Lokesh Shivakumar and Thomas alias Rachaiah vs State

B. Padmaraj, J.—Heard the arguments of the learned counsel for the appellant - accused no. 4 in Criminal Appeal No. 1129/2000 and the learned Additional SPP for the respondent - State. Since the learned amicus curiae as well as the learned counsel appearing for the accused no. 2 did not appear and make their submissions, we directed the learned counsel appearing for the accused no. 4 to argue the matter on their behalf also. Accordingly, at our request, he argued the matter on behalf of all the appellants. These two criminal appeals can be disposed of by this common Judgment. Both the appeals are filed against a Judgment dated 2/4.9.2000 of the trial Court, whereby the trial Court has convicted the accused Nos. 1 to 4 u/s 302 read with Section 34 of IPC and sentenced each of them to undergo R.I. for life and also to pay a fine of Rs. 500/- and in default of the payment of fine, to undergo further R.I. for a period of one week each.

Crl. A. No. 1129/2000 is filed by the convicted accused Nos. 2 and 4 and Crl. A. No. 66/2001 is filed by the convicted accused Nos. 1 and 3. Since both the appeals are filed against the same Judgment and Order dated 2/4-9-2000, they are conveniently dealt with together and are accordingly disposed of by this common Judgment.

The appellants in these two appeals, who were accused Nos. 1 to 4 before the trial Court were put on trial for the offence punishable u/s 302 read with 34 of IPC based on the allegation that on 21.7.1997 at about 6.30 p.m. in the evening, in furtherance of their common intention, in front of the house of the accused NO. 3 situated at Shanti Beedhi cross in Mamballi village of Yelandur taluk, they committed the murder of one Dharmaraj by intentionally or knowingly causing the death of the said Dharmaraj and thereby committed the offence punishable u/s 302 read with Section 34 of IPC.

The case of the prosecution in brief is as under:

The accused persons A1 to A4, the deceased Dharmaraj and the material witnesses for the prosecution are residents of Mamballi village in Yelandur taluk and they had acquaintance with each other. The deceased is one Dharma @ Dharmaraj aged about 27 years. PW-1 Mallesha is a younger brother of the deceased. The deceased Dharmaraj and his younger brother Mallesha PW-1 had been residing together in the same house alongwith the other members of their family in a street called "Rangada Beedhi" in Mamballi village, whereas the accused persons A1 to A4 had been residing in their respective houses situated in a street called "Shanthi Beedhi" in Mamballi village. The respective houses of all these accused persons A1 to A4 were situated within a short distance from each other and they were all friends. The deceased Dharmaraj had been lending money to others in the village. He had lent a sum of Rs. 10,000/- to the accused No. 1 Madhu. It appears that in connection with some case, the deceased had been detained in jail. During the period when the deceased had been detained in jail, his brother Mallesha PW-1 had been authorized to recover the loans from the debtors of the deceased, The accused No. 1 Madhu had however been dodging to repay the loan advanced by the deceased to PW-1. The deceased had been released from jail on 18.7.1997, which was about 4 days prior to the incident in question. After the deceased had been so released from jail on 18.7.1997 and returned to the village, his brother Mallesha PW-1 informed to the deceased about the accused No. 1 Madhu dodging to repay the loan and for that the deceased had told him that he would himself recover the loan amount from the accused No. 1 Madhu. While this was so, it is stated that on 21.7.1997 at about 5.45 p.m. or so in the evening, when the deceased and his brother PW-1 were in their house, the accused no. 1 Madhu came to their house and took the deceased Dharmaraj alongwith him on the pretext of repaying the loan borrowed from the deceased. That is to say, he took the deceased alongwith him on a representation that he would repay his loans. On that relevant day, there was a festival in the village and the Police force was deployed at certain vantage points in the village in order to maintain law and order situation in the village. Even a DAR van had also been camping in the village for maintenance of law and order. After the deceased Dharmaraj went alongwith the accused No. 1 towards his house situated at Shanthi Street, he did not return back to the house even alter a lapse of about half an hour. Whereupon, his brother Mallesh PW-1 alongwith the two other persons of his acquaintance PW-2 Mahesh and PW-14 Mukunda went towards the house of the accused NO. 1 in order to know as to why the deceased did not return after obtaining the amount from the accused No. 1. They had so gone towards the house of the accused No. 1 after about half an hour of the deceased having gone alongwith the accused No. 1 towards his house. While they were so proceeding towards the house of the accused No. 1 and when they were at a short distance from the house of the accused No. 3, they saw the deceased Dharmaraj being fisted or assaulted with hands by the two accused persons A3 and A4 near the house of the accused No. 1. They further saw the accused No. 2 assaulting the deceased with a club or a wooden piece MO. 2. Then, when the deceased Dharmaraj fell to the ground on account of such assault committed on him, the accused NO. 1 Madhu picked out a stone, which was lying nearby and dropped or hit the deceased with that stone MO. 1 over the head. On seeing such ghastly incident committed on the deceased by these accused persons from a distance of about 20 feet or so, PWs. 1, 2 and 14 cried out loudly and ran towards the place where the deceased was being assaulted by these accused persons. Upon hearing the cries or shouts of PWs. 1, 2 and 14, all these accused persons A1 to A4 ran away from the spot by jumping the fence. The incident in question took place near about the house of the accused No. 1 Madhu at Shanti Street Cross in Mamballi village. The residential houses of the other accused persons were also situated within the near vicinity. PWs. 1, 2 and 14 came to the spot where the deceased was lying with serious bleeding injuries on his person. The deceased was found to be still breathing and had some life in him. Thereupon, the deceased Dharmaraj was immediately removed to the hospital at Kollegal by his brother PW-1 Mallesh in the DAR van, which was stationed in the village. The Doctor who examined the deceased at the Government Hospital in Kollegal found him to be dead. The incident in question took place at about 6.30 p.m. in the evening and the deceased was taken to the hospital for the purpose of treatment at about 7.00 p.m. in the evening. After the deceased was declared to be dead, the dead body of the deceased was deposited at the Mortuary of the Government Hospital at Kollegal. Thereafter, Mallesh PW-1 returned to the village at about 11.30 p.m. in the night. Upon his return to the village, he went and lodged a complaint with the Police as per Exhibit P-1. PW-13 N. Guruswamappa, who at the relevant time of this incident was working as a Head Constable in Mamballi Police Station, was the SHO of the said Police Station on 21.7.1997 from 1-00 p.m. in the afternoon to 9-00 p.m. in the night. While he was the SHO of the said Police Station, at about 6.50 p.m. in the evening on 21.7.1997, some person came to the Police Station and gave information that the deceased Dharma had been assaulted by some person and that he had sustained serious bleeding injuries. On being so informed, PW-13 had immediately proceeded towards the place of incident situated in Shanti Street and on the way, he saw the deceased Dharma being brought by three persons (PWs. 1, 2 and 14). He made arrangements to send the deceased to the Hospital for treatment by putting the injured Dharma into the DAR van, which was stationed in the village on that day. Accordingly, the deceased was taken in the DAR van to the Government Hospital at Kollegal for the purpose of treatment. He had also accompanied the injured to the hospital alongwith PW-1 in the said DAR van. After the deceased was examined by the Doctor in the Government Hospital at Kollegal and declared him to be dead, he deposited the dead body of the deceased in the mortuary and then contacted the Police Station on phone and informed the ASI Pandu about the death of the deceased. Thereupon, he was informed by the ASI Pandu to remain at the hospital and to guard the dead body of the deceased. Accordingly, the said HC PW-13 had remained at the hospital till the inquest proceedings were held and the PM examination on the dead body of the deceased was conducted PW-10 Pandu was then the ASI of Mamballi Police Station and that on 21.7.1997 he was on bandobasth duty alongwith his staff in connection with the festival in the village. After making the necessary arrangements for maintenance of law and order situation in connection with the festival in the village, when the ASI PW-10 returned to the Police Station, he was informed of the incident and the deceased having been taken for treatment to the Government hospital at Kollegal. Thereafter at about 11.30 p.m. in the night, a complaint was presented to him at the Police Station by the complainant Mallesh PW-1, which is as per Exhibit P1. On the basis of which, he registered the case and forwarded the FIR to the jurisdictional Magistrate and also informed his superiors about the offence registered at the Police Station. PW-17 Basavaraju, who was then working as the CPI of Yelandur Circle, took up the further investigation of this case from the ASI PW-10 at about 11.45 p.m. in the night. He immediately deployed his staff to trace the accused persons. Thereafter on 22.7.1997 he visited the Government Hospital at Kollegal and held the inquest proceedings on the dead body of the deceased from 7-00 a.m. to 11-00 a.m. in the presence of certain panchas as per the inquest report Exhibit P-3. The injuries that were noticed on the dead body of the deceased were duly recorded in the inquest report Exhibit P-3. He also recorded the statements of certain witnesses including the statement of the complainant PW-1 during the inquest proceedings. Then he made over the dead body of the deceased to PW-13 for being subjected to the Post Mortem examination. The Post Mortem examination on the dead body of the deceased was conducted by the Doctor PW-11 on 22.7.1997 between 10.30 a.m and 1 p.m and has issued the Post Mortem report as per Exhibit P9. He found certain ante mortem external injuries on the dead body of the deceased. As to the cause of death, he has recorded that the death of the deceased was due to shock and haemorrhage as a result of the injuries to the brain and skull. After the Post Mortem examination was conducted on the dead body of the deceased, the HC PW-13 handed over the dead body of the deceased to its relatives and produced the clothes that were found on the dead body of the deceased before the Investigating Officer PW-17 and the same were seized under a Panchanama Exhibit P-6. The clothes that were so produced before him are as per MOs. 7 to 10, During the course of his investigation, the Investigating Officer PW-17 had visited the village Mamballi where the complainant PW-1 pointed out the place of incident. The same was examined in the presence of the panchas and a spot panchanama was recorded as per Exhibit P-2 and seized thereunder MOs. 3 to 6 and 11. Further, the Investigating Officer PW-17 had also recorded the statements of certain other witnesses and also made efforts to trace the accused persons, who were absconding from the village. On 9.8.1997 at about 8-00 a.m. in the morning, when the Investigating Officer PW-17 was in his office, he received a credible information about the movements of the accused persons at Mugur village and he immediately proceeded to the said village alongwith his staff. On reaching the Mugur village, he found the presence of the accused No. 4 Thomas near the chavadi of Harijan Keri of the said village. He immediately apprehended the accused No. 4 Thomas with the assistance of his staff and caused his arrest around 9.30 a.m. He brought the arrested accused No. 4 to Mamballi Police Station around 10.15 a.m and at the Police Station, he interrogated the Accused No. 4 and during the course of such interrogation, the accused No. 4 made a disclosure statement as per Exhibit P-10 to the effect that he would produce the crime weapons, if accompanied. In pursuant to such statement made by the accused No. 4, he led the Investigating Officer PW-17 and the panchas to a place near the fence at the cross of Shanti Street in Mamballi village and there he produced, the stone MO. 1 which was found concealed in the fence. The place from where the stone MO. 1 was produced by the accused No. 4 was situated in front of the house of the accused No. 3 and the same was found to be blood stained. The same was seized under a panchanama Exhibit P-7. Thereafter the accused No. 4 further led them to a place situated towards the south of the road leading to Mysore at Teramballi village where he produced the club MO. 2, which was found concealed in the thorny bushes of certain trees. The said club MO. 2 was also found to be blood stained and the same was seized under a panchanama Exhibit P-8. Subsequently, he learnt that the accused Nos. 1 to 3 had surrendered themselves before the Court of the JMFC at Chamarajanagar on 26.8.1997 and they have been remanded to judicial custody. Upon learning such fact, he made an application to the Court on 6.9.1997 seeking the custody of those accused for the purpose of their interrogation and accordingly, obtained their custody on 6.9.1997 itself and after due interrogation, the accused Nos. 1 to 3 were produced before the Court on 7.9.1997. He further got prepared the sketch of the scene of incident through an Engineer of the PWD Department and also sent the seized articles of this case for their chemical examination to the FSL at Bangalore. Then, after collecting the necessary records from the concerned authorities and after completion of the investigation of this case, he submitted the charge sheet to the Court on 3.11.1997. Thus he placed a charge sheet against all the four accused persons A1 to A4 for the offence u/s 302 read with 34 of IPC.

