Nagaraju and Others vs State of Karnataka

Mohan M. Shantana Goudar, J—The judgment and order of conviction dated 18.6.2011 passed by the Fast Track Court-III, Mayo Hall Unit, Bangalore in S.C. No. 356/2008, convicting accused Nos. 1 and 2/appellants herein, for the offence punishable under Section 302 of IPC, is called in question in this appeal by the convicted accused.

Accused No. 1 is the husband of P.W.4; accused Nos. 2, 3, 4 are brothers of accused No. 1 and accused No. 5 is the sister of accused No. 1; the marriage of P.W.4 with accused No. 1 was performed about two years prior to the incident in question and out of the wedlock, a male child is born; earlier thereto, accused No. 1 had married another lady and out of the said first wedlock, a child was born and the said child is now 7 years old; the first wife of accused No. 1 had expired and thereafter he married P.W.4; since P.W.4 was attacked with polio disease, the parents and brothers of P.W.4 used to help P.W.4 and accused No. 1 both mentally and economically; despite the same, P.W.4 was not being looked after by accused No. 1. One week prior to the incident in question, the child born to P.W.4 was suffering from some health problem and therefore, the child was taken to K.K. Hospital situate at Yelahanka; accused No. 1 also came there and he did not want to admit the child to the said hospital, since the reputation of the said hospital was not good; however, the Doctors of K.K. Hospital having felt that the child needs treatment urgently, admitted the child and gave treatment to the child; the child recovered from illness and was discharged from the hospital. At the time of admission of the child, accused No. 1 and his brothers who had come to the hospital had quarreled with the family members of P.W.4 and had went away; they had not come to the hospital to see the child once again later, though the child was inpatient for three days.

After discharge of the child, P.W.4 came back to her parents place; accused No. 1 had threatened the brothers and parents of P.W.4 with dire consequences since they had admitted the child to K.K. Hospital against his wishes; in order to pacify the anger of the accused, the complainant (brother of P.W.4) requested the accused to come to their house for talks. At 4.00 p.m. on 29.11.2007 all the accused went to the house of the complainant wherein P.W.4 was living with the child and started abusing them in filthy language. The accused threatened the inmates of the house and brother of P.W.4 with dire consequences on the ground that they have brought back the child to their house without informing the accused; so saying, accused No. 1 tried to stab P.W.4 with knife. However, the deceased Srinivas (maternal uncle of P.W.4 intervened) at that point of time, accused Nos. 1 and 2 stabbed on the chest of Srinivas, consequent upon which, Srinivas fell down; accused Nos. 1 and 2 along with accused No. 3 started assaulting with knife which they had brought from their house to P.Ws. 1, 2 and P.W.5. Accused No. 4 assaulted with club on the complainant, consequent upon which, P.Ws. 1 to 5 also sustained certain injuries. Thereafter, the accused went away from the scene. Immediately, thereafter, the inmates of the house of the complainant shifted the injured to Baptist hospital; the Doctors at Baptist hospital examined victim Srinivas and declared that he is brought dead. Thus the death was almost instantaneous.

First information came to be lodged by P.W.1 as per Ex. P1 at 5.30 p.m. on 29.11.2007 which came to be registered at 7.00 p.m. in Crime No. 454/2007 in Kadugondanahalli police station for the offences punishable under Sections 143, 147, 324, 307, 302 r/w Section 149 of IPC. P.W.23, the Inspector of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 23 witnesses and got marked 31 exhibits and produced 19 material objects. On behalf of the defence no witness is examined. As aforementioned, the trial Court convicted accused Nos. 1 and 2 for the offence punishable under Section 302 of IPC. However, the trial Court acquitted accused Nos. 3 to 5 giving benefit of doubt in their favour.

