Lokesh and Others vs State of Karnataka

Mohan M. Shantana Goudar, J.—1. The Judgment & Order of conviction and sentence dated 31.7.2006 passed by the Fast Track Court-IX, Bangalore City in S.C. No. 75/2005 is called in question in this appeal by the convicted accused. By the impugned Judgment & Order, the trial Court has convicted both the accused for the offence punishable under Section 302 of IPC.

During the pendency of this appeal before this Court, Accused No. 2/appellant No. 2 viz., Anand @ Bond @ Narasimhegowda expired and therefore the appeal filed by him abates. Consequently appeal filed by Accused No. 1 -Lokesh @ Loki @ Mariyappa only, is heard.

Case of the prosecution in brief is that deceased Prashanth is the son of PWs.2 and 3; PW.4 is the sister of the deceased; Accused Nos. 1 and 2 were known to the deceased; Accused NO.1 was residing in the very locality wherein the deceased was living; However Accused No. 2 was living in a different locality; the deceased was a auto driver and so also Accused No. 2 was a driver; Accused No. 1 used to pressurize the deceased that he should magnify and blow up his personality so that the boys in the locality would give respect to him (Accused No. 1); however the deceased had not heeded to the request of Accused No. 1; Accused Nos. 1 and 2 were of the opinion that the deceased had given certain wrong information about the conduct and character of accused No. 2 to the owner of the autorickshaw which was being driven by Accused No. 2 and hence the owner of the autorickshaw did not entrust the autorickshaw to Accused No. 2 for driving subsequently i.e., after some period; in that regard, there were differences of opinion between the accused and the deceased; Accused No. 1 had questioned the attitude of the deceased in allegedly giving wrong impression of the Accused No. 2 to the owner of the autorickshaw; The deceased did not fall in line with Accused Nos. 1 and 2 in their activities; On 11.3.2004, at about 10.15 p.m. Accused No. 3 (Juvenile offender) came to the house of the deceased wherein PWs.2,3 and 4 were also present; at that point of time, the deceased was talking with his family members including PWs.2,3 and 4; Accused No. 3 after coming to the house of the deceased, asked the deceased to accompany him and told him that Accused Nos. 1 and 2 were calling him (deceased); the deceased accompanied Accused No. 3; after the deceased went for certain distance, the Accused Nos. 1 and 2 started quarrelling with the deceased; Accused No. 1 assaulted the deceased with chopper - MO.1 and Accused No. 2 assaulted the deceased with the knife - MO.6; because of such assault, the deceased fell on the heap of sand which was stocked for construction of building of some other person; PWs.2, 3 and 4 being suspicious about the conduct of Accused No. 3 calling the deceased to talk with Accused Nos. 1 and 2, had in the meanwhile, followed the deceased and saw the incident in the street light standing about 20 feet away from the place of incident in question; Immediately after the incident, the accused fled away from the scene; PWs.2, 3 and 4 with the help of PWs.14 and 15 shifted the injured to the Victoria hospital for treatment, but unfortunately the deceased succumbed to the injuries at 11.15 p.m.; The doctor has opined that the deceased was brought dead; When the dead body was in the mortuary, the Police personnel - PWs.17 and 19 came to the hospital; a death memo was sent to the Police Station; PW.19 recorded the first information given by PW.2 as per Ex. P3 at about 1.00 a.m. on 12.3.2004, based on which Crime No. 103/2004 came to be registered in Hanumanthnagar Police Station by PW.19 - Inspector of Police. PW.19 completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 19 witnesses and got marked 26 Exhibits and 15 Material Objects. On behalf of the defence, one Exhibit came to be marked. The trial Court, on evaluation of the material on record convicted the Accused Nos. 1 and 2 for the offence punishable under Section 302 of IPC. It is relevant to note here itself that since Accused No. 3 was a juvenile offender, the case against him was split up and was sent to Juvenile Justice Board for taking further steps against him.

