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STATE OF KARNATAKA A

PANCHAKSHARI GURUPADA YYA HIRAMATH

DECEMBER 20, 2002

[S. RAJENDRA BABU AND P. VENKATARAMA REDD! JJ.] B

Penal Code, 1860; Section 302/Evidence Act, 1872:

Murder-Conviction by trial Court-Acquilla/ by High Court doubting evidence of the eye-witness-Correctness of-Held, Since there are no material C contradictions or inherent improbabilities in the evidence of such witness, doubt raised by High Court is not reasonable-Conviction and sentence of trial Court confirmed

Murder-Recording of two complaints-one by Police Officer and another D by Prosecution witness-Effect on the prosecution case-Held, on the facts and circumstances of the case, it is not reasonable to draw inference Ji-om the statement of prosecution witness that first report was withheld and another with different version was made out-Hence it does not demolish the case of prosecution.

Discovery of weapon used in crime on the basis of statement of accused- Evidence of prosecution witness-Effect on-Discussed

According to the prosecution, there was a land dispute between the deceased, and his brother. Though land dispute was settled, his nephew alienated the land to which deceased objected and there was a quarrel F between them. On the fateful night, when the deceased along with his friend, PW3 went for a walk and did not return till late night, PWI, son of the deceased, along with PW4 went for searching his father and noticed that accused attacked the deceased with a sickle and fled away. PWI, 3 & 4 carried the injured to a nearby dispensary, and on the advice of the G Medical Officer when they proceeded to a major Hospital, and on the way the deceased succumbed to his injuries. PWI lodged a complaint in the Police Station and PW7, who conducted post-mortem of the dead body, opined that one of the injuries inflicted on the deceased was sufficient to cause death. Trial Court convicted accused-respondent under Section 302

705 H

A IPC. High Court acquitted the accused giving him benefit of doubt. Hence this appeal by the State.

Allowing the appeal, the Court

HELD: I.I. It transpires from the evidence of PWs. 3 and 9 (Panch B witness) that there were blood stain marks at three or four places on the walls of the houses and the prosecution could not explain the same. The High Court had taken a view that if this material was taken into account the version of eye-witness becomes doubtful. The doubt entertained by the High Court in this behalf is not reasonable doubt but a far fetched one.

C As the scene of offence as well as the house where the victim's body was laid was too close to the said houses, there was every possibility of someone who touched or carried the deceased coming into contact with blood and thereafter touching the walls. From the mere fact that no one was able to pinpoint the particular person who rubbed his hands on the adjacent walls, it cannot be inferred that the entire prosecution case falls to the ground.

D In fact it is PW3-the independent w'itness :who showed the blood stained marks on the walls of these houses to the investigating officer. If PW3 wanted to give a distorted version of the incident, he would have refrained from showing those blood stained marks to the Police Officers. 1709-B-E)

1.2. True, there is variation in the version given by PW4 and PW18 E to some extent. PW4 deposed that he saw PWIS recording the facts that were being stated by PWI for about 15 minutes and then he came out of the police station. He further deposed that PWI was in the police station for nearly two hours. However, from the deposition, it does not follow nor can it be reasonably inferred that in the first instance, PWI gave a p different version of the incident to the police officer. It may be that _in the first instance PWi would have narrated the details of incident to PW18 and he would have started noting the same for some time but that does not necessarily mean that there were two complaints. It is not possible to infer from the deposition of PW4 that the first report was withheld and another report with a different version was made out. 1710-A-Dl G 1.3. PW3, an independent witness, would not like to involve the brother of the deceased wantonly. There are no material contradictions or inherent improbabilities in the evidence of PW3. The trial Court had rightly believed the evidence, but the High Court was inclined to place H reliance on his evidence mainly in the light of two doubtful features pointed

STATE OF KARNATAKA v. PANCHAKSHARI GURUPADA YY A HlRAMA TH [REDDI, l] 707

out by the High Court. They do not obliterate the clear account of the A eye-witness, namely, PW3. The judgment under appeal cannot be sustained. The conviction and sentence recorded by the trial Court is confirmed. (710-G-H; 711-A-B(

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 2&2 of 1995.

