Karnataka High Court
K.N. Gopala Krishna vs The State Of Karnataka on 27 October, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 27TH DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.31 OF 2012
BETWEEN:
1. K.N. GOPALA KRISHNA
S/O NEELAIAH
AGED ABOUT 37 YEARS
2. VENKATESH @ PAI
S/O NEELAIAH
AGED ABOUT 33 YEARS
3. CHANNEGOWDA
S/O BULARI NINGEGOWDA
AGED ABOUT 43 YEARS
4. RAGHU
S/O NAGARAJU
AGED ABOUT 22 YEARS
ALL ARE RESIDING AT KONANAHALLI TITTU
M J EXTENSION, MANDYA. ... APPELLANTS
(BY SRI C H JADHAV, SENIOR ADVOCATE FOR A1 TO A3
SRI TOMY SEBASTIAN, SENIOR ADVOCATE FOR A4)
2
AND:
THE STATE OF KARNATAKA
BY MANDYA RURAL POLICE STATION
MANDYA DISTRICT,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
HIGH COURT BUIDLINGS,
BENGALURU - 560 001. ... RESPONDENT
(BY SMT NAMITHA MAHESH B.G., HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED 18.11.2011 PASSED
BY THE ADDITIONAL SESSIONS JUDGE, MANDYA IN
S.C.NO.31 OF 2010 - CONVICTING THE
APPELLANTS/ACCUSED NO.1, 2, 5 AND 6 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH
SECTION 34 OF INDIAN PENAL CODE. THE
APPELLANTS/ACCUSED NO.1, 2, 5 AND 6 ARE SENTENCED
FOR RIGOROUS IMPRISONMENT FOR LIFE FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH 34
OF INDIAN PENAL CODE. THE APPELLANTS/ACCUSED NO.1,
2, 5 AND 6 SHALL ALSO PAY A FINE OF RS.10,000/- EACH,
IN DEFAULT TO SUFFER FURTHER ONE YEAR RIGOROUS
IMPRISONMENT FOR THE ABOVE SAID OFFENCE.
*****
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, RAVI MALIMATH J., DELIVERED THE
FOLLOWING:
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JUDGMENT
The case of the prosecution is that there was a newly built Mahadeshwara Temple besides Mandya-Melukote Road at M.G. Road. About twenty days prior to the incident, Prasanna, K.N.Gopala Krishna and others, who are residents of the same layout put a mike-set loudly at night near the temple. When the brother of the complainant namely, the deceased and the complainant's sister's husband Narayana Swamy and others went to enquire about the same, Gopala Krishna and others quarreled with them. Consequently, both the parties had filed complaints and cases were registered. From that day onwards, Gopala Krishna and others had grudge against the complainant and others.
2. On 06.04.2009, at about 10.00 p.m., the deceased Boregowda went to water their agricultural lands near Shankar Mutt, besides the canal situated near the Rice Mill. The complainant made the deceased to stand near the cross of the canal of the mutt to watch whether anybody 4 may misuse the water to avoid them from using the water for their lands. When he was going to his fields, he suddenly heard the deceased shouting loudly. When he ran towards his brother, he saw K.N.Gopala Krishna, Venkatesh alias Pai, Shivarama, Nagesha, Channegowda, Raghu, Prasanna, Cable Mahadeva, Manju, Raja Urf Auto Raja, Puttaswamy, near his brother. They were holding weapons like choppers and wooden clubs. Gopala Krishna, Venkatesh, Channegowda and Raghu were holding choppers and others were holding wooden clubs. They assaulted the deceased. When the deceased tried to ran away, they chased him and assaulted him and hacked him to death with the chopper. The deceased fell down in the canal. The accused verified whether he had died and thereafter went away. At that time Mahadeva and Kumar were also present near the complainant. After seeing the accused run away, they went to see the deceased. They saw the head of the deceased was completely wounded and blood was oozing. 5
3. At about 11.30 p.m., a complaint was filed before the Mandya Rural Police Station against eleven accused. A case was registered in Crime No.165 of 2009 for the offences punishable under Section - 143, 147, 148, 324, 323, 504 read with Section-149 of IPC. Investigation was taken up. Based on the subsequent statement made by the complainant, accused Nos.13 and 14 were added on in the charge-sheet. Thereafter, a charge-sheet was filed. The accused pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined 21 witnesses and marked Exs-P1 to P43(a) as well as 26 material objects. By the impugned judgment, accused Nos.1, 2, 5 and 6 were convicted for the offence punishable under Section 302 read with Section 34 Indian Penal Code and sentenced to undergo rigorous imprisonment for life alongwith payment of fine of Rs.10,000/- each and in default of payment of fine to further undergo a year's imprisonment. Out of the fine amount, Rs.25,000/- was directed to be paid to the legal 6 heirs of the deceased Aggrieved by the same, the accused have filed the present appeal.
