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Judgment
Dilip B. Bhosale, J.—This criminal appeal is directed against the judgment and order dated 12.1.2009 rendered by the Sessions Judge, Fast Track Court-I at Mandya in S.C. No. 39/00, convicting all the appellants-accused under Sections 143, 144, 147, 148, 342, 302, 506 R/w 149 of IPC. The maximum sentence awarded by the trial Court is for life imprisonment and fine of Rs. 1,000/- each in default to undergo RI for one month for the offence punishable u/s 302 R/w 149 of IPC. The prosecution case, in brief, is as under:
Appellants-1 and 2 are brothers, whereas the other three appellants are their relatives (for short the ''accused''). The deceased Ramachandra was also a relative of A1 and A2. One Padmamma (PW 16), is the wife of A2. The deceased-Ramachandra and Padmamma were allegedly having extra marital affair. On 17.11.99, Ramachandra had gone to the house of Padmamma in the absence of her husband-A2 at about 10-10.30 p.m. On his visit to the house of Padmamma there was galata (commotion) in which, the neighbours questioned him as to why did he visit the house of A2 in his absence. This incident was witnessed by Kariyappa (PW 2) and Ramanna (PW 3). On 18.11.99, in the morning when the complainant (PW. 8) was having tea at the tea stall, called Hotel Ramesh, he learnt from the talk of the people there about the previous night (17.11.99) incident that occurred near the house of A-2. Ramachandra was also there in the morning and was having tea. The complainant (PW 8) also learnt in the morning that since the previous night (17.11.99) Padmamma (P.W. 16) left the house and her whereabouts were not known. Thereafter, Ramachandra called the complainant (PW 8) and they both went to Nagamangala. They left for Nagamangala at about 11.00 a.m. In the night (on 18.11.99), since they did not have any conveyance to return to their village, they stayed overnight with Narayana (PW 27) in his room in Narasegowda building at Nagamangala.
On 19.11.99, in the morning the complainant woke up and returned to his village Devaramallanayakanahalli (for short "the village D.M. Halli"). In the village, the accused enquired with the complainant about Ramachandra and they requested him to show where Ramachandra had slept last night at Nagamangala. The complainant told them that he did not know where Ramachandra went thereafter. The accused virtually forced him (PW. 8) to accompany them to Nagamangala. They reached Nagamangala at 11.30 a.m. and searched for Ramachandra. Ramachandra was ultimately found near Sachin Theatre, when he came out during interval. There, the accused persons caught hold Ramachandra and forcibly took him in the autorickshaw towards Kotebetta and then to forest area. At a remote place in the forest they stopped and got down from the autorickshaw and asked Ramachandra the whereabouts of Padmamma. Ramachandra replied that he did not know and requested them not to do anything to him. Thereafter, it is alleged that A2 to A5 caught hold Ramachandra and A1 inflicted axe blows on his lower limbs and then on right hand near forearm, as a result of which his legs virtually got amputated. They also threatened the complainant of dire consequences if the incident was revealed to any one.
They all left Ramachandra unattended and went to Palakere and threw the axe and other weapons (choppers) in the river. Thereafter, the accused persons went towards Village D.M. Halli and dropped the complainant near the village. The complainant went to the village and informed about the incident to Srinivasa (PW 9) and Ventakesh (PW 11). They all immediately went to the scene of offence in a Tata Sumo vehicle. When they reached the scene of offence, according to the prosecution, Ramachandra was alive and he asked for water. Thereafter they brought him to the Hosptial where he was declared dead. The complainant, thereafter approached the Police Station at Nagamanagala and lodged an FIR against all the five accused.
The incident, according to prosecution, occurred sometime around 1.00 p.m. The complainant came to the village and informed about the incident to the villagers at about 2.00-2.30 p.m. They went to the scene of offence and brought Ramachandra to the Hospital at about 3.00-3.30 p.m. The FIR was lodged some time between 6.00-7.00 p.m. The complaint/FIR was recorded by Manchegowda (PW 24), and on the basis thereof, he registered a crime bearing Cr. No. 217/99. The next day i.e., 20.11.99, they conducted inquest panchanama in the morning and sometime in the afternoon went to the scene of offence, from where an axe (MO. 1) was seized from the river, at the instance of PW 8, who had seen the accused persons throwing it in the river. Thereafter, different panchanamas were drawn, statements of several persons were recorded and material objects were seized/attached and after completing the investigation, a charge sheet was filed. After the charge sheet was filed, the learned Magistrate committed case to the Sessions Court. A1 to A3 and A5 surrendered before the Magistrate on 6.12.99 and A4 on 14.12.99.
The prosecution in order to bring home the guilt of the accused, examined as many as 27 witnesses and placed several documents, material objects on record in support of its case. In the course of the trial, the defence propounded by the accused persons was that of total denial. The further defence, as disclosed in the course of cross-examination of the witnesses, was that the incident did not occur at the time and the date and so also in the manner in which it was stated by the complainant (PW 8) in the FIR. In short, according to the appellants-accused, PW 8 did not witness the incident at all and the whole prosecution case is concocted and appellants were falsely implicated at the instance of brothers of Ramachandra.
Out of 27 witnesses, the star witness, examined by the prosecution, was the complainant-Kumar (PW 8). He is the solitary eye-witness to the occurrence. In support of his evidence, the prosecution also placed reliance upon other circumstances such as motive, sequence of events and medical evidence. To prove the sequence of events, right from the incident that occurred on 17.11.99 night till the FIR was lodged and the motive, the prosecution examined Jayamma (PW 1), the mother of A3, Kariyappa (PW 2), Ramanna (PW 3), Chennigaiah (PW 4), Nanjegowda (PW 5), M.S. Suresh (PW 6), Gundappa (PW 7), Kumara (PW. 8), M.T. Srinivas (PW 9), G.N. Kempegowda (PW 10) and Venkatesh (PW 11). PW. 1, turned hostile. Prosecution also examined one Manju (PW 12), the booking clerk, who was working in Sachin Theatre, and Honnamma (PW 13) who speaks about the presence of the deceased in the theatre. Both these witnesses (PWs. 12 & 13) turned hostile. The prosecution, then examined Sami (PW 14) and Krishnamurthy (PW 15) as pancha witness to prove recovery of Mos. 1 to 3. These two witnesses also turned hostile. Padmamma (PW 16)-the wife of A2 also turned hostile. D.N. Paramesha (PW 17) and T.H. Ramakrishnegowda (PW 18) were examined as pancha witnesses for inquest panchanama. PW 18 was also pancha witness for recovery of Mos. 1 to 3. The prosecution examined two doctors namely Dr. M.G. Shivaramu (PW 19) and Dr. Puttaswamy (PW 20). Dr. Puttaswamy was examined to prove post mortem report. PWs. 22 and 24 conducted investigation. PW 25 was examined to prove FSL report. The prosecution also examined Sakamma (PW 26), the mother of A1 and A2. She did not support the prosecution. Lastly, Narayana (PW 27) was examined to prove that the complainant and the deceased stayed with him on 18th night at Nagamangala.
The prosecution, on the basis of the evidence of all the witnesses, endeavoured to bring on record and prove the following sequence of events:
On 17th night, at about 10-10.30 p.m., the deceased had visited the house of A2 in his absence when his wife (PW 1) alone was at home. There was a commotion, when some of the neighbours had strongly objected his visit in the absence of A2. To prove this incident, the prosecution examined PWs. 1 to 4. Then, next day i.e., on 18.11.99, in the morning at about 6.00 am, the complainant went to the Tea Stall, called Hotel Ramesh, to have a cup of tea where he heard from the persons at the Tea Stall that there was commotion in the previous night on account of the visit of the deceased to the house of A2. At that time, the deceased was also present at the tea stall. The prosecution in order to prove this circumstance examined PW 5 and PW 6. From there, the deceased and the complainant went to Nagamangala and from Nagamangala to Bellur cross Hospital and from there they returned to Nagamangala and since they did not have any conveyance available to return to their village-D.M. Halli, they slept at the place of Narayana (PW 27). The next day morning i.e., on 19.11.99, the complainant returned to his village. In the village, all the five accused caught hold the complainant and asked him about Ramachandra''s (deceased) whereabouts. They took the complainant along with them to Nagamangala and there they searched him.
On their way to Nagamangala, G.N. Kempegowda (PW-10) and one Rama were also with them. There, at Sachin theatre, they caught hold of the deceased and took him to Kotebetta and there in the jungle they killed him. To prove this entire sequence of events, the prosecution mainly relied upon the evidence of Kumara (PW 8) and in support thereof the evidence of PWs. 1 to 11. All these witnesses, except PW 1, supported the prosecution to prove the circumstances for which they were examined.
