Karnataka High Court
H D Ravi S/O Devendrappa vs The State Of Karnataka By on 9 March, 2020
Bench: K.N.Phaneendra, S R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE S.R. KRISHNA KUMAR
CRL.A. NO.869/2013
BETWEEN
1. H.D. RAVI S/O DEVENDRAPPA
AGED ABOUT 34 YEARS
OCC: AGRICULTURAL COOLI
R/O HADADI VILLAGE
DAVANAGERE TALUK - 577 525
2. S.D. JAGANNATHA S/O DEVENDRAPPA
AGED ABOUT 39 YEARS
OCC: AGRICULTURIST
R/O HADADI VILLAGE
DAVANAGERE TALUK - 577 525
... APPELLANTS
(BY SRI. DINESH KUMAR RAO, FOR SRI. R.B.
DESHPANDE, ADVOCATES)
AND
THE STATE OF KARNATAKA BY
HADADI POLICE STATION
DAVANAGERE - 577 525
... RESPONDENT
(BY SRI. HONNAPPA, HCGP)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE
ORDER DATED: 8.8.2013 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSION JUDGE,
DAVANAGERE IN S.C.NO.96/11-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/Ss 504,
114 AND 302 R/W 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, K.N.PHANEENDRA J., DELIVERED
THE FOLLOWING:
JUDGMENT
The accused in SC No.96/2011 on the file of the II Addl. District and Sessions Judge, Davangere has called in question the judgment of conviction and order of sentence passed in the said case dated 8.8.2013, wherein the learned Sessions Judge has convicted the accused Nos.1 & 2 for the offence punishable under Section 302 of IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.50,000/- each; in default to undergo a period of two years simple imprisonment. The accused persons 1 & 2 were also convicted for the offence punishable under Sections 504 and 114 of IPC read with Section 34 of IPC and sentenced 3 them to undergo six months simple imprisonment for each of the offences.
2. We have heard the arguments of the learned counsel appearing for the appellants and the learned High Court Government Pleader for the respondent - State. We have carefully perused and re-evaluated the entire oral and documentary evidence on record.
3. The brief facts of the prosecution case is that the Accused No.1 H.D.Ravi and Accused No.2 S.D.Jagannatha are brothers to each other. It is the case of the prosecution that on 20.2.2011 in the afternoon the deceased by name Kariyappa who is also a resident of the same village i.e. Hadadi village in Davangere Taluk went to the house of the accused, picked up quarrel with the mother of the accused and abused her in filthy language. After coming to know about the same from their mother and being provoked by the abusive words said to 4 have been used by the deceased earlier, both the accused persons went near the house of the deceased Kariyappa in the evening at about 6.30 p.m., started abusing him in filthy language ("Le Kariya, Horage Barale, neenu madyanha nanage nimhaavvanada antha bydiddeyalla"). The accused No.2 Jagannatha had instigated accused No.1 Ravi to do away with the life of the deceased and in pursuance of the same both the accused persons with an intention to do away with the life of the deceased particularly A1 who was holding a beer bottle in his hand assaulted on the head of the deceased due to which the said beer bottle was broken into pieces and the accused No.1 further stabbed with the broken beer bottle on the testicles of the deceased, which caused severe injury to his testicles. Thereafter, the deceased was shifted to Hospital where he succumbed to the injuries later. On the basis of the above said allegations, PW-3 Renukamma lodged a complaint as per Ex.P2. On 5 the basis of which, the respondent Police have registered a case in Crime No.16/2011 for the offence punishable under Sections 504, 302 read with Section 34 of IPC. After thorough investigation, the Police have filed charge sheet for the above said offences. Accused were also arrested on the very same day of the incident and they were produced before the jurisdictional Magistrate and remanded to the Judicial Custody. After committal proceedings, the Trial Court after securing the presence of the accused persons framed charges against them for the above said offences. As the accused pleaded not guilty, they were tried by the trial court, found them guilty, convicted and sentenced them as noted supra.
4. The prosecution in order to bring home the guilt of the accused, examined as many as 20 witnesses as PWs.1 to 20, got marked 21 documents as Exs.P1 to P21 and Material Objects 6 as MOs.1 to 9. After examination of the prosecution witnesses, accused were also examined u/s.313 of Cr.PC., Accused however did not choose to lead any defence evidence. As such, after hearing both the sides, the Trial Court has arrived at a conclusion that the prosecution has proved the case beyond reasonable doubt.
