Karnataka High Court
Thimma Reddy vs State Of Karnataka on 9 February, 2018
Bench: Ravi Malimath, H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2018
PRESENT
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE DR.JUSTICE H. B. PRABHAKARA SASTRY
CRIMINAL APPEAL NO.978 OF 2012
BETWEEN:
Thimma Reddy
@ Porantalu Thimma Reddy,
S/o Narasa Reddy,
Aged about 40 years,
R/o Kasinayakanahalli Village,
Madhugiri Taluk,
Tumkur District. .. Appellant
( By Sri Hashmath Pasha, Advocate )
AND:
State of Karnataka,
By Kodigenahalli Police Station,
Madhugiri Taluk,
Tumkur District,
Represented by learned
State Public Prosecutor. .. Respondent
( By Sri Vijayakumar Majage, Addl.SPP )
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C, praying to set aside the judgment and order of
conviction and sentence dated 23.8.2012 passed in
Spl.Case No.297/2011 by the III Addl.Sessions Judge &
Spl.Judge for SC/ST (Prevention of Atrocities) Act,
Crl.A.No.978/2012
-2-
Tumkur, convicting the appellant/accused No.1 for the
offences punishable under Sections 307 r/w. Section 34 of
IPC, 302 r/w. Section 34 of IPC, 120-B of IPC and Section
3(ii)(v) of SC/ST (POA) Act.
This Criminal Appeal having been Heard and
Reserved for Judgment on 24.01.2018 and pronounced
this day, Dr. H.B.PRABHAKARA SASTRY, J., delivered the
following:-
JUDGMENT
Being aggrieved by the judgment of conviction and order on sentence dated 23.08.2012 passed by the III Addl.Sessions Judge and Spl.Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989, at Tumakuru, (hence forth for brevity referred to as the 'Sessions Court') in Spl.C.No.297 of 2011, convicting him for the offences punishable under Sections 302 read with Section 34 of Indian Penal Code, Section 307 read with Section 34 of Indian Penal Code, 120-B of Indian Penal Code and sentencing him to undergo life imprisonment and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo imprisonment for a period of one Crl.A.No.978/2012 -3- year for the offence punishable under Section 302 of Indian Penal Code, and to undergo life imprisonment for the offence punishable under Section 307 of Indian Penal Code, and to undergo imprisonment for a period of six months for the offence punishable under Section 120-B of Indian Penal Code and to undergo life imprisonment and to pay fine of Rs.15,000/-, and in default of payment of fine, to undergo imprisonment for a period of one year for the offence punishable under sub-Clause (v) of Clause (ii) of Section 3 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, the appellant has filed this appeal.
2. In his memorandum of appeal, the appellant (henceforth for convenience referred to as `the accused') has taken contention that the Court below has committed a serious error in convicting the accused under Section 302 307 read with Section 34 of Indian Penal Code. Though the guilt is said to Crl.A.No.978/2012 -4- have been proved only against present appellant/accused, the case of the prosecution is based on the direct testimony of PWs.22 and 23, but their evidence is totally unreliable and incredible. The Court below failed to appreciate the evidence in proper perspective. The complaint at Ex.P-22 is lodged after inordinate delay and the said delay has not been properly explained. There is no mention about the source of the light at the time of alleged commission of crime to identify the accused. There was sand business rivalry between the accused and the deceased. It is because of this internal fight and previous enmity, the appellant had been suspected and falsely fixed in the place of unknown assailant. The time of alleged incident has also not been established beyond reasonable doubt. Further stating that lot of omissions and improvements have come in the evidence of PWs.22 and 23 and the Investigating Officer and the same has not been properly Crl.A.No.978/2012 -5- appreciated by the Court below and that the complaint at Ex.P-22 has come into existence during the course of investigations and it is not a FIR, as such, it is hit by Section 162 of Code of Criminal Procedure, the appellant has prayed for allowing the appeal, by setting aside the impugned judgment of conviction and order on sentence passed by the Sessions Court.
3. The respondent is being represented by learned Addl.State Public Prosecutor.
4. Lower Court records were called for and the same are placed before us.
5. Heard the arguments from both sides. Perused the material placed before us, including the memorandum of appeal, impugned judgment and the lower Court records.
6. The summary of the case of the prosecution as could be seen in the charge sheet is that on Crl.A.No.978/2012 -6- 23.6.2011 between 3.00 a.m. and 4.00 a.m., at Survey No.19 of Vengammanahally village, in the land belonging to CW-6, when CW-1 (PW-22) - Pushpalatha, CW-2 (PW-23) - Veeranna, along with the deceased-Srinivas, were sleeping after having gone there to watch the sand heaps piled there, the accused No.1 (appellant herein), along with accused Nos.2 and 3 (who are acquitted by the Sessions Judge), having conspired to murder said Srinivasa, who was belonging to schedule caste and due to their previous ill-will, committed his murder by assaulting the said Srinivasa with sickle on his neck and left shoulder. CWs.1 and 2 have witnessed the alleged incident committed by the accused. The complainant police have filed charge sheet against the three accused for the offences punishable under Sections 302, 307, 114 and 120-B read with Section 34 of Indian Penal Code and Section 3(ii)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Crl.A.No.978/2012 -7- Atrocities) Act, 1989, read with Section 34 of Indian Penal Code.
7. Since the accused pleaded not guilty, trial was conducted. In order to prove its case, the prosecution has examined 39 witnesses from PW.1 to PW-39 and got marked documents from Exs.P-1 to P- 37 and material objections from MO.1 to MO.19 and closed its side. From the accused side, neither any witness was examined nor any documents were marked as exhibits. After hearing both sides and analyzing the materials placed before it, the Sessions Court by its judgment of conviction and order on sentence dated 23.8.2012, acquitted accused No.2 - Seena @ Srinivasa and accused No.3 - Nagareddy, but convicted the present appellant (accused No.1) for the offences punishable under Sections 307, 302 read with Section 34 of Indian Penal Code and Section 120-B of Indian Penal Code and also under Section 3(ii)(v) of the Scheduled Castes & Scheduled Tribes Crl.A.No.978/2012 -8- (Prevention of Atrocities) Act, 1989, and sentenced the appellant as above. Being aggrieved by the said judgment of conviction and order on sentence, the accused No.1 has preferred this appeal.
8. The learned counsel for the accused in his arguments vehemently submitted that the entire case of the prosecution is based upon the evidence of PWs.22 and 23, who are said to be the eye witnesses to the alleged incident. However, their evidence is full of improvements and contradictions, as such, their evidence is not believable. The complainant does not identify the assailant by his name, who is said to have caused the murder of deceased Srinivasa. It is his specific argument that PW-22 - the complainant has specifically stated that after the incident, on her way to the hospital, they had been to the complainant police station and given the details of the incident. That being the case, the same is to be treated as the first information, but not a regular complaint said to Crl.A.No.978/2012 -9- have been filed by the very same complainant at a belated hour. Further, even according to PWs.22 and 23, once again near Teriyuru, both of them have met the Police Officer and given the details of the incident. The said detailed information was also not treated as first information report, as such, Ex.P-22 proves that it is the tailored document after due deliberations and consultations. He also submitted that there is lot of discrepancies in respect of timings of crime. The evidence of the doctor also supports the discrepancies in the alleged timings of murder. Learned counsel further stated that alleged recovery does not stand proved since the Investigating Officer has not deposed as to what statement the accused has given before him voluntarily. There is also delay of 11.00 hours in lodging the complaint.
Lastly, he submitted that since accused Nos.2 and 3 have already been acquitted, the case of the prosecution as against the present accused No.1 Crl.A.No.978/2012
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(appellant) stands heavily diluted. As such, the entire case of prosecution is full of doubts and cannot be relied and acted upon.