The entire evidence in this case is in Kannada. Learned counsel for the appellants placed on record English translation of the evidence of material witnesses. In the course of Judgment we propose to quote (English translation) of relevant portions from their evidence, including the FIR, as it is. We assume that the translation furnished, though not happily worded, by and large, is true and correct.
Before we consider the ocular version of the complainant, we would like to consider the submission of Mr. Chandrashekar, learned counsel for the appellants that the FIR lodged by PW 8 was not a prompt FIR and there was a delay not only in lodging it but also for sending it to the Magistrate as required u/s 157 of Cr. P.C. He submitted that though the prosecution claims that the FIR was lodged by PW 8 between 6-7 p.m., on 19.11.99, in fact, it was recorded sometime around 11 p.m. and then it was sent to the Magistrate at 1.30 a.m. on 20.11.99. He, then submitted that though PW 24 claims that he recorded the FIR, from the cross-examination of this witness and the cross-examination of PW 22, it revealed that it was not his handwriting and the prosecution failed to bring on record as to in whose handwriting the FIR was recorded. On the basis thereof, he submitted that the FIR was though lodged by PW 8, it was prepared at the instance of the brothers of Ramachandra (deceased), falsely implicating the accused persons and that PW 8 had not witnessed the incident at all. We will consider little later whether PW 8 is a genuine eyewitness.
We have perused the FIR, which shows that it was recorded between 6-7 p.m. on 19.11.99 and it was sent to the Magistrate at 1.30 a.m. on 20.11.99.
PW 24 deposed that he was in the police station at 6.00 p.m. When Kumara (PW 8) approached him and he recorded his statement (FIR.-Ex. P2). After recording the FIR, it was read over to PW 8 and after having accepted the contents thereof, he signed the same. PW 24 also signed the FIR. The signatures of PWs. 8 and 24 were marked as Ex. P2(a) and P2 (b) respectively. In the cross-examination, PW 24 fairly admitted that there was no remark made on Ex. P2 as to in whose handwriting it was written. He could not state even before the Court as to who wrote down the FIR. He also could not state at what time the FIR reached the Magistrate. His deposition was recorded after more than 7 years of the occurrence. However, after having seen the FIR he stated that it reached the Magistrate after lapse of 6 hours. He did not make any attempt to know to whom the duty was assigned to carry the FIR to the Magistrate. PW 22 was also asked few questions about recording of the FIR. He deposed that he did not record the FIR nor did he record the statement of any person to know as to why there was a delay in forwarding it to the Magistrate. He also admitted that the handwriting in the FIR may be of some outsider. PW 8, in the cross-examination, was also asked as to who recorded the FIR and he simply stated after signing the FIR, he went away. He further deposed that it was written by one person. Then, he identified the signature bearing Ex. D1(a) on the FIR. Thus, it is clear from the evidence of PWs. 24, 22 and 8 that none of them could tell as to in whose handwriting the FIR was recorded by PW 24.
That being so, Mr. Chandrashekar, learned counsel appearing for the appellant placed reliance upon the judgment of Gabbu and Others Vs. State of Madhya Pradesh, to contend that since it was not noted in the FIR the name of a scribe and it was not made clear as to who wrote it down, it deserves to be discarded being concocted/fabricated so as to falsely implicate the accused, at the instance of the brothers of Ramachandra.
It is true that the prosecution failed to bring on record as to who actually wrote down the FIR though it was recorded on the directions of PW 24. PW 24, in his examination-in-chief, stated that he recorded the statement of complainant and it was read over to him and then he signed the same having accepted the contents thereof.
In this connection, we refer to Section 154 of Cr. P.C. Section 154 provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
It is thus, clear that it is not necessary that the Officer in-charge of a Police station himself should reduce the complaint in his own handwriting. He can take help for writing down the complaint. However, it should be reduced to writing under his direction. It is nobody''s case that the complaint was not reduced to writing under his direction. It has also come on record that it was signed by him and also by the complainant after having accepted the contents thereof. Further, the other formalities are not in dispute. It is in this backdrop, we do not find any substance in the submission advanced by learned counsel for the appellant that it deserves to be discarded merely because the prosecution could not and did not bring on record as to who wrote down the complaint.
It is true that there was a delay in reaching the complaint to the Magistrate and the prosecution failed to explain the delay. The delay in reaching the complaint to the Magistrate, was about 5-6 hours after its recording.
From perusal of the FIR, we find an endorsement on it showing that it was sent to the Magistrate at 7.45 p.m. on 19.11.1999, however, it reached the Magistrate at 1.30 a.m. on 20.11.99. It was not explained by the prosecution, why it reached after about 5-6 hours. The prosecution ought to have examined the Constable who was entrusted the responsibility to carry the FIR to the Magistrate. However, failure to explain this delay, in our opinion, is not fatal. In the sense, merely because there was a delay in sending the FIR to the Magistrate, it cannot be stated that the document was fabricated and the story reflected there in is concocted.
Sending the copy of FIR to the Magistrate as required u/s 157 of Cr. P.C. is only external check on the working of the police agency. However, it is well settled that the delay in sending copy of the FIR may by itself would not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Undoubtedly, the immediate sending of the report as mentioned in Section 157 CrPC is the mandate of law and, therefore, the delay, if any, is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime (See Bijoy Singh and Another Vs. State of Bihar,
The Supreme Court in State of Punjab Vs. Gurdip Kaur, observed that though it cannot be said as a rule of universal application that whenever there is a delay in lodging the FIR and/or there is delay in dispatching the report to the Magistrate, the prosecution has to fail. In other words, the Court needs to examine the prosecution case ensuring itself as to whether any innocent person has been implicated in the crime. Where the FIR is shown to have actually been recorded without delay and investigation started on the basis thereof, the delay in serving the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution is insupportable. In any case, in the absence of prejudice to the accused the delay would not vitiate the trial (See Anil Rai Vs. State of Bihar, Keeping in view the law laid down by the Supreme Court, we would now like to examine the evidence of PW 8.
We propose to reproduce the case in detail, unfolded in the examination-in-chief of P.W. 8, since his deposition was challenged mainly on the ground that it is full of contradictions/omissions/improvement and hence unreliable.
P.W. 8 knew all the accused very well. He also knew the deceased Ramachandra. They were all related to each other. On 17.11.1999 till 8.00 p.m., P.W. 8 deposed that he and Ramachandra were together. Thereafter, on 18.11.1999 in the morning at 6.00 a.m., P.W. 8 went to a tea stall known as Hotel Ramesh. There, he found Narasimhanna, Bursi Gundappa, Suresh (P.W. 6) and 2-3 others had also come for tea. He also found the deceased taking tea in front of Nanjunda''s hotel. It appears that Nanjunda''s hotel and Hotel Ramesh were adjacent to each other. The persons named above, according to P.W. 8, were talking that Ramachandra had gone to the house of Katappa, the father of accused no. 2, and made some galata. They were referring to Ramachandra going to the house of Katappa at 10.00-10.30 PM on previous night. After taking tea, P.W. 8 was called by Ramachandra and told him to accompany him to go to Nagamangala. At that time, P.W. 8 asked the deceased why did he go to the house of Katappa previous night. The deceased Ramachandra replied that he did not go. They both, thereafter, went to Nagamangala and from there to Bellur. While at Bellur, they visited Adichunchanagiri hospital. Thereafter, around 7 O''clock in the evening on 18.11.1999 they returned to Nagamangala and since no bus/conveyance was available to go back to their village D.M. Halli they went to the house of one Narayana (P.W. 27) and stayed there overnight.
Next day morning, P.W. 8 deposed that he returned to village-D.M. Halli, for which the deceased had given him Rs. 20/- for bus fare. After returning to the village, P.W. 8 deposed that while he was cutting the fodder, Suresh (A-1) and Murthy (A-2) approached him and asked him whereabouts of Ramachandra. He informed them that he and the deceased were in Nagamangala previous night, i.e. on 18.11.1999 and that he returned to his village that day (on 19.11.1999) morning and he did not know where the deceased had gone thereafter. Then they took him (P.W. 8) to house of Katappa and then to Nagamangala with them to search Ramachandra. They again asked him whereabouts of Ramachandra and he said that he did not know.
Then, P.W. 8 deposed that one Rama and Kempa (P.W. 10) came to the house of Katappa. At that time, A1 told him to take Kempa and P.W. 8 and move forward and that he would join them. Then, they left the house of Katappa. Within short time, one auto came from behind which was driven by A1. P.W. 8 found that other accused persons were also in the autorickshaw viz. A2, A3, A4 and A5. A1 told him (P.W. 8), Kempa (P.W. 10) and Rama to board the auto. P.W. 8 sat in the auto. At that time, Kempa told A1 how could eight persons sit in one autorickshaw. A1, however, told him that they will adjust. Thereafter, they left in auto and when they reached Venkateshwara Talkies they dropped Rama and Kempa.
