Karnataka High Court
Sabanna S/O Kashipati Naikodi vs The State Of Karnataka on 29 September, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF SEPTEMBER 2022
PRESENT
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL APPEAL No.200147/2016
BETWEEN:
Sabanna S/o Kashipati Naikodi
Age: 30 years, Occ: Driver
R/o Hulandgera village
Tq. Chittapur, Dist: Kalaburagi
... Appellant
(By Sri Chaitanya Kumar C.M., Advocate)
AND:
The State of Karnataka
Through Wadi Police
Dist: Kalaburagi
Represented by SPP
High Court of Karnataka
Kalaburagi Bench
... Respondent
(By Sri Prakash Yeli, Additional SPP)
This Criminal Appeal is filed under Section 374 (2) of
Code of Criminal Procedure, 1973, praying to call for the
records, allow this appeal and set aside the impugned judgment
dated 03.09.2016 passed by the learned Prl. Sessions Judge at
Kalaburagi in S.C.No.202/2014 and consequently to acquit the
Crl.A.No.200147/2016
2
appellant for the alleged offences, in the interest of justice and
equity and pass any such order as this Court deems fit in view
of the facts and circumstances of the case, in the interest of
justice and equity.
This Criminal Appeal having been heard through Physical
Hearing/Video Conferencing Hearing and reserved for judgment
on 27.09.2022, coming on for pronouncement this day,
Dr.H.B. Prabhakara Sastry J. delivered the following:
JUDGMENT
The present appellant, who is accused No.1 in Sessions Case No.202/2014, in the Court of the learned Principal Sessions Judge at Kalaburagi (hereinafter for brevity, referred to as the 'Sessions Judge's Court'), has challenged the impugned judgment of conviction and order on sentence dated 03.09.2016, convicting him for the offences punishable under Sections 447 and 302 of the Indian Penal Code, 1860 (hereinafter for brevity, referred to as the 'IPC') and sentencing him accordingly. It is against the said judgment of conviction and order on sentence, the appellant/accused No.1 has preferred this appeal.
2. The summary of the case of the prosecution in the learned Sessions Judge's Court, as could be gathered Crl.A.No.200147/2016 3 from the charge sheet was that, the present appellant who is accused No.1, wanted one Sridevi the daughter of CW-8
- Marthandappa to be given in marriage to his close relative Mallanna, so that the entire property of 8 acres of land for which Sridevi was going to be the successor, would come to said Mallanna. However, her marriage was fixed with CW-10 - Tayanna, who was nephew of deceased Ninganna. The accused No.1 thought that it is deceased Ninganna who was the cause for fixing the said marriage with his nephew - Tayanna and advised CW-8 - Marthandappa not to give his daughter to said Mallanna, decided to kill said Ninganna. He was further instigated to do so by his brothers i.e., accused Nos.2 and 3. Accordingly, the accused No.1 criminally trespassed on the terrace of the house of deceased Ninganna, situated in Hulandgera village, within the limits of complainant-police station at 0130 hours on 27.03.2014 and assaulted deceased Ninganna, who was sleeping on the terrace of his house, with an axe, inflicting injuries on his neck and caused the death of Ninganna on the spot and ran away. Crl.A.No.200147/2016 4 Thus, the accused have committed the offences punishable under Sections 447, 302, 109 read with Section 34 of the IPC.
3. Since the accused pleaded not guilty, in order to prove the allegations made against the accused, the prosecution got examined in all twenty one (21) witnesses from PW-1 to PW-21 and got marked documents from Exhibits P-1 to P-26 and Material Objects from MO-1 to MO-12. From the accused side, no evidence was led, however, two documents were marked as Exhibits D-1 and D-2.
4. After recording the evidence led before it and hearing both side, the learned Sessions Judge's Court by its impugned judgment of conviction and order on sentence dated 03.09.2016, convicted appellant/accused No.1 for the offences punishable under Sections 447 and 302 of IPC and sentenced him to undergo imprisonment for a period of three months and to pay a fine of `1,000/-, in default of payment of fine amount, to undergo simple Crl.A.No.200147/2016 5 imprisonment for a period of three more months for the offence punishable under Section 447 of IPC and also sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC and to pay a fine of `10,000/-. The learned Sessions Judge's Court acquitted accused Nos.2 and 3 of the offences punishable under Sections 447, 302 and 109 read with Section 34 of the IPC. Aggrieved by the judgment of conviction and order on sentence passed against him, the accused No.1 in the learned Sessions Judge's Court has filed the present appeal.
5. The respondent - State herein is being represented by learned Additional State Public Prosecutor.
6. The records from the learned Sessions Judge's Court were called for and the same are placed before this Court.
7. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the records from the Sessions Judge's Court. Crl.A.No.200147/2016 6
8. For the sake of convenience, the parties would be referred to as per their rank before the Sessions Judge's Court.
9. The points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond reasonable doubt that on the date 27.03.2014 at about 1.30 a.m., the accused No.1 criminally tress passed into the house of deceased Ninganna at Hulandgera village, within the limits of complainant - police station, with an intention to commit the murder of said Ninganna and thereby has committed an offence punishable under Section 447 of the Indian Penal Code, 1860?
(ii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused No.1 has intentionally killed Ninganna, after tress-
passing into the house of Ninganna, assaulted him with an axe on his neck, inflicting injuries upon him to which Ninganna succumbed and thus, has caused an offence punishable under Section 302 of the Indian Penal Code, 1860?