It is relevant to note here itself that this appeal was earlier heard by another Division Bench of this Court and the same was allowed acquitting the accused on 2.2.2010 and consequently both Accused Nos. 1 and 2 were released from Prison. As against the said Judgment and Order of acquittal, State preferred Criminal Appeal No. 1824/2011 before the Hon''ble Supreme Court, which came to be allowed on 22.9.2015. The Apex Court has set aside the Judgment & Order dated 2.2.2010 passed in this appeal and remitted the matter to this Court for fresh disposal in accordance with law.

Accordingly, we have heard the learned advocates on record.

Smt. Padmavathi, learned counsel appearing on behalf of the appellant taking us through the material on record submits that out of the five eye witnesses examined by the prosecution in support of its case, PWs.14 and 15 have turned hostile to the case of the prosecution; both PWs.14 and 15 have deposed that they went to the spot at the first instance and at that point of time, the other three alleged eye witnesses PWs.2, 3 and 4 had not come; by the time PWs.14 and 15 went to the spot, the injured had already fallen down with bleeding injuries; on seeing the injured with bleeding injuries, they informed PWs.2, 3 and 4 about the said matter and consequently PWs.2, 3 and 4 arrived at the spot subsequently. Thus, according to the learned counsel for the appellant, PWs.2, 3 and 4 are also not the eye witnesses. She further submits that PW.2 has admitted that when he went to the spot, the deceased had already fallen; since PWs.2, 3 and 4 went together to the scene of offence, they could not have seen the incident in question, inasmuch as PW.2 went to the scene of offence after the incident was over. It is further contention of the defence that there are material contradictions in the evidence of PWs.2, 3 and 4; since they all are interested witnesses, the Trial Court should not have been believed their versions, particularly when their versions run contrary to the versions of PWs.14 and 15. Lastly, she submits that since ocular testimony relied upon by the prosecution is unbelievable, none of the other circumstances relied upon by the prosecution could be taken assistance by the prosecution; it appears that the Investigating Officer has created the story against the accused for the best reason known to him. Drawing the attention of the Court to Ex. D1 - entry made in casualty register, which discloses that some unknown person has committed the murder of the deceased, she submits that such information being given by PW.2 while admitting the injured to the hospital, PW.2 could not have know about the actual assailants, inasmuch as he was not the eye witness to the incident; if really PW.2 was knowing the names of the accused or faces of the accused, he would not have left mentioning their names before the Doctor while admitting the inured to the hospital; the material on record reveals that PWs.2, 3 and 4 were knowing accused No. 1 very well. On these among the other grounds, she prays for acquittal of the accused.

Per contra Sri Keshava Murthy, learned SPP-II argues in support of the judgment of the Court below by contending that the reasons assigned and the conclusion arrived at by the Trial Court are just and proper; the evidence of PWs.2, 3 and 4 is consistent and cogent; Though PWs.2, 3 and 4 are the family members of the deceased, they cannot be termed as interested witnesses; the family members do not generally try to implicate innocent persons ignoring the real culprits; since PWs.2, 3 and 4 were talking with the injured in their house at about 10 p.m., it is but natural for them to follow the injured apprehending that there is some danger to the life of the injured; the presence of PWs.2, 3 and 4 on the spot cannot be said to be unnatural and improbable, on the contrary, their presence is natural and probable. Lastly, he submits that no value can be attached to the evidence of PWs.14 and 15 inasmuch as, not only they are the hostile witnesses, but also because their evidence runs contrary to the evidence of PWs.2, 3 and 4, who have deposed before the Court in a natural manner. Taking us through the evidence of PWs.2, 3 and 4 once again, learned SPP-II submits that absolutely no material is found on record to discard the evidence of these witnesses; moreover, the circumstance of motive, the circumstance of recovery of weapons and blood stained clothes at the instance of the accused; the fact that PWs.2, 3 and 4 saw the accused on the spot with weapons and the abscondence of the accused apart from Forensic Science Laboratory report supporting the case of the prosecution, clearly depict that the Trial Court is justified in convicting the accused.

