Rizwan vs Fahad and Others

Mohan M. Shantana Goudar, J—The judgment and order of acquittal passed by the District And Sessions Court, Ramanagara, Dated 08.07.2010 passed in Session Case No. 54/2007 is called in question in this appeal by the appellant-PW-2. The appellant is none other than the brother of the deceased. The State has not filed appeal.

The case of the prosecution in brief is that the deceased Ufran and the accused were friends. On 12.01.2006 i.e., on Bakrid Festival day, all the four accused came to the house of Ufran at about 8.30 p.m., while Ufran after having festival dinner was talking with his brothers in his house. The accused as aforementioned came on three motor bikes to call Ufran to celebrate the festival. Sri. Khaleel Ahammed, father of Ufran told the accused that Ufran and all his family members have already had festival dinner and therefore Ufran will not come with them. However, the accused persuaded Ufran to accompany them and that they will leave him back to his house within half-an-hour. Thereafter, all the accused with Ufran proceeded to C.P.T. Garden, Family Restaurant, which is situated in out-skirts, in Bangalore-Mysore Road, Chennapatna. All the accused consumed alcohol liquor and had their dinner however Ufran did not share food with the accused as he had dinner already in the house. When the bill was given by the supplier Manjunath (PW-3), all the four accused forced Urfan to make the payment. However, Urfan refused, as he did not share food and that he just accompanied them on their request. However, the accused started quarreling with Urfan to make the payment of the bill but Urfan avoided and left the hotel and proceeded to his home on his bike. All the four accused followed Urfan and they came near Kuvempunagar, K.S.I.C. Mill main gate and the accused thereafter stabbed Urfan with a knife on waist and on various parts of the body. Consequent to which, Urfan succumbed to the injuries and fell on the ground. The accused hurriedly left the place throwing the knives in the bush situated nearby to the place of the incident.

While going to the house, accused No. 1 had intimated about the incident to Suheil (PW-4). On receiving the said intimation at about 1.00-1.30 a.m. on 13.01.2006, Suhail rushed to the house of PW-2, brother of the deceased and knocked the door. PW-4 informed PW-2 about he getting the information about the assault on Urfan.

Immediately, PWs 2 and 4 left the house and went near the place of the incident. They saw the victim with bleeding injuries. While shifting the victim to the hospital, the victim Urfan told PWs 2 and 4 that all the accused stabbed him with knives. However, Urfan was declared dead when he reached the hospital at 3.00 a.m. on 13.01.2006. PW-2 lodged a complaint as per Exhibit-P3 before the Sub-Inspector of Police, Chennapatna came to be registered in Crime No. 2/2006.

PW-22, Inspector of Police, laid the charge-sheet after completion of the investigation. In order to prove the case, the prosecution in all examined 24 witnesses and got marked 34 Exhibits and 22 Material-Objects. As aforementioned the trial court on appreciation of the material on record, acquitted the accused.

Sri. M.S. Rajendra Prasad, Senior Advocate appearing on behalf of the appellant/complainant taking us through the entire material on record contends that the case rests on circumstantial evidence. The prosecution has proved all the four circumstances relied by it beyond reasonable doubt. The circumstances so proved will complete the chain of circumstances and the same would not leave any doubt in the mind of the court about the complicity of the accused in the crime.

According to him the last seen circumstance, the oral dying declaration said to have been made by the deceased just prior to his death, the recovery of the weapons based on the voluntary statement of the accused i.e., seizure of the knives used by the accused under the Amanath Panchanama at Exhibit-P1 are all proved with the help of the evidence on record. Therefore, the case for offence punishable under Section-302 of I.P.C. is made out against all the accused. He further contends that the reasons assigned by the trial court for acquittal of the accused and the conclusion arrived are not just and appropriate.

Per contra, Sri. K.R. Keshavamurthy, learned S.P.P., appearing on behalf of the respondents argued. Contending that the trial court is justified in disbelieving the evidence on record. He further submits that the version of the evidence bristles with contractions, omissions and improvements; none of the circumstances relied upon by the prosecution are proved. PWs 1, 3 and 15 though said to be eyewitnesses to the incident, all of them have turned hostile.