(iii) Whether the Judgment of conviction and Order on sentence under appeal deserves any interference at the hands of this Court?
10. Learned counsel for the appellant/accused No.1, in his very brief argument, submitted that the appellant would not dispute the death of deceased Ninganna at Crl.A.No.200147/2016 7 about 1.30 a.m. on 27.03.2014 and that the said death was homicidal. He further submitted that the appellant/ accused No.1 would also not dispute the place of the alleged incident which was on the terrace of the house of deceased Ninganna at Hulandgera village within the limits of complainant-police station. He submitted that however, he would dispute that the prosecution has proved that it was the accused No.1 i.e., the appellant herein who committed the said offence.
Learned counsel further submitted that if according to the alleged eyewitness i.e., PW-3, his brothers were also sleeping along with him on the night of the incident, why did he not woke up his brothers and inform them about the incident, creates a serious doubt in the case of the prosecution. As such, the evidence of PW-3 cannot be believed. He also submitted that delayed recording of statement of PW-3 makes his alleged statement suspicious. Finally stating that delay in the FIR reaching the Court also creates a doubt in the case of the prosecution, the learned counsel submitted that the Crl.A.No.200147/2016 8 impugned judgment deserves to be set aside and accused No.1/appellant herein deserves to be acquitted.
11. Per contra, learned Additional State Public Prosecutor appearing for the respondent, in his brief argument, submitted that there is no abnormal delay in recording the statement of PW-3. The Investigating Officer has recorded his statement very next day of receiving the complaint, as such, the same cannot be called as delay. He also submitted that merely because PW-3 did not woke up his brothers and inform them about the incident would itself not make his evidence suspicious. He further submitted that though there is slight delay in FIR reaching the Court, however, there is no evidence to show that any prejudice is caused, in the process, to the interest of the accused. Further submitting that the evidence of eyewitness i.e., PW-3 is trustworthy and believable, as such, it is appreciating the evidence placed before it in their proper perspective, since the learned Sessions Judge's Court has rightly convicted the accused Crl.A.No.200147/2016 9 No.1/appellant herein for the alleged guilt, the impugned judgment does not warrant any interference at the hands of this Court.
12. The appellant/accused No.1 has not denied or disputed the death of deceased Ninganna on the date 27.03.2014 at about 1.30 a.m. and the said death was homicidal. He has also not denied or disputed in this appeal that the said incident took place on the terrace of the house of Ninganna while he was sleeping. Still, a perusal of the evidence led by the prosecution witnesses would go to show that PW-1, PW-2, PW-3, PW-4, PW-8 and PW-10 have spoken about the death of deceased Ninganna. PW-19 the doctor who conducted autopsy on the dead body of the deceased Ninganna has given the description of the injuries found on the dead body of the deceased and his opinion regarding the cause of death.
13. PW-1 (CW-1) - Malappa, who undisputedly is the son of the deceased, PW-2 (CW-5) - Sabanna the grand son of the deceased, PW-3 (CW-7) - Nazeer the Crl.A.No.200147/2016 10 neighbour of the farm house of the deceased, PW-4 (CW-2) - Sidramawwa the wife of the deceased, PW-8 (CW-12) - Saheb Bi the resident of the village Hulandgera and who knows the accused and his brothers, have all stated that death of deceased Ninganna was a murder. The evidence of these witnesses to the effect that death of deceased Ninganna was a murder, has not been specifically denied in their cross-examinations. PW-1, PW-2, PW-3 have also stated that the said death has taken place on the early hours of the date 27.03.2014 on the terrace of the house of Ninganna outside the village, which house they were using even to rear the cattle, more like a cattle shed. According to these witnesses, the murder of the deceased has taken place on the terrace of the said house where deceased Ninganna was said to be sleeping on the intervening night of 26.03.2014 and 27.03.2014. Their evidence about the date and time of the alleged incident and the place of the incident also has not been categorically and specifically denied from the accused side. Crl.A.No.200147/2016 11
14. PW-9 (CW-16) - Mahesh has stated that inquest panchanama as per Ex.P-5 was drawn in his presence on the terrace of the house of deceased Ninganna at Hulandgera village. Apart from stating that the deceased had sustained cut injury on his right chin, he has also stated that two photographs of the spot, including dead body, were taken by the police, which photographs he has identified at Exs.P-2 and P-3 respectively. The said inquest panchanama has not been denied in the cross- examination of this witness. A perusal of the said inquest panchanama would go to show that the panchas, after noticing the external appearance of the body and the presence of extended cut injury from near the right side of the neck up to the mouth measuring about 5 inches, have called the injury as the deep bleeding injury. They have also noticed the broken teeth and one more cut injury near chin. The panchas have opined that the deceased was assaulted with a chopper and was murdered. Crl.A.No.200147/2016 12
15. PW-19 (CW-21) - Dr. Samvel, the Medical Officer, Primary Health Centre, Kollur has stated that on 27.03.2014 in the afternoon he has conducted postmortem examination of the body of the deceased Ninganna, upon whom he has noticed cut lacerated wound measuring 8 inches x 2 inches x 3 inches along with fracture of mandible on the right side. He has opined that cause of death was due to hemorrhage and shock leading to cardiopulmonary arrest and the time since the death was around ten to twelve hours. After verifying the weapon alleged to have been seized in the matter and sent to this witness for his opinion, the witness has opined that the injuries found on the dead body of Ninganna might be caused with the said weapon, which the witness has identified at M.O.11. The witness has identified the final opinion given by him in the matter at Ex.P-22.