PW.1 is the witnesses for recovery panchanama Ex. P1 under which M.O. Nos. 2 and 3 are recovered at the instance of accused No. 1 on 17.3.2004; accused No. 1 was arrested on 17.3.2004 and immediately, thereafter the recoveries are effected based on the voluntary statement of accused No. 1 under panchanama Ex. P1. M.O. No. 1 -Machu/chopper is used by accused No. 1 while committing the offence whereas M.O. Nos. 2 and M.O. No. 3 are blood stained clothes of accused No. 1.

PWs.2, 3 and 4 are the eye witnesses to the incident. PW.2 is the father, PW.3 is the mother and PW.4 is the sister of the deceased. All of them have supported the case of the prosecution. Among them, PW.2 has lodged a complaint as per Ex. P3 and he is also the witness for scene of offence mahazar Ex. P4.

PWs.5 and 6 are the Police Constables, who participated during the course of investigation at different levels.

PW.7 is the witness for scene of offence mahazar Ex. P4. He has identified M.O. Nos. 4 and 5.

PW.8 is the another witness for recovery panchanama - Ex. P1 dated 17.3.2004 under which M.O. No. 1 -Machu/chopper, M.O. Nos. 2 and 3 - blood stained clothes of accused No. 1 were recovered. His version is on par with the version of PW.1. Though, he has supported the case of the prosecution in examination-in-chief, he has turned hostile during the course of cross-examination.

PW.9 is the witness for inquest mahazar Ex. P6. However, he has turned hostile during the course of cross-examination.

PW.10 is the witness, who was supposed to depose about the inquest panchanama Ex. P6. He has turned hostile to the case of the prosecution during his cross-examination.

PW.11 is the witness for recovery panchanama Ex. P7, under which M.O. No. 13 - knife was seized at the instance of accused No. 2. He is also the witness for recovery panchanama - Ex. P8, under which M.O. Nos. 14 and 15 -blood stained clothes of accused No. 2 were recovered. However, PW.11 has turned hostile during his cross-examination.

PW.12 is the Doctor, who conducted Autopsy. The postmortem report is at Ex. P9. It reveals that 15 injuries are found on the dead body. The Doctor has opined that the death of the injured is due to shock and haemorrhage as a result of multiple injuries. He has given the opinion as per Ex. P10 after seeing the weapons and injuries.

PW.13 is the Head Constable. He searched for accused Nos. 1 and 2 and he apprehended accused No. 1 on 17.3.2004.

PWs.14 and 15 are the eye witnesses. They have turned hostile to the case of the prosecution.

PW.16 is the Doctor, who speaks about the contents of casualty medical register Ex. D1.

PW.17 is the Assistant Sub-Inspector of Police. He has deposed about Ex. P7 - MLC memo received by the Doctor.

PW.18 is the Assistant Director of Forensic Science Laboratory. He has deposed that he has examined 14 articles sent for examination and he has given the report as per Ex. P18. The Serology report is at Ex. P20.

PW.19 is the Police Inspector. He has registered the case and conducted the investigation and laid the charge sheet.

The case of the prosecution not only rests on the ocular testimony of PW.2, 3 and 4, but also on certain important circumstances. Though PWs.14 and 15 were the eye witnesses, they have turned hostile to the case of the prosecution. Their evidence is not useful to the defence as well as to the prosecution. However, they have deposed that they went to the spot after the incident and at that point of time, the injured had fallen down on the ground and after seeing the injured with bleeding injuries, they went and informed PW.2.

It is not in dispute that PWs.2, 3 and 4 are the family members of the deceased and in that regard, the defence contends that PWs.2 and 3 being the parents and PW.4 being the sister of the deceased are interested witnesses and therefore, their evidence needs to be scrutinized carefully. Though, we do not agree with the proposition argued by the defence counsel, we have carefully considered the evidence of PWs.2, 3 and 4 to satisfy our conscience as to whether those witnesses have deposed as required under law or not.