The Committal Court, which took cognizance of the offence alleged against the accused persons in the charge sheet, committed the case to the Sessions Court for trial. Before the Trial Court, the accused having denied the guilt and claiming a trial, they were put on trial for the above said charge.

In the course of the trial, the prosecution in order to substantiate its case against the accused had examined on its behalf PWs. 1 to 17 and placed on record Exhibits P-1 to P-10 and MOs 1 to 11. The defence has got marked Exhibits D-1 and D-2 in the statement of PW-16.

Out of the 17 witnesses examined by the prosecution, PW-1 Mallesh is the brother of the deceased. He is an eyewitness to the occurrence. Apart from being an eyewitness to the incident, he had also lodged the FIR of the occurrence to the Police as per Exhibit P-1. He had accompanied the deceased to the hospital in the DAR van For treatment. He was also present during the inquest proceedings held on the dead body of the deceased. He had also pointed out the place of incident to the Police at the village and was present when the Police recorded the spot panchanama as per Exhibit P-2. He also speaks to the motive aspect of the case. PW-2 Mahesh was a resident of the same locality as that of the deceased and PW-1. He is also an eyewitness to the occurrence and he had accompanied PW-1 and PW-14 and witnessed the incident in question. He did not however go to the hospital alongwith PW-1 and the deceased. After the deceased was put into the DAR van for being taken to the hospital, he had returned to his house. He substantially supports the evidence of PW-1 with regard to the incident in question. PW-3 Nanjundaswamy is a witness for the inquest proceedings that were held on the dead body of the deceased as per the inquest report Exhibit P-3. PW-4 is an Assistant Executive Engineer of PWD, who on 18.10.1997 had visited the crime spot and prepared the sketch map of the scene of incident, which is as per Exhibit P-4. PW-5 Syed Nawab Sab is the driver of the DAR van, who took the deceased to the Government Hospital at Kollegal for treatment in the said van. According to him, certain 3 persons had brought the deceased and put him into the van for being taken to the hospital. He substantially corroborates the version of PWs. 1, 2 and 14 on the material aspects of the case. PW-6 is the Head constable, who had carried the FIR of the incident to the jurisdictional Magistrate. There has been no cross-examination to this witness. PW-7 is another Head Constable, who had carried certain sealed articles of this case for their chemical examination to the FSL at Bangalore. There has been no cross-examination to this witness also by the defence. PW-8 Basavaraju is a witness for the inquest proceedings held on the dead body of the deceased as per the inquest report Exhibit P-3, the spot panchanama Exhibit P-2, the seizure mahazar Exhibit P-6 whereunder the clothes of the deceased were seized and he is also a witness for the recovery mahazar Exhibits P-7 and P-8 at the instance of the accused no. 4. He has partially supported the prosecution case and hence, he was treated as hostile to the prosecution. PW-9 is a Police constable, who had carried certain other sealed articles of this case for their chemical examination to the FSL at Bangalore, PW-10 Pandu is the ASI, who received the written complaint Exhibit P-1 from the complainant PW-1 at the Police Station, registered the crime and sent the FIR to the Court and subsequently, he handed over the further investigation of this case to the CPI PW-17. PW-11 is the Doctor, who held autopsy on the dead body of the deceased and issued the Post Mortem report as per Exhibit P-9. PW-12 Puttananjaiah is a neighbour of the accused Nos. 1 and 3. On the day of the occurrence, he had been to the house of his relatives situated at some other village and had returned to the house at about 7.30 or 8.00 p.m in the night and upon his return, he learnt the news of the murder of the deceased. There has been no cross-examination to this witness. PW-13 Guruswamappa was the Head constable of Mamballi Police Station and he was the SHO of the Police Station at that relevant time. On some cryptic information received at the Police Station about the deceased being assaulted, he had proceeded to the spot, but on the way he met the three persons carrying the deceased and he made arrangements to take the deceased to the hospital for treatment in the DAR van and he had also accompanied the deceased to the hospital in the DAR van. He had remained at the hospital and attended to the Post Mortem duty. PW-14 Mukunda is a resident of the same locality as that of the deceased and PWs. 1 and 2. He had accompanied PWs. 1 and 2 to the spot and witnessed the incident in question. Thus, he claims to be an eye witness to the occurrence alongwith PWs. 1 and 2. He substantially supports the version of PWs. 1 and 2 regarding the occurrence. Thus PWs. 1, 2 and 14 are the eye witnesses to the occurrence. PW-15 Mallikarjuna Swamy is a panch witness for the spot panchanama Exhibit P-2, for the seizure of the clothes of the deceased under a panchanama Exhibit P-6 and for the recovery of MOs. 1 and 2 at the instance of the accused No. 4 Thomas under the two panchanamas Exhibits P-7 and P-8. PW-16 Kantharaju had been a resident of the same village and during the relevant time of this incident, he was in his house at the village and on learning about the assault on the deceased, he was proceeding to the spot, but on the way he saw the deceased being brought by PWs. 1, 2 and 14 and subsequently, they put the deceased into the DAR van for being taken to the hospital for treatment. He had accompanied the deceased to the hospital alongwith PW-1 in the DAR van, He substantially corroborates the version of PWs. 1, 2 and 14 on the material aspects of the case. PW-17 Basavaraju is the Investigating Officer, who took up the further investigation of this case from the ASI PW-10 and after completion of the investigation, he had submitted the charge sheet to the Court against all these accused persons. This in short is the summary of the evidence adduced at the trial by the Prosecution.