Though suggestions were made to this witness in his cross-examination from the accused side that the injury found on the deceased might be caused if the injured is Crl.A.No.200147/2016 13 assaulted with the stick with rough surface, the witness has not admitted the said suggestion as true. He denied the suggestion that injuries found on the dead body of Ninganna cannot be caused with the weapon at M.O.11. Thus, the medical evidence also would go to show that the injuries found on the deceased was the cause for his death which has resulted in hemorrhage and shock leading to cardiopulmonary arrest and that those injuries were neither accidental nor self-inflicted, but it was at the act of another human being in the form of assault. Even the suggestion made to this doctor (PW-19) from the accused side that those injuries might have been caused due to assault with the stick also go to show that the accused also has admitted that those injuries were inflicted by an act of a person by assaulting the deceased.
16. The evidence of PW-20 (CW-28) -
Shankargouda, the Circle Police Inspector, Chittapur, who was the Investigating Officer in this matter that he drew scene of offence panchanama as per Ex.P-6, seized articles Crl.A.No.200147/2016 14 M.O.1 to M.O.7 therein, drew inquest panchanama as per Ex.P-5 and took the photographs as per Exs.P-2 and P-3 and also got the autopsy of the dead body done by PW-19 and collected its report as per Ex.P-20, stands corroborated by the evidence of the above said witnesses. His further evidence that he also seized the cloths worn by the deceased at the time of his death by drawing a panchanama and those cloths are at M.O.8 to M.O.10 stands corroborated by the evidence of PW-9 - Mahesh. Thus, the evidence of these witnesses clearly go to establish that the death of deceased Ninganna has taken place on the intervening night of 26th and 27th March, 2014 and the said death was homicidal.
17. It is also not in dispute that the death of deceased Ninganna took place on the terrace of his second house at Hulandgera village. The evidence of PW-1, PW-2, PW-3, PW-4 on this aspect has remained not specifically denied.
Crl.A.No.200147/201615
PW-9 - Mahesh has also stated that, apart from inquest panchanama, even the scene of offence panchanama as per Ex.P-6 was also drawn in his presence by the Investigating Officer and a quilt, a blanket used by the deceased to sleep, a cap worn by him, little quantity of jawar found in the spot, the cell phone (mobile phone) of the deceased which was found near the dead body, a bundle of beedies with wrapper, a match box which were also belonging to the deceased found upon and near the dead body were all seized in his presence under the same panchanama, which articles the witness has identified at M.O.1 to M.O.7. Even according to the scene of offence panchanama at Ex.P-6, the place of the incident was on the terrace of the R.C.C. house of the deceased in Hulandgera village, within the limits of complainant - police station. The photograph at Ex.P-2 also shows the spot as a terrace of a building.
In his cross-examination, the said witness has given more details about the drawing of both the panchanamas Crl.A.No.200147/2016 16 at Exs.P-5 and P-6. Except making a suggestion to this witness in a single sentence that Exs.P-5 and P-6 panchanamas were not drawn in his presence, nothing could be elicited in favour of the accused in the cross- examination of this witness.
The evidence of PW-14 (CW-22) - Shekhappa, then Junior Engineer of PWD, Chittapur shows that he visited the scene of offence as shown to him by the police and has drawn a sketch of the scene of offence as per Ex.P-15. Even this witness has also stated that the said place was a terrace of a house.
PW-15 (CW-23) - Rachanna, the Panchayat Development Officer of Sannati has stated that at the request of the Investigating Officer, after verifying the records maintained by Panchayat, he has issued a certificate stating that the said house of Ninganna, where the incident has taken place, was not registered in the Panchayat Register. He has identified his report as Ex.P-16.
Crl.A.No.200147/201617
Thus, the evidence of these witnesses corroborate the evidence of PW-20 - the Investigating Officer that he visited the scene of offence and drew a panchanama as per Ex.P-6 whereunder he seized articles from M.O.1 to M.O.7, drew inquest panchanama as per Ex.P-5 and took the photographs as per Exs.P-2 and P-3. He also got the sketch of the scene of offence drawn by the PWD engineer and collected an extract from the Panchayat Development Officer of Sannati Panchayat. Thus, the place where the offence took place also stands proved as the terrace of the R.C.C. house of deceased Ninganna in the Hulandgera village, which was his second house, generally identified as the house outside the village.
18. The next question that remains for consideration is whether the prosecution has proved that the said homicidal death of Ninganna was caused by the accused No.1 and accused No.1 alone?
Crl.A.No.200147/201618
The case of the prosecution as at the time of filing the charge sheet was that the alleged act of accused No.1 in inflicting the injuries upon the deceased and causing his death was instigated by his two brothers i.e., accused Nos.2 and 3 also. However, after the trial, the learned Sessions Judge's Court, in its judgment, has acquitted accused Nos.2 and 3 of the alleged offences, however, it convicted the present appellant i.e., accused No.1 before it for the offences punishable under Sections 447 and 302 of the IPC.
19. The prosecution case that it was the accused alone who has caused the homicidal death of deceased Ninganna is mainly based upon the statement shown to have been given by PW-3 (CW-7) - Nazeer, who was aged 30 years, claiming himself to be the eyewitness to the incident and the evidence of PW-1 - Malappa who was said to have heard about the incident from PW-3 and from PW- 2 - Sabanna, who was the grand son of the deceased and was said to be sleeping on the side of the deceased at the time of incident.
