H.T. Rudresh and Others vs State by Circle Inspector

Mohan M. Shantana Goudar, J.—The judgment and order of conviction dated 9th September 2010, passed by the Addl. Sessions Court, Chikmagalur, in Sessions case No. 86/2008 is appealed against by the convicted accused.

The accused were tried for the offences punishable under Sections 341, 504, 302 read with Section 34 of IPC. After trial, the accused are acquitted of the offence punishable under Section 504 read with Section 34 of IPC. Both the accused are convicted for the offences punishable under Sections 341 and 302 read with section 34 of IPC.

The case of the prosecution in brief is that both the accused are brothers inter se; their another brother namely Hareesh committed suicide by setting himself ablaze allegedly due to ill advise of the deceased, (misconstruing the say of deceased as the directions of Shanimahathma); frequent quarrels used to take place between the accused and the deceased in that regard; in the morning of 25.3.2008, the deceased had his breakfast in his house and went along with P.Ws. 6 & 7 and other persons of his village to neighbouring village namely Kalavase, with a view to get himself registered for getting ration card; for getting ration card, taking a photograph of the concerned department is compulsory. Therefore, deceased and others went to Kalavase village at about 12.30 P.M. on the said day; while the deceased along with P.Ws. 6, 7 and others was coming back from Kalavase towards his native place by walk, accused Nos. 1 and 2 waylaid the deceased and assaulted him with sickle (M.O. 7) mercilessly, consequent upon which he sustained severe injuries on all over his body including head; a Jeep came near the scene of offence; P.Ws. 6 and 7 who are the brother-in-laws of the deceased shifted the deceased to the Government Hospital, Chikmagalur, for treatment; thereafter from Government Hospital at Chikmagalur, the victim/deceased Manjunath was shifted to Vijaya Hospital, Chikmgalur at about 3.00 P.M. on 25.3.2008. The statement of the deceased Manjunath (dying declaration) came to be recorded by the Sub-Inspector of Police-P.W. 15 in the presence of doctor-P.W. 17 as per Ex. P10; based on the said dying declaration, P.W. 15 registered a case in Crime No. 135/2008 of Chikmagalur Rural Police Station, for the offences punishable under Sections 341, 504, 307, read with Section 34 of IPC. Thereafter, the FIR came to be registered by the police which reached the Magistrate at around 9.00 P.M. to 9.10 P.M. on the same day. P.W. 16-the inspector of police completed investigation and laid the charge sheet against both the accused.

In order to prove its case, the prosecution in all examined 17 witnesses and got marked 21 exhibits and 10 material objects. On behalf of the defence, Exs. D1 to D5 were got marked. The trial Court, on evaluation of the material on record, convicted both the accused for the offences punishable under Sections 341 and 302, read with Section 34 of IPC.

Shri S. Shankarappa, learned Advocate appearing on behalf of the appellant/convicted accused taking us through the entire material on record, submits that the Court below is not justified in convicting accused Nos. 1 and 2; the so called dying declaration (Ex. P10) cannot be believed at all inasmuch as the deceased had sustained severe injuries on all over his body and consequently, he may not be in a position to open his mouth. It is highly impossible for the injured to make a detailed statement as per Ex. P10 particularly, when he was on a death bed; the version of the doctor P.W. 17 as well as version of P.W. 15 that victim was in a position to speak is unbelievable; the presence of eyewitnesses -P.Ws. 6 & 7 on the scene of offence is improbable inasmuch as both were students studying in Chikmagalur during the relevant point of time. If really those persons are the eyewitnesses to the incident, their statements ought to have been recorded immediately after registering the complaint inasmuch as those two witnesses were allegedly present all through; P.Ws. 6 & 7 not only accompanied the deceased to the hospital, but they were also very much present during the course of drawing the spot mahazar etc.; the very fact that their statements were recorded on the next date of the incident, would clearly reveal that they are not the eyewitnesses to the incident. According to him, the motive is not proved by the prosecution. The recovery panchanama is written in the police station; the weapons allegedly used for commission of the offence is different from the weapon which is seized during the course of investigation. On these among other grounds, he prays for acquittal of the accused.

Smt. Anitha R. learned HCGP for the respondent-State argued in support of the judgment of the Court below.

P.Ws. 1 and 2 are the eyewitnesses for scene of offence mahazar Ex. P1. Both have turned hostile.

P.W. 3 is the witness for inquest panchanama Ex. P2. He is also the witness for panchanama-Ex. P3 under which cloths of the deceased were seized.

