Karnataka High Court
Murali vs State By Kalasipalyam Police Station on 7 September, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL No.1104 OF 2010
BETWEEN
1. Murali,
S/o. Parmashivam,
Aged about 29 years,
Residing at No.443,
5th Cross, Bhodi Garden,
Mysore Lanson,
Kavalbyrasandra,
Bengaluru.
2. Rajan,
S/o. Sri. Nagan,
Aged about 29 years,
Residing at No.402,
Ethiraju Naidu Lane,
D.J.Halli Main Road,
Bengaluru-45.
3. General @ Habel,
S/o. Sri. Robert,
Aged about 29 years,
Residing at No.22811,
9th Cross, Adhikarnataka Colony,
BAS Road, Tannery Road,
Bengaluru-45.
...Appellants
(By Sri. A.N.Radhakrishna, Advocate)
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AND
State by Kalasipalyam Police Station,
Represented by State Public Prosecutor,
High Court Building,
Bengaluru.
...Respondent
(By Sri. R.D.Renukaradhya, HCGP)
This Criminal Appeal is filed under Section 374(2)
Cr.P.C. praying to set aside the judgment dated
08.10.2010 passed by the P.O. FTC-XIII, Bengaluru City
in S.C.No.103/08-convicting the appellants/accused for
the offence punishable under Sections 341 & 307 read
with 34 of IPC and etc.
This Criminal Appeal having been heard and
reserved on 01.09.2020, coming on for pronouncement
this day, the court pronounced the following:
JUDGMENT
The appellants are accused no.3, 4 and 5 in Sessions Case No.103/2008 on the file of 13th Fast Track Court, Bengaluru City. The appellants and accused 1, 2 and 6 faced trial for the offences punishable under sections 143, 147, 148, 341 and 307 read with section 149 of IPC. The Fast Track Court (Trial Court) acquitted all the accused of the offences 3 under sections 143, 147 and 148 of IPC, and accused 1, 2 and 6 of the offences under sections 341 and 307 of IPC, but convicted accused 3, 4 and 5 for the offences under sections 341 and 307 read with section 34 IPC and hence this appeal by them.
2. The prosecution case is that on 13.04.2007 at about 11.30 p.m., Devaraj - PW-7, his elder brother, Velu - PW-9, Ganesh-PW-10, and car driver Lokesh - PW-1, went to hotel Renault situate near K.R.Market, Bengaluru for getting the food packed and while PW-7, 9 and 10 were coming out of the hotel accused no.1 - Subramany, accused no.2 - Bhaskara, accused no.3 - Murali, accused no.4 - Rajan, accused no.5 - General, accused no.6 - Senthil, accused no.7 - Babu, accused no.8 - Elumalai, accused no.9 - Ayyappa attacked PW-9 Velu and assaulted him with a long, macchu, knife and a dagger. Velu sustained severe injuries and fell down. A police constable came to that place and thereafter 4 Velu was taken to Victoria Hospital. In regard to this incident PW-7 made a report to the police as per Ex.P.2. After investigation, the police filed charge sheet against nine accused showing accused no.7, 8 and 9 as absconding.
3. Out of 14 witnesses examined by the prosecution, the prime witnesses are PW-1, 7, 9 and 10. While giving evidence, they inculpated the appellants only. The trial court, after appreciating the evidence came to conclusion that the principle FALSES IN UNO FALSES IN OMNIBUS was not applicable in India; the evidence that PWs1, 7, 9 and 10 had given against the appellants could be believed to hold them guilty of the offences punishable under Sections 341 and 307 of IPC. The trial court also relied on the recovery of weapons on the basis of confession statements made by the appellants.
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4. Sri. A.N. Radhakrishna, learned counsel for the appellants assails the findings of the trial court on the following grounds:
i. According to the FIR registered at the instance of PW-7, totally nine persons assaulted Velu. The investigation also revealed participation of nine persons and charge sheet was filed against them. PW-1 in the examination-in-chief implicates accused no.1 to 6, but when he was cross- examined after nine months, he gave clean chit to accused no.1,2 and 6 and spoke against the appellants. Velu, i.e., the injured, PW-7 and 10 gave evidence against appellants only. He argues that when the prime witnesses did not give evidence against accused 1,2 and 6, the public prosecutor should have treated them hostile and cross examined. Even the trial court failed to direct the public prosecutor to cross examine the witnesses having noticed that they had not given evidence against accused 1, 2 and 6. In a circumstance like this the evidence given by these witnesses 6 should not have been believed by the trial court, they have proved themselves to be untrustworthy. Therefore there is no proper appreciation of evidence. On this point he garners support from two judgments of the Supreme Court viz., Masalti Vs. State of Uttar Pradesh (AIR 1965 SC 202) and Anil Shamrao Sute and Another vs. State of Maharastra (2013 Crl.L.J. 2223).