Crl.A.No.200147/201619
About the incident, PW-3 - Nazeer has stated that outside the village Hulandgera, in a plot he too has got a house in his plot where the house of deceased Ninganna has also got a plot with a house. Deceased Ninganna had got one more house in the village. As such, in the house where the incident has taken place they were rearing the cattle. Sometimes deceased Ninganna and his grand son and sometimes son of Ninganna used to sleep in that house during nights.
About the incident, the witness further stated that on the night i.e., on 27.03.2014 at about 1.30 a.m. he was sleeping on the terrace of his house. After hearing some sound, he got up and saw that accused No.1 was assaulting with an axe on the neck of Ninganna. He shouted as to who was that. At his shouting, two persons jumped from the terrace. Accused No.1 - Sabanna was still assaulting the deceased. Asking as to why they are assaulting, he (this witness) chased all the three accused. However, all the three accused boarded a white colour vehicle looking like a jeep or car and flew from the place. Crl.A.No.200147/2016 20 He came back to the spot and saw that Ninganna was already dead and blood was flowing from the injuries. He had sustained injury on his neck. Then he went to the house of CW-1 and told him about the incident and brought him to the place. The witness has also stated that he has seen the incident in the light of the electric lamps which were there one on the front varanda of the house and the another in a lamp pole of panchayat behind the house. He specifically stated that he has seen the house of the accused in the said light. Stating so the witness has identified the weapon at M.O.11. He has also stated that the dress worn by the deceased were also blood stained. He identified articles at M.O.1 to M.O.10.
20. This witness was subjected to a detailed cross- examination from the accused side, where this witness has given some more details about the location of his house to that of deceased Ninganna outside the village of Hulandgera and about himself and Ninganna sleeping on the terrace of their respective houses during nights. He Crl.A.No.200147/2016 21 denied a suggestion that at the time of incident he was not in the village Hulandgera. The denial suggestions made to him were not admitted by him as true. Therefore, neither the veracity and trustworthiness of his statement made in examination-in-chief could be shaken in his cross- examination nor any statements favourable to the accused could be elicited in his cross-examination.
21. PW-1 (CW-1) - Malappa has stated that on the night of the incident his father Ninganna was sleeping in their second house, which was outside the village and on the terrace of the said house. It was on that night at about 2 o' clock CW-7 - Nazeer rushed to his house and informed him about the murder of his father. The witness states that he asked Nazeer as to who had killed his father, for which Nazeer stated that it was the three accused in the case. Witness stated that Nazeer also told him that it was accused No.1 who assaulted his (of this witness) father with an axe and the other accused have assisted him. The witness also stated that Nazeer also told Crl.A.No.200147/2016 22 him that after killing Ninganna, the accused fled away from the place in a Tata Sumo vehicle which was parked in the vacant place of Gouda. PW-1 also stated that he joined by CW-2 to CW-4 and CW-6 went to the place and saw that suffering bleeding injuries on his neck, his father was found murdered. Witness also stated that the blankets, quilt and the cap worn by his father were all blood stained in the incident. The police came to the spot, before whom he narrated about the incident which was recorded by them. The witness has identified his said complaint at Ex.P-1.
22. Even in the cross-examination of this witness also, more details were elicited about the cordiality, if any, in the relationship between accused and deceased. Witness has also given more details about the location of the place of offence from their existing house in the village by stating that they are separated with 20 to 25 houses. The witness stated that it was in the morning he informed the police over the phone belonging to his friend, Crl.A.No.200147/2016 23 however, he did not inform the police immediately after the incident. Except eliciting these and some other details in the cross-examination of PW-1, nothing could be brought out from the witness which were favourable to the accused in the matter. However, it remained undisputed that this witness (PW-1) was a hearsay witness and the informant to him was PW-3 - Nazeer.
23. PW-2 (CW-5) - Sabanna, a boy of 12 years age, after putting with Court questions, was considered as witness capable to be administered with oath. As such, by administering oath to him, he was examined. In his evidence the witness has, apart from stating that on the night of the incident he was sleeping along with his grand father i.e., the deceased on the terrace of their house, has also stated that it was accused No.1 who inflicted injuries on the face and neck of deceased Ninganna and thereafter all the three accused got down from the house. He stated that there was light burning which was fixed near the house. He categorically stated that in the light he has Crl.A.No.200147/2016 24 seen the incident. It was PW-3 - Nazeer who was sleeping in the adjoining terrace of a house informed about the incident at his house in the village. The witness has also identified the weapon at M.O.11.
24. In his cross-examination, the witness stated that he has stated totally different than what he had stated before the police. At the same time he has also stated that before the police he has stated that he has seen the incident of accused Nos.1 to 3 assaulting his grand father. He denied a suggestion that before the police he has stated that on 27.03.2014 in the night at 2 o' clock hearing the weeping sound he woke up and saw that all the members of the house were crying. The said portion of the statement was marked at Ex.D-1. He also denied a suggestion that he has stated before the police that later on he came to know that when PW-3 - Nazeer chased the accused to catch them, all the three accused ran away in a Tata Sumo vehicle. Since the witness denied the same, Crl.A.No.200147/2016 25 the said portion in his alleged statement before the Investigating Officer was marked as Ex.D-2.
