State vs Venkatesh, Narasimhamurthy and Sreenivas @ Seena

K.L. Manjunath, J.—The State has come up in this appeal challenging the legality and correctness of the judgment and order of acquittal passed by the 15th Additional Sessions Judge, Bangalore dated 29.11.2001 in S.C. No. 107/97 for the offences punishable u/s 120-B and 302 of IPC.

We have heard the learned Counsel of the parties.

The case of the prosecution in a nutshell is as under:

On 14.11.1996, PW.10-Chennamma lodged a complaint as per Ex.P.14 at about 8.30 a.m. stating that she is residing with her family members in a vatarah at premises No. 3931, 8th Cross, Gayathrinagar, Bangalore and that the accused are also residing in another tenement in the said vatarah, that the accused persons had ill-will against her deceased son Ashwath on the ground that her son Ashwath committed rape on the sister of the accused persons, by name Padmavathi @ Padma, that though her son Ashwath was enlarged on bail, the accused persons still had grudge against him; that at about 8.00 a.m., when her son Ashwath was brushing his teeth in front of the vatarah, accused Nos. 1 to 3 came there, accused No. 3 stabbed her son on the back side and similarly accused Nos. 1 and 2 also stabbed on the back side on right and left side of Ashwath Gowda and later accused No. 1 threw a stone on Ashwath Gowda, as a result of which he succumbed to the injuries and that the accused ran away after assault and that this incident was witnessed by several persons including her daughter PW.12-Gowramma. Accordingly, a case was registered in No. 507/96 on the file of Subramanya Nagar police station. On the same day, at about 11.30 a.m., accused Nos. 1 and 2 surrendered before the police and accused No. 3 surrendered on 15.11.1996. Based on the same, charge sheet was filed before the 7th Additional CMM, Bangalore and thereafter the learned Magistrate committed the case to the Sessions Court and the same was registered as S.C. No. 107/99.

The accused having appeared before the court pleaded not guilty and claimed to be tried. In order to bring home the guilt of the accused, the prosecution relied upon the evidence of PWs.1 to 14 and got marked Exs.P.1 to P. 16 and M.Os.1 to 8. On behalf of the accused, Exs. D. 1 to D.3 came to be marked.

The learned Sessions Judge after considering the arguments advanced by the learned Counsel for the parties formulated the following points for his consideration:

(1) Whether the prosecution has proved beyond reasonable doubt that the accused persons before Court, had conspired with each other to do away with the life of Shri. Ashwathappa and thereby committed an offence u/s 120-B of I.P.C.?

(2) Whether the prosecution has proved beyond reasonable doubt that the accused persons on 14/11/1996 have committed the murder of Ashwathappa and thereby committed an offence punishable u/s 302 I.P.C.?

On appreciation of the evidence let in by the parties, the learned Sessions Judge held points 1 and 2 in the negative and acquitted all the accused persons by his order of acquittal dated 29.11.2001. Being aggrieved by the said order of acquittal, the present appeal is filed. During the pendency of this appeal, accused No. 1-Venkatesh died. Therefore an order was passed on 9.6.2010 to delete respondent No. 1 as the case against him came to be abated.

Though several grounds are urged by the learned SPP In the appeal memo, at the time of arguments he has rely upon the following points for the consideration of this Court:

According to him, the trial Court did not appreciate the evidence of PWs. 10, 12 and 13 properly. If the evidence of PWs. 10, 12 and 13 had been appreciated properly, the trial Court would not have acquitted the accused persons. He further submitted that, even though PWs. 10, 12 and 13 are related to deceased Ashwath Gowda, their evidence could not have been disbelieved by the Court only on account of their relationship with the deceased. He further contends that even though they are relatives, considering the fact that they are eye witnesses to the incident and that their evidence is so natural and considering the corroboration as their evidence has not been seriously challenged by the accused and their evidence is unimpeachable, the trial Court is not justified in acquitting the accused. He further contents that the evidence of PW.J-Dr. Nisar Ahmed is also not appreciated in proper perspective. In the circumstances he requests the Court to re-appreciate the evidence of PWs.1, 10, 12 and 13 and to reverse the findings of the trial Court and to convict the accused for the aforesaid offences.

Per contra, the learned Counsel for the respondent contends as under:

