
AGED ABOUT 30 YEARS
R/O KALLOTTUKANDIMANE,
MARADAIPALAM,
MATTANNUR,
KANNANUR DISTRICT
KERALA STATE-670002
2. RAJESH PUDUKUDI @ RAJU
S/O NARAYANAN
AGED ABOUT 33 YEARS
R/O RAJEEVA NIVASA
KOLARI, MARADAIPALAM,
MATTANNUR,
KANNANUR DISTRICT
KERALA STATE-670002 ... RESPONDENTS
(BY SRI: D.NAGARAJA REDDY, ADVOCATE FOR R1
SRI: NISHIT KUMAR SHETTY, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) CR.P.C PRAYING TO
a) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 04.03.2015 PASSED IN S.C.NO.15
OF 2013 BY ADDITIONAL DISTRICT AND SESSIONS JUDGE,
UDUPI (SITTING AT KUNDAPURA), KUNDAPUR INSOFAR AS
ACQUITTING THE ACCUSED NO.1/RESPONDENT NO.1 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 307 AND 392 READ
WITH SECTION 34 OF IPC AND ACQUITTING ACCUSED
5
NO.2/RESPONDENT NO.2 OF THE OFFENCES PUNISHABLE
UNDER SECTIONS 302 AND 392 READ WITH 34 OF IPC.
b) SET ASIDE THE AFORESAID JUDGMENT AND ORDER OF
ACQUITTAL DATED 04.03.2015 PASSED IN S.C.NO.15 OF 2013
BY ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI
(SITTING AT KUNDAPURA), KUNDAPURA, INSOFAR AS
ACQUITTING THE ACCUSED NO.1/RESPONDENT NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 307 AND 392 READ
WITH 34 OF IPC AND ACQUITTING ACCUSED/RESPONDENT
NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302
AND 392 R/W 34 OF IPC, BY ALLOWING THIS CRIMINAL APPEAL
AND
c) CONVICT AND SENTENCE THE ACCUSED/RESPONDENT NO.1
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 307 AND
392 READ WITH 34 OF IPC AND ACCUSED/RESPONDENT NO.2
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND
392 READ WITH 34 OF IPC IN S.C.NO.15 OF 2013 DATED
04.03.2015 PASSED BY ADDITIONAL DISTRICT AND SESSIONS
JUDGE, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA.
*****
CRIMINAL APPEAL No.549 OF 2015
BETWEEN:
RAJESH PUDUKUDI ALIAS RAJU
AGED ABOUT 32 YEARS
S/O NARAYANAN
R/AT RAJEEVA NIVASA
KOLARI, MARADAIPALAM,
MATTANUR,
KANNANUR DISTRICT
KERALA STATE-670702 ... APPELLANT
(BY SRI: NISHIT KUMAR SHETTY, ADVOCATE)
6
AND
STATE OF KARNATAKA
BY C.P.I. KUNDAPURA CIRCLE,
KUNDAPURA,
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-01
... RESPONDENT
(BY SRI: I.S.PRAMOD CHANDRA, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:4.3.2015,
PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE,
UDUPI (SITTING AT KUNDAPURA), IN S.C.NO.15 OF 2013-
CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 307 AND 332 READ
WITH 34 OF IPC. THE APPELLANT/ACCUSED NO.2 IS
SENTENCED TO UNDERGO IMPRISONMENT FOR 5 YEARS AND
TO PAY FINE OF RS.10,000/- IN DEFAULT OF PAYMENT OF FINE
AMOUNT SHALL UNDERGO SIMPLE IMPRISONMENT FOR 1 YEAR,
FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 OF IPC.
FURTHER, APPELLANT/ACCUSED NO.2 IS SENTNECED TO
UNDERGO RIGOROUS IMPRISONMENT FOR 2 YEARS FOR THE
OFFENCES PUNISHABLE UNDER SECTION 332 READ WITH 34 OF
IPC. AND THE APPELLANT/ACCUSED PRAYS THAT HE BE
ACQUITTED.
