Karnataka High Court
Shivukumar @ Shivu vs State Of Karnataka on 20 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 736 OF 2016
C/W
CRIMINAL APPEAL NO.587 OF 2016
IN CRL.A.NO.736 OF 2016
BETWEEN
VINUTHKUMAR,
S/O.BOREGOWDA,
AGED ABOUT 23 YEARS,
R/O CHIKKAMANDYA,
NEAR HIGH SCHOOL,
MANDYA TALUK,
MANDYA-571 401.
...APPELLANT
(BY SRI. C. SHANKAR REDDY, ADVOCATE)
AND
STATE OF KARNATAKA
BY V.V.PURAM POLICE STATION,
MYSURU,
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR,
2
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 25.02.2016 AND
SENTENCE DATED 27.02.2016 PASSED BY THE VI ADDL. DIST.
AND SPL. JUDGE, MYSURU IN S.C.NO.97/2008 - CONVICTING
THE APPELLANT/ACCUSED NO.3 FOR THE OFFENCE P/U/S 302
AND 201 R/W 34 OF IPC.
IN CRL.A.NO.587 OF 2016
BETWEEN
1. SHIVUKUMAR @ SHIVU,
AGED ABOUT 31 YEARS,
RESIDING AT NO.2303, 2ND CROSS,
GANDHINAGAR, NEAR WATER
TANK, MANDYA TOWN,
MANDYA DISTRICT-571 401.
2. RAMACHANDRA @
MALAVALLI RAMACHANDRA,
S/O DASAPPA,
AGED ABOUT 35 YEARS,
RESIDING AT
HADLIBASAVANAPURA VILLAGE,
MALAVALLI TALUK,
MANDYA DISTRICT-571 430.
...APPELLANTS
(BY SRI. LAKSHMIKANTH.K, ADVOCATE ALONG WITH
SRI. SAMPANGI RAMAIAH, AMICUS CURIAE)
3
AND
STATE OF KARNATAKA
BY V.V.PURAM POLICE STATION,
MYSURU,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 25.02.2016 AND
SENTENCE DATED 27.02.2016 PASSED BY THE VI ADDL. DIST.
AND SPL. JUDGE, AT MYSURU IN S.C.NO.97/2008 -
CONVICTING THE APPELLANT/ACCUSED NO.1 AND 2 FOR THE
OFFENCE P/U/S 201, 302 R/W 34 OF IPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 26.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, RAJESH RAI.K J.,
DELIVERED THE FOLLOWING:
JUDGMENT
These appeals by the convicted accused Nos.1 to 3 are directed against the judgment of conviction and order of sentence dated 25.02.2016 passed in S.C. No.97/2008 by the VI Addl. District and Sessions Judge, Mysore by convicting accused Nos.1 to 3 for the offences punishable under Sections 302 and 201 r/w Section 34 of IPC and directing them to undergo 4 rigorous imprisonment for life and accused No.1 shall pay a fine of Rs.3,00,000/- in default to suffer, further 3 years simple imprisonment and accused Nos.2 and 3 shall pay a fine of Rs.10,000/- each in default, to further 3 years simple imprisonment for the offence punishable under Section 302 r/w 34 IPC. The appellants/accused Nos.1 to 3 are further sentenced to undergo rigorous imprisonment for a period of 7 years with fine of Rs.10,000/ each in default, to undergo further 1 year simple imprisonment for the offence punishable under Section 201 r/w 34 IPC and directed that the sentence shall run concurrently. However, though accused Nos.1 and 2 preferred an appeal before this Court in Crl.A.No.587/2016, subsequently, accused No.2 died and as such, the appeal against him was abated vide order dated 16.06.2023.
2. The factual matrix of the prosecution case are as under:
The maternal uncle namely Jadeja Ravi of accused No.1 i.e., appellant No.1 in Crl.A.No.587/2016, was elected as Counsellor of Mandya Town Municipality and was murdered on 5 07.12.2017 in Yeliyuru circle at Mandya. On 08.12.2007, funeral ceremony of said Jadega Ravi was conducted. To the said funeral ceremony, accused Nos.8 and 9 had come and they were discussing with accused No.1 with regard to persons who committed the murder of Jadega Ravi and who are behind the said murder and in the said discussion accused No.8 and 9 informed to accused No.1 that Nagendra (deceased in this case) had given supari to commit the murder of Ravi Jadeje by giving Rs.20,00,000/- for the reason that Jadeja Ravi may come in his way in MLA election and he may get ticket. Therefore, accused No.1 on 08.12.2007 at about 10:30 p.m. along with his companions i.e., accused Nos.2 to 7, had a meeting at Apporva Lodge Room No.1 by giving party to them and informed them about a message conveyed by accused Nos.8 to 9 that deceased-Nagendra had given supari for committing the murder of Jadeja Ravi and he informed them that the said Nagendra shall not be left on the earth and he should be finished. Further, accused No.1 asked them to join their hands with him in murdering the deceased and accordingly, accused Nos.2 to 7 assured him to assist in murdering the deceased Nagendra. 6
Accordingly, in the morning on 09.02.2007, accused Nos.1 to 6 with an intention to commit the murder of deceased-Nagendra went to his house in Tata Indigo car bearing registration No.KA 09 N 9888 belonging to accused No.1 having longs (choppers) in the said car and accused No.3 i.e., the appellant in Crl.A. No.736/2016 was driving the said car, but the deceased Nagendra was not found. Then accused Nos.1 to 6 went in the said car to Quality Bar at Mandya and consumed liquor and once again accused No.1 took promise from accused Nos.2 to 6 that they shall assist him to commit murder of deceased Nagendra. At that time, accused Nos.5 and 6 went away. Afterwards, accused Nos.1 to 4 came nearby the house of deceased- Nagendra in Mandya at about 10:00 a.m. and by stopping their car at some distance, they watched for coming of the deceased Nagendra near his house. At that time, the deceased Nagendra along with his wife (PW.1) came out from the house to go to Ramakrishna Vidya Shale (School), Mysore wherein his son Vishruth studying. The deceased-Nagendra and his wife PW.1 went in their car driven by Umesh-PW.3 bearing registration No.KA-11-MC-7777 and came to Mysore Ramakrishna Vidya 7 Shale. They left Mandya at about 10:00 a.m. and reached Ramakrishna Vidya Shale at about 10:50 a.m. In the main gate, their car was stopped. The deceased-Nagendra and his wife get down from the car and went