Then, P.W. 8 deposed that they once again asked him whereabouts of the deceased and he again said he did not know. Thereafter, P.W. 8 took them to the place of Narayana (P.W. 27) where they had slept on 18.11.1999. The room of Narayana was opened by the accused persons but the deceased Ramachandra was not there. All the accused persons then took P.W. 8 to T.B. Circle. There they searched the deceased. From there they went to cinema tent at 12.15 PM. While deposing before Court, he did not remember name of the cinema tent/theatre. Further, he stated that it was situated at Nagamangala on the left side of the main road, going towards T.B. Circle. They all, P.W. 8 stated that waited at a particular place near the theatre. During interval of the movie, accused nos. 1 & 3 were looking towards the tent and they saw Ramachandra getting out. Immediately, all the 5 accused ran towards Ramachandra and they caught hold of him by jumping over the gate. Ramachandra after seeing all the accused had started running towards open field. They chased him and caught hold of him. They brought him to main road. At that time lot of people had gathered near the tent. The people questioned them as to why they were dragging Ramachandra. The accused told them that they want to take him for panchayath. The people gathered then went away.
Then, P.W. 8 deposed that the accused took Ramachandra and him in the autorickshaw to Kote Betta road. Accused no. 1 was driving the auto. Then, they took the auto on pathway (rough road). When, P.W. 8 deposed, he asked A1 why were they not taking them to panchayath, when A1 abused him and asked him to sit quietly. They, then went inside the forest and up to eucalyptus grove at a distance of about half furlong from the road. According to P.W. 8, they had traveled about 8 kms. from the cinema tent to that place. They stopped the auto and took Ramachandra out. At that time accused no. 4 caught him (P.W. 8). He then deposed that they took him and Ramachandra and made them stand near eucalyptus grove near halla (ditch). Then A1 told to bring weapon from the auto. Nanja (A3) brought the weapons kept in a plastic cover below the driver''s seat. A1 asked for axe which Nanja handed over to him. The other weapons were 4 choppers. A1 held the axe. A3 caught hold the right shoulder of Ramachandra and Murthy (A2) caught hold the left shoulder. Siddaramu (A5) caught hold the hair from backside of Ramachandra and A4 held P.W. 8. Then A1 inflicted first blow on the right leg of Ramachandra. When Ramachandra was begging to the accused persons not to assault him, Sannamari (A4) was told to leave P.W. 8 and join them to assault the deceased and further stated that if P.W. 8 flees they would catch him. A4 then left P.W. 8 and caught hold Ramachandra from behind. He held him (Ramachandra) at stomach/waist of Ramachandra. After Ramachandra was held by all the 4 accused, A1 assaulted on the right leg of Ramachandra. At that time Ramachandra screamed saying "ayyappa, ayyappa", and fell down. A4 pressed him by putting his right leg on his chest. Murthy also held his left leg. At that time, Nanja told Suresh that he had cut both the legs and asked him to cut the right hand. Then Nanja (A-3) held the hand of Ramachandra when Suresh (A-17) cut it by inflicting one more blow with axe. P.W. 8 then deposed that at that time he was hardly 3 steps away from the deceased. He then deposed that Suresh told that they should not leave P.W. 8 and kill him also, otherwise he would inform about the incident to the villagers. At that time, P.W. 8 deposed that he told them that he would not inform to anyone and requested them to leave him.
Then P.W. 8 deposed that they all left Ramachandra at the scene of offence unattended and came towards the village D.M. Halli. When they reached near the village, they dropped P.W. 8 near Marammana Mantapa. While on their way to the village when they reached near ''palkare'' (river/pond), they threw axe in the river/pond. There, they washed their hands, legs and face. While leaving P.W. 8 near village when the accused told him not to tell anything about the incident, P.W. 8 also said that he would not. Then P.W. 8 stated that it was 2.30 PM when he was dropped near Marammana mantapa. According to P.W. 8, the incident of assault took place at 1.00-1.30 PM.
P.W. 8 then came to the village at about 3.00 PM On his way, he deposed that he met Srinivas (P.W. 9) and one Venkatappa. Then he deposed that when he left the village he gained courage and he told about the incident to Srinivas (P.W. 9). At that time Venkatappa who was also with Srinivas was told to inform Venkatesh (P.W. 11), the brother of Ramachandra. Accordingly, Venkatappa informed Venkatesh (P.W. 11). They immediately rushed to the scene of offence in a Tata Sumo. The persons who went to the scene of offence in a Tata Sumo, according to P.W. 8, were Venkatappa, Venkatesh (P.W. 11), Srinivas (P.W. 9) and driver of the vehicle. When they reached the scene of offence, it was 3.00-3.30 PM. The scene of offence was about 14 kms. away from the village. When they reached, Ramachandra was lying there. When Ramachandra saw these persons he asked for water by hand sign. They gave him water and lifted him and took him to Adichunchanagiri hospital. They reached the hospital at 4.00-4.30 PM On reaching the hospital, the doctors declared him dead.
From the hospital, P.W. 8 deposed that he along with Venkatesh (P.W. 11) and Srinivas (P.W. 9) went to the police station in Tata Sumo. The dead body of Ramachandra was kept in mortuary. They went to Nagamangala Police Station and informed about the incident. The complaint (FIR) given by P.W. 8 was taken down by the police (Ex. P-2). The police then came to the hospital at 10.00-11.00 PM P.W. 8 stayed overnight in the hospital and next day in the morning inquest mahazar was drawn.
P.W. 8 further deposed that on 20.11.99 he took the police to the scene of offence. Along with them they took one Poojarappa and one Kitti. P.W. 8 showed the place of offence. Police then drew panchanama of the scene of offence (Ex. P-3) and obtained signatures of panchas thereon. Then P.W. 8 took the police to the place where the axe was thrown. The axe was also recovered /seized with the help of Sami (P.W. 14). Then choppers were also recovered /seized at the instance of P.W. 8. The necessary panchanamas were drawn. All the articles which were seized were shown to the witness (P.W. 8) and he identified them as the same which were recovered /seized from the scene of offence/river including the clothes of the deceased.
This witness (P.W. 8) was cross-examined at length. His cross-examination was covering several aspects such as his relations with Ramachandra. Our attention was invited to several omissions which were specifically put to the witness and since he stated that he had stated so before the police and he did not know why it was not recorded by the police they were also put to the police officers (P.Ws. 24 & 22), who had recorded the FIR and supplementary statements and both officers stated that the witness had not stated so when the FIR and the further statements were recorded.
On the basis of the omissions, brought on record, it was vehemently argued that having regard to the omissions/contradictions in the deposition of this witness, his evidence becomes unreliable and it also creates doubt whether this witness was even present at the time of the incident. In other words, it was submitted that he was not a genuine eye witness who had seen the alleged assault. In support of this contention learned Counsel for the appellants placed reliance upon the judgments of the Supreme Court in Hallu and Others Vs. State of Madhya Pradesh, Badam Singh Vs. State of Madhya Pradesh, , A. Shankar Vs. State of Karnataka, , Ram Swaroop and Others Vs. State of Rajasthan, , Raghunath Vs. State of Haryana and Another and Lunaram Vs. Bhupat Singh and Others,
Mr. Chandrashekhar, learned Counsel further submitted that the conduct of PW. 8 immediately after the incident also creates doubt whether he really had seen the incident. When P.W. 8 reached village and after the occurrence, though he came across several known persons on his way to the village after the alleged incident, he did not disclose the incident to any one of them. In support of this contention he placed reliance upon the judgment of Supreme Court in Joseph vs. State of Kerala, 2003 Crl. LJ 2543.