5. The prosecution mainly relied upon the evidence of three eye-witnesses such as PWs.3, 9 and 11 and also relied upon the recovery of the incriminating articles at the instance of the accused i.e., blood stained clothes as well as beer bottle at the instance of accused No.1. The prosecution has relied upon the opinion of the finger prints experts and the evidence of the FSL Officer as well as the finger print expert in order to draw such an inference, against the accused so as to arrive at a conclusion that the prosecution has proved its case beyond reasonable doubt.
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6. The learned counsel for the appellants has strenuously contends before the court that there are innumerable discrepancies in the evidence of PWs.3, 9 & 11 with reference to the injuries inflicted as well as the injuries sustained by the deceased. The presence of the witnesses is also doubtful as the eye witnesses interse do not speak about their presence. The learned counsel also contended that, the Investigating Officer has not properly collected the material objects in accordance with law. There is a serious doubt with regard to the recovery of the incriminating articles at the instance of accused No.1. He has also contended that the Investigation Officer has not followed proper procedure for the purpose of collecting the finger prints of the accused. Moreover the accused themselves have made to take out the incriminating article from the bush particularly beer bottle. Thereafter, it was sent to FSL for report. Therefore, such procedure followed by the Investigation Officer cannot be 8 relied upon for the purpose of accepting the finger print experts report. Therefore, he contends that the prosecution itself has not proved the case against the accused persons beyond reasonable doubt. He has also further argued that, there is absolutely no material to connect the accused and that he made all his efforts to prevent Accused No.1 from assaulting the deceased, but this has not been taken note of by the Trial Court in proper perspective.
7. Last but not least, the learned counsel for the appellants contended that the Trial court is wrong in coming to the conclusion that the prosecution has proved its case beyond reasonable doubt.
8. Alternatively, the learned counsel submitted that the factual matrix of the case clearly discloses that, there was some quarrel between the accused and the deceased. The accused persons 9 came near the house of the deceased and they quarreled each other and thereafter they might have assaulted the deceased indiscriminately. The consequences of the act is that absolutely, there is no intention on the part of the accused persons to kill the deceased. Therefore, the offence do not fall u/s.302 of IPC, but it may fall u/s.304 part I or II of IPC, and that both the offences are not compulsorily punishable with life imprisonment. The accused persons are farmers and they are eaking their livelihood through farming. They have aged mother and other family members to be maintained. There is absolutely no previous bad antecedent alleged against the accused. Therefore, lenient view may be taken while imposing punishment on them. Even if the court comes to the conclusion that the offence may fall u/s.304 Part I and II of IPC, he pleaded for acquittal of the accused or for lesser punishment.
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9. Per contra, learned High Court Government Pleader contended that, when the accused persons went to the house of the deceased with a beer bottle, it shows that they have decided to inflict injury on the deceased. There is clear intention on the part of the accused persons to do away with the life of the deceased, but the Investigating Officer has properly in accordance with law collected incriminating articles from A1. Finger print experts evidence and report also support and corroborate the other evidence on record. When the intention of the accused persons is apparent on the face of their act, the Trial Court has rightly convicted the accused persons for the above said offences. There is no room for interference by this court. Hence, he pleaded for dismissal of the appeal.
10. Before adverting to the material evidence available on record, it is just and necessary to go through the evidence of each witnesses in order to 11 ascertain what exactly the purpose of the prosecution in examining the said witnesses.
11. PW-1 Thimmappa.K is the inquest panch witness who has categorically stated about his presence at the spot when the inquest proceedings were conducted as per Ex.P1. In the course of cross examination, even the inquest was not recorded in the presence of this witness. Except suggesting that this panchnama being done, when all the witnesses were there in the hospital. In fact it fortifies the case of the prosecution coupled with the evidence of the doctor PW-12 Dr. Dakshayani, who has conducted the Post Mortem examination on the dead body of the deceased Kariyappa. She has stated that, the deceased has sustained as many as four injuries and he died due to the injuries occurred to the private part of the deceased. In the course of cross examination, of course, there is no suggestion made to the effect 12 that the deceased died due to some other reason. It is stated that if a person is assaulted with a bottle like MO1 injury Nos.3 and 4 could be caused. The doctor has rendered his opinion that the death of the deceased caused due to the injuries sustained by him by using weapon like MO1. There is no dispute that the deceased did not died a homicidal death. Therefore, looking to the evidence of these witnesses (PWs.1 & 12), we are of the opinion that the prosecution has established the homicidal death of the deceased.