*****
THESE CRIMINAL APPEALS COMING ON FOR HEARING
THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
7
JUDGMENT
The case of the prosecution, in brief, is as follows:
That accused Nos.1 and 2 are residents of the State of Kerala. They left Kerala by train on 28.05.2010 and reached Mayura Guest House at Kollur, Karnataka. They stayed in the lodge for a day. They left Kollur in the afternoon of 29.05.2010 by bus, reached Kundapura on the next day, that is on 30.05.2010. They purchased a knife by paying Rs.125/- from the shop of CW.9 at Kundapura. They collected an iron rod. On 31.05.2010 at 2.00 a.m., they committed robbery of Rs.500/-
and two mobile phones at a petrol bunk after assaulting two persons, who were sleeping in front of the petrol bunk. They also attempted to break open the lock of the house in the same locality. At that time, a person was approaching on the same road. He was restrained and robbed of two mobile phones. Thereafter, they reached an area, known as Sangam Bridge. PW.1 the then Circle Inspector of Byndoor was on his patrolling duty, along with the incharge driver of his vehicle. They received information by wireless, that two unknown persons are 8 engaged in committing robbery in the surrounding area of Kundapura and local limits of Kundapura Police Station. That the Kundapura Police are searching for them. At about 3.00 a.m. on 31.10.2010, PW.1 reached Kundapura town and was patrolling therein. He was also informed that other police officials like ASI, Sri Subbanna and others were also engaged in searching for the suspected robbers. Further information was received through wireless, that two suspected persons were moving near Sangam Bridge. Accordingly, PW.1 and the driver Sri Sridhar reached the dumping yard near Sangam Bridge in their jeep. They saw two persons who were running towards the dumping yard. PW.1 shouted at them to stop, by disclosing his identity that he is the Circle Inspector of Police. Accused No.2 committed assault on PW.1. To rescue himself and to arrest the said person, PW.1 caught hold of him in his arms. They were rolling on each other. At that time, the driver Sridhar came to the rescue of PW.1 and attempted to hold accused No.2, who was attempting to commit assault on PW.1 with a knife. At that time, the other person, namely accused No.1, came there, picked up the knife, which had fallen from the hand of accused No.2, and stabbed the 9 deceased Sridhar on the neck, back and caused various injuries. As a result of the injuries, the deceased collapsed and fell down. PW.1 took out his pistol from the pouch and tried to fire. Unfortunately, the bullet was stuck in the muzzle and he could not fire. In this process, PW.1 slipped and fell down and the pistol dropped from his hand. Accused No.2 picked up the said pistol and started running away from the said place. At that time, other police officers who were on patrolling duty namely CW.28 to CW.31, came to the spot. They chased them for a distance. The victim Sridhar was shifted to Chinmayi Hospital with the help of CW.29 and CW.30. Later on they came to know, that the injured driver, died in Chinmayi Hospital at about 4.30 p.m. as a result of the stab injuries sustained by him. At about 5.00 a.m., the local people of Kundapura and the patrolling police had caught hold of accused Nos.1 and 2 at Sangam Bridge, when they were trying to run away towards Bhatkal. They disclosed their identity as Raghu - accused No.1 and Rajesh
- accused No.2. They are the residents of Kannur District, Kerala State. That accused No.1 is responsible for committing assault on the deceased Sridhar and accused No.2 is responsible 10 for committing assault on PW.1 Circle Police Inspector. They were thereafter detained in the Police Station. CW.42 the then Circle Inspector of Police, Kundapura received information that the police are engaged in patrolling duty to search two suspected persons who were engaged in committing robbery at petrol bunk and other localities. He received information that two unknown persons had committed assault on PW.1 and the driver Sridhar and as a result of which the injured driver died at Chinmayi Hospital. By that time, accused Nos.1 and 2 were arrested by the Police and were kept in the Police Station. In the interregnum, PW.1 had already lodged a complaint with CW. 26 who registered the case at the Police Station, in Crime No.225 of 2010 against both the accused for the offences punishable under sections 353, 332, 307, 302 read with section 34 of the Indian Penal Code. FIR was transmitted to the court. Thereafter, investigation was taken by CW.42. Search was conducted. A sum of Rs.500/- and Rs.4,225/- were recovered from the person of accused No.1 and a train ticket disclosing the fact that he had traveled from Thalachery to Byndoor by train. Blood stained lungi worn by accused Nos.1 and 2 were 11 recovered. A sum of Rs.1,300/- was recovered from accused No.2. The confessional statements of both the accused were recorded with the help of translation, by CW.38. Based on the voluntary statement of accused No.1, they went to the shop from where the knife was purchased. They also went to the place of incident, where the blood stained clothes were concealed. Panchas CW.7 and CW.8 were procured and the articles were seized in their presence. Blood stained soil was also collected for further investigation. The blood stained knife was recovered at the instance of accused No.1. At the behest of accused No.2, at a distance of 200 meters, a pistol which belonged to PW.1 was recovered from the stone pitched heap. Further, accused No.2 disclosed that he will also produce the iron rod used by him for committing the assault. He led the Investigating Officer and two panchas, CW.7 and CW.8 to a distance of 20 feet and produced an iron rod and a mobile which were seized. Statements of the witnesses were recorded. On completion of the investigation, a charge-sheet was laid before the Court. Charges were framed against accused Nos.1 and 2 for the offences punishable Under Sections 332, 307, 392, 302 read 12 with section 34 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.