9. The learned Addl.State Public Prosecutor in his arguments submitted that the telephone call received by the police office at 4 O'clock in the morning of the date of incident was a cryptic telephone call, as such, he has not registered the same as first information report. In that regard, he relied upon a judgment of the Hon'ble Supreme Court in Bhagwan Jagannath Markad & others -vs- State of Maharashtra, in Criminal Appeal No.1516/2011, dated 4.10.2016. He further submitted that few improvements and omissions that have crept in the evidence of prosecution witnesses and more particularly, in the evidence of PWs.22 and 23 are not fatal to the case of the prosecution, so also, non-examination of one Narasimhamurthy, the driver of a tractor.
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With respect to non-disclosure of the identity of the assailants by PW-22 before the doctor is concerned, the learned Addl.State Public Prosecutor submitted that the duty of the doctor is to treat the patient, but not to collect the identity of the assailants. In that regard, he relied upon a judgment of the Hon'ble Supreme Court in the case of Bhargavan and others -vs- State of Kerala, reported in AIR 2004 SC 1058.
Regarding the alleged recovery of the weapon at the instance of the accused, the learned Addl.State Public Prosecutor submitted that the evidence of PWs.18 & 19 are sufficient to believe the same. He further submitted that the prosecution has proved the motive behind the crime that three days prior to the incident, a quarrel had taken place between the deceased and the accused, which has led to the alleged incident. He further submitted that the delay in submitting the FIR to the Court was for the reason Crl.A.No.978/2012
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of a distance of 21 KMs. from the police station to the Court. With this, he submitted that the prosecution has proved its case beyond reasonable doubt and the impugned judgment of conviction does not warrant any interference at the hands of this Court.
10. PW.1 (CW.6) Aswathappa who was projected by the prosecution as the owner of the land in which the sand heaps were said to have been stored, has in his examination in chief not supported the case of the prosecution. Though he stated that earlier he was doing agriculture in Kasinayakanahalli, but has also stated that in the year 2000 he left the said village and has settled at Bengaluru. He has categorically stated that he had not given his land either to the complainant or to the deceased Srinivasa for the storage of sand in it. Even after treating him as hostile, the prosecution could not get any support from him.
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11. PW.2 (CW.7) Jayappa who was shown to be an attesting witness to the alleged agreement between the deceased Srinivasa and accused No.3 Nagi Reddy, has categorically denied that he was not witness to any such agreement. He has also stated that he does not know anything about the alleged agreement. Even after cross examining him, the prosecution could not get any support from him. The same is the outcome of the evidence from PW.3 (CW.8) Narayanappa also. He has categorically denied that he was an attesting witness to the alleged agreement at EX.P3.
12. PW.4 (CW.9) Kondappa was examined by prosecution expecting that he would speak about the alleged business relationship between the deceased and the accused and also about the incident. However, this witness except stating that he knows the accused, expressed his ignorance with regard to Crl.A.No.978/2012
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all the remaining matters. Prosecution could not get any support from him even in his cross examination.
13. PW.5 (CW.10) Krishnappa, an alleged witness to inquest panchanama also has not supported the case of the prosecution.
14. PW.6 (CW.12) Somareddy was examined by prosecution expecting that he would throw some light on the alleged relationship between the accused and the deceased and also about the alleged quarrel with respect to the sand business between them. However, the said witness also has not supported the case of the prosecution.
15. PW.7 (CW.13) Babu Rajendra Kumar in his evidence has stated that about two years prior to the date of incident he had given his two wheeler motorcycle bearing registration No.KA 04 ED 1114 to the accused Thimmareddy. However, he did not say anything about the use of the said two wheeler by the Crl.A.No.978/2012
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accused for any illegal purpose. Even he denied a suggestion that he had stated before the police that the accused Thimmareddy had made use of the said two wheeler to flee from the place of incident after the alleged incident. Thus he also proved to be not helpful to the prosecution in any manner.
16. PW.8 (CW.15) Viji @ Vijay Kumar was examined by the prosecution projecting him as a tractor driver of accused No.1 and he knows about the alleged business quarrel between the accused and the deceased. However, this witness also not supported the case of the prosecution to any extent. He has totally pleaded his ignorance about all that was expected by him by the prosecution.
17. PW.9 (CW.16) Anjinappa @ Akkalappa @ Lakkayappa in his evidence though stated that he knows the accused and the deceased and also that all of them were doing business in sand, but pleaded his Crl.A.No.978/2012
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ignorance about the alleged incident. Though he stated that he came to know that deceased Srinivasa was murdered, but he could not get the details of the alleged incident. Even after treating him hostile, the prosecution could not get any support from him.
18. PW.10 (CW.18) Muddegowda and PW.11 (CW.20) Ranganatha in their evidence apart from stating that both the accused and the deceased were known to them and that they were doing business in sand, have also stated that they have seen the dead body of the deceased Srinivasa on 23.06.2011 and inquest panchanama as per EX.P11 on the said dead body was drawn in their presence wherein they have also put their signatures as panchas for the said inquest panchanama. They have also stated and identified that the articles at MO.1 to MO.11 were seized under the said panchanama. Their evidence could not be shaken from the defence in their cross examination.
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19. PW.12 (CW.21) Rajashekara though stated that he knows both the accused and the deceased, but expressed his ignorance about the alleged incident except stating that he has seen the dead body of Srinivasa. He has stated that he does not know anything more regarding the alleged incident. Even after subjecting him to cross examination the prosecution could not get any support from him.
20. PW.13 (CW.23) Lakshmipathi and PW.15 (CW.24) Ramesha have not supported the case of the prosecution regarding the seizure mahazar of the cloth of the deceased as per EX.P13.
21. PW.14 (CW.22) Julappa was shown to be a person having given his statement during inquest panchanama, but except stating that he had been to the place where the dead body was found. He has not supported the case of the prosecution any further. Crl.A.No.978/2012
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22. PW.16 (CW.25) Shivakumar by sating that the clothes of PW.22 the complainant were not seized in his presence by drawing a mahazar as per EX.P15, has not supported the case of prosecution.
23. PW.17 (CW.26) Narasimha in his examination in chief has stated that when he had been to the complainant police station Veeranna produced few clothes before the police and at the asking of the police he has put his signature at EX.P15(b). He has identified those clothes at MO.13 to MO.15. He has stated that he does not know what the police did with those clothes. He has also stated that he had put one more signature at the instruction of the police in their village without seeing the motorcycle. He has identified his signature at EX.P16(a). The prosecution could not get any support from him even after cross examining him. In this way he proved to be of no help to the prosecution in proving the alleged seizure of the cloth under EX.P.22 Crl.A.No.978/2012
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and also the alleged seizure of the motorcycle in this case.
24. PW.18 (CW.27) Gangadhara in his examination in chief has stated that about 7 months prior to his date of evidence on one day on Hindupura
- Muddenahalli road near a local jali land, the accused Thimmareddy shown a sickle. The Dy.SP seized the same by drawing a seizure panchanama as per EX.P17 to which he has put his signature at EX.P17(a). He has identified the said sickle at MO.16. He has also stated that thereafter they went near the house of accused Thimmareddy where the accused produced a jerkene and a blue colour pant which also the police seized by drawing a seizure panchanama as per EX.P18. The witness has identified his signature therein as per EX.P18(a) and the jerkene and the pant at MO.17 and MO.18. This witness has also stated that thereafter the accused Thimmareddy took them near a tea shop and shown them a stone bench Crl.A.No.978/2012
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as the place where they talked. The police drew a panchanama of that place as per EX.P20, to which he has put his signature at EX.P20(a). According to this witness thereafter the police brought him back to the police station where accused Nagireddy produced a letter as per EX.P3 seizing which the police drew a panchanama as per EX.P21, to which he has put his signature at EX.P21(a). He was subjected to a detailed cross examination from the accused side wherein he stated that he has been working as a driver of the tractor under PW.22 Pushpalatha. He has given further more details about drawing of EX.P.17 to EX.P21 in his presence. As such, his evidence could not be shaken by the accused side in his cross examination.