The Investigating Officer i.e., PW-20 in his cross- examination has stated that during his investigation it was not found that PW-2 was an eyewitness to the incident. The Investigating Officer also stated that said PW-2 has stated before him as per Exs.D1 and D2 in his statement. Thus, from the accused side it could able to establish that there are major contradictions in the evidence of PW-2 with that of his alleged statement before the Investigating Officer. A lot of major improvement the witness has made in his evidence from his alleged statement before the Investigating Officer. According to the charge sheet, this witness was not at all an eyewitness, whereas in his evidence he projected himself as an eyewitness and stated that he has seen the incident, more particularly, the accused assaulting and inflicting injuries upon the deceased. Thus, the evidence of this witness is not safe to believe. However, the evidence of PW-1 as hearsay from Crl.A.No.200147/2016 26 PW-3 immediately after the incident and the evidence of PW-3 that he was an eyewitness and has seen the incident, inspires confidence in the Court to believe.
25. Learned counsel for the appellant, in his very brief argument, submitted that the evidence of PW-3 is also not believable for the reason that even after seeing the incident, he did not woke up his brothers sleeping next to him and informed them about the incident. In that regard, PW-3 in his cross-examination, no doubt has stated that on the night of incident his two younger brothers were sleeping with him on the terrace of the house. However, he did not woke them up after seeing the incident. The witness has further stated that being shocked by looking at the incident, he did not woke up his brothers. On the other hand he chased the accused to catch them while shouting.
The Hon'ble Apex Court in the case of Lahu Kamlakar Patil and another vs. State of Maharashtra reported in (2013) 6 SCC 417 was pleased to observe Crl.A.No.200147/2016 27 that the Court has to keep in mind that different witnesses react differently under different situation. Some witness get a shock, some become perplexed, some start wailing, some run away from the scene and yet some have courage and conviction to come forward either to lodge the FIR or get themselves examined immediately. Thus, the reaction differs from individual to individual.
In the instant case, PW-3 has clearly stated that after seeing the incident he was shocked. As a common man and villager, he thought of chasing and attempting to catch the accused first and on priority. It is also because immediately after seeing the incident, where according to him accused No.1 was assaulting the deceased, he raised voice asking as to who was that. After hearing him the accused ran away from the spot. As such, this witness, in the spur of the moment and all of a sudden, reacted to the situation by chasing the accused. As such, nothing uncommon could be noticed in the witness not waking up his brothers, who admittedly were his younger brothers. Crl.A.No.200147/2016 28
26. The other point canvassed by the learned counsel for the appellant was alleged delayed recording of statement of this witness i.e., PW-3 though he was present in the spot when the Investigating Officer visited the spot.
PW-3 in his cross-examination has stated that when the police visited the spot he and PW-1 - Malappa were together. The police were also in the village till evening. However, he was not present when the police were enquiring PW-1. He stated that on the same day he stated about the incident to the police, however, he does not know the name of the said police before whom he stated about the incident.
PW-21 (CW-27) - Nataraj, the Police Sub-Inspector of the complainant - police station has stated that the information was received and registered in their police station only at 8.30 a.m. on 27.03.2014. Registering the same in their station Crime No.58/2014, he prepared a First Information Report as per Ex.P-26 and sent it to the Crl.A.No.200147/2016 29 Court under copies to his superiors. He stated that though he submitted the further investigation to CW-28, however, he had been to Hulandgera village on that day.
PW-20 (CW-28) - Shankargouda, the main Investigating Officer has stated that after taking over further investigation in this matter on 27.03.2014 from CW-27 - Nataraj, he visited Hulandgera village and continued with investigation. Though he recorded the statements of CW-2 to CW-6 on the same day, but he recorded the statements of CW-5, CW-7 to CW-13 on the next day i.e., on 28.03.2014. Therefore, the fact remains that the statement of PW-3 (CW-7) was recorded not on the very date when the FIR was registered and PW-20 visited the village, but on the next day. However, the said Investigating Officer was neither questioned in his cross- examination from the accused side as to why there was a day's delay in recording the statement of PW-3 (CW-7) nor any suggestion was made to the witness that intentionally alleged delay was caused in recording the statement of Crl.A.No.200147/2016 30 PW-3. On the other hand, PW-20 - the Investigating Officer has stated that he does not remember whether PW-3 - Nazeer appeared before him and stated that he was an eyewitness to the incident. He also stated that, had Nazeer told him that he had seen the incident and there was availability of time to him, he could have recorded his statement on the same day. He also stated that on the said date he was very busy in various other immediate investigation acts to be conducted on the said day, including drawing inquest panchanama, shifting the dead body. Thus, the Investigating Officer has shown the convincing reason that on the first day of his visiting to the village he was very busy in important acts in the investigation, as such, though he could record the statements of few other witnesses i.e., CW-2 to CW-6, but he could not record the statement of PW-3. Therefore, nothing suspectable could be inferred in the alleged day's delay in recording the evidence of PW-3, that too, provided the act of recording of statement of PW-3 on the next day of the FIR, could be called as with some delay. Crl.A.No.200147/2016 31
The Hon'ble Apex Court in Lahu Kamlakar Patil's case (supra) was also pleased to observe that witnesses to certain crimes may run away from scene and may also leave the place due to fear and if there is any delay in their examination, testimony should not ordinarily be discarded.
