Karnataka High Court
A.L. Ravi vs State Of Karanataka on 31 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.808/2014
C/W
CRIMINAL APPEAL NO.802/2014
CRIMINAL APPEAL NO.810/2014
CRIMINAL APPEAL NO.938/2014
CRIMINAL APPEAL NO.94/2015
IN CRIMINAL APPEAL NO.808/2014:
BETWEEN:
A.L. Ravi
S/o Lakke Gowda
Aged about 35 years
Lecturer, Govt. P U College
Alur Hassan District.
And R/o Ammagondamahally
Shantigrama Hobli
Hassan District.
... Appellant
(By Sri C.H. Hanumantharaya, Advocate)
AND:
State of Karnataka
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by Mudigere Police Station
Chikamagalur District
by SPP High Court Buildings
Bangalore-560 001.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section 374(2)
of the Cr.P.C praying to set aside the order dated
4/5.8.2014 passed by the II Addl. Sessions Judge,
Chikmagalur in S.C.No.139/2008 convict the
appellant/accused for the offences punishable under
Sections 449, 302 and 307 r/w Section 34 of Indian
Penal Code.
IN CRIMINAL APPEAL NO.802/2014:
BETWEEN:
Smt. Lakshmamma
Aged about 66 years
W/o Krishnegowda
R/at No.1102/A,
Near St. Mary School
T. Dasarahalli
Bangalore-560 057.
... Appellant
(By Sri Ashok Naik & Sri Ganapathi, Advocates)
AND:
1. Sri Lakkegowda @ Rajanna
S/o Thimme Gowda
Aged about 70 years
Working as Agriculturist
R/at Ammagondanahalli Village
-3-
Shanthigrama Hobli
Hassan District-573 220.
2. Smt. Susheela
W/o late H.K. Basavaraju
Aged about 31 years
Working as Advisor
Reliance Life Insurance Corporation Ltd.,
Jayanagar 3rd Block, and
Customer Supporter in Emphasis Bagmane
Tech Park, C.V. Raman Nagar
Permanent Resident of
House No.304, 4th Cross
Devasandra, K.R. Puram
Bangalore.
3. State by Mudigere Police
Mudigere-577 326
By State Public Prosecutor
High Court of Karnataka
Bangalore-560 001.
... Respondents
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section 372 of
the Cr.P.C praying to set aside the judgment and the
order of acquittal dated 4.8.2014 in so far as the
respondent Nos.1 and 2/accused No.2 and 3, passed by
the II Addl. Sessions Judge, Chikmagalur in
S.C.No.139/2008 by allowing this appeal. Convict and
sentence the respondent No.1 and 2 for the offences
punishable under Sections 120B, 449, 302 and 307 r/w
Section 34 of Indian Penal Code. Which they have been
charged in accordance with law.
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IN CRIMINAL APPEAL NO.810/2014:
BETWEEN:
Sri Mohan Kumar
S/o Subramanya
Aged about 30 years
Gandhi Nagar, Channapatna
Holenarasipura Road
Hassan District-573 201.
... Appellant
(By Sri B.V. Pinto, Advocate for
Smt. S. Dhanalakshmi, Advocate)
AND:
State by Mudigere Police
at Chikmagalur
Represented by S.P.P. High Court
Bangalore-560 001.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section 374(2)
of the Cr.P.C praying to set aside the order dated
4.8.2014 passed by the II Addl. Sessions Judge,
Chikmagalur in S.C.No.139/2008 convicting the
appellant/accused for the offences punishable under
Sections 449, 302 and 307 r/w Section 34 of Indian
Penal Code.
IN CRIMINAL APPEAL NO.938/2014:
BETWEEN:
Girish, S/o Sannaiah
Aged about 27 years
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Car Driver, House No.713,
Devegowda Nagara, Arakalagud Road
Hassan District-570 012.
... Appellant
(By Sri M. Sharass Chandra, Advocate)
AND:
State of Karnataka
by Mudiger P.S.
Represented by
Public Prosecutor.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section 374(2)
of the Cr.P.C praying to set aside the order dated
4/5.8.2014 passed by the II Addl. Sessions Judge,
Chikmagalur in S.C.No.139/2008 convicting the
appellant/accused for the offences punishable under
Sections 449, 302 and 307 r/w Section 34 of Indian
Penal Code.
IN CRIMINAL APPEAL NO.94/2015:
BETWEEN:
State by Mudigere Police
Mudigere,
Chikkamgaluru District-577 132
... Appellant
(By Sri Vijayakumar Majage, Addl. SPP)
AND:
1. Sri Lakkegowda @ Rajanna
S/o Thimmegowda
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Aged about 77 years
R/o Ammagodanahalli Village
Shantigrama Hobli
Hassan District-573 201.
2. Smt. Susheela
W/o late H.K. Basavaraj
Adviser, Reliance Life Insurance Co.,
Jayangar 3rd Block & Customer Supporter
in Emphasis Bagmane Tech Park,
C.V. Raman Nagar,
Bengaluru.
Native of H.No.304, 4th Cross
Devasandra,
K.R. Puram,
Bengaluru-560 016.
... Respondents
(By Sri C.H. Hanumantharaya, Advocate for
R1 & R2)
******
This Criminal Appeal is filed under Section 378(1)
and (3) of the Cr.P.C praying to grant leave to appeal
against the judgment and order of acquittal (only in so
far as accused Nos.2 and 3 are concerned) who are
respondents Nos.1 and 2 herein dated 4.8.2014 passed
by the II Addl. Sessions Judge, Chikmagalur in
S.C.No.139/2008 acquitting the respondent/accused
for the offences punishable under Sections 120B, 449,
307 and 302 r/w Section 34 of Indian Penal Code.
These Criminal Appeals having been heard and
reserved on 18.07.2018 coming on for pronouncement
of judgment this day Budihal R.B., J., delivered the
following:-
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JUDGMENT
Since all these appeals are arising out of the common judgment and order passed by the II Additional Sessions Judge, Chikmagalur, in SC.No.139/2008, dated 4/5.8.2014 and since common question of facts and law are involved in the appeals, they were taken up together to dispose of them by this common judgment.
2. By the impugned judgment and order, accused Nos.1, 4, and 5 have been convicted for the offences punishable under Sections 449, 302 307 r/w. Section 34 of IPC and accused Nos.2 and 3 are acquitted of the offences punishable under Sections 120B, 449, 307, 302 r/w. Section 34 of IPC. As against the conviction and sentence, accused Nos.1, 4 and 5 have preferred Criminal Appeal Nos.808/2014, 810/2014 and 938/2014 respectively, whereas the victim-complainant and the State being aggrieved by the order of acquittal passed in respect of accused Nos.2 and 3 have preferred -8- Criminal Appeal Nos.802/2014 and 94/2015 respectively.
3. The genesis of the case as per complaint at Ex.P1 filed by the complainant Lakshmamma W/o.late Krishnegowda is that she is residing in Mudigere Hand Post, RRS Guest House along with his son H.K.Basavaraju, who was working as an Officer in Agricultural University, Mudigere Hand Post. Her native place is Heggatta Village, Gandasi Hobli, Arasikere Taluk. She is having two male and two female children. About five years' back her son H.K.Basavaraju got married with Susheela D/o.Lakkegowda of Hammagondanahalli and after the marriage, about 8 to 9 months the couple led happy marital life. As there was difference of opinions between them, the said Susheela left her husband and staying in her parental house. There used to be galata between the family of Basavaraju and his wife Susheela often and in that -9- regard, a case was also pending in Tiptur Court. It is further stated in the complaint that when the complainant's son Basavaraju was working at Madhugiri, Susheela has taken his belongings with her and in that light a case is also pending in Arasikere Court. On 16.4.2008 at about 6.30 a.m., when herself and her son Basavaraju were sitting, they heard knocking sound of the door and immediately when Basavaraju went and opened the door, he saw one Ravi, brother of Susheela and other unknown persons standing and all the three were holding knife. Accused No.1-Ravi started abusing Basavaraju in filthy language by stating as he has spoiled the life of his sister Susheela, he will not leave him. By saying so, accused No.1 assaulted with knife on the back of Basavaraju and among other two persons who were with Ravi, one person assaulted Basavaraju with knife on his head and another person assaulted on his stomach and as a result of the same, Basavaraju fell down. When the
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complainant went for his rescue, accused No.1-Ravi by saying that he will also not leave her, assaulted with knife on her left arm and the other two persons also assaulted on left portion of under arm and another person assaulted with knife on her head and caused the injuries. After hearing hue and cry of the complainant, the neighbours Srinivasmurthy, Revanna and others came there. By seeing them, accused No.1-Ravi and others ran away by holding the knife. Thereafter, the said neighbours shifted and got admitted the complainant and her son Basavaraju to Mudigere Government Hospital for treatment, where the complainant's son Basavaraju succumbed to the injuries. Therefore, the complainant requested to take legal action against Ravi and other persons who have killed the deceased Basavaraju and also tried to kill her. On the basis of the said complaint, a case was registered in Crime No.50/2008 by Mudigere police as against accused Nos.1 to 5 for the offences punishable
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under Sections 302, 307 r/w. Section 34 of IPC. After completion of investigation, charge sheet was filed under Sections 449, 302, 307, 120B r/w. Section 34 of IPC. Thereafter, the committal Court committed the case to the Sessions Court after complying the mandatory provisions. The Sessions Court took cognizance and secured the presence of the accused. After hearing the learned Public Prosecutor and the learned counsel for the accused, prepared the charge for the offences punishable under Sections 120B, 449, 302 307 r/w. Section 34 of IPC, which was read over and explained to the accused. They pleaded not guilty and intended to face the trial and as such the trial was fixed.