2. In order to prove its case, the prosecution examined 25 witnesses and marked Exhibits P1 to P22 along with 14 material objects. The defence produced Exhibits D1 to D23 in support of their case.
3. By the impugned judgment, accused No.1 was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment. Accused No.2 was convicted for the offence punishable under section 307 of the Indian Penal Code and sentenced to undergo imprisonment for five years and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for one year. Accused Nos.1 and 2 were convicted for the offence punishable under section 332 read with section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. 13
4.(i) Criminal Appeal No.549 of 2015 is filed by accused No.2 seeking to set aside the judgment and order of conviction with regard to sections 307 and 332 of the Indian Penal Code.
(ii). Criminal Appeal No.942 of 2015 is filed by accused No.1 seeking to set aside the judgment and order of conviction passed against him for the offences punishable under sections 302 and 332 of the Indian Penal Code.
(iii). The State has filed Criminal Appeal No.1001 of 2015 seeking enhancement of sentence for the offences punishable under section 307 read with section 34 of the Indian Penal Code, so far as accused No.2 is concerned.
(iv). The State has also filed Criminal Appeal No.1002 of 2015 against both the accused, seeking for conviction of accused No.1, for the offences punishable under sections 307 and 392 read with section 34 of the Indian Penal Code and conviction of accused No.2, for the offences punishable under section 302 and section 392 read with section 34 of Indian Penal Code. Further, prayer is made to reverse the finding of acquittal 14 of accused No.1 for the offences punishable under section 307 and section 392 read with section 34 of the Indian Penal Code and acquitting accused No.2 for the offences punishable under section 302 and section 392 read with section 34 of the Indian Penal Code and to convict them for the said offences.
5. Since the appeals arise out of the very same judgment of conviction and sentence, at the request of learned counsels, the appeals are taken up for consideration together.
6.(a) The evidence led in by the prosecution, in brief, is as follows:
PW.1 was the then Circle Inspector of Police at Byndoor. He has stated in his evidence that on the night of 30.05.2010, he was on patrolling duty along with the in charge Driver namely Sridhar. He received information on wireless that two unknown persons are engaged in committing robbery in the surrounding area of Kundapura and the local limits of Kundapura police station and that the police are searching for them. He received a further message through wireless, that two suspected persons are moving near Sangam Bridge. Accordingly, PW.1 and the 15 driver Sridhar, reached the dumping yard near Sangam Bridge and saw two persons running towards the dumping yard. They shouted at both of these persons to stop. PW.1 disclosed his identity as Circle Inspector of Police. The accused persons did not stop. They chased them in the jeep. Thereafter, the jeep was halted and PW.1 came out of the jeep and while chasing the accused, caught hold of accused No.2. There was a scuffle. The accused No.2 pulled out a knife and attempted to stab PW.1. At that time, the deceased, who was in the jeep came there and tried to separate both of them. The knife fell down. Accused No.1 who was slightly ahead, came there, picked up the knife, and stabbed the deceased Sridhar on two occasions on his back. PW.1 removed his gun and attempted to shoot. The gun was stuck. He could not fire. He fell down. The gun dropped. Immediately thereafter, accused No.2, picked up the gun and both accused Nos.1 and 2, ran away from the scene. PW.18 and others came to the scene of offence. Two of them shifted the injured Sridhar to Chinmayi Hospital. Along with the help of the local villagers, they went in search of the accused and caught them thereafter.16
Various suggestions were put to PW.1 which were denied. The discrepancy with regard to the treatment given to PW.1 was also questioned. Except this, nothing worthwhile has been elicited in the cross-examination.
