State vs Mohan and Others

Mohan M. Shantana Goudar, J—The judgment and order of acquittal dated 7.4.2011, passed by the Additional Sessions Judge, Shimoga, in SC. No. 18/2009, is called in question in this appeal by the State.

By the impugned judgment, the trial Court has acquitted accused Nos. 1, 2, 5 and 8 of the offences punishable under Sections 143, 147, 148 and 302 r/w. Section 149 of IPC, i.e., the offences with which they were charged.

Case of the prosecution in brief is that the incident in question has occurred on 11.7.2008; about 1 1/2 months prior to the incident, deceased Manjunath was found in the company of accused No. 1 and others in a hair cutting shop of one Nagarajappa, situated at Navule Village; mother of the deceased, namely Lalithamma warned the deceased not to have company/friendship with accused No. 1 and other accused inasmuch as the accused are bad elements in the society; at that point of time, mother of the deceased had scolded the accused in filthy language; being enraged, accused No. 1 had spread certain remarks against the mother of the deceased about 20 days prior to the incident in question; the accused told before the deceased that his mother Lalithamma was not having good conduct; the deceased being enraged, had slapped on the cheeck of accused No1, which resulted in animosity between the first accused and deceased; at that point of time, accused No. 1 gave life threat to the deceased.

On the date of the incident, i.e., on 11.7.2008 at about 8.30 p.m., the deceased, PWs.2, 3 and others were standing in front of pan-beeda shop of PW.4; all of them were chewing pan-beeda after their dinner; all the accused (8 in numbers) came in two auto-rickshaws to the spot where deceased was standing; certain of the accused were armed with choppers; other accused were armed with hockey sticks; accused No. 1 assaulted on the head of the deceased with chopper; in order to save his life, the deceased ran towards the house of one Smt. Gangamma, the accused also chased him; ultimately, all the accused committed murder of the deceased behind the house of Gangamma near Sunklamma temple; PW.2 being the uncle of the deceased also followed the accused in order to save the life of the deceased and saw the incident of assault behind the house of Gangamma; after seeing the incident, he rushed back to his son (PW.1) to inform about the incident; at that point of time PW.1 was returning to his house; PW.2 informed PW.1 about the incident, consequently, PW.1 went to the spot and then after went to the Police Station and lodged the complaint as per Ex. P1 before Vinobnagar Police Station at about 10.30 p.m. on 11.7.2008, which came to be registered in Crime No. 69/2008. Police after completion of investigation, laid the charge sheet.

In order to prove its case, the prosecution in all has examined 21 witnesses and got marked 41 Exhibits and 18 Material Objects. On behalf of the defence, no witness is examined and no documents are marked.

Sri Chethan Desai, learned Government Pleader taking us through the entire material on record submits that the trial Court is not justified in disbelieving the version of PW.2, particularly when he has withstood in his cross-examination; his statement is recorded within a day of the incident in question; no valid reasons are forthcoming to disbelieve the version of PW.2 before the Court below; the version of PW.2 is natural and reliable; merely because PWs.3 to 6, the eye witnesses have turned hostile to the case of the prosecution, the evidence of PW.2 cannot be disbelieved particularly when his evidence is supported by other evidence on record.

Per contra, learned advocate appearing on behalf of respondent No. 2 as well as Sri Chetan, learned amicus curiae appearing on behalf of respondents 3 and 4 argued in support of the judgment of the Court below.

PW.1 is the complainant. He is the son of the eye witness-PW.2. On being informed by PW.2, he went to the scene of offence. After seeing the dead body and weapons lying on the spot he went to Police Station and lodged the complaint as per Ex. P1 at 10.30 p.m. on 11.7.2008, based on which Crime No. 69/2008 came to be registered. PW.1 has also deposed about the scene of offence panchanama at Ex. P2 under which certain material objects including the choppers used for commission of offence are seized. He is also the witness for scene of offence mahazar at Ex. P3, where the first incident of assaulting the deceased by accused No. 1 in front of pan-beeda shop of PW.4 has taken place. PW.2 is the eye witness to the incident in question. He is the father of PW.1. He saw the incident which occurred before the pan-beeda shop of PW.4 as well as behind the house of Gangamma near Sunklamma temple. After seeing the incident, he went and informed his son PW.1 about the incident and thereafter they came back to the scene of incident and saw the dead body. PW.2 has also deposed about the motive for commission of offence.

PWs.3, 4, 5 and 6 though were stated to be the eye witnesses to the incident in question, have turned hostile to the case of the prosecution. Nothing worth is elicited by the Public Prosecutor in their cross-examination supporting the version of the case of the prosecution.