Before we deal with the submissions advanced by learned Counsel for the appellants it would be advantageous to reproduce the FIR as it is to find out whether the omissions brought on record are material in nature and/or they are sufficient to discard the evidence of PW. 8 declaring him unreliable. The English translation placed on record by the appellants of the FIR in Kannada reads thus:
Complaint lodged by Kumar S/o Narasimhaiah, aged about 25 years, Vokkaliga Community, R/at Devaramallanayakanahalli, Devalapura Hobli, Nagamangala Taluk, on 19.11.99 before the Nagamangala Police Station is as follows:-
I am residing in the above address. I know one Ramachandra who is son of Narasimhaiah of our Village. He is my elder father''s son. Day before yesterday i.e., on 17.11.99 Wednesday night when I was near our house, next day i.e., on Thursday 18.11.99, I went to the tea stall of Ramesh to have Tea. Karimukada Narasimhaiah and others were present near the Tea Stall. By looking at Ramachandra who was sitting near Nanjunda near the hotel saying that "yesterday night (sic) was with Padmamma w/o Murthty @ Narasimhamurthy in the house, people have abused him, then came in front of the village and started speaking that Padmamma has left the house and gone some where, but told me that your brother Ramachandra was with Padmamma in the night at her house. I had tea and was passing towards my house, Ramachandra came with me and put his hand on my shoulder, I scolded me saying "remove your hand I came to know that you were in Padmamma''s house yesterday night", that all her family members have seen this, Padmamma has left the house and gone some where, they are searching for her. Then Ramachandra called me to Nagamangala. I and Ramachandra went to Nagamangala through Kote mountain at about 11.00 AM, then we went to Bellur and came back to Nagamangala in the night, slept in the room of Narayani which is situated in the building of Narasegowda. Today on 19.11.99 I got up in the morning and told Ramachandra that I am going to my village. Ramachandra gave me Rs. 20/- and I reached my village at 9.00 AM. In our Village, Murthy, his younger brother Suresh, Nanjaiah son of Narasimhaiah, Sannamari, Murthy''s brother in law of Machagonahalli (name not know) caught hold of me and threatened me by asking where is Ramachandra. They took me in an auto and we came to Nagamangala at 11-30 AM and we could not trace him out inspite of searching him at Nagamangala. Then we came and stood near Sachin Theatre. During interval Ramachandra came out of the theatre, all of them went and caught hold of him, even though the gate keeper stopped them, they dragged Ramachandra, they made me and Ramachandra to sit in the Auto, it was 12.15 at that time. Then Suresh drove the Auto went through Kote Mountain side, stopped his Auto in front of Palagrahara. Then all the six persons made me and Ramachandra to get down from the Auto, Sannamari caught hold of me, remaining four persons caught hold of Ramachandra, they took us near the eucalyptus Thopu Halla at 1.00 PM. Nanjaiah had axe, choppers in his hand. Sannamari caught hold of me tightly, Murthy, Suresh, Nanjaiah and brother in law Murthy pushed Ramachandra on the floor. They shouted at him to say where is Padma. Ramachandra told that god promise, he does not know about her and requested them not to do anything to him. By saying that "If we leave you like this, you will spoil the other girls in the village also, asked Sannamari to leave me and come, saying that "we will catch hold of him from wherever he goes". Sannamari left me and joined them, then Murthy, Nanjaiah, Sannamari, and Murthy''s brother in law caught hold of the legs and hands of Ramachandra. Suresh has cut both the knees of his legs from axe. I told them not be assault him and to leave him, they posed threat on me that they will cut me also. Then Suresh assaulted to the (right elbow) hand of Ramachandra with axe. All of them told me that if I tell about this to anybody, we will cut you also here itself. I requested them not to cause harm to me saying that I will not tell this to anybody. Suresh threw his axe to Palakere water and ail of them brought me to Ramenahalli, stopped me near Devarahalli and all of them went away. I came to our village and informed about this to Srinivasa and Venkatesha of our village. They brought me in a Tata sumo vehicle. I showed them the spot where Ramachandra was lying. They brought Ramachandra in the said Tata Sumo vehicle and admitted him at A.C. Giri big hospital in the evening itself. At that time Doctor told that Ramachandra is dead. Above mentioned accused persons have assaulted Ramachandra with sickle with grudge on him for the reason that he was with Padmamma in the night of Wednesday and then Padmamma went away from the house, and with an ill motive to kill him. Hence I request you to take suitable legal action against the Accused persons.
From bare perusal of the FIR, it is clear that every "necessary detail" right from the incident that occurred at 10.00-10.30 pm., on 17.11.1999 till the FIR was lodged on 19.11.1999 at 6.00 pm., were given. In the FIR, PW. 8 made reference to the incident that occurred on 17th night about which he came to know in the morning on 18th at the Tea Stall from the people gathered there including P.W. 5 and Suresh (PW. 6). Then he stated that Ramachandra was also there at the Tea Stall and from there they went to Nagamangala and from there to Bellur cross and then to the hospital. He also stated that then they came back to Nagamangala and since no bus was available for going back to their village, they stayed at Nagamangala with Narayana (PW. 7). Then he stated that he came back to his village next day morning and again went with the accused to Nagamangala to search the deceased. The deceased, he stated, was found near Cinema Tent. From there they picked him up and took him and the deceased in the Auto up to the scene of offence and there they killed him. This all he has stated in detail in his examination-in-chief.
We did not find a single omission amounting to contradiction in the evidence of this witness. In the sense, whatever he stated in the FIR he did not change his version at all and we find that he only mentioned/narrated further details in the Court. For instance, in the FIR he stated as follows:
they took me in an auto and we came to Nagamangala at 11.30 am., and we could not trace him out inspite of searching him at Nagamangala. Then we came and stood near Sachin Theatre. During interval Ramachandra came out of the theatre, all of them went and caught hold of him, even though the gate keeper stopped them, they dragged Ramachandra, they made me and Ramachandra to sit in the Auto, it was 12.15 at that time.
Before the Court in respect of the same sequence of events, he states as follows:
....... they took me. There they asked me to tell where is Ramachandra don''t tell lie I told him that that''s it I was sleeping and woke up and come I do not know where he has gone. Then Rama and Kempa came to the house of Katappa. At that time Suresh told Rama to take Kempa and Kumar and move I will come. At that time when we went from the village for a distance of a furlong. At that time one auto came from behind and Suresh brought the auto and he was driving the same and the accused persons i.e. other accused persons who are present before the court i.e. A2, 3, 4 and A5 were sat in the said auto. At that time Suresh told me and Kempa and Rama to board the auto. I sat in the auto. At that time Kempa told Suresh that how it is possible for 8 persons to sit in the auto, for which he told that doesn''t matter sit and I will take you. When he was taking us Rama and Kempa both got down from the auto near Venkateshwara Talkies. They took me from the footpath side. One road is there towards Police Station but they have not take me on that road. Again at Nagamangala Suresh asked me to tell correctly where he is for which I told him that I will not tell lie and what I have told I will repeating again. For which he told me that show the place where he has slept and so saying he took me with me. I showed him the place and by calling the key through Narayani and after opening the door the accused persons have seen the room. At that time Ramachandra was not present there. Again, Suresh and all the other accused persons took me near TB. They have searched for Ramachandra and then he told that he will not go any where he is picture addict he might have gone for a picture he will come during the interval or else we will go towards Bellur. At that time it was 12.15 pm. Then we came near Cinema tent. I have forgotten the name of the said tent. The same is situated at Nagamangala at the left side of the main road (left side going towards TB) at that time it was interval. I was sitting under a tree. At that time Suresh and Nanja were looking towards the Tent by standing. At that time they have parked the Auto by the side near the College. Nanja told that see Ramachandra is there. Compound gate of the tent was locked. Then Suresh, Nanja, Murthy, Sannamari and Siddaramu all of them ran to caught hold of him by jumping the gate. After looking at them Ramachandra started running towards open field. All the accused persons chased him and caught hold of him. They came to main road by dragging him. At that time people were gathered near the tent. At that time when people questioned, they told that Panchayath has to be conducted in the village and hence we are taking him and all the people gathered there went away. Then Suresh by caught holding the neck of Ramachandra who worn towel on his neck near the Auto.
From bare perusal of the portion quoted from the FIR and the portion quoted from the examination-in-chief, it is clear that this witness in the FIR gave only essential and broad picture/description of the events that happened right from the stage of 17th incident till the FIR was lodged. From the above portion in his deposition it is clear that he stated in detail as to what happened from the stage he was taken by deceased to go to Nagamangala to search Ramachandra till they caught hold Ramachandra and made them to sit in the Auto. He did not deviate from what he had stated in the FIR. In the FIR he did not state all the details as he gave vivid description before the Court. In any case even if it is assumed that he stated so many other things in the Court which he had not stated in the FIR, that certainly cannot be called contradictions. We did not find a single contradictory statement having been made in the Court worth noticing and/or changing the story narrated in the FIR, except the fact that no reference was made in the FIR to Rama and Kempa (PW. 10). Merely because there is no reference to Rama and Kempa in the FIR, it cannot be stated that he was not taken by the accused persons to Nagamangala to search the deceased.
The omissions insofar as the aforementioned sequence of events is concerned were put to the police officer (P.W. 24) who recorded the FIR. The relevant portion from the evidence of P.W. 24 reads thus:
and so saying they took me,
And
Rama and Kempa came
And also
there they told me that don''t tell lie, tell where is Ramachandra, I told them that''s it, I do not know, I was sleeping and woke up and come.
And
Rama and Kempa came" He told Rama Kempa took Kumar and made him to stand I will come and at that time we might have gone one furlong out of the village
And
Auto came from behind, Suresh brought the auto by driving the same and the accused persons i.e. other accused persons who are present before the court i.e. A2 to 5 came by sitting in the auto.