(b). PW.2 is the local villager who was present at the time of arrest of the accused. He is the witness to Ex.P2, the arrest mahazar and for seizure of M.O.1 - lungi, M.O.2 - lungi and M.O.3 - Rs.500/- note, Ex.P3 spot mahazar and seizure mahazar for M.O.4 - knife with handle, M.O.5 - blood stained soil, M.O.6 - natural soil, Ex.P4 sketch, Ex.P6 railway ticket, Ex.P7 seizure mahazar for M.O.7 - pistol, M.O.8 -bullet and M.O.10 - shirt, Ex.P8 seizure mahazar for M.O.9 - iron rod, M.O.11 - Nokia mobile, Ex.P9 seizure mahazar for Mayura Guest House register book and Ex.P10 ledger book of Mayura Guest House.
(c). PW.3 and PW.4 are brothers and local villagers who assisted in apprehending both the accused. 17
(d). PW.5 is the owner of the shop who sold the knife to the accused.
(e). PW.6 was working as a Cleaner, who was sleeping in the bus parked near the petrol bunk. That accused No.2 robbed him of Rs.500/- as well as his Nokia mobile phone.
(f). PW.7 is a witness to Ex.P2, the arrest mahazar and for seizure of M.O.1 - lungi, M.O.2 - lungi and M.O.3 - Rs.500/-
note, Ex.P3 spot mahazar and seizure mahazar for M.O.4 - knife with handle, M.O.5 - blood stained soil, M.O.6 - natural soil, Ex.P4 sketch, Ex.P7 seizure mahazar for M.O.7 - pistol, M.O.8 -bullet and M.O.10 - shirt and Ex.P8 seizure mahazar for M.O.9 - iron rod, M.O.11 - Nokia mobile.
(g). PW.8 is the witness to inquest mahazar in terms of Ex.P11.
(h). PW.9 is the relative of the deceased who identified the dead body.
18
(i). PW.10 is the Manager of the Lodge wherein both the accused stayed, after coming by train. He is a witness to Ex.P9.
(j). PW.11 is the attender of the Lodge.
(k). PW.12, Vivek is another victim of the acts of the accused. That the accused took away his mobile phone.
(l). PW.13 is the Doctor who examined accused Nos.1 and 2 and is a witness to Ex.P12 and Ex.P13.
(m). PW.14 is the Doctor who examined PW.1. He is a witness to Ex.P14.
(n). PW.15 is the Doctor who conducted the postmortem. She has submitted the postmortem report in terms of Ex.P15, wherein the opinion with regard to the cause of death is that the death is due to shock and haemorrhage due to fatal stab injury. She has also signed the wound certificate Ex.P16.
(o). PW.16 is another Doctor who submitted the Forensic Science Laboratory report in terms of Ex.P17 and Serology Report Ex.P18.
19
(p). PW.17 is the then Head Constable of Kundapura Police Station, who registered the complaint and is a witness to Ex.P19.
(q). PW.18 is an eyewitness along with PW.1. The prosecution relies on the evidence of this witness to bring home the guilt of the accused. PW.18 was the ASI at the Kundapura Police Station. He has stated that while he was on night duty on 30.05.2010, he and his staff received information that two unknown persons were involved in committing robbery at several places in Kundapura town. He immediately called his police staff CW.29 to CW.33 who were police constables. When they reached Sangam Junction at about 3.00 a.m., on the morning of 31.05.2010, two unknown persons approached them. He made an enquiry with them. Suddenly, one of the two unknown persons tried to assault them with an iron rod, but they escaped. Later, the accused damaged the right side glass portion of the jeep and backside iron net of the jeep and both the accused ran away, towards Sangam cross. Immediately, PW.18 passed the information about the incident to all the police stations through 20 wireless. Thereafter, they reached Sangam cross by attempting to chase the accused. When they went near Sangam cross, they saw PW.1 and accused No.2 were rolling on one another near the dumping yard. When this was taking place, the deceased tried to separate accused No.2 from PW.1. Immediately, accused No.1 came there, picked up the knife and stabbed on the back of the deceased. Immediately, PW.1 took out his pistol from the pouch and tried to fire at the accused. He could not do so, because the bullet was stuck in the muzzle of the pistol. It slipped from his hand and fell on the ground. Accused No.2 snatched the pistol and ran away from the place. Thereafter, the injured Sridhar was shifted to Chinmayi Hospital in the police jeep with the assistance of CW.29 and CW.33. It was about 4.30 a.m. PW.1 also sustained injury on his left hand. The other police personnel continued to search for the suspected accused. Later on, both the accused were caught at 5.30 a.m. near Sangam Bridge, with the help of local villagers and thereafter, they were brought to the police station.