Sri. Jagadeesh B.N., learned Advocate appearing on behalf of the appellants taking us through the entire material on record submits that number of omissions and contradictions are found in the evidence of eyewitnesses; the prosecution has not come out with the true story before the Court; the motive for commission of the offence is very weak; the accused would not have committed the serious offence like murder keeping motive in their mind as alleged by the prosecution; since the child of accused No. 1 was admitted to hospital, the reputation of which was not good, accused No. 1 must have quarreled with P.W.4 and others; since the child had recovered from illness after three days, the grievance of accused No. 1 could not have survived subsequently. Therefore, according to him, there was no intention on the part of accused Nos. 1 and 2 to commit the crime in question. He further submits that the incident has taken place on the spur of the moment and that therefore, the accused cannot be convicted for the offence under Section 302 of IPC. He further draws the attention of the Court to the evidence of the eyewitnesses to contend that the evidence of these eyewitnesses varies from stage to stage and therefore, their evidence cannot be believed at all. On these among other grounds, he prays for acquittal of the accused or for reduction of gravity of offence.

Per-contra, learned Government Pleader argued in support of the judgment of the Court below contending that accused came to the spot fully prepared armed with knives; the house of the accused and the place of incident in which P.W.4 was living was having a distance of 12 kms; the very fact that the accused had come fully prepared with knives and traveled for 12 kms. would clearly reveal that they had got intention to commit the murder and that they had come to the spot fully prepared. Thus, according to him, no leniency can be shown in favour of the accused.

P.W.1 is the injured witness. He is the complainant. P.W.1 is the brother of P.W.4; the complaint is at Ex. P1. He is also the witness for scene of offence mahazar. P.W.2 is the father of P.W.1. He is the brother-in-law of the deceased. He is also injured eyewitness. P.W.3 is the sister of the deceased and mother of P.W.1. She is the eyewitness to the incident. P.W.4 is the wife of accused No. 1. P.W.5 is the wife of complainant (P.W.1). Both of them are eyewitnesses to the incident. P.Ws. 10, 13 and 14 are three more eyewitnesses; among them, P.Ws. 13 has turned hostile to the case of the prosecution and P.W.14 has also turned hostile to the case of the prosecution. However, she has deposed about the presence of the deceased on the spot. P.W.10 who is the brother of the deceased has turned partly hostile. P.Ws. 6 and 7 are the witnesses for scene of offence mahazar Ex. P2 under which, certain materials are seized. Both of them have turned hostile to the case of the prosecution. However, they have supported the case of the prosecution in the cross-examination by the Public Prosecutor. P.Ws. 8 and 9 are the witnesses for recovery of knives and clubs. Ex. P3 is the mahazar relating to recovery of two knives M.Os. 6 and 7 at the instance of accused Nos. 1 and 2 from the house of accused No. 5. Though P.W.8 has turned hostile to the case of the prosecution in examination-in-chief, he has supported the case of the prosecution in his cross-examination by the Public Prosecutor. He has also deposed about the recovery of clubs under Ex. P4 at the instance of accused No. 3 in the burial ground. P.W.9, another recovery witness has supported the case of the prosecution with regard to mahazars Exs. P3 and P4. P.W.11 and P.W.12 are the witnesses for inquest panchanama Ex. P9. Though they did not support the prosecution in their examination-in-chief they have supported the prosecution in cross-examination. P.Ws. 15 and 16 are the officers of Forensic Science Laboratory who have issued Forensic Science Laboratory report as per Ex. P14. P.W.17 is the Doctor who treated P.Ws. 1 and 2 and issued wound certificate as per Exs. P16 and P17. P.W.18 is another Doctor. He conducted post mortem examination over the dead body. The post mortem report is at Ex. P18. P.W.23 is the Investigating Officer. He has not only registered the complaint lodged by P.W.1, but carried on the investigation and completed the same till the filing of the charge sheet.

From the aforementioned it is clear that the case of the prosecution mainly rests on the ocular testimony of P.Ws. 1 to 5 and P.Ws. 10, 13 and 14. Of them, the evidence of P.Ws. 10, 13 and 14 is shaky and the same does not inspire the confidence of the Court. However, the evidence of P.Ws. 1 to 5 who are the inmates of the house wherein the incident has taken place is to be evaluated for coming to the conclusion.