And
at that time Suresh told me, Kempa and Rama to board the auto
-has not stated as such before me. The witness volunteers that the complainant has stated that the is at Nagamangala but I do not know where. The complainant in his complaint given before is under that:-
Kempa and Rame get down near Venkateshwara Talkies
And
Suresh questioned me at Nagamangala where is he tell me correctly
And
show the place where slept and so saying he took me
And
then I showed the place and the accused persons got opened the room by calling the keys from Narayani and looked
And
again Suresh and all other accused persons went near T.B."-not stated as such.
The complainant in his complaint given before me as under i.e.:
he will not go anywhere, he is an picture addict, he might have gone of the picture, he will come out during the interval, if not we will go towards Bellur at that time it was 12.15 PM
And
I was sitting under the tree which is situated outside the theatre, at that time we came near the cinema tent, I forgotten the name of the said tent, it was situated on the left side of the Main Road ion Nagamangala. In the direction of going towards TB at the left side at that time it was interval and I was sitting under the tree, then Suresh and Nanja were looking towards tent, then they stopped the auto near the College. Nanja told see Ramachandra is there only and even though compound gate of the tent was locked at that time Suresh, Nanja, Murthy, Sannamari, Siddaramu all of them jumped the gate and ran to caught hold of him and Ramachandra after seeing them ran towards open field and all the accused persons chased him and caught hold of him.
And
they have caught him at a distance of furlong from the talkies, they have chased him for about 5 minutes, at that time hundreds of people witnessed the same and when they came to the road by dragging they came to main road
And
at that time people gathered near the tent" and also
at that time when people questioned, they have stated that we are taking him for convening panchayath then people disbursed" not stated as such in the complaint
there one Bettegowda who was acquainted to me present in the group questioned
at that time by holding the neck of Ramachandra who was wearing towel and took him near the auto, Sannamari took me dragging
It is pertinent to note that this witness (PW. 8) took the villagers (P.Ws. 9 and 11, in particular) to the scene of offence which was not a public place and it was in a forest (jungle) or at remote place and that too immediately after the assault, as stated by him. We would consider the deposition of other witnesses little later. At this stage, suffice it to say that according to the prosecution, when PWs. 8, 9 and 11 went to the scene of offence, Ramachandra was alive. Then, he also could lead the police where the axe was thrown. If this witness had not seen the occurrence, the question that would arise is, as to how could villagers reach the scene of offence immediately, and as to how he (PW. 8) could state in the FIR itself that the axe (MO. 1) was thrown in theriver (Palkare) and how it was recovered. Taking P.Ws. 8, 9 and 11 to the scene of offence and finding of axe at the instance of P.W. 8, authenticate his claim that he was with the accused persons when the incident occurred. Even if it is assumed that the omissions are in the nature of improvements, merely because he improved his version would not mean that he is not a genuine eyewitness. In our opinion, the omissions, show that this witness gave vivid description of every minute detail in his evidence before the court which at the most one can say that he exaggerated the version. Insofar as actual incident and the main events before and after the incident are concerned, he did not make any contradictory statement before the Court. For instance, before Court he did not state, instead of A-1 it was A-2 who assaulted or instead of axe the deceased was assaulted with chopper. We did not find any contradictions of such nature in his deposition before the Court. In our opinion, the vivid description or further details or for that matter an exaggeration would not lead to an inference that he did not witness the occurrence. His presence, in our opinion, cannot be doubted at the scene of offence, otherwise he could not have lead P.Ws. 8, 9 and 11 to the scene of offence within less than 2-3 hours of the incident and pointed out to the police where the axe was thrown by the accused.
In this connection, we would like to refer to the judgment of the Supreme Court in Rattan Singh vs. State of H.P., [1997 SC (Cri.) 525], wherein Supreme Court while dealing with omissions in FIR in paragraph 9 observed thus:-
9.... But Criminal Courts should not be fastidious with mere omissions in First Information Statement, since such statements cannot be expected to be a chronicle of every detail of what happened, nor to contain an exhaustive catalogue of the events which took place. The person who furnishes first information to authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often the Police Officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is the voluntary narrative of the informant without interrogation which usually goes into such statement. So any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all. (Vide Pedda Narayana vs. State of A.P; Sone Lal vs. State of U.P; Gurnam Kaur vs. Bakhsish Singh.
(emphasis supplied)
In Baldev Singh and another Vs. State of Punjab, the Supreme Court while observing that the FIR is not substantive piece of evidence, in paragraph 10 observed thus:-
10..... Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an "encyclopaedia" of the occurrence. It may not be even necessary to catalogue the overact acts therein. None mentioning of some facts or vague reference to some others are not fatal. We should also bear in mind that the FIR was given by PW-5, who is an illiterate lady soon after the occurrence, when she should have been very emotional and in a disturbed state of mind......
(emphasis supplied)
It is not essential that the complainant should state in the FIR all minute details. It need not contain details of the occurrence as if it were an encyclopedia of the occurrence and non mentioning of some facts or making reference to some others are not fatal. So, any omission in the evidence of the complainant has to be considered along with the other evidence to determine whether the fact so omitted never happened at all.
Having regard to the law laid down by the Supreme Court, we find that PW. 8 stated in detail as to how every event and the incident occurred in the Court, and merely because he had not stated so in the FIR, would not make the testimony of this witness unreliable. On careful perusal of the FIR and the deposition of P.W. 8, we are satisfied that he did not make any change in the case/story reflected in the FIR, which was recorded without wasting any time. Apart from the omissions which were tried to be brought on record in the cross-examination of this witness, we did not find anything worth elicited from this witness so as to discard his evidence.
We have also gone through the judgments relied upon by learned counsel for the appellant. The Supreme Court in HALLU (supra) observed that it is generally not easy to find witness on whose testimony implicit reliance can be placed. It is always advisable to test the evidence of witnesses on the anvil of objective circumstances in the case. In BADAM SINGH (supra) the Supreme Court observed that if the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is doubtful, the Court may reject their evidence. That is why it is necessary for the High Court to critically scrutinize the evidence in some detail, it being the final Court of fact. In the present case, we have critically scrutinised the evidence of P.W. 8 in detail. In A. SHANKAR (supra) Supreme Court observed that where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence.
In the present case as observed earlier, none of the omissions in our opinion would amount to contradiction, creating a serious doubt about the truthfulness of the witness. Even if it is assumed that the witness made improvements but those improvements cannot be stated to be made in order to make the evidence acceptable. As a matter of fact, P.W. 8 has not made any material improvement deviating from the original statement, i.e. the FIR. He has not made any change in the story reflected in the FIR. In RAM SWAROOP the complainant''s version before the Court was quite different from what he had stated in the FIR and in this background it was held that his evidence was not consistent with the medical evidence and therefore, not reliable. In our opinion, this Judgment also is of no avail to the defence. In RAGHUNATH (supra) the delay in lodging the complaint was held to be fatal in view of the fact that the complainant party proceeding with injured to hospital but not lodging complaint at either of two police stations on the way. Having regard to the facts of the present case, this Judgment relied upon by the learned counsel for the appellants, also in our opinion is of no avail to the defence. In LUNA RAM (supra) Supreme Court having considered the contradictions, inconsistencies and exaggerations or embellishments were not minor in nature and hence held that the acquittal was justified. Such a view, in the facts of the present case, cannot be taken.
We would now like to examine the evidence of other witnesses to find out whether their evidence corroborate the ocular version of PW. 8. In this connection, we refer to the evidence of first set of witnesses, namely, PWs. 1, 2, 3 and 4. They were examined by the prosecution to prove the motive and/or the incident of 17th November, 1999. Insofar as PW. 1 is concerned, she turned hostile, and hence we do not make any reference to this witness. PWs. 2 to 4 were the neighbours of accused No. 2. Insofar as PWs. 2 and 3 are concerned, they were present and witnessed the incident that took place at about 10.00-10.30 pm., on 17.11.1999. Undoubtedly, in the evidence of these two witnesses also several omissions were brought on record. All the omissions brought on record are of similar nature as we found in the evidence of PW. 8. From bare perusal of the depositions of these two witnesses, we are satisfied that the 17th incident, as claimed by the prosecution, occurred at 10.30 p.m. near the house of A-2. Houses of PWs. 2 and 3 were adjacent to the house of A-2. A-2 was not present at the relevant time and, as deposed by them, his wife alone was there when the deceased visited her in the night. These two witnesses and some other neighbours strongly objected the visit of the deceased to the house of A-2 in his absence when his wife alone was in the house. To this extent their evidence is consistent and, in our opinion undoubtedly supports the prosecution to show that there was a galata (commotion) in the night at 10-10.30 pm., on 17.11.1999. They stood the test of cross-examination, insofar as the visit of Ramachandra in the night to the house of A-2 when his wife (PW. 16) alone was there and that he was seen by neighbours and they objected to his visit in the absence of A-2.