From the Judgment and Order dated 6.6.1994 of the Karnataka High Court in Crl. A. No. 497 of 1993.

Siddharath Dave, Sanjay R. Hegde and Satya Mitra, for the Appellant. C

Rajesh Mahale and P.P. Singh for the Respondent.

The Judgment of the Court was delivered by

P. VENKATARAMA REDDI, J. The deceased Shankaraiah Hiremath, D who was working as DSP, had succumbed to the incised injuries inflicted on him by a cutting weapon on the night of 25.4.1993 in his native village of Ugarkhurd, Belgaum District. The respondent herein who is the brother's son of the deceased was charged under Section 302 IPC of the murder of Shankaraiah. The trial court convicted the accused-respondent mainly on the basis of the evidence of PW3 who, according to the prosecution, was in the E company of the deceased while taking walk on the fateful night. On appeal filed by the accused, the High Court set aside the conviction and acquitted the accused, giving the benefit of doubt to the accused. That is why the State of Kamataka has filed the present appeal.

According to the prosecution, there was a dispute between the deceased F

and his brother regarding certain lands in the village and the dispute was settled. However, about 15 days prior to the incident the deceased sent for the accused who is his brother's son when he heard that he was alienating the

land which fell to the share of his brother. In that context there was a quarrel between them. Two or three days later, when the deceased sent the labourers G to remove the weeds on the said land the accused objected and turned them away. The deceased therr went to the field along with his son and questioned the accused for doing so. There again, a quarrel ensued. The deceased was in the habit of going for a walk along with his friend Sadashiv PW 3 who was the Secretary oflocal Cooperative Society during night time and returning H

A home by about 10.30 p.m. They used to sit on a 'katta' in Jain Basti and chit chat. On the crucial nighti.e. 25.4.1993, as usual, the deceased and Sadashiv went for a walk but the deceased did not return till I 0.30 p.m. PW I who was waiting for his father was apprehensive of the safety of his father and he along with PW 4 went along the road to find his father. They noticed the deceased and PW3 on the road opposite to the house of Balu Gondali where B there was an electric light. At that juncture, the accused came from another road suddenly and attacked the deceased with a sickle on several parts of his body. After the assault, the accused went away from the scene. PWs 1,3 and 4 carried the victim upto the house of one Shankar Joshi which is in the vicinity of the house of deceased and he was placed on the 'katta' of Shankar C Joshi's house. Thereafter, he w.as taken in a jeep to the dispensary at

Ugarkhurd. The doctor advised them to take the injured to a major hospital at Miraj. On the way to Miraj, the deceased succumbed to the injuries at about 0.30 hrs. Thereafter, a complaint was lodged at the police station at Kagwad by the son of deceased-P. W. I which led to investigation and filing of charge sheet. PW7 who held the 'post-mortem examination over the dead D body found three incised injuries and one wound over the left little finger.

Tire 4th injury proved to be fatal, according to PW7. The description of the injury is as follows:

"4. 7cm x 2 cm incised wound over the anterior aspect of the left ear and neck. Extending from superior aspect of pinna of ear downwards and medially involving external meatus upto below the angle of mandible deeply involving sternocleoid mastoid muscle parotid gland, fascia) nerve, internal jugular vein, external jugular vein carzotid artery, Crophar with chopped out bone of angle of mandible and mastoid process of I cm long each."

The doctor opined that the cause of death was shock and haemmorage caused due to the injury to left carotid vessels mentioned. The injury No.4 was serious in nature and sufficient to cause death. PW7 further stated that the injuries could have been caused by a sickle.

G The learned trial Judge placed heavy reliance on the evidence of PW

3. However, the trial Court disbelieved the version of PWs I and 4 who claimed to be eye-witnesses to the incident. The learned trial Judge also disbelieved the discovery of sickle at the instance of the accused and the seizure of blood stained clothes of the deceased. The High Court while agreeing H with the trial Court that the version of PWs I and 4 cannot be accepted,

STATE OF KARNA TAKA 1. PANCHAKSHARI GURUPADA YY A !IlRAMA TH [REDDl, J.] 709

doubted the version of PW 3 on the ground that prosecution has not explained A certain important aspects of the case. We shall now proceed to discuss whether the lacunae pointed out by the High Court are fatal to the prosecution case.