We are conscious of the law that the evidence of the relatives of the victim needs to be scrutinized carefully. However, it is well settled that the interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting the sworn testimony. Nor it can be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Keeping these factors in mind we have evaluated the evidence of P.Ws. 1 to 5 carefully.

We have already mentioned supra that the complainant/P.W.1 is the injured eyewitness. Ex. P1-the complaint discloses the motive for commission of the offence as well as the incident in question. It details as to the manner in which the incident has taken place and who have assaulted whom. The incident has taken place at about 4.00 p.m. and the complaint came to be lodged at 5.30 p.m. on 29.11.2007 i.e., within one or one and a half hours of the incident in question. Thus, there was no occasion for the complainant to concoct the story. The complaint, Ex. P1 clearly discloses that accused No. 1 wanted to stab P.W.4 (wife of accused No. 1). However, the deceased Srinivas who is the maternal uncle of P.W.4 intervened and he was stabbed by accused Nos. 1 and 2 on his chest repeatedly. It is specifically mentioned in the complaint that the victim was stabbed on the chest by accused Nos. 1 and 2. Such important factor of stabbing on the chest is supported by the post mortem report as well as the evidence of the Doctor P.W.18 who conducted post mortem examination.

The medical evidence clearly reveals that the deceased has sustained four stab injures on his chest. It is needless to observe that the complaint came to be lodged prior to the post mortem examination.

Be that as it may. We reiterate that the complainant has specified in the first information as to the manner in which the incident has taken place and as to the complicity of the accused as well as motive for commission of the offence.

The version as found in Ex. P1 is deposed by P.W.1, the complainant. In his evidence, P.W.1 has deposed that on 25.11.2007, the child was admitted to hospital since it was unwell; at that point of time accused Nos. 1 to 4 were also there in the hospital; doctors of the said hospital having examined the child felt that the child needs urgent treatment and therefore, they insisted that the child should be admitted immediately to the hospital; accused Nos. 1 to 4 objected for admitting the child to the said hospital; since the Doctors in the hospital had advised P.W.4 and others to admit the child in order to save the life of the child, immediately, P.W.4 and other injured witnesses ignored the protest of accused Nos. 1 to 4 and admitted the child to the hospital and in that regard, the accused had quarreled with P.W.1 and others. After three days, the child came to be discharged from the hospital.

After discharge of the child from the hospital, PW1/complainant informed about the same to the accused and at that point of time, accused scolded PWs-1 and 2 over phone. In order to pacify such anger of accused No. 1 and others, PW-1 and his family members requested accused No. 1 to come to the house for a meeting. Accordingly, at 4.00 p.m. on 29.11.2007, accused Nos. 1 to 5 came to the house of the complainant, wherein PW-4 was staying with the child; immediately thereafter accused started scolding PWs-1 to 5 and others with dire consequences; accused Nos. 1 to 3 took out knives which they had brought; accused Nos. 1 and 2 tried to assault PW-4, but deceased Srinivas intervened and consequently accused Nos. 1 and 2 stabbed the deceased with knives; since deceased has sustained injuries on the chest and abdomen, he fell down; when PWs-1, 2, 3 and 5 intervened, they were also assaulted by the accused, consequent upon which, PWs-1 and 2 sustained certain injuries. At that point of time, PW-5-wife of the complainant, who was pregnant and PW-4, who was looking after the child were sent out of the house by PWs-1 and 2 and consequently, PW-4 and 5 did not sustain any injuries. By that time, the victim was brought to the hospital at 4.45 p.m. The hospital authorities declared he was brought dead. Thereafter, a complaint came to be lodged.

PW-1 was subjected to searching cross-examination by the defence. He identified M.Os. 6, 7 and 8 as the knives, which were brought by the accused and which were used for the commission of the offence. In the cross-examination, he admits that PW-4 and accused No. 1 were living amicably and they did not have any differences. Accused No. 1 used to look after the child very well till he became one year old. It is further admitted by PW-1 in the cross-examination that the accused came to the house of the complainant at about 3.30 p.m. and that quarrel started within 10-15 minutes thereafter; while the accused entered the house, the eyewitnesses did not see the knives, however, the knives were taken out by the accused at the time of stabbing. It is further deposed by him that it may not be possible for him to specify as to which of the accused assaulted whom. Except the aforementioned admissions, no other admission is forthcoming in favour of the defence.