5. Sri. C.H.Jadhav, learned Senior Counsel appearing on behalf of the counsel representing appellant Nos.1 to 3 viz., accused No.1, 2 and 5, contends that the impugned judgment of the trial court is erroneous and liable to be set-aside. That the trial court has totally misread the evidence. That the evidence led in by the prosecution does not establish proof beyond reasonable doubt. He contends that the evidence of the so-called eye witnesses cannot be accepted. That there was previous enmity between the accused and the deceased and therefore, the accused have been wrongly implicated. That both the eye witnesses have not seen the incident. That the prosecution has failed to prove the motive for the commission of the offence. That the offence took place at about 10.00 p.m., Therefore, the witnesses could not have seen the incident in the absence of light. Both the eye witnesses have also referred to the presence of CW-3, who is said to have also seen the incident. However, the prosecution has not examined him. 7 That the prosecution has deliberately not examined CW-3. Hence an adverse inference has to be drawn against the prosecution and in favour of the accused. Hence, he pleads that the evidence of the eye witnesses be discarded. If the evidence of the eye witnesses is discarded, the entire case of the prosecution would fail.
6. Sri. Tomy Sebastian, learned Senior Counsel appearing on behalf of the counsel representing appellant No.4 viz., accused No.6 contends that the medical evidence does not support the case of the prosecution so far as accused No.6 is concerned. That even if the case of the eye witnesses are to be accepted, the overt acts alleged against accused No.6 is that he assaulted the deceased on the left forearm. The post-mortem report in terms of Ex-P28 would indicate that the death was due to the chopped wounds. That the wound inflicted by accused no.6 is not a chopped wound, it is only an injury caused to the right forearm. Therefore, even if the prosecution case with regard to the eyewitnesses and medical evidence is to be accepted, accused no.6 cannot be held guilty of committing the 8 offence punishable under Section 302 of IPC. Hence, he pleads that the cause of death as noticed by the doctor would have to be differentiated with reference to the other accused. Hence, he pleads that the appeal be allowed by acquitting the accused.
7. On the other hand, the learned HCGP disputes the same. She contends that there are eye-witnesses to the incident. That their evidence is clear and cogent. That nothing worthwhile has been elicited in the cross- examination to disbelieve their statements. That the trial court has rightly appreciated the evidence and material on record. There is no perversity committed by the trial court that calls for any interference. Hence, she pleads that the appeal be dismissed.
8. Heard learned counsels and examined the records.
9.(a) PW.1 is the complainant. He is the younger brother of Boregowda. He is an eye witness to the incident. He has stated in his evidence that on 6-4-2009 at about 9 9.00 to 9.15 p.m. he went home. At that time, Boregowda who is his brother was not at home. On enquiry by the witnesses, the mother and the brother told him that the deceased had gone to the agricultural field for storing water to the field. The witness parked his two wheeler in the house and went by walk to the field. When he was nearing the cross-bridge near Shankatmutt, he saw CW.2 and CW.3. When he asked them, they told him that they had come for getting water to their lands. The deceased was found sitting on a slope 10 feet away from the said place. It was about 9.30 p.m. He told the deceased to sit in the said place while he would go to the agricultural field to give water to the lands. Thereafter he was proceeding to the agricultural field. After some distance he heard the screaming of the deceased. He saw all the accused persons near the deceased. Accused Nos. 1, 2, 5 and 6 were holding choppers. Accused Nos. 10 and 11 were holding pick axe, the remaining accused were holding clubs. Accused No.1 assaulted the deceased with a chopper on the right 10 shoulder and head. Accused No.2, assaulted the deceased with a machete on the right front portion of his head till the hind portion. Accused No.5 assaulted Boregowda, at that time, he lifted his left hand to avoid the hit and his left little finger was injured. Accused No.6 assaulted the deceased with a machete, on the internal part of the right shoulder.