inside the main gate of Ramakrishna Vidya Shale wherein his son Vishruth was waiting. Later, the deceased Nagendra and his wife had discussion with their son Vishruth by sitting on stone bench and then they came near main gate to bring some chocolate to Vishruth by sending Vishruth for lunch. Meanwhile, accused Nos.1 to 4, who were following the deceased from Mandya in Indigo car bearing registration No. KA 09 N 9888 had come to Ramakrishna Vidya Shaale and stopped their car near the main gate at some distance and they were waiting for deceased-Nagendra. When deceased along with his wife (PW.1) was coming out from the main gate, accused Nos.1 and 2 suddenly came along with choppers to attack on deceased Nagendra and the deceased Nagendra having seen them, suddenly, in order to escape from their attack, came inside the main gate of the school by running. In that process, he fell down since his right shoulder came in contact with main gate. At that time, accused Nos.1 and 2 8 holding choppers in their hands, chased the deceased-Nagendra and surrounded him and assaulted on his hands, head and neck and gave fatal blows. Due to the assault, the deceased Nagendra fell on the ground on the pool of blood. Having seen this, CW.1 to CW.4 made hue and cry and at that time, accused Nos.1 and 2 came out from the gate to escape and accused Nos.3 and 4 brought the car in reverse position, in which accused Nos.1 to 4 sat in the car along with the choppers and thereby, escaped from the spot. Immediately, PW.1 shifted the deceased to Vikram Hospital and later the deceased was shifted to B.M Hospital for higher treatment. But the deceased succumbed to the injuries on 11.12.2017 at about 12:45 p.m. As such, PW.1 gave her statement as per Ex.P1 with regard to the incident before the PSI, V.V Puram Police Station and who had come to B.M Hospital after coming to know about the incident. Thereafter, the said V.V Puram Police investigated the matter, arrested the accused and conducted the investigation by recording the voluntary statement of the accused so also, the investigation officer conducted the spot and inquest mahazar and recovered the weapons, which are used for the commission 9 of the crime after recording the statement of witnesses so also after obtaining the necessary documents from the concerned departments, the investigation officer i.e., PW.36 laid charge sheet against accused No.1 to 10 for the offence punishable under Sections 143, 120(B), 341, 324, 302, 109 R/w 149 of IPC and also under Section 27 of Indian Arms Act.
3. On committal of the case before the Sessions Court, the learned Sessions Judge framed the charge against the accused for the offence punishable under Section 120(B), 109, 302, 201, 118 r/w 34 of IPC and read over the same to the accused and the accused pleaded not guilty and claims to be tried. Initially case was registered in SC No.97/2008 against accused Nos.1 to 7. Since the case against accused Nos.8 to 10 was split up, the same came to be registered in C.C.No.858/2008 in committal court itself. Subsequently, before the Sessions Court also the case against them was split up and separate cases were registered in S.C Nos.188/2008 and 174/2009. However, accused Nos.1 and 3 were tried in S.C No.97/2008.
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4. In order to bring home the guilt of the accused before the trial Court, the prosecution in total examined 37 witnesses as PW.1 to 37 so also got marked 81 documents as per Exs.P1 to P81 and 25 material objections as MO.1 to MO.25. However, on behalf of the accused, the defense counsel examined 4 witnesses i.e., DW.1 to DW.4 so also got marked 14 documents as Exs.D1 to D.14.
5. After assessment of oral and documentary evidence available on record and also after hearing the learned counsel for the accused and the learned public prosecutor, the learned Sessions Judge convicted accused Nos.1 to 4 for the charges leveled against them and sentenced them as stated supra.
6. We have heard Sri C.Shankar Reddy, learned counsel for the appellant in Crl.A.No.736/2016, Sri Sampangiramaiah, learned Amicus Curiae, who was appointed in Crl.A.No.587/2016 due to the absence of Sri. Lakshmikanth Reddy, learned counsel and Sri Vijaykumar Majage, learned Additional SPP for the respondent-State.
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7. However, after conclusion of the argument of Sri Sampangiramaiah, learned Amicus Curiae, Sri Lakshmikanth Reddy, learned counsel also appeared and submitted that the judgment under appeal suffers from perversity and illegality and the same is not based on the evidence available on record. He further submits that learned Sessions Judge convicted accused No.1 based on assumption and presumption and as such, miscarriage of justice is caused to accused No.1 and the impugned judgment is liable to be set-aside. He would further contend that by perusal of the complaint-Ex.P1 lodged by PW.1 i.e., wife of the deceased-Nagendra, wherein she failed to mention the names of the accused in spite of the fact that accused No.1 is a relative of deceased-Nagendra. He would contend that admittedly, the complaint-Ex.P1 lodged against unknown persons and as such, the said complaint cannot be believed. Subsequently, in the evidence of PW.1, she deposed that she had identified accused Nos.1 and 3 in the scene of occurrence. According to the learned counsel, if PW.1 really witnessed the incident, then she would have informed the name of accused No.1 to the Police while lodging the complaint-Ex.P1 12 since he was a relative of her husband Nagendra. Hence, her version cannot be believed.