PW-2 is another eyewitness. He is father of PWs-1 and 4 and brother-in-law of the deceased. His evidence is almost on par with the evidence of PW-1. He has also deposed that accused No. 1 had threatened PW-4 and others with dire consequences, since they had admitted the child to the hospital against the wishes of accused No. 1. At 4.15 p.m., on the date of the incident, accused No. 1 came alongwith other accused to the house of PW-2; PW-2 thought that accused had come for panchayat, whereas, the accused had really come for committing the crime; at that point of time, accused Nos. 1 and 2 tried to stab PW-4 with knives and Srinivas (deceased) intervened and consequently accused Nos. 1 and 2 stabbed on the chest of the deceased; injured Srinivas fell down unconscious. He has also deposed that he had sustained injuries and he was subjected to operation. He has further deposed about the admission of deceased Srinivas to the hospital, wherein the hospital authorities declared that he is brought dead.

In the cross-examination, PW-2 also admits that there was no ill-will earlier to the incident between accused No. 1 and PW-4 and her parents; quarrel took place for the first time when the child was admitted to the hospital; he has further admitted that he is unable to specify which of the accused assaulted which of the witnesses and for how many times.

Another important eyewitness is PW-3. She is mother of PW-1 i.e., wife of PW-2. She is none other than sister of the deceased. She has also deposed about the incident in question meticulously and about the complicity of accused Nos. 1 and 2 in the commission of the crime against the deceased. Not much worthy evidence is brought on record by the defence in the cross-examination.

PWs-4 and 5 though are eye-witnesses to the incident, they have not deposed about the incident meticulously. However, they have deposed that the accused came to their house and started creating galata at about 4.00 p.m. on the date of the incident on the ground that the child was admitted to the hospital against the wishes of the accused. PW-4 having felt that the child will not be spared, she ran away from the house and that the incident took place within 5 to 10 minutes thereafter. PW-4 is the wife of accused No. 1. Her evidence may not be of use to the prosecution. However, her evidence discloses the presence of the accused on the spot. According to her, by the time, she entered the house, the incident had already taken place. In view of the same, we find no justification to rely upon the evidence of PWs-4 and 5 in respect of actual incident in question. However, their evidence would be helpful only to show the presence of the accused on the spot and that the accused had held the knives. Same is the evidence of PWs-10, 13 and 14, either they are partially hostile or fully hostile. Therefore, their evidence also cannot be made as the basis for coming to the conclusion.

However, the ocular testimony of PWs-1, 2 and 3 is consistent, cogent and reliable. There is no reason as to why they should be dis-believed. Their presence in the house is natural, inasmuch as, they are residents of the very same house. The incident has taken place within the house. Among them, PWs-1 and 2 are the injured witnesses; there are medical certificates on record. Merely because, accused Nos. 3, 4 and 5 are acquitted, the evidence of PWs-1 to 3 cannot be disbelieved. Sofar as, the incident of stabbing Srinivas(deceased) by accused Nos. 1 and 2 is concerned, it is consistent. All these witnesses have deposed that accused Nos. 1 and 2 took out the knives and they wanted to stab PW-4. However, deceased Srinivas being the maternal uncle of PW-4 intervened and he was stabbed on the chest. Immediately, deceased fell down unconscious. This portion of evidence of PWs-1 to 3 deserves to be accepted, inasmuch as, they have withstood in the cross-examination. Since PWs-1 and 2 are the injured witnesses, their presence on the spot also cannot be doubted.

