Karnataka High Court
The State Of Karnataka vs Sri Raveesha @ Ravi on 1 March, 2013
Bench: K.L.Manjunath, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 1ST DAY OF MARCH, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.805/2009
C/W
CRIMINAL APPEAL NO.806/2009
&
CRIMINAL APPEAL NO.23/2013
IN CRL.A.NO.805/2009:
BETWEEN:
The State of Karnataka,
By Channarayapatna Rural
Police Station. ... Appellant
(BY Sri.N.S.Sampangiramaiah, HCGP)
AND:
Sri.Raveesha @ Ravi,
S/o late Kalasegowda,
Aged about 43 years,
R/o Dodda Karadevu Village,
Dandiganahalli Hobli,
Channarayapatna Taluk. ... Respondent
(By Sri.S.Shankarappa, Advocate)
2
This Crl.A is filed U/s.378(1) & (3) Cr.P.C, praying
to grant leave to file an appeal against the order of
acquittal dt.21.04.2009 passed by the Presiding Officer
& Addl. Sessions Judge, Fast Track Court-II, Hassan
(concurrent charge) in S.C.No.102/2002, thereby
acquitting the accused/respondent no.1 for the offence
p/u/s 143, 148, 341, 307, 302 r/w 149 IPC.
IN CRL.A.NO.806/2009:
BETWEEN:
The State of Karnataka,
By Channarayapatna Rural
Police Station. ... Appellant
(BY Sri.N.S.Sampangiramaiah, HCGP)
AND:
Sri.D.K.Umesha,
S/o Kalasegowda,
Aged about 31 years,
R/o Dodda Karadevu Village,
Dandiganahalli Hobli,
Channarayapatna Taluk. ... Respondent
(By Sri.S.Shankarappa, Advocate)
This Crl.A is filed U/s.378(1) & (3) Cr.P.C, praying
to grant leave to appeal against the order of acquittal
dt.21.04.2009 in S.C.No.54/2008 passed by the Addl.
Sessions Judge and Presiding Officer, Fast Track Court-
II, Hassan, thereby acquitting the accused/respondent
for the offence p/u/s 143, 148, 341, 307, 302 r/w 149
IPC..
3
IN CRL.A.NO.23/2013:
BETWEEN:
1. Dummatikumara,
S/o Papanna,
Aged about 47 years,
R/a Dodda Karadevu Village,
Dandiganahalli Hobli,
Channarayapatna Taluk,
Hassan (D) - 573 116.
2. Beluraiah,
S/o Beluraiah,
Aged about 44 years,
R/a Dodda Karadevu Village,
Dandiganahalli Hobli,
Channarayapatna Taluk,
Hassan (D) - 573 116.
3. Manja
S/o Shankeregowda,
Aged about 28 years,
R/a Chikka Karadevu Village,
Dandiganahalli Hobli,
Channarayapatna Taluk,
Hassan (D) - 573 116.
4. Shekara
S/o Shivananjegowda,
Aged about 36 years,
R/a Chikka Karadevu Village,
Dandiganahalli Hobli,
Channarayapatna Taluk,
Hassan (D) - 573 116.
5. C.R.Dinesh,
S/o Rangegowda,
Aged about 28 years,
R/a Chikka Karadevu Village,
Dandiganahalli Hobli,
4
Channarayapatna Taluk,
Hassan (D) - 573 116.
6. C.R.Thimmegowda,
S/o Rangegowda,
Aged about 24 years,
R/a Chikka Karadevu Village,
Dandiganahalli Hobli,
Channarayapatna Taluk,
Hassan (D) - 573 116. ... Appellants
(By Sri.S.Shankarappa, Advocate)
AND:
State of Channarayapatna Rural
Police, Rep by S.P.P.,
High Court Building,
Bangalore 560 001. ... Respondent
(By Sri.N.S.Sampangiramaiah, HCGP)
This Crl.A is filed U/s.374(2) Cr.P.C praying to set
aside the order dated 21/25.04.2009 passed by the P.O.
& Addl. S.J., F.T.C.-2, Hassan in S.C.No.44/2002,
102/2002 and 54/2008 convicting the
appellant/accused for the offence p/u/s. 143, 148, 341,
307, 302 read with 149 IPC and etc.,.
These appeals coming on for hearing this day,
H.S.Kempanna J, delivered the following:
5
JUDGMENT
All these three appeals are directed against the judgment and order dated 21.04.2009 passed in S.C.No.44/2002, S.C.No.102/2002 and S.c.No.54/2008 by Additional Sessions Judge and the Presiding Officer, FTC-II, Hassan.