8. Learned counsel would further contend that, the prosecution totally failed to prove the motive for the alleged incident. It is the case of the prosecution that the deceased- Nagendra was murdered by accused No.1 along with other accused for the reason that the deceased eliminated his uncle i.e., one Jadeja Ravi by giving supari of Rs.20,00,000/- and for that reason, accused No.1 hatched the conspiracy to commit the murder of the deceased along with others. However, the prosecution totally failed to prove the said motive by leading cogent evidence. According to the learned counsel, the said Nagendra was not at all accused in Jadeja Ravi's case and such being the position, the prosecution failed to prove the motive for the alleged incident. He would further contend that in the evidence of PW.1 i.e., the wife of the deceased and PW.2- Basavanna, PW.3-Umesh, who are the alleged eye-witness to the incident, there are major contradictions, and discrepancy in respect of identification of accused No.1 during the course of test 13 identification parade conducted in central prison. He would further contend that the recovery of material objects i.e., MO.1 and MO.2 is not proved by the prosecution, as contemplated under Section 27 of Indian Evidence Act, by leading cogent evidence since there are lot of contradictions in the evidence of those recovery mahazar witnesses. Accordingly, the learned counsel for the appellant prays to allow Crl.A No.587/2016 against accused No.1 by setting aside the conviction order.
9. Sri C.Shankar Reddy, learned counsel for appellant in Crl.A.No.736/2016 for accused No.3 contended that, the role assigned to accused No.3 in this case is that, he was driving the vehicle at the time of incident and thereby, facilitated accused Nos.1 and 2 to commit the murder of the deceased i.e., immediately after the incident accused No.3 brought the car to the spot of incident on reverse direction and thereby, facilitated accused Nos.1 and 2 to get inside the car and they escaped from the scene of occurrence. However, according to the learned counsel, the prosecution failed to prove the said theory by leading cogent evidence. Learned counsel would contend that by 14 perusal of the face sheet of the charge sheet, i.e., in column No.7, it is stated that accused No.3 was not driving the vehicle and somebody else was driving the vehicle i.e., the Indigo car and accused No.3 was sitting beside to the driver. Admittedly, accused No.3 was not got down from the car nor participated in the crime. Further, the learned Sessions Judge wrongly framed the charge against all the accused persons in a similar manner without mentioning the individual overt act of the each of the accused. No where in the charge sheet it is forth coming that accused No.3 was driving the car and thereby, facilitated accused Nos.1 and 2 to commit the murder of the deceased. Learned counsel would further contend that by perusal of the complaint-Ex.P1 lodged by PW.1 also depicts that along with the driver one more person was sitting in the car at the time of incident. As such, it is the specific case of the prosecution that the accused was not driving the car at the time of incident. He would further contend that during the course of evidence, PW.1 totally changed her version and deposed that accused No.3 was driving the car and in her chief-examination, she stated that after the incident, the car was brought near the spot of incident 15 on a reverse direction and at that time, accused No.3 was present in the car. However, during the course of test identification parade, PW.1 failed to identify accused No.3 at the first instance and later, on second and third rounds of identification, she identified accused No.3 as the driver of the vehicle at the time of incident. This version of PW.1 goes contradictory to the complaint-Ex.P1 so also the prosecution case as per charge sheet. He would further contended that in the cross examination, PW.1 categorically admitted that the car of the accused was parked in a distance of 250 feet from the place of incident and she also admitted in the cross-examination that they were unable to see the said Indigo car from the spot of incident and the same was not visible from the place of incident. Learned counsel would further contend that by perusal of evidence of PW.2 who is one more eye-witness to the incident, he deposed before the Court that accused No.7 was driving the car at the time of incident and accused No.3 was sitting next to the driver of the Indigo car. As such, there is clear contradiction in the evidence of PW.1, PW.2 and the complaint-Ex.P1 in 16 respect of the fact that the accused No.3 was not driving the car at the time of incident.
10. Learned counsel for accused No.3 would further contend that PW.2 failed to depose about the registration number of the car before the Investigation Officer. He would further contend that the registration number of the car was KA- 09-N-9888 and the said registration number was affixed to the car in English letter and before the Court, the prosecution produced the number plate which is written in Kannada language. As such, there is a clear discrepancy in respect of the very car which is used for the commission of the crime. Learned counsel would contend that admittedly, accused No.1 is the RC owner of the car and accused No.3 is nothing to do with the incident and he was not at all present at the time of incident and the prosecution falsely implicated him in the alleged crime. He would further contend that admittedly, there is no recovery of incriminating articles at the instance of this accused. Though the prosecution relied that the key of the car was seized at the instance of accused No.3, the car itself belongs to accused No.1. 17 The recovery of key at the instance of accused No.3 does not have any evidentiary value. As such, the learned counsel prays to acquit accused No.3 for the charges leveled against him.
11. Per contra, Sri Vijay Kumar Majage, learned Addl. SPP would vehemently contend that the appeal filed by accused No.1 and 3 are liable to be dismissed since the judgment under appeals does not suffers form any perversity or illegality and the same is based on the evidence available on record. The learned Sessions Judge convicted the appellants by meticulously going through the evidence of eye-witnesses so also the other evidence and the documents available on record. As such, the same does not call for any interference. Learned Addl. SPP would further contend that the consistent version of PW.1-eye- witness, PW.2 and PW.3, who are the other eye-witness to the incident cannot be discarded for any reason. PW.1 being the wife of the deceased categorically deposed about the incident i.e., the assault made by the accused No.1 to the deceased with the MO.1-longue (chopper). The doctor also opined that the death was due to injuries sustained by the deceased and also 18 gave an opinion that the said injuries could be caused by the weapons which he examined i.e., MOs.1 and 2 and the doctor i.e., PW.25 gave his opinion as per Ex.P38.