(b). The other accused assaulted the deceased with clubs. He saw the incident from a distance of about 15 feet from the coconut tree near the Shankarmutt. When he went to the scene of occurrence, CWs 2 & 3 from the other side of the road and informed him of the incident. The witness told them that he has also witnessed the incident. He has clearly seen the incident since there was moonlight and also there were two street lamps nearby. When he went near his brother, he was dead.
(c). After the incident occurred he went to the house of his sister and brother-in-law and thereafter lodged a complaint with the concerned police. Thereafter, the police came to the spot at about 5.00 to 5.15 a.m. He showed the place of offence to the police. They prepared the spot 11 Mahazar vide Ex.P-2 the witness has signed on it Ex.P-2(a). The blood stains of the deceased was found at the scene of occurrence. The blood stained mud sample was taken by the police. He identified the same as MOs 1 and 2. The sealed bag containing lungi and the half-sleeve shirt was shown to the witness who identified the same as MOs 3 & 4. The unsealed bag containing the chopper was identified as MO.5. The sealed bags containing the chopper was shown to the witness which was held by accused No.1 and was marked as MO.6. That another chopper which was shown to him and was held by accused No.6 was marked as MO.7. Another chopper which the witness saw, which was held by accused No.5 was identified as MO.8. The pick-axes were identified as MOs.9 & 10. The clubs were identified as MOs 11 to 16.
(d). In the cross-examination it is elicited that neither the witness nor the accused own any land near the scene of the incident. On the road from Mandya City towards M.G.Layout there is a railway crossing. Immediately after the railway crossing the land of the 12 deceased is situated on the right side of the road. The water to agricultural land flows from the water canal from the western to the eastern direction. That when he heard his brother screaming he was about half a furlong away. After the assault, when he went there, the accused had disbursed. In the further cross-examination he has stated with regard to the dispute of playing of loudspeakers. That accused No.1 had given a complaint against this witness, his cousin sister and her husband and others. Four days thereafter, the deceased had given a complaint against the accused. He denied the suggestion that the witness had a grudge against the accused. He denied the suggestion that the 1st accused had alleged certain misappropriation against the witness. Therefore, the witness was suspended by the accused No.1. He denied the suggestion that there is a complaint regarding misappropriation against him. The witness states that during the tenure of 1st accused he was appointed and suspension order was revoked by accused No.1 himself. He has further narrated in the cross- examination that his sister had contested the Grama 13 Panchayat election against the 1st accused. She had won the said election. In the second election, both the 1st accused and his sister contested the election. His sister won the election. He denied the suggestion that there is political vengeance between the accused and them regarding the election.
