Sri. Yarath Basheer vs The State of Karnataka

N. Ananda, J.—The Appellant (hereinafter referred to as ''accused No. 1'' has filed this appeal against, the judgment of conviction for an offence punishable u/s 302 IPC. Accused No. 1 and accused 3 and 4 were tried for offences: punishable under Sections 302, 114, 506-II r/w 34 IPC in S.C. No. 72/2005, on the file of Fast Track Court, Kodagu at Madikeri. Accused No. 2 was absconding. Accused No. 2 could not be secured before the committal court. Therefore, the case against accused No. 2 was separated. Accused 3 and 4 were acquitted for offences punishable under Sections 302 c/w 114 and 506-11 r/w 34 IPC. The State has not filed any appeal against the judgment of acquittal of accused 3 and 4.

We have heard Sri A.H. Bhagavan, learned Counsel for accused No. 1 and Sri N.S. Sampangiramaiah, learned HCGP for State. We have been taken through evidence and the impugned judgment.

In view of the fact that judgment of acquittal of accused 3 and 4 has attained finality, in this appeal, we are confining to the case of prosecution and evidence adduced by prosecution in proof of guilt of accused No. 1.

It is the case of prosecution that there was longstanding enmity between accused No. 1-Yarath Basheer and deceased Makki Ali. Accused No. 1 was a resident of Kunjeela Village. The deceased was a resident of Kolakeri Village. The distance between the two villages is three kilometers. PW24-Makki Hamsa is the younger brother of deceased and he is also a resident of Kolakeri Village.

On 17.04.2005 at about 6.30 p.m., the deceased and PW24 were travelling from Virajpet to their village in a private passenger bus called as "Jyothilakshmi Bus". When the bus stopped near Kunjeela Village Bus Stop, accused No. 1 entered the bus and assaulted the deceased, who was sitting on a seat near the hind door of bus. Accused No. 1 dragged the deceased from bus and assaulted the deceased with a chopper and caused multiple injuries. When the deceased was being shifted to the District Hospital at Mercara, he succumbed to injuries. PW24 lodged first information and set criminal law into motion. The Investigating Officer held inquest and subjected the dead body to post-mortem examination. PW16-Dr. C. Chamundi conducted post-mortem examination and noticed the following injuries:

Cut injury 2" in length �" in deep situated over parietal region of the head, bone deep, bone fractured horizontally and fracture was measuring 2", brain damaged at the site of fracture haematoma present.

Left side of the frontal bone fractured, fracture measuring 1" in length.

Cut injury 4" in length situated over the anterior aspect left shoulder joint, bone deep.

Cut injury 3" in length situated over the dorsal aspect of right hand between thumb and index finger extends up to palmar aspect of right hand 2" in deep. Index finger tendon cut.

Cut injury 3" in length situated over left scapular region, skin deep.

A stab injury 1" � 1" oval in shape situated over left side of hip joint, i.e. 1" below the hip joint, bone deep.

Crush injury present 6" above the left ankle joint and both tibia and tibula bones fractured (compound fracture), blood vessels are cut.

Crush injury present, at the level right ankle joint, i.e. 1" above the ankle joint Both the tibia and tibula bones fractured (Compound fracture), blood vessels are cut.

Cur injury 1" in length situated over lateral aspect of left hand 4" proximal to left wrist joint, bone deep.

Multiple abrasions 3 to 4 in number situated over anterior aspect of right knee joint.

Bleeding from left ear present.

Chest cavity contains only 250CC of blood.

PW16 has opined that death was due to shock and haemorrhage. The injuries found on the deceased could be caused by a chopper.

The Investigating Officer recorded the statements of witnesses and arrested accused No. 1. On the information volunteered by accused No. 1, the Investigating Officer recovered a chopper (weapon of offence) and bloodstained clothes of accused No. 1. The incriminating articles were sent to Forensic Science Laboratory. On completion of investigation, charge sheet was filed against accused No. 1 for aforestated offences.

On behalf of the prosecution, PW1 to PW26 were examined and documents as per Ex. P. 1 to Ex.P.29 were marked and material objects as per M.O. 1 to M.O. 16 were marked. On behalf of defence, the contradictory portions in the statements of PW6 and PW24 were marked as Ex.D.1 to Ex.D.4.