PW.2 has lodged a complaint as per Ex. P3 at 00.30 hours on 12.3.2004. The incident has occurred at 10.15 to 10.30 p.m. on 11.3.2004. Thus, the complaint Ex. P3 came to be lodged within two hours of the incident in question before PW.19 in Victoria Hospital. The complaint discloses all the details relating to the incident in question including the motive for commission of offence as well as about the incident. It is mentioned in the complaint that accused No. 1 used to pressurize the deceased to follow his words; that accused No. 1 wanted the deceased to enhance his prestige in the locality so that other boys of the locality would give respect to him; he used to threaten the deceased with dire consequences, in case if the deceased did not heed to the words of accused No. 1; at 6 p.m. on 7.3.2004, accused Nos. 1 and 2 came near the house of the deceased and quarreled with him on the presumption that the deceased had given wrong impression to the owner of the auto rickshaw which was being driven by accused No. 2, consequent upon which, the owner of the auto rickshaw did not permit accused No. 2 to drive the auto rickshaw any more. With the aforementioned motive in the background, accused No. 3 (Juvenile offender) came to the house of the deceased at 10.15 p.m. when PW.2 was watching the Television; accused No. 3 called the deceased out of the house on the ground that accused Nos. 1 and 2 wanted to talk with him; the deceased accordingly went with accused No. 3 to talk with accused Nos. 1 and 2; PWs.2, 3 and 4 being the parents and sister of the deceased and being suspicious about the conduct of accused No. 3 calling the deceased to talk with accused Nos. 1 and 2, followed accused No. 3 and the deceased to certain distance; the deceased met accused Nos. 1 and 2, who quarreled with the deceased and assaulted him with chopper and knife, consequent upon which, the injured fell down with bleeding injuries on a heap of sand. Thereafter, the accused ran away from the scene. Since the injured had sustained bleeding injuries, he was shifted to Victoria Hospital by PWs.2, 3 and 4 with the help of PWs.14 and 15. The deceased was declared dead at 11.15 p.m. by the Doctors of the Victoria Hospital. Immediately after 00.30 hours, complaint came to be lodged as per Ex. P.3.

The version as found in Ex. P3 is fully supported by the version of PW.2 before the Court. PW.2 has reiterated in his evidence that accused No. 3 (Juvenile offender) came to the house at 10.15 p.m. on 11.3.2004 and called the deceased to talk with accused Nos. 1 and 2; the deceased accordingly heeded to the request of accused No. 3 and went along with him to talk with accused Nos. 1 and 2; PWs.2, 3 and 4 however suspecting the conduct of the accused, followed the deceased and saw the incident. Even in the cross-examination, PW.2 has reiterated that he has seen the incident.

On going through the evidence of PW.2, we find that his evidence is reliable. The version of PW.2 before the Court fully supports the version of Ex. P3 lodged by him.

The evidence of PW.2 and the contents of Ex. P3 are supported by the versions of PWs.3 and 4. They have also deposed about the incident in question meticulously; the evidence of PWs.2, 3 and 4 is similar. Smt. N. Padmavathi, learned Counsel for the defence also concedes that the evidence of PWs.2, 3 and 4 is consistent.

However, it is the contention of the defence that PWs.2, 3 and 4 went to the spot after completion of the crime and therefore, they are not the eye witnesses. She draws the attention of the Court to paragraph 14 of the deposition of PW.2 to contend that, PW.2 is not the eye witness to the incident and consequently, PWs.3 and 4 are not the eye witnesses to the incident. In paragraph 14 of his deposition, PWs.2 has deposed that he is the first one to go to the scene of offence. By the time, he went to the scene of offence already ten persons were standing there. He did not try to save the life of his son because he saw the accused running away from the scene; he did not try to catch the persons, who assaulted his son, inasmuch as the primary duty of PW.2 was to save the life of his son. It is needless to observe that the evidence of witnesses needs to be considered and evaluated in toto and consequently, the said single sentence cannot be considered in isolation. Moreover, we do not find any reason to conclude that PW.2 came to the spot after the incident was completed. It is clearly deposed by PW.2 that he, PWs.3 and 4 followed the deceased and saw the incident; by the time, he could see the incident, the accused started running away from the scene and therefore, he did not catch the accused, inasmuch as his priority was to save the life of the deceased. These witnesses have deposed that accused No. 1 assaulted the deceased with chopper whereas accused No. 2 assaulted the deceased with knife. 15 injuries are found on the dead body. All of them are either chopped wounds or incise wounds. However, the last injury is abrasion. The injuries as sustained by the injured by using of chopper and knife could have been caused within a short period of 2 to 3 minutes. The incident has taken place in the public road at 10.30 p.m. Therefore, the accused have hurriedly committed the crime and fled away from the scene. PW.2, who was aged about 50 years could not nab the accused, may be because the accused were armed and there was also no time for him to save his son, inasmuch as the incident has occurred within 2-3 minutes. Moreover, PWs.2, 3 and 4 were following the deceased from a distance and they were not going together hand in hand and in this view of the matter, in our considered opinion, the evidence of PWs.2, 3 and 4 cannot be doubted at all. We find that the evidence of these witnesses is consistent, cogent and reliable. Their evidence fully supports the case of the prosecution as found in complaint Ex. P3. As mentioned supra, the complaint of the eye witness i.e., PW.2 discloses every minute details of the incident including motive for commission of offence.