That the trial Court has properly appreciated the evidence of FWs.10, 12 and 13 and that the trial Court has not committed any error in appreciating the evidence of these three witnesses; that it is the specific case of the prosecution that the complaint (Ex. P. 14) was lodged at about 8.30 a.m. on 14.6.1996 by the mother of the deceased who has been examined as PW. 10 stating that at about 8.06 a.m., when her son was brushing his teeth in front of vatarah, the accused persons came, accused No. 3 stabbed on his waist from back and similarly accused Nos. 1 and 2 stabbed on the deceased on his back and this incident was witnessed by several persons who are residing in the vatarah, that the post mortem report discloses that there were no injuries on the back of deceased Ashwath Gowda, that when there were no corresponding injuries on the body of deceased Ashwath Gowda, the allegations of PW.10 in the complaint Ex.P. 14 could not have been believed. Therefore, he contends that the trial Court has rightly disbelieved the evidence of PW. 10. He further contends that though PW.12 was not an eye witness she has been stated as an eye witness by PW.10 in the complaint-Ex. P. 14 and that PW.13 was not at all in the picture at the time of complaint as per Ex.P. 14. Therefore, he contends that the trial Court is justified in disbelieving credit worthiness of evidence of PWs. 10, 12 and 13 who are the mother, sister and brother-in-law of the deceased. He further contends that PW.12 has admitted that deceased Ashwath Gowda was a rowdy element and his name finds a place in the rowdy sheet maintained by the police and the evidence of PW.1 clearly discloses that the injuries found on the dead body could not have been caused either by M. Os. 2, 3, or 4. Therefore there is variation and cmtradichims, the evidence of PWs.10, 12 and 13 and the medical evidence. Therefore, he contends that when there are no corresponding injuries as per the deposition of PWs.10, 12 and 13 with the medical evidence, the trial Court was justified in acquitting the accused. He further contends that when several people in the vatarah have seen the incident as per the evidence of PW. 10, the complainant, the prosecution has not offered any explanation as to why the names of other inmates of the vatarah are not cited as eye witnesses and in the absence of such explanation, it would be difficult for any Court to accept the interested testimony of evidence of PWs.10, 12 and 13. He lastly contends that PW.10 in her evidence contends that when she went to the police station to lodge a complaint, at that time accused Nos. 1 and 2 were present in the police station. But the record discloses that the accused Nos. 1 and 2 surrendered before the police station at about 11.30 a.m. on 14.11.1996 whereas the complaint is received by the police at 3.30 a.m. Therefore, he submits that the evidence of PWs.10 has been rightly been rejected by the trial Court. In the circumstances, he requests the court to dismiss the appeal.

Having heard the learned Counsel for the parties, the only point that requires to be considered by this Court is, whether the order of acquittal is just and proper and does it call for any interference?

The homicidal death of the Ashwath Gowda is not in dispute. It is admitted that he died on account of injuries sustained on his body. PW.1 Dr. Nisar Ahamed stated before the Court that deceased Ashwath Gowda died due to shock and hemorrhage as a result of injuries sustained. This piece of evidence has not been challenged by the accused. Therefore, the death is homicidal. The question is whether the injuries found on the body is caused by the accused and whether prosecution has proved the guilt of the accused.

In order to prove the case against accused Nos. 1 to 3, the prosecution has relied on the evidence of mother of Ashwath Gowda--PW.10 who is also the complainant and Gowramma, the sister of the deceased who has been examined as PW.12 and her husband Rangaswamy, who has been examined as PW.13. Though the prosecution has relied evidence of one H. Nanjundaswamy, who has been examined as PW.9, he has not supported the case of the prosecution and he was treated hostile and though he has been cross-examination at length, the prosecution has failed to get any admission from his evidence. Therefore, the evidence of PW.10 is of no assistance to prove the case of the prosecution.

Now we have to consider the evidence of PWs.10, 12 and 13.

In the complaint, PW.10 has not mentioned the presence of PW.13 the husband of PW.12 and the brother-in-law of the deceased and the trial Court considering Ex.P. 14 and the evidence of these three witnesses has disbelieved their evidence because of various discrepancies found in their depositions and the learned Sessions Judge has also given the reasons for not accepting the evidence of PWs.10, 12 and 13 in the context that the medical evidence let in by the prosecution PWs. 1-Dr. who conducted the post mortem examination has clearly admitted that none of the injuries found on the body of the deceased could be caused by using M. Os. 2, 3 or 4. If this medical evidence is accepted then evidence of PWs. 10, 12 and 13 is of no assistance to prove the guilt of the accused. Considering EX.P.14 and evidence of PWs.10, 12 and 13 it is clear that they have contended that the accused persons assaulted the deceased on the back of the deceased. It is the version of PW. 10 that accused No. 3 stabbed on the waist of the deceased from back side. But the said injury is not found on the body of the deceased. Similarly, it is the version of PWs.10, 12 and 13 that accused No. 1 stabbed on right and left side of the deceased from back. But no injury is found on the back of the deceased. Considering the nature of the injuries found on the body of the deceased, the Sessions Court has rightly held that the prosecution has failed to prove the guilt of the accused. Considering the medial evidence and the evidence of these three witnesses, we are of the opinion that the trial Court is justified in disbelieving the theory of the prosecution and acquitting accused. In addition to that there is a strong circumstance to disbelieve the evidence of PW. 10. According to her, when FW.10 went to police station at about 8.30 a.m., accused Nos. 1 and 2 were present in the police station. If really accused Nos. 1 and 2 were found in the police station at the time of lodging the complaint-Ex. P.14, the police would have arrested them on the spot. But as per the records, they have surrendered before the police at 11.30 a.m. This discrepancy has not been explained by the prosecution.

Considering the totality of the evidence, we are not in a position to take a different view than the one arrived at by the learned Sessions Judge. In the circumstances, we do not see any merit in the appeal.

In the result, the appeal is dismissed. The impugned order of acquittal is confirmed.