ii. In the wound certificate, history recorded is that PW-9 was assaulted by one Seena and others. This Seena was not charge sheeted at all. There is no reason for exculpating him. This is another point which the trial court has missed to consider.
iii. The defence counsel was able to elicit contradictions and omissions from PW-9. It may be a fact that these contradictions and omissions were not brought to the notice of the investigation officer i.e., PW-12 and thereby there may 7 not be formal proof of the contradictions and omissions. But when the injured himself resiles from his former statement recorded by the investigation officer, definitely the contradictions affect the entire prosecution case and therefore the appellants are entitled to acquittal.
iv. The trial court has relied upon the
recovery of weapons on the basis of
disclosures made in the confession
statements of the appellants. The trial
court has failed to notice that their
statements appear to have been taken at a time, and the so called recovery was joint recovery which is not admissible in evidence. The independent witnesses to the seizure mahazar in this regard were not examined by the prosecution. The trial court has disbelieved the seizure of some other weapons on the basis of disclosures made in the confession statement given by accused 1, 2 and 6 opining that the independent witnesses should have been examined, but believed the seizure at the 8 instance of the appellants although the independent witnesses to the seizure mahazar were not examined. This apparently shows that the trial court has not appreciated the evidence properly. In this regard he relied upon the judgment of the Supreme Court in the case of Mohd. Abdul Hafeez vs. State of Andhra Pradesh (AIR 1983 SC 367) and Himachal Pradesh High Court in the case of Krishan Dass vs. State of H.P. (2003 Crl.L.J. 2663).
5. The learned High Court Government Pleader, Sri. R.D. Renukaradhya, per contra argued that merely for the reason that the witnesses were not cross examined by the public prosecutor when they did not give evidence against accused no.1, 2 and 6, it cannot be said that the trial court should not have convicted the appellants. The evidence of the prime witnesses is very consistent as regards their participation in assaulting PW-9 Velu. The trial court has rightly held that the evidence is believable to this extent. He further 9 argues that although independent witnesses to the seizure mahazars were not examined, the evidence given by PW-12, the Investigation Officer about recovery of the weapons used by the appellants for assaulting PW-9 is believable and non - examination of the independent witnesses cannot be a reason for disbelieving the recovery. The trial court has assigned valid reason in this regard, it has properly appreciated the evidence and therefore the appeal deserves to be dismissed.
6. Learned appellants' counsel does not dispute the drawing up of the spot panchanama. He disputes the genuineness of the recovery at the instance of the appellants on the basis of their voluntary or confession statements. Incidentally he refers to two wound certificates. Therefore there is no need to refer to the evidence of all the other witnesses, except the evidence of PW-1, 2, 7, 9 and 10. Of course the evidence given by PW-13 may have to be referred to. 10
7. The incident took place at about 11.30 p.m. on 13.04.2007 when PW-7, 9 and 10 came out of the hotel after collecting food parcel. PW-1, the driver of the car of PW-9, did not go inside the hotel, he was inside the car. As has been argued by appellants' counsel, when PW-1 was examined in chief on 17.02.2009, he gave a full account of the entire incident. He stated that when they all went near the hotel, all the accused were standing there and when PW-9 came out, first accused Subramany, saying that he would take away his (PW-9) life, gave a blow on his head with a long, accused no.2 Bhaskar also assaulted with a long on the head and then the other accused assaulted PW-9 with a knife, macchu and iron rods. When PW-7 and PW-10 rushed to the rescue of PW-9, the accused threatened them by showing the knife. By that time some people gathered and the police also came. He and PW-7 and 10 took PW-9 to Victoria Hospital and from there to Nimhans. 11 PW-1 was not cross examined soon after examination- in-chief, cross examination appears to have been deferred on the request of defence counsel as he submitted that he would cross examine PW1 after the prosecution would examine the other prime witnesses. On 20.11.2009 PW-1 was cross examined. When the counsel for accused 1, 2 and 6 first cross examined him, although he denied the suggestion in the first instance that accused no.1, 2 and 6 were not present at the spot, stated further that because of some confusion when he was examined - in chief, he took the names of accused 1, 2 and 6 also. But when he was cross examined by the counsel for the appellants he spoke against them by reiterating the overt act of each of them. That means to say he did not speak against accused no.1, 2 and 6 and gave evidence against appellants only.
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8. PW-7 Devraj is the brother of PW-9 and gave first information as Ex.P.2 to the police. In the examination in chief he has implicated only the appellants and does not speak about the participation of accused no.1, 2 and 6. So is the evidence of injured Velu i.e, PW-9. PW-10 has also stated that accused 3 to 5, i.e, the appellants assaulted PW-9 with macchu and iron.