Merely because, PWs.14 and 15, who are the hostile witnesses have deposed that they went to the spot at the first instance and thereafter, they informed about the incident to PW.2, it cannot be said that the versions of PWs.2, 3 and 4 is doubtful. The evidence of all the eye witnesses will have to be evaluated in its entirety. No cogent reasons are forthcoming to disbelieve the versions of PWs.2, 3 and 4.

Smt. K. Padmavathi, learned Counsel for the defence relying upon the judgment of the Apex Court in the case of RAM ASHRIT AND OTHERS v. STATE OF BIHAR reported in , 1981 CRI.L.J.484 contends that, it is unsafe to rely upon related or otherwise interested witnesses and that their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. It is further contended that the evidence of these witnesses needs corroboration to material extent in all material particulars. There cannot be any dispute that the versions of interested witnesses will have to be subjected to close and severe scrutiny before their testimony could be safely acted upon. There cannot also be any doubt that the versions of related witnesses will also have to be scrutinized carefully. But, a close relative, who is very natural witnesses, cannot be regarded as interested witnesses. The term interested'' postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. Such is not the case here. In the instant there is absolutely no evidence to indicate that either PW.2 or PWs.3 and 4 had any animus against the accused. The Apex Court in the case of DALIP SINGH AND OTHERS v. THE STATE OF PUNJAB reported in , AIR 1953 SC 364 has expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives are not independent witnesses and in order to dispel the same, the qualities of independent witnesses are clearly elucidated. If the foundation for such impression of the Bar is based on the fact that witnesses are closely related to the deceased, we are unable to accede. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. As has been held by the Apex Court in the cases of GULI CHAND AND OTHERS v. STATE OF RAJASTHAN reported in , AIR 1974 SC 276 and STATE OF PUNJAB v. JAGIR SINGH BALJIT SINGH AND KARAM SINGH reported in , AIR 1973 SC 2407, the mere fact that a witness is a relative of a victim is not sufficient to discard his testimony. Moreover, as already mentioned in paragraph - ''9'' of this judgment, we have evaluated the versions of the eyewitnesses with utmost care and caution.

For the aforementioned reasons, we are unable to reject the evidence of PWs.2, 3 and 4 merely on the ground that they are the relatives of the deceased. We have carefully gone through the entire evidence of these three witnesses and we find that shorn of few embellishments here and there, their testimony has ring of truth, a color of consistency and a sense of straight forwardness, as a result of which their evidence inspires great confidence. They have given a graphic description of what they had seen. Therefore, we do not see any reason to discard the evidence of the eye-witnesses PWs.2, 3 and 4. Once the evidence of these witnesses is believed, the prosecution case stands proved apart from anything else.

However, the prosecution has relied on circumstantial evidence also to support the intrinsic evidence given by these witnesses.

The evidence supporting the circumstance of motive for commission of offence i.e., about previous enmity and quarrel is deposed by PWs.2, 3 and 4.