The case of the prosecution fully rests on the circumstantial evidence. The four circumstances relied upon by the prosecution are as under:

a. The accused were last seen with the deceased while leaving the house of the deceased at about 8.30 p.m., on 12.01.2006 as well as in the hotel, prior to the incident occurred.

b. The oral dying declaration made by the deceased which is prior to his death before front of PWs 2 and 4.

c. Recovery of the knives at MOs 8 and 9 allegedly used by the accused for commission of the offence under Amanath Panchanama Exhibit-P7.

d. Seizure of blood stained clothes of accused Nos. 1 and 2 under panchanama Exhibit-P9.

In order to prove the aforesaid circumstances, the witnesses have deposed as under:

PW-1 is the owner of the hotel wherein the deceased and the accused were there from about 9.00 p.m. to 1.00 a.m. prior to the incident on 12.01.2006. He has deposed about the presence of the accused and the deceased on the spot in his hotel

PW-2 is the brother of the deceased. He lodged the complaint as Per Exhibit-P3. He is the appellant in this appeal. The oral dying declaration is made by the deceased before PW-2. PW-3 is the employer of the hotel his evidence is on par with the evidence of PW-1. PW-4 is the friend of PW-2 and accused No. 1. PW-2 was informed by PW-1 about the incident by some persons PW-5 is the witness for scene of offence Panchanama of Exhibit-P4 and PW-6 is the attesting witness to Panchanama at Exhibit-P7, under which the two knives used for commission of the offence have been recovered at the instance of PW-2. PWs-7, 8 and 10 are witnesses for Panchanama at Exhibit-P9 under which the blood stained clothes of the accused were seized.

PW-7 and 8 have turned hostile witnesses. PW-10 has supported the case of PW-9 as witnesses for panchanama of Exhibit-P10 under which clothes of deceased were seized PW-11 is waiter in the hotel; he has deposed about the presence of the accused on the spot. He has also witnesses for Panchanama Exhibit-P9 under which the motor cycles of the accused were sized from the hotel. PW-12 is another witnesses for Exhibit-P7 under which the knives were recovered at the instance of PW-1 and PW-2. He has turned hostile. PW-13 is the witnesses in inquest Mahazar.

PW-14 is the brother of PW-2, he has deposed that the accused took the deceased with them during the night of the Bakrid Eid. PW-15 is the cleaner of the Hotel; he has turned hostile to the case of the prosecution. PW-16 is the constable who carried the articles to the Jurisdictional Magistrate. PW-17 is the P.S.I., who arrested the accused. PW-18 is Photographer who took the photographs of accused and the dead-body. PW-19 is the doctor who has conducted the postmortem examination of the dead body. The post-mortem report is at Exhibit-P23. PW-20 is the Sub-Inspector of police. He has received the complaint lodged by PW-3 and registered case in Crime No. 2/2006; he issued the first information report as per Exhibit-P25. PW-21 is the police constable PW-22 and 23 are the Investigating Officers. PW-22 completed the investigation and laid the charge-sheet. PW-23 has done a part of the investigation. PW-24 is the Engineer who has drawn the sketch of incident as per Exhibit-P29.

As aforementioned, there are no eye-witness to the incident in question. The four circumstances relied on by the prosecution are already mentioned supra.

In order to prove the last seen circumstance, the prosecution has relied upon the evidence of PWs1, 2, 3 and 4. PWs 1 and 3 have deposed that they have seen the accused with the deceased in C.P.T. Garden Hotel during the night of Bakrid Eid.

PW3 is the employee of the hotel. PW1 (owner of the hotel) has deposed that the accused before the court and two other persons came to hotel at about 9.00 to 9.30 PM for dinner at that point of time, PW3 was the supplier; while the accused were taking dinner, 7 to 8 persons came in a red colour Scorpio Vehicle and sat on a table situated adjoining the table of the accused. After finishing the dinner, the accused before the court and two other persons who had come along with the accused were quarreling with the persons who had come on Scorpio vehicle. The quarrel was pecified by PW1. It is specifically deposed by PW1 that the accused and other two persons had come on three motorcycles. PW1 came to know that the accused were quarrelling intersay for payment of bill. By the time, the quarrel took place, the other two persons who had come along with the accused had already left the place. Subsequently, PW1 came to know about the incident of murder in question. All the aforesaid facts have come on record in the examination-in-chief of PW1. Thus the bare perusal of examination-in-chief PW1 would clearly reveal that the accused and two other persons had come to the hotel of the PW1 and by the time quarrel ensued between the accused intersay for payment of bill, the other two persons had left the hotel. The evidence of PW1 would support the prosecution case merely to show that the accused and two other persons, (one of whom may be the deceased) were in his hotel during night and that the deceased was not a party to the quarrel as much as he left the spot along with other person when the quarrel ensued between the accused intersay.