9. Therefore it is clear that the prime witnesses do not speak against accused 1, 2 and 6 and implicate the appellants only. It is unfortunate that the public prosecutor failed to cross examine the witnesses when they did not fully support the prosecution case. Though it has been repeatedly held in the several judgments of the Supreme Court and the High Court that Presiding Officer should not be a dumb spectator at the time of recording of the evidence, it appears that he did not show keen interest by directing the public 13 prosecutor for cross examining the witnesses nor by putting court questions. Be that as it may, the question now is whether PW-1, 7, 9 and 10 can be treated as trust worthy witnesses.
10. The observation of the trial court that the principle found in the Latin maxim FALSES IN UNO FALSES IN OMNIBUS has no application in India, is correct. It is also true if for any reason the oral evidence of the witnesses is found to be inconsistent, instead of discarding entire evidence, that part which can be acted upon can be considered. The observation of the trial court to this extent is correct. But what is found in this case is some thing different. While assessing the evidence the conduct of the witnesses as also their credibility is an important factor which cannot be ignored.
11. It has come in evidence that PW-9 is rowdy sheeter and several criminal cases are pending against 14 him. He has earned number of enemies. He himself has made admission about it in the cross examination and even the other witnesses have also admitted it.
12. In Ex.P.2, PW-7 has narrated in detail as to how the incident took place and which of the several accused assaulted PW-9 with what. This was the first information given to the police. Strangely when he gave evidence in the court, he chose not to speak against accused 1,2 and 6 and gave evidence only against the appellants even by going to the extent of attributing the over tacts of each appellant. In the cross examination he has stated that he did not make complaint against accused 1,2 and 6 and also the three other absconding accused and also stated that they did not assault his brother. An omission is also elicited from him, he has denied the suggestion that he has stated nothing about assault made by accused 3, 4 and 5 (appellants) before the police; that means he asserts to have made 15 statements in that regard before the police. PW-9, in the examination-in-chief itself does not say anything against accused 1, 2 and 6 and only implicates the appellants. The defence counsel was able to elicit three contradictions as per Exs.D.1, 2 and 3 from him while cross examining. He denies to have made a statement before the police as per Ex.D.1 that when he went near the hotel he saw all the accused standing there. He also denies to have made a statement as per Ex.D.2 that the first accused Subramany assaulted on his head with a long by uttering that he should be killed. Ex.D.3 is the denial of his earlier statement that even accused no.6 assaulted him with a long on his head and that accused no.2 Bhaskara inflicted injury with a dagger. PW-1 and 10 are other eye witnesses according to prosecution. At the cost of repetition, if evidence of PW-1 is referred to, he implicated all the witnesses in examination in chief and took the names of the appellants only in cross examination. He is an eye witness according to 16 prosecution. PW-10 in the cross examination has stated that when he came out of the hotel he saw Velu being injured. From this answer what may be inferred is that probably he might not have seen the actual assault on PW-9 and he only saw Velu being injured.
13. The legal principle is that whenever contradictions or omissions are elicited from witnesses, the attention of the Investigation Officer must be drawn while examining him and then only there is proof of the contradictions. It is unfortunate that the attention of the investigation was not drawn to the contradictions while examining him. But is it possible to say that the contradictions should be ignored for this reason when they appear to be very material. Drawing the attention of the Investigation Officer to the contradictions only completes their formal proof; even if he was questioned, he would have answered that such statements as the 17 witnesses have denied were given before him when he interrogated them. Despite the fact that his attention was not drawn, it remains a fact that the contradictions thus elicited reflect on the conduct of the witnesses to assess their credibility. Thus looked, the contradictions as per Exs.D.1 to D.3 found in the evidence of PW-9 appear to be very significant; they shake the prosecution case at its root and falsify the contents of the first information as per Ex.P.2. To fortify this reason, reference may be made to Ex.P.15, the wound certificate issued at Victoria Hospital. PW-13 examined PW-9 at 12.05 a.m. on 14.04.2007, within a span of 30 minutes from the time of incident. PW-9 was taken to hospital by PW-2, a police constable and PW-7. Since PW-9 was severely bleeding and not in a condition to speak, it can be assumed that either PW-2 or PW-7 might have given the history. The history recorded in Ex.P.15 is that Velu had been assaulted by Seena and others. PW-13, the medical officer who issued Ex.P.15 18 has given evidence that the police constable gave history that Seena and others had made assault. The information given to the doctor at the earliest point of time carries weight. If Seena was also one of the assailants, it is not forthcoming as to why he was not charge sheeted. PW-9 is a rowdy sheeter and has many enemies. In these circumstances it is possible that he might have been assaulted by somebody else as noted in the wound certificate. This circumstance gives rise to doubt the entire prosecution story as projected. This is a reasonable doubt that obviously arises and has no answer. Every doubt is not reasonable. A doubt to which there is no answer, or even if an answer is given, it is unsatisfactory, it may be called a reasonable doubt and moreover it must materially affect the prosecution. Thus looked the conduct of the prime witnesses assumes importance paving way for doubting their testimonies. In this context it is apt to refer to the judgment of the Supreme Court in the case of Anil 19 Shamrao Sute (Supra). In this case one prime witness, PW-3, the wife of the deceased, in the examination in chief gave evidence against three accused and she changed her stand in the cross examination by not implicating accused no.3. Her evidence regarding incident materially differed from what was recorded in the FIR. The Supreme Court therefore held that her evidence was not safe to be relied upon. So is the situation in this case. The prime witnesses have proved themselves to be untrustworthy. As has been held by the trial court, that part of the evidence which does not support the prosecution case may be separated, but even to consider the other part, it must be inspiring and the evidence as a whole must be assessed in the light of other attending circumstances.