The witness was cross-examined in detail. Various suggestions put to him, were denied. It was also suggested that 21 the witness had seen the incident only through the torch light he had brought. The said suggestion that he could see the incident only because of the light from the torch was denied. In fact it was reiterated that the light was from the stationary jeep from which he saw the entire incident.
(r). PW.19 is the Head Constable of Kundapura Police Station who submitted the First Information Report - Ex.P19 to the Court.
(s). PW.20 is the Police Constable of Kundapura Police Station who handed over the seized articles to the Forensic Science Laboratory, Mangalore.
(t). PW.21 is the Police Constable of Kundapura Police Station who handed over the seized articles to the Forensic Science Laboratory, Bengaluru.
(u). PW.22 is the Police Sub-Inspector who conducted the inquest mahazar in terms of Ex.P11.
22
(v). PW.23 is the Police Constable who shifted the dead body of Sridhar, from Chinmayi Hospital to the Government Hospital for postmortem.
(w). PW.24 is the translator who translated the voluntary statement of accused from Malayalam to Kannada.
(x). PW.25 is the Circle Police Inspector who conducted the investigation.
7. Sri Nishit Kumar Shetty, the learned counsel appearing for accused No.2 contends, that there are various infirmities in the case of the prosecution, that have been lost sight of, by the trial court. That in view of the various infirmities, the conviction passed by the trial court cannot be sustained. He contends that the wound certificate in terms of Ex.P14 of PW.1 has been tampered. That the time of examination has been corrected. That the place of incident has also not been mentioned in the history of the assault in the wound certificate Ex.P14. Therefore, the entire case of the prosecution has to be disbelieved.
23
8. On consideration of the contentions advanced, we are unable to accept the same. We have examined the original wound certificate at Ex.P14. There seems to be some correction so far as the time of examination is concerned. But that by itself would not lead to the conclusion that the entire case of the prosecution becomes faulty. Minor errors in the prosecution case are not fatal. More over, it is the wound certificate of PW.1, who is the complainant. There is a narration in Ex.P14 with regard to the injuries sustained by PW.1, which is supported by his evidence. The further contention that the history of the incident has not been mentioned, would not be of much relevance. PW.1 being a Police Inspector, was treated for the injuries that he had sustained. What has been stated with regard to the cause of injury is that there is an alleged assault. We are of the view that the same would satisfy the court, so far as Ex.P14 is concerned. It is not necessary that the entire history of the assault, where it took place, how it took place, who assaulted whom, should be narrated. A detailed minute narration in the wound certificate is uncalled for. Ex.P14 is only a document that would indicate the 24 injuries sustained by the concerned person. Therefore, even if there is a mistake or error in not mentioning detailed particulars, the same by itself would not be fatal to the case of the prosecution. Therefore, we are of the view that the same would not have any bearing on the case of the prosecution.
9.(a) The further contention is based on Ex.P5, which is a diary maintained by PW.1. It is herein contended that the entry in Ex.P5 for the date 31.05.2010, was an entry made at 7.00 a.m. The narration of the acts which the police officers did on the date of the incident had been narrated therein. The same is in line with the evidence led-in by the very witness namely, PW.1. However, what is contended is that in the subsequent page at page No.271 of the paper book, an entry has been made that he participated in the further investigation as well as in the inquest proceedings. Therefore, it is contended that his presence was totally unnecessary for being a party to the said proceedings. That he was not the Investigating Officer. Therefore, he had no role to play. Therefore, when he has stated these facts in the diary, the same is only a creation of the document by the prosecution.
25
(b). We are unable to accept such a submission. Firstly, it has to be borne in mind that Ex.P5 is not a Station House Diary. This is a booklet maintained by the witness for himself in order to keep a record of his movements. Notwithstanding the same, the contention that because he participated in certain investigation, that the same has been cooked up by the prosecution, has no relevance with one another. In fact, on examination of the notings made therein, the facts narrated by the witness are in tune with the evidence led in by him. There is no law, that prohibits him from being present when certain acts or investigation are taking place. More importantly, it is only a narration of all the acts that he did in discharge of his official duties. Therefore, to conclude that these notings have to be read and construed as being a document that is created by the prosecution is very hard to believe. In fact, Ex.P5 was marked through the evidence of PW.1 himself, in order to indicate the various acts he performed with regard to the incident at large. Therefore, we are unable to hold that Ex.P5 is a concocted document.