10.(a) PW.2 is another eye witness to the incident. He has stated that on 6-4-2009, at about 9.00 p.m. when he was returning from his shop he met CW-3 who asked the witness about his wounded leg. He told the witness that he was going to get water for his lands near Shankarmutt. The witness told him that if he returns early, he will also join him. Hence, they were sitting on the canal platform. After sometime, the deceased Boregowda came there on a motorcycle and stated that he has also come to water his fields. Thereafter, the deceased went and sat on the slope near Shankarmutt. Thereafter PW.1 came there and he told Boregowda to stay there itself and he went for watering the field. The distance between the place where he was sitting is about 10 feet. Thereafter CW.1 came 14 there and he told Boregowda to stay there and he went to water the field. At that time, accused Nos. 2, 5 & 6 were coming towards the witness. They were holding choppers. On seeing them, the witness and CW.3 hid behind the fence. Accused Nos. 1, 2, 5 and 6 were armed with deadly weapons. Accused No.6 attacked the deceased with a chopper. Boregowda lifted his right hand to avoid the hit and his right hand was injured. Accused No.5 assaulted the deceased who suffered an injury to his left finger. Accused no.2 hit on the head of Boregowda with a chopper. Accused No.1 assaulted the deceased on his head with a chopper next to that injury. When the deceased turned Gopal Krishna-Accused No.1 attacked his back again with a chopper. The deceased fell down in the water. The remaining accused attacked the deceased on his back, shoulder, body and hand with the wooden clubs. Thereafter, all the accused went away by holding choppers and the wodden clubs. After they left, the witness and CW.3 went there within two minutes. By that time, the deceased had died. Thereafter, CW.1 came there. When 15 the witness started to explain about the incident CW.1 told him he had also seen the incident.
(b). The incident took place at about 10.00 to 10.15 p.m. There was bright moonlight and electric lamp was also there. The entire incident lasted about 2 to 3 minutes. About 20 days prior to the incident, there was a quarrel between Boregowda family and the accused No.1 - Gopala Krishna, due to the sound of the loudspeaker at the temple. In that background, the incident has taken place.
(c). That accused Nos. 10 and 11 were holding pick-axe and the rest of the accused were holding clubs, choppers etc. He identified MOs 5 to 10. At the time of the incident, there was about 3/4th water in the canal. There was blood stain on the slope of the canal. In the cross- examination, he denies the suggestion that he was working on wages prior to the incident. He has admitted that he had met with an accident on 22-3-2009 and was admitted to the hospital as an inpatient till 26-3-2009 in Unit Health Complex, Mangaluru. His foot was wounded. At the time of 16 discharge from the hospital, the foot was bandaged and the Doctor had instructed him not to walk fast for 3 weeks. He went to the village, the next day of his discharge. He denies the suggestion that he could not walk. He admits that he does not have any land near the split canal. CW.3 has a land there. He identified accused Nos. 2, 5 & 6 coming from the road in front of Shankarmutt. On seeing them the witness became afraid and hid. The embankment was about 10 to 15 feet away. The accused No.6 attacked first on the right hand of Boregowda, when Boregowda was standing. Thereafter, he was attacked by pick-axes by the other accused. He was attacked with choppers, wooden clubs. After that Boregowda fell down in the canal and the accused ran away. When he went to the spot, Boregowda had fallen into the canal. He denies the suggestion that he is giving false evidence.
(d). In the further cross-examination, he denies the suggestion that he and Boregowda are close friends. He denies the suggestion that the deceased had quarrelled with 17 his family members and was working in Mangaluru along with this witness.
11. PW-3 is the cousin sister of CWs-1 and 12. PW-4 is her husband. CWs-7 and 8 are also her cousins. She speaks about the quarrel that took place on account of playing the loudspeaker at the village temple about three weeks prior to the incident. The accused no.1 had threatened to kill the deceased. Nothing worthwhile is elicited in the cross-examination to disbelieve her version.
12. PW-4 is the husband of PW-3. His evidence corroborates the evidence of PW-3 with regard to the motive. PWs-5 and 11 are the Panch witnesses for the recovery of the chopper at the instance of accused no.2 from the well. They tried to remove the chopper and since it was in the well, the water had to be removed by using a pumpset and thereafter it was recovered under mahazar-Ex. P-6. The case diary is at Ex.P-5. Photographs of the well and chopper are at Exs.P-3 and P-12.
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13. PW-5 is said to be the sister's son of the deceased-Boregowda. In his presence, the voluntary statement of the accused is not taken. PW-6 is the Panch witness to mahazars-Exs.P-2, 7 and 8 with regard to recovery of material objects. He has turned hostile and has not supported the prosecution case.