12. PW-2 Uchangamma is the mother of the deceased. She came to know about the incident later. After the incident being happened at about 6.05 p.m., she received the information from one Hanumanthappa about the assault made by A1 and A2 on the deceased. Thereafter they came to the house and saw the deceased Kariyappa lying in the pool of blood and in spite of shifting him to the 13 hospital, the said Kariyappa died on the same day at about 8.00 p.m., she spoke about the motive for assault that on the same day, the deceased had been to the house of the accused and abused the mother of the accused persons. Therefore, they came and assaulted the deceased. In the course of cross examination, some attempts have been made to elicit that the deceased was in the habit of consuming Alcohol, but she denied the same. Therefore, nothing is there to disbelieve the version of this witness. This witness has categorically stated that the house of PW-3 is an (eye-witness) is situated just opposite to the house of the deceased. In this background, the evidence of other witnesses have to be looked into.
13. PW-3 Renukamma, PWs.9 to 11 Hanumanthappa, Revanasiddappa and Master Abhishekh are the eye witnesses. We would like to discuss the evidence of PWs.3, 9 to 11 little later. 14 PW-4 Balegara Neelappa, is also a hearsay witness. He came to know about the incident and went to the Hospital and saw the deceased sustaining injuries on his private part. Except that he has not given any incriminating evidence to the prosecution. In the course of cross examination, some factual matrix with regard to the topography of the scene of offence has been elicited, but in our opinion the same is not so important. The defence witness wants to utilize the evidence of this witness to canvass that, about 100 to 150 houses are there near the place of incident. In spite of that, except these witnesses no body has been examined by the Investigation Officer but when the eye witnesses evidence is available, mere non examination of so many other eye-witnesses, it will not in any way hamper the case of the prosecution. It is the quality and not the quantity of evidence required to be placed before the Court 15
14. PW-9 Hanumanthappa, is a person who has visited the hospital after coming to know about the death of the deceased. He is also a witness to the spot panchnama Ex.P3. He has identified his signature in the spot panchanama Ex.P3, and also identified the materials collected at the spot i.e., MO5 glass pieces, MO6 sample mud and MO7 blood stained mud. He also identified himself in photos Ex.P4.
15. PW6 Neelappa, has deposed that, the deceased belonged to his village and he came to know about the death of the deceased in the incident. According to the police, in his presence, the police personnel has produced the blood stained clothes of the deceased. The witness has turned hostile so far as this incident is concerned. But, in the course of cross examination, he identified his signature in Ex.P5 which is the mahazar under which the police have recovered the blood stained 16 clothes of A1. This witness was also supported in the course of cross examination. A1 was arrested and at his instance, the police have recovered one shirt, one piece of bottle from him which is marked at MO1 and MO9. Though this witness has turned hostile to the prosecution but in the cross examination, he has supported the case of the prosecution to some extent.
16. PW7 B.Chandra Sheker, is the panch witness to Ex.P7 mahazar. The police have seized the clothes of the deceased. About recovery of MOs.2 to 4 no much cross examination has been made so far as this witness is concerned. Therefore, the seizure of these articles is established.
17. PW-8 Rajappa has deposed before the court with reference to the recovery of the incriminating articles at the instance of the accused. 17 We will discuss his evidence little later as he has supported the case of the prosecution.
18. PW-13 Channabasappa is also a formal witness at the request of the police, after the incident he visited the scene of offence and drew up sketch as per Ex.P10 there is no dispute with regard to the scene of offence and incident being happened near the house of the deceased. Therefore, there is no significance so far as Ex.P10 and 11 are concerned.
19. PW-14 Ismail is the Police Inspector who was attached to finger print bureau, has deposed that, after one Mr.Prakash brought a chance finger print on the disputed MO1 and in fact he has sent the same to the FSL for the purpose of opinion and afterwords, he obtained the report and produced the same before the court, we would like to discuss the evidence of this witness little later. 18
20. PW15 Nagaraj Karodi is a formal witness and he carried the FIR after registration of the case and he in fact transmitted FIR to the jurisdictional court concerned. The FIR is marked at Ex.P12.