PW.7 is the relative of the deceased. He was informed by PW.1 about the incident. He also visited the spot after the incident. He has deposed about the motive for commission of offence.

PW.8 is the witness for scene of offence mahazars at Exs.P2 and P3.

PW.9 is the witness for recovery of weapon-MO. No. 1 at the instance of accused No. 1 from the place near the scene of offence under seizure mahazar at Ex. P8. He is also the witness for seizure mahazar at Ex. P9, under which blood stained clothes of accused No. 1 are seized.

PW.10 is another witness for seizure mahazar at Ex. P10 under which blood stained clothes of accused No. 5-Rajesha are seized in the Police station.

PW.11 is the witness for mahazar at Ex. P11. He has turned hostile to the case of the prosecution.

PW.12 is another witness for Ex. P11. He has also turned hostile to the case of the prosecution.

PW.13 is the doctor who conducted autopsy over the dead body. P.M. report is at Ex. P12. He has given his opinion as per Ex. P14 after seeing the weapon used for commission of offence. The doctor has clarified that the deceased had sustained nine external injuries. The opinion of the doctor discloses that the death is due to shock and hemorrhage as a result of multiple injuries sustained.

PW.14 is the witness for the panchanama at Ex. P5 under which autorickshaw bearing Regn. No. KA-14-A 1338 is seized in the Police Station.

PW.15 is the witness for inquest panchanama at Ex. P16.

PW.16 is the mother of the deceased. She has deposed about the motive for commission of offence.

PW.17 is the brother of the deceased. He has also deposed about motive for commission of offence.

PW.18 is the photographer, who captured the photographs of dead body and scene of offence as per Exs.P17 to P26.

PW.19 is the Sub-Inspector of Police, who conducted part of the investigation under the guidance of Inspector of Police.

PW.20 is the Inspector of Police, who completed the investigation and laid the charge sheet.

PW.21 is the another Sub-Inspector of Police, who registered Crime No. 69/2008 based on the complaint lodged by PW.1. He has prepared the FIR and sent the same to the jurisdictional Magistrate as per Ex. P41.

Case of the prosecution mainly rests on the ocular testimony of PW.2. Before proceeding further, it is to be noticed and clarified that accused No. 1 (main offender) has expired. The motive was alleged only against accused No. 1. It is also the case of the prosecution that accused No. 1 led the other accused to the scene of offence and it was accused No. 1 who assaulted on the head of the deceased with chopper in front of pan-beeda shop of PW.4. Thereafter he chased the deceased along with other accused behind the house of Gangamma and he has committed the murder of the deceased with the help of other accused near Sunklamma temple.

It is brought to the notice of the Court that accused No. 1 is also murdered subsequently. Thus, the appeal field against accused No. 1 abates. It is relevant to note that out of eight accused, four accused are absconding, (accused No. 3- Raja, accused No. 4-Aruna, accused No. 6- Basavaraj and accused No. 7-Naveena are absconding) and the case against them was spilt up before the trial Court. Thus, the trial Court has proceeded only against other four accused and all of them are acquitted by the trial Court. As aforementioned, accused No. 1, the main culprit is also done to death. Hence, appeal is heard and decided only in respect of accused Nos. 2, 5 and 8.

We have already clarified that PW.1 being the son of PW.2 was informed about the incident by PW.2, the so called eye witness to the incident. Thus, it is clear that PW.1 is not the eye witness to the incident. Complaint came to be lodged by him based on the say of PW.2. PW.1 is hear say witness. Thus, complaint came to be lodged by hearsay witness. However, PW.1 has also deposed about the motive on the part of accused No. 1 for commission of offence.

PW.2 has deposed that after having dinner on the date of the incident, he went to pan-beeda shop of PW.4 for chewing pan-beeda; at that point of time, the deceased, PW.3 and another person were standing in front of the said shop and they were also chewing pan-beeda; when PW.2 was talking with them, all the accused came in a group in two auto-rickshaws to the said spot; accused No. 1 went ahead with the chopper and assaulted on the head of the deceased; consequently deceased started running away from the scene in order to save his life though he was seriously injured; other accused also chased the deceased along with accused No. 1; deceased went behind the house of Gangamma near Sunklamma temple where the accused started assaulting him with the choppers and the hockey sticks; PW.2 being the uncle of the deceased also ran behind the group of accused and saw the incident; after assaulting the deceased all the accused started running away from the scene; PW.2 also followed the accused; the accused went back in the same auto-rickshaws in which they had come; thereafter PW.2 went and informed his son-PW.1 about the incident in question.