The accused when examined u/s 313 Cr. PC have denied all the incriminating circumstances appearing against them in the prosecution evidence. They have stated that they did not commit any crime and that they have been falsely involved in the case. They have further stated that they have been residing in the same street viz., Shanti Beedhi in Mamballi village. They did not however either examine themselves or examined any witness on their behalf. The defence of the accused appears to be one of a total denial of the prosecution case.

The Trial Court on consideration of the entire materials placed on record by the prosecution and after hearing the submissions on both sides, has convicted and sentenced the accused persons A1 to A4 in the manner as stated supra. Hence these two separate appeals filed by the convicted accused persons challenging their conviction and sentence passed by the Trial Court.

Learned counsel for the accused no. 4 in Crl. A. No. 1129/2000 has contended in support of their appeal as under:

That the antecedents of the deceased Dharma were very bad in as much as he had come out of the jail only about 4 days prior to the incident. That further, even as per the prosecution case, none of the accused persons were armed with any weapons and more particularly, the allegation against the accused no. 4 Thomas is that he had only fisted or assaulted with hands. That in the instant case, the act of each of the accused persons is independent and it cannot be co-related to the other. There is absolutely, no common intention on the part of any of the accused persons or at any rate on the part of the accused no. 4 Thomas that such offence was likely to be committed. The deceased Dharma was a rowdy sheeter and a number of cases were pending against him. That apart, the deceased by nature was very violent person. Hence the possibility of the deceased being assaulted by some other person could not be ruled out looking to the kind of person the deceased was. With regard to the motive is that he had borrowed a loan from the deceased, but there is no other evidence except the evidence of PW-1 Mahesh to show that the accused had borrowed any loan from the deceased. Also there was no documentary evidence evidencing the loan transaction between the accused no. 1 and the deceased. PW-1 Mahesh being a brother of the deceased is an interested witness and hence, his evidence is to be scrutinised with extra care and caution. That in the instant case, the incident in question took place on a day when there was a festival in the village and there was a tight security arrangement in the village in connection with the said festival. Even the DAR Police van was also camping in the village. The incident in question is alleged to have taken place in the heart of the village. That being so, the delay in lodging the FIR in the case will assume importance. That in so far as the accused no. 4 is concerned, the allegation is that he had only assaulted with hands, but strangely the recovery has been effected at the instance of the accused no. 4 with regard to the weapon with which the deceased was stated to have been assaulted. The panch witness for the alleged recovery has not supported the recovery at the instance of the accused no. 4. That apart, the prosecution material placed on record would show that the material objects, which were alleged to have been used in the commission of the offence, were lying at the scene of incident. That being so, the recovery at the instance of the accused no. 4 is farce more so when the so called eye witness PWs 1, 2 and 14 have stated that the accused threw the weapons at the spot and ran away from the scene of incident. Therefore, the alleged recovery at the instance of the accused no. 4, who has admittedly not used any weapon at all is concocted and the same cannot be believed. There has been a delay of about 5 1/2 hours in lodging the FIR to the Police though the Police Station was situated at a distance of about 200 yards and in order to take the deceased to the hospital, one has to pass in front of the Police Station. The deceased Dharma, who had many enemies in and around the village had been killed by some person and the blame was sought to be put on these accused persons taking advantage of the fact that the houses of these accused persons were situated within the vicinity or proximity of the scene of incident. There has been no discussion by the Trial Court regarding the sharing of common intention by any of these accused persons before holding them guilty u/s 302 IPC with the aid of Section 34 of IPC. Even assuming that such an incident has taken place, the act attributed to the accused no. 4 Thomas would at the most attract the offence under Sections 323 or 324 of IPC and the accused no. 4 has been in custody for more than 5 years and the same may be treated as sufficient and adequate.

On our request, the learned counsel for the accused no. 4 having argued the matter on behalf of the other accused, he contended that the case of the accused no. 3 stands on the same footing as that of the accused no. 4. In so far as the accused no. 2 is concerned, the allegation is that he had picked up a club, which was lying near by and assaulted the deceased on his head and hence, the act attributed to accused no. 2 by the prosecution would at the most attract the offence u/s 326 of IPC as he had no intention to cause the death though he may be attributable with the knowledge that such act is likely to cause death. Coming to the accused no. 1, he contended that the allegation against him is that he had dropped the stone over the head of the deceased and hence, even assuming that he had knowledge that it is likely to cause death, there was no intention on the part of the said accused no. 1 to commit the murder and that therefore, the act committed by the accused no. 1 would only attract the offence u/s 304 part II of IPC.

Learned counsel for the appellants has relied upon the following decisions in support of his submissions:

(a) Kanbl Nagji Kala and Others Vs. The State

(b) Hardev Singh and Another Vs. The State of Punjab,

(c) Bhaba Nanda Sarma and Others Vs. State of Assam,

(d) Jai Bhagwan and others Vs. State of Haryana,

(e) Rajendra Singh and Others Vs. The State of Bihar,

While placing reliance upon these decisions, he vehemently contended that in the instant case, there is not even an iota of evidence to show that all the accused persons had shared a common intention to commit the murder of the deceased and in the absence of any such common intention preceding to the act, each individual accused will be liable for the individual acts committed by them.

Apart from the oral submissions made by the learned counsel for the appellant, he has also filed his written argument, which is taken on record.

On going through the written statement, we find that he has reiterated the oral submissions made before the Court.

As against this, the learned Addl. SPP for the respondent - State has contended as under:

That in the instant case, PWs 1, 2 and 14 are the direct witnesses to the incident in question, who had actually seen the assault committed on the deceased and there is absolutely no reason to discard their evidence. Their evidence would clearly indicate that accused nos. 3 and 4 assaulted with hands and accused no. 2 with a club and as a result of such assault committed on the deceased, the deceased fell to the ground, the accused no. 1 dropped the stone on the head of the deceased. The evidence would further show that the accused no. 1 - Madhu had actually fetched the deceased from his house on certain false pretext and the assault was committed in front of the house of accused no. 3, which was a pre-arranged and pre-planned one. The accused persons A-2 to A-4 were already there at the spot even prior to the incident. Each one of them had participated in the assault committed on the deceased and the combined effect of the acts committed by all these accused persons had resulted in the death of the deceased. Under the circumstances, therefore, there was a common intention on the part of all these accused persons to cause the death of the deceased and hence, the Trial Court was justified in convicting the accused u/s 302 IPC with the aid of Section 34 of IPC.