The next set of witnesses are PWs. 5, 6 and 7. In the backdrop of the incident that occurred in the night on 17th, a panchayath was convened in the house of accused No. 2 and to prove the meeting/panchayath and the proceedings before it, the prosecution examined PWs. 5, 6 and 7. All these witnesses support the evidence of PWs. 2 and 3, who speak about the galata in the night on 17th. These witnesses also stated more than what they had stated before the police. However, we did not find any contradiction in the evidence of these witnesses. These witnesses were examined only to prove that the panchayath was called in connection with the incident that occurred on 17th night. PWs. 6 and 7 were also members of the panchayath. They deposed the purpose for conducting the panchayath and presence of the accused, in particular A-2. It is also revealed from the evidence of these two witnesses that after the incident on 17th night, Padmamma (PW. 16) was found missing and even deceased was not available in the village. These three witnesses, undoubtedly, improved their version before the Court stating that the accused before the panchayath had stated that he would cut the limbs of Ramachandra. They had not stated so before the police. Even if this part of their deposition is overlooked, their presence in the meeting (panchayath) that was held on 18.11.1999 in the evening was natural, being members of the Panchayat, cannot be doubted. Their evidence clearly show that even the other accused were also present when the panchayath was held and that in the meeting the only discussion was regarding the visit of Ramachandra to the house of A-2. Thus the evidence of PWs. 2, 3, 5, 6 and 7 does support the prosecution and corroborate the evidence of PW. 8 in respect of the incident that occurred on 17th night involving the deceased, the wife of accused No. 2, PW. 2 and PW. 3. About the incident that occurred on 17th, PW. 8 heard on 18th morning when people were talking about the same while taking tea, including Nanjegowda (PW. 5) and Suresh (PW. 6). PW 5 and PW 6 support PW 8 in respect of 18th morning incident also. PW. 8 confirms about the 17th night incident, which he heard while taking tea in the morning on 18th. Thus their evidence insofar as the incident of galata on 17th night and the incident in the morning on 18th stand clearly proved.
That takes us to consider the evidence of PWs. 9 and 11. These two witnesses were informed by PW. 8 about the alleged incident when he first returned to the village after he was dropped by the accused on 19th at about 2.30-3.00 pm. near village. Srinivas (PW. 9) knew the accused persons and so also PW. 8 and the deceased.
He deposed that when he was standing near the house of Venkatesha (PW. 11) along with Venkatappa, PW. 8 informed him about the incident of assault by accused Nos. 1 to 5. They immediately informed to PW. 11-Venkatesh, the brother of the deceased and left towards the scene of offence along with PW. 8 in a Tata Sumo. He specifically deposed that PW. 8 led them to the scene of offence and showed the place where the deceased was lying. When they reached the scene of offence, he stated that the deceased was alive. They immediately removed him to the hospital, where he was declared dead. Similar is the deposition of P.W. 11. In their evidence also we find omissions/improvements. But so far as the case of the prosecution is concerned, they corroborated the testimony of P.W. 8 to the extent that they were informed by PW. 8 about the incident, they immediately rushed to the scene of offence, they brought the deceased to the hospital and from there they rushed to the police station to lodge the complaint after the deceased was declared dead. We did not find anything in the cross-examination worth discarding their evidence. On the contrary, their evidence supports the case of the prosecution and corroborates the deposition of PW. 8.
PW. 10-Kempegowda was examined only to show that he was with the accused persons and PW. 8 when they left the D.M. Halli village on 19th morning to search the deceased. His evidence would support the prosecution case to this extent. From his evidence, in our opinion, the prosecution has successfully established that the accused persons left the village in the morning on 19th to search the deceased for Nagamangala along with P.W. 8. Thus to that extent he also corroborates the evidence of PW. 8.
PW. 12-Manju, PW. 13-Honnamma, PW. 14-Sami, PW. 15-Krishnamurthy and PW. 16-Padmamma turned hostile and their evidence is of no avail to the prosecution. In our opinion, their evidence would not either help or affect the case of the prosecution insofar as the allegation against the accused persons of murdering Ramachandra is concerned.
The statement of P.W. 27 u/s 161 of Cr.P.C. was not recorded by the Investigating Officer during investigation, though he was specifically referred/named by PW. 8 in the FIR. The reference to PW. 27 in the FIR would show that he was not introduced for the first time in the Court. It is true the prosecution ought to have recorded his statement u/s 161 during investigation. He was, however, examined to establish that in the night on 18.11.1999 the deceased and PW. 8 were together and they slept at his place since they did not have any conveyance to go back to their village. Even if the evidence of this witness is completely ignored, still, in our opinion, the evidence of PW. 8 is sufficiently corroborated by the other witnesses to establish that Ramachandra and this witness were together right from 18th morning till next day morning.
If we see the sequence of events, reflected in the depositions of P.Ws. 2 to 11 that support the prosecution case that they (deceased and P.W. 8) were together from 18th morning till 19th morning. On 18th morning they left together in the presence of persons at the tea stall including P.W. 5 and P.W. 6 and that is how the accused came to know that the deceased was with PW. 8 and that seems to be the reason why accused approached PW. 8 on 19th in the morning to enquire whereabouts of the deceased and they took him to Nagamangala. Thus, even if the evidence of this witness (PW 27) is overlooked, still it stands proved that the deceased and PW. 8 were together from 18th morning till 19th morning when he returned to his village.
It was submitted on behalf of the appellants that though it was possible for the investigating officer to seize the blood stained clothes of the accused and so also of P.Ws. 8, 9 & 11 the investigating officer failed to do so and that creates doubt about the testimony of PW. 8.
In this connection, we would like to refer to the judgment of the Supreme Court in Harpal Singh Vs. Devinder Singh and another, In this case a person gave the first information statement to the police in which he claimed that he had seen the occurrence and narrated the incident with all details. He was one of those who helped the injured persons to reach the hospital at the earliest point of time. His clothes got smeared with blood during the rescue operation. The Supreme Court in this background observed that from the omission of the Investigating Agency to attach the blood stained clothes it could not be inferred that he had not seen the occurrence. If the clothes worn by the injured or the victims were not recovered by the investigating team that perhaps would provide a handle to the defence to attack the prosecution case. But no investigating agency would normally take the trouble to seize the clothes worn by witnesses at the time they saw the occurrence and merely because their clothes too had stains of blood during any post-event activities. At any rate Supreme Court observed that said omission on the part of the investigating agency is not a flaw of that type to invite the consequence of rejecting his testimony.
It is true that in the present case had the prosecution seized/attached the clothes of P.W. 8 that would have definitely strengthened their case. However, having regard to overall facts and circumstances and the nature of evidence, in our opinion, the said omission on the part of the Investigating Agency is not a flaw of that type to invite the consequence of rejecting the complainant''s testimony.
Insofar as the clothes of the accused, in the present case, are concerned, there was no question of attaching their clothes since they surrendered after about 16 days and that too before the Court. In other words, the accused were not apprehended immediately after the occurrence.
Next we would like to consider the medical evidence placed on record by the prosecution. On the basis of the post mortem report and so also the evidence of Dr. Puttaswamy-PW. 20 it was vehemently submitted that the incident did not occur on the date and at the time, as stated by PW. 8, and that the death of Ramachandra occurred much before the time of the occurrence reflected in the deposition of PW. 8. In short, it was submitted that PW. 8 was not a genuine eyewitness and whatever stated by him about the alleged incident is not true or that he is not a truthful/reliable witness. These submissions were made on the basis of the admission given by PW. 20, in reply to the question, during cross-examination, that "deceased might have died 24 hours prior to the time at which the dead body was kept in the cold storage and not 25 to 28 hours as suggested". Our attention was also invited to some other admissions given by the doctor in support of this contention. It was further submitted that according to the doctor and so also the post mortem report, when the post mortem was conducted the rigor mortis was fully developed, which indicates that the incident did not occur on 19th at 1-1.30 pm., as stated by PW. 8. In support of these contentions learned Counsel placed reliance upon the judgments of the Supreme Court in Kunju Muhammed @ Khumani and Another Vs. State of Kerala, Bhagwan Baliram Bari and Another Vs. State of Maharashtra,
On the other hand, Mr. Nawaz, learned Additional SPP after inviting our attention to all the relevant facts, namely, the time of occurrence of the incident, the time when the dead body was kept in the cold storage, the time when the dead body was taken out of the cold storage and the time of post mortem submitted that final opinion given by the doctor is consistent with the prosecution case. He also invited our attention to the Taylor''s Medical Jurisprudence and so also the Modi''s Medical Jurisprudence to contend merely because the Rigor Mortis was fully developed when the post mortem was conducted, does not mean that the incident did not occur at the time and on the date as narrated by PW. 8.