26
10.(a) The next contention is that there was a substantial delay in offering medical examination to the accused. The wound certificate of accused No.1 is marked as Ex.P12. Five injuries have been noted. Injury No.3 is stated to be grievous while others are simple in nature. Injury No.3 is loss of upper three incisor teeth. The Learned counsel for the appellant contends that the accused was sent up for medical examination only at 5.00 p.m. on 31.05.2010 as per Ex.P12. Ex.P13 is the wound certificate of accused No.2. He was also examined at 5.30 p.m. on 31.05.2010. All the injuries are noted to be simple in nature. It is, therefore, contended by the appellants' counsel, that the burden of explaining the injuries on the accused is on the prosecution. They have failed to do so. Therefore, an adverse inference would have to be drawn against them.
(b). However, the material on record would indicate otherwise. The evidence of PW.17, who was the Incharge Police Officer who registered the complaint, would have a bearing on this contention. He registered the complaint at about 6.00 a.m. on 31.05.2010. In the cross-examination, a suggestion was 27 made to him that three teeth of accused No.1 were broken. He has denied the suggestion. Therefore, as at 6.00 a.m. on 31.05.2010, there was no injury so far as three incisor teeth of accused No.1 is concerned. Therefore, the question of he having sustained this injury during the scuffle or at the relevant time, is opposite to the evidence of PW.17. Right up to the time when the complaint was filed, none of the three teeth of the accused No.1 were damaged or otherwise, in view of the cross- examination of PW.17. Therefore, the contention that the prosecution has to explain the injuries has since been answered through the cross examination of PW.17.
11.(a) The further contention is based on the post mortem report vide Ex.P15. It is contended that the death of the deceased was not due to the injuries caused to him, but as a result of gunshot injury. That there is no material at all to indicate that the gun was spoiled or could not fire any bullet. That no evidence has been led in by the prosecution to show that the gun could not fire. In fact it is even contended that 28 PW.1 has not even sought for recovery of the gun from Court custody.
(b). We therefore have in detail considered Ex.P15, the postmortem report. The cause of death is, as stated by the Doctor, is due to shock and haemorrhage due to fatal stab injury. The doctor has been examined as PW.15. She has explained the injuries sustained by the deceased. There is not even a suggestion put to the witness that the injury caused on the deceased could be caused by a gunshot injury. In the absence of any suggestion to the Doctor, such a contention cannot be raised for the first time before this Court. Even otherwise, having considered the postmortem report, we do not find any injury that could be relatable to a gunshot injury. There is not even an injury with regard to any gunshot injury. All the injuries sustained by the deceased are from the knife M.O.4. There are no entry or exit wounds, which normally occur in case of a gun shot injury. Therefore, the contention that the death could have occurred due to a gunshot, is not backed by any evidence or material on record.
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12.(a) It is further contended that the prosecution has withheld the evidence of CWs 29 to 33, who are said to be eye witnesses, in support of their case. Therefore, their case has to be disbelieved. That along with PW.18, CWs 29 to 33 were also witnesses to the incident. They have not been examined.
(b). The law does not postulate that every witness cited as a charge sheet witness should necessarily be examined as a witness during trial. It is left to the discretion and the best Judgment of the Prosecutor to examine such a witness as he deems fit and appropriate. In the instant case, the evidence of the eye witnesses PWs 1 & 18 have been recorded. They speak of the incident in its entirety. Therefore, merely because the other eye witnesses have not been examined, does not by itself render the prosecution case to be doubtful. If the prosecution is of the view that the evidence of PWs 1 & 18 are sufficient to prove their case, such a discretion cannot be doubted. Even otherwise, we do not find any prejudice that is caused to the accused, in view of the non-examination of the cited charge sheet witness.
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13.(a) Sri D.Nagaraja Reddy, learned counsel appearing for accused No.1 supports the contention of the learned counsel appearing for accused No.2. He pleads that PWs 2 & 7 are the common mahazar witnesses for Exs.P-2, P-3, P-7 and P-8. Therefore, they cannot be believed. In support of his submission, he contends that the evidence on record would indicate that there were criminal cases against both these witnesses, therefore they have supported the case of the prosecution.