PW3 also deposed that he has seen the accused quarrelling with 7 to 8 persons who were sitting in the adjoining table after dinner. It is also deposed by PW3 that after the said quarrel stopped, the two persons who had accompanied the accused before the court left the place. From the evidence of the PW3 also, it is clear that the deceased had accompanied the accused and was sitting in the hotel along with accused during night of the incident.

However the evidence of PW1 and PW3 is not helpful to the prosecution case to show that the quarrel took place between the accused on the one side and the deceased on the other hand. The evidence of these two witnesses clearly reveal either accused quarreled intersay or quarreled with 7 to 8 persons who had come in a Scorpio vehicle.

PW2 is the brother of the deceased. He has deposed that while he was sitting along with the deceased and all his family members in the house after having dinner at about 8.30 PM on 12.01.2006, all the accused came on motorcycles and asked the deceased to have dinner with them. However father of the deceased did not permit the deceased to go along with the accused, but the accused persuaded the deceased to come along with them for half an hour and accordingly, the deceased accompanied the accused on the other side. From the evidence of PW2, it can be made out that the deceased accompanied the accused at about 8.30 from his house. Though PW2 has proceeded to depose that number of other factors, the same would not be of any help in respect of the last scene circumstance.

PW4 is the friend, of PW2, according to him a telephone call came to him from accused No. 1 intimating PW4 that the boys who had come in a Scorpio vehicle quarreled with the accused and in that quarrel those boys stabbed the deceased with knife/knives.

The incident has not taken place in front of the hotel but it has taken place in front of KSIC showroom situated within Channapattana Town. Thus, it is clear that the incident has taken place after the accused and deceased left the hotel. Be that as it may, the prosecution through the evidence of PWs 1, 2, 3 and 4 proved the presence of the accused along with the deceased during night. Therefore, it is incumbent on the accused to explain as to how the incident has taken place. In the matter on hand, the accused has furnished the explanation in his statement recorded under Section-313 Cr.P.C. to the effect that the accused are innocent and the deceased was chased by the persons who had come to the spot in a Scorpio vehicle. Vaseem (absconding accused No. 3) also ran to avoid from the clutches of those boys who had come in Scorpio vehicle. Subsequently when the accused went and saw, they found the dead body of the deceased. The accused Nos. 2 and 4 have also stated in their statement recorded under Section 313 of Cr.P.C. that the accused are innocent and that the death has occurred because of the persons who had come in Scorpio vehicle. This explanation offered by the accused under Section 313 of Cr.P.C. finds support from the evidence of PW4. PW4 in his examination-in-chief has deposed that he got a telephonic call from accused No. 1 that the deceased was stabbed by a knife by the persons who had come in a Scorpio vehicle. Therefore the defence of the accused probabilised by the evidence of the prosecution witness i.e., PW4. In view of the same, the last seen circumstance may not help the case of the prosecution.

Regarding Oral dying declaration:

According to the case of the prosecution, while PWs 2 and 4 were shifting the victim to the hospital, the deceased told them that the accused assaulted him with knives. PW2 has deposed before the court that the deceased told him that accused Nos. 3 and 4 held him and accused Nos. 1 and 2 stabbed the deceased. While the deceased told so, PW4 was also present. In the cross-examination by the defence, it is brought out by the defence that PW2 has made such version before the court for the first time. In his complaint Ex.P3, he has mentioned that the deceased had told before him that all the accused assaulted him whereas in his deposition before the court he has deposed that accused Nos. 3 and 4 held him and accused Nos. 1 and 2 stabbed him. This portion of the evidence is an omission and the same cannot be ignored under the circumstances of this case.

However the evidence of PW2 is not supported by the evidence of PW4. PW4 was treated hostile by the prosecution witnesses in as much as he did not even speak before the court regarding oral dying declaration said to have been made by the deceased. Thus there are contradictory versions with regard to oral dying declaration. If really the oral dying declaration was made before PWs 2 and 4, PW4 may not missed to depose the same before the court more particularly when he is the close friend of deceased and he is the person who gave information about the incident.