Having heard the submissions on both sides and having carefully perused the decisions relied upon by the learned counsel for the appellants and the entire materials placed on record by the prosecution in the light of the submissions made on both sides, the question for consideration is whether the impugned Judgment and Order of conviction and sentence passed by the Trial Court against these accused persons A-1 to A-4 warrants any interference in the appeal by this Court?

The fact that the deceased Dharma @ Dharmaraj had died a homicidal death does not appear to be in serious dispute. Even otherwise there is ample material on record to establish this fact.

The doctor PW. 11 who conducted the post mortem examination on the dead body of the deceased and has issued the post mortem report as per Ex. P-9, had found the following external ante mortem injuries on the dead body of the deceased:

1) Obliquely situated lacerated wound on the right frontal region measuring 2 1/2" x 1/2" x bony deep with the compound fracture of underlying frontal bone.

2) Obliquely situated lacerated wound on the lateral aspect of the right eye brow 1 1/2" x 1/2" into bony deep with fracture of underlying bone.

3) Compression at the root of the nose with fracture of nasal bone.

4) Lacerated wound on the right side of the lower lip 1/2" x 1/4".

5) Abrasion on the anterior aspect of the right leg 1/2" x 1/4"

On dissection of the dead body of the deceased he found the following internal injuries and features:

1) Fracture of right side of the frontal bone of the skull, fracture of right orbit, fracture of nasal bone with crushing of right eye ball.

2) The membrane of the frontal region was ruptured.

3) Brain matters of right anterior part of the brain was crushed.

The internal injuries to the skull were found to correspond with the external injuries no. 1, 2 and 3.

As to the cause of death of the deceased, he has clearly opined that the death of the deceased was due to shock and haemorrhage as a result of the injuries to the brain and skull.

He has further opined that if the victim is assaulted with the material objects like the stone MO. 1 and the club MO. 2, the injuries found on the dead body of the deceased could be caused and they were sufficient in the ordinary course of nature to cause the death.

Under the cross-examination of the doctor PW. 11, it is elicited by the defence that on the reverse of the requisition given by the police for autopsy, it was mentioned by the police that the injuries were sustained because of the assault with a size stone and a club of Gobbali tree. There was a smell of alcohol in the contents of the stomach of the dead body of the deceased. He had also found semi-digested food in the stomach as well as in the small intestine and faecal matter in the large intestine. He has stated that it may be within 3 to 4 hours before the death, the deceased could have consumed food. Further on the basis of the presence of the rigor martis on the deed body of the deceased he had given his opinion about the time since death. The autopsy was conducted on the dead body of the deceased during the rainy season in the month of July 1997. He has denied the suggestion made by the defence that all the external injuries that were found of the dead body of the deceased were superficial in nature. He has further stated that the external injuries that were found on the dead body of the deceased could not have been caused with a single blow. Further the injuries no. 2 and 3 seen externally on the dead body of the deceased could be caused due to a hit with a stone and the other injuries could be caused with the club or by coming into contact with the hard surface. He has stated that when a stone like MO. 1 is thrown on the face of the victim, it could cause such injuries. There were however no crash injuries on the frontal region, but the right orbit was crushed and the eye ball had also lost its shape. These are the answers obtained by the defence in the cross-examination of the doctor PW. 11.

There is nothing in the cross-examination to discredit the version of the doctor PW. 11 with regard to the nature of the injuries that were found on the dead body of the deceased and the cause of death of the deceased. Apart from this, even the answers obtained in the cross-examination would probabilise the case of the prosecution.

It is thus clear from the evidence of the doctor PW. 11 supported by the post mortem report Ex. P-9 that the deceased had died of violence and it was a homicidal death.

Apart from the evidence of the doctor PW. 11, the objective finding recorded by the Investigating Officer PW. 17 in the inquest report Ex. P-3 after holding the inquest proceedings on the dead body of the deceased would also indicate that the deceased had died of violence.

Therefore, from the medical evidence of the doctor PW. 11 and the objective findings recorded by the Investigating Officer PW. 17 in the inquest report Ex. P-3 during the inquest proceedings held on the dead body of the deceased as well as from the other attending circumstances which are established by the prosecution, it can safely be concluded that the deceased Dharma @ Dharmaraj had died a homicidal death.

Now the most crucial question for consideration is "who caused the homicidal death of the deceased?"

To establish this fact, the prosecution has mainly relied upon the evidence of the three eyewitnesses PWs. 1, 2 and 14 corroborated or supported by the other evidence on record including the evidence of PWs. 5, 13 and 16.

Out of the three eyewitnesses examined by the prosecution, PW. 1 Mallesh besides being an eyewitness was the first informant of the occurrence to the police. He had lodged the First Information Report of the occurrence as per Ex. P-1 to the police.

At the relevant time of this incident Mallesh PW. 1, who is an younger brother of the deceased, was residing with the deceased in the same house situated at Rangadabeedi in Mamballi village. He has stated that on 21.7.1997 at about 5.45 p.m in the evening, the accused no. 1 Madhu, came near their house and took the deceased along with him on the pretext or on a representation to pay his dues. When the deceased did not return home even after a lapse of about half an hour, he went along with PWs. 2 and 14 towards the house of the accused no. 1 situated at Shanti street in Mamballi village. They had so proceeded towards the house of the accused no. 1 on that day at about 6.30 p.m in the evening. When they were approaching or when they were coming near the house of the accused no. 1, he saw from a distance of about 20 ft. that near the house of the accused no. 3, his brother deceased Dharma being assaulted with hands by A-3 and A-4. At that time, the accused no. 1 Madhu and the accused no. 2 Lokesh were also there along with or in the company of A-3 and A-4. When the deceased fell down to the ground, the accused no. 2 Lokesh picked up a club MO. 2 which was lying nearby and assaulted the deceased on the right side of the head with the club MO. 2. Then the accused no. 1 Madhu lifted the stone MO. 1 which was lying near by and dropped it or assaulted with it on the head of the deceased. The entire incident of assault was over within a span of a few seconds. On seeing such ghastly incident of assault committed on the deceased, he cried out loudly and on hearing the cries, the accused ran away from the spot. The said incident of assault was also witnessed by PWs. 2 and 14 who were with him at that time. Thereafter, they all went near the spot where the deceased was lying with bleeding injuries over the head. They physically lifted the deceased and brought him to the main road in order to take him for treatment to the Government Hospital at Kollegal. The deceased was removed to the hospital in the DAR Van for treatment. He had accompanied the deceased in the van to the hospital. The doctor who examined the deceased in the Government Hospital at Kollegal at about 7.00 p.m., reported him to be dead. Then the dead body of the deceased was deposited in the mortuary of the hospital. Thereafter, he returned back to the village and lodged the First Information Report of the occurrence as per Ex. P-1 to the police at about 11.00 or 11.30 p.m. in the night. He was present during the inquest proceedings held on the dead body of the deceased and that his statement was also recorded during the inquest proceedings by the Investigating Officer. He had also pointed out the crime spot to the Investigating Officer and has attested the spot panchanama Ex. P-2 which was recorded by the Investigating Officer after observing the scene of incident in the presence of the panchas.

The motive attributed to the accused for committing the crime is to avoid payment of the dues to the deceased by the accused no. 1. The accused no. 1 Madhu who had borrowed a loan of Rs. 10,000/- from the deceased was dodging to repay the same to him. All these accused are friends and they were residing in the near vicinity or in close proximity in the same street.