12. Learned Additional SPP would further contend that the consistent evidence of PW.1 to PW.3 in respect of the assault made by accused Nos.1 and 2 coupled with the evidence of the recovery mahazar i.e., recovery of MO.1 at the instance of accused No.1 so also the motive for the commission of the alleged incident i.e., PW.1, PW.2 and PW.3 categorically stated the reason behind the commission of the crime that the maternal uncle of accused No.1 i.e., one Jadeja Ravi was murdered and accused No.1 under the impression that the deceased-Nagendra had given supari to commit the murder of said jadeja Ravi, to take revenge against the deceased, accused No.1 hatched the conspiracy along with accused Nos.2 to 7 and thereby, committed the murder of the deceased. The said aspect was proved by the prosecution by leading cogent evidence of PW.1 to PW.3 so also the other witnesses. He would further contend that the clothes of accused No.1 and MO.1-chopper sent for FSL and the FSL Officer i.e., PW.28 gave his report as per Ex.P44 and 19 clearly opined that the blood found in MO.1 and the cloth materials of the deceased is of human blood and belongs to 'B' group. In such circumstances, the prosecution proved the participation of accused No.1 so also accused No.3 being the driver of the car at the time of incident.
13. Learned Addl. SPP would contend that those minor contradictions in the evidence of PW.1 and PW.2 in respect of the participation of accused No.3 does not go into the route of the prosecution case. As such, learned Sessions Judge rightly convicted accused Nos.1 and 3. Hence, he prays to dismiss both the appeals filed by accused Nos.1 and 3.
14. We have bestowed our anxious consideration both on the submissions made by the parties so also the evidence and materials available on record including the trial Court records.
15. Having heard the learned counsel for the parties and having perused the documents, the points that would arise for our consideration are:-
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1. Whether the judgment under appeals suffers from any perversity or legality?
2. Whether the learned Sessions Judge is justified convicting accused Nos.1 and 3 for the offence punishable under Sections 302 and 201 r/w Section 34 of IPC?
16. This Court being the appellate Court, the re- appreciation of the entire evidence on record is very much required. Therefore, the cursory glance of the evidence available on record are as under:
(i) PW.1-Vidya is the complainant. She is the wife of the deceased. She has deposed that on 9.12.2007 at about 11.00 a.m., she had gone with her husband to meet their son-DW-4 who is studying in 8th Standard at Ramakrishna Vidya Shala, Mysore. After talking to DW-4, while returning near the gate, two unknown persons alighted from the car and attacked the deceased with longs and caused injuries. After assaulting, the accused escaped in a car bearing registration No.KA 09 N 9888, which came in the reverse direction. Immediately after the incident, the complainant and others shifted the injured to 21 Vikram Hospital, Mysore and thereafter, he was further shifted to B.M.Hospital, Mysore where he died while under treatment on 11-12-2007.
(ii) PW.2-M.Basavanna was examined as an eye witness to the incident. He was working as a security in the Ramakrishna Vidya Shala, Mysore and he supported the case of the prosecution.
(iii) PW.3-Umesh was examined as an eye witness to the incident. He was the driver of the car belonging to the deceased.
He has deposed that on the date of incident he had taken the complainant and the deceased in their car to Ramakrishna Vidya Shala, Mysore to meet DW.4 i.e., the son of the deceased who was studying in the said school and at about 11.00 a.m., the incident took place and he supported the case of the prosecution.
(iv) PW.4-M.P.Mahesh deposed that he is the brother of the deceased-Nagendra and he received the information regarding the incident by PW.1 and immediately, on receipt of 22 the information, he went to B.M.Hospital, Mysore and he has also deposed that he is the witness for Ex.P7 mahazar for seizure of clothes of deceased MOs.4 to 6. Since, he was not made available for cross-examination, his evidence is of no help to the prosecution.
(v) PW.5-M.S.Shivakumar was examined as panch witness for recovery as per Exs.P8, P9 and P10. Ex.P8-the recovery mahazar of 2 choppers, blood stained clothes and Ex.P9-the recovery mahazar of car number plates at the instance of accused-2 on 16-12-2007. He is also panch for Ex.P10 wherein he has deposed that at the instance of accused No.3 a car key was recovered.
(vi) PW..6-Umesh was examined as panch witness for recovery of clothes of accused No.1 as per Ex.P13 on 19-12- 2007.
(vii) PW.7-Nagaraju deposed that he was working as electrician and that he had given certain lands on lease to one 23 Shesha and from his land, the number plate of the car was recovered.
(viii) PW.8-Sharath deposed that he was working as a supplier in Quality Bar, Mandya and he was examined to say that on 08.12.2007, accused Nos.1 to 7 conspired to murder the deceased. However, he turned hostile to the case of prosecution.
(ix) PW.9-Chandru has deposed that he was working as cashier in Samrat Wine Stores, Mandya and he was examined to say that accused No.1 was using the said room on the first floor of the building. However, he turned hostile to the case of prosecution.
(x) PW.10-Krishna is the panch for mahazar-Ex.P7 wherein, the clothes of the deceased i.e., MOs.1 to 6 were seized during the inquest. He turned hostile to the case of prosecution.
(xi) PW.11-Krishna is the panch for Ex.P19 wherein it is alleged that accused No.s1 to 7 had conspired in Apporva Delux Lodge, Mandya. But, he has not supported the case of the prosecution and turned hostile to the case of prosecution. 24
(xii) PW.12-Chandra Mohan.H.S. is the panch for mahazar-Ex.P19. But, he has not supported the case of the prosecution and turned hostile to the case of prosecution.