In order to bring home guilt of accused No. 1, the prosecution has relied on the following:

I. Motive

II. The eye-witness account of PW1 to PW4, PW6 and PW24.

III. The recovery of a bloodstained chopper (weapon of offence) and bloodstained clothes of accused No. 1 on the information volunteered by accused No 1.

Before adverting to appreciation of evidence, it is necessary to state the nature of injuries suffered by deceased, the place of assault deposed by the eye-witnesses and other post occurrence witnesses have not been controverted by the defence. Accused No. 1 has denied that he was the assailant and he had caused fatal injuries to the deceased.

Now adverting to the evidence adduced by the prosecution in proof of motive, we find that there was longstanding enmity between accused No. 1 and deceased. The deceased was involved in several cases and he was a trouble monger in the locality. Therefore, accused No. 1 had enmity against the deceased. Even otherwise, the prosecution has relied on the direct evidence. If the direct evidence adduced by prosecution is found to be credible and consistent, the motive loses significance.

Out of the six eye-witnesses, PW2 has not supported the case of prosecution and he has turned hostile. Except PW24, the other eye-witnesses (PW1, PW3, PW4 and PW6) were neither interested in the deceased nor they were inimical to accused No. 1.

PW1-Thimmaiah was the conductor of Jyothilakshmi Bus (a private passenger bus), PW1 has deposed that on 17.04.2005 at 6.30 p.m., Jyothilakshmi Bus which was plying from Napokiu to Birunani was stopped near Kunjeela Village Bus Stop some of the passengers alighted and some of the passengers boarded the bus; when the bus reached Kunjeela Bus Stop, there were 5 passengers in the bus; when the driver started off the bus, PW1 heard cries raised by passengers who were seated on the hind portion of bus; accused No. 1 entered the bus and assaulted the deceased, who was seated on hind portion of bus; accused No. 1 dragged the deceased from bus and assaulted deceased with a chopper; when PW1 interfered, blood spilled on his shirt and some portion of shirt of PW1 was torn; accused No. 1 lied away from that place on a motor cycle; PW1 came to a shop and contacted Napoklu police over phone and informed about the incident; on the following day, PW1 was present when the police inspected the place of incident; there were bloodstains in the bus; the police also inspected the bus and found bloodstains on the seat where the deceased was sitting. PW1 has identified his bloodstained shirt as M.O. 4.

PW1 was declared as a hostile witness for not supporting the case of prosecution as it related to abetment and instigation attributed to accused 3 and 4. As already stated, the judgment of acquittal of accused 3 and 4 has attained finality. Therefore, there is no need for us to refer to the evidence of PW1 as it relates to accused 3 and 4.

During cross-examination of PW1, nothing is elicited to discredit his evidence in proof of assault on the deceased by accused No. 1 with a chopper.

PW1 was working as a conductor. PW1 was neither friendly with the deceased nor inimical towards accused No. 1. Therefore, we have no reasons to suspect the evidence of PW1.

The learned Counsel for accused No. 1 would submit that the statement of PW1 u/s 161 Code of Criminal Procedure was recorded on 18.04.2005. PW1, who was present near the place of incident, had not volunteered to inform the police.

We are not persuaded to accept this submission for the following reasons:

Immediately after the incident, PW1 had contacted Napoklu police and informed the mailer to them. This fact is confirmed by the evidence of PW21. The evidence on record discloses that the deceased succumbed to injuries when he was being shifted to District Hospital at Mercara. The Investigating Officer has not been cross-examined for not recording the statement of PW1 u/s 161 Code of Criminal Procedure, on 17.04.2005. The statement of PW1 was recorded on the following day. In the circumstances, it is not possible to hold that PW1 is a planted witness and the Investigating Officer was making time to plant PW1 as an eye-witness.

PW2-Chandra was the driver of Jyothilakshmi bus, PW2 has deposed about the incident of assault. PW2 has not implicated accused No. 1. PW2 has deposed; that deceased had suffered injuries, however PW2 was not able to see the assailant.

PW2 was declared as a hostile witness for not supporting the case of prosecution and also for resiling from material part of his statement recorded u/s 161 Code of Criminal Procedure.

Even during cross-examination by the learned Public Prosecutor, PW2 has reiterated version given in examination-in-chief. However, PW2 has identified bloodstained shirt of PW1 and has deposed that bloodstained shirt of PW1 was seized by police in the presence of PW2 under a mahazar as per Ex.P.2.