14. PW-7 is the Panch witness to the inquest mahazar-Ex.P-10. He has identified the photographs of the dead body. He is cross-examined to the extent that the inquest was done at the hospital and not at the spot. PW-8 is another witness who speaks about the motive of accused no.1 and others and also with regard to playing of loud music in the village temple about three weeks earlier to the incident. PW-9 is the Panch witness to Ex.P-11 under which the clothes of the deceased were seized in terms of M.Os.3 and 4. The other belongings of the deceased were seized in terms of M.Os.17 to 20.
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15. PW-10 is the Panch witness to Ex.P-8, recovery mahazar under which M.Os.9 and 10 (pick-axe) were produced. PW-12 is the engineer who prepared the scene of offence. PW-14 is witness to the mahazar at Ex.P-17 which is a motorcycle, seized in terms of M.O.21 along with three mobile sets and two sim cards from accused no.1. PW-13 has turned hostile. He is a witness to the sketch and mahazar produced as Exs.P-13 and 14.
16. Accused No.6 is alleged to have shown the chopper used by him. PWs-7, 13 and 14 are alleged to have seen the clubs which were seized under mahazar in terms of M.Os.7, 9 and 12 respectively. PW-16 is the witness for recovery of the chopper, from accused No.5.
17. PW-17 is the doctor who conducted the post mortem over the deceased. He has noted several injuries sustained by the deceased and has opined that injury Nos.1 and 2 were found on the skull and they are fatal. The blunt portion of M.Os.5 to 8 can also cause injury Nos.3, 9, 10 and 12. That injury Nos.4, 10 and 11 can be caused by 20 M.Os.9 to 16. In the cross-examination, he has stated that he has not observed the clothes of the deceased having any mud stains or not. The same was also not mentioned in the requisition by the police. According to him, the injury at serial No.1 has been caused by M.O.7 (machu) which is a chop injury. Injury No.7 is said to be a defence injury. Injury Nos.1 and 2 could be caused if the deceased had been standing in front of them. Injury Nos.3, 9, 10 and 11 can be caused if a person falls on a hard surface in order to escape the assault.
18. PW-18 is the head constable who registered the case in Crime No.122 of 2009 for the offences punishable under Sections 143, 147, 148, 324, 323, 504 and 506 read with Section 149 of IPC. Based on the complaint, the investigation officer registered the crime. The complaint is at Ex.P-1. First Information Report is at Ex.P-29.
19. PW-19 is the investigation officer who arrested accused Nos.2, 6, 7, 13 and 14 on 17.4.2009. On 10.4.2009, he arrested accused nos.10 and 11. He seized 21 the motorcycle as well as other objects like mobile sets, sim cards in terms of M.Os.21 to 25. PW-20 is the investigation officer who has conducted the entire investigation and has filed the charge sheet. He had conducted spot mahazar at Ex.P-2 and seized the blood stains from the spot under M.Os.1 and 2. He has stated that immediately after the incident, a lot of people gathered at the spot and therefore, it was unsafe to keep the body or to conduct the inquest at the scene of offence. Therefore, the dead body was shifted to the hospital and consequently, the inquest was done at the hospital. The other accused were arrested on various dates.
20. Based on the voluntary statement of accused nos.10 and 11, in terms of Exs.P-31 and 32, he had recovered pick-axes (M.Os.9 and 10) in the sugarcane field of Kadegowda and the garden of Shivarao under mahazars, Exs.P-8 and P-7 respectively. Based on the voluntary statement of accused no.2 recorded on 13.4.2009, in terms of Exs.P-32, he recovered the chopper, M.O.5 from the well after draining out the water by using a pumpset. Based on 22 the voluntary statement of accused no.6 in terms of Exs.P-33, a chopper, M.O.6 was recovered under mahazar, Ex.P-6. Based on the voluntary statement of accused nos.7, 13 and 14, in terms of Exs.P-34 to P-36, he recovered the clothes from the bushes by the side of the sugarcane field under mahazar, Ex.P-14.