In Harbeer Singh vs Sheeshpal and others reported in (2016) 16 SCC 418, with respect to effect of delay in recording statement of witness under Section 161 of Cr.P.C., the Hon'ble Apex Court was pleased to hold that delay in recording the statement of witnesses does not necessarily discredit their testimonies. The Court may rely on such testimonies if they are cogent and credible and delay is explained to the satisfaction of the Court. However, delay in recording the statements of prosecution witnesses under Section 161, although such witnesses were or could be available for examination when Investigating Officer visits the scene of occurrence or soon thereafter, might cast a doubt upon the prosecution case. Such delay needs to be properly explained. Crl.A.No.200147/2016 32
In the instant case, as observed above, even though PW-3 was said to be available in the village at the time of PW-20 - Investigating Officer visiting the village on 27.03.2014, but the Investigating Officer was very busy in attending to other important part of the investigation which could not have been delayed any further. Moreover, he recorded the statements of several other witnesses on the same day. The said reason shown by him which has remained un-denied, in his further cross-examination, would clearly go to show that the alleged delay by a day in recording the statement of CW-7 (PW-3) was neither intentional nor designed. But under the normal circumstance and with no planning or design of the case to implicate the accused, the alleged delay by a day was made. Thus, the statement of PW-3 cannot be doubted or suspected.
The said witness i.e., PW-3, as analysed above, has fully supported the case of prosecution. Being a known person to both the accused and the deceased and also Crl.A.No.200147/2016 33 being the resident of the same village and neighbour of the deceased, there is all the possibility of he sleeping on the terrace of his house just like deceased was sleeping on the terrace of his adjoining house. The reaction of PW-3 while seeing the incident and immediately after seeing the incident are also not unnatural. Further, it would not be difficult for a person, that too, in a village, for identifying another resident of the same village who is known person to him. Therefore, the evidence of PW-3 that he saw the incident of accused No.1 inflicting blows upon the deceased with the weapon at M.O.-11 and he attempting to catch the accused by chasing them, but he could not, finds no reason to disbelieve the same. As such, even though PW- 3 is a single eyewitness to the incident, however, his evidence having proved to be credible and trustworthy, can be believed and proceeded with.
27. According to PW-3, when he chased the accused immediately after the incident, they ran away in a parked vehicle near the open land of Gouda of the village by Crl.A.No.200147/2016 34 getting into a motor vehicle, which according to this witness may be a jeep or a car. The accused No.1 is shown to be pursuing his avocation as a driver. In the cross-examination of PW-1 - Malappa, suggestion was made to the witness from the accused side suggesting that all the three accused take the vehicles like cruiser, tum- tum and autos on hire and run it. It was also suggested to the witness that the accused own two vehicles bearing Reg.No.KA-32/B-1886 and Reg.No.KA-33/5118. It was further suggested to the witness that the accused by giving the said vehicles on hire and also by pursuing driver job, were living comfortably. The witness has admitted all these suggestions as true. Thus, by making these suggestions, the accused have admitted that they were very familiar with the motor vehicles and that their avocation itself was as driver of the vehicles. They were also owning the vehicles including the medium vehicle like cruiser. Therefore, the evidence of PW-3 - Nazeer that when he chased the accused they got into a motor vehicle and fled from the place also can be believed. PW-3 has Crl.A.No.200147/2016 35 also identified the said vehicle during the trial. Thus, the evidence of PW-3, who is an eyewitness and who proved to be trustworthy, has established that it was the accused, particularly the accused No.1, who inflicted fatal injuries on the deceased Ninganna with a weapon and caused his death. In such circumstance, merely because PW-11 (CW-
18) - Vijay and PW-12 (CW-19) - Somalinga have not supported the case of prosecution by contending that they have not seen the police seizing the vehicle shown in photographs at Exs.P-10 and P-11 in their presence by drawing a panchanama as per Ex.P-9, by that itself it cannot be held that the seizure of the vehicle was not proved. The evidence of PW-20 - the Investigating Officer that he seized the vehicle under Ex.P-9, which vehicle he has identified at M.O.12, cannot be doubted or suspected. As such, the use of the vehicle at M.O.12 in the commission of the crime also stands established.
28. According to prosecution, the accused No.1 used an axe which was in semi-circular shape, which popularly in the Crl.A.No.200147/2016 36 local language called as 'chandra kodali' with its handle and PW-3 as an eyewitness identified the said weapon as an axe in the Court during his trial. According to the prosecution, the said axe was recovered at the instance of accused No.1. PW-20 - the Investigating Officer has stated that after arresting the accused, he recorded the voluntary statement of the accused as per Ex.P-24, where the accused has stated that he has thrown the said axe in Bhima river water and that he would show and produce the vehicle and spot where the axe was thrown in the river, provided he is accompanied. According to the Investigating Officer, he summoned PW-11 (CW-18) - Vijay, PW-13 (CW-20) - Nagappa as panchas and followed the accused who took them to the bank of Bhima river at Sannati and shown the place where the axe was thrown by him. In the said spot the police drew a panchanama as per Ex.P-12 and also took photographs as per Exs.P-13 and P-14. The witness stated that the said axe was near to the bank in the river and the fisherman present there took out the said axe from the water. It was the accused Crl.A.No.200147/2016 37 who has shown the spot to them. Even in the cross- examination, the witness has adhered to his original version.