P.W. 4 is another witness for inquest panchanama-Ex. P2 and seizure panchanama-Ex. P3. He is also the witness for panchanama-Exs. P4 and P5. Ex. P4 is the panchanama relating to recovery of M.Os. 7, 8 and 9 at the instance of accused No. 1. M.O. 7 is chopper and M.Os. 8 & 9 are the dresses worn by accused No. 1 during the relevant point of time. Ex. P5 is pertaining to recovery of shirt of accused No. 2. However, P.W. 4 has turned hostile insofar as recovery of shirt of accused No. 2 is concerned.

P.W. 5 is a witness for panchanama Exs. P4 and P5. He has also turned hostile with regard to Ex. P5, i.e. recovery of shirt of accused No. 2 at his instance.

P.Ws. 6 & 7 are the brothers in law of the deceased. Both are the eyewitnesses to the incident.

P.W. 8 is the wife of deceased. According to the case of the prosecution, she came to the spot after the incident and she has deposed about the oral dying declaration said to have been made by the deceased with regard to complicity of accused in the crime. She has also deposed that she saw accused No. 1 sitting on a katte at about 11.00 A.M. of 25.3.2008 and he had hidden a chopper in his sweater.

P.W. 9 is the doctor who conducted post mortem examination over the dead body. Ex. P6 is the post mortem report.

P.W. 10 is the daughter of the deceased. She has also deposed about the oral dying declaration made by the deceased.

P.W. 11 is another witness who has deposed about the oral dying declaration said to have been made by the deceased. However, according to P.W. 11, the deceased told him that accused No. 1-Rudresh assaulted the deceased.

According to the case of the prosecution, P.W. 12 was eyewitness, however he has turned hostile. His statement is recorded as per Ex. P8 made before the police during investigation.

P.W. 13 is the police constable. He participated in the investigation.

P.W. 14 is the Sub-Inspector of police. He also conducted investigation to certain extent initially.

P.W. 15 is the Head Constable of Chikmagalur Rural Police Station. He recorded the dying declaration-Ex. P10 of the deceased at about 3.30 P.M. on 25.3.2008 and registered a case in crime No. 135/2008 of Chikmagalur Rural Police Station at 4.00 P.M. The said dying declaration Ex. P10 is attested by the doctor P.W. 17.

P.W. 16 is the investigating officer. He laid the charge sheet after completion of investigation.

P.W. 17 is the doctor who attested the dying declaration Ex. P10 made by the deceased at about 3.30 P.M. on 25.3.2008.

The prosecution in this case has mainly relied upon the following facts:

"1. motive;

The evidence of the eyewitnesses P.W. 6 & 7;

The oral dying declaration made by the deceased-P.Ws. 8, 10 & 11 deposed about the said dying declaration;

The written dying declaration of the deceased-P.W. 15 & 17 have deposed about the same.

Recovery of the incriminating article viz., sickle (M.O. 7) used for commission of the offence-P.Ws. 4 and 5 deposed about the same."

Re. Motive: Case of the prosecution is that the brother of the accused by name Harish committed suicide by setting himself ablaze about 2 to 3 months prior to the incident in question; deceased Manjunath, who is the victim in this case, was assuming that Lord Shanimahatma comes within his body and that whatever he utters is true; he had told Harish (brother of the accused) that Lord Shanimahatma had come in his body (i.e., body of the deceased) on that day and directed that Harish should commit suicide; deceased Harish followed the instructions of the victim Manjunath and committed suicide. Hence, the accused being the brothers of Harish, were nurturing grudge against Manjunath.

It is relevant to note here itself that deceased Manjunath, Harish and another person by name Mallesh were doing bricks business, i.e., selling of bricks in the land of one Ranganatha; the differences arose between them subsequently and they suffered loss in the said business; hence they closed the said business; the accused who are the brothers of Harish developed ill-will against the deceased Manjunath since they were feeling that he was responsible for the death of their brother Harish.

The aspect of motive is spoken to by P.Ws. 6, 8 and 10. All these witnesses have deposed about the aforementioned facts before the Court. These witnesses have deposed about the business of bricks by Harish and deceased along with other person and they also deposed about the closure of the said business. They further deposed that brother of the accused Harish committed suicide wrongly believing the words of the deceased that he should commit suicide. It is further deposed by these witnesses that Harish had sought advise of the deceased Manjunath for getting his personal problems solved and at that point of time, deceased Manjunath who assumed that Lord Shanimahatma has entered his body, had advised Harish to commit suicide and consequently Harish committed suicide believing those words of the deceased Manjunath; since both the accused were feeling that the deceased Manjunath was solely responsible for the death of their brother Harish, the ill-will developed by them lead them to plan to do away with the life of the deceased.