The prosecution examined two doctors namely Dr. M.G. Shivaramu (PW 19) and Dr. Puttaswamy (PW 20). PW 19 simply testified that Dr. ASRK Prasad was working as Professor and Head of Department of the Forensic Medicine, AIMS at the relevant time and he produced the documents in support thereof. This was in order to show that Dr. Prasad was working in the said Hospital at the relevant time, who conducted the post mortem. All the documents produced by him in support of his deposition were taken on record and marked as Exs. P10 to P15.
Dr. Puttaswamy (PW 20) was working as a Forensic Specialist at the time when his deposition was recorded. It was recorded on 4.2.06. He personally did not conduct post mortem of the dead body of Ramachandra. He deposed that Dr. Prasad was Professor and Head of the Department of Forensic Medicine at the relevant time (i.e. January 1997 to June 1997). He also stated that to the best of his knowledge, Dr. Prasad, on the date of evidence, was not alive. He also produced relevant documents in support of his deposition that Dr. Prasad conducted the post mortem. He also identified handwriting and signature of Dr. Prasad on the post mortem report bearing Ex. P12. Then, he also produced a letter written by Circle Inspector of Nagamangala Circle to the Professor and Medical Officer, Department of Forensic Medicine AIMS Hospital, Belluru. By that letter, the Investigating Officer, sought opinion of Dr. Prasad whether injuries found on the person of the deceased were possible with axe (MO1). Dr. Prasad, made an endorsement on the said letter (Ex. P17) stating "Yes possible", which appears at Ex. P17(a).
It is on the basis of the opinion expressed by Dr. Prasad and the post mortem report, PW 20 also deposed that the injuries mentioned in the post mortem were possible with axe. In the cross-examination, PW 20 stated that it is true if a person is assaulted with a cutting edge of such weapon the injury that may be caused would be either a "cut lacerated wound" if less force is applied or a "chopped wound" if great force is used. After expressing the opinion and after having seen the injuries mentioned in the post mortem notes, he fairly admitted that in the post mortem report it is not mentioned that the wound was either cut lacerated wound or chop wound. He then opined as per the PM report, all the external injuries were lacerated one. He further admitted that the injuries inflicted on the deceased were possible with a weapon other than the axe (MO1) which was shown to him.
It is true that in the PM report, the wounds were not described either as ''cut lacerated wound'' or ''chopped wound''. Despite this, Dr. Prasad in reply to the letter (Ex. P17) and this witness, in his examination-in-chief, clearly opined that the injuries found on the person of the deceased were possible with axe (MO1) and that they were described as lacerated wounds. We do not find any reason to hold, as vehemently contended by learned counsel for the appellants, that the injuries mentioned in the PM report were not possible with the weapon like MO1. In our opinion, the prosecution by bringing the evidence in the nature of PM report the letter Ex. P-17, and the deposition of PW 20 has proved that the injuries mentioned in the PM report were possible with the axe (M.O.1).
That takes us to consider the argument that in view of the opinion expressed by the doctor in respect of rigor mortis it cannot be stated that the incident occurred on the date and time as stated by PW 8. According to the prosecution, the actual incident of assault occurred on 19.11.99 at about 1.00 pm. PW 8 informed about the incident to the villagers, more particularly to PWs. 9 and 11, at about 2.30 p.m. on the same day. PW 8, 9 and 11 are not consistent in respect of the exact time, however, they state that they reached the scene of offence in Tata sumo vehicle at about 2.30 p.m. It has also come on record that the distance between the village D.M. Halli and the scene of offence was about 14 Kms. They brought Ramachandra to the Adi Chunchanagiri Medical College Hospital. Though the distance between the scene of offence and the hospital has not come record, they reached the hospital, as stated by PW 11, sometime between 3.30-4.00 p.m.
In the hospital, Ramachandra was declared dead and thereafter, all the three witnesses went to Nagamangala police station for lodging an FIR and the FIR was recorded and the crime was registered between 6.00-7.00 p.m. The exact distance between the hospital and the police station is also not on record. Therefore, it is not possible to state at what time these witnesses left for the police station from the hospital.
Then, it has come on record in the evidence of PW 20 that the dead body of Ramachandra was kept in the cold storage about 3.10 p.m. at 19.11.99. This timing was subsequently mentioned by Dr. Puttaswamy (PW 20). Except the time mentioned in the PM report, there is no other material on record to show at what time the dead body was kept in the cold storage. There is nothing on record to show on what basis Dr. Prasad mentioned the time in PM report. PW 20 did not state anything from his personal knowledge and he deposed only on the basis of the PM report prepared by Dr. Prasad. From the evidence of PWs. 8, 9 and 11, it may not be correct that the dead body was kept in the cold storage at 3.10 p.m. on 19.11.99. From the depositions of all the witnesses and having regard to the sequence of events placed on record by the prosecution, it reveals that the dead body must have been kept in the cold storage some time between 4.00-5.00 pm on 19.11.99. PW 11 in his deposition, stated that they reached the hospital at 3.30 pm. The timings mentioned by all the witnesses seem to be approximate time given by them.
Thereafter, on the next day morning inquest panchanama was drawn in the mortuary when the body was taken out from the cold storage. On the basis of the inquest panchanama, it was submitted that the inquest panchanama was drawn keeping the dead body in the cold storage itself. We have perused the inquest panchanama with the assistance of learned counsel for the parties. The submission of learned counsel for the appellants that the inquest in the cold storage, in our opinion, must be rejected out right. The body was in the box and it was taken out for conducting inquest and the process of inquest panchanama went on for about two hours. It got over some time around 9.30 a.m. and then the body was sent for post mortem as per the requisition issued by Dr. Prasad. He received the dead body at 10.00 a.m. on 20.11.99 for conducting PM examination. On the basis of the PM report, PW 20 deposed that the PM examination commenced at 10.00 am on 20.11.99.
Thus, from the sequence of events mentioned above, it is clear that the dead body was out of cold storage for about three hours before it was kept in the cold storage and three hours after it was taken out and it was lying in the cold storage for about 16 hours. This will have to be kept in view while appreciating the submissions advanced by learned counsel for the appellants and while re-assessing the medical evidence.
PW 20, in his examination-in-chief, has deposed that rigor mortis was present through out the body and it was kept in the cold storage at 3.10 pm on 19.11.99. Then, in the examination-in-chief, on the basis of the PM report, he opined that the approximate time of death was 24 hours prior to PM examination and that the injuries were fresh. Admittedly, PM examination was concluded at 11.30 am on 20.11.99. He also opined that the death was not instantaneous.
This opinion of P.W. 20 supports the testimony of P.Ws. 8, 9 & 11 who stated that when they reached the scene of offence, the deceased was alive. Even if it is taken that he was not alive, the opinion of the doctor clearly indicates that he died of the assault, as narrated by P.W. 8, which, according to him, occurred at 1.00 PM on 19.11.1999 and that the injuries were fresh. This does not support the defence that the death occurred 25-28 hours before it was kept in cold storage.
In the cross-examination, P.W. 20 stated that cold storage facility was available in the hospital at the relevant time. He also stated that it was not possible for him to state, on the basis of PM report, as to at what time exactly the dead body was taken out from the cold storage. In any case, it was not possible either for him to state at what time the body was taken out from the cold storage for PM examination. The PM report would not show the timing. He then deposed that when the incident occurred and the PM was conducted it was November/December. Then in the cross he admitted that the deceased had healthy muscles. He then admitted that all ante mortem internal injuries noted in PM report (Ex. P-16) corresponded to 7 external injuries mentioned therein and they caused serious damage to the blood vessels in the body. He also opined that blood must have gushed out from his body within few minutes. He further opined that the deceased might have suffered great shock after receiving the injuries. Such injuries, according to P.W. 20, would positively make the injured unconscious and Ramachandra must have died while he was unconscious. Then in the cross-examination, he opined thus:
If the dead body of a person is kept in a cold storage immediately after the death, the on set development, subsistence and disappearance would considerably come down. "Considerable delay means it is ranging from 85 to 90% (had not the dead body been in a cold storage it could have been 100%.
On the basis of the PM report he admitted in the cross-examination that the rigor mortis was present throughout the body and further clarified, that means all over the body. Then he stated that the rigor mortis once developed would continue to remain all over the body with same condition for over a period of 12 hours before it starts to disappear in this region. Then he stated that in this region it takes 2-3 hours for the rigor mortis to set in. Then having regard to the dead body, on the basis of PM report he stated in the cross that in the cold season if the dead body is not kept in cold storage it normally takes about 18 hours for the rigor mortis to start and develop completely all over the body from the time or setting in of the rigor mortis. Despite this opinion, he further opined that in the present case, it was difficult for him to say as to how long prior to PM examination the rigor mortis had set alt over the body. Then on the basis of the PM report he opined that the deceased might have died 24 hours prior to the time at which the dead body was kept in the cold storage and not 25-28 hours as suggested.