2. Crl.A.No.805/2009 and Crl.A.No.806/2009 have been preferred by the State challenging the order of acquittal of the respondents in the said appeal who had been arrayed as accused Nos. 1 and 8 in the sessions case. Crl.A.No.23/2013 has been preferred by accused Nos.2 to 7 in the said cases challenging the legality and correctness of the judgment and order convicting them for the offence punishable under Sections 143, 148, 341, 307, 302 read with Section 149 of IPC and sentencing each of them to undergo simple imprisonment for three months for the offences under Section 143 and 148 of IPC, to undergo simple imprisonment for one month for the offence under 6 Section 341 read with Section 149 IPC, to undergo imprisonment for life and to pay fine of Rs.2,000/- each, in default to pay fine amount, to undergo simple imprisonment for six months for the offence under Section 302 read with Section 149 IPC, to undergo rigorous imprisonment for five years for the offence under Section 307 read with Section 149 IPC.
2.1. It is the case of the prosecution that deceased Surendra Prasad and PW-1 are cousins and are resident of Chikkakaradevu village coming within the jurisdiction of Channarayapatna Rural Police Station. It is also the case of the prosecution that accused Nos.1 to 3, 8 and accused Nos. 4 to 7 are residents of Doddakaradevu and Chikkakaradevu villages respectively coming within the jurisdiction of the very same police station. Both the said villages are situated adjoining to each other.
2.2. It is the case of the prosecution that there were differences between accused Nos. 1 and 8 on one hand and the deceased on the other hand in connection 7 with the deceased having assaulted accused No.1 on the previous occasion for which he had been tried for the offence punishable under Section 307 IPC, convicted and sentenced for 5 years. He had challenged the said judgment of conviction and sentence in appeal wherein the order of sentence was suspended and he was enlarged on bail. On account of this, accused Nos. 1 and 8 along with other accused who are their henchmen were nursing grudge against deceased Surendra Prasad.
2.3. It is the case of the prosecution that on 10.11.2001 at about 6.00 p.m., the deceased and his cousin PW-1 were proceeding to their house driving their cattle in a lane situated next to the cattle shed of one Shivalingegowda at Chikkakaradevu village. They were following one another along with their cattle. While they were in the said lane, accused came to the said place having formed into an unlawful assembly armed with longs, coconut dissector, etc with the common object of committing the murder of the deceased and in furtherance of the common object of 8 the said assembly, they way laid the deceased and PW1, thereafter, A5 threw chilly powder on the deceased, A1 and A8 assaulted on the neck and chest of the deceased. On account of the same, deceased fell down in the lane. Thereafter, he was dragged by the accused to the cattle shed of Shivalingegowda. At the cattle shed, A1 to A5 and A8 assaulted the deceased with longs and kattis on the neck and chest. A6 assaulted the deceased with coconut dissector on the chest. Seeing the same, when PW-1 went to rescue the deceased, A4 and A5 assaulted him with katti due to which, he also sustained injuries. On account of the assault made, the deceased collapsed at the spot. Thereafter, the accused left the spot with the weapons.
After the accused left the spot, PW-1 went to his house in order to inform the occurrence to the police over phone. Since he could not get the line, he proceeded to the house of his uncle-PW8 situated at Byadarahalli. In the mean time, hearing the commotion, PW-3, the mother and CW-4, sister of PW-1 came to the spot. It is also the case of the prosecution 9 PW-2 who was a passer-by also witnessed the occurrence that was taking place at the said place. After PW-1 went to his uncle's house, he informed him and thereafter, he came to Kaarekere gate situated by the side of the State Highway and there, he took a lorry and came to Channarayapatna in the night and after getting the complaint-Ex.P1 prepared, he filed the same before PW17 Police Sub-Inspector at about 10.15 p.m. 2.4. PW-17 on the basis of Ex.P1 registered a case in Crime No.112/2001 for the offences under Section 143, 147, 148, 341, 307, 302 read with Section1 149 IPC and issued FIR as per Ex.P17 to the jurisdictional Magistrate which reached him on the intervening night of 10.11.2001 and 11.11.2001 at 12.00 midnight. Thereafter, PW-17 forwarded PW-1 to Channarayapatna Government Hospital for the treatment of the injuries which he had sustained along with a requisition in response to which PW-1 was treated by PW-16 at the said hospital at about 11.55 p.m. and issued wound certificate - Ex.P16 in respect of 10 him. It is the further case of the prosecution, thereafter PW-17 proceeded to the scene of occurrence along with the staff. He could not get any clue in respect of the occurrence at the said place. He deputed his staff to keep watch over the scene of occurrence and also over the dead body and returned to the police station. Thereafter, he handed over further investigation of the case to PW-23 CPI at the early hours i.e., 3.00 a.m. on 11.11.2001. PW-23 thereafter on the morning of 11.11.2001 proceeded to Chikkakaradevu village and there he held inquest over the body of the deceased and drew-up inquest mahazaar as per Ex.P2 in the presence of panch PW-4. At that time, he recorded the statement of PW-5, father of the deceased, mother of the deceased and an independent witness-CW-8. At that time, he also seized MOs.9 to 13 which were at the spot. After completing inquest mahazaar-Ex.P2, he got the body subjected to P.M. examination by sending a requisition, in response to which, PW-18, the medical officer conducted post mortem and issued post mortem report