In addition to the same, it is the case of the defence that there was enmity between the accused and the deceased and therefore P.Ws. 6, 8 and 10 have deposed falsely against them. Be that as it may, the question as to whether there was enmity between the accused and the deceased which lead the accused to commit the murder of the deceased is a pure question of fact. P.Ws. 6, 8 and 10 though are cross-examined at length, they withstood in their cross-examination. In this view of the matter, the trial Court is justified in concluding that the aspect of motive for commission of the offence is proved by the prosecution.

Re. Ocular Testimony of the eye witnesses-P.Ws. 6 and 7: P.W. 6 has deposed that himself, P.W. 7 and the deceased Manjunath went to the school situated at Kalavase Village for the purpose of getting their photographs captured so as to get the ration cards; however, the computerized camera was not in a working condition during the relevant point of time and consequently, they could not get their photographs captured; number of other persons have assembled in the said school; since the work for which they had been to the said school could not be completed due to technical problem, P.Ws. 6 and 7 and the deceased were returning back to their village; when they reached near Durgamba Bus Stop, the deceased was going little ahead of P.Ws. 6 and 7 and others; at about 12.30 p.m., P.W. 6 heard the cries of the deceased and when they saw towards the deceased, both the accused were assaulting him. It is specifically deposed by P.W. 6 that accused No. 1 assaulted the deceased mercilessly with chopper; the deceased fell down on the ground and immediately thereafter accused No. 2 took the very chopper and assaulted the deceased 3 to 4 times; after assaulting the deceased, they ran away from the scene; deceased was lying on the pool of blood and his hands were amputated; he had sustained grievous injuries all over his body; by that time, P.Ws. 8 and 10 who are the mother and daughter of the deceased respectively came to the spot and on enquiry deceased told them that the accused assaulted him; at that point of time, a jeep came there and the victim was shifted to Chickmagalur District Government Hospital in the said jeep; they reached Chickmagalur District Government Hospital at about 2.30 to 3.00 p.m.; even at that point of time, the deceased was in a position to speak; first-aid was provided to the deceased by the doctors at Chickmagalur District Government Hospital and thereafter the doctor in the said hospital informed P.Ws. 6 and 7 to shift the deceased to major hospital at Hassan; while the victim was being taken to the Hospital at Hassan, he succumbed to the injuries. P.W. 6 has identified the chopper (MO. No. 7) as the weapon used for commission of the offence by the accused. As aforementioned, he has also deposed about the motive for commission of the offence.

In the cross-examination, P.W. 6 has reiterated the incident in question. He has deposed that he saw the incident standing about 100 feet away from the place of the incident; though number of suggestions are made by the defence to show that P.W. 6 is not at all an eye witness to the incident, such suggestions are promptly denied by him. However, the defence has elicited in the cross-examination that P.W. 6 did not try to intimate the police personally or over phone immediately after the incident in question. The purport of the answers given by P.W. 6 makes it clear that P.Ws. 6 and 7 and others rightly gave importance to save the life of the deceased than to intimate the police. A suggestion is also made that deceased was not in position to speak when he reached Chickmgalur District Government Hospital; but P.W. 6 has emphatically deposed that the victim was in a position to speak at that time. Despite searching cross-examination nothing worth is elicited so as to discard the evidence of P.W. 6.

We find that the evidence of P.W. 6 fully corroborates the case of the prosecution.

The evidence of P.W. 6 is fully supported by P.W. 7. P.W. 7 has also deposed on par with the evidence of P.W. 6. He has deposed about the actual incident caused by accused Nos. 1 and 2 at about 12.30 p.m. on the date of the incident; he has also deposed that himself, P.W. 6 and deceased went to the school situated at Kalavase Village for getting their photographs captured for the purpose of ration card; while returning back from the school, at about 12.30 p.m. accused No. 1 assaulted the deceased with chopper-MO. No. 7 and the deceased fell down due to assault by accused No. 1; at that time, accused No. 2 took the very chopper in his hand and assaulted the deceased mercilessly. The defence was not able to secure any admission from P.W. 7, on the other hand, even in the cross-examination, P.W. 7 has stuck on to his stand that accused Nos. 1 and 2 have assaulted the deceased and he has seen the said incident along with P.W. 6.

However, P.W. 7 has deposed that while they were taking the victim to Chickmagalur District Government Hospital, the police met them in between Malandur and Jakkanahalli; police talked with the deceased Manjunath at that point of time, the police have written whatever the deceased has spoken to before them at Malandur. Except these admissions, no major admissions are forthcoming in the evidence of P.W. 7.