The post mortem report Ex.P23 and the evidence of the doctor who conducted the post mortem examination (PW19) clearly reveal that the death is due to "shock and internal hemorrhage as a result of multi-organ damage (spleen and left kidney) secondary and stab injures. Injuries are ante-mortem in nature and time since death is 8.12 hours". It is pointed out from the records that "blood clots were seen in the renal bed and left half of peritoneal cavity. The blood was also found on the thorax portion". Having regard to the fact that the huge amount of blood was collected in the thorax, the defence advocate is justified in contending that the victim might not be in a position to talk at all. Be that as it may, in the light of conflicting versions of PWs 2 and 4, the trial court has chosen not to believe the version of the prosecution with regard to the oral dying declaration.

Even otherwise, the evidence pertaining to oral dying declaration is a weak type of evidence, unless it is corroborated by other evidence on record and all material particulars, the oral dying declaration cannot alone be the basis to hold against the accused.

Regarding recovery of the knives at MOs 8 and 9, allegedly used for commission of the offence:

Case of the prosecution that the weapons MOs 8 and 9 were recovered and seized at the instance of the accused Nos. 1 and 2 under panchanama Ex.P7, from a bush which is about 20 to 25 feet away from the scene of occurrence. It is further case of the prosecution that accused Nos. 1, 2 and 4 made voluntary statements as per Exs. P26, 27 and 28 and took the police and panchas to the spot of offence and thereafter recovery knives was executed. To prove the said aspect of the matter, the PWs 6 and 12 are examined. Among them PW12 has supported the prosecution. PW6 has not supported. PW6 has deposed that accused Nos. 1 and 2 were taken by the police near a bush situated adjoining a mill compound and accused Nos. 1 and 2 took out the choppers hidden under the bush and handed over the same to the police which came to be seized. In the cross examination, PW6 has clearly admitted that another witness PW12 is his elder brother. It is further admitted by him that he is the owner of the rice mill called Star Rice Mill in which the father of the deceased and brothers of the deceased were working. It is specifically admitted by PW6 that since the father of the deceased and brothers of the deceased were working under him in the said rice mill, they are very close friends of PW6. It is further admitted by PW6 that when he went along with the police from the police station number of persons had already gathered. Since the persons were already present at the said site, there is no question of recovery of the weapons based on the voluntary statements of the accused. Moreover, the said circumstance of recovery of choppers is falls to the ground in view of evidence of PW2 who has deposed that the two knives which were seized are recovered from the scene of offence. He has admitted in the examination-in-chief that when police went to the scene of occurrence for conducting spot mahazar, (Ex.P4), knives were very much lying on the spot at the very same place etc., The police had seized both the knives, watch, blood stained mud and sample mud from the spot of incident. Therefore, it is clear that the knives were seized by the police from the scene of occurrence much prior to the alleged recovery at the instance of accused Nos. 1 and 2. Therefore the circumstances of recovery of blood stained knives fails.

Regarding Seizure of blood stained clothes of the accused:

According to the case of the prosecution blood stained clothes of the accused were seized under panchanama Ex.P9. PWs 7 and 8 are the witnesses of the said panchanama. Both of them were turned hostile to the case of the prosecution. However PW10 another witness to the said Panchanama has supported the case of the prosecution. But the evidence of PW10 is also of no use to the prosecution. In the examination-in-chief itself PW10 has deposed that the police told to PW10 that the accused are arrested and they are in police station; the police showed two blood stained clothes in the police station to PW10. However the police did not tell him as to the cloths belong to which of the accused. From the evidence of PW10, it is clear that the blood stained clothes were not seized from the person of the accused, but they were already existing in the police station. Secondly it is clear that the prosecution has tried to improve its case by making it appear that the seizure of blood stained clothes of the accused is under the panchanama Ex-P9. There cannot be the seizure of any article which is already seized prior to that time. Therefore the seizure of blood stained clothes of the accused under Ex-P9 is not proved by the prosecution.

From the aforementioned discussion, we are of the clear opinion that the trial court is justified in acquitting the accused. The view taken by the trial court cannot be said to be erroneous. Thus we conclude that the view taken by the trial court is one of the possible views under the facts and circumstances of the case. Hence the appeal fails, the same stands dismissed.