21. After the arrest of accused nos.1, 3, 4 and 6, their voluntary statements at Exs.P-37 to P-40 were recorded. On the basis of the same, a chopper, M.O.6 shown by accused No.6 from the sugarcane field of Devaraju and 3 clubs, M.Os.13 to 15 shown by accused Nos.3, 4 and 8, were recovered under mahazar, Ex.P-18. Based on the voluntary statement of accused no.5 at Ex.P- 41, he recovered the chopper, M.O.8 which was kept below the roof wall of the poultry farm of one Shivalingegowda in terms of mahazar, Ex.P-42. He has taken photographs of the spot as well as material objects recovered from the accused and also of the dead body. He sent the clothes of the deceased to Forensic Science Laboratory (FSL). A report was obtained in terms of Ex.P-43. The blood stained 23 clothes of the deceased showed the blood group A+. The report would disclose that there were blood stains on the blades of three choppers. The fourth chopper is the one that was recovered from the well based on the voluntary statement of accused No.2. Therefore, it did not contain any blood stain. PW-21 has received the FSL report at Ex.P-43.
22. Based on all these evidences and the material placed by the prosecution, the trial court was of the view that the prosecution has proved its case beyond reasonable doubt only insofar as accused Nos.1, 2, 5 and 6 are concerned. It was of the view that even if the statement of the eyewitnesses were to be considered, they are only bald allegations so far as the other accused are concerned. The overt acts as narrated by the eyewitnesses are only with reference to the involvement of accused Nos.1, 2, 5 and 6. Since the prosecution has not led concrete evidence with regard to the assault committed by the other accused, they were acquitted of the offences charged against them. However, it accepted the statements of the eyewitnesses, 24 PWs-1 and 2 and convicted accused Nos.1, 2, 5 and 6 as aforesaid.
23.(a) The first contention of Sri.C.H.Jadhav, the learned senior appearing for the counsel representing accused Nos.1, 2 and 5, is that the evidence of eyewitnesses cannot be accepted as they are not eyewitnesses. That their evidence is tainted. In support of his contention, he contends that the incident did not take place in the land belonging to the deceased or that of PW-1 who are brothers. That the incident took place near the canal. Therefore, the evidence of the eyewitnesses that the incident took place when they intended to divert water from the canal to their land, cannot be accepted. The statement made in the complaint as well as in the evidence would indicate that they were in the process of going to their land when the incident took place.
(b). It is not the case of the prosecution that the incident took place in the land of the deceased. It is their specific case that when the brothers were proceeding to 25 reach their land that the incident took place. Even otherwise, it is not important as to where the incident took place. The prosecution case is that the incident took place when the deceased and the complainant were proceeding to their lands. Therefore such a contention cannot be accepted.
24.(a) The further contention is that there was enmity between accused No.1 and PW-1. A suggestion is made to PW-1 in his cross-examination to the effect that accused No.1 had suspended PW-1 while in service and therefore, there was enmity.
(b). The same is answered by PW-1 to the effect that even though he was suspended by the accused no.1, it was accused No.1 himself, who had revoked the suspension. Therefore, it cannot be said that there was enmity between them in view of the fact that it was accused No.1 who had himself revoked the suspension. 26
(c). Furthermore, there is no material to indicate as to when the suspension or revocation took place and what were the charges against PW-1 that entailed suspension. The dates of suspension and revocation are necessary to link it with the incident. None of these materials have been brought out in the cross-examination. Notwithstanding the same, as stated hereinabove, the same, in our view, does not constitute a ground to have any vengeance against accused No.1, since accused No.1 himself had revoked the suspension.
25. The further suggestion and contention is that the sister of PW-1 had contested two elections against accused No.1. Each of them had won one election each. Therefore, there was enmity between them. We do not think that contestants in an election are sworn enemies that would lead to every contestant to commit the murder of another only because they are political rivals. Even so far as political rivalry is concerned, one election was won by the sister of PW-1 and another by accused no.1. Therefore, we do not find this to be a compelling reason to falsely 27 implicate accused No.1. Even otherwise, as to when the elections were held, are also not forthcoming. There is no material to indicate the distance of time between the incident and the previous elections that were conducted.
26.(a) The further contention is that the alleged incident having taken place at 10.00 p.m., it was impossible for the witnesses to have seen the incident, because there was no light.