Even assuming that the police had talked with the deceased earlier to recording of Ex. P10 at Chickmagalur District Government Hospital, the version of P.Ws. 6 and 7 cannot be disbelieved. The non-production of the statement of the victim allegedly made before the police at Malandur though may be termed as an investigation lapse, it may not affect the case of the prosecution on merits.

We find that the evidence of P.Ws. 6 and 7 is consistent, cogent and reliable. Merely because they are the relatives of the deceased, they cannot be disbelieved only on that sole ground. It is but natural for the villagers to go in groups to any place for work if they are free. Moreover, P.Ws. 6 and 7 are brothers-in-law of the deceased; all of them went together for getting their photographs captured for ration cards. We do not find anything uncommon in the conduct of P.Ws. 6 and 7 going with the deceased. We find that their evidence is natural and untainted.

It is no doubt true that P.Ws. 6 and 7 were studying during the relevant time. But there is nothing on record to show that they attended the classes on the date of the incident. Per contra, it is emphatic version of P.Ws. 6 and 7 that they were in the village and they were doing coolie work. It is not uncommon in the villages that the poor students work while learning. Since there is nothing on record to show that they attended school/college and as the evidence of P.Ws. 6 and 7 is highly reliable and as their conduct appears to be natural, in our considered opinion, the trial Court is justified in believing the version of P.Ws. 6 and 7 for coming to the conclusion.

Re. Oral dying declaration: It is the case of the prosecution that the deceased made oral dying declaration before P.Ws. 8, 10 and 11. P.Ws. 8 and 10 are the wife and daughter of the deceased respectively. P.W. 11 is an independent witness. P.W. 8 has deposed that immediately after hearing the news of assault, herself and P.W. 10 rushed to the scene and talked with the deceased; the deceased had told her that accused Nos. 1 and 2 assaulted him. She has also deposed about the motive for commission of the offence.

P.W. 8 has further deposed that she had seen accused No. 1 sitting at Durgamba Bus Stop armed with chopper at 11.00 a.m. i.e., prior to the incident. Even in the cross-examination, she had reiterated that she had seen accused No. 1 armed with chopper at the bus stop. There is no much cross-examination of P.W. 8 on the aspect of oral dying declaration.

P.W. 10 is the daughter of the deceased. She has deposed on par with the evidence of P.W. 8. She has also deposed that on hearing the news from a boy, herself and her mother (P.W. 8) rushed to the scene and talked with the deceased; deceased told them that both the accused assaulted him; thereafter the victim was shifted to the hospital.

However, P.W. 11 has confined his version only with regard to accused No. 1. According to him, the deceased orally declared before him that accused No. 1 assaulted him. P.W. 11 has turned hostile in so far as declaration made as against accused No. 2 is concerned. However, P.W. 11 has deposed and confirmed the presence of P.Ws. 6 and 7 on the scene of offence. So also, P.Ws. 8 and 10 have deposed about the presence of P.Ws. 6 and 7 on the scene of offence.

Though there is little deviation in respect of complicity of accused No. 2, the evidence of P.Ws. 8 and 11 who are the wife and daughter of the deceased respectively makes it clear that the deceased declared before them that both the accused assaulted him. All these three witnesses have confirmed the presence of P.Ws. 6 and 7 on the spot. Thus, the evidence of P.Ws. 8, 10 and 11 fully supports the case of the prosecution.

Re. Written Dying Declaration: It is the case of the prosecution that the victim was admitted to Chickmagalur District Government Hospital between 2.30 and 3.00 p.m.; he was given first-aid in the hospital; he was in the said hospital for half-an-hour; during that period, medico-legal intimation was sent by the hospital to the police as per Ex. D3, consequent upon which the police (P.W. 15) came to the hospital and recorded the statement of the victim as per Ex. P10 in the presence of the doctor-P.W. 17; based on Ex. P10, crime came to be registered.

It is relevant to note that Ex. P10 contains the details of assault by accused Nos. 1 and 2 on the deceased. It also contains the motive for commission of offence. The doctor-P.W. 17 has certified on the said dying declaration that the said statement is recorded before him at 3.30 p.m. on 25.3.2008. It is no doubt true that the doctor has not certified whether the patient was in fit condition to make statement. It is merely endorsed by the doctor that the statement is taken before him. However, P.W. 17 has deposed that the patient was conscious and oriented. It is relevant to note at this stage itself that Ex. P21 is the treatment sheet maintained by Chickamagalur District Government Hospital. It is no doubt true that there are some interpolations/scratches made in the said document. Even if we eschew the tampered/interpolated portions of Ex. P21 from consideration, the untampered portion would clearly reveal that the victim was admitted to the hospital at 3.00 p.m. and he was conscious and oriented. The words "conscious, oriented" mentioned by the doctor (as deposed by the doctor-P.W. 17) mean that the victim was in a position to speak. P.W. 17 has also deposed before the Court that the victim was in a position to speak when Ex. P10 was recorded before him.