4. In order to prove its case, the prosecution in all has examined 33 witnesses and got marked 56 Exhibits and 14 Material Objects. Thereafter the statement of the accused came to be recorded under Section 313 of Cr.P.C. by preparing the questionnaire. The accused
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denied the questions and incriminating material put against them. They have not lead any evidence, but during the course of cross-examination, they got marked Ex.D1 to D12. After hearing the learned counsel on both sides, the impugned judgment and order came to be passed by the trial Court. Assailing the same, these appeals are preferred before this Court, by accused Nos.1, 4 & 5 and the complainant as well as by the State.
5. We have heard Sri C.H.Hanumantharaya, learned counsel appearing for accused No.1-appellant in Criminal Appeal No.808/2014; Sri B.V.Pinto, learned counsel appearing for accused No.4-appellant in Criminal Appeal No.810/2014; Sri M. Sharass Chandra, learned counsel for accused No.5-appellant in Criminal Appeal No.938/2015; Sri Ashok Naik, learned counsel appearing on behalf of the complainant, as well as Sri
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Vijayakumar Majage, learned Additional SPP for the State.
6. Learned counsel for accused No.1 submitted that though PWs.1 and 3 are the eye witnesses to the alleged incident, actually they are not the eye witnesses and this fact has not been properly appreciated by the trial Court. He further submitted that the evidence of PW.1 who is considered to be a star witness and also the complainant contradicts with the evidence of the doctor who treated the injured first and also the evidence of PW.2. PW.1 has sustained two injuries. There is no match to assaulted injuries and her say, but actually there were 22 injuries found over the body of the deceased. He further submitted that PW.1 knows use of the weapons and type of the weapons and types of injuries which would be caused by such weapons. Only with an intention to falsely implicate accused No.1 PW.1 has falsely deposed before the Court. He further
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submitted that there is no corroboration with the injuries and the weapons used for commission of offence. He further submitted that the evidence of PWs.14 and 15 clearly goes to show that accused No.1 was in the evaluation centre at Bengaluru and even the co-evaluators have deposed that at about 11.00 a.m. accused No.1 was evaluating the papers. He further submitted that the evidence of PWs.14 and 15 clearly established the fact that accused No.1 was not present at the place of incident and it is highly impossible to cover the distance of 300 kms. from the place of incident to the centre where the evaluations were going on. He further submitted that the alleged incident has taken place at about 6.30 a.m. and the brother-in-law of accused No.1 has dropped accused No.1 to the evaluation centre at about 9.00 or 9.20 a.m. which itself clearly goes to show that accused No.1 was not present at the place of the alleged incident. He further submitted that accused No.1 has not specifically and
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definitely taken the plea of alibi and as such there is no burden on him to prove the same, but the evidence which has been produced by the prosecution has established the fact that accused No.1 was not present at the place of the alleged incident and as such no incriminating questions have been prepared on the basis of evidence of PWs.14 and 15. In that light, it is contended by him that when no incriminating material has been raised by the Court, which itself indicates that the contention taken up by accused No.1 has been proved. This aspect has not been properly and legally evaluated and decided by the trial Court and it has erroneously come to the conclusion and convicted accused Nos.1, 4 and 5. He further submitted that it is clear from the evidence of PWs.29 and 30, they came to know that accused No.1 was in the evaluation centre and there were records to show that he worked in the evaluation centre. Though during the course of investigation, PWs.29 and 30 have collected the
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Registers and after seeing the same, the said Registers have been not made as part and parcel of charge sheet and even the said Registers including, the Attendance Register has been misplaced only with an intention to see that accused No.1 is convicted for the alleged offence. He further submitted that at the earliest point of time, when accused No.1 applied for bail, in the bail application also, he has taken the contention that he was working in the evaluation centre at the time of the alleged incident. The stand taken in the bail application ought to be considered at the time of deciding the main case. In order to substantiate the said contention, he relied upon a decision of the Hon'ble Apex Court in the case of Jayantibhai Bhenkarbhai Vs. State of Gujarat, reported in (2002)8 SCC 165.
7. It is his further submission that the records are the best evidence, but the Investigating Agency has failed in their duty and have not produced any evidence
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and as such when once the impossibility has been proved, then the Court can presume and probablize that the said person was not there at the place of the alleged incident. In order to substantiate the said contention, he relied upon a decision in the case of Jumni and others Vs. State of Haryana, reported in (2014)11 SCC 355.
8. He further submitted that the accused can prove his defence not only by leading his evidence separately, even on the basis of the evidence produced by the prosecution, he can prove his case. In order to substantiate the said contention, he relied upon a decision in the case of Piara Singh Kewal Singh Resham Singh Vs. State, reported in LAWS(DLH) 2007 3 60.
9. He further submitted that the conduct of the accused ought to have been considered and appreciated by the trial Court. As could be seen from the records,
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immediately after the evaluation, accused No.1 has also collected the cheque from the evaluation centre and thereafter he called his wife over phone and informed that he was coming to her. Even PW.18, the Principal of the college where accused No.1 was working, has issued the information letter at Ex.P27 to the effect that on the date of the incident, accused No.1 did not come to the college. If really accused No.1 was involved in the alleged incident, definitely he could have absconded, but non-abscondence of accused No.1 itself clearly goes to show that accused No.1 was not involved in the alleged incident. He further submitted that some of the witnesses have been examined by the Investigating Officer belatedly only to circumvent the case of the prosecution. He further submitted that though the alleged incident took place at about 6.30 a.m. immediately highly qualified professors and other persons in the premises have gathered and by securing the vehicle, they took the injured to the hospital and
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information was also given. But the FIR has been received by the jurisdictional Court at about 1.45 p.m. though the case is registered at 8.00 a.m. which itself clearly goes to show that only with an intention to concoct and create the story and to implicate accused No.1, the said delay has been caused. Even the evidence of the Police Constable who carried the FIR to the Court is not worth believable. No Magistrate tells that the FIR should be given during lunch hours. This aspect has not been considered and appreciated by the trial Court.
10. It is his further submission that in the first instance, when the injured were taken to the hospital, the deceased Basavaraju was conscious and was able to speak. Even the complainant-PW.1 was also conscious and was able to talk, but the complaint which has been registered is that unknown persons have assaulted them. If really they have seen accused No.1 along with
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two more persons, definitely in the first instance when they met the Head of the Department and the doctor, they should have disclosed the name of accused No.1. The records clearly go to show that only after the advocate coming to the place of incident from Hassan, as a brain child of the said advocate, concoction and creation were made and thereafter the names of accused No.1 and other accused persons have been incorporated. This aspect has not been properly and legally considered and appreciated by the trial Court. He further submitted that there were amendments and deletions in the FIR and there is a delay in sending the FIR. All these things clearly go to show that in the first complaint which is said to have been filed immediately after the incident there was a suppression and subsequently a concocted complaint has been filed in collusion with PW.1 and also PWs.29 and 30.
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11. He further submitted that there is no motive for the alleged incident. As could be seen from the evidence of PW.6, it clearly goes to show that including PW.1 they used to meet in the village and it should have been within his knowledge about the settlement arrived at between the deceased and accused No.3-Susheela. Though there is no motive for the alleged incident, accused No.1 has been falsely implicated in the crime. He further submitted that no witnesses have stated that the deceased got married Manjula and as the deceased did not turn up for settlement with the said Manjula, it is the group belonging to Manjula who was grinding an axe against the deceased, might have eliminated him. This aspect has not been properly investigated by the Investigating Agency. He further submitted that as per the case of the prosecution that the neighbours, namely Vijayalakshmi, Vasanthi, Shruthi, Dhanalakshmi, were already there and were making the deceased to drink water, but the prosecution has not examined the
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material and important witnesses. When their evidence is suppressed before whom immediately after the incident, the deceased has expressed his view, non- examination of such witnesses is fatal to the prosecution case. He further submitted that PW.5- Dr.Srinivasamurthy, was having coffee in the house of Revanna-PW.19 and at that time, he heard screaming the voice and he peeped through window. Thereafter he rushed to the place and at that time, he saw three persons running away from the place by holding the weapons. But PW.19-Revanna in whose house PW.5 was having coffee, has not whispered the said aspect in his evidence. Under such circumstances, the presence of PW.5 in the house of PW.19 and he seeing the accused persons running away from the place and he identifying them is also not probable and reasonable. He further submitted that as per the evidence of PW.3, lights were not on and as she using the spectacles and was unable to see, then under such circumstances, her
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evidence to the effect that she has also seen the accused persons running away from that particular place is not reliable and acceptable. He further submitted that police records since from the beginning show the manipulation. The trial Court without considering the said aspect, has wrongly convicted the accused. It is also his submission that the case of the prosecution is that the accused persons conspired among themselves to eliminate the deceased, but in order to substantiate the said fact, the call details have not been produced. Even what efforts have been made to ascertain the said fact has also not been proved and produced either by the Investigating Agency or by the prosecution. He further submitted that the cheques which have been taken for the purpose of supari are also concocted and created. The said cheques have been given at the time of settlement entered into between the deceased and accused No.3 and they have been collected from the house after apprehension of the accused. This fact has
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also not been proved by the prosecution beyond all reasonable doubt. He further submitted that Test Identification parade was also not held when PW.5 has specifically stated that he has not seen the face and he has only given the description of the accused persons who were running, which itself will go to the root of the case and the accused are to be entitled for acquittal in this behalf. He further submitted that even the recovery of the knife and other incriminating materials has also not been proved and even the knife which was recovered has not been sent to FSL and no serology report was obtained, which clearly goes to show that the said weapons have not used for commission of offence. On these grounds, he prayed to allow the appeal filed by accused Nos.1, 4 and 5 and to set aside the judgment and order passed by the trial Court and to acquit the said accused persons.