- Ex.P19. He also deputed his staff to trace and 11 apprehend the accused. Thereafter, on 12.11.2001, PW-23 continuing the investigation, arrested A4 and A5 at about 7.00 a.m., on being produced by PW-17 and his staff. On their interrogation, he recorded the voluntary statement of A4 and A5 as per Ex.P31 and Ex.P32 respectively. Thereafter, he secured the panchas, PWs.9 and 10. On their arrival, he recovered MOs.14, 15 and 16 which were on the person of A4 under a mahazaar Ex.P4 and thereafter, he recovered MO.2 which was on the person of A5 under Ex.P5. After completion of Ex.P4 and Ex.P5, he kept the accused in safe custody. On 13.11.2001, PW-23 continuing investigation recovered MO-7 at the instance of A4 in pursuance of his statement-Ex.P31 under the panchanama Ex.P7 and MO.8 at the instance of A5 in pursuance of his statement-Ex.P32 under the panchaname-Ex.P6 from the cattle shed of their house in the presence of PW-11 and PW-14. On the same day, i.e., on 13.11.2001, PW-23 also arrested A7. On his interrogation, he recorded his voluntary statement as per Ex.P33 and in pursuance of the same, he seized 12 MO.6 under the panchanama Ex.P8 in the presence of panch PW-12. Thereafter, on completion of arrest formalities, he got remanded all the accused to the judicial custody. PW-23 continuing the investigation recorded the statement of witnesses and also took steps to get the photographs of the deceased taken before the inquest was held. He also got prepared the sketch and forwarded all the seized articles for subjecting to chemical examination to FSL office. Thereafter, on receipt of all the relevant documents since the other accused in the case were not traced, as investigation had been completed on 30.01.2002 he submitted a final report against A4, A5, A7 showing A1, A2, A3 and A6 as absconding in the case.
2.5. It is further the case of the prosecution, thereafter on 28.06.2002, A2, A3 and A6 surrendered before the jurisdictional Magistrate. After their surrender, PW-23 took A2 and A6 to police custody on 17.07.2002. On their interrogation, he recorded their voluntary statement as per Ex.P34 and 35 respectively. 13 In pursuance of the same, he seized MO.17 under Ex.P22 at the instance of A2 and MO.18 under Ex.P22 at the instance of A6 in the presence of panch, PW-20. Thereafter on 19.08.2002, he submitted additional supplementary final report against A2, A3, A6 by deleting A1.
2.6. It is the further case of the prosecution, thereafter, PW-24, the Police Inspector of COD further investigated into the case as per the orders of his superior officers and on completion of the investigation, submitted an additional supplementary final report on 03.01.2005 showing A8 as absconding before the jurisdictional Magistrate by deleting A.1.
2.7. After the final report as aforesaid came to be filed before the Jurisdictional Magistrate, the case of A.2 to A.7 came to be committed to the Court of Sessions, which on receipt of the records, secured their presence, framed charges as against them as aforesaid, to which they pleaded not guilty but claimed to be tried. The prosecution thereafter examined PWs 1 to 20 in support 14 of their case. At that stage, the prosecution filed an application under Section 319 of Cr.P.C. praying to add accused No.1 in the case. The said application after notice to A.1 was allowed and he was impleaded as Accused No.1 in the case. Thereafter, charges were framed against him similar to the one framed against the other accused, to which he pleaded not guilty and claimed to be tried. The prosecution thereafter recalled PWs.1, 3, 5, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19 and
20. They were further examined and cross-examined by the prosecution and the accused. Apart from the said witnesses, the prosecution also examined PWs.21 and
22. Thereafter, it is the case of the prosecution, accused No.8 as against whom PW.24 had filed the final report showing him as absconding in the case surrendered before the Jurisdictional Magistrate on 30.3.2008. Thereafter, his case was also committed to the Court of Sessions. Charges were framed against him similar to the one framed against the other accused, to which he pleaded not guilty and claimed to be tried. The prosecution thereafter recalled all the prosecution 15 witnesses examined till such time and further examined them. They were also cross-examined by the learned counsel for the accused. After their examination, PWs.23 and 24 were examined. Thus, the prosecution in support of its case in all examined PWs.1 to 24 and got marked Exs.P.1 to P.35 and MOs.1 to 18. The accused got marked Exs.D.1 to D.14 during the course of examination of the prosecution witnesses.