25. PW.19 (CW.28) Hanumantha stated that six or seven months prior to the date of his evidence on the road from Muddenahalli to Hindupura nearby a local jali plant accused Thimmareddy produced a Crl.A.No.978/2012
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sickle. The police took the photograph and drew a mahazar as per EX.P17. He has identified his signature therein at EX.P17(b). He has also stated that thereafter they went to the house of accused Thimmareddy where he produced clothes which were seized by the police as per mahazar at EX.P18. Further he has stated that from the said place they went to the place where the dead body was found. In that place also the police drew a panchanama as per EX.P20 and took his signature. Though this witness stated that the police had taken his signature on two more exhibits at EX.P19 and at EX.P21(a). But he stated that he could not remember as to where he has signed them. However, in his cross examination in the opening statement itself he has categorically stated that he only signed, but he does not know the contents of EX.P17 to EX.P21. He also stated that he does not know who has written those panchanamas. Thus, he proved to be not a trustworthy witness to Crl.A.No.978/2012
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rely upon to prove the alleged panchanamas at EX.P17 to P.21.
26. PW.20 (CW.29) Nanjundappa and PW.21 (CW.29) A Venkatesha except stating that EX.P.16(b) is his signature in EX.P16 and has not stated as to what that panchanama was. Even after treating hostile, prosecution could not get any support from him.
27. PW.22 (CW.1) Pushpalatha the complainant in this case who was also projected as eye witness cum injured in the alleged incident has in her evidence has stated that she knows both the accused and the deceased. Accused No.2 and deceased Srinivasa and one Hanumantharayappa were doing business in sand along with whom she was also doing the same business. Srinivasa and his brother had taken a lease of the sand from the Government. Accused Thimmareddy who was also earlier doing Crl.A.No.978/2012
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business in sand had a dispute with respect to their business with deceased Srinivasa. The witness has further stated that in the land of one Sri Ashwatha (PW.1) they had stored the sand. On 22.06.2011 herself along with her husband Veeranna and Seena (deceased) had been there for watching the sand stored in that land. They slept in the same place on that night. At that time deceased Srinivasa was sleeping at about 10 feet away from them. On the date 23.06.2011 between 3.00 a.m. to 4.00 a.m. she heard some noise and woke up. There was moon light, as such, it was visible. Accused Thimmareddy was holding a sickle. Stating that it is too much of that person he assaulted with that sickle on the left shoulder also. By that time she went in between. Accused Thimmareddy assaulted her on her left ring finger questioning whether she was supporting him. He also assaulted her on her forehead. At that time he also stated that it is too much of her and she must Crl.A.No.978/2012
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also be finished. She yelled, at which her husband got up. By then these people ran away sating themselves that their work is finished and they have to run. Accused Thimmareddy and Srinivasa ran away and they were chased by her husband for about half a kilometer. She sustained injury to her hand and forehead. Her husband took her to Kasinayakanahalli, but Srinivasa died on the spot.
28. The witness has further stated that the jerkene, shirt, lungi worn by the deceased and the mat, blanket and the battery torch were blood stained. After taking her to Kasinayakanahalli her husband also took her to Kodigenahalli hospital in an auto rickshaw. From Kasinayakanahalli they went to the hospital at Madhugiri since there was no doctor at Kodigenahalli hospital. She took treatment at Madhugiri hospital where Kasinayakanahalli police also came. She told them the details who recorded her statement. She identified and marked the said Crl.A.No.978/2012
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statement at EX.P22 and her signature therein at EX.P22(a). She also stated that on the next day she took treatment at Manasa Hospital in Gowribidanur. She sent her clothes through her husband to the complainant police station which clothes she has identified as her saree, blouse and petticoat at MO.13, MO.14 and MO.15 respectively. All those clothes were blood stained. She also identified a sickle (kudugolu) at MO.16 stating that it was the same weapon used by the accused Thimmareddy in assaulting Seena. She also identified blood stained mat, bed sheet, jerkene, shirt, lungi, chappal at MO.3, MO.4, MO.11, MO.10, MO.5, MO.1 and MO.2. The witness has further stated that Srinivasa had bid in auction conducted by the Government. He had also executed an agreement regarding the land in favour of accused NO.3 Nagireddy for a consideration of a sum of Rs.1,35,000/- in which he had received a sum of Rs.1,10,000/-. That land was the land for sand Crl.A.No.978/2012
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business. In that regard Nagireddy had to pay him a sum of Rs.25,000/-. Accused Nagireddy and accused Thimmareddy had jointly taken the sand there at. In that regard a quarrel had taken place between accused Thimmareddy and deceased Srinivasa. It is also her evidence that accused Thimmareddy was robbing the sand from the neighboring lands which was not agreeable to Srinivasa. In this regard they had difference of opinion. She also stated that CW.4 Narasimhamurthy is the brother of the deceased and CW.3 Hanumantharayappa is the father of the deceased. She was subjected to a detailed and searching cross examination from the accused side where she has given further more details regarding the incident. It was also elicited in her cross examination that certain statements made by her in her examination in chief were not stated by her earlier to the police.
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29. PW.23 (CW.2) Veeranna the husband of PW.22 Pushpalatha has stated that he knows both the accused and the deceased. Himself along with his wife Pushpalatha and deceased Srinivasa were doing business in sand. Accused Thimmareddy also was doing the same business. They had taken permit in that regard from Hanumantharayappa. Deceased Srinivasa and Narasimhamurthy are brothers and also sons of said Hanumantharayappa. With respect to sand business there was a rivalry between deceased Srinivasa and accused Thimmareddy. Deceased had taken sand lease from the government. Accused had taken sand for sale from Somareddy and was selling sand.
30. Regarding the incident, PW.23 has stated that on the 22nd day in the night at about 8.00 p.m. himself and his wife after having supper went near the heaps of the sand stored in the land of Ashwathappa. They had been there to keep a watch Crl.A.No.978/2012
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on the sand in order to avoid its theft. Thereafter Srinivasa also came there and slept. All the three of them were sleeping. In the night at about 3.30 a.m. accused Thimmareddy and accused Seena taking sickle (machhu) assaulted deceased Seena on his left side. They also assaulted him on his left arm. His wife questioned them as to why they were assaulting for which she was also assaulted on her finger in the hand and on forehead, (Srinivasa) died on the spot. He chased them. Both accused Thimmareddy and Seena ran away, as such, he could not catch them. He returned and joined by his wife revealed the incident in their village. Hiring an auto rickshaw he shifted his wife to the hospital at Kodigenahalli. Since no treatment was available there they went to Madhugiri hospital and obtained treatment to her. Thereafter they went to Tumakuru and then to Manasa hospital at Gowribidanuru. The witness has identified the sickle at MO.16. He has also stated that Crl.A.No.978/2012
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the cloth worn by his wife was blood stained. He delivered those clothes to Dy.S.P. which clothes he identified at MO.13 to 15. He has also identified a cloth seizure panchanama at EX.P15. He has further stated that the deceased was belonging to 'Nayaka' community and accused No.1 to 'Reddy' community and Seena was to 'Washerman' community. This witness also was subjected to a detailed and searching cross examination, wherein he adhered to his original version. However, in his cross examination certain statements were elicited as the improvements made by him from his examination in chief.
31. PW.14 (CW.3) Hanumantharayappa in his evidence has stated that deceased Srinivasa and PW.4 Narasimhamurthy are his sons and they belong to Nayaka community. He knows all the three accused in this case. Besides agriculture his sons were doing business in sand. By purchasing the sand in auction Crl.A.No.978/2012
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from the government accused No.1 Thimmareddy was also doing business in sand. Accused Seena was with accused No.2. Accused No.3 also had taken sand. PW.22 Pushpalatha and PW.23 Veeranna were doing sand business along with deceased Srinivasa.
The witness has further stated that deceased Srinivasa and accused Thimmareddy had quarreled earlier with respect to a right of way. The deceased was complaining that accused Thimmareddy was loading sand on the side of the way to his land, when questioned Thimmareddy started claiming the ownership over the said land to him. The witness has also stated that his son Srinivasa had agreed to sell land to accused Nagireddy for a sum of Rs.1,35,000/- and had received a sum of Rs.1,10,000/- keeping a sum of Rs.25,000/- as balance. The witness stated that thinking that the said amount of Rs.25,000/- can be saved if Srinivasa is murdered and that they could continue their sand Crl.A.No.978/2012
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business, all the three accused had jointly murdered his son.