21. PW-16 Basappa is also a formal witness who receives the complaint from PW3 Renukamma registered a case in Crime No.16/2011 for the offence punishable u/ss.504, 302 read with Section 34 of IPC and dispatched the FIR to the court.
22. PW-17 Girish B.V. is one of the Police Sub-Inspector, visited the spot and drew up Ex.P3 Spot Mahazar. He has collected the material objects MOs.5 to 7 from the spot. As we have already narrated by another panch witness with regard to the seizure of the clothes of the deceased.
23. PW-18 G.A. Jagadeesh is the Police Circle Inspector who has completed the investigation and submitted the charge sheet.
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24. PW-19 K.M. Prakash was examined before the court for the purpose of establishing the fact that, he had accompanied the Investigation Officer for the recovery of incriminating articles at the instance of A1 and actually after recovery of broken beer bottle, he has shifted the same to chance finger print expert for examination of the bottle and assisted the investigation.
25. PW-20 Dr.Lingegowda is the FSL Officer, who has conducted the medical examination and he gave his opinion that the blood stained clothes contained the blood stains of the deceased, and blood stained clothes of the accused were also actually stained with same group of blood i.e., 'O' group of blood.
26. On the basis of the above evidence, the material evidence to be considered by this court are that the evidence of the eye-witnesses and the evidence with reference to the recovery and 20 evidence with reference to the finger print of the accused No.1 said to have been sent for FSL. In this background, we will consider firstly the evidence of the eye witnesses.
27. PW-3 Renukamma has categorically stated that, her house is situated in the same village. Just behind her house, the house of the deceased is situated. Speaking about the incident, she has stated that she was doing some work in the front yard of her house on the date of incident. She saw A1 and A2 came to the house of the deceased and started abusing and calling him to come out of the house. After hearing the same, she saw A1 was holding a bottle in his hand and assaulted on the head of the deceased due to which the beer bottle was broken, and Accused No.1 was holding the remaining portion of the bottle which was sharp edged, with which he has assaulted on the private part of the deceased. In that context, the deceased 21 suffered serious injuries. At that time, Hanumanthappa, Revanasiddappa who were also present and later PW-2 Huchangamma, mother of the deceased shifted the injured to the Hospital. She also deposed that at about 8 or 8.30 p.m., the deceased succumbed to the injuries in the hospital. She identified her signature in Ex.P2 a report. She has also identified MO1 broken beer bottle and identified the same.
28. On plain reading of the examination in chief of this witness itself, there is absolutely no allegation against A2 who was simply present along with A1 except stating that he also called the deceased to come out from the house and abused him, it is not stated by her that he, in any manner instigated A1 to assault the deceased. She has also identified the clothes of the deceased which were stained with blood. In the course of cross- examination, an attempt was made to elicit that it 22 is only the police who wrote the complaint she simply signed the complaint, but she explained that she actually dictated the contents of Ex.P2. The photograph has also been elicited with reference to the existence of some houses surrounding the house of the deceased. This will not come to the help of the accused in this particular case because the eye-witnesses have deposed about their presence and the Investigating Officer promptly at the earliest point of time recording their statement. Some more questions have been put to elicit that this witness came to the spot after the incident being happened but she blatantly stated that herself and Hanamantha were present at the time of incident and actually they gave some preliminary treatment to Kariyappa by tying some clothes before shifting him to the Hospital. She has also deposed that, about ½ an hour after the incident, ambulance came for the purpose of shifting the deceased to the Hospital. Of course some 23 contradictions were elicited in the evidence, but she has not stated about the overt acts of A2 and also she has not stated about the presence of other witnesses etc., But on reading the entire cross- examination portion, the case of the prosecution with regard to the accused person going to the house of the deceased and A1 assaulting the deceased is not disturbed. Some effort was also made that the deceased was also addicted to alcohol and he was also demanding money from his wife. The said suggestions have been denied. It is also suggested that deceased Kariyappa was also an alcoholic and he used to go to his house every day holding beer bottle in his bag etc., perhaps these questions were put to probabalise that at the time of incident, it is the deceased who had beer bottle with him in his house, but due to provocation and sudden movement, accused might have taken the beer bottle and that when they went to the house of deceased, they were not armed. This 24 theory can be easily over ruled because it is an admitted fact that the deceased was always demanding money from his wife even excluding some exaggeration and contradictory statements, there is no suggestion to him in the course of cross- examination as to why she has to give a false evidence to falsely implicate the accused persons. In the absence of such materials in the course of examination some exaggeration or discrepancy in the evidence which do not go to the root of the prosecution case itself cannot be countenanced.