2.8. After closure of the prosecution evidence, the accused denied all the incriminating circumstances that were put to them found in the evidence of the prosecution witnesses in their cross examination under Section 313 of Cr.P.C. Thereafter, they examined DWs.1 and 2 as defence witnesses in support of their case. Total denial of the prosecution case is the defence of the accused.
2.9. The learned trial Judge on considering the entire evidence and documents placed on record came to the conclusion that the prosecution has failed to establish all the charges levelled insofar as A.1 and A.8, 16 but it has established the charges levelled against A.2 to A.7 and accordingly, by the impugned judgment and order while acquitting A.1 and A.8 convicted the present appellants - accused Nos.2 to 7 and sentenced them as aforesaid.
3. The appellants/accused Nos.2 to 7 being aggrieved by the judgment and order of conviction and sentence have preferred criminal appeal No.23/2013. The State being aggrieved by the judgment and order of acquittal of A.1 and A.8 have preferred Criminal appeal Nos.805/2009 and 806/2009.
4. Sri. Shankarappa, learned counsel appearing for the appellants/accused contended Ex.P1 the First Information that is filed by PW1 before PW17 PSI on 10.11.2001 at about 10.15 p.m. is not the First Information and it is hit by Sec.162 of Cr.P.C. According to him, the Police had earlier definite information of the occurrence in this case that is fortified from the evidence of PW2, PW3, PW8 and also PW17. PWs.2, 3, 8 among whom, PW3 is none other 17 than the mother of PW1 has stated in her evidence that the Police had come to the spot of occurrence at about 8.00 p.m. on the date of the occurrence. That is also the testimony of PW8 who is none other than the uncle of PW1. Further PW17 PSI himself has admitted in his evidence that after he received an information about the occurrence on wireless he had come to the spot of occurrence and had seen the body of the deceased. If this is taken into consideration, Ex.P1 which has been filed by PW1 before PW17 on that day at 10.50 p.m. cannot be the First information as the Police had definite information of the occurrence much prior to coming into existence of Ex.P1. He further contended in so far as PW1 who is the injured eye witness to the occurrence, his testimony cannot be believed because the evidence on record more particularly that of PW24 the Investigating Officer reveals that A1 and A8 were not present at the time of occurrence, among them A1 was attending to a meeting at TAPCMS at Channarayapatna and A8 was in the house of his father-in-law at Hassan in connection with Sathyanarayana Pooja that had been 18 arranged in the house. In view of this positive evidence of the Investigating Officer himself which is also fortified from the fact at the initial stage, no Final Report had been filed against them, the evidence of PW1 testifying to the fact that A1 and A8 assaulted the deceased on his neck and chest with Long cannot be believed. He further contended his testimony cannot also be believed for the reason he claims after deceased and himself were assaulted by the accused, he went to his house to telephone to the police, since he could not get the Police on phone he proceeded to the place of his uncle-PW8 viz. Nanjundegowda and there, after informing him he came back to Kaarekere gate situated by the side of the State Highway, there he took a lorry and came to Channarayapatna and after getting Ex.P1 prepared at Channarayapatna, he filed the same before PW17 PSI at 10.15 p.m. PW8 in his evidence does not claim that at the time PW1 came and informed him, he narrated to him that he and the deceased were assaulted by the accused. Apart from this, the learned counsel contends there was no need for PW1 to have gone to his uncle's 19 place and then on to the Police Station when the evidence on record reveals that his place namely, Chikkakaradevu village is very close to Channarayapatna than Byadarahalli which is situated beyond Karedevu village in the opposite direction to Channarayapatna. He further contended in so far as PW2 is concerned he is a chance witness. Admittedly, he deals in Jaggery in Sandy. Occurrence has taken place on Saturday on which day, Sandy was there at Channarayapatna. In view of the same his claim that he was passing near the spot of occurrence on the date of the occurrence cannot be believed. Apart from the same, he also claims that on hearing screams he came near the spot and at that time he noticed accused taking to their heels towards the western direction. In that view of the matter, it is difficult to believe his testimony also that he had come to the spot immediately after occurrence. Further, he claims that the Police had come to the spot on that very night before PW1 had filed the complaint, the Police made inquires with him and also PW3 mother of PW1. That statement 20 whatever that was revealed by him and PW3 to the Police namely PW17 who had come to the spot has been suppressed in the case. Therefore, he contends firstly Ex.P1 First Information is hit by Sec.162 and nextly these witnesses PWs.2, 3 have been cooked up in the case after much water has flown under the bridge. In so far as PW1 is concerned as already pointed out, his evidence does not inspire confidence to place any reliance in view of the fact that the material on record more particularly that of the evidence of PW24 reveals that both of them i.e. A1 & A8 were not present at the spot as they were attending Meeting and Sathyanarayana Pooja at Channarayapatna and Hassan respectively which is further fortified from Ex.D1 and D2 marked through PW1. He also contends, the testimony of PW1 is also in direct conflict with the medical