(b). We have considered the evidence on this point, in particular reference to PW.2. In the cross-examination, the witness states that so far as these panch witnesses are concerned, certain cases were lodged against them, much after they were panch witnesses to this case. Therefore, the contention that they were already accused in some other case and therefore they were used as witnesses in this case to support the prosecution, runs contrary to the evidence of PW.2. Hence, we are unable to accept this contention. 31
14.(a) So far as the appeals filed by the State in Criminal Appeal Nos.1001 of 2015 and 1002 of 2015 are concerned, the learned State Public Prosecutor -II contends, that the acquittal of accused No.1 for the offence punishable under Section 392 read with Section 34 of IPC is improper. That the acquittal of accused No.2 for the offence punishable under Section 392 read with Section 34 of IPC is also improper. So far as both the accused are concerned, the trial Court committed an error in acquitting both the accused for the offence punishable under Section 392 read with Section 34 of IPC. That the evidence led-in by the prosecution would clearly indicate that the Pistol MO.7, was recovered at the behest of accused No.2. Therefore, they had indulged in stolen property. That the evidence is clear and cogent. Acquitting them of the said offence is improper. In support of his contention he submits that the trial Court having convicted both the accused for the offence punishable under Section 332 read with 34 IPC, necessarily they are required to be convicted even for the offence punishable under Section 392 and so also under Section 307 read with 34 IPC.
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(b). We have considered the contentions in detail. The material on record would indicate that all the acts were committed by both the accused on that day. In the first act, they robbed money from the petrol bunk as well from the person who was near the petrol bunk namely PW.12. Thereafter, when they were confronted by the police, namely, PW.18 and his staff, where they caused extensive damage to his jeep. On the third occasion, when PW.1 tried to catch him, the present incident occurred. It is submitted that so far as the previous cases are concerned, cases have been registered against the accused and they have been convicted in one case and acquitted in another. However, these are only oral submissions and no material is placed for consideration before this Court. Having re-considered the evidence of PWs 1 & 18 who are the eye witnesses, what emerges is the following:-
PW.1 and the deceased chased the accused. After they caught up with the accused, the jeep was stopped near the accused and PW.1 went out and caught hold of accused No.2. They indulged in a fight. Accused No.2, at that point of time, pulled out the knife in order to cause injury to PW.1. Seeing this 33 the deceased, the driver, came out of the vehicle and tried to break the fight. In the fight, the knife fell down. Accused No.1, picked up the knife and stabbed on two occasions on the back of the deceased. Thereafter, PW.1 removed the gun from his pouch and attempted to shoot. The gun did not fire. In the scuffle, the gun fell down. Accused No.2 picked up the gun and he along with accused No.1 ran away from the scene of offence. Therefore, it is clear that so far as accused No.2 is concerned, there was no intention on his part to commit the offence under Section 302 IPC. Accused No.2 was the person who was carrying the knife. He did not pull out the knife at the earliest point of time either to stab or to commit the murder of PW.1. It is only when PW.1 caught hold of him, it is at this stage, he removed the knife. Therefore, it cannot be said that there was any intention by accused No.2 to commit the murder of the deceased. However, the incident would clearly indicate that accused No.2 was very well aware that using a knife against the deceased is likely to cause a vital injury that would probably lead to death. Therefore, the trial Court was justified in holding that accused No.2 was guilty of the offence punishable under Section 34 307 of IPC. Hence, we do not find any ground to interfere in the conviction of accused No.2 under section 307 of IPC.
15. So far as accused No.1 is concerned, it is he who picked up the fallen knife and clearly stabbed the deceased on two occasions on his back. At that given point of time, accused No.1 was alone. No police officer had accosted him. He was free to run away. He did not do so. He was at a distance of 25 to 30 ft. from where PW.1, the deceased and accused No.2 were present. He goes to the scene of offence, picks up the fallen knife and deliberately stabs the deceased. The evidence led-in by the prosecution points to this act of accused No.1. Therefore, the conviction of accused No.1 for the offence punishable under Section 302 is based on the material and evidence led-in by the prosecution. The evidence and the material led-in by the prosecution for the offence punishable under Sections 302 and 307 of IPC on the accused are beyond reasonable doubt. Hence, we find no good ground to interfere with the conviction imposed on both these accused for the offence under Section 307 on accused No.2 and under Section 302 against accused No.1. 35
16. The prosecution has also proved beyond reasonable doubt the involvement of both the accused for the offence punishable under Section 332 read with 34 of IPC. PW.12 the police officer was discharging his official functions. The same were hampered by the involvement of accused No.1 as well as accused No.2. Therefore, the conviction under Section 332 read with 34 IPC is just and proper and no interference is called for.