12. It is his further submission that the appeal preferred by the State as well as the complainant cannot
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be entertained by this Court and even the trial Court after considering the material which has not been placed by the prosecution has rightly given the benefit of doubt to accused Nos.2 and 3, the appeals filed by the State and the complainant are liable to be dismissed. In order to substantiate the aforesaid contentions, the learned counsel for accused No.1 has also relied upon the following decisions:-
1. AIR 2003 SC 507 - Joseph Vs. State of Kerala
2. AIR 1979 SC 697 - Panda Nana Kare Vs. State of Maharashtra
3. AIR 2011 SC 349 - Subhash Vs. State of Haryana
4. Air 2008 SC 533 - Kapildeo Mandal & Others Vs. State of Bihar
5. 2004 Cri.L.J 2001 - Gabbu B. Lodhi and others Vs. State of M.P.
6. 2000 Cri.L.J 1566 - Tulshiram Bhanudas Kamble and others Vs. State of Maharashtra
7. AIR 1997 SC 1526 - Rehmat Vs. state of Haryana
8. AIR 1997 SC 454 - Devinder Vs. State of Haryana
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9. AIR 2003 SC 1813 - Rajeevan & Another Vs. State of Kerala
10. AIR 1982 SC 839 - Mohanlal Gangaram Gehani Vs. State of Maharashtra
11. 1997 Cri.L.J. 1788 - Narayan Kanu Datavale & others vs. State of Maharashtra.
13. Learned counsel appearing for accused Nos.4 and 5 by supporting the arguments of Sri C.H. Hanumantharaya also pray for acquittal of accused Nos.4 and 5 and to dismiss the appeals filed by the complainant and the State.
14. Per contra, the learned Additional SPP appearing for the State submitted that though there is no direct evidence about conspiracy, the conduct of accused Nos.2, 3 and 5 clearly goes to show that there was a conspiracy between the accused persons. Even MC.No.67/2008 has been registered and PW.32 summoned accused No.2 and the family members
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before the Court, which itself clearly goes to show that there was a dispute between the deceased and accused. He also submitted that the complainant-PW.1 has deposed specific overt acts of accused Nos.1, 4 and 5. When she is an eye witness to the alleged incident and if her evidence is cogent and worth believable, then under such circumstances, the same is liable to be accepted and the trial Court by accepting the same, has rightly convicted accused Nos.1, 4 and 5. He further submitted that when accused No.1 has taken the plea of alibi that he was there in the evaluation centre, heavy burden lies upon him to establish the same and if he fails to prove the same, it will be one of the adverse circumstances against him to prove his guilt. He further submitted that the alleged incident has taken place in between 6.15 a.m. and 6.30 a.m. and the evidence produced in this behalf by the prosecution clearly goes to show that accused No.1 was not seen in the evaluation centre prior to 11.00 a.m. He further submitted that nowhere
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in the cross-examination of PWs.14 and 15 it has been elicited that prior to 11.00 a.m. accused No.1 was there in the evaluation centre. He further submitted that PW.1 is an eye witness who has seen the accused persons and even she has specifically stated that prior to the alleged incident accused No.2 came along with accused Nos.4 and 5 to show the house of the deceased and at that time, they have seen them moving around the house, then under such circumstances, conducting of Test Identification parade is not necessary. He further submitted that the recovery of the weapon was also made at the instance of the accused by drawing mahazar at Exs.P7 and P8 and the weapon used is talwar and the same has been identified by PW.1 and even the doctor who conducted autopsy over the body of the deceased has opined that the said weapon may cause the injuries found over the body of the deceased. He further submitted that the evidence of PW.1 corroborates with the evidence of the doctor and other
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witnesses. He further submitted that the motive has also been proved by the prosecution. He further submitted that the FIR has been registered immediately at 8.00 a.m. and the same was handed over to PW.28. However, only because of the say of the Magistrate, PW.28 went during the lunch hours and submitted the FIR and as such there is no delay caused in sending the FIR. He further submitted that the incident has taken place in the early morning and accused were also identified and within 14 hours of the incident, they have been arrested. At the instance of accused Nos.4 and 5 in the presence of PWs.5 and 25, the weapons have been seized. He further submitted that FSL reports at Exs.P40 and P41 have been produced and only serology report has not been produced, thereby it is not going to take away the case of the prosecution, that too when the weapon was stained with blood. The accused- appellants have not made out any good grounds, so as to interfere with the judgment and order passed by the
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trial Court. He further submitted that the trial Court has wrongly acquitted accused Nos.2 and 3 though there is ample material to connect them to the alleged offence and 4 and also the conspiracy. Under such circumstances, learned SPP prays to allow the appeal filed by the State and to convict accused Nos.2 and 3 also.
15. Sri Ashok Naik, learned counsel appearing for the complainant-appellant in Criminal Appeal No.802/2014 vehemently argued by submitting that the present case is a scientist's murder case and the trial Court without proper appreciation of the material on record, has wrongly acquitted accused Nos.2 and 3. He further submitted that no false case is going to be registered by leaving the real assailants. The records clearly go to show that it is a preplanned murder by conspiring together by the accused. The trial Court has not properly looked into the evidence produced and
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appreciated the same, while acquitting accused Nos.2 and 3. He further submitted that accused No.1 has not made out any case where exactly he was there at 6.30 a.m. when the alleged incident took place. In the evidence produced, accused No.1 has stated that his brother-in-law left him about 9.20 a.m. to the evaluation centre, which itself clearly goes to show that he was involved in the alleged offence. He further submitted that when the plea of alibi has been taken by the accused, then the burden shifts upon him to prove the same. Even the statement recorded under Section 313 of Cr.P.C. cannot be treated as an evidence. The accused must produce cogent and acceptable evidence in order to accept the said plea. He further submitted that the motive which was there earlier between the deceased and accused No.3-Susheela was aggravated. This fact has been substantiated by MC.No.67/2008 and in order to prove the same, Ex.P45 has been produced. Even there was no relationship whatsoever
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between Manjula and deceased and he has not promised her to marry. Therefore, a false contention has been taken up by the accused. He further submitted that the matter was compromised and the divorce petition was prepared as per Ex.P32. All these things clearly go to show about the intention of accused No.3 and the other accused. Keeping in view the said material, accused Nos.1, 4 and 5 have been rightly convicted by the trial Court. But without proper appreciation of the evidence, accused Nos.2 and 3 have been acquitted though there is ample material to connect them to the alleged crime. On these grounds, he prayed to allow the appeal filed by the complainant and convict accused Nos.2 and 3 and to dismiss the appeals filed by accused Nos.1, 4 and 5 by confirming the judgment and order passed by the trial Court. In order to substantiate his contention he has relied upon the decisions in State of M.P. Vs. Ramesh and another, reported in (2011) 5 SCR 1; Viijay Shankar Sinde Vs.
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State of Maharashtra reported in (2008) 2 SCC 670; K.M.Muniswamy Reddy Vs. State of Karnataka reported in ILR 1992 Kar 2543; K.R.Purushothaman Vs. State of Kerala, reported in (2005) 12 SCC 631.
16. We have perused the grounds urged in the appeal memorandum of all the appeals, judgment and order passed by the Court below convicting appellants- accused Nos.1, 4 and 5 and acquitting appellants- accused Nos.2 and 3, perused the oral and documentary evidence produced by the prosecution before the trial Court, the decisions relied upon by the learned counsel for the appellant-accused No.1 and also considered the oral submissions made by learned counsel for the accused and also the learned Additional State Public Prosecutor for the State in respect of all the five appeals.
17. As we have already narrated above, as per the contents of complaint Ex.P1, P.W.1 Laxmamma is the
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complainant and she claims that she is the eyewitness to the alleged incident. It is also the prosecution case that she is injured eyewitness. So far as the injuries are concerned, we have perused the materials on the side of the prosecution. The injury certificate of P.W.1- complainant is produced under Ex.P14, which shows that she has sustained three injuries viz., (i) Cut wound left axilla 8x2x2 cms. (ii) Cut wound over left arm 10x3x3 cms. (iii) Swelling over scalp right side. Doctor has opined that injury nos.1 and 2 are grievous in nature and injury No.3 is simple in nature. The doctor who treated P.W.1-complainant is also examined as P.W.11.