evidence on record. According to him, the injuries that have been found on the person of himself and the deceased has not been corroborated with that of the Medical Officer PW16 who has treated him and also conducted Autopsy over the body of the deceased. He 21 also contended, the evidence on record reveals at the time of occurrence A4 and A5 have also sustained injuries on their person. They have been treated by PW16 on the very night of the occurrence on 11.40 p.m. at about that time PW1 was also treated by PW16. He contends the explanation offered by PW1 that these two accused sustained injury when A6 tried to assault PW1 he escaped and it landed on A5 and when A5 aimed the blow on him, it fell on A4. This explanation of PW1 cannot also be accepted because if according to PW1 it was only one blow which had landed on A4 and A5, the evidence of the Medical Officer reveals, namely, PW16 that these two accused have sustained as many as four injuries each which are further fortified from Ex.D7 and D8. Therefore, he contends that it was PW1 and the deceased who have attacked these two accused and caused them injury and therefore genesis of the case has been suppressed by PW1 in order to exculpate himself of the assault made on them. He also contended in so far as recovery of the weapons at the instance of A4 and A5, according to the prosecution, 22 MOs.7 and 8 have been recovered as per Ex.P7 and P6. respectively in pursuance of their statement Exs.P31 and 32. This recovery, according to the prosecution is made by PW23 on 13.11.2001 despite they having been arrested the previous day on 12.11.2001. He also further contended in so far as the recovery of MO6 at the instance of A7 also cannot be believed in view of the ocular testimony being untrustworthy. In sum and substance he contended the recovery that has been made at the instance of A4, A5, A7 and subsequently A2 and A6 much later on their surrender before the Jurisdictional Magistrate would not also further the case of the prosecution pointing towards the guilt of the accused. He also contended, the evidence of these witnesses, namely, PWs.1, 2, 3 cannot be believed as their evidence is in direct conflict with the evidence of PW18 Medical Officer who has conducted Autopsy, which clearly goes to show that the weapons seized in the case cannot cause the injuries that have been found either on the person of PW1 or on the body of the deceased. He also further contended in view of the fact 23 that deceased had been convicted earlier for having assaulted A1, in which case he had been committed to judicial custody and had been enlarged on bail on his preferring an appeal in view of the hostility that existed between the deceased, PW1 and his followers on the one hand and the accused including A1, A8 on the other hand, the evidence pressed into service of the prosecution witnesses to connect these accused with the alleged murder of the deceased and causing injury to PW1 cannot be believed. The learned Trial Judge without appreciating these materials on record in its right perspective has committed an error in holding that the prosecution has established the charge in so far as these accused are concerned, which finding is perverse, the same cannot be sustained, it be set aside and the accused be acquitted of the charge leveled against them.
5. In so far as the appeal preferred by the State as against A1 and A8, he submitted the evidence on record reveals that they were not present on the spot at the time of occurrence. It is fortified from the evidence 24 of PWs.19, 20, 21, 23, 24 coupled with Ex.D1, D2, D4, D5 marked through the evidence of PWs.1, 3 and 5. The learned Trial Judge on a close scrutiny of the materials on record has rightly come to the conclusion that the prosecution has failed to establish the charge as against them and has acquitted them. The said order of acquittal, therefore does not call for any interference and hence appeals preferred by the State as against A1 and A8 be dismissed.
6. Countering the submissions made by the counsel for the appellants/accused Sri. N.S. Sampangiramaiah, Learned High Court Govt. Pleader supporting the impugned Judgment and order contended there is nothing on record to show that the Police had any definite information of the occurrence prior to coming into existence of Ex.P1 filed by PW1 before PW17. Therefore, Ex.P1 cannot be said to be hit by Sec.162 Cr.P.C. He further contended PW1 is an injured eye witness. His testimony is corroborated by PWs.2 and 3 who have come to the spot of occurrence 25 immediately on hearing screams. Their testimony is further fortified from the evidence of the Medical Officers namely, PWs.16 and 18. Nothing is brought out in the cross-examination of the said witnesses to discard their testimonies as to the actual assault made by the accused on the deceased and also PW1. He further contended the recoveries that have been made at the instance of A2, A4, A5, A6 and A7 also fortify the case of the prosecution and the said recovery having been also proved through the evidence of the Investigating Officer which is further fortified from the ocular testimony of PWs.1, 2 and 3. The Trial Judge relying on the same has committed no error in convicting these appellants/accused but at the same time he has failed to appreciate the evidence of these witnesses in not convicting A1 and A8. Therefore, he submitted that the impugned Judgment and order in so far as the conviction of appellants/accused does not call for any interference, but as the appreciation of the evidence in respect of the acquittal of A1 and A8 is perverse, it be set aside and accordingly the appeal 26 preferred by the accused be dismissed and the appeal preferred by the State be allowed.