We find that the corrections/interpolations made in Ex. P21 are not so material so as to discard the entire document-Ex. P21. Unimportant portions are interpolated. The doctor-P.W. 17 has explained about such interpolations, and such explanation is plausible and acceptable. In addition to the same, we find from the judgment of the Court below that the trial Court has perused the original records and has found that there is no manipulation in the entry made by the doctor. In that regard, the trial Court has observed that when the Medical Officer of Government Hospital is treating a medico-legal case patient, his top priority would be to give treatment immediately and in such circumstances, there is every likelihood of over-writings (due to hurry). As aforementioned, those over-writings are all minor corrections which do not affect the merits of the matter.

The version of the doctor is supported by P.W. 15 who has scribed the dying declaration in the presence of the doctor. He talked with the patient and found that he was in a position to speak and therefore his statement is recorded. The cumulative effect of Ex. P10 coupled with the evidence of P.Ws. 15 and 17 would lead us to conclude that the victim was in a position to speak though assaulted by accused Nos. 1 and 2 and there was loss of blood to certain extent. Whether the patient could speak even after receiving the severe injuries, would all depend upon his physical and mental condition. If the victim is mentally strong and if there is no loss of much blood, he may be in a position to speak. In the matter on hand, the incident has taken place at about 12.30 p.m., (i.e., 00.30 hours) the dying declaration is recorded at about 3.00 p.m. it is no doubt true that the deceased had died between 4.30 and 5.00 p.m., i.e., within about 1 to 2 hours after recording the dying declaration. Since the expert in the field (P.W. 17) has deposed that the victim was in a position to speak and as there is nothing to show that the doctor is interested in the case of the prosecution, so also, as there is nothing on record to show that the version of the doctor is unbelievable, we are of the opinion that the trial Court is justified in concluding that the written dying declaration made by the victim is proved and is believable and that the same was voluntarily made.

Re. Recovery of incriminating Article, viz., -chopper (M.O. No. 7): In order to prove the aspect of recovery, the evidence of P.Ws. 4 and 5 is adduced by the prosecution.

P.W. 4 has deposed that both the accused took the police and panchas in a jeep and went to their house situated at Hosambal. Accused No. 1 took out a chopper which he had hidden under a coffee plant. He also took out the blood stained clothes which were worn by him during the relevant time, hidden under mango branches. The same were seized in the presence of P.W. 4 under seizure panchanama at Ex. P4. The same is evidence of P.W. 5. He has also deposed that accused No. 1 had hidden the chopper under coffee plantation and the same was recovered by police on being shown by and taken out by the accused No. 1.

However, on certain point, P.W. 4 was treated as hostile, inasmuch as he has not deposed about the recovery of M.O. No. 7 from accused No. 2. According to the case of the prosecution, accused No. 2 also showed the place where he had kept the blood stained clothes which were worn by him. But nothing is deposed by P.Ws. 4 and 5 with regard to recovery of blood stained clothes at the instance of accused No. 2. P.W. 5 has however admitted that he has signed panchanama at Ex. P4 in the Police Station. From the aforementioned admission of P.W. 5 that he has signed Ex. P4 in the Police Station, his version cannot be disbelieved for the purpose of proving of the aspect of recovery. However, the evidence of P.W. 4 makes it clear that M.O. No. 7 was recovered at the instance of accused No. 1.

From the aforementioned discussion, it is clear that the prosecution has proved its case beyond reasonable doubt. P.Ws. 6 and 7 who are the eye witnesses, have emphatically deposed about the actual incident in question and as to the participation of the accused in the crime. The dying declaration made by the deceased as per Ex. P10 is proved in view of the untainted version of P.Ws. 15 to 17. The motive for commission of offence is also proved by the prosecution, as discussed supra. In view of the above, we find that the trial Court is justified in convicting both the accused for the offences punishable under Sections 341 and 302 r/w. Section 34 of IPC. Even on reconsidering the material on record, we do not find any ground to interfere with the impugned judgment of conviction.

Hence, appeal fails and accordingly, the same stands dismissed.