32. PW.24 has further stated that on 22.06.2011 at about 6.30 p.m. his son after taking food went near the heap of the sand to keep a watch on it. On the same night at about 3.30 or 4'0 clock he received information that somebody had killed his son. Joined by his wife he went there and saw that his son was dead in the land of Ashwathappa (PW.1). his son had sustained injuries on the left side of his neck and the left shoulder. The blood was found in that place. PW.22 Pushpalatha and PW.23 Veeranna were there who told him that accused Thimmareddy and washerman community Seena (accused No.2) have committed the murder and ran away from the place.
The witness also stated that when Pushpalatha went in between she was also assaulted on her left hand Crl.A.No.978/2012
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finger and on forehead. They sat at the place by which time the police came there and thereafter Dy.S.P came, wrote something. Stating that the mat and cloth of his son were also blood stained, the witness has identified the cloth said to have been worn by his son Srinivasa at MOs.4, 6 and 10 and the blood stained mat at MO.3. He was also subjected to a detailed cross examination from the accused side wherein though he tried to adhere to his original version, but admitted that few statements made by him in his examination in chief were not stated before the police.
33. PW.25 (CW.4) Narasimhamurthy, the elder brother of the deceased stated that himself along with PW.23 and PW.24 were doing sand business. Along with PW.22 and 23 he was also in the said business with them. Deceased Srinivasa was also with them for their help. The accused Thimmareddy was hating his brother. Accused No.3 had got written an Crl.A.No.978/2012
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agreement from the deceased with respect to the land where the sand was stored for a sum of Rs.1,35,000/- and had paid a sum of Rs.1,10,000/- retaining a balance of Rs.25,000/-. Accused Thimmareddy was stealing sand from the heaps mounted by these people. In that regard deceased was disputing with accused Thimmareddy. The said accused has also taken land from Somareddy for his sand business. It was an adjacent land, but crossing the limits of his land he has entered these people's land also. In that regard also a quarrel had taken place about 4 to 5 days prior to the incident.
34. PW.25 has further stated that on the date 23.6.2011 at about 3.00 a.m. to 4.00 a.m. accused Nos.1 and 2 after going to the place had killed his brother Srinivasa. The deceased had left his home on the previous evening at 6.30 p.m. sating that he would go to the place where they had stored sand. Returning within 10 to 20 minutes he had taken food Crl.A.No.978/2012
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for the dogs in that place and once again left for the place where the sand was stored which was in the land of PW.1 Ashwathappa. His brother was sleeping there. In the early morning somebody telephoned his father informing him of the murder of said Srinivasa, immediately these people went there and saw the dead body of Srinivasa sustained with the injuries on his neck and left shoulder. The mat and the ground were also blood stained. Near the house he met PW.22 Pushpalatha and enquired her about the incident who told that it was accused Thimmareddy and Seena going there had killed Srinivasa. She also stated that when she went in between she also sustained injuries. He telephoned to the police who came at 7'o clock in the morning. The Dy.SP recorded his statement. This witness has identified the articles at MOs.1, 2, 4, 6, 9, 10 and 11. He was also subjected to a detailed cross examination wherein he adhered to his original version. However, Crl.A.No.978/2012
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it was brought out that there was some improvement in his examination in chief.
35. PW.26 (CW.5) Narayanappa though was examined by the prosecution stating that he had heard the conspiracy made by accused No.1 to 3, but he has not supported the case of the prosecution on the said point.
36. PW.27 (CW.33) R. Nagaraja Shetty, the tahsildar of Madhugiri taluk stated that he has issued a caste certificate of the deceased and accused which he has identified at EX.P24. PW.28 (CW.34) Suresh, the village accountant has stated that he has issued RTC of the land as per EX.P25, where the incident has occurred. According to him the RTC stands in the name of one Narayanappa.
37. PW.29 (CW.35) Syed Rafath Ali, a police constable has stated that he has been working as a police constable in the complainant police station. On Crl.A.No.978/2012
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25.06.2011 joined by his other colleagues he went along with Dy.SP to the spot of the incident which was the land of Ashwathappa. The accused Thimmareddy led them to the said place and shown them the place of incident regarding which they drew a scene of offence panchanama as per EX.P20. From there they went to the land of one Narasareddy in the afternoon. Stating that he has thrown the sickle used for the commission of the crime in a bush there, the said accused produced the said sickle which was blood stained. The said sickle also was seized by drawing a seizure panchanama as per EX.P27. the said sickle was identified by this witness at MO.16.
The witness has also stated that thereafter they went to Narayanappa's tea shop as led by accused Thimmareddy. The accused shown them a place there stating that it is in the said place they had conspiracy. A panchanama as per EX.P19 was also drawn in the said place. Thereafter the accused took Crl.A.No.978/2012
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them to his house and produced a pant and a jerkene at MOs.18 and 17 which was also seized by their Dy.SP by drawing a panchanama as per EX.P18. This witness also was subjected to a detailed cross examination wherein he adhered to his original version.
38. PW.30 (CW.38) Ranganath the head constable has stated that on 23.06.2011 his Sub Inspector came to know about the murder taken place in Kasinayakanahalli. As such, along with the said PSI himself and other staff went there. DY.SP also came to the said place. After investigation the dead body was entrusted to him to get the post mortem examination done. Since the doctor was not available at Kodigenahalli hospital, he brought the dead body to Government Hospital at Madhugiri and got autopsy done. He collected the clothes found on the deceased and produced the same before his Dy.SP who seized them by drawing a seizure panchanama as per Crl.A.No.978/2012
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EX.P30. He has identified those clothes at MOs.6, 9, 10 and 11. The denial suggestions made to him in his cross examination were admitted as true by him.
39. PW.31 (CW.39) Kollaraiah, the Assistant Sub Inspector of Police in his evidence has stated that on 25.06.2011 as per the direction of Dy.SP he took accused Nagireddy to Kasinayakanahalli. There his Dy.SP asked him to produce the agreement. The said accused produced two agreements before them which they seized by drawing a seizure panchanama as per EX.P21 and EX.P3. The denial suggestions made to him in his cross examination were not admitted as true by him.
40. PW.32 (CW.40) Amir Jan, the Assistant Sub Inspector of complainant police station has stated that on 23.06.2011 at about 8.00 a.m. at the instruction of the Sub Inspector of their police station he went to Government Hospital at Madhugiri and recorded the Crl.A.No.978/2012
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statement of injured Pushpalatha in the presence of the doctor and after confirming that injured was in a fit condition to give statement. He has identified the said statement at EX.P22 and the signature of the doctor therein at EX.P22(b) and his signature at EX.P22 (c). Returning to the station he registered the said statement as a complaint in their station Crime No.60/2011 and preparing FIR as per EX.P26 sent it to the Court. he was subjected to a detailed cross examination from the accused side.
41. PW.33 (CW.41) Ujinappa, the police Sub Inspector ha4s stated that his Dy.SP had entrusted the work of apprehending the accused on 23.06.2011. On 25.06.2011 in the morning at about 5'o clock he took the custody of accused Thimmareddy in Kanakanagar extension at Bengaluru and informed the same to his superior. He brought the said accused at K G Halli police station and produced before Dy.SP along with his report as per EX.P27. He Crl.A.No.978/2012
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has also identified the accused Thimmareddy in the Court. He has further stated that on the same day at about 10.00 a.m. he apprehended accused No.2 Srinivasa in the bus stand at Hindupura and coming to Kasinayakanahalli at 11.00 a.m. on the same day he apprehended accused No.3 Nagireddy and produced them also before his Dy.SP along with his report at Ex.P-28. He has identified the accused in the Court. He was also subjected to a detailed cross examination.
42. PW.34 (CW.32) D G Prakash, an engineer in PWD has stated that at the request of the police he visited the place of offence as shown by police and has prepared a sketch of the spot as per EX.P.29 and given it to the police.