18. P.W.11-Dr.Farooq Junaida deposed in his evidence that from 2006 to 2009 he worked as Medical Officer in MGM hospital, Mudigere and weekly once he used to work in the said hospital. On 16.4.2008 at 7.15 a.m. when he was on duty in the said hospital one
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H.K.Basavaraja (deceased) and Laxmamma were brought to the hospital. Basavaraja had sustained severe injuries and his condition was serious. When he examined Basavaraja he could not get the pulse rate and was not able to record blood pressure. Then he was given emergency treatment. Even then the condition of Basavaraja did not improve and he expired. In that connection, P.W.11 sent intimation to the police. Thereafter, he examined Laxmamma, aged 63 years and noticed the above referred three injuries and issued injury certificate as per Ex.P14 on the basis of the entry made in the MLC register. The attested xerox copy of the original MLC register at page No.421 has been produced under Ex.P15. The intimation sent to the police is produced as per Ex.P16 and his signature is marked as per Ex.P16(a). On seeing M.O.1 to 3 before the Court, the doctor has opined that if Basavaraja and Laxmamma are assaulted with M.Os.1 to 3, the injuries
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which he has mentioned to both Basavaraja and Laxmamma could be caused.
19. In the accident register Ex.P15 it is mentioned that on that day at 6.30 a.m. three unknown persons assaulted Basavaraja in his house. When the same was suggested to P.W.11, he admitted the said suggestion as true. On mentioning the history of incident and on examining the body condition of Basavaraja, he has mentioned about the medical treatment. Thereafter, he examined Laxmamma at 7.30 a.m. He admitted the suggestion as true that whenever medico legal cases were brought, normally they will enquire the injured as to how they sustained the injuries and under what circumstances. He also admitted that in the accident register it is mentioned that at 6.30 a.m. in the house of Laxmamma at ZARS campus three unknown persons have caused injuries and as informed to him by Laxmamma, he has mentioned the same and at that
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time Laxmamma was stable and conscious. Thereafter, he saw the injuries on her body. He has deposed that injury Nos.1 and 2 are not on the vital organ, but denied the suggestion that injury No.3 is a trivial wound. At the time of issuing Ex.P14, he was not having the documents of Lakshmamma admitting to their hospital and getting the treatment. He denied the suggestion that he has falsely mentioned injury Nos.1 and 2 as grievous injuries. He admitted the suggestion as true that the investigation officer has not shown M.Os.1 to 3 earlier for getting his opinion and for the first time he is seeing the said material objects before the Court. He admitted that with the tip of M.Os.1 to 3 stab wounds could be caused.
20. Looking to the evidence of P.W.11 it establishes the case of the prosecution that P.W.1- Laxmamma has sustained three injuries.
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21. P.W.1-Laxmamma claims that she is the eyewitness to the incident. In the complaint she has mentioned that on 16.4.2008 at 6.30 a.m. when herself and her son woke up and were sitting, somebody tapped the door of the house, immediately her son Basavaraja went and opened the door. Then they saw Ravi, the elder brother of Susheela and others. All the three were holding knives in their hands and immediately after opening the door Ravi-accused No.1 abused her son in a filthy language as 'Soolemagane', he has ruined the life of his sister and that he will not leave him. Stating so, Ravi assaulted with the knife on Basavaraja on his back forcefully and two other persons also assaulted Basavaraja with knives. One assaulted on the head of Basavaraja and another on the stomach portion. Then Ravi fell down and when she went to rescue her son, at that time, accused No.1 stating that he will not leave her also, assaulted on her left arm with the knife and two other persons along with Ravi also assaulted her
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with knife. When she screamed loudly, the neighbours came.
In the examination in chief she has deposed in detail about the contents of the complaint Ex.P1 and in the further examination she deposed that one person staying in the said campus wrote the contents of Ex.P1. She has seen accused Nos.4 and 5 at the time of committing the murder and thereafter she has seen them in the police station. She has deposed that at Madhugiri accused No.2 and accused No.1 had brought one Puttaraju, rowdy 2-3 times and gave ill-treatment to her son. But the same has not been mentioned in the complaint and in her further statement. She has also deposed that two months prior to the incident accused No.4 had brought son of one Boganna on the bike and shown her house and at that time, she was in front of her house and thereafter, both of them went on the motorbike. She further deposed that accused No.1 assaulted her son on the back portion, accused No.4
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assaulted on the head of her son and accused No.5 assaulted on the chest, stomach, ribs and also on the back of her son. She also deposed that when she was asking her son as to why he has opened the door and went to rescue her son, accused No.1 by stating that they will not leave her also tried to assault her on her neck and when she turned, the blow fell on her left arm. Accused No.4 also assaulted on her head portion and accused No.5 assaulted with knife on the left middle portion of the shoulder. She further deposed that accused Nos.1, 4 and 5 dragged her son outside the house and assaulted him. When she screamed neighbours came and at that time all three accused persons ran away from the said place by holding knives in their hands.
In her detailed cross-examination she deposed that the contents of Ex.P1 is not in her handwriting. Witness voluntarily deposed that she narrated the contents of Ex.P1. She deposed that she knows one
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advocate from Hassan by name D.P.Ashok, S/o Puttaswamygowda. But she denied the suggestion that contents of Ex.P1 are in the handwriting of said Ashok. She also denied the suggestion that her elder son (P.W.6), D.P.Ashok, Advocate and others got prepared Ex.P1 after 12 noon and obtained her signature. But, she voluntarily deposed that she gave the complaint in the morning itself. It was suggested to the witness in the lengthy cross-examination that whatever she had deposed in her examination in chief has not been stated in her complaint and further statement.
22. We have carefully and cautiously gone through the evidence of PW1 and submission made by the learned Counsel for Accused No.1. It is well settled principles of law that complaint and FIR are not encyclopedia to include all the details about the incident. Complaint is filed to set the criminal law into motion. On perusal of further evidence of PW1, she
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denied the suggestion that when her son was working at Madhugiri one Anitha, a girl from Tumkur was preparing food in the house of her son. She also denied the further suggestion that when herself, her husband her deceased son went to Arsikere police station, police told her son to first send Anitha out of the house. She admitted that on 24.5.2008 one Manjula, wife of Dr.H.K.Basavaraju, Program Co-ordinator, KVK Mudigere, S/o Srinivas, Chattanahalli village, Hassan taluk gave application claiming that she is the wife of her deceased son Basavaraja and that she is entitled for all the death claims of Basavaraja. But the witness voluntarily deposed that said Manjula is not the wife of her son and she is not having acquaintance with her. She denied the suggestion that on that day at 6.00 a.m. three unknown persons holding weapons in their hands came to her house and tapped the door of the house. She further denied that she slept on the bed. She also denied the suggestion that on coming to know the
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tapping sound of the door her son opened the door and went out. She further denied the suggestion that by the time her son went out of the house the door was closed. She further denied that the three unknown persons assaulted her son and her son after getting blows screamed and on hearing the hue and cry of her son she woke up from the bed and opened the door and went out and by the time she opened the door and went out, the unknown persons also assaulted her. She denied the suggestion that when she went inside the house to bring water at that time her blood fell on 2-3 places inside the house. She denied the suggestion that when she screamed Revanna has not come to the spot. She also denied that Revanna has not come to the hospital along with her. She denied the suggestion that her daughters, relatives and son in laws came at 12.00 noon and at that time Ashok, Advocate of Hassan also came there. She denied further suggestion that by the time her relatives came to the said place, she already
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got prepared one complaint and it was against three unknown persons. She denied the suggestion that on 16.4.2008, she has not at all seen accused Nos.1, 4 and
5. She also deposed that as it was not clear that accused No.2 was showing the house of Rajashekar, she has not told the said fact before anybody and also as the son of Boganna showing her house to accused No.4 was also not clear, she has not stated the said fact also before anybody. She denied the suggestion that accused No.4 has not at all come to her house and he is totally unconnected, as such, she has not mentioned about the same in her complaint and further statement. When she was asked as to why she has not mentioned in her complaint that she can identify persons who came to her house, she deposed that since the police have not asked her, she has not stated the same. She has stated that two months earlier to the incident, son of Boganna brought accused No.4 and shown her house and at that time, she was in front of the house.
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Thereafter both of them went on the motorbike, but she has not mentioned about the same in her complaint and further statement. She has not observed the colour and registration number of the said vehicle and she was at some distance and was using spectacles as she was having short sight and headache. She denied the suggestion that accused No.2 along with accused No.4 has not at all come nearby the house of Rajashekar and that accused No.4 has not come near her house along with the house of Boganna and also denied the suggestion that accused No.4 has not at all participated in the alleged incident.
In the cross-examination by the advocate for accused No.5 she denied that she is giving false evidence as against accused Nos.4 and 5.