(xiii) PW.13-B.S.Ramesh is the panch for mahazar-Ex.P64 under which the accused were arrested on 14.12.2007 in the car. But, he has not supporter the case of the prosecution and turned hostile to the case of prosecution.
xiv) PW.14-M.S.Ramesh has deposed that he was running Kaveri Security Services and PW-2 was on duty at the relevant point of time at Ramakrishna Vidya Shala, Mysore.
(xv) PW.15-Smt.Nagamma is the mother of accused No.1. She treated as hostile witness and she has not supported the case of the prosecution.
(xvi) PW.16-V.Balachandra was working as Assistant Commissioner in Mysore City Corporation and he deposed that he had engaged the services of PW-17 for getting the sketch of scene of offence as per Exs.P23 & P24.
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(xvii) PW.17-C.S.Satyamurthy was working as Assistant Engineer in Mysore City Corporation and he deposed that he had prepared the sketch of scene of offence as per Ex.P24.
(xviii) PW.18-M.R.Rachaiah is a retired revenue officer and he deposed that he has issued katha extract of Apporva Hotel Building in Mandya belonging to PW-15 i.e., the mother of accused No.1. He turned hostile to the case of prosecution.
(xix) PW.19-Dr.MAnjunath was working as a doctor in Vikram Hospital and he has deposed that on 09.12.2007 at 11- 30 a.m., PW.1 admitted the deceased in injured condition to the hospital and he gave first aid and given the nature and number of injuries suffered by the deceased and for further treatment, the deceased was shifted to B.M.Hospital.
(xx) PW.20-S.Balaji has deposed that he was working as Principal in Ramakrishna Vidya Shala, and has issued the study certificate as per Ex.P30 of DW-4-Vishruth, who is the son of the deceased.
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(xxi) PW.21-A.L.Lakshmegowda was working as Office Superintendent in the office of R.T.O, Mysore (West) and has deposed that the car bearing registration No.KA 09 N 9888 belongs to one Amiruddin as per Ex.P31.
(xxii) PW.22-Prema was working as Head Mistress (I/c) in the Government Higher Primary School, Halebudanur and has deposed that she has issued date of birth certificate of Manu as per Ex.P12.
(xxiii) PW.23-Mahadeva was working as constable in V.V.Puram P.S. and has deposed that he was sent with another constable to find out the accused and they have not found any useful information and he reported it as per Ex.P33.
(xxiv) PW.24-J.J.Eranna was working as constable in V.V.Puram P.S. and has deposed that he was sent to find out information about the accused Rama, Lakshmana and Manjunatha and he searched for the same at Bangalore's Yelahanka and Kamakshipalya and has not found any useful information and he reported it as per Ex.P35.
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(xxv) PW.25-Dr.S.T.Ramachandra was working as doctor in B.M.Hospital, Mysore. He has deposed that on 09-12-2007 at 12-30 p.m., the deceased was brought to B.M.Hospital for treatment and after checkup, he referred it to specialist in the hospital and produced case sheet as per Ex.P.37.
(xxvi) PW.26-R.Puttasiddashetty was working as A.S.I in Saraswathipuram P.S.,Mysore he has deposed that on 15-12- 2007 along with other police constable, he was deputed to search the accused persons as per Exs.P.41 & 42.
(xxvii) PW.28-M.Puttaraju was working as A.S.I in Mandi P.S., Mysore. He has deposed that on 10-12-2007 along with other police constable, he was deputed to search the car used by the accused persons as per Ex.P.43.
(xxviii) PW.28-S.M.Gaokar was working as Asst. Director in FSL Lab, Bangalore. He has deposed that while he was working as Scientific Officer in FSL Lab., Mysore on 8-1-2008, he examined the material objects sent for scientific examination by V.V.Puram P.S. as per Exs.P.44 & 45.
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(xxix) PW.29-Bhimanna was working as Police Constable in Metagalli P.S., Mysore. He has deposed that he was deputed to collect the information about the accused of their guilt in the murder of the deceased as per ExPs.46 to 50.
(xxx) PW.30-G.Mallikarjunappa was working as Police Constable in V.V.Puram P.S., Mysore. He has deposed that he was deputed with other police constable to search the accused and the car used by them as per Exs.P.52, 53, 54, 55, 56, 57 &
58. (xxxi) PW.31-Sharathkumar was working as Manager in Tata Saraswathipuram, Mysore Docomo Compan. He has deposed that while he was working as Asst. Manager in Bharati Televenture at Mysore, the police asked for call details or mobile phones used by accused persons.
(xxxii) PW.32-G.MAdanna was working as A.S.I in Vijayanagara P.S., Mysore. He has deposed that on 9-12-2007 on receipt of information, he visited Vikram Hospital and recorded the statement of Smt. Vidya, who is the wife of injured 29 and registered FIR in Cr.No. 117/2007 as per Ex.P.65 and he was sent with other police constable to search the accused as per Exs.P.66, 67, 68 & 69.
(xxxiii) PW.33-C.K.Aswathnarayana was working as Circle Inspector in Mandya town. He has deposed that on 14-12-2007, he along with other staff seized a long in a vehicle bearing No.KA 09 N 9888 from the persons travelling from Mysore to Bangalore as per Ex.P64.
(xxxiv) PW.34-Vijayakumar has deposed that he does not have contact with accused No.1, but he has seen his face. He has not supported the case of the prosecution and he is treated as hostile witness.
(xxxv) PW.35-H.M.Vinay was working as A.S.I in Mandya East Station. He has deposed that on instructions, he has attested the copies of diary and log book of jeep Exs.P70 & 71 and issued to Mandya District Police Superintendent.
(xxxvi) PW.36-Rajanna was working as S.I in V.V.Puram P.S. Mysore. He has deposed that after receiving information, he 30 visited Vikram Hospital and came to know that injured Nagendra was shifted to B.M.Hospital. He conducted spot inspection at Vidya Shala of Ramakrishna Ashrama by calling panchas as per Ex.P4 and deposed that he collected certain material objects including blood stained soil for sending to scientific examination. After receiving the message of death of Nagendra, he sent the dead body for post-mortem and filed charge sheet including Sec.302 and submitted to the Court and seized Ex.P7.