Therefore, the evidence of PW2 to the extent: that deceased had suffered injuries at the time and place suggested by the prosecution; when PW1 tried to intervene, blood had spilled on his shirt and a part of shirt was torn would lend corroboration to evidence of PW1.

PW3-Subramani was the Cleaner of Jyothilakshmi Bus. The evidence of PW3 is more or less similar to the evidence of PW1 but for the fact that PW3 has deposed that after accused No. 1 assaulted the deceased and left that place, again returned back and cut the other limb of deceased.

The learned course for accused No. 1 referring to evidence of PW1 and FW3 would submit that PW1 has not deposed that there was second incident, of assault by accused No. 1, therefore, this would create a reasonable doubt about, the veracity of evidence of PW1 and PW3.

The learned HCGP would submit that after accused No. 1 dragged the deceased from bus and assaulted him near bus stop, PW1 had gone to a shop to inform the incident to police over phone. In fact, PW1 had contacted the police and this has been confirmed from the evidence of PW21. If accused No. 1 had returned and assaulted the deceased for the second time as deposed by PW3, PW1 might not have noticed it. Therefore, there are no variations in the evidence of PW1 and PW3.

On careful perusal of the evidence of PW3, we find that he is an independent witness. PW3 had nothing to gain by the success of the case of prosecution nor he had enmity against accused No. 1 to implicate him in a murder case.

PW1 has deposed; after the incident he had gone to a nearby shop to contact. Napoklu police and he informed the incident to police over phone. This part of evidence of PW1 is confirmed by the evidence given by PW21-Arunkumar Salanke, the then Police Sub-Inspector of Napoklu Police Station. Therefore, there are no variations in the evidence of PW1 and PW3.

PW4-Hussain Haji is a resident of Kunjeela Village. PW4 has deposed: that his house is situate at a distance of 15 feet from Kunjeela village bus stand; on 17.04.2005 when he was standing in front of his house, accused 1 and 2 came to the bus stand; at that time, Jyothilakshmi bus came and stopped near the bus stand; accused No. 1 entered the bus and there was a galata in the bus; accused No. 1 dragged the deceased from bus and assaulted him with a chopper; accused No. 1 left that place on a motor cycle; after 10 minutes, accused No. 1 came back on his motor cycle and assaulted on other lower limb of deceased with a chopper.

PW4 was declared as a hostile witness for not supporting the case of prosecution as it related to implication of accused 3 and 4.

During cross-examination of PW4, we find that learned Counsel for defence has elicited the location of his house, distance between his house and the bus stop and that PW4 is a respected member of Muslim locality and some time in the past, PW4 was the President of mosque of Kunjeela Village. PW4 has admitted that when the marriage of his sister''s daughter was performed there was a quarrel between accused No. 1 and his son, PW4 has denied suggestion that since 10 years there was enmity between himself and accused No. 1.

The learned Counsel for the defence has not taken pain to elicit reasons for quarrel between the son of PW4 and accused No. 1 and the magnitude of quarrel. Therefore, PW4 cannot be branded as inimical witness. The evidence of PW4 lends substantial corroboration to evidence of PW1 and PW3.

PW6-Abdul Rehman is also a resident of Kunjeela Village. PW6 was running a shop near Kunjeela Village Bus Stop. The evidence of PW6 is mere or less similar to the evidence of PW4.

During cross-examination by the learned Counsel for accused No. 1, PW6 has admitted that he is acquainted with CW19-Asim and CW20-Razaak and also with accused No. 1.

From the tenor of cross-examination of PW6, we find that his evidence is sought to be discredited on the basis of his conduct after the incident, as PW6 had not gone to rescue of the deceased.

The law is fairly well settled that there is no set of rules regarding subsequent conduct of witnesses. Therefore, we do not find any reasons to suspect the evidence of PW8.

The medical evidence given by PW16-Dr. C. Chamundi and the injuries suffered by the deceased would lend substantial corroboration to the evidence of PW1. PW3, PW4 and PW6 that accused No. 1 had mercilessly assaulted the deceased with a chopper and inflicted number of injuries.

PW24-Makki Hamsa is the younger brother of deceased. PW24 has deposed; at the time of incident, he was travelling with the deceased in the same bus.