17. So far as the offence punishable under Section 392 read with 34 of IPC is concerned, both the accused have been acquitted. MO.7 was recovered based on the voluntary statement of accused No.1. He led the Investigation Officer to a place which was 200 meters away from the spot of occurrence, wherein the pistol was recovered. The undisputed evidence would indicate that when the pistol fell down from the hand of PW.1, it was accused No.2 who picked up the pistol and ran away. The recovery of the pistol is made at the instance of accused No.1. The trial court while considering the charge under Section 392 of IPC, was of the view that if at all the accused were habitual offenders in committing the robbery they would 36 have continued to be in possession of other deadly weapons until they reached Bhatkal towards which they were running. We are unable to accept the reasoning of the trial Judge. It is the imagination of the Judge. The question whether they were habitual offenders and would always be in possession of other deadly weapons, is neither the case of the prosecution nor what has been pleaded. It is a series of acts, committed by the accused on one particular night, one after the other. In the instant case, four acts were committed by both the accused in one night itself.
18. The further reasoning of the trial court is that after recovery of MO.7, the same would have to be sent to the FSL to find out whether the gun was working and whether bullets could be fired or bullets were struck in the muzzle. We are of the considered view that the functioning of the gun, is irrelevant. Whether the gun was working or not working, has no relevance to a charge under Section 392 of IPC. Section 392 is referable to robbery. The material on record would clearly indicate that accused No. 2 picked up the pistol and ran away. It is recovered 37 at the instance of accused. No.1. Therefore, the reasoning of the trial Judge is unacceptable. In view of the independent evidence led-in by the prosecution, we are of the view that the trial Court committed an error in acquitting the accused under Section 392 of IPC. On considering the material and for the reasons assigned hereinabove, we reverse the said finding of the trial court. The acquittal of both the accused is set aside. We convict both the accused for the offence punishable under Section 392 read with Section 34 IPC. The offence is committed between sunset and sunrise. Therefore, the punishment as contemplated is that the sentence could extend up-to a period of 14 years. However, keeping in mind the totality of facts and the circumstances involved and the manner in which the offence has taken place, we deem it just and necessary to sentence both the accused for the offence punishable under Section 392 IPC read with Section 34 of IPC for a period of 7 years each along with fine of Rs.25,000/- each.
19. So far as the sentence is concerned, the learned State Public Prosecutor - II, contends that the sentence awarded 38 on accused Nos. 1 & 2 for the offence punishable under Section 307 IPC is inadequate. That he should be punished for a higher period than what the trial Court has sentenced him to.
20. Having considered the material evidence on record and the manner in which a series of acts have been committed by both the accused in one single night, we are of the view that it would be just and proper to enhance the imprisonment by a further period of two years namely, to be sentenced for a period of 7 years in all, for the offence punishable under Section 307 IPC. The fine amount also requires to be enhanced to a sum of Rs.25,000/-.
For the aforesaid reasons, we pass the following:-
ORDER
1) Criminal appeal 549 of 2015 filed by accused No.2 and Criminal Appeal No.942 of 2015 filed by accused No.1 are dismissed.
2) Criminal No.1001 of 2015 and 1002 of 2015 filed by the State are partly allowed.39
3) The conviction of accused No.2 for the offence punishable under Section 307 IPC is confirmed. The sentence awarded on him is modified. He is sentenced to undergo imprisonment for a period of 7 years and to pay a fine of Rs.25,000/- within a period of four weeks from the date of receipt of a copy of this order. In default of payment of fine, he shall undergo further imprisonment for a period of one year.
4) The Judgment of conviction and sentence awarded by the trial Court on both the accused for the offence punishable under Section 332 read with Section 34 of IPC is confirmed.
5) The Judgment of conviction and sentence awarded on accused No.1 for the offence punishable under Section 302 IPC is confirmed.
6) The order of acquittal passed by the trial Court for the offence punishable under Section 392 read with 40 section 34 of IPC on both the accused are set aside.
Both the accused are convicted for the offence punishable under Section 392 read with Section 34 IPC. They are sentenced to undergo imprisonment for a period of 7 years and to pay a fine of Rs.25,000/- each and in default of payment of fine to undergo further imprisonment for a period of one year.
7) The substantive sentences to run concurrently.
8) The accused are entitled for set off for the period of custody undergone by them.
The appeals are disposed off accordingly.
Sd/- Sd/-
JUDGE JUDGE
Bss/rsk/-