(xxxvii) PW.37-Mohan has deposed that he was working in Eshwar Vedeo Mixing, Mysore. V.V.Puram Police called him and instructed to start make videography and he made videograph of the enquiry made by police with 2 persons and seizure of their clothes.
(xxxviii) DW.1-Shivakumar, who is accused No.1 got himself examined as DW-1 and deposed that he is relative of the deceased Nagendra and he is not involved in the commission of the offence of murder. He denied the entire case of the prosecution.
31
(xxxix) DW.2-Sannappa @ Shankar has deposed that he is the maternal uncle of accused No.1. He himself and accused No.1 used to visit the house of the deceased Nagendra. The father of accused No.1 by name Sundar was working as the car driver of the father of deceased Nagendra.
(XL) DW.3-Murthy @ Matsyamurthy has deposed that he is working as Archaka and knew the deceased, accused No.1 etc., and he has deposed that the deceased, accused No.1 and the father of accused No.1-Sundara are known to each other.
(XLI) DW.4-Vishruth is the son of the deceased Nagendra and the complainant. He has deposed that accused No.1 was not the relative of DW.4. He has not identified certain persons in photographs Exs.D5 to D7. In the cross- examination, he has also given the details about the incident that took place on 9-7- 2007 at about 11 a.m.
17. By careful perusal of the above evidence, it could be seen from the records that in order to prove the homicidal death of the deceased in this case, the prosecution relied Ex.P51-the 32 post-mortem report which marked with the consent of the defence counsel in this case. Apart from that the evidence of PW.19-Dr. Manjunath of Vikram Hospital, who treated the deceased for the injuries sustained on 19.12.2017 at about 11:00 a.m., he examined the deceased and identified the injuries and to that effect, he produced the case records as per Exs.P26 and P27. On perusal of those case sheets, the doctor mentioned 5 injuries over the body of the deceased. Thereafter, the deceased was shifted to B.M Hospital wherein PW.25-the duty doctor treated the deceased and he also found the injuries over the body and issued report as per Exs.P37 and P39. However, later the deceased succumbed to the injuries in the said hospital on the same day and the doctor conducted the autopsy over the body as per Ex.P51. By perusal of Ex.P51-the post-mortem report, the doctor gave an opinion that the death was due to the complications of the multiple injuries sustained, "due to homicidal assault at his possession". Nevertheless, the prosecution also produced the inquest mahazar conducted over the dead body by the Investigation Officer-PW.36 as per Ex.P76. PW.1 and PW.2 clearly identified those injuries over the dead 33 body of the deceased and clearly deposed to that effect. Hence, a conjoint reading of Ex.P51-the post-mortem report and Ex.P76-the inquest panchanama with the evidence of PW.19 and PW.25 coupled with the evidence of PW.36, in our considered opinion, the prosecution proved the homicidal death of the deceased beyond reasonable doubt. Nevertheless, the defence counsel not seriously disputed the homicidal death of the deceased since the post-mortem report marked with his consent as per Ex.P51.
18. Once the prosecution proved the homicidal death of the deceased, then the next question arise for the consideration whether the accused are responsible for the same?
19. In order to connect the accused for the homicidal death of the deceased, the prosecution mainly relied the evidence of PW.1, who is none other then the wife of the deceased and eye-witness to the incident and PW.2 and PW.3, who are the other two eye-witnesses. As could be seen from the evidence of PW.1 i.e., the wife of the deceased, who lodged the complaint as per Ex.P1 at the earliest point of time i.e., 34 immediately after the incident, she clearly stated that two persons got down from the car and assaulted the deceased with long choppers similarly before the Court, she deposed in her evidence that the persons who were assaulted are accused Nos.1 and 2. She identified accused No.1 before the Court and also MO.1 and MO.2 i.e., the weapons which are said to have been used for the commission of the crime by accused Nos.1 and 2. Nevertheless, PW.1 also identified the accused during the course of test identification parade conducted by the Tahsildar in the Central Prison as per Ex.P3. She identified her signature on Ex.P3 (A) and (B). The evidence of PW.1 corroborates with her complaint-Ex.P1. PW.2, who is the employee of PW.14, is one more eye-witness to the incident, who is none other than the security guard of the school where the alleged incident was committed. This witness also categorically deposed that on the fateful day, accused Nos.1 and 2 assaulted the deceased with choppers on his person in the school premises. He also identified not only the accused, but also the choppers i.e., MOs.1 and 2. 35
20. It is important to note that PW.14-the employer of PW.2 stated before the Court that on the relevant date, PW.2 was on security duty in the said school. As such, there is no reason to disbelieve the evidence of PW.2 that he had witnessed the incident. Nevertheless, PW.2 also identified accused Nos.1 and 2 not only before the Court but also during the course of test identification parade conducted in the Central Prison as per Ex.P5. PW.2 is also witness for Ex.P2-spot mahazar and he identified MOs.3 to 8 i.e., one pair of slipper, blood stained shirt, pant, underwear and number plate of the car found in the place of incident. Hence, as far as the assault made by accused No.1 to the deceased is concerned, the evidence of PW.1 and PW.2 are consistent and corroborative.
21. However, as far as accused No.3 is concerned, PW.1 stated that she identified accused No.3 in the test identification parade only on the third round as she could not identify him during first and second round of test identification parade. PW.2 also stated that accused No.3 was not driving the car and he was sitting near to the driver of the said car and accused No.7 was 36 driving the car. The said version of PW.2 is quite contrary to the case of the prosecution and also to the evidence of PW.1. Since the case of prosecution is that accused No.3 was driving the car. Even PW.2 in the cross examination admitted that the number plate of the car produced before the Court is different that he had seen on the date of the incident. The identification is concerned, PW.1 and PW.2 not properly identified accused No.3.