43. PW.35 (CW.11) Ashwatha Reddy though projected as an eye witness to the alleged incident has not supported the case of prosecution. PW.36 Crl.A.No.978/2012
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(CW.14) Ramakrishna and PW.37 (CW.17) Nakalapalli Srinivasa were examined by the prosecution projecting them as eye witnesses to the incident, but none of them have supported the case of the prosecution in any manner.
44. PW.38 (CW.31) Dr.Rathnavathi has stated about she conducting post mortem examination on the dead body of deceased Srinivasa in Madhugiri Government Hospital on 23.01.2011. She has stated that when she examined the body she noticed the following injuries-
a) A penetrating wound of the size ½ inch X 1 inch X 4 inch depth present about 5 to 7 cm below the (Lt) side of the angle of mandible, with Blood stains (+) with swollen cedges unenled, retracted and gapping. There is agenation of left sternoclidomastoid muscle beneath the wound exposing bifurcation of common carotid artery. On dissection, there is 0.5 cm length size injury to the Arterial wall. Crl.A.No.978/2012
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b) A penetrating wound of the size 1 inch X 1 inch X 3 inches in depth is present, at the post auricular area on the left side with converted margins, retracted, blood stains exposing the external carolid. There is punctured wound over the arterial wall.
She has stated that in her opinion the cause of death was due to shock and hemorrhage as a result of injury to the major blood vessels. According to her, time since death at the time of post mortem examination was 12 to 24 hours. She has identified the post mortem examination report said to have been issued by her at EX.P.33.
The witness after seeing MO.16 sickle in the Court has stated that when a person is assaulted with the said weapon the tip of the said weapon can enter to a depth of 4 inches in the body of the assaulted. She also stated that the said weapon can cause the injuries found on the deceased. She has also Crl.A.No.978/2012
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identified her subsequent opinion said to have been given to the police at EX.P.34. She has also stated that injuries found on PW.22 Pushpalatha can also be possible with the weapon at MO.16. She has also given the description of the injuries found on PW.22 Pushpalatha and identified a wound certificate said to have been issued by her at EX.P.35. She was subjected to a detailed cross examination from the accused side.
The last witness of the prosecution is PW.39 (CW.42) Pradeep Kumar, the main Investigating Officer in this case. He has stated that while working as Dy.SP of Madhugiri Sub Division, he received the information about the incident in the said case on 23.06.2011 at 9.00 a.m. through the Assistant Sub Inspector over the telephone. He went to the complainant police station and collecting the copy of FIR there visited the place of offence at Kasinayakanahalli, found the dead body and Crl.A.No.978/2012
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conducted inquest panchanama in the presence of panchas as per EX.P11. He also seized the clothes found on the dead body, after post mortem examination by drawing a panchanama as per EX.P33. He drew the scene of offence panchanama and cloth seizure panchanama of PW.22 as per EX.P15, recorded statements of several of the witnesses, got the accused arrested and also recovered the sickle at the instance of accused Thimmareddy in the presence of panchas and collected post mortem examination report and after conducting investigation has filed charge sheet against the accused. He was subjected to a detail cross examination from the accused side, wherein he has admitted some suggestions as true to the effect that PWs.22 and 23 has made certain improvements in their evidence than what their statement before him was.
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45. According to learned counsel for the appellant, a reading of the above summary of the evidence of the prosecution witnesses goes to show that according to the prosecution, the complainant in this case is PW-22 (CW-1) Pushpalatha and her complaint was recorded by PW-32 - the Assistant Sub-Inspector of Police at 8.00 am., in the Government Hospital at Madhugiri, on 23.06.2011. The said complaint was registered in the complainant's police station in Crime No.60/2011 on the same day at 9.30 am. The said complaint is at Ex.P-22. The FIR was also prepared at Ex.P-26 by PW-32 and submitted it to the Court.
Secondly, on the point of registering the case/FIR in the complainant police Station, the learned counsel for the appellant in his arguments contended that the first information was given to the police not at 8.00 am., by PW-22, but it was given to the police at 4.00 am. over the phone. Crl.A.No.978/2012
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Thereafter, PW-22 had been to the police station, but they did not take her complaint.
Thirdly, near Teriyuru also, PW-22 and PW-23 met the Police Officer and his staff and gave the details of incident. Then also, no complaint was received by the said Police Officer. Thus, avoiding earliest informations given to them, the Police have after due deliberations and consultations, got prepared the tailored complaint as per Ex.P-22, which is not trustworthy and makes the entire case of the prosecution vitiated. In his support learned counsel relied upon few judgments of Hon'ble Supreme Court. In the case of State of Andra Pradesh -vs- Punathi Ramulu and others reported in 1994 SCC (Crimes) 734, wherein the Hon'ble Apex Court was pleased to observe that the Police Officer deliberately not recorded FIR on receipt of information about cognizable offence, the complaint cannot be treated Crl.A.No.978/2012
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as FIR and the same is hit by Section 162 of Code of Criminal Procedure, 1973.
In the case of H.C.Karigowda @ Srinivasa and others V/s State of Karnataka, by Holenarasipura Town Police, reported in ILR 2013 KAR 992, the Co-ordinate Division Bench of this Court was pleased to hold with respect to Sections 154 and 162 of Code of Criminal Procedure, 1973 that, if the investigating Officer deliberately does not record the FIR after receipt of information of cognizable offence, registering the complaint as FIR, after rushing to the spot and after due deliberation, consultation and discussion, said complaint cannot be treated as FIR. It would be only a statement made during the investigation and hit by Section 162 of Cr.P.C.
In Lalitha Kumari V/s Government of Uttar Pradesh and others reported in (2014) 2 Supreme Crl.A.No.978/2012
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Court Cases 1, the Constitutional Bench of Hon'ble Supreme Court after analyzing Sections 154, 155, 156 and 157 of Cr.P.C., 1973 was pleased to observe that registration of FIR is mandatory under Section 154 of Cr.P.C., if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation, the same is the general rule and must be strictly complied with. However, where the information received does not disclose a cognizable offence, a preliminary inquiry may be conducted to ascertain whether the cognizable offence is disclosed or not. It was emphasized by the Hon'ble Apex Court that scope of preliminary enquiry even when permissible in such limited classes of cases, is not to verify the veracity or otherwise of the information received, but only to ascertain whether the information reveals any cognizable offence. Regarding the objective of promptness in filing the FIR, the Hon'ble Apex Court Crl.A.No.978/2012
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was pleased to observe that compulsory registration of earliest information as FIR has two fold objective, firstly, it sets criminal process in motion and is well documented from very start preventing embellishments later. Secondly it ensures transparency in the criminal justice delivery system and functioning of police, providing for an efficient means to check powers of police as also for judicial oversight of the same.
46. Learned Addl.State Public Prosecutor in his arguments submitted that the telephonic information received by the police in the early hours of the alleged date of incident was very cryptic, as such, FIR was not registered. In his support, he relied upon the judgment of the Hon'ble Supreme Court in the case of Jagannath Markad (supra). In the said case, it was contended by the learned counsel for the appellants that the telephonic message by PW-12 recorded at the police station should have been treated as FIR. Crl.A.No.978/2012
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The Hon'ble Apex Court after going through the said recorded information observed that the said information was to the effect that accused No.5 and other accused assaulted the complainant party. Lalitha Kumari's case (Supra) cannot be read as laying down that every GD entry or every cryptic information must be treated as FIR. The information should sufficiently disclose the nature of the offence and the manner in which the offence was committed.