29. PW-9 Hanumanthappa is no other than the villager, neighbour and also the relative of the deceased. He has stated that on the day of the incident, he was there in the house of the deceased and he spoke about the presence of Abhishek PW- 11 in the house at that time. He has further deposed about the overt acts of the accused that they came near the house of the accused, called 25 him out and dragged him from one side to another and thereafter A1 assaulted him with a beer bottle on his head, and A1 also assaulted on the head and private part of the deceased which caused severe injury to the deceased thereafter, they shifted the injured to the Hospital but he succumbed to the injuries later.
30. In the course of examination in chief itself, this witness has not stated about any abusive words used by A2, but they only called Kariyappa outside the house and thereafter started abusing him with reference to why Kariyappa has abused their mother on that day in the afternoon. Of course, this witness has not stated about the presence of PW-3 at that particular place. Though he has not stated anything but it is stated that they all shifted the deceased to the Hospital including PW3. It shows that some other persons were also present at that particular point of time. He has 26 stated about the presence of PWs.9 and 2 Revanasiddappa and Uchhangamma and also accused at the spot.
31. In the course of cross-examination also, nothing worth has been elicited. This witness PW-9 has stated that, when they were witnessing television inside the house of Kariyappa, there was no injuries to his hands. Perhaps the injuries must have been caused during the course of the incident because when he had not sustained injuries while witnessing TV, the only inference that can be drawn is that he must have suffered the injuries in the incident, though the witnesses have not stated A1 assaulted on the hands of the deceased. But it can be inferred that when the accused person A1 has assaulted on the head, the bottle was broken and immediately he made attempts to assault on the private part, during that time, to prevent the onslaught the deceased might have put across his 27 hands to prevent A1 and in that context the injuries might have occurred to his hands also. The court can draw such inference as the injury was not there earlier to the incident but found immediately after the incident. Except A1, no other person said to have assaulted the deceased nor there was any suggestion to them that those injuries are self inflicted. Therefore, the evidence of this witness also corroborate the evidence of PW-3 because, he has categorically stated about the overtact of the accused No.1. Very peculiarly enough this witness has also not stated anything about the overt act of A2. On the other hand, the prosecution evidence also shows that A2 has made some efforts to prevent A1. But, in spite of that, A1 has done that particular Act.
32. PW-10 Revanasiddappa is a formal witness. He has deposed that about one year back at about 6.00 p.m., he saw the deceased sustained 28 injuries and thereafter he telephoned to ambulance and secured the ambulance and shifted the injured to the Hospital. The prosecution in fact examined this witness as one of the eye-witnesses, but he has not supported the case of the prosecution to that extent, but he has promptly and very truthfully, stated that he came to the spot after the incident and he has not stated before police that he was an eye-witness at any point of time.
33. PW-11 Abhishek is no other than the son of the deceased. A preliminary examination has been done by the learned Sessions Judge to ascertain the capability of this child witness to give evidence before the Court. This witness has categorically stated about the incident he spoke about the presence of PW-3 Renukamma who is no other than the maternal aunt of this witness. He has identified A1 and A2 before the Court stating that they were the persons came near his house 29 and he has stated that A2 instigated A1 to assault the deceased. But, this statement is conspicuously absent in the evidence of other eye-witnesses.