I. It transpires from lhe evidence of PW 3 and 9 (Panch witness) that there were blood stained marks at three or four places on the walls of Wagwade's and Tammanapathar's houses which are close to the scene of B offence. The prosecution has not explained as to how these blood stained marks were found on the walls of the said houses. The High Court commented "it is not the case of the prosecution that the deceased swayed for some time on those two walls nor is the case of the prosecution that anybody who held the deceased were responsible for causing those marks. If this material is C taken into account the version of eye-witness becomes doubtful."

Jn our view, the doubt entertained by the High Court in this behalf is not a reasonable doubt but a far fetched one. As the scene of offence as well as the house ofShankar Joshi where the victim's body was laid was too close to the said houses, there was every possibility of someone who touched or D carried the deceased coming into contact with blood and thereafter touching the walls. From the. mere fact that no one was able to pinpoint the particular person who rubbed his hands on the adjacent walls, it cannot be inferred that the entire prosecution case falls to the ground. In fact it is PW 3-the independent witness who showed the blood stained marks on the walls of Wagwade's and Thamanapatta's houses to the investigating officer. If PW 3 E wanted to give a distorted version of the incident, he would have refrained from showing those blood stained marks to the police officers. In any case, the mere existence of few blood marks on the walls in close proximity to the scene of offence does not demolish the prosecution case.

2. Another aspect which according to the High Court casts a doubt on the prosecution case is the alleged existence of two complaints, one recorded by sub-Inspector of Police (PW 18) and the other a written complaint handed over by PW I to PW 18. On this aspect the High Court referred to the evidence of PW 4 who accompanied PW 1 to the police station to the effect

that PW I narrated the incident to the PSI who started recording the same for G about 15 minutes, whereas according to PW 18, he only received a written complaint (Ex.Pl) from PWJ. The said complaint which runs into six pages was written and signed by PW I himself as seen from his deposition. On that basis, the FIR was recorded. The sub-inspector of police PW 18 clarified that

PW 1 did not lodge any oral complaint but he gave a written complaint and H

A the same was written in the police station. He further stated that he was not present in the police station when the complaint was being written but PW I told him that it was written in the police station. True, there is variation in the version given by PW 4 and PW 18 to some extent PW 4 deposed that he saw PW 18 recording the facts that were being stated by PW I for about 15 minutes and then he came out of the police station. He further deposed that B PW I was in the police station till 4 A.M., that is to say for nearly two hours.

However, from the deposition of PW 4, it does not follow nor can it be reasonably inferred that in the first instance, PWI gave a different version of the incident to the police officer. It may be that in the first instance PW! would have narrated the details of incident to PW 18 and he would have C started noting the same for some time but that does not necessarily mean that there were two complaints. PW 4 was not in the company of PW I throughout.

But, he was there only for a few minutes. It is not within his knowledge as to what happened thereafter. The fact remains and it is beyond dispute that the report was drafted by PW I himself and handed over to the PSI (PW 18) and there was sufficient time for him to write the report in the police station.

D It is not possible to infer from the deposition of PW 4 that the first report was withheld and another report with a different version was made out

3. Another reason given by the High Court is that the_ discovery of M.0.3-sickle on the basis of the statement said to have been made by the E accused under Section 27 of the Evidence Act, cannot be relied upon for the reason that mere marking of the statement without mentioning the words stated by the accused will not satisfy the requirement of Section 27. Even the trial Court was not prepared to believe that the accused made a statement that he would point out the sickle and then led the witnesses to the place where it was allegedly hidden. The non-discovery of the weapon-sickle, in our F view, does not go to discredit the evidence of PW 3.

We have gone though the deposition of PW 3, who is an independent witness. He would not like to involve the brother of the deceased wantonly.

There are no material coniradictions or inherent improbabilities in the evidence of PW 3. The trial court had rightly believed the evidence, but, the High Court was not inclined to place reliance on his evidence mainly in the light of two doubtful features pointed out by the High Court. We, have already adverted to them and come to the inevitable conclusion that they do not obliterate the clear account of the eye-