23. The defence of the accused is that when P.W.1 Laxmamma was taken to the hospital she gave the history of the incident that she was assaulted by three
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unknown persons and in that regard, it has relied upon the evidence of P.W.11-Dr.Farooq Junaida. In the evidence of P.W.11 he has deposed that when medico legal cases come to the hospital they will enquire with the injured as to how the injuries are sustained and under what circumstances. It is no doubt true P.W.11 has deposed in his evidence that he has mentioned that unknown persons have caused the injuries and when saying the same Laxmamma was alert and conscious. In this regard, we have perused the wound certificate under Ex.P14 pertaining to Laxmamma wherein it is stated that injuries have been caused at her residence at 16.4.2008 at 6.30 a.m. due to assault. If really she herself told that three unknown persons have assaulted her, then necessarily the doctor ought to have mentioned in Ex.P14 wound certificate that assault by three unknown persons, which is not mentioned. Apart from that, we have also perused the death memo issued by P.W.11 to the police, the contents of the same states
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that, 'Patient by name H.K.Basavaraj, S/o Krishnegowda, Mudigere brought with history of assault in serious condition. Patient expired in the hospital. Kindly do the needful'. Even in this intimation to the police, there is no mention that in the history it is mentioned by the persons who brought Basavaraja to the hospital that assault by three unknown persons. It is true in Ex.P15, extract of MLC register it is mentioned that Laxmamma and deceased Basavaraj were brought with the history of assault today morning at 6.30 a.m., at her residence ZARS campus, by three unknown persons. In her oral evidence also P.W.1 has deposed that she has not stated that three unknown persons assaulted her. We carefully perused the contents of Ex.P15, the MLC register extract wherein there is no specific mention that P.W.1 gave the history that assault by three unknown persons or that P.W.1 or Basavaraja or any other person told about the history of assault by three unknown persons. Therefore, the
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contention of the defence that P.W.1 and deceased Basavaraja themselves gave the history before P.W.11 that assault on them was by three unknown persons cannot be accepted and this particular evidence will not help the defence in any manner.
24. Apart from the above, let us examine whether prosecution has placed materials to establish the fact that P.W.1 Laxmamma, the injured is really the eyewitness and that she has seen all the accused persons assaulting her son.
P.W.1 being the injured witness, her presence at the place of incident at 6.30 a.m. is even supported by the documentary evidence Exs.P14 and P15. Leave apart this, even in her evidence, she had specifically stated before the Court the overt act of each of the accused persons where exactly they had assaulted over the body of the deceased Basavaraju as well as herself. This evidence of P.W.1 regarding the location of injuries
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on the body of the deceased is also corroborated by the photographs at Exs.P.20 to P.26. It is not brought on record by the defence that she has falsely implicated accused Nos.1, 4 and 5 as assailants leaving the real culprits and it is also not established as to what was the reason for her to leave the real culprits and to substitute accused Nos.1, 4 and 5 in their place. In the cross-examination it was suggested by the defence itself that three persons holding weapons in their hands came to the house of P.W.1 at 6.30 a.m. on 16.4.2008 and firstly they assaulted her son deceased Basavaraja and when she came out of the house, they also assaulted her and ran away from the said place and that she does not know who are those persons. This suggestion also establishes that fact that P.W.1 and her son Basavarja have sustained injuries at 6.30 a.m. in her house on that day. She was present at the place of the alleged incident and has witnessed all the acts of the accused. Even it is not disputed that immediately PW1 was taken
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to hospital along with deceased Basavaraju. This aspect is also corroborated by the evidence of PW11-the doctor who treated her and has also produced Wound Certificate at Ex.P.14. There is nothing to discard the evidence of PW1.
25. Next contention of the learned Counsel for the accused-appellant No.1 is that no test identification parade was held to identify the accused persons. It is a serious lacuna to the case of the prosecution. It is well established principles of law that ordinarily identification of an accused for the first time in Court by the witness should not be relied upon for the purpose of passing the order of conviction without a definite corroboration. Identification for the first time in Court cannot possibly be termed to be non-admissible but it is a matter of prudence and jurisprudential requirement that the same should be upon proper corroboration otherwise the justice delivery system may stand
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affected. Once the requirement of the concept of justice i.e., acceptability and credibility of the evidence of the witness stands completed, it would be difficult if not an impossibility to change a conviction only on the ground of failure to hold test identification parade. This proposition of law has been laid by the Apex Court in the case of Sarwan Singh -vs- State of Punjab reported in AIR 2003 SC 3652. Keeping in view the above said proposition of law on perusal of the evidence of PW1, it makes it clear that the alleged incident has taken place in broad light, she is also an injured witness that indicates her presence at the place and there is every chance to see the accused. Be that as it may. Even accused No.1 is related to PW1 and earlier also she has seen accused Nos.4 and 5 who came near, then under such circumstances, non-holding of test identification parade will not be fatal to the case of the prosecution. In that light, the contention of the learned Counsel is not acceptable. Same is rejected.
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26. In So far as accused No.1 Ravi is concerned, no doubt prosecution has produced the evidence of P.Ws.14 and 15 to show that accused No.1 not present at evaluation center. But it is the contention of the defence that though the accused No.1 has not specifically raised the plea of alibi but the evidence produced establishes the fact that he was not present at the place of incident and was present at the place of evaluation center. However, as per the prosecution case, accused No.1 was very much present at the scene of occurrence. The defence by way of cross-examination of P.Ws.14 and 15 tried to establish the fact that accused No.1 was at Bangalore on the date of incident and was deputed for evaluation of papers. It is the specific defence of accused No.1 that on 16.4.2008, the date of the incident, he was at Bangalore for evaluation of papers and he was not present at the spot. The distance from Mudigere to Bangalore is about 300 kms and it is highly impossible for a person to attend the
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evaluation work at Bangalore after committing the alleged offence. Keeping these things in mind, let us examine the evidence of P.Ws.14 and 15.
27. P.W.14 one Jayanna has deposed in his examination-in-chief that he is working as Lecturer at Government college Madhugiri from past three years. From 5.4.2008 to 16.4.2008 he was deputed for the work of evaluation of answer scripts of business studies paper at Sheshadripuram College, Magadi road, Bangalore. Along with him Kulkarni, Deputy Chief Examiner, Patil, Lecturuer, Mangalagouri, lecturuer and Ravi, lecturer were also present. Said ravi is accused No.1 before the Court. Evaluation work of the papers used to start at 9.30 a.m. everyday and close at 4.30 p.m. On 16.4.2008 at 9.30 a.m. the evaluation work started and he went at that time. Out of above mentioned persons, some of them came late and others attended to duty along with him. He has not observed
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at what time accused No.1 Ravi came to the centre for evaluation work. As 12 answer scripts were given to him he was conducting evaluation work which got completed at 2.30 p.m. He has stated that Mudigere police have not enquired with him, but he has submitted the report. But again he deposed that police wrote one report and read over the contents to him and obtained his signature. At this stage, at the request of Public Prosecutor the witness was treated as hostile and he was cross-examined by the Public Prosecutor wherein he admitted and deposed that he has stated before the police that accused No.1 Ravi might have come little late i.e., around 11.00 a.m. on that day. He admitted the suggestion as true that while carrying out the evaluation work, accused No.1 Ravi was sitting in front of his seat. He further deposed that since it was the last day of evaluation, as usual he came to the evaluation work at 9.30 a.m. and other AE were also
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conducting the evaluation work and that Ravi came to evaluation work at 11.00 a.m. In the cross-examination by the defence he has stated that 6-7 months after the evaluation work, police came and obtained his report and he has also put his signature to the said report. But he deposed that the report shown to him at that time does not bear his signature and as such, it is not the earlier report obtained by the police. He has stated that at 9.30 a.m. all the evaluators would sit in their respective seats and if there is some inconvenience of bus, some of the lecturers would also come little late. He has also deposed that till the evaluation of 12 papers he has not moved from his place and was involved in the evaluation work. He deposed that at 11.05 he went to toilet. He admitted the suggestion as true that except going to the toilet he has not at all left his seat and he has observed Ravi-accused No.1 was in his seat. He also deposed that he has not stated before the police that accused
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No.1 Ravi came at 11.00 a.m., but he has stated that he has seen him at 11.00 a.m. when he was returning from the toilet.
28. P.W.15 Mangalagouri, another lecturer deputed for evaluation work deposed in her evidence that on 16.4.2008 she went to evaluation centre at 9.45 a.m. Accused No.1 Ravi used to sit in a seat which is 5 ft. away from her seat. She does not know at what time Ravi came to the centre on 16.4.2008. When she went to the said hall, said Ravi was not there and she might have seen said Ravi in the hall at about 11.00 a.m. Police have enquired with her and recorded her statement. She has deposed that she has not stated before the police at what time Ravi came to the evaluation Centre. This witness was also treated as hostile. When cross-examined by the Public Prosecutor she deposed and admitted the suggestion as true that DCE would also give the answer scripts to the
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evaluators who come late to the centre for evaluation. When she saw accused Ravi it was 11.00 a.m. But she has not observed whether he was present or not earlier to that, since she was busy in evaluating the answer scripts. She admitted the suggestion that in her statement before the police she has not stated that when she went to her seat Ravi was not in his seat.