PW-13 (CW-20) - Nagappa the other alleged pancha to the recovery panchanama, not only has stated that the police had called him near the bank of Bhima river at Sannati to draw a panchanama and in the presence of accused No.1 took photographs as per Exs.P-13 and P-14, but also stated that a fisherman by name Shatoji had taken out the axe from the river water. However, he was not present while he was taking out the axe from the water. Thus, the evidence of PW-13 which was not fully supporting the case of the prosecution, still could able to show that the accused and police had come to the bank of Bhima river in his village and an axe was shown there as the one taken out from the river water. On the other hand, PW-11 who is also the resident of same village has categorically stated that it was the accused who had shown the spot and the fisherman there took out the axe from Crl.A.No.200147/2016 38 inside the water. Thus, the evidence of PW-11 corroborates the evidence of the Investigating Officer PW-20 that the weapon at M.O.-11 was recovered at the instance of the accused.
29. As observed above, PW-19 the Doctor who conducted postmortem examination on the dead body, in his evidence has also stated that on examination of the weapon sent to him by the Investigating Officer, he has opined that the injuries found on the dead body of late Ninganna might be caused with M.O.11. Accordingly, he has endorsed the same on the letter submitted by the Investigating Officer, which endorsement the witness has identified at Ex.P-23 (a). Further, as analysed above, the accused, by making suggestion to this doctor (PW-19) that the injury found on the deceased was due to an assault, could not able to shake the opinion of the doctor that those injuries can be caused with M.O.11. PW-3 has stated and identified that it was with the same weapon at M.O.11 the accused No.1 had inflicted injuries upon the deceased. Crl.A.No.200147/2016 39 Therefore, the nexus between the injuries and the weapon at M.O.11 also stands fully established by the prosecution.
30. The motive behind the crime, as alleged by the prosecution, is that the cousin brother of PW-1 i.e., CW-8 Marthandappa had got only one issue i.e., a daughter by name Sridevi. He had 8 acres of land. Said Marthandappa and deceased who were relatives inter-se had decided to give that girl Sridevi in marriage to Tayanna the nephew of the complainant. However, accused No.1 wanted that girl Sridevi to be given in marriage to his nephew (his father's sister's son) Mallanna (CW-11) and he has also raised an objection in that regard. Since said CW-11 - Mallanna was already married and was also having a child, CW-8 - Marthandappa was not inclined to give his daughter to said Mallanna and told that he would give his daughter Sridevi in marriage to Tayanna. In that regard, deceased had held a panchayat and had left the matter to the discretion of the parties. However, accused believed that, had deceased Ninganna advised Crl.A.No.200147/2016 40 CW-8 - Marthandappa to give his daughter in marriage to Mallanna, he would have definitely given, however, the said Ninganna (deceased) was not ready to advise Marthandappa in that regard. It is in that grudge, the accused decided that if Ninganna is killed, they could pursue Marthandappa to give his daughter in marriage to Mallanna, so that the entire property of 8 acres of land comes to the family and relatives of the accused.
31. The said motive attributed against the accused in the commission of the crime has been clearly stated by PW-1 in his evidence. Though PW-3 also has stated the same, but admittedly he is a hearsay witness for the alleged motive. PW-4 (CW-2) - Sidramawwa the wife of the deceased and PW-5 (CW-8) - Marthandappa have not thrown much light in that regard. However, PW-5 admitted that his daughter Sridevi was decided to be given to Tayanna who was nephew of the deceased (deceased's younger sister's son). As stated by PW-5, the accused are his elder brother's sons. Therefore, PW-5 was more close Crl.A.No.200147/2016 41 in relation to the accused, as such, he might not have revealed the above motive sufficiently.
However, his wife PW-6 (CW-9) - Shantamma, who is the mother of said girl Sridevi, has clearly stated about the motive behind the crime.
PW-6 - Shantamma stated that accused are children of her brother-in-law and Sridevi is her daughter. She stated that they own 8 acres of land. Deceased is her uncle. She stated that she came to know that with respect to giving Sridevi in marriage to Tayappa the dispute has arisen and incident of murder has taken place. She also stated that the accused were objecting for giving her daughter Sridevi in marriage to Tayappa and were asking them not to marry Sridevi with Tayappa, instead marry her with Mallanna, their nephew. The witness also stated that they told accused that they are not giving their daughter Sridevi to Mallanna since he has already married and his existing wife is also a close relative of them. The witness Crl.A.No.200147/2016 42 further stated that after their death (of this witness and her husband), the property would go to their daughter.
Even the evidence of PW-7 (CW-10) - Tayanna also supports the case of the prosecution on the point of motive. He has stated that accused are his uncles in relation and deceased is also his relative. He stated that Sridevi the daughter of CW-8 and CW-9 is his wife and she is only daughter to her parents. CW-8 and deceased had talks to give Sridevi in marriage to him (Tayanna). In that regard, CW-11 - Mallanna and others had held panchayat, in the said panchayat accused No.1 had raised objection to the marriage proposal of Sridevi with Tayanna (PW-7). According to accused No.1, if said Sridevi is given in marriage to Mallanna (CW-11), the entire property of 8 acres of land belonging to the family of Sridevi would go to them (Mallanna) and his relatives.
Though attempts were made in the cross-
examination of PW-6 and PW-7 to shaken their evidence regarding the motive, however, the evidence of these two Crl.A.No.200147/2016 43 witnesses about attributing motive behind the accused in committing the alleged crime could not be shaken in their cross-examination. As such, the prosecution has successfully able to establish the motive behind the alleged crime also.
32. The learned counsel for the appellant also canvassed a point that there is a delay in lodging the complaint and sending the FIR to the Court which also creates a doubt in the case of prosecution.