22. As far as the evidence of PW.3 i.e., one more eye- witness to the incident, who is none other than the driver of the car of the deceased, also categorically stated before the Court that accused Nos.1 and 2 assaulted the deceased with the long choppers i.e., MO.1 and Mo.2. This witness also identified accused No.1 before the Court and also during the course of test identification parade. However, this witness failed to identify accused No.3 during the course of test identification parade. As far as the involvement of accused No.1 in the crime is concerned, the evidence of PW.1 to PW.3 are consistent and corroborates each other without any discrepancy or 37 embellishment. There is no reason to disbelieve the version of PW.1 to PW.3.
23. Though the learned defence counsel argued that in the cross examination of PW.1, she stated that she was the relative of accused No.1 and she knows him prior to the incident, but PW.1 stoutly denied the said suggestion put forwarded by the defence counsel. It is the case of the defence that PW.1 is the relative of accused No.1 and if accused No.1 really participated in the incident then PW.1 would have disclosed his name at the earliest point of time while lodging the complaint i.e., Ex.P1. To that effect, accused No.1 also examined DW.1 to DW.4. DW.4 is none other than the son of PW.1 and deceased. Even otherwise, assuming for the sake of arguments, accused No.1 is the relative of deceased, there is no such hard and fast rule that PW.1 being the wife of accused No.1 must know all distant relatives of her husband. Hence, the defence of the accused does not hold much water. Hence, the evidence of PW.1 to PW.3, who are the eye-witness to the incident coupled with the evidence of PW.4-the hearsay witness, who is none other 38 than the brother of PW.1 and also the witness for the seizure of the clothes of the deceased under Ex.P7, in our considered opinion, the participation of accused No.1 in the crime by assaulting the deceased to do away his life is very much proved.
24. As far as the recovery of MO.1 and MO.2 i.e., two choppers are concerned, PW.5, who is the recovery mahazar witness, categorically deposed that the same were recovered at the instance of accused No.2. Moreover, those weapons were identified by PW.1 to PW.3 before the Court during the course of their evidence. Even the blood stained clothes of accused No.1 are recovered at his instance under Ex.P13 and to that effect, PW.6, who is the mahazar witness supported the case of the prosecution. Those blood stained clothes were sent for FSL and after examination of those clothes, MO.1 and MO.2, the Scientific Officer-PW.28 given his opinion as per Exs.P44 and 45 that the blood stains found in the weapons and the clothes of accused No.1 are stained with human blood and with 'B' group blood. Moreover, PW.37, who video graphed the recovery proceedings of the clothes of accused No.1, MO.1 and MO.2 categorically 39 deposed before the Court to that effect. In such circumstances, the prosecution even proved the recovery of weapons MO.1 and MO.2 said to have used for the commission of the crime by accused Nos.1 and 2 so also the clothes which worn by accused No.1 during the course of incident. Hence, in our considered opinion, the recovery of the weapons at the instance of accused Nos.1 and 2 which are used for the commission of the crime was also proved by the prosecution beyond reasonable doubt.
25. As far as the motive for the alleged incident is concerned, the specific case of the prosecution is that one maternal uncle of accused No.1 i.e., Jadeja Ravi was murdered in Mandya on 07.02.2007 and accused No.1 was informed that the deceased in this case i.e., Nagendra had political rivalry with the said Jadeja Ravi and in order to eliminate the said Jadeja Ravi, accused No.1 conspired with the other accused and committed the murder of the deceased-Nagendra by extending the financial help to the culprits. As such, accused No.1 hatched the conspiracy to eliminate the deceased-Nagendra along with accused Nos.2 to 4. The conspiracy meeting was held at 40 Apoorva Lodge in Room No.1 and thereafter, accused Nos.1 to 6 with an intention to commit the murder of the deceased- Nagendra went to his house in the Tata Indigo car bearing No.KA 09 N 9888 belonging to accused No.1 by possessing deadly weapons i.e., MO.1 and MO.2. Though they searched the deceased-Nagendra in his shop and office, but the deceased- Nagendra was not found. Later, they once again went in the said car to Quality Bar at Mandya and consumed liquor and had meals and once again accused No.1 got promise of accused Nos.2 to 6 to assist him to commit the murder of the deceased- Nagendra. At that point of time, accused Nos.5 and 6 went away. Thereafter, accused Nos.1 to 4 came near the house of deceased-Nagendra in Manday at about 10:00 a.m., and they waited for the deceased. Later, they followed the deceased till Ramakrishna Vidya Shale, Mysore and there they committed the murder of the deceased. To prove the said aspect of the matter i.e., motive for the commission of incident, the prosecution examined PW.8 and PW.9, who are the employees of Quality Bar and Samrat Wine at Mandya. However, these two witnesses were turned hostile to the prosecution case. In spite of that, the 41 Investigation Officer i.e., PW.36 categorically deposed about the said aspect. Moreover, it is settled position of law laid down in the catena of judgments by the Hon'ble Apex Court that when a case based on the evidence of direct eye-witnesses, then the motive for the incident does not play any vital role. In the case on hand, there is a clear evidence of eye-witnesses i.e., PW.1 to PW.3 by their evidence. Hence, the prosecution proved the aspect of motive since PW.1 is none other than the wife of the deceased in this case.
26. On careful perusal of the evidence of PW.1 to PW.3, who are the eye-witnesses to the incident coupled with the evidence of Doctors who treated the deceased i.e., PW.19 and PW.25, in our considered opinion, the deceased died in homicidal death due to the assault made by accused Nos.1 and 2. Hence, the trial Court has rightly come to the conclusion that accused No.1 is the perpetrator of the crime and convicted accused No.1 for the charges levelled against him.