29. Looking to the evidence of these two witnesses it clearly shows that on 16.4.2008 accused No.1 had not at all been to the evaluation centre at the usual timings at 9.30 a.m. and that P.W.14 has admitted that he has submitted a report to the police signed by him wherein he has stated that accused No.1 has not at all come to the centre at 9.30 a.m. on that day and that he came at 11.00 a.m. The evidence of these two witnesses also shows that no other evaluators including P.Ws.14 and 15 have seen accused No.1 Ravi earlier to 11.00 a.m. immediately after commencement of the evaluation
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work at 9.30 a.m. This material clearly shows the absence of accused No.1-Ravi in attending the evaluation work till 11.00 a.m. on 16.4.2008. Though in the cross-examination, it was suggested to these witnesses that the relative of accused No.1 brought him and left at the evaluation centre at 9.20 a.m. but the said person has not been examined before the Court to support the said contention.
30. With regard to the distance of 300 km. from Mudigere to Bangalroe and the contention of the defence that it is not possible for a person to travel such a distance within 4 ½ hours, this contention cannot be acceptable because, it is possible for a person to travel 300 km. within 4 ½ hours by hiring a vehicle. Though it is the argument of learned counsel for accused No.1 that accused No.1 has not taken a specific contention of alibi and that prosecution itself has examined P.Ws.14 and 15 in this regard and that there is no burden on
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accused No.1 to prove the plea of alibi, the same cannot be accepted, because of the reason that ultimately, it is the contention of the defence that on the date of incident on 16.4.2008 accused No.1 was attending the evaluation work at Bangalore as per the scheduled time and he was not at the spot at the alleged date and time. Therefore, when the cross-examination of P.Ws.14 and 15 is on the line suggesting the said witnesses that accused No.1 was at Bangalore in the evaluation centre and not at the spot of alleged incident, then as per Section 103 of the Indian Evidence Act, it is for accused No.1 to place satisfactory and worth believable material to establish that he was not at the spot and that he was present at the evaluation centre. In this connection, we refer to the decision of Hon'ble Apex Court in the case of State of Haryana Vs. Sher Singh reported in AIR 1981 SC 1021. Since accused No.1 has not discharged such burden, his contention cannot be accepted.
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31. It is also the prosecution case that accused Nos.4 and 5 gave voluntary statements before the police as per Exs.P46 and P47 respectively and lead the police and panch witnesses to a place wherein from heap of bushes took out the material objects M.Os.2 and 3. In this connection it is relevant to refer to the evidence of P.W.7.
32. P.W.7-Chandrashekar deposed in his evidence that on 28.4.2008 at 5.30 p.m. after completing his duty himself and one Subramanya were proceeding to the house and when they were in the office gate police jeep came there. Along with the police accused Nos.4 and 5 were also present. Police told them that Basavaraj has been murdered and accused Nos.4 and 5 who used the knives for committing the said offence have thrown the knives near horticulture college and that they would conduct mahazar and asked them to act as panch witnesses. Then himself and Subramanya
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went with them. The police alighted accused No.4 near the college from the jeep. Accused No.4 from the place having the board of Mathigepura, from the heap of bushes took out a knife and handed over to the police. Police have noted down the same and packed and sealed the knife in a white cloth. The witness identified the same as M.O.2 and the mahazar as Ex.P7 and signature as Ex.P7(a). He further deposed that police asked accused No.4 to sit in the jeep and made accused No.5 to alight from the jeep. Accused No.5 from a further distance of 10-15 ft. from the place where M.O.2 knife was traced, took out a knife and produced before the police. In their presence, police kept the same in a white cloth and sealed it. Then police wrote the mahazar and obtained his signature and he identified the said knife as M.O.3 and mahazar as Ex.P8 and his signature as Ex.P8(a).
33. In the cross examination by learned counsel for accused No.4, P.W.7 has admitted the suggestion as
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true that the place at which the police have seen them is at the distance of 2½ - 3 kms. from the Mudigere police station. P.W.7 has deposed that there may be residential houses and shops nearby the said police station and even there may be movement of the people. The road nearby the police station is the crowded road. The witness admitted the suggestion as true that to come to the place at which the police said to have seen them, one has to cross thousands of people. The witness admitted the suggestion as true that the place at which the police have seen them is at the distance of half a furlong from handpost. They proceeded in the police jeep to the place of the mahazar. The witness denied the suggestion that the police were writing the mahazar in the vehicle itself. He has not observed as to what the police have written, from which hand accused No.4 took out the knife so also he has not observed as to how many police people were present at the said place and to which police, accused No.4 gave the knife.
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But he deposed that accused No.4 gave the knife to the police. The witness denied the suggestion that he is falsely deposing that accused No.4 took out the knife from the heap of bushes and given it to the police. The witness further denied the suggestion that for the first time, he is seeing M.O.2 knife before the Court.
In the cross examination by learned counsel for accused No.5, P.W.7 has deposed that he does not know the house number of C.W.18 Subramanya. But, the house of Subramanya is after 3-4 houses from his house. The witness admitted the suggestion as true that nearby the handpost, about 20-30 shops are there and it is a thickly crowded area. When police jeep arrived, they were having the tea and after having the tea, they came into RSS gate, which was the only gate to the campus. After passing into the said gate, they proceeded four feet ahead and when they were about to take a turn towards the house, police jeep came through the said gate and about 3-4 persons were present in the
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jeep. Inspector called them into the jeep. It is mentioned in the panchanamas at Exs.P.7 and P.8 that accused Nos.4 and 5 were brought in the police jeep. It is also mentioned in the mahazars that accused No.4 was made to sit in the jeep and accused No.5 was made to alight from the jeep. Accused No.5 after going about 10-15 feet away from the place where the jeep was stopped, he brought the knife and produced before the police. Police jeep was stationed at muthigepura board. He has not observed any special marks on M.O.3, but there were blood stains. He denied the suggestion that on 29.4.2008, the police came to his office and obtained his signature. He denied the further suggestion that he is falsely deposing that accused No.5 was brought by the police and he produced the knife. He denied the further suggestion that as the deceased Basavaraj was their friend and at the instance of the police, he is giving false evidence.
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34. G.Rudresh-P.W.30, who is the investigation officer in the case, has deposed in his evidence in the examination in chief that on 28.4.2008, PSI Santhosh Shetty and police constables Subramanya - 566, Harish
- 576, Vasanthkumar-21 of Mudigere police station produced accused Nos.4 and 5 before him at 9.00 a.m. He interrogated and apprehended them. Accused No.4 gave voluntary statement before him as per Ex.P.46 and Ex.P.46(a) is his signature and the signature of accused No.4 is at Ex.P.46(b). Accused No.5 gave voluntary statement before him as per Ex.P.47, Ex.P.47(a) is his signature and the signature of accused No.5 is at P.47(b). Accused Nos.4 and 5 as per the voluntary statements took P.W.30 and his staff to Hassan in the jeep. Accused No.4 phoned to N.H. Santhosh (C.W.15) and told to give the cheques which he has given and accordingly, C.W.15 came to Hassan police station and produced two cheques. Accused Nos.4 and 5 took P.W.30 and his staff nearby Muththigepura board.
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Accused No.4 took P.W.30 and the panch witnesses i.e., Subramanya and Chandrashekar towards North for about 200 feet from the board and towards the Lonton tree bushes on the western side of the drainage and by putting his hand in the middle of the said bushes, took out one knife and produced before him. He seized the knife in the presence of the panch witnesses under the mahazar Ex.P.7. Ex.P.7(b) is his signature and he has seen the knife (M.O.2). He has also seen dry blood stains at the tip portion of M.O.2. He put the said knife in the white cloth and packed and sealed and put the seal with letter 'P'. Then they came nearby Muththigepura board. Accused No.5 went about 50 feet towards west from the said board and on the drain, in between the Colocasia (kuruchalu) of bushes, he took out one knife and produced before him. He has seized the said knife in the presence of panch witnesses under the mahazar Ex.P.8 and P.8(b) is his signature. He has already seen the knife marked as M.O.3. He has seen
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the dried blood stains at the tip of the said knife. He put the said knife also in the white cloth, packed and sealed by using the seal with letter 'P'. Then he came back to the Mudigere police station and subjected the cheques, motor cycle, Tata Sumo vehicle and the knives to P.F. bearing No.59/2008.
35. P.W.33 in his evidence in the examination-in- chief has deposed that he recorded the voluntary statement of accused No.1 under Ex.P.56 on 27.2.2009, wherein accused No.1 stated that if he is taken, he will show the place where he has thrown the knife used for committing the offence. P.W.33 has deposed that his signature is at Ex.P.56(a) and the signature of accused No.1 is at Ex.P.56(b). He further deposed that accused No.1 led the police and panch witnesses namely Prasanna Kumar and Revanna nearby Handaguli village, Mudigere-Belur road and from the bushes, accused No.1 took out one kaththi and he has shown
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the place where it was. P.W.33 has further deposed that he conducted the mahazar in the presence of panch witnesses under Ex.P.29 and P.29(b) is his signature and the knife seized is already marked as M.O.1. He subjected the kaththi to P.F. No.7/2009 and on the same day, he produced accused No.1 before the Court. P.W.33 has further deposed that on 4.3.2009, he referred the kaththi to the medical officer of Mudigere hospital and on the same day, he received the opinion and the kaththi from the medical officer. The opinion is as per Ex.P.35.