Under the cross examination done by the defence, the complainant PW. 1 has stated that on 21.7.1997 when his brother had left the house, the time then might be about 5.45 p.m. He has stated that at about 5.45 p.m in the evening, the procession of the deity had arrived near their house and since their mother was not well, both he and his brother performed pooja to the deity when the procession came near their house on that evening. When the procession had left their street, it was 5.45 p.m in the evening. He has stated that his brother did not accompany the procession. The accused no. 1 came near their house after about 5 minutes of the procession had left their street. He has further stated that PW. 2 Mahesh is not his friend. But at that relevant time, he was sitting by the side of their house. He has further stated that they went following the deceased after about half an hour of the deceased leaving the house. When the accused no. 1 took his brother along with him, at that time, he did not have any apprehension about the danger to the life of his brother. He has stated that immediately after the incident, he did not go and inform the occurrence at their house and on the other hand, he straight away brought the deceased from the spot to the main road. PW. 2 Mahesh did not accompany him to the hospital. He has stated that when they brought the deceased to the main road, they found the presence of the DAR police. After the incident when they carried the deceased from the spot to the main road, there may be about 1 or 2 persons moving in the street. He has stated that when the galata took place, they had cried out loudly, but no one came to the spot. The distance between Mamballi village and Kollegal is about 8 Kms and they reached Kollegal by travelling in the DAK van at about 7 p.m in the evening. The doctor at the hospital had immediately examined the deceased as soon as they took the deceased to the hospital. After the dead body of the deceased had been deposited in the mortuary at the Government hospital at Kollegal, he had returned to the village at about 11.30 p.m in the night. Before returning to the village, he had got prepared the complaint at the hospital itself and at that time, neither his father nor his friends were present. He alone prepared the complaint at the hospital by securing a paper from a shop situated nearby the hospital. When he prepared the complaint Ex. P-1, he was in a sad mood on account of the death of his brother. When he prepared his complaint Ex. P-1, he had full memory of the incident. He admits that in his complaint Ex. P-1 the words had been written in a different ink and he states that the same came to be mentioned by him while presenting the complaint to the police at the Police Station having noticed the said omission in his complaint. When they shifted the deceased from the spot, his hands were blood stained and he washed his blood stained hands at the hospital. He took about 15 minutes to prepare the complaint Ex. P-1 at the hospital. He has denied the suggestion made by the defence that having left Kollegal at about 7.30 p.m in the night, he had reached Mamballi village at about 8.00 p.m in the night. He admits the fact that there is bus conveyance from Kollegal to Mamballi till 1.00 p.m in the night. On that day, he had returned to the village from Kollegal by travelling in a bus. He does not know that by the time, he could return to the village from the hospital, the news regarding the murder of his brother has already been spread in the village. He did not observe whether the Head Constable Guruswamy P.W. 13 had accompanied the deceased in the DAR van when they took the deceased to the hospital. But there were certain police personnel in the DAR van but he cannot say about their identity. He has stated that when they reached the hospital at Kollegal it was 7.15 p.m in the evening. When the dead body of his deceased brother was being taken to the hospital, he had noticed the presence of PW. 13 Guruswamy. He has further stated that till they reached the hospital, he did not inform of the occurrence to any other person except the police personnel who were present in the DAR van. At the hospital in Kollegal he had informed the occurrence to the police personnel who were then present at the hospital. He admits the presence of PW. 13 at the hospital. He has further stated that his friend Kantharaju PW. 16 had also accompanied him to the hospital in the DAR van. He has stated that he did not observe as to where PW. 2 and PW. 14 who had accompanied him up to the van, had went after the deceased was put into the van. He had seen PW. 14 Mukunda in the village after about 2 or 3 days of his returning to the village from the hospital. The said PW. 14 Mukunda was in the village itself. Before he could meet PW. 14 Mukunda, the news was already spread in the village about his brother being assaulted and killed and the same was also published in the news paper. He has stated that when the inquest proceedings were held on the dead the hospital. He was also present at the time when the spot mahazar was drawn at the spot and at that time, he did not find the presence of the stone MO. 1 at the spot. He has stated that having seen the stone MO. 1 at the time of the incident, he did not see the said stone again. He has further stated that by the time he could reach Shantibeedi, no other persons had gathered there. He has further stated that the distance from the drain of Shantibeedi to the house of the accused no. 3 Shivanna may be about 50 ft. When he was near the said drain, he had seen his brother deceased Dharmaraj being assaulted near the house of the accused no. 3 Shivanna. He has stated that at the end of Shantibeedi, there is a narrow cross road where there are three residential houses and the house of the accused no. 3 Shivanna was one among them. Before he could reach near the house of the accused no. 3 Shivanna, his brother deceased Dharmanna had not fallen to the ground. He has further stated that when he first saw the incident, he found the deceased being assaulted or fisted by the accused nos. 2 and 4. The accused no. 4 Thamos was having one house in Siddeshwara extension and another house in Shantibeedi. The house of the accused no. 4 Thamos situated in Shantibeedi was at a short distance from the house of the accused no. 1 Madhu. When he first saw his brother deceased Dharma being assaulted by the accused nos. 2 and 4, he did not find the presence of any weapons in their hands. But within about 2 seconds they picked up the weapons from near the house of the accused no. 3 Shivanna. On being questioned by the defence counsel that why they did not go to the rescue of the deceased when they were in the process of picking up the weapons, he has stated that since the incident in question had occurred within about 2 seconds, it was not at all possible for them to go to the rescue of the deceased. He has stated that on seeing such assault committed on the deceased, he had cried out and at that time, both PW. 2 and PW. 14 were by his side at a short distance from him. After the accused picked up the weapons, the first assault that was committed on the deceased was on his head and the said blow was inflicted by the accused no. 2 Lokesh. On being so assaulted by the accused no. 2 Lokesh, the deceased collapsed to the ground. He has denied the suggestion made by the defence that he along with his brother and 2 companions had chased the accused no. 3 Shivanna to assault him and that at that time, they had also thrown or pelted the stones over the house of the accused persons and in that regard, a complaint was also given to the police. He has further stated that after sustaining the blow on the head, the deceased had fallen to the ground facing towards the sky. There were no stones on the spot where the deceased had fallen to the ground. But there was a stone lying at a distance of about 3 to 4 feet from the place where the deceased had collapsed to the ground He had reached the spot within about 5 seconds of his brother having fallen to the ground. He has further stated that when they cried out, all these accused persons ran away from the spot. But before they could run away from the spot, the accused no. 1 Madhu had dropped the stone on the head of the deceased. The accused no. 1 Madhu ran away from the spot after jumping the fence. He has stated that in his statement made before the police, he did state that the accused no. 1 had picked up the stone which was lying near by and had forcibly assaulted with that stone on the head of the deceased. According to him, the words and means one and the same thing. He has further stated that on the next day when he pointed out the spot to the police, the stone MO. 1 was not lying there. Similarly no club was also lying there. He has stated that the birth place of the accused no. 1 Madhu is Mulluru, but he has been residing at Mamballi village. He admits that the accused no. 2 Lokesh had been employed in Bangalore and so also the accused no. 3 Shivanna. He has stated that all these 4 accused persons have been moving together in the village since about 2 days prior to the festival in the village. With regard to the loan borrowed by the accused no. 1 from his deceased brother, he has stated that there is no document evidencing the loan, nor he was present at the time when the loan was advanced to the accused no. 1. But he was told by his brother that he had advanced loan to the accused no. 1. His brother had also advanced loans to other 25 to 30 persons in the village. His brother used to recover the interest from his debtors. But he never used to scare his debtors and he was only abusing them when they were not paying the interest. He has clearly denied the suggestion made by the defence that some other person who had borrowed the loan from his brother had assaulted and killed his brother and that he has given a false complaint to the police against the accused no. 1.

There is nothing in the lengthy cross-examination done by the defence to PW. 1 to disbelieve his version with regard to the incident in question being witnessed by him. He has not suffered any contradictions or omissions which are of vital in nature. There is no reason to doubt the occurrence being witnessed by PW. 1. On the other hand, the answers elicited in the cross-examination of PW. 1 will further confirm the fact that in all probability he had witnessed the incident in question. It is pertinent to note that the defence did not dispute the presence of PW. 1 at the spot. This is because according to the defence PW. 1 along with the deceased and others had chased the accused and pelted stones at them. And in that regard it is stated that a complaint was lodged to the police. No such complaint is however forthcoming. But the fact that remains to be seen is that an untoward incident took place on that hour of the day. The evidence of PW. 1 would clearly indicate that the deceased was taken from his house by the accused no. 1 Madhu on the pretext of repaying his dues. PW. 1 was very much present at that time in the house and he saw the deceased being taken away by the accused no. 1 along with him. When the deceased did not return back even after about half an hour or so, it is quite natural for PW. 1 to become anxious and accordingly he went along with PW. 2 and PW. 14 towards the house of the accused no. 1 and while they were so proceeding towards the house of the accused no. 1, they witnessed the incident in question from a distance of about 20 ft. or 50 ft. The evidence of PW. 1 in the circumstances appears to be quite natural and probable. It has to be pointed out that having regard to the previous experience of PW. 1 that the accused no. 1 was dodging to repay the loan, it is quite natural for PW. 1 to become anxious when the deceased did not return back even after a lapse of about half an hour or so. The mere fact that PW. 1 is the brother of the deceased, is no ground to discard his evidence. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyze the evidence to find out whether it is cogent and credible, It is now well settled that 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 relation would be the last 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 guilt, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness should not be relied upon, has no substance. This theory was repelled by the Hon''ble Supreme Court as early as in the case of Dalip Singh and Others Vs. State of Punjab, wherein the Hon''ble Supreme Court has observed as under:

Para. 25. We are unable to agree with the learned Judges of the High Court that the testimony of two eye-witnesses requires corroboration. If the foundation for such an observation is based on the tact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased, we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - Rameshwar Vs. The State of Rajasthan, We find, however, that it is unfortunately still persists, if not in the Judgments of the Courts, at any rate in the arguments of counsel.