7. In the wake of the submissions made by the respective counsels, the evidence and the documents on record, the points that arise for our consideration are:
1) Whether the prosecution has established that deceased Surendra Prasad has died an homicidal death and PW1 has sustained injuries on his person?
2) If so, whether the prosecution has established that the accused are responsible for the homicidal death of the deceased Surendra Prasad and causing injuries to PW1?
3) Whether the impugned Judgment and order calls for any interference?
8. PW18 is the Medical Officer who has conducted Autopsy over the body of the deceased Surendra Prasad. He in his evidence has stated that he conducted Autopsy over the body of the deceased on 11.11.2001 at the mortuary of Channarayapatna Hospital. At the time 27 of his examination he noticed the following injuries on the body:
1. Big cut wound seen over anterior part of neck and chest starting from midclavicular point on (Rt) side extending upwards backwards upto Mastoid region on (Lt) side measuring 8"x5"x3" depth ---- sick, facial, nasels, trachea, all supatical & deep vessels with urinal colsum and spinal cord at about T1 and C3 vertebra with # of C2 C3 Vertebra and # of clavicle (Rt) side.
2. Inscised wound 1 1/2 : below the above on (Rt) side 1"x1/2"x1/2"
3. Incised wound elliptical in shape on Ant chest 3" below (Rt) clavicle.
4. Inscised wound on (Lt) shoulder 1"x1/2"x1/2".
5. Inscised wound on (Rt) shoulder 2"x1/2"x1/2"
6. Inscised wound on (Rt) shoulder ½ above the above wound 2 ½ x ½ x 1/2.
7. Inscised wound on (Rt) cheek measuring 2 ½" x ½" x 1" cutting masetor muscle..
8. Linear scratch abrasion 2" below the above wound 2"x1/4" diversion
9. Linear scratch abrasion ½" below the above measuring 2"x1/4"
28
10. Transverse linear contusion mark on (Rt) arm measuring 5"x1/4"
11. Linear scratch abrasion mark 2" above (Rt) waist joint measuring 3 ½" x ¼"
12. Cut wound at (Rt) Elbo joint on Dorsel aspect 1"x1/2"x1/2"
13. Cut wound at (Rt) Elbo joint on vertebral side ¾": x ½"x ½"
14. Cut wound on fore arm 2" below Elbojoint measuring 3"x1/2"x1"
15. Cut wound on Distal 1/3rd of Fore arm on ventral side 1 ½"x1"x1" with # of both the bones of fore arm.
16. Cut wound on ventral side at same lenn of arrow ½"x1"x1/2"
17. Lineal dark scratch abrasia over chest on (Rt) side on 9th & 10th rib Measuring 3 ½"
18. Incised wound on (Rt) thigh 6" below Ant Crest. ¾" x ½" x ½"
19. Incised wound 1" below the above ¾" x ½x½
20. 3 Linear scratch abrasion over back on interscapalar region each measuring roughly 5" length.
He has further stated that all the above injuries were anti-mortem in nature and the death has occurred 29 about 12 to 24 hrs prior to conducting PM examination. He is of the opinion that the death is due to heavy bleeding and shock and he has issued the PM report as per Ex.P19. This evidence of PW18 is also fortified from the evidence of PW23 who held inquest over the body and drew up inquest panchanama, at which time he claims that he noticed the injuries along with the pancha as reflected in the PM report Ex.P19. The same is also corroborated from the evidence of PWs.1, 3 and 8 who have also testified to the fact that the deceased having sustained the said injury due to which he has died. In the cross-examination of these witnesses nothing has been elicited to discard their testimony in respect of the deceased having sustained the said injuries to which he has succumbed. Homicidal death of the deceased was also not disputed before us. Therefore, under these circumstances, we have no hesitation in holding that the deceased Surendra Prasad has died on account of the injuries caused on him due to violence and thereby the prosecution has established that he has died an homicidal death.
30
9. Now coming to PW1 he claims in his evidence that on account of the assault made, he sustained injuries on his body. He has been examined on the very day that is the date of occurrence 10.11.2001 at about 11.55 p.m. The evidence of PW16 reveals that this PW1 has sustained:
(1) A cut injury measuring 3" x ¼" x Muscle deep (2) A cut wound of supra scapula region measuring 2 x ¼" muscle deep (3) Swelling and pain over the left fore-arm measuring 1" x ¼ ".