Looking to the evidence of Dr. S. Kumar (P.W.12), who conducted post-mortem examination over the body of the deceased, he has deposed in his evidence in the examination in chief that he has given opinion as per Ex.P.18 and his signature is as per P.18(a).
36. We have also perused the FSL reports produced in the case as per Exs.P.40 and P.41. Under
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Ex.P.40, mud, controlled mud, the clothes belonging to the deceased and two knives and one havai chappal also belonging to the deceased were sent. The FSL report (Ex.P.40) shows that except item No.2 (controlled mud), there were blood stains on the other items. In Ex.P.41, only one article i.e., one kaththi was sent to FSL, which was also stained with blood.
We have further perused serology report at Ex.P.42, wherein it is stated that regarding the origin of stains, items Nos.1, 3, 4, 5, 6, 7, 8 and 9 are stained with the human blood. It is further mentioned that item Nos.4, 5, 6 and 9 are stained with A-group blood. The blood group of stains in item Nos. 1, 3, 7 and 8 could not be determined because the result of the tests were inconclusive. In respect of the items sent under Ex.P.41, below the result of analysis, a note is written that the stains in article No.1 were not sufficient to conduct further serological examination. Therefore, looking to the oral evidence of P.W.7 and P.W.30 and
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the documents at Exs.P.40, P.41 and P.42, they clearly go to show the use of said weapons i.e., M.Os.1 to 3 in committing the alleged offence. No doubt so far as the blood grouping is concerned, it is not ascertained, but the laboratory has offered an explanation as to why the blood grouping on the knives cannot be ascertained. The reason given is that the blood stain on the said items is disintegrated and not sufficient to ascertain the blood grouping. But the blood stain on the items at M.Os.1 to 3-knives is ascertained by the laboratory that it is of the human blood. Even if the grouping is not ascertained, we have discussed the oral evidence of P.W.1, the injured eye witness. Therefore, wherever there are eye witnesses to the incident, even if the blood grouping is not ascertained, it is not fatal to the case of prosecution to prove its case.
Therefore, looking to the evidence of P.W.7 and P.W.30, the documents at Exs.P.46 and P.47-voluntary statements of accused Nos.4 and 5 so also the
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documents at Exs.P.40 to 42, the prosecution has established the recoveries of M.Os.1 to 3 at the instance of the accused.
37. Looking to the cross examination of P.W.30, he has denied the suggestion that accused Nos.4 and 5 have not at all given their voluntary statement before him as per Exs.P.46 and P.47. He also denied the suggestion that he obtained the signatures of accused Nos.4 and 5 as per Exs.P.46(b) and P.47(b) on the blank papers. He denied the further suggestion that on the basis of Exs.P.46 and P.47, he has not at all seized any articles. He has not issued notices to the panch witnesses. He admitted the suggestion as true that the handpost is the place where there is sufficient crowd and more number of shops available. He deposed that the panch witnesses were standing at handpost and he requested them to act as panch witnesses and they agreed and accompanied him. He made an attempt to
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call the other panchas, but they were not available. He denied the further suggestion that he has not written the mahazars under Exs.P.7 and P.8 in the presence of panch witnesses at the said place and not seized any articles. He denied the further suggestion that he has prepared Exs.P.7 and P.8 in the police station.
38. We have also perused the cross examination of P.W.33, wherein he has denied the suggestion that by bringing pressure on accused No.1, he obtained his signature on Ex.P.56. He denied the further suggestion that he prepared it in advance and he put the date only in his hand writing. The witness admitted as true that the date is mentioned as '27' in his hand writing. He denied the further suggestion that he has created Ex.P.56 on 14.3.2009, accused No.1 never absconded and A1 not given the voluntary statement as per Ex.P.56 before him and he has created Exs.P.56 and
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P.29 in the police station. All these suggestions were denied by P.W.33.
We have also perused the oral evidence of P.W.19, the panch witness to the seizure mahazar Ex.P.29, wherein he has deposed in examination in chief that C.W.1 Prasanna Kumar phoned him and called him to K.V.K., but he has not told the purpose. When he went to K.V.K., the police were present there. The police took himself, Prasanna Kumar and others nearby Muththigepura on Gonibeedu road. Accused No.1 Ravi was present there. Then accused No.1 went nearby the bushes and took out one knife. The police taken one photograph. Thereafter, accused No.1 gave the said kaththi to the police. The same was measured and it was put into the clothes and sealed. P.W.19 has put his signature as panch witness and even Prasanna Kumar has also signed. The mahazar is at Ex.P.29. His signature is at P.29(a). He identified the said kaththi as M.O.1. P.W.19 also deposed that accused gave the said
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kaththi to the police. Even he has stated that the kaththi was covered in white cloth and a slip was pasted on the said cloth. He has signed on the said slip.
39. In the cross examination, P.W.19 deposed that when Prasanna Kumar phoned him, he has not enquired Prasanna Kumar as to for what purpose he was calling P.W.19. He went to the said place i.e,. KVK area. When Prasanna Kumar was in front of the said office, the distance was about half a kilometer. When he went to the place where Prasanna Kumar was there, 3-4 police constables were present. In the mahazar, it is mentioned that there is a school near Muthigepura. But after seeing the mahazar, witness deposed that it is not mentioned. But it is mentioned in the mahazar that when he went near Muthigepura school, accused No.1 was present at the said place. The witness further deposed that there is possibility for a person to keep the weapon like M.O.1 inside the shirt and he can move
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about. The witness denied the suggestion that on 27.2.2009, the entire day, he has not at all seen accused No.1 as well as M.O.1 kaththi at the said place. He denied the suggestion that for 2-3 days, he read the contents of the mahazar and giving the evidence before the court. P.W.19 has further denied the suggestion that on 27.2.2009, himself and Prasanna Kumar have not at all gone to the place and the police have not at all seized the kaththi and the police have not conducted any mahazar in his presence.
40. Therefore, looking to the cross examination of P.Ws.7 and 19, there is no specific suggestion by the defence that the police have planted the objects M.Os.1 to 3. Looking to the cross examination of P.Ws.7, 19, 30 and 33, except making the suggestions that accused Nos.1, 4 and 5 have not given the voluntary statements, not led the police and panchas to the place and not took out the knives and not produced before the police,
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nothing has been elicited from their mouth to disbelieve the case of prosecution. So far as the voluntary statements under Ex.P.46 by accused No.4, Ex.P.47 by accused No.5 and Ex.P.56 by accused No.1, looking to the cross examination of aforesaid witnesses, they have not denied the signatures on the said voluntary statements, but it was the suggestion that by putting pressure on the accused persons, their signatures were obtained on the blank papers. The witnesses denied all these suggestions. Therefore, the defence has not established that the signatures were obtained by pressure on the blank papers and subsequently, the voluntary statements have been prepared.
Considering all these matters, we are of the opinion that the prosecution has proved the recovery of weapons M.Os.1 to 3 with consistent and worth believable material.
41. We have perused the evidence of P.W.12-Dr. S. Kumar who deposed in his evidence that on 16.4.2008,
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Mudigere police made requisition to conduct the P.M. examination over the body of Basavaraj. Accordingly, he conducted post-mortem examination from 3.30 p.m. He noticed 20 external injuries as mentioned at Sl. Nos.1 to 20 of his deposition. He further deposed that on dissection of the dead body, he found the injuries. On examination of the skull, he found the fracture of the skull of the occipital and left parietal bones. On examination of the thorax, he found the perforation of the wall of the chest. Laceration of both lungs with haemothorax. Abdomen was intact. Other organs were intact.
The doctor (P.W.12) has also deposed that he is of the opinion that the death was due to severe hypo volaemic shock as a result of hemorrhage due to the injuries. He issued the P.M. report as per Ex.P.17 and his signature are Ex.P.17(a) and (b). He has also deposed that on 26.5.2008, Mudigere circle inspector had brought two small weapons i.e., M.Os.2 and 3 to
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him and sought his opinion. With regard to injury Nos.6 to 20, he has stated that the said injuries may be caused by M.Os.2 and 3. He has opined on examination of M.Os.2 and 3 that the above injuries may be caused by M.Os.2 and 3. M.Os.1 and 2 can also cause injury Nos.1 to 5.
42. Though this witness was elaborately cross examined by the defence but the actual defence of the accused itself is that three persons came to the house holding weapons in their hands, assaulted the deceased Basavaraju and thereafter, assaulted P.W.1. Therefore, this also establishes the prosecution case that the death of Basavaraju is the homicidal death.
43. The evidence of P.W.4 also supports the case of prosecution that there were injuries on the body of the deceased and the death of deceased is the homicidal death. We have perused the oral evidence of P.W.4 who
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conducted inquest mahazar proceedings over the body of the deceased.
44. As per the case of prosecution, the motive for the accused persons to eliminate Basavaraju is that Susheela (accused No.3) was given in marriage to deceased. The couple led the marital life happily only for a period of 8-9 months and thereafter, quarrel started in between the two. The materials also go to show that the deceased wanted to file the petition seeking divorce against his wife accused No.3- Susheela.