In the instant case, there is nothing on record to show that there is any reason for the complainant PW. 1 to falsely implicate the accused persons in such a ghastly incident and no such foundation has been laid by the defence. That apart, the evidence of the complainant-PW. 1 finds substantial support from the evidence of the two independent witnesses PW. 2 and PW. 14. They are totally independent witnesses. We have not been pointed out any strong grounds to disbelieve their evidence. It is needless to point out that strong grounds must exists to disbelieve such witness who have no motive to falsely implicate the accused. Both PW. 2 and PW. 14 are the residents of the same locality having their house within the close proximity of the house of the deceased and PW. 1. On that relevant day, they had come near the house of the deceased to watch the religious formality performed near the house of the deceased on account of the festival in the village. Therefore, they are the most natural and probable witnesses to have accompanied PW. 1 and witnessing the occurrence. They cannot therefore be said to be chance witnesses. The First Information Report Ex. P-1 makes mention of these two witnesses PWs. 2 and 14 being the eyewitnesses to the occurrence. Under the circumstances, therefore, the mere delay in recording their statements by the Investigating Officer will be of no consequence.

The evidence of the complainant-PW. 1 further stands corroborated from the FIR Ex. P-1. No doubt there was some delay in lodging the FIR Ex. P-1 to the police. But that by itself is not sufficient to draw the adverse inference against the prosecution case. There is no hard and last rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon the facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this, a host of circumstances like the mental condition of the first informant, the efforts made to provide medical aid to the victim, the distance of the hospital and the crime spot as well as the Police Station etc., have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of the delay in lodging the FIR. In this connection, a reference may be made to a decision of the Hon''ble Supreme Court in the case of "Tara Singh and others v/s. The State of Punjab" reported in AIR 1991 SC Page 63 wherein it is observed as under:

The delay in giving the FIR by itself cannot not be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-sticken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go the police station for giving the report. Of course in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the Courts should be cautious to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be. scrutinised carefully. However, unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are the matters for appreciation and much depends on facts and circumstances of each case.

In the of "Zahoor and others v/s. state of U.P" reported in AIR 1991 SC Page 40 it was held that the mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication. The same was reiterated in the case of Jamna and others Vs. State of Uttar Pradesh, wherein it is held that the delay by itself is not a circumstance to doubt the prosecution case.

The facts and circumstances here do not in any way indicate the fabrication of the FIR and on the other hand, it would show that the complaint Ex. P-1 came to be lodged with the police by the complainant PW. 1 immediately on his return to the village after the dead body of the deceased was deposited in the mortuary of the Government Hospital at Kollegal where he was taken for treatment. In fact certain answers obtained by the defence in the cross-examination of PW. 1 would show that the complaint Ex. P-1 had been prepared by the complainant himself without the assistance of any ether person at the hospital itself.

More over in this case, the deceased was immediately shifted to the hospital at Kollegal for the purpose of treatment and there, he was declared to be dead. It is only thereafter the complainant PW. 1 returned to the village and lodged the First Information Report Ex. P-1. By blaming the complainant PW. 1 for not lodging the FIR earlier than 11.30 p.m in the night on 21.7.1997, we are reaching neither here nor there. We cannot shut our eyes to the reality that for the complainant PW. 1, it was his elder brother who was brutally assaulted in front of his eyes. If he has taken a couple of hours to take the deceased to the hospital and to regain his composure to go the Police Station for lodging the complaint, it only sounds as normal conduct of a bereaved brother in the aforesaid circumstances. Therefore, we find no justification to use the short delay for denouncing the core of the prosecution story.

So far as the inaction of PWs. 1, 2 and 14 in not going to the rescue of the deceased is concerned, it has come in the evidence that they witnessed the occurrence from a distance of about 20 or 50 ft and that the entire incident in question was over within a short span of time. As soon as they witnessed the incident of assault on the deceased, they cried out loudly and on hearing their Moreover, how a person would react in a situation like this cannot be encompassed by any rigid formula. It would depend on many factors like in the present case where the incident in question appear to have been over within a few seconds even before the complainant PW. 1 and his companions PWs. 2 and 14 could reach the spot where the deceased was being assaulted by these accused persons. In fact, when a specific question was put to PW. 1 in the cross-examination by the defence, whether they did not go to the rescue of the deceased, he has clearly stated that since the incident in question had occurred within a few seconds, it was not at all possible for them to go to the rescue of the deceased. It appears that when they first witnessed the incident of assault, they were at a distance of about 20 ft. or 50 ft. from the spot where the deceased was being assaulted and before they could rush to the spot, the deceased fell down and the accused nos. 1 and 2 inflicted the injuries hastily and ran away from the spot. Under the circumstances, therefore, it appears that though there was an attempt made on the part of the complainant PW. 1 and his companions to go to the rescue of the deceased, they could not save him. because the entire incident took place within a few seconds and before they could reach the spot. That being the position, their inaction in not going to the rescue of the deceased cannot be a ground for discarding their evidence.

Their evidence would further find corroboration from the medical evidence placed on record of the doctor PW. 11. In fact, the defence itself has elicited in the cross examination of the doctor PW. 11 that the external injuries found on the dead body of the deceased could not have been caused with a single blow and the injuries no. 2 and 3 seen externally on the dead body could have been caused if hit with a stone and the other injuries could have been caused with a club. It is further elicited by the defence in the cross-examination of the doctor PW. 11 that when a stone like MO. 1 is thrown on the face of the person, it would cause such injuries. Though there were no crush injuries on the frontal region, but the right orbit was crushed and the eye ball had also lost its shape.

Apart from the above, their evidence finds corroboration from the evidence of PW. 5, PW. 13 and PW. 16.

PW. 5 was the driver of the DAR vehicle which was stationed on that day in the village on special duty for maintenance of law and order situation on account of the festival in the village. He has stated that when they were on the main road in the village, the ASI of their arm forces informed that some one had been assaulted and that he is to be taken to the hospital at Kollegal. Then some three persons of the village brought the injured and put him into the DAR van for being taken to the hospital. Accordingly, the injured was taken for treatment in their van to the Government Hospital at Kollegal After the injured was taken into the hospital, it was informed that he is dead. Under the cross-examination done by the defence, he has stated that on 20.7.1997 he had reported for the bandobast duty. In the log book maintained in the vehicle, he has written or made an entry with regard to the movement of the vehicle from one place to the other. He has stated that on 21.7.1997 at about 9.00 a.m in the morning, they might have gone to Mamballi village for bandobast duty. The vehicle was made to station on the main road called "Kollegala Main Road" and the place where the vehicle was so stationed was situated at a distance of about 200 yards from the Police Station of Mamballi village. The injured was brought to the place where the vehicle had been stationed or parked on the main road. He had been instructed by the ASI to take the injured in the DAR Van to the hospital for treatment. He has further stated that the injured was brought by three persons near the vehicle. The persons who had accompanied the injured to the hospital in the DAR Van were saying that they would lodge a complaint to the police.