(b). However, the material on record would indicate, and based on the evidences of PWs-1 and 2, there was sufficient moonlight for them not only to see the incident, but also to identify each and everyone of the accused. They have even observed the overt acts committed by each of the accused over the deceased. All the accused were known to the witnesses. They were not strangers who could not be identified. They have further narrated in their evidence that the electric pole was at a distance of 8 metres from the scene of offence. Therefore, both these factors put together 28 would negate the contention that the witnesses could not have seen the incident taking place.
27.(a) The further ground pleaded, to discard the evidence of PW-2, is a suggestion put to him that he had sustained a fracture of his leg and therefore, was immobile. If the witnesses had sustained a fracture and was plastered, he could not have gone out of his house and witnessed the incident in the night.
(b). Such a suggestion has been denied. In paragraph 15 of his evidence, PW-2 has narrated that the doctor had put a bandage and advised him rest for three weeks. There is a lot of difference in putting a bandage and a plaster. The evidence of PW-2 would indicate that what was put was a bandage. It was not a plaster. Hence, it is needless to state that when it is not a plaster, a person will be able to walk. Therefore, putting a bandage on his leg would not have made him immobile.
28.(a) It is further contended that both PWs-1 and 2 have stated about the presence of CW-3. But CW-3 29 has not been examined by the prosecution. If the witnesses themselves speak of another eyewitness having seen the incident, there was no reason for the prosecution to suppress such evidence. Hence, an adverse inference has to be drawn. Learned SPP contends that having found that CW-3 is likely to turn hostile, they did not find it expedient to examine him in support of their case.
(b). We find no error in the discretion exercised by the learned SPP in giving up this witness by not examining him. However, what is being contended is that when a material witness is not examined, the evidence of the other witnesses, therefore, would be tainted and an adverse inference would have to be drawn against the prosecution. We find that such a contention is too far fetched to be accepted. Only because a particular witness has not been examined, does not render the evidences of other witnesses to either become tainted or that it should be looked into with a suspicious mind. The evidence on record would have to be weighed appropriately in a just and fair manner. Therefore non examination of a witness, would not lead to 30 an adverse inference to be drawn against the prosecution case.
(c). Each one of the evidences led-in by the prosecution would have to be weighed for what it is worth. The value of an evidence cannot be discarded due to the non-examination of some other witnesses. Therefore, it is inappropriate and unjust to draw an adverse inference against the prosecution on this ground. Therefore, we find that such a contention cannot be accepted.
29. The further contention is that PW-2 has stated that after the incident, PW-1 came to the scene of offence and when PW-1 narrated the incident to him, PW-2 told him that he had also seen the incident. Therefore, this portion of the prosecution case becomes doubtful. However, the evidence on record would indicate that PW-1 was closer to the scene of offence than PW-2. PW-1 was at a distance of only 15 feet from the scene of offence. After the offence was committed, it is only then that PWs-1 and 2 came to the said spot. Since PW - 1 was closer to the scene of 31 offence, necessarily he went there at an earlier point of time. PW-1 had to cover the distance of 15 feet to come to the scene of offence since he was at a further distance than PW-2. Therefore, the contention that PW-1 could never have seen the incident, if the view of PW-2 is to be accepted, therefore runs contrary to the material on record.
30.(a) It is the further contention that when the other accused have been acquitted of the charges levelled against them based on the very same evidence, the present accused too would have to be extended the same benefit.
(b). We are unable to accept such a contention. The reasons assigned by the trial court are that there is no material even from the evidence of the eyewitnesses with regard to the assault committed by the remaining accused. There are only bald statements made by the witnesses that the remaining accused also assaulted the deceased. Therefore, it is due to lack of evidence that the other accused were acquitted. Hence, the said reason cannot be applied to the appellants herein in view of the fact that the 32 eyewitnesses have narrated the incident with reference to these accused and their respective overt acts.
31. Even though no other contentions were advanced, we have gone through the evidence of the prosecution so far as recovery of material objects as well as weapons are concerned. The recovery of the clothes of the deceased, the other objects and the weapons have been proved in a manner known to law. We do not find anything in the cross-examination to disbelieve the recoveries. Therefore, the recoveries have not only been uncontested, but have also been established.