27. It is, vehemently, contended by the learned counsel for the appellant/accused No.1 that PW.8 and PW.9, who are the 42 witnesses for the conspiracy held in the Bar and Restaurant by accused Nos.1 to 4 to commit the murder of the deceased, turned hostile and there are much contradictions in the evidence of PW.1 to PW.3. But, in our considered opinion, the evidence of PW.1 to PW.4 are consistent and absolutely there are no infirmities to discard their version. Even in the cross-examination also, these witnesses withhold the cross-examination conducted by the defence counsel.
28. The Hon'ble Apex Court in the case of Neeraj Dutta v. State (NCT of Delhi) reported in (2023) 4 SCC 731 held that the general principles appreciating the evidence of witness is that when a case involves large number of offenders, prudently it is necessary but not always, for the Court to seek corroboration at least from two or more witnesses as a measure of caution. However, the principle has to be applied is quality over quantity of witness as held by the Hon'ble Apex Court in the case of Mrinal Das v. State of Tripura reported in (2011) 9 SCC 479. In respect of the effect of omissions and deficiencies, the Hon'ble Apex Court in the case of Ravasaheb alias 43 Ravashebgouda and others vs. State of Karnataka reported in (2023) 5 SCC 391 held as under:
"23. The evidence examined as a whole, must reflect/ring of truth. The court must not give undue importance to omissions and discrepancies which do not shake the foundations of the prosecution's case."
The Hon'ble Apex Court in the said judgment also held, in respect of testimony of a close relative, as under:
"25. A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even "partisan" or "interested"
witness may lead to failure of justice. The principle of "falsus in uno, falsus in omnibus" is not one of general application.
29. It is settled position of law that the examination of the witness before the Court is not to test his/her memory power. Minor discrepancy bound to occur due to long lapse of time and substratum of the evidence will have to be looked into.
30. In the case on hand as stated supra, PW.1 is the complainant and eyewitness to the incident more over the wife of the deceased, PW.2 and PW.3 are the eyewitness to the incident. They categorically deposed about the incident and 44 assault made by accused No.1. The said ocular evidence corroborates with the medical evidence of the doctor who conducted the autopsy over the dead body in respect of the injuries sustained by the deceased by MO.1 and MO.2. As such, we are in agreement with the conviction and sentence imposed by the trial Court in S.C. No.97/2008 against accused No.1 is concerned.
31. However, as far as accused No.3 is concerned, as discussed supra, the eye-witnesses to the incident i.e., PWs.1, 2 and 3 failed to identify him at the scene of occurrence so also during the Course of Test Identification Parade. Moreover, all the witnesses deposed contradictory in respect of the overt act of accused No.3 that he was driving Tata Indigo car belongs to accused No.1 at the scene of occurrence and thereby, facilitated accused Nos.1 and 2 to escape from the spot after commission of the incident. Admittedly, in the complaint lodged by PW.1, the names of the assailants and the persons, who facilitated them are not mentioned. Later though PW.1 deposed that accused No.3 was driving the car at the time of incident, it is 45 quite contradictory to the case of the prosecution. Because in the face sheet of the charge sheet i.e., in the column No.7, it could be seen that in the accusation column, it is claimed by the prosecution that accused No.3 sitting along with the driver of the car. Moreover, the said aspect was deposed by PW.2 in his evidence. According to PW.2, accused No.3 was sitting next to the driver of the car at the time of incident. However, the car key was recovered at the instance of accused No.3 and that cannot be a sole ground to convict the accused in the case. Admittedly, the car belongs to accused No.1. Nevertheless, during the course of test identification parade conducted in the Central Prison, PW.1 identified accused No.3 in the 3 rd round of identification. Even PW.2 and PW.3 also not properly identified accused No.3. In such circumstances, in our considered opinion, the prosecution failed to prove beyond reasonable doubt the involvement of accused No.3 in the crime. As such, the benefit of doubt should be extended to accused No.3 in this case.
32. Accordingly, the point raised for consideration is answered and we proceed to pass the following: 46
ORDER i. Criminal Appeal No.587/2016 filed by accused No.1 is hereby dismissed. Consequently, the judgment of conviction and order of sentence passed in S.C.No.97/2008 dated 25.02.2016 by the VI Additional District and Special Judge, Mysuru against accused No.1 namely Shivukumar @ Shivu is hereby confirmed.
ii. The bail bond executed by accused No.1 stands cancelled and two weeks time is granted to him to surrender before the trial Court to serve the sentence from the date of receipt of certified copy of this judgment, failing which, learned Sessions Judge is directed secure the presence to accused No.1 and to commit him to prison to serve the sentence.
iii. Criminal Appeal No.736/2016 filed by accused No.3 is hereby allowed. The judgment of conviction and order of sentence passed in S.C.No.97/2008 dated 25.02.2016 by the VI Additional District and Special Judge, Mysuru is hereby set aside in respect of accused No.3.
iv. Consequently, accused No.3 is hereby acquitted of the charges levelled against him for the offences punishable under Sections 302 and 201 r/w Section 34 of the IPC.
v. The Bail and Surety Bonds executed by accused No.3 is hereby cancelled and if the aforesaid accused deposited the fine amount, if any, before the trial Court, the same shall be refunded to him on proper identification. 47 vi. The Registry is hereby directed to send the LCR forthwith along with the certified copy of this order to learned Special Judge, to take appropriate action.
The fee of Sri N.S.Sampangi Ramaiah, who is appointed as Amicus Curiae for assisting in this matter is fixed at Rs.10,000/- and the Karnataka State Legal Services Committee shall pay the same.
Sd/-
JUDGE Sd/-
JUDGE HKV/VM