47. Admittedly, the complaint at Ex.P-22 is lodged by PW-22 (CW1) Smt.Pushpalatha. According to PW-32, it is said to have been recorded by him in the Government Hospital at Madhugiri, on 23.06.2011 around 8.00 am., to 8.50 am., and registered in the complainant's police station in Crime No.60/2011 on the same day at 9.30 am. The said complainant (PW-
22) though in her examination-in-chief has stated that after the incident when she was taken to Madhugiri Hospital, the complaint police came there Crl.A.No.978/2012
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and she gave her statement to them as per Ex.P-22. However, she in her cross-examination has stated that immediately after the incident, which according to her, has taken place between 3.00 am., to 4.00 am., on the same day, her husband took her to Kasinayakanahalli village. There they gave the information of the incident to one Sri Narasimhamurthy, a tractor driver, at 4.30 am. Thereafter, while proceeding to hospital at Kodigenahalli, they went to complainant's police station which is on the way and informed them about the incident. However, the police did not write it down. According to her, while they were coming from Kasinayakanahalli to Kodigenahalli, near in between place called Teriyuru, they met a police jeep and there were police in that jeep. The said police jeep stopped and police talked to these people and then proceeded further. As such, before PW-22 could reach Madhugiri hospital, she along with her husband Crl.A.No.978/2012
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had been to complainant police station and also the police themselves met them on the way near Teriyuru. However, at both the places, even after revealing the details of the incident to the police, they did not take her complaint.
48. PW-23 who is the husband of PW-22 and also alleged eye witness to the incident has also stated that immediately after the incident, both himself and his wife stated about the incident in their village. In the said village, they gave the information about the murder to one Narasimhamurhty, driver of the tractor of Sri Hanumantharayappa (PW-24). Thereafter, engaging an autorickshaw, he took his wife to Kodigenahalli. On the way, they met police people in their jeep. Stopping their autorickshaw, they also informed the matter about the murder to the police. However, the police did not join them to Kodigenahalli. However, he has stated in his cross-examination that while going to the hospital, Crl.A.No.978/2012
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they did not stop the autorickshaw in front of the police station and did not inform the police in their station. But, when they came to General Hospital at Madhugiri, there the complainant police, as well as the Dy.SP were present in the hospital. The said Dy.SP recorded the statement of his wife.
49. PW-38 the doctor of General Hospital at Madhugiri in her cross-examination has stated that it was the police who had brought PW-22 - Pushpalatha, to her for her medical examination and treatment. It was 7.30 in the morning when they came.
50. PW-33 - Ujjinappa, the Police Sub-Inspector, in his cross-examination has stated that on 23.6.2011, at about 4.00 a.m., he received a telephone call. However, he does not remember whether he has mentioned in the general diary about the information of murder received by him. It was Crl.A.No.978/2012
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about 5.30 a.m. on the same day, along with the staff, he proceeded via Teriyuru towards the spot of the offence. Though he has stated that the autorickshaw in which PW-22 Pushpalatha came in their opposite direction, but she was unconscious, however, he submitted that he does not know whether Pushpalatha and her husband had gone to the police station and gave any information.
51. From the above evidence of the parties, it is very clear that on the date of the incident i.e., on 23.6.2011, at about 4 O'clock in the early morning itself, the complainant police station have received a call, informing them about the murder that has taken place. As such, at the very first point of time, at about 4 O'clock in the morning, the complainant police were informed about the occurrence of a cognizable offence within their station limit. Still they did not register FIR on that point. However, noticing that the offence was a cognizable offence, the police Crl.A.No.978/2012
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team proceeded towards the spot in the morning at 5.30 a.m. itself. Thus, even before the complaint at Ex.P-22 could officially be registered by them at 9.30 a.m., the police had already proceeded towards the spot of offence on getting the information about the occurrence of cognizable offence.
Secondly, admittedly the autorickshaw in which alleged injured Pushpalatha (PW-22) and her husband
- PW-23 - Veeranna were going, came across the police jeep, in which, PW-33 along with his team, were proceeding towards Kasinayakanahalli. Though PW-33 says that PW-22 was not conscious at that time, the same is not believable, for the reason that, PW-22 herself has stated that she gave the details of the incident to the police at that spot itself, but still the police did not record it in writing. The said statement of PW-22 has not been denied by the prosecution. Even the evidence of PW-23 who was accompanying PW-22 in the autorickshaw is also to Crl.A.No.978/2012
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the same effect and the same also has not been denied by the prosecution. Therefore, once again the police getting the information about the offence and its details much earlier to 8 O'clock in the morning, stands proved.
Further, according to PW-22, before going to the hospital at Kodigenahalli, they also visited the complainant police station and gave them the details of the offence. Then also, the police did not register any FIR. All this clearly go to show that the complainant police had the information about the occurrence of a cognizable offence within their limit at about 4 O'clock in the morning itself, thereafter, with no lapse of much time, twice PWs.22 and 23 have given them the details of the occurrence of the offence clearly stating that it was the murder of a person, still the complainant police did not register any FIR. Had PWs.22 and 23 not gone to Kodigenahalli police station on their way to the Crl.A.No.978/2012
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hospital, the police would not have accompanied PW- 22 to the hospital. When the evidence of the doctor - PW-38 remains undisputed that PW-22 was brought to him by a police, this makes it clear that before PW- 22 could come to Madhugiri hospital, she had been to complainant police station and given them the details, including that, she too was injured in the incident, as such, the complainant police have sent a Constable to take her for treatment at Madhugiri hospital. Thus, it is crystal clear that the complainant police had information about the cognizable offence over telephone at 4.00 a.m. itself and thereafter, they were given the information as well the details of the offence by none else than the alleged eye witness- cum-injured in the incident. Therefore, the argument of the learned Addl.State Public Prosecutor that the telephonic information was cryptic and that the knowledge of the information came to police only through the complaint at Ex.P-22, is not acceptable. Crl.A.No.978/2012
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On the other hand, the argument of the learned counsel for the appellant/accused that the police did not take any action in registering FIR at the earliest point of time even after they getting the information about the occurrence of a cognizable offence, proves to be true. The said act of the complainant police in not registering the first information report at the earliest point of time is against the spirit of Section 154 of Criminal Procedure Code as observed by the Hon'ble Apex Court in the case of Lalithakumari (supra). Thus, the act of the complainant police in delayed filing of FIR which is after gap of 5 hours 30 minutes after the occurrence of the incident can only be understood as the FIR which was registered was after due deliberations or consultation. The argument of the learned counsel for the appellant on the said point requires to be entertained.
52. PWs.22 and 23, are projected as eye witnesses to the alleged incident. Among them, Crl.A.No.978/2012
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PW-22 is also stated to be an injured in the alleged incident at the assault of the accused. Admittedly, she is also the complainant in the case. When the complaint at Ex.P-22 is perused, what can be noticed is, though she has narrated about the alleged incident of assault upon both deceased and herself by two persons, she has not specifically stated as to which of those two persons assaulted whom. She has also stated that two persons came and assaulted the deceased and when she intervened, she was also assaulted by them. It is only at the end of the complaint, she has stated that assailants were accused-Thimmareddy and his accompanist. Therefore, the complaint at the out set is bereft of any overt act specifically attributed against the present accused or the other person said to have been accompanying him. It is only in her evidence as PW-22, she has given more details about the incident, as narrated above.
Crl.A.No.978/2012
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53. In the cross-examination of both PW-22 and another alleged eye witness, PW-23, the suggestions made from the accused side clearly go to show that PWs.22 and 23, along with deceased Srinivasa, were sleeping near the heap of the sand in the place of the incident on the alleged night, keeping a watch on the sand stored by them in that place. Thus, the presence of PWs.22 and 23 at the spot where the incident has taken place stands established. However, regarding the manner of occurrence of the incident, it was suggested to PW-22 that several of the important aspects she has not stated before the police and in her statement. The same is to the effect that, at the time of incident, there was moonlight, as such, there was visibility, the accused-Thimmareddy was holding a sickle, stating that it is too much of the deceased, he assaulted him on his left side of the neck with the sickle, he also assaulted on his left shoulder, at that time, she intervened and stating Crl.A.No.978/2012
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that she is there to support Srinivasa, the accused- Thimmareddy assaulted her also with an intention to kill her, it is at that time, she yelled, due to which, her husband woke up, then accused-Thimmareddy and Srinivasa (accused No.2) ran away from the said place, PW-22 denied that she has not stated the said statement before the police. However, PW-32, the Police Officer who claims to have recorded the statement of PW-22, in his cross-examination, has clearly admitted that all those details have not been given to him by PW-22 in her statement. Thus, the said very important aspect of details about the incident is proved to be an improvement made by the witness only in her evidence in the witness box. The said improvement is on very important and material details of the alleged incident. It is about the alleged overt act said to have been committed by the accused. As such, the said improvement cannot be considered as a minor variation or a minor Crl.A.No.978/2012
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improvement. Even the main Investigating Officer i.e., PW-39 also, in his cross-examination, has specifically stated that the statement that accused- Thimmareddy and accused-Srinivasa came and assaulted deceased with sickle and caused his murder, was not stated before him by the witness. As such, with respect to very important and material evidence about the alleged overt act by the accused, the evidence of alleged eye witness-cum-injured i.e., PW-22 having proved to be an improvement of a material aspect, cannot be relied and acted upon.