PW. 13 who was working as the Head Constable in the Police Station at Mamballi village has stated that on 21.07.1997 from 1.00 p.m to 9.00 p.m he was the SHO of the Police Station. On that day, there was a festival or fair in the village. At about 6.50 p.m in the evening on that day, i.e., on 21.7.1997 some one came to the Police Station and gave information that the deceased Dharma had been assaulted by some persons and that he had sustained bleeding injuries. No further details were given by that person. He immediately proceeded towards the Shanti Street. While he was so proceeding, he found that the deceased was being brought by some three persons and put into the DAR van. He has also accompanied the deceased in the DAR van to the hospital. Some of the villagers had also accompanied the injured to the hospital and one among them was the brother of the deceased namely PW. 1. The doctor who examined the injured at the hospital declared him to be dead. He deposited the dead body of the deceased in the mortuary of the hospital and informed the said fact to their Police Station. The ASI who was available at that time in the Police Station informed him to remain at the hospital and accordingly he had remained at the hospital. Subsequently, he had also attended the post mortem duty. Under the cross-examination done by the defence, he has stated that he had written about his daily duties in his dairy. That is to say, he had made entries about the duties done by him on that day in the Station House Dairy. He has stated that in order to go to Shantibeedi from their Police Station, one has to go along the main road situated in front of the Police Station to a distance of about 2 furlongs and thereafter, one has to take a left turn. By the time he could take a turn to go to Shantibeedi, the injured was being brought by the persons by physically carrying him. The injured was brought along the main road. The DAR van was under the custody and control of the Circle Inspector. But he being a Station House Officer had been authorized to give instructions for the movement of the said DAR Van which was stationed in the village. He has further stated that the brother of the injured by name Mallesh PW. 1 did not speak to him while the injured was being carried to the hospital in the DAR van. But while proceeding to the hospital along with the injured in the DAR van, he was able to make out that a cognizable offence has been committed. When he spoke to the ASI at the Police Station by means of telephone, he had narrated all these facts to him. The said ASI Pandu did not give any instruction to him to send the complainant PW. 1 Mallesh to the Police Station. He cannot say as to how long the complainant PW. 1 had remained at the hospital in Kollegal. Similarly, he cannot say what was the time when he had contacted the ASI Pandu at the Police Station. He returned back to the Police Station at about 2.00 p.m on 22.7.1997 and at that time, the complainant PW. 1 Mallesh was not present at the Police Station. He admits that the deceased Dharmaraj was a Rowdi Sheeter of their Police Station and a few cases had been registered against him. He has staled that when he was present at the Police Station, someone came and gave information that someone had assaulted the deceased and he did not say that some miscreants had assaulted the deceased. Whatever that was narrated by the complainant PW. 1 to him at the hospital regarding the occurrence, was not recorded to writing by PW. 1 in his presence at the hospital. He did not also instruct the complainant PW. 1 to go to the Police Station and give a complaint in writing regarding the occurrence. He has clearly denied the suggestion made by the defence that after the deceased Dharmaraj was declared to be dead, he along with the complainant PW. 1 got prepared a complaint regarding the occurrence. Thus PW. 13 has clearly stated that there was no deliberation between him and the complainant PW. 1 in preparing the complaint Ex. P-1 at the hospital. In fact, even in the cross-examination done by the defence on PW. 1, it is elicited that at the time of drafting of the complaint he did not have any relatives or Mends with him.

PW. 16 Kantharaju who is a resident of Mamballi village has stated that on that relevant day at about 6.30 p.m, in the evening, while he was in his house, he learnt about the assault committed on the deceased. He immediately rushed towards the spot. At that time, he saw the deceased being brought by PWs. 1, 2 and 14. He had also assisted them in putting the deceased into the DAR van for being taken to the hospital. He had also accompanied the deceased in the station van to the hospital. While they were so proceeding in the van, he was informed by PW. 1 about the occurrence. He returned home from the hospital at about 8.30 or 9.00 p.m in the night. Under the cross-examination done by the defence, he has stated that he came to know about the assault committed on the deceased while he was at his house. But at that time, he only came to know that the deceased Dharma had been assaulted by some persons. When he left the house after coming to know of such incident, it was already 6.00 or 6.15 p.m in the evening. By the time he could reach the spot where the injured had fallen on the ground, the police had not yet arrived on the spot. But the police van was standing on the main road. By the time he could actually go to the spot, the injured was being brought by PWs. 1, 2 and 14 by physically carrying him, The police van which was standing on the main road was the DAR van. On that day since there was a festival in the village, the police personnel were following or accompanying the procession. When he was running to the spot by saying that the deceased Dharma had been assaulted, he did not find the presence of any police personnel there. It is a fact that while proceeding from his house to the place of incident, he has to pass through the main road of their village where the Police Station is situated. But he did not so to the Police Station while proceeding to the spot from his house to inform the police that the deceased Dharma had been assaulted. He has further stated that the injured was taken to the hospital in the DAR van by Mallesha PW. 1 and Mukunda PW. 14 and that he had also accompanied the injured to the hospital in the same van. He has again stated that PW. 14 Mukunda did not travel along with them in the DAR van to the hospital and on the other hand, he got down from the DAR van there itself. While the deceased was being taken to the hospital in the DAR van, the complainant PW. 1 appear to be highly tensed and scared or frightened. But even then, he did talk to the complainant PW. 1. He had asked the complainant PW. 1 as to how the incident in question had occurred and who had assaulted the deceased Dharma. But at that time, the Head Constable Guruswamy of Mamballi Police Station was not there in the DAR van, he was not told by the complainant PW. 1 that the deceased was assaulted with hands by three persons and with a club by one person. He was also not told by the complainant PW. 1 that the accused no. 1 Madhu had assaulted the deceased with "Dindukallu" by lifting it. He has denied having stated before the police as per Ex. D1. He has further stated that after going to the hospital, he did not stay along with PW. 1 at the hospital and on the other hand, he had returned to the village. When he returned to the village from the hospital, the time then might he 8.30 or 9.00 p.m in the night. He has stated that since he was very much scared and frightened by the incident, he did not go and inform the incident to the Police Station. He has stated that he is in no way related to the complainant PW. 1.

The evidence of these three witnesses will substantially corroborate or support the version of PWs. 1, 2 and 14 on certain material aspects of the case and it clearly probabilises their presence at the time of the incident.

The recovery of the blood stained earth from the spot would show that the occurrence took place near the house of the accused no. 3. It is not in dispute that the houses of the other accused persons were situated within the near vicinity of the house of the accused no. 3.

It is to be seen therefore, that the evidence of the three eyewitnesses PWs. 1, 2 and 14 will find sufficient assurance from the other attending circumstances in the case and the medical evidence. When once the evidence of PWs. 1, 2 and 14 is held to be trustworthy, there does not seemed to be any cogent reason for not acting upon their evidence. To decline to act upon the testimony of these witnesses PWs. 1, 2 and 14 merely because of the absence of the other witnesses to corroborate them in court is to defeat the cause of justice in the present case. There is no general rule that the evidence of the relations and the acquaintances of the deceased must be corroborated for securing the conviction of the accused persons. Each case depends on its own facts and circumstances. There is, we think absolutely no justification for the view that their testimony leaves any scope for reasonable doubt about the complicity of the accused persons. Because of the relationship of PW. 1 with the deceased and the acquaintance of the deceased with PWs. 2 and 14, they cannot be considered to be inclined to spare the real assailants for falsely involving the accused persons and in deed in the circumstances of this case, there is hardly any scope for such a hypothesis. To us, there appears an intrinsic ring of truth in the statements of the 3 eyewitnesses PWs. 1, 2 and 14 which disclose no infirmity. In the present case, the straight forward nature of the deposition of these three witnesses and the fact that they were undoubtedly in a position to identify the assailants of the deceased coupled with the recovery of the blood stained earth from the place of occurrence leave no reasonable doubt about the guilt of the accused persons. There is no reason to doubt the complainant PW. 1 having followed the deceased to the house of the accused no. 1 along with his two companions PWs. 2 and 14 as he had seen the deceased being taken by the accused no. 1 along with him on the pretext of repaying the loan. When the deceased did not return back even after a lapse of about half an hour, it is quite natural to cause anxiety in the mind of the complainant PW. 1, who is none other than the brother of the deceased and under the circumstances, if he had followed the deceased to the house of the accused no. 1 along with his companions PWs. 2 and 14, it cannot be said to be unnatural and on the other hand, it appears to be natural in the circumstances of the case.