PW.1 has deposed about the recovery of weapon M.O. No. 1 - Machu/chopper and M.O. Nos. 2 and 3 - blood stained clothes of the accused under the panchanama -Ex. P1.

PW.1 has deposed that accused No. 1 took the police and panchas near the drain flowing in Shammanna Nagar and took out the chopper, which he had hidden under the bridge situated near the drainage; the accused told panchas and police that he used the said weapon for commission of offence. The chopper was seized by the Police under panchanama Ex. P1. The evidence of PW.1 relating to recovery of chopper has remained undisturbed even in the cross-examination. So also the very witness has deposed that the blood stained clothes of accused No. 1 were recovered at the instance from the house of the accused situated at T.R. Shamanna Nagar. Such blood stained clothes were also seized under panchanama Ex. P2. Though PW.1 was subjected to lengthy cross-examination, nothing worth is elicited so as to discard his evidence.

The blood stained weapon as well as the blood stained clothes were subjected to examination by Forensic Science Laboratory. PW.18 - Scientific Expert has examined all the materials sent to him including the clothes of deceased; M.O. No. 1 - chopper used by accused No. 1 as well as the M.O. Nos. 2 and 3 - blood stained clothes of the accused, which were seized during the course of investigation. He has given the report as per Ex. P18 - FSL report and Ex. P20 - Serology report. The evidence of PW.18 and the reports at Exs.P18 and P20 clearly reveal that the blood stained clothes of accused No. 1 (i.e., M.O. Nos. 2 and 3) and M.O. No. 1 - chopper seized at the instance of accused No. 1 contained ''A'' group of human blood, so also the blood stained clothes of the deceased also contained ''A'' group of human blood. It is also relevant to note that the blood stained knife used by accused No. 2 as well as blood stained clothes of accused No. 2 were subjected to FSL examination and the evidence of the expert as well as the report clearly disclose that the said knife as well as the clothes of accused No. 2 also contained ''A'' group Human blood. Thus, virtually, the evidence of PWs.2, 3 and 4 is fully supported by the evidence of PW.18 as well as the witness for recovery mahazar Ex. P1. It is needless to observe that the evidence of PW.18 is fully supported by the reports Exs.P18 and P20.

It is not in dispute that accused No. 1 was arrested on 17.3.2004 i.e. after about six days from the date of incident. There is no reason as to why accused No. 1 had absconded, if really he is innocent. Immediately after his arrest on 17.3.2004, the recovery of chopper and blood stained clothes from accused No. 1 is effected, pursuant to the voluntary statement made by him. PW.13 is the Head Constable, who was searching for accused No. 1 and apprehended him on 17.3.2004. Therefore, it is clear that accused No. 1 was absconded for about six days from the date of incident. The abscondence is an additional circumstance against accused No. 1.

Ex. P9 - postmortem report and Ex. P10 - opinion of the Doctor (PW.12) coupled with the evidence of PW.12 -Doctor, who conducted autopsy over the dead body clearly reveals that the dead body of the injured had sustained 14 chopped/stabbed/incised wounds apart from one abrasion. It is also opined by the Doctor that injury Nos. 5, 6, 7, 8 and 14 could be caused by sharp edged knife (M.O. No. 6), injury Nos. 1, 2, 3, 4, 9, 10, 12 and 13 could be caused by chopper (M.O. No. 1), injury No. 11 could be caused by a curved pointed tip of chopper and injury No. 15 could be caused by coming in contact with hard and rough surface. It is also opined by the Doctor that the death was due to shock and haemorrhage as a result of multiple injuries sustained. Therefore, the medical evidence supports the case of the prosecution in its entirety.

Having regard to the aforementioned material on record and more particularly, the evidence of PWs.2, 3 and 4 coupled with the versions of the other witnesses which fully support the case of the prosecution in respect of other material particulars, in our considered opinion, the Trial Court is justified in convicting the accused for the offence punishable under Section 302 of IPC.

On re-appreciating the material on record, we do not find any ground to disagree with the reasons assigned and conclusion arrived at by the Trial Court while convicting the accused.

Hence, no interference is called for. Appeal fails and the same stands dismissed accordingly.