34. PWs.3 to 9 have not stated about the words used by A2 and the improvement by PW-11 cannot be brushed aside, if improvements are not supported by any other materials on record such improvements cannot be made use for acquitting or for the purpose of convicting the accused, it should be excluded from appreciation. The witnesses have further deposed that accused was holding a bottle in his hand and assaulted on the head of the deceased. This is also in our opinion, an improvement and not supported by any evidence, but the evidence of this witness is that A1 has assaulted and it is corroborated by other witnesses on record. In the cross-examination again, it is suggested to this witness because he is a child witness he has fully tutored by his uncle only to 30 give proper evidence. He has admitted that, when the Public Prosecutor has requested him to depose before the Court, it is quiet natural before putting the witnesses into the witness box, it is the duty of the prosecutor to refresh the memory of the witness that itself is not sufficient to discard the evidence of this witness. This witness is aged about 7 years. The test done by the learned Sessions Judge clearly discloses with regard to the capability of the witness who understand the pros and cons of the answer that may be given in the case. Of course, some improvements as we have already noted is elicited in the cross-examination and even they are proved by putting the same through the Investigating Officer. As we have said that such improvements or embellishments are there in the evidence of these three witnesses but on overall examination a ring of truth is available with reference to the core of the prosecution case that, the accused persons going and assaulting him the 31 deceased. There may be some discrepancy with regard to the assault on the hands of the deceased. It goes without saying that in the absence of cross- examination to the effect and as to why these witnesses have to falsely implicate the accused without there being any incident happened, and no other suggestions have been made to the witnesses as to how the deceased sustained those injuries. In the absence of such materials on record, we are of the opinion that, merely some discrepancies are there, the evidence of these witnesses cannot be totally discarded.
35. The learned counsel also contended that, the evidence of the doctor PW-12 if it is taken into consideration, there is no visible head injury as such caused to the deceased there is no allegation that any of the accused person assaulted on the hands of the deceased. We have already answered with reference to the injury sustained by the 32 deceased to his hand. Of course, there is no injury to the head of the deceased. It all depends upon the force used by the accused as both the prosecutor and the learned counsel admitted that the beer bottles are made up of a thin glass. It may break even if it comes in contact with any hard object even without much pressure on the beer bottle. In such an eventuality, though some assault is said to have been made as per the eye-witnesses version and the bottle was broken, the non finding of the injury by the doctor will not totally eradicate the evidence of the eye-witnesses. Therefore, in the above said circumstances, this discrepancy also will not go to the help of the accused persons.
RECOVERY:
36. So far as the recovery of the incriminating articles are concerned, the witnesses have supported the case of the prosecution, 33 corroborated the evidence of the Investigation Officer.
37. PWs.6 & 8 are examined in order to establish the recovery of a shirt and a beer bottle at the instance of A1 under Ex.P6 Mahazar. As we have narrated, PW-6 has half heartedly support the case of the prosecution. He has not fully supported and co-operated in the examination in chief though he has stated that, the police have brought the accused with them and the accused has taken them near a Tank bund. But in the course of cross- examination, he fully supported the story that, at the instance of the accused No.1, a bottle and a shirt was recovered which were identified by the witness as MO1 and MO9.
38. In the course of cross-examination, though he has admitted that on the bottle, there is no blood stains appearing, but nevertheless, the presence of this witness is not eradicated in the 34 course of cross-examination. PW8 has fully supported the case of the prosecution stating that the Investigation Officer has recovered MOs.1 and 9 at the instance of the accused. This MO1 and 9 are connected to the crime by the Investigating Officer by sending these articles along with other articles to the FSL. The FSL officer is also examined before the court as PW-20. He has categorically deposed that those articles contained 'O' group blood. This clarifies that, the weapon was used i.e., bottle was used for commission of the offence and at that time, the blood must have spurt to A1. This also creates a serious doubt about the presence of A2 at the spot or he must have away from A1 at that time because no blood stains were found on the clothes of A2.
39. This witness has categorically stated that the blood group on MO1 and the blood stains on the shirt of the accused were tallied with the blood 35 group of the deceased as the deceased clothes were also stained with 'O' Group blood. The recovery of the incriminating articles clearly corroborates the connection with the crime and this also fully corroborates the evidence of the eye-witness. Therefore, the prosecution has also proved recovery of MOs.1 & 9 at the instance of A1.