32.(a) The plea of the learned counsel for accused No.6 is that the assault committed by the accused No.6 is not fatal and that the death was not caused due to the assault made by accused Nos.5 and 6.
(b). We have considered the evidence of the doctor as well as that of the eyewitnesses. Under these circumstances, the chronology of events also plays a very 33 important role in appreciating the contention. The narration is that firstly, accused No.6 assaulted on the left forearm of the deceased, and thereafter, accused No.5 assaulted on the left little finger of the deceased. It is thereafter that accused Nos.2 and 1 assaulted on the vital organs of the deceased. The evidence would indicate that the death was due to injuries sustained at injury Nos.1 and 2. The injury caused by accused No.6 is at serial No.7 and the injury caused by accused No.5 is at serial No.10. The opinion of the doctor does not indicate that injury Nos.7 and 10 have caused the death. The doctor's opinion is that death is due to chop injury over the head which is at serial Nos.1 and 2 which have been caused by accused Nos.1 and 2 respectively. Therefore, even if the nature of the assault is considered, it cannot be said that accused Nos.5 and 6 had any intention to commit the murder of the deceased. Therefore, we find that the conviction of accused Nos.5 and 6 for the offence punishable under Section 302 read with Section 34 of IPC would not be sustainable. 34
33. In view of the fact that the injuries inflicted on the deceased by accused Nos.5 and 6 were by using deadly weapons, we are of the view that they could be held liable for committing the offence punishable under Section 326 of IPC for voluntarily causing grievous hurt by using a dangerous weapon. The dangerous weapon used by accused Nos.5 and 6 are M.Os.8 and 7 respectively. Grievous hurt has been proved by medical evidence. Therefore, we are of the view that their conviction would be justified for the offence under Section 326 of IPC.
34.(a) It is submitted that accused nos.5 and 6 were on bail till the date of delivery of judgment and thereafter, they are in custody. Under these circumstances, we deem it just and appropriate to sentence the accused for a period of seven years for the offence punishable under Section - 326 of IPC. It is submitted that accused Nos.5 and 6 were on bail and thereafter they are in custody. Therefore, the period of imprisonment has already been undergone by accused No.5 and 6.
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(b). So far as imposition of fine is concerned, the trial court has imposed a fine of Rs.10,000/- on each of them. We feel it is inadequate. It is submitted at the Bar that the deceased has an aged mother who has nobody to look after. Therefore, we deem it proper that accused Nos.5 and 6 shall pay a fine of Rs.25,000/- each including the amount already ordered by the trial court. The said amount shall be released in favour of the mother of the deceased.
35. Consequently, for the aforesaid reasons, we pass the following:
ORDER Criminal Appeal No.31 of 2012 is partly allowed. The judgment dated 18.11.2011 passed in S.C.No.31 of 2010 by the Additional Sessions Judge, Mandya, is partly set aside.
The conviction of accused Nos.1 and 2 and the sentence of imprisonment imposed on them for the offence 36 punishable under Section 302 read with Section 34 of IPC is confirmed.
The conviction and sentence imposed on Sri Channegowda-accused No.5 and Sri Raghu-accused No.6 for the offence punishable under Section 302 read with Section 34 of IPC is modified. They are acquitted of the said offence, but are convicted for the offence punishable under Section 326 of IPC. They are sentenced for the period of detention already undergone by them.
Sri Channegowda and Sri Raghu (accused Nos.5 and 6 respectively) shall pay a fine of Rs.25,000/- (rupees twenty five thousand only) each, including the amount imposed by the trial court within a period of four weeks from today, if not yet deposited. On such a deposit being made, the trial court is directed to release the same in favour of the mother of the deceased.
In default of payment of fine as aforesaid, they shall undergo simple imprisonment for a period of two years. 37
Registry is directed to communicate the operative portion of the order to the concerned jail authorities for necessary action.
SD/- SD/-
JUDGE JUDGE
MN/vgh/JJ/rsk