14. As regards the seizure of weapons on the basis of the confession statements said to have been made by the accused, the trial court appears to have 20 committed a mistake. Before dealing with this aspect it is necessary to refer to one argument of the appellants' counsel. He argued that recovery on the basis of confession statements made by the accused at a time has no value. It is true that in the judgments cited by him in this context, it is held that recovery of incriminating material pursuant to confession statement made by all the accused cannot be considered. But the Supreme Court in the case of Kishore Bhadke Vs. State of Maharastra (AIR 2017 SC 279) has held that the disclosure made by the accused separately in quick succession is admissible in evidence according to Section 27 of the Indian Evidence Act, if such disclosure thereafter led to discovery of incriminating articles. It is to be stated in this context that there is no any rule or law as such that disclosure made by two or more accused before the investigation officer leading to discovery of incriminating material is inadmissible. If the two or more accused make 21 statements, they must do so one after another, and their statements must lead to discovery of incriminating material. Pursuant to the disclosure statements, if the investigation officer goes to a place where the accused might have hidden the incriminating materials or weapons and recovers them, it is not understandable as to why such statements and the recovery become inadmissible if the information disclosed by accused is credible. If the independent witnesses to the recovery lend support to the evidence of the investigation officer in this regard, the prosecution case becomes further strengthened. Therefore this argument cannot be accepted. However in the case on hand the recovery made at the instance of the appellants should be disbelieved for some other reason.
15. There are two seizure mahazars as per Ex.P.9 and 13. Accused no. 1, 2 and 6 made disclosure before the investigation officer and on the basis of this, 22 the investigation officer was led to parking yard of the cellar portion of the K.R.Market building where three weapons were recovered. The trial court has not believed this seizure for two reasons that the prime witnesses have not given evidence regarding overt acts of accused no.1, 2 and 6 and that the independent witnesses to seizure mahazars were not examined by the prosecution. Ex.P.13 is another seizure mahazar under which the investigation officer is said to have recovered the weapons hidden at a place in S.J.Park, near K.R.Market. PW-13, the investigation officer has stated that appellants took him to S.J.Park on 26.5.2007 and removed a long and knife which they had hidden near the fence. But in Ex.P.13, it is recorded that the appellants had kept a long and knife below a waste dump in the S.J.Park. The prosecution did not examine the two independent witnesses who were said to be present at the time of seizure. Yet the trial court believed the seizure of the weapons made under Ex.P.13 23 by relying upon the evidence of investigation officer and also for the reason that there is evidence against the appellants. In this regard it is to be stated the seizure appears to be doubtful because the incident is said to have taken place on 13.04.2007, the recovery under Ex.P.13 was on 26.05.2007. S.J.Park is a very busy area. It is highly impossible that the waste dumped in the park remained un-cleared for more than one month. More over in Ex.P.3 it is recorded that a long and a knife were kept below the waste materials, but PW-13 states that they were lying near a fence. This discrepancy is material to discard the seizure on the basis of the confession statement said to have been made by the appellants, that too when independent witnesses were not examined by the prosecution. Therefore the finding recorded by the trial court in this regard does not stand to reason.
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16. Looked in this view, it is to be stated that the prosecution has failed to prove the guilt of the appellants also. PW-1, 7, 9 and 10 therefore are not trust worthy witnesses to be believed. Their testimonies should not have been acted upon by the trial court to hold the appellants guilty of the offences under Sections 341 and 307 of Indian Penal Code. They also deserve acquittal and this appeal is therefore allowed. Judgment of the trial court to the extent of convicting the appellants is set aside and they are acquitted of the offences under Sections 341 and 307 read with Section 34 IPC.
Sd/-
JUDGE Sd