He has issued the wound certificate in respect of him as per Ex.P16. The evidence of PW16 in respect of this is also not disputed. The accused also do not dispute PW1 having sustained the injuries. In that view of the matter, we hold that the prosecution has also established that PW1 has sustained injuries as projected by them.
10. The prosecution in order to connect the accused with the alleged murder of the deceased and 31 causing injuries to PW1 have placed reliance on the direct testimonies of PWs.1, 2 and 3, coupled with Ex.P1 filed by PW1 before PW17-PSI. According to the prosecution on 10.11.2001 at about 6.00 p.m. when the deceased accompanied by PW1 was returning to the house along with their cattle followed by one another in the lane situated by the side of the cattle shed of Shivalingegowda at Chikkakaradevu Village all these accused came to the said place having formed themselves into an unlawful assembly armed with deadly weapons with the common object of murdering the deceased and in furtherance of the common object of unlawful assembly way laid both of them, A5 threw chilli power on the deceased, A1 and A8 assaulted the deceased on the neck and chest with Long, due to which deceased fell down at the spot. Thereafter he was dragged to the cattle shed of Shivalingegowda, there A1, A6 assaulted the deceased with Long - Katti and A8 assaulted the deceased with coconut dissector. Further A4, A5 assaulted PW1 with Katti and caused him injuries. Due to the assault made by the accused, the 32 deceased collapsed at the spot, at that time PW1 raised cries. Hearing the same, PW2 who was passing by came to the spot followed by PW3 the mother of PW1 and his sister CW4 who is not examined in the case. PW2 saw the accused taking to their heels towards western direction with the weapon. Thereafter, according to PW1 he went to his house to inform the Police on phone. Since he could not get line, he went to his uncle PW8 at Byadarahally and after informing him came to Channarayapatna and filed his complaint Ex.P1 before PW17 PSI. PW1 has testified to these facts in his evidence.
11. According to the learned counsel for the accused, Ex.P1 is not the First Information and it is hit by Sec.162 Cr.P.C. In view of the legal contention raised by the learned counsel, we would first deal with the same before dwelling on the direct testimony and other evidence pressed into service by the prosecution.
12. According to the learned counsel, PW1 claims that he filed the complaint Ex.P1 before PW17 at about 33 10.15 p.m. at Channarayapatna Rural Police Station. The evidence of PWs.2, 3 and 8 reveals that Police had come to the spot of occurrence at Chikkakaradevu Village at about 8.00 p.m. They made enquiries with the said witnesses. That Police is none other than PW17 who has also admitted in his evidence. Since the evidence of these witnesses reveal that PW17 had come to the spot of occurrence on that night at about 8.00 p.m. prior to coming into existence of Ex.P1, we find sufficient force in the submission of the learned counsel for the accused that Ex.P1 is not the First Information and it is hit by Sec.162 as the Police had definite information of a cognizable offence and they were at the spot much prior to coming into existence of Ex.P1. A perusal of evidence of PW17 PSI also reveals that on that day when he was attending a Meeting, he got the information about the occurrence on wireless. Immediately thereafter he came to the spot. According to him, when he got the information it was about 6.30 p.m. He came straight to the Village where occurrence had taken place and it is the evidence of PWs.2, 3 and 34 8, the Police were in the village at about 8.00 p.m. Since the evidence of PW17 PSI also reveals that he was in the village prior to filing of Ex.P1 and in view of the evidence of PWs.2, 3 and 8 that the Police had made enquiries with them as to the occurrence, we are of the clear view that Ex.P1 is not the First Information as the Police had definite information of the occurrence much prior to coming into existence of Ex.P1 on that day at 10.15 p.m. at Channarayapatna Rural Police Station. Therefore, since the evidence of PWs.2, 3, 8 coupled with the evidence of PW17 discloses that the Police were at the spot by about 8.00 p.m., we have no hesitation in holding that the First Information Ex.P1 is hit by Sec.162 and it is only a statement recorded during the course of investigation and in that view of the matter much water must have flown under the bridge in planting the witnesses to the occurrence.