The next question for consideration is whether all these accused persons A-1 to A-4 could be made liable for the murder of the deceased with the aid of Section 34 of IPC. No doubt when such criminal act is done by the accused in furtherance of their common intention of all, each one of the accused is liable for that act in the same manner as if it were done by him alone. But the conviction of one such accused does not automatically result in the conviction of everyone said to be involved in the occurrence, even dehors their actual role, the general and basic principle of criminal liability being that only that person who commits the crime would be held guilty and punished except in cases where the concept of vicarious liability is recognised under law - to the extent and that too subject to such conditions shown to exist in a given case. So far as the case on hand is concerned, the evidence on record would show that the deceased was taken by the accused no. 1 Madhu on the pretext of repayment of the loan. Thereafter when PWs. 1, 2 and 14 were proceeding towards the house of the accused no. 1, they saw A-3 and A-4 fisting or assaulting the deceased with hands followed by the accused no. 2 hitting the deceased with the club MO. 2 and the accused no. 1 Madhu by the stone MO. 1. It is the assault committed by the accused persons A-1 and A-2 over the head and face which proved to be fatal as could be seen from the medical evidence on record. There is no positive evidence on record to show that the deceased had sustained any injuries due to the assault committed by the accused persons A-3 and A-4. Also there is nothing on record to show that they had shared a common intention with the accused nos. 1 and 2 in committing assault on the deceased. As we have already stated, it is the assault committed by the accused persons A-1 and A-2 subsequently, which proved to be fetal. Therefore, the accused nos. 3 and 4 cannot be indicted as having been in any manner responsible for or having rendered it possible for A-1 and A-2 to inflict the fatal injuries on the deceased, Section 34 of IPC seems to have been resorted mechanically and merely because the assault was committed in a group in the manner spoken to by the witnesses and not on account of any other circumstances indicative of any common intention or premeditation to commit such an act. It is no doubt true that all the 3 witnesses PWs. 1, 2 and 14 have clearly implicated the appellants in the manner in which the prosecution has narrated the case. But none the less we have to evaluate the role played by the accused nos. 3 and 4 in order to ascertain whether they would have entertained a common intention to murder the deceased. Neither of them had inflicted any fatal injury on the deceased, the deceased was stated to have been assaulted by these accused persons A-3 and A-4 with hands, but the medical evidence on record does not indicate any such injuries being sustained by the deceased on account of the assault committed by these two accused persons with hands. On the other hand, the medical evidence on record would indicate that the fatal injuries on the deceased were caused by an assault with a stone and the club over the head and face. All that is said against these two accused persons A-3 and A-4 is that they had fisted the deceased with hands. The said incident of assault was witnessed by PWs. 1, 2 and 14 from a distance of about 20 ft. or 50 ft. and the whole incident even according to them had been over within a few seconds. It is not in dispute that the accused no. 1 had alone brought the deceased along with him from his house on the pretext of repaying the loan and the incident of assault appear to have been committed in front of the house of the accused no. 3 and the house of the accused no. 1 was situated within the close proximity of the house of the accused no. 3. The assaults were committed individually by each of the accused persons. In so far as the accused nos. 3 and 4 are concerned, they were the first to assault the deceased with hands and thereafter the accused nos. 1 and 2 had committed assault on the deceased by picking out the club and stone which were lying nearby. Under the circumstances, therefore, it cannot be imagined that the accused nos. 3 and 4 had anticipated such assault on the deceased by the accused nos. 1 and 2. If really the accused nos. 3 and 4 had any intention to share the common intention with the accused nos. 1 and 2 to commit the murder of the deceased, it is difficult for us to conceive as to why they did not use any weapon in assaulting the deceased. The role attributed to these two accused persons A-3 and A-4 is that they had only fisted the deceased and the said incident of assault had been witnessed by PWs. 1, 2 and 14 from a distance of about 20 ft. or 50 ft. Furthermore, the medical evidence placed on record does not indicate the presence of any such injuries on the dead body of the deceased. In the fact situation, we have difficulty to confine the finding that A-3 Shivanna and A-4 Thamos really entertained a common intention with the accused nos. 1 and 2 to murder the deceased. The benefit of reasonable doubt emanating from the broad features of the case must be extended to these two accused persona A-3 and A-4. Incidentally be it noted that common intention is a state of mind of an accused which can he inferred objectively from his conduct displayed in the course of commission of the crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute the common intention to one of the others involved in the crime. The subjective element in common intention therefore, should be proved by objective teat and it is only then that one accused can be made vicariously liable for the acts and deeds of the other co-accused. Merely because of the fatal out come, even those whose intention, otherwise made out to be far less than homicidal, cannot by hind sight reading be meant to have had a murderous or kindred mens rea. There is no direct or circumstantial evidence available on record for drawing an inference that the accused nos. 3 and 4 could have, while committing assault on the deceased with hands, anticipated that the other two accused persons namely A-1 and A-2 or any one of them would pick out the stone and club which were lying there and commit a fatal assault on the deceased. Therefore, the accused nos. 3 and 4 cannot be held to have shared the common intention with the other two accused persons A-1 and A-2 to cause the death of the deceased. At the most, they can be attributed only with the intention of committing assault on the deceased with hands, But then, the medical evidence available on record does not in any way indicate that the deceased had sustained any such injuries on his person. There is nothing to indicate that these two accused persons A-3 and A-4 knew about the design of the other assailants namely A-1 and A-2.

For the aforesaid reasons, we find difficulty to confirm the finding of the trial court that the accused nos. 3 and 4 had really shared a common intention with the accused nos. 1 and 2 to murder the deceased. In the fact situation and in the absence of any positive evidence to prove the common intention to kill on the part of the accused persons A-3 and A-4, these two accused persons A-3 and A-4 are entitled to be extended the benefit of doubt and exonerated. But in so far as the accused persons A-1 and A-2 are concerned, the concrete evidence is that they had inflicted the fatal injuries on the deceased. Hence they are entitled to be held guilty of the offence u/s 302 r/w 34 of IPC for having committed the murder of the deceased. We accordingly confirm the conviction of the accused nos. 1 and 2 for the offence u/s 302 r/w 34 of IPC and the sentence imposed therein on each of these accused persons A-1 and A-2. But in so far as A-3 and A-4 are concerned, we set aside their conviction u/s 302 r/w 34 IPC and acquit them of the said charge. They shall be set at liberty forthwith if their detention is not required in any other case. In the result, therefore, these two criminal appeals filed by the Appellants are partly allowed. The conviction and sentence of the accused no. 3 Shivanna @ Chow Chow and accused no. 4 Thamos @ Rachaiah u/s 302 read with Section 34 of IPC are hereby set aside and they are set at liberty forthwith if their presence is not required in any other case. Whereas the conviction and sentence of the accused no. 1 Madhu @ Mahadeva and the accused no. 2 Lokesh @ Shivakumar passed by the trial Court u/s 302 read with 34 of IPC is hereby confirmed. Consequently, we set aside the conviction and sentence passed on Accused no. 3 Shivanna @ Chow Chow and Accused no. 4 Thamos @ Rachaiah who are Appellants no. 2 in these two appeals. We acquit them and direct them to be set at liberty forthwith unless they are required in any other case. We do not interfere with the conviction and sentence passed on the Appellants no. 1 i.e., Accused no. 1 Madhu @ Mahadeva and Accused no. 2 Lokesh @ Shivakumar in these two appeals. Both the appeals are accordingly allowed in part in the manner as indicated above. The accused no. 3 Shivanna @ Chow Chow and the accused no. 4 Thamos @ Rachaiah who have been acquitted of the charge u/s 302 read with 34 of IPC shall be set at liberty forthwith if their detention is not required in any other case. The accused nos. 1 and 2 whose conviction and sentence having been confirmed by this Court, they shall serve out the remaining part of their sentence. The Appeals are accordingly allowed in part.