45. The evidence of P.W.13 goes to show that the couple wanted to file petition under Section 13(b) of Hindu Marriage Act for divorce of mutual consent. His evidence also goes to show that the accused No.3 Susheela demanded Rs.10.00 lakh from deceased Basavaraju, who agreed to pay Rs.7.00 lakh and to pay remaining Rs.3.00 lakh later. But the deceased put the
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condition that as accused Nos.1 to 3 along with the rowdy elements came to the house and taken away the articles including the gold ornaments and if they return the said articles, he is prepared to pay Rs.7.00 lakhs. A further condition was also added that A3 has to come before the Court and put her signature by giving the evidence. The evidence of P.W.13 also goes to show that accused No.3 did not come to the Court on that day. Therefore, they kept the petition ready but was not presented before the concerned Court and the same has been produced before the Court below as per Ex.P.32. The oral Evidence of P.W.1 (complainant) and P.W.6 (natural brother of the deceased) also goes to show that there was difference of opinion between the couple and for taking away the articles, the deceased filed the private complaint against the accused. Looking to these materials and the oral evidence of P.Ws.1, 6 and 13, they clearly go to show that the relationship between the deceased and accused No.3 was not cordial. There
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was difference of opinion which resulted in filing of cases before the Court. Though during the course of cross examination of P.Ws.1 and 6, it was suggested by the defence that one Manjula claims that she was the wife of deceased Basavaraju and as Basavaraju did not marry her as per the promise given to her, the persons on the side of the said Manjula might have committed the murder of Basavaraju, but the said suggestion was denied by P.Ws.1 and 6 and they never admitted that the said Manjula was the wife of deceased Basavaraju. Therefore, the prosecution has placed the material even to show the motive for accused No.1 to commit the murder and also to cause injuries to P.W.1 when she went to the rescue of deceased Basavaraju. The prosecution has also placed material to show that A1 committed the offence along with A4 and A5. The prosecution material also go to show that accused Nos.4 and 5 remained absconded and they were apprehended by the police. Even in the charge sheet, it is mentioned
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that civil and criminal cases are pending between the parties.
46. P.W.18 is the Principal of the Government Composite Junior College, Alur, who deposed in his evidence in the examination-in-chief that accused No.1 (Ravi) was serving as a lecturer in Commerce subject from 30.5.2005. He was on duty up to 31.3.2008. Thereafter, there was vacation to the college. Then accused No.1 came to the college and obtained the order of evaluation of the papers. The evaluation started from 5.4.2008, but he does not know when it was closed. P.W.18 has deposed that even after completion of the evaluation work, accused No.1 Ravi has not at all attended the college. Thereafter, he is seeing him before the Court itself. When the Circle Inspector, Mudigere came to the college and enquired about Ravi, then he gave the letter (Ex.P.27) about his absence in the college. Ex.P.27(a) is his signature. Even after that
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also, 3-4 times, Circle Inspector came to the college and enquired as to whether accused No.1 was coming to the college. But P.W.18 deposed that accused No.1 gave the request letter asking leave for the specific period and the said letter is given to Circle Inspector. The said letter is at Ex.P.28.
In the cross examination, the witness deposed that the vacation started from March 2008 and it was the summer vacation and it was for the period of two months i.e., till the end of May. Till the end of May, accused No.1 was not required to attend the college. Even after 31st May, from time to time, accused No.1 was giving the request letter to continue the leave.
47. The evidence of P.W.33 also goes to show that till filing of the charge sheet, accused No.1 remained absconding and thereafter, he surrendered before the Court and he was taken to judicial custody on 12.2.2009. Thereafter, the police made the request and
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sought accused No.1 to the police custody. Even accused Nos.4 and 5 were absconding and they were apprehended by the police on 28.4.2008. Therefore, this conduct of accused Nos.1, 4 and 5 goes to show that they were under the guilty conscious and hence, they remained absconding. If really, they were not involved in committing the said offences, there was no reason for them to remain absconding. If this conduct of accused is taken into consideration and appreciated along with the other materials, it clearly goes to show their involvement in committing the said offences. Though it is the contention of the learned counsel for accused appellant No.1 that the conduct of the accused ought to have been considered and appreciated as immediately after the evaluation, he collected the cheque and he called his wife over the phone and he saw P.W.18 and thereafter, he has applied for leave, but the above said discussion held by us clearly goes to show the malafide intention of accused No.1 to remain
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absconding for months together. Therefore, the contention of the learned counsel for accused No.1 that A1 never absconded, cannot be accepted, when in the charge sheet which was submitted before the Court, it is mentioned that accused No.1 remained absconding.
It is the contention of the appellants accused that there is delay in registering FIR and the first complaint has been suppressed. After due deliberation with the relatives of P.W.1, Ex.P.1 was prepared only to include A1. It is also the contention of the defence that FIR was manipulated by the police to suit their case and deliberately submitted the FIR and complaint before the learned Magistrate. In this connection, we perused the FIR (Ex.P.39). It is no doubt true that looking to the date of the offence, it is mentioned as 16.4.2008, but regarding time, it is mentioned as 6.30 a.m. But looking to the timing at 6.30 a.m., there appears to be over writing. But this will not take away the case of prosecution, because even in their suggestion during
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the course of cross examination to P.W.1 on page No.114 of paper book, it was suggested by the defence itself that on that day at 6.00 a.m., three unknown persons holding the weapons in their hands came to her house and tapped the door, however the witness denied the said suggestion. Even it was suggested that the said three unknown persons assaulted the son mercilessly with the weapons which was also denied by the witness P.W.1. The defence themselves suggested that the incident took place at 6.00 a.m., but by the unknown persons, therefore, regarding the time of the incident, it is admitted case that the incident took place morning at 6.00 hours. Therefore, in that view of the matter, even if such correction is there in the FIR (Ex.P.39), the court has to appreciate the entire material together and to see the cumulative effect emerging out of that and not to consider the materials in isolation. The endorsement by the Magistrate also goes to show that FIR was received from Mudigere P.S. P.C No.123 at
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about 1.45 p.m. Therefore, we do not find any deliberate and intentional delay in submitting the FIR before the concerned Court. In her cross examination, P.W.1 has also denied the suggestion that the contents of Ex.P.1 are in the hand writing of D.P. Ashok, an advocate from Hassan. She further denied the suggestion that her eldest son P.W.6 and D.P. Ashok and others prepared the complaint Ex.P.1 after 12.00 noon and then obtained her signature. P.W.1 has also denied the suggestion that her daughters, relatives, son- in-laws came to house at 12.00 noon and at that time, Ashok, the advocate from Hassan also came there. She denied the further suggestion that before their arrival, she already got prepared one complaint and it was against three unknown persons. She denied the further suggestion that she put her signature on Ex.P.1 at 12.00 or 12.30 noon. She also denied the further suggestion that her relatives torn the earlier complaint
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and then they prepared the present complaint Ex.P.1 at about 12.30 p.m. Considering all these materials, the contention of the defence that registration of the FIR and its submission before the Court was intentionally delayed in order to file a false case against the accused persons, cannot be accepted at all.
48. We have also perused the judgment of conviction and the order of sentence passed by the Court below. After re-appreciating the entire material both oral and documentary we are of the clear opinion that the learned Sessions Judge has taken all the aspects into consideration extensively and rightly came to the conclusion in holding that accused Nos.1, 4 and 5 guilty for the said offences and rightly convicted them. We do not find any illegality in the judgment and order of the learned Sessions Judge for convicting accused Nos.1, 4 and 5.
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So far as accused Nos.2 and 3 are concerned, it is an admitted fact even according to the case of prosecution that they have not actually participated in the incident of assault on P.W.1 and deceased Basavaraju. But it is the case of prosecution that accused Nos.2 and 3 conspired with other accused persons in committing the said offences. For this, regarding the conversation between the accused, no call details are collected. We have also perused para Nos.18 and 19 of judgment of the Court below and the Court below has observed that there are no supporting material to show that accused Nos.2 and 3 had conspired and instigated the other accused persons to commit the murder of the deceased Basavaraju. Therefore, so far as accused Nos.2 and 3 are concerned, the court below has rightly taken the view that there is no supporting material against A2, A3 and accordingly acquitted them for the said offences.
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This view is one of the possible views taken by the Court below. The appellate Court must be slow in interfering with the view taken by the Court below in case of acquittal of the accused.
49. We have also carefully examined the decisions relied upon by the learned counsel for appellant- accused No.1 cited supra. The factual matrix involved in the case on hand and the factual matrix involved in those reported decisions are not one and the same and in view of our reasoning adopted as per the above discussions, we are of the opinion that the said decisions will not come to the aid and assistance of the appellant accused No.1.
Perusing the entire material, we do not find any merit in the appeals preferred by accused Nos.1, 4 and
5. Accordingly, the appeals filed by the appellants- accused Nos.1, 4 and 5 in Criminal Appeal
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Nos.808/2014, 810/2014 and 938/2014 respectively, are dismissed as devoid of merits.
So also there is no merit and valid and justifiable grounds for this Court to interfere with the judgment in respect of acquittal of accused Nos.2 and 3. Therefore, the appeals preferred by the complainant and the State in Criminal Appeal Nos.802/2014 and 94/2015 respectively, as against acquittal of accused Nos.2 and 3 are also dismissed as devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE ck/-........ pages 1 to 32 bkp/-.......pages 33 to 61 cs/-......... pages 62 TO 91