Thus, according to the case of the prosecution, PW.2 is a witness for both the incidents, i.e., the incident which occurred in front of pan-beeda shop of PW.4 as well as the incident which occurred behind the house of Gangamma near Sunklamma temple. But the aforementioned version of PW.2 is an improvement made by PW.2 before the Court as is clear from the evidence of PW.20, the Investigating officer. It is admitted by the Investigating Officer in his cross-examination in paragraph -37 that PW.2 has not stated before him that he ran behind the accused from the scene of offence; PW.2 has also not stated before the Investigating Officer that the accused ran scattered; PW.2 has also not stated before the Investigating Officer that all the accused were holding choppers, more particularly he has not stated before the Investigating Officer in his statement recorded under Section 161 of Cr.P.C. that two auto-rickshaws came to the spot and in the said two auto-rickshaws 7 to 8 persons came, alighted and all of them were holding choppers; so also PW.2 has not stated during the course of investigation that all the accused assaulted the deceased.

The aforementioned admissions of PW.20 about the improvements made by the sole eye witness-PW.2 would fully shake the credibility of evidence of PW.2. The version of PW.2 in respect of the incident which occurred behind the house of Gangamma is fully an improved version. However, his version relating to the incident of accused No. 1 assaulting the accused with the chopper in front of pan-beeda shop of PW.4 is believable, inasmuch as the same is not an improved version. The important omissions are proved by the defence by bringing to the notice of PW.20 (Investigating Officer) who recorded the statement of PW.2 during the course of investigation. Since the aforementioned omissions are major/material omissions, the same would amount to contradictions and hence they need to be eschewed from consideration, particularly when the evidence of PW.2 in that aspect of the matter is not supported by any other oral evidence.

In view of the above, it can safely be said that PW.2 is the eye witness only to the incident which occurred in front of pan-beeda shop of PW.4. We have already mentioned supra that it was accused No. 1 who assaulted the deceased in front of shop of PW.4 in the presence of PWs.2 and 3. Unfortunately, PW.3 has turned hostile to the case of the prosecution. Thus, PW.2 is the sole eye witness to the said incident in question which occurred in front of pan-beeda shop. From the evidence of PW.2, it is clear that it was accused No. 1 and accused No. 1 alone who assaulted on the head of the deceased with chopper in front of pan-beeda shop of PW.4. There is no evidence on record, much less reliable evidence to show as to what had happened behind the house of Smt. Gangamma, near Sunklamma temple. Consequently, accused No. 1 who committed the offence in front of shop of PW.4 alone is responsible for the offence to the aforesaid extent.

PW.2, the sole eye witness even in his examination-in-chief has not deposed anything against accused No. 8. Though he has deposed about the presence of accused Nos. 1, 2, 3, 4 and 5, he has not deposed about the presence accused Nos. 6, 7 and 8. As mentioned supra, accused Nos. 3 and 4 are absconding and case against them was split up before the trial Court. Even believing the version of PW.2 as found in his examination-in-chief that accused Nos. 2 and 5 were also present along with accused No. 1 on the scene of offence, they cannot be held responsible for the crime in question on the ground of their presence on the scene, i.e., in front of pan-beeda shop. Prosecution needs to prove the common object or common intention on the part of the accused to bring home guilt against them. Since PW.2 himself has not stated before the police during the course of investigation as admitted by PW.20 (Investigating Officer) that all the accused came to the spot, it would be hard to conclude that all the accused had shared common object for commission of offence. Mere presence of accused Nos. 2 and 5 along with accused No. 1 cannot be a ground to convict them with major offence. The prosecution has to prove the case against them positively that all the accused had shared common object along with accused No. 1 for commission of the crime along with accused No. 1. In the absence of such proof, accused Nos. 2 and 5 who were stated to be present along with Accused No. 1 in front of pan-beeda shop cannot be held to be responsible for the crime. Hence, in our considered opinion, the trial Court has rightly acquitted accused Nos. 2 and 5.

Though we find sufficient material as against accused No. 1, no conviction can be recorded against him since he is no more. Appeal filed by the State against him has abated. In view of the same, appeal filed by the State needs to be dismissed inasmuch as no interference is called for. In our considered opinion, the view taken by the trial Court in so far as accused Nos. 2 and 5 are concerned, appears to be possible view under the facts and circumstances of the case.

In view of the above, appeal fails and accordingly, the same stands dismissed.

We place on record the valuable assistance rendered by Sri Chethan B., learned amicus curiae appearing on behalf of the respondents-accused. Registry is directed to pay a sum of Rs. 10,000/- (Rupees ten thousand only) to the learned amicus curiae, as honorarium .