It is relevant to note the demeanor of PW-14 recorded by the Court below, while she was in the witness box. After the cross examination, PW-14 started weeping in the trial court; she started telling that she has got threat from PW-10(the younger brother of the deceased). To the Court''s question to PW-14 as to whether PW-14 is being threatened by anybody, PW-14 has answered that Krishna Murthy(PW-10) had threatened PW-14 that she should not deposed in favour of the prosecution before the Court. This part of recording the evidence of PW-14 before the Court below makes it amply clear that some of the witnesses were won over by the defence. PW-10, who had allegedly threatened PW-14 for prohibiting her from deposing against the defence has also turned hostile to the case of the prosecution. However in the cross-examination, he admits that he has made a statement before the police as per Ex-P8. Ex-P8 discloses that accused Nos. 1 and 2 stabbed on the chest and neck of the deceased. PW-10 even admits in the cross examination that accused Nos. 1 and 2 stabbed on the chest of the deceased with knife. Even in the cross examination by the defence, he reiterated that he was present at the scene of offence and has seen the incident. This portion of the evidence of PWs-10 and 14 also corroborates the evidence of PWs-1 to 3, which is already narrated supra. The evidence of PWs-4 and 5 also corroborates the case of the prosecution to the extent that the accused and the eyewitnesses were present on the scene at the time of the incident. Thus in our considered opinion, the trial court is justified in believing the versions of PWs-1 to 3 alongwith corroborative material.

As aforementioned, it is vehemently submitted by learned counsel for the defence that the motive in this case is very weak. Thus according to him, the accused need to be convicted for the offence punishable under section 304-II IPC. Such contention cannot be accepted. Where the ocular evidence is very clear and convincing and role of the accused persons in the crime stands clearly established, establishment of motive is not sine qua non for proving the prosecution case. The motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution in each and every case to find out the real motive behind the crime. It is well established that where there is eye-witnesses account relating to the incident, the motive looses all its importance. It is also well settled that where direct evidence relating to assault is worthy of credence and it can be believed, the question of motive more or less becomes irrelevant. Sometimes motive is clear and can be proved and sometimes motive is shrouded with mystery and it is difficult to locate the same. If, however, the evidence of the witnesses is credit worthy and is believed by the Court, which has placed implicit reliance on them, question whether there was motive or not becomes wholly irrelevant.

In view of ocular consistent, cogent and reliable material in the form of evidence of PWs-1 to 3 supported by the evidence of PWs-4, 5, 10 and 14, we are of the clear opinion that the trial court is justified in relying upon the evidence of ocular testimony of the eyewitnesses.

The contention of the defence counsel that there was no intention on the part of accused Nos. 1 and 2 to commit the crime also cannot be accepted. PW-14 in her cross examination has deposed that PW-3(sister of the deceased) came to the house of the deceased to invite him for the meeting to be held in the afternoon. PW-14 is none other than wife of the deceased. At that point of time, deceased had told PW-14 and others that he would not come to the house of PW-3, inasmuch as, the accused are quarrelsome people and their behaviour is not proper and therefore he will not come to the house of PW-3. However, he went to the house of PW-3, wherein the incident has taken place. Be that as it may, the evidence of PW-14 clearly reveals that the accused were of quarrelsome nature. Added to it, the accused have come all the way from their house to the place of incident with knives. It has come on record that the distance between the house of PWs. 1 to 3 and the house of accused Nos. 1 and 2 is about 12 km, which means, accused have travelled all the way 12 km to reach the scene of offence. If really the accused did not have intention to commit the murder, they would not have carried knives for 12 kms. Three knives are recovered, inasmuch as, accused Nos. 1 and 2 had stabbed the deceased and accused No. 3 had stabbed another witness. The very fact that the accused came to the spot fully armed would clearly go to show the intention on the part of accused Nos. 1 and 2. Knife is a deadly weapon. Two knives are employed to assault the deceased. The situs of injury is also vital. All the four major injuries are found on the chest of the deceased. Thus, it is clear that accused 1 and 2 came to the house fully prepared to commit the crime; the weapon used and the situs of the injuries also would clearly reveal the intention on the part of the accused. In view of the same, the trial court, in our considered opinion, is justified in convicting accused Nos. 1 and 2 for the offence punishable under section 302 IPC.

Even on re-appreciation of the entire material on record, we do not find any ground to disagree with the conclusion reached by the trial court.

Accordingly, appeal fails and the same stands dismissed.