FINGER PRINT EVIDENCE:
40. Last but not least, so far as the investigation of the case is concerned, it is the case of the prosecution, that according to the Investigating Officer after arrest of the accused, the accused took them to the place i.e., the Tank bund near Channakere road and the accused has taken out one piece of beer bottle and shirt from a bush and accused has shown one broken beer bottle and shirt piece inside the bush according to Investigating Officer this has actually taken out by PW19 Prakash and PW19 has lifted the finger print 36 from the said bottle for the purpose of examination later. Though these two witnesses PWs.18 and 19 have categorically stated in the above said manner, but the learned counsel has also brought to the notice of the court, the evidence of the Investigating Officer while deposing the said aspect compared to the mahazar Ex.P6. We have carefully examined Ex.P6 wherein it is depicted A1 has actually taken out the bottle MO1 and as well as MO9 shirt. In such an eventuality, the bottle should contain the finger print of A1. Hence, the evidence of these witnesses to that extent cannot be believed. Therefore, the presence of finger print on the bottle has not been properly explained , that the said finger prints were actually imprinted on the bottle only at the time of commission of the offence. But on the other hand, using of this bottle is otherwise proved by the prosecution from the evidence of the eye-witnesses as we have stated that the accused No.1 was holding the bottle and 37 assaulted the deceased. We are unable to accept the version of the Investigating Officer and the finger print experts report and PW-19 to the effect that actually finger prints of A1 occurred at the time of commission of the offence.
41. Be that as it may, on overall analysis of the entire oral and documentary evidence on record, even if we ignore the report of the finger print expert and the Investigating Officer to the above said extent, the other evidence in our opinion is amply sufficient for the purpose of drawing inference that A1 is the perpetrator of the crime.
42. As we have already observed that A2 though he went along with A1, there is some evidence on record that he made some effort to prevent A1 from committing the offence. Perhaps it might have gone out of his hands and A1 was furious enough to assault the deceased in such manner. Therefore, we are of the opinion that the 38 common intention cannot be gathered from the act to A1 and A2. Mere presence of A2 may not be so sufficient to draw inference that he had any common intention to do away with the life of the deceased. Perhaps A2 might have participated with the accused No.1 in order to take revenge because the deceased had abused the mother of the accused.
43. In view of the overt act of A1 as depicted in the prosecution case that has been projected before this court and as argued by the learned counsel, whether the offence fall u/s.302 or u/s.304 part I & II of IPC has to be tested. It is seen from the records that the accused persons have gone near the house of the deceased without any preparation because it is seen from the voluntary statement of A1 that he has stated that the deceased had been to the house of the accused in the morning at about 12.00 p.m., (in the afternoon) 39 perhaps in the evening after coming back, they might have received information from their mother and thereafter in order to question the deceased they might have gone near his house. It cannot also be said that the accused persons when came near the house of the deceased they call the deceased to come out of his house and started abusing him and there must have been some exchange of words and the altercation in that context the incident might have happened un- knowingly without knowing the consequences of his act, A1 assaulted the deceased knowing that the said act of him may cause such a bodily injury, and death of the deceased. In order to infer the sudden provocation on the part of the accused, it is stated that A1 assaulted on the head of the deceased as rightly contended by the learned counsel, there is absolutely no injury on the head of the deceased. Therefore, the act of the accused knowing that his act may likely to cause such an injury which is 40 sufficient to cause the death of the deceased only can be inferred, but, the intention to kill cannot be inferred in a conclusive manner. In our opinion, the offence committed by the accused must fall under Section 304 part II of IPC. Therefore, we prefer to convict the accused No.1 for the above said offence. Hence, for the above said reasons, we proceed to pass the following:
ORDER The appeal is partly allowed. Consequently, the appellants/accused Nos.1 & 2 are hereby acquitted of the charges leveled against them for the offences punishable under Sections 302 of IPC.
A1-H.D. Ravi is convicted for the offence punishable under Section 304 Part II of IPC and sentenced him to undergo imprisonment for a period of Seven years and to pay a fine of Rs.1,50,000/- in default to undergo simple imprisonment for a period of three months.
We uphold the conviction and sentence passed by the trial Court on Accused Nos.1 and 2 for the 41 offence punishable under Section 504 and 114 read with Section 34 of IPC. The accused Nos.1 & 2 are also entitled for set off u/s.428 of Cr.PC.
If any fine amount is deposited by Accused Nos.1 & 2 for the offence punishable under Sections 302 of IPC, the same is ordered to be refunded on proper identification and acknowledgement.
Further, it is ordered that the entire fine amount is ordered to be given to the wife of the deceased on proper identification and acknowledgement.
It is submitted that A2 is on bail. His bail bond shall be cancelled.
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JUDGE Sd/-
JUDGE PL*