In the instant case, the offence has taken place on 27.03.2014 at about 1.30 a.m. According to PW-1 the son of the deceased, who is also the complainant, it was only at 7.00 a.m. on the same day he telephoned to the police informing about the incident. According to PW-21 - the Police Sub-Inspector, he received the complaint on the same day at 8.30 a.m. Admittedly, the incident has taken place in a village Hulandgera. The offence has taken place immediately after mid night.
According to FIR at Ex.P-26 the distance Crl.A.No.200147/2016 44 between the complainant-police station and the place of the offence was 40 kilometers. In such circumstance, the passing of the information at 7.30 a.m. and lodging the written complaint at 8.30 a.m. on the same day, which is within six hours of the alleged incident, involving a 40 kilometers distance between the village of the incident and the police station, cannot be considered a delay in lodging the complaint.
33. Though the complaint was registered with the complainant - police station at 8.30 a.m. on 27.03.2014, however, the FIR at Ex.P-26 reached the jurisdictional Magistrate only at 5.15 p.m. on the same day. PW-21 in his cross-examination has stated that the distance between Wadi and Chittapur is about 12 to 15 kilometers. He stated that there is no proper bus facility, however, there is availability of jeeps and auto rickshaws. About the alleged delay in the FIR reaching the Magistrate, neither PW-20 nor PW-21 the Police Officers in the matter, were questioned in their cross-examination from the accused Crl.A.No.200147/2016 45 side. Had they been asked about the same, they would have come with a reason for the alleged delay.
The Hon'ble Apex Court in Ombir Singh vs. State of Uttar Pradesh and another reported in (2020) 6 SCC 378 was pleased to observe with respect to Sections 154 and 157 of Cr.P.C. with respect to delay in sending report to Magistrate that, unless serious prejudice is demonstrated to have been suffered as against accused, mere delay in sending the FIR to Magistrate, by itself, will not have any effect on the case of prosecution. Where FIR is actually recorded without delay and investigation started on basis of that FIR, and there is no other infirmity brought to notice of court, then, whatever improper or objectionable delay of few hours in receipt of report by Magistrate concerned be, in absence of any prejudice to accused, it cannot by itself justify conclusion, that investigation was tainted and prosecution case as doubtful.
In the instant case, as analysed above, the prosecution could able to establish its case beyond Crl.A.No.200147/2016 46 reasonable doubt. The mere alleged delay of few hours in FIR reaching the Magistrate would in no way has caused any prejudice to the interest of the accused. Nothing is placed on record to show that the alleged delay in sending the FIR to the Magistrate has occasioned the police/prosecution to manipulate the things or to further improve their version than what was alleged in the complaint. Therefore, the argument of the learned counsel for the appellant that delay in lodging the complaint and sending the FIR to the Court makes the case of prosecution doubtful one is also not acceptable.
34. Lastly, the defence of the accused in the instant case is that the deceased was a political person and politically influential in the surrounding villages. He was an instigator in several acts, as such, earned a bad name in the surrounding. Therefore, somebody who was against him had caused his death. The said defence was expressed in the cross-examination of PW-1, PW-3, PW-4 and PW-7 in the form of suggestions made to the Crl.A.No.200147/2016 47 witnesses. However, none of the witnesses have admitted the said suggestion as true. Thus, the alleged defence taken up by the accused was confined in the form of an un-admitted suggestion and bereft of any corroboration. Apart from that the accused neither placed any material nor examined any witness, including themselves, to establish their defence in the matter. Thus, the defence taken up by the accused also having remained un- successful in creating any doubt in the case of prosecution or shaken the motive behind the commission of the crime, which is established by the prosecution, the final attempt made by the accused to weaken the case of prosecution also could not succeed. Thus, it is clearly established that the prosecution has proved beyond reasonable doubt that on the early hours of 27.03.2014, the accused No.1 criminally trespassed into the house of deceased Ninganna in Hulandgera village and intentionally caused the death of deceased Ninganna who was sleeping on the terrace of his house, by inflicting injuries on his neck with an axe at M.O.-11 and has thus committed the offences punishable Crl.A.No.200147/2016 48 under Sections 447 and 302 of IPC. It is appreciating these evidence, the learned Sessions Judge's Court since has come to a conclusion holding the accused No.1 guilty of the alleged offences, we do not find any perversity, illegality or error in it, warranting any interference at the hands of this Court.
It is the sentencing policy that the sentence ordered for a proven guilt must be proportionate to the gravity of the proven guilt. In the instant case the learned Sessions Judge's Court has sentenced the accused No.1 to undergo imprisonment for a period of three months and to pay a fine of `1,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three more months for the offence punishable under Section 447 of IPC. It has sentenced the accused No.1 to undergo imprisonment for life and to pay a fine of `10,000/- for the offence punishable under Section 302 of IPC. Since the sentence ordered being proportionate to the gravity of the Crl.A.No.200147/2016 49 proven guilt, we do not find any reason to interfere in it. Accordingly, we proceed to pass the following:
ORDER The appeal stands dismissed as devoid of merit.
The judgment of conviction and order on sentence passed by the learned Principal Sessions Judge at Kalaburagi in Sessions Case No.202/2014 dated 03.09.2016 stands confirmed.
Registry to transmit a copy of this judgment along with learned Sessions Judge's Court records to the concerned Sessions Judge's Court, immediately.
Sd/-
JUDGE Sd/-
JUDGE swk