13. Now coming to the ocular testimony of PW1, he claims in his evidence that it was A1 and A8 who assaulted the deceased first after they were way laid 35 with Long on the neck and the chest, due to which he fell down. The evidence of PW23 the Investigating Officer reveals that these two accused, namely A1 and A8 were not at the spot. According to PW23 A1 being the President of TAPCMS he was attending to a Meeting at Channarayapatna at the time of occurrence. This is also fortified from Exs.D1, D3, D4, D5, D12 And D13 marked through the evidence of PW23. Further the evidence of PW23 also reveals that A8 was at Hassan attending to a Sathyanarayana Pooja arranged in the house of his father-in-law at that point of time. This is also established through Exs. D3 and D11 marked through PWs.2, 3 proved through the evidence of PW23, further Ex.D4 through the evidence of PW5. This is further fortified from the fact that no Final report had been filed against A1 and A8 at the inception. Final Report as against A8 has been filed through a Supplementary Report after conducting further investigation by PW23. In so far as A1 is concerned as already pointed out, he has been implicated as accused on an application filed by the Prosecution u/s 319 36 Cr.PC. after examination of PWs.1 to 20 before the Trial Court. These circumstances would go to show that A1 and A8 were not present at the time of occurrence. The same is also the finding of the Trial Judge, who on the basis of the same has rightly acquitted them. In the light of this material which goes to show that A1 and A8 were not present at the spot, then the testimony of PW1 that A1 & A8 assaulted the deceased with long and kathi on the head and chest, like wise other accused assaulted the deceased which resulted in his death and they also assaulted him becomes doubtful. In so far as PW2 and PW3 are concerned on a scrutiny of their evidence it also does not inspire confidence to place reliance on the same, because PW2 is a chance witness and PW3 has come to the spot later. Further, as the evidence of PW's 1, 2 and 3 is in direct conflict with the medical evidence on record no reliance can be placed on them. Apart from the same as already pointed out police had made enquiries with them i.e. PW's 2, 3 & 8 at the village much prior to filing of Ex.P1. That has been suppressed in case. Therefore, their testimony in 37 our view is untrustworthy. Apart from this evidence on record more particularly that of PW16 reveals that A4 and A5 were in the hospital on the date of occurrence at about 11.40 p.m. They were treated by him. PW1 in his evidence has claimed that A5 sustained injury when A6 tried to assault him he escaped and it landed on him i.e. A5. Likewise A4 sustained injury when A5 aimed the blow on him, he escaped and it landed on A4. We find it difficult to accept this explanation because if according to PW1, A5 sustained injury at the hands of A6, A4 sustained at the hands of A5, they should have sustained only one injury on their person. On the other hand the evidence on record more particularly that of PW16 reveals each one of them, namely, A4 and A5 had sustained four injuries on their person, which is fortified from Exs.D7 and D8 and therefore as observed already the evidence of PW1 is in direct conflict with the medical evidence on record. PW's 2 & 3 do not whisper about the injuries sustained by A4 & A5. This is another point to hold their testimony as untrustworthy. 38
14. Insofar as the recoveries that has been made, the evidence on record reveals the first recovery that has been made at the instance of A4, A5 and A7 is on 13.11.2001. Though A4 & A5 were arrested on 12.11.2001 the recoveries of MOs.7 and 8 at their instance under Ex.P7 and Ex.P6 has been made next day i.e. 13.11.2001. In so far as A7 is concerned though the recovery is made on the very day of his arrest, in view of the fact that we have come to the conclusion that the testimony of PWs.1, 2 and 3 is untrustworthy, the recovery of these weapons at the instance of accused also in our view is doubtful coupled with the fact that A1 and A8 have been falsely implicated though they were not present at the time of occurrence which is fortified from the evidence of PW23 which we have adverted to above. The evidence on record also reveals that the weapons seized in the case cannot cause the injuries found either on the person of PW1 or the deceased. In view of this, coupled with the fact that the occular testimony is untrustworthy, 39 recovery also does not in any way further the case of the prosecution pointing towards the guilt of the accused.
15. The Trial Judge in our view insofar as the appellants/accused are concerned without appreciating the evidence in its right perspective has come to a wrong conclusion in holding that the prosecution has established the charge against them, which finding in our view being perverse cannot be sustained. At the same time, we do not find any infirmity in the finding of the learned Trial Judge in holding that the A1 and A8 were not present at the village and in acquitting them. In that view of the matter, the impugned Judgment and order of the Trial Judge in so far as convicting and sentencing the appellants/accused calls for interference and the acquittal of A1 and A8 does not call for interference.
16. Accordingly, we proceed to pass the following order:
40
i) Criminal Appeal No.805/2009 and Criminal Appeal No.806/2009 preferred by the State are dismissed;
ii) Criminal Appeal No.23/2013 is allowed. The impugned Judgment and order of conviction and sentence passed on the appellants/accused by the Additional Sessions Judge and Presiding Officer, Fast Track Court-II, Hassan, is set aside. They are acquitted of the charges leveled against them. They are in custody. They are ordered to be set at liberty forthwith, if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE Prs*/SA/Ak