We have perused the PM report very carefully and we did not find any indication in the PM report so as to express such opinion. This opinion of P.W. 20 is not consistent with the opinion expressed by Dr. Prasad in the PM report. Dr. Prasad, who actually conducted the PM, in the report noted that the death must have occurred within 24 hours before PM examination. He (P.W. 20) then opined noting in the PM report "as less than 24 hours ago prior to PM examination with reference to the exact time of death is confusing and not clear".
On the basis of the aforementioned admissions given by the doctor (P.W. 20) it was vehemently submitted that under any circumstance, the death cannot be stated to have occurred on the date and at the time reflected in the evidence of P.W. 8. Taking the opinion expressed by the doctor in view, it is clear the rigor mortis must have started to set in 1-2 hours before the dead body was kept in the cold storage. The process of developing rigor mortis after it was kept in the cold storage, as opined by the doctor undoubtedly must have come down considerably. Even if we take the opinion of the doctor as correct, the considerable delay means from 85% to 90% and that if the dead body had not been in the cold storage it could have been 100% as correct, the process of developing rigor mortis continued even in the cold storage. The body was in the cold storage for about 16 hours. Then the question would arise as to what extent the rigor mortis developed while the dead body was in the cold storage. There is no clear opinion of the doctor on record in respect thereof. Then the dead body was taken out of the cold storage and it was out for about 3 hours. Once the dead body is taken out of the cold storage, the rigor mortis spreads with rapid speed.
In this connection, we would like to refer to Taylor''s Principles and Practice of Medical Jurisprudence, 12th Edition. The author in this book has expressed that rigor mortis usually commences within 2-4 hours of death (in western countries), though it may not become evident until 5 or 7 hours have passed. To this general statement, there are, however, numerous exceptions as stated by the author, some of which were explained by physical facts, for example, freezing at death or "cooking" of muscle by intense heat, some by "covering" phenomena such as cadaveric spasm or electrical spasm, some on biochemical grounds. Its ultimate onset is a matter concerning the muscles only, and is independent of the integrity of the nervous system, for a division of nerves leading to particular muscles or even the removal of the brain has not been found to prevent its occurrence; it also occurs in amputated limbs. Then an example has been quoted by the author which reads as under:
In the case of R.V. Alcott (Surrey Assizes, 1952) a young man was found stabbed to death in a railway booking office. When he was first examined, one hour after the crime, rigor mortis was absent; two hours later, however, it was complete. The deceased had fought the attacker vigorously before receiving a fatal wound.
On the basis of the aforesaid example he further noted that it is easy to understand that it should come on slowly in healthy, muscular subjects who have died without convulsions, as, for instance, by decapitation, by sudden haemorrhage, by judicial or even other forms of hanging. In such cases the muscles have no more than the average amount of waste metabolites in them, and have their usual circulation at the moment of death, conditions favourable to the continuance of local life, of which rigor marks the end.
Then, while considering the effect of freezing, the author expressed that, when a body is frozen so rapidly after death that there has been insufficient time for acid metabolites to appear in the muscles the process of rigor mortis is suspended until thawing takes place. When the body thaws rigor mortis appears with great rapidity and passes off very rapidly.
In the present case, the body was out of cold storage for about 6 hours and in the cold storage for about 16 hours. After it was taken out from the cold storage it was out before the post mortem for about 3 hours. On the basis of the opinion expressed by P.W. 20 and Taylor''s Medical Jurisprudence, in our opinion there was sufficient time for the rigor mortis to spread all over the body. In other words, it cannot be stated that merely because rigor mortis all over the body was noticed by Dr. Prasad at the time of post mortem examination, the death did not occur at the time mentioned by P.W. 8. We are drawing this inference not only on the basis of the opinion expressed by the doctor as mentioned above but also on the basis of the opinion expressed by Dr. Prasad which was also endorsed by P.W. 20 in his examination-in-chief that the death must have occurred within 24 hours prior to PM examination.
The Supreme Court in KUNJU MOHAMMED (supra), on the basis of evidence of the doctor as to the presence of rigor mortis on the body of deceased held that the trial Court was justified in its finding that the death had occurred much earlier than the time mentioned by the prosecution. The facts of the case before the Supreme Court and the facts of the present case are totally different. In that case the dead body was not kept in the cold storage as it happened in the present case. As we have observed that when the dead body is taken out of the cold storage, the process and development of rigor mortis moves with rapid speed. In our case, body was out of cold storage for about 3 hours before the post mortem.
Mr. Nawaz, learned Addl. S.P.P. submitted that the evidence of P.W. 8 and the other witnesses prove beyond all reasonable doubt that the incident occurred in the manner in which P.W. 8 deposed before the Court and in view thereof, even if it is accepted that medical opinion is not consistent with the ocular version, the ocular version cannot be rejected outright. He submitted that the evidence of P.Ws. 8, 9 & 11 and so also the other witnesses clearly establish the guilt of the accused and that the evidence of P.W. 8 being wholly reliable and even if the opinion of the doctor is not taken as consistent with his testimony, his evidence cannot be rejected. On the contrary, he submitted, the medical evidence in such a situation can be brushed aside and conviction can be based on the evidence of wholly reliable eye-witness. In support, he placed reliance upon State of U.P. Vs. Hari Chand,
On the other hand, learned counsel for the appellant placed reliance upon the Judgment of the Supreme Court in Kapildeo Mandal and Others Vs. State of Bihar, to contend that if the medical evidence is inconsistent with the ocular version, the medical evidence assumes importance and in view thereof, the ocular version in the present case ought to have been rejected by the trial Court. Then he placed reliance upon the Judgment of the Supreme Court in Hallu and Others Vs. State of Madhya Pradesh, in support of the said proposition.
In KAPIL DEO MANDAL''s case there was a variance between two ocular evidence and in view thereof, Supreme Court observed that if it is not consistent with the medical evidence, the medical evidence assumes importance. The Supreme Court in paragraph 11 thereof observed that when the Court finds consistency in the evidence given by the eye-witnesses which is totally inconsistent to that given by the medical experts, then the evidence is appreciated in different perspective by the Court. After referring to this Judgment in Mohinder Singh Vs. The State, and in Mani Ram and Others Vs. State of U.P., the Supreme Court observed in the light of the facts of the case before it, that in a situation and circumstances, prevailing in that case, the medical evidence will assume importance while appreciating evidence led by the prosecution, by the Court and will have priority over the ocular version and can be used to repel the testimony of the eye-witnesses as it goes to the root of the matter having an effect to repel conclusively the eye witnesses'' version to be true. This observation was made in the light of the fact that the medical evidence in that case was to the effect that there were no fire arm injuries on the body of the deceased, whereas the eye witness version was that the accused-appellants were carrying fire arms and the injuries were caused by fire arms.
It is well settled that the medical evidence when specifically rules out the injury claimed to have been inflicted as per the eye-witnesses version, then the Court can draw adverse inference to the effect that the prosecution version as being put forth before the Court is not trustworthy. In the present case, it cannot be stated that the medical evidence rules out the injuries sustained by the deceased. On the contrary, medical evidence supports the ocular version in respect of the injuries suffered by the deceased. In our opinion the Judgment of the Supreme Court in HALLU also is of no avail to the appellants.
The Supreme Court in State of U.P. v. Hari Chand (supra) while dealing with the ocular evidence vis-�-vis medical evidence held that if eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not acceptable as conclusive. It would be relevant to notice the observations made by the Supreme Court in paragraph 14. Paragraph 14 reads thus:
It is trite that where the eye-witnesses'' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye-witnesses'' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the ''credit'' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
We have considered the evidence of all the witnesses and more particularly, the solitary eye-witness (P.W. 8) and we found it credible and trustworthy. In view thereof, the contention that the medical evidence is inconsistent also deserves to be rejected outright apart from the fact that we do not find it inconsistent with the ocular version. We may also refer to Kunju @ Balachandran Vs. State of Tamil Nadu, In this case, the Supreme Court after referring to its Judgment in Vadivelu Thevar Vs. The State of Madras, observed that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no impediment in convicting a person on the sole testimony of a single eye-witness. But if there are doubts about the testimony, the Courts will insist on corroboration. It is for the Court to act upon the testimony of witnesses. In the present case, though we find evidence of P.W. 8 reliable, it has also been corroborated by evidence of other witnesses and more particularly P.Ws. 2 to 11.
We have, therefore, no hesitation in holding that the prosecution has proved beyond all reasonable doubt that the accused are guilty of the offence of murder.
Hence, the appeal is dismissed.
Before we part, we place on record a word of appreciation for the assistance rendered by Mr. Chandrashekhar, learned Counsel for the appellants and Mr. Nawaz, learned Additional SPP for the State. We have heard them at length and they rendered able and useful assistance in the course of hearing of the appeal.