During cross-examination by the learned Counsel for accused No. 1, PW24 has deposed; that on the date of incident, after attending a marriage in Edapala Village, PW24 and the deceased had gone to Virajpet and had purchased clothes and household articles.

The report of inspection of bus and spot inspection by the Investigating Officer does not reveal that there were household articles either in the bus or near the place of incident. PW24 has deposed that his brother (deceased) was assaulted by accused No. 1 and he was standing inside the bus and he was witnessing the incident of assault.

Even if PW24 did not have courage to intervene to prevent the deceased to be assaulted at the hands of accused No. 1, PW24 could have cried for help and informed the police for help. Immediately after the incident, PW24 did not try to contact the police, on the other hand, he had gone to the village which is at a distance of 3 kilometers only to inform the matter to PW5 and PW14.

On careful perusal of first information and the evidence of PW24, we find that PW24 had implicated accused 3 and 4 as instigators. The evidence of PW1, PW3, PW4 and PW6 would reveal that accused No. 1 entered the bus and assaulted the deceased with a chopper thereafter accused No. 1 dragged the deceased out of bus and repeatedly assaulted the deceased with a chopper. In the circumstances, the evidence of PW24 that other accused instigated accused No. 1 to assault the deceased after accused No. 1 dragged the deceased from bus looks improbable. From the evidence of PW1, PW3, PW4 and PW6, it is clear that accused No. 1 armed with a chopper had entered the bus. The entire incident was over within one or two minutes. After assaulting the deceased, accused No. 1 again came back and cut the other limb of deceased. The independent witnesses viz PW1, PW3, PW4 and PW6 have not deposed about the presence of accused 3 and 4 near the place of incident. Therefore, it looks probable that PW24 had reached the place of incident after learning the incident from his villagers, in the circumstances, we hold that evidence of PW24 does not inspire confidence.

Accused No. 1 was arrested on 25.04.2005. On the information volunteered by accused No. 1, the Investigating Officer recovered a bloodstained chopper and bloodstained clothes of accused No. 1 (a T-shirt (M.O.15) and a jeans pant (M.O.16)). The independent witnesses for recovery namely PW10, PW11 and PW13 have not supported the case of prosecution. Therefore, we have to consider the evidence of PW26 regarding recovery of incriminating articles on the information volunteered by accused No. 1.

PW26 K.S. Sundarraj, the then Circle Inspector of Madikeri Rural Police Station, has deposed: that accused No. 1 was arrested on 25.04.2005 at about 6 a.m. PW26 along with PW20, CW39 and CW40 arrested accused No. 1. Accused No. 1 was brought to police station. Accused No. 1 volunteered information. The relevant and admissible portion of voluntary information of accused No. 1 is marked as Ex.P.26. Thereafter, accused No. 1 led PW26 and other panch witnesses to his house in Kunjeela Village. The house was under lock. Accused No. 1 brought a key and opened the door. Accused No. 1 showed a motor cycle bearing No.KA-21-E-9266. Accused No. 1 removed a chopper, a T-shirt and a jeans pant, which had been concealed in the midst of coffee bags. The-chopper and bloodstained clothes of accused No. 1 were seized under a mahazar. From the contents of these reports, we find that the clothes of deceased and clothes of accused No. 1, weapon of offence (a chopper) were stained with human blood of ''O'' group. This scientific evidence would lend corroboration to the evidence of PW26 regarding recovery of incriminating articles on the information volunteered by accused No. 1. These articles had been sent to Forensic Science Laboratory for examination. Ex.P.28 and Ex.P.29 are the reports of Chemical Examiner and Serologist.

Thus, the prosecution has adduced consistent and credible evidence through the independent eye-witnesses. The prosecution has adduced consistence and credible evidence in proof of motive and recovery of incriminating articles on the information volunteered by accused No. 1.

Considering the nature and number of injuries and manner in which accused No. 1 had assaulted the deceased, we hold the acts committed by accused No. 1 would squarely attract an offence punishable u/s 302 IPC.

The learned trial Judge on proper appreciation of evidence has convicted accused No. 1 for an offence punishable u/s 302 IPC. There are no reasons to interfere with the impugned judgment.

Accordingly, we pass the following:

ORDER

The appeal is dismissed.