54. Added to that, it has also come in the evidence of PW-22, read with the evidence of PW-32, the Police Officer, to the effect that her husband chased the assailant for about half a KM. and he took her to Kasinayakanahalli, Srinivasa was found dead and that her husband hiring an autorickshaw, took her to Kasinayakanahalli and from there to Madhugiri and further the statement of PW-22 that deceased Crl.A.No.978/2012
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Srinivasa had taken in auction the land and that he had given it under an agreement to Sri Nagareddy and in that regard, he has received a sum of Rs.1,10,000/- from the said Nagareddy, as such, accused No.3-Nagareddy was due in a sum of Rs.25,000/-, are all improvements made by PW-22, like the previous one, and these are also material improvements made by the witness in her evidence for the first time in the Court. Since here the material evidence itself being the strength of her evidence and backbone to the case of the prosecution, the said evidence of PW-22 which is in the improved version on this material aspect being not trustworthy and reliable, the prosecution loses its main pillar upon which its case has been rested.
55. The evidence of PW-23 - Veeranna, who is said to be another eye witness to the alleged incident is also not without any material improvements in it. Those material improvements have been brought out Crl.A.No.978/2012
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in his cross-examination from the accused side. It has come out in his cross-examination as an improvement that on the night of alleged incident while himself along with his wife and deceased Srinivasa were sleeping at about 3 O'clock in the early morning, accused-Thimmareddy and accused- Seena assaulted Srinivasa with a sickle on his left side and left arm and that his wife questioned them as to why they were assaulting, for which, they also assaulted her on her finger and forehead and Srinivasa died on the spot. The cross-examination of the Investigating Officer shows that the said statement of PW-23 was not made before police during investigation. Therefore, the material portion of the evidence of PW-23 about he seeing the incident and the overt act attributed against the accused, all proves to be material improvement made by PW-23 in his evidence. Therefore, on the said aspect, the evidence of PW-23 is also not reliable. As such, the Crl.A.No.978/2012
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second major limb in the case of the prosecution becomes weakened.
56. It was also the argument of the learned counsel for the accused that commission of the assault was not disclosed before the doctor by the alleged injured PW-22 when she was examined by her. As such, the case of the prosecution is not reliable. In his support, learned counsel relied upon a judgment of Hon'ble Supreme Court in the case of Rehmat -vs- The State of Haryanaa, reported in 1996(3) All India Criminal Law Reporter 231. In the said case involving an alleged offence under Sections 307 and 393 of Indian Penal Code, while appreciating the evidence of PW-4, the Hon'ble Apex Court was pleased to observe that "the injured (PW-
4) had not disclosed the name of the assailant to the doctor who had treated him after the incident. Admittedly in a medico legal case, the doctor is supposed to write down the history of the injured. Crl.A.No.978/2012
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But, in the case before it, PW-4 had not indicated the name of the assailant. The names of the assailants were disclosed only at the time when the complaint was recorded by a Police Officer subsequently. Therefore, the argument of the learned counsel for the appellant/accused that the appellant was later on implicated in the crime at the instance of the complainant and his friends was found to be believable."
In Bhargavan and others (supra), which decision was relied upon by the learned Addl.State Public Prosecutor, the Hon'ble Supreme Court on the very same point of alleged non-disclosure of the names of the assailants before the doctor who treated the injured at the first instance, was pleased to observe that the primary duty of the doctor is to treat the patient and not to find out by whom the injury was caused. As such, non-disclosure of the names to the doctor is really of no consequence. Crl.A.No.978/2012
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Thus, in the instant case also, primary duty of the doctor at Madhugiri Hospital was to treat the injured who was before her and not to collect the details of the assailant. As such, she has not recorded the names of the assailants. However, in the wound certificate at Ex.P-35, she has recorded the history as "history of assault". Further, according to the said doctor, the police had brought the injured to her. Therefore, non-disclosure of the names of the assailants before the doctor by the injured is not fatal to the case of the prosecution.
57. The further doubt that arise in the case of the prosecution is about alleged recovery of the sickle at MO.16 which is said to be the weapon used in the commission of the crime. According to the prosecution, which can be gathered from the evidence of PW-39, the main Investigating Officer, after accused was produced before him, recorded his voluntary statement and based upon the same, he Crl.A.No.978/2012
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visited Kasinayakanahalli and recovered the sickle and also the clothes worn by the accused at the time of commission of the crime and then he also wrote the panchanama. Except stating that he recovered sickle, PW-39, the Investigating Officer, no where in his evidence the witness has stated as to what statement was given to him by the accused in the voluntary statement. He has also not stated as to what procedure he followed in the alleged recovery of the alleged weapon and also the clothes of the accused. No where he has whispered that he summoned panchas and that in their presence, the accused made the statement or the accused led all of them to a particular place and shown them or produced before them the weapon and clothes. Therefore, merely because the alleged panchas are said to have stated that a panchanama as per Ex.P-17 was drawn in their presence, by that itself, it cannot be presumed that accused had made any voluntary Crl.A.No.978/2012
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statement before the Investigating Officer revealing that he would show the place where the weapon was kept by him.
In that regard, learned counsel for the appellant/accused relied upon a judgment of Hon'ble Privy Council in the case of Pulukuri Kottaya and others -vs- Emperor reported in AIR (34) 1947 Privy Council 67. In the said judgment, while analyzing the scope of Section 27 of the Indian Evidence Act, the Hon'ble Privy Council was pleased to observe in Paragraph-10 of the judgment that "
Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be Crl.A.No.978/2012
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deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved." Thus, according to the said observation of the Hon'ble Privy Council, the Police Officer must first depose as to what disclosure was made by the accused before him in his alleged voluntary statement and thereupon, he can proceed to establish the recovery said to have been made at the instance of the accused. As already observed, in the instant case, PW-39 - the Investigating Officer, except stating that he recorded the voluntary statement of accused, has no where deposed as to what that statement was and how he was led to the alleged place of recovery and subsequently made recovery of the weapon and clothes. Therefore, the alleged recovery of the sickle at MO.16 said to have been made in this case by the Investigating Officer at the instance of the accused creates serious doubt, as such, the same cannot be relied upon. Crl.A.No.978/2012
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58. According to PWs.22 and 23, the incident of murder of deceased Srinivasa has taken place between 3.00 a.m. and 4.00 a.m. According to PW- 24 - Hanumantharayappa, the father of the deceased and PW-25 - Narasimhaiah, the elder brother of the deceased, on the previous evening of the date of incident, when deceased is said to have left to the land where the sand was said to have been stored for the purpose of keeping a watch on it and to sleep there, the deceased had finished his supper at 6.30 p.m. (in the evening) itself and had left home. However, the post mortem report at Ex.P-33, supported by the evidence of PW-38 - the doctor, who conducted the autopsy on the dead body, show that the stomach was containing partially digested food, so also the small intestine. But, the doctor in his cross-examination has stated that the deceased had taken food four hours prior to his death. According to PWs.22 and 23, the incident had taken Crl.A.No.978/2012
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place between 3.00 a.m. and 4.00 a.m. in the morning. Four hours prior to that would be either previous night 11 O'clock or midnight 12 O'clock. But, as already observed, both PWs.24 and 25 have stated that deceased had consumed food at 6.30 p.m., which is five to six hours prior to the expected time of intake of food as per post mortem report. Therefore, as rightly submitted by the learned counsel for the appellant, there is discrepancy regarding the timings of the murder also.
59. The next doubt that crept in the case of the prosecution is regarding the non-examination of one Sri Konda @ Narasimhamurthy. According to PW-22, the complainant, who has stated both in her complaint, as well in her evidence as PW-22 that immediately after the incident when both herself and her husband went to Kasinayakanahalli, they informed the details of the incident to said Konda @ Narasimhamurthy, who is said to be the driver of the Crl.A.No.978/2012
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tractor under one Hanumantharayapp. Thus, the said Narasimhamurthy (who is not PW-25) is an important witness but was not examined by the prosecution. Had he really been examined, he would have given the first hand information as to what he was told by none else than the alleged eye witness PW-22 imediately after the incident. The same would have helped in assessing whether the overt acts alleged by PW-22 in her evidence for the first time and which were the improvements made by her in the evidence, were truly the improvement in its strict sense. The non-examination of said Narasimhamurthy by the prosecution not only prevents the prosecution from strengthening its case, but further strengthens the cloud of doubts that have already been crept in this case.
60. The next aspect is regarding delay caused in FIR reaching the jurisdictional Court. As already observed above, the police had the first information Crl.A.No.978/2012
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about occurrence of the cognizable offence at 4 O'clock in the morning on the date of the incident. However, according to prosecution, a regular complaint (as they call it) was received by them and registered in their station as a crime only at 9.30 a.m. in the morning. However, the first information report has reached the Court only at 2.30 p.m. as could be seen from the FIR at Ex.P-26. According to the appellant, the distance between the complainant police station and the Court is only 16 KMs., but the same is 21 KMs. according to the prosecution. Admittedly, the complainant police station comes on the main road. As such, there are good conveyance facility to cover the said distance of 21 KMs. Therefore, at the best, the complainant police who carried the FIR to the police station could have taken a maximum of 30 to 45 minutes to reach the place, whereas, there is 5 hours difference between the registration of FIR and receipt of the same by the Crl.A.No.978/2012
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Court. The said delay also has remained unexplained in the evidence of the prosecution witnesses. The said aspect also, in the circumstances of the case, further creates some more doubt in the case of the prosecution.
Lastly, regarding motive behind the alleged crime is concerned, according to the prosecution and as stated by PW-22 in her evidence, there was dispute between accused-Thimmareddy and deceased-Srinivasa with respect to business in sand. But, she has not attributed the same as a motive behind the commission of the crime. Though she said to have stated in her complaint at Ex.P-22 that three days prior to the date of the incident, a quarrel had taken place between the accused and the deceased, but neither she has stated as to with which accused (at the time of complaint, two accused were shown) the dispute was there nor she has stated in her evidence about the said quarrel said to have been Crl.A.No.978/2012
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taken place three days prior to the incident. Therefore, the said motive alleged in the commission of crime remains not established.
61. Another motive attributed by the prosecution is that accused No.3 Nagareddy was due to pay a sum of Rs.25,000/- to the deceased towards the agreement said to have been entered into between them, as such, in order to retain that balance amount of Rs.25,000/- with him, the accused committed the alleged guilt. On that point, what is to be noticed is that the said agreement is basically said to have been entered into between accused No.3 - Nagareddy and the deceased wherein the present appellant/accused had no role to play.
Secondly, even according to the prosecution, the said agreement which is at Ex.P-3 is dated 22.6.2011. According to the said agreement, accused No.3 had already paid a sum of Rs.1,10,000/- to the deceased Crl.A.No.978/2012
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and a balance of only sum of Rs.25,000/- was remaining. The same is the evidence of PWs.22 and 23 also. As per the agreement at Ex.P-3, the time limit to pay the balance amount of Rs.25,000/- was one month from the date of agreement i.e., 22.6.2011. The alleged incident has taken place in the same night which was falling in the early hours of 23.6.2011. Thus, it cannot be imagined that accused No.3 who is said to have paid a major portion of the agreement amount which is a sum of Rs.1,10,000/-, would think of retaining a small balance amount of only sum of Rs.25,000/-. Further he also cannot think of killing a person just for a sum of Rs.25,000/-, that too, on the very same day when he entered into an agreement. As such, the said aspect of motive alleged by the prosecution in this case is also not proved. No doubt, learned Addl.State Public Prosecution in his argument submitted that when the ocular evidence is there, the very motive goes to the Crl.A.No.978/2012
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background. That would have been true, provided the evidence of PWs.22 and 23 inspires any confidence to believe it. Since in view of the analysis made above, their evidence proved not said to be believed upon, it is required by the prosecution to prove the motive also in this case. However, the prosecution has failed to prove even the said aspect of motive.
62. It is also the case of the prosecution that the accused attempted to commit murder of PW-22 Pushpalatha also. It is her evidence that when she intervened while accused is said have been assaulting deceased Srinivasa, she also sustained injuries. The accused assaulted her on her left finger and forehead with the same sickle. On this point, the medical evidence of the doctor at PW-38 goes to show that the injury sustained by PW-22 was only two lacerated wounds, one on forehead and one on ring finger of the left hand. According to the doctor, the said lacerated wound on the forehead is not possible to be Crl.A.No.978/2012
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caused by the tip of sickle at MO.16. Thus, it is doubtful as to whether the said weapon has got any nexus to the injury sustained by PW-22. Further had really the accused intended to take away the life of PW-22, nothing had prevented them to fulfill their purpose, since they were two in number and she was a lonely lady and also they were said to have assaulted with weapon at MO.16. On the contrary, the two injuries found on PW-22 are said to be simple injuries as could be seen in the medial evidence of PW-38, as well the wound certificate at Ex.P-35. Therefore, the case of the prosecution that the accused attempted to cause the murder of PW-22 does not deserves to be believed.
63. Thus, the above analysis of evidence of the prosecution witnesses though go to show that the death of deceased Srinivasa has occurred in the intervening night of 22.6.2011 and 23.6.2011 and that his death was homicidal, but the evidence of Crl.A.No.978/2012
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prosecution witnesses, more particularly, the evidence of PWs.22 and 23, who were projected as eye witnesses to the alleged incident, does not inspire any confidence to believe them. It is only based upon the said evidence of PWs.22 and 23, who were projected as eye witnesses to the incident, the Court below proceeded to hold the accused guilty of alleged offences.
64. The Court below has not appreciated the evidence before it in their proper perspective. Thus, it is a perverse judgment which led to passing an erroneous judgment by it. Added to this, as already found out in the analysis made above, there are several other major discrepancies in the case of the prosecution letting in it serious doubt to believe its case. Naturally, the benefit of all those doubts ought to have been given to the accused. The trial Court once again failed to notice the existence of those doubts in the prosecution case which has resulted in Crl.A.No.978/2012
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denying the accused the benefit of those doubts. Therefore, we have no hesitation to say that judgment of conviction and order on sentence passed by the Court below is perverse, erroneous and deserves to be set aside. Giving the benefit of doubt, the accused/appellant deserves to be acquitted of the alleged charges made against him. For the said purpose, the judgment of conviction and order on sentence under appeal deserves to be interfered with. Accordingly, we proceed to pass the following order :
ORDER The Appeal is allowed. The judgment of conviction and order on sentence dated 23.08.2012, passed by the III Addl.Sessions Judge and Spl.Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989, at Tumakuru, in Spl.C.No.297 of 2011, is set aside. The appellant/accused No.1 is acquitted of the charges punishable under Section 302 read with Section 34 of Indian Penal Code, Crl.A.No.978/2012
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Section 307 read with Section 34 of Indian Penal Code, 120-B of Indian Penal Code and under sub- Clause (v) of Clause (ii) of Section 3 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. Consequently, the accused/appellant is set at liberty. The jail authorities are hereby directed to set him at liberty, provided the accused is not required to be detained in custody in any other case/s.
In view of disposal of main Appeal, IA.1/2012 seeking suspension of sentence does not survive for consideration. Accordingly, the same is disposed of.
Sd/-
JUDGE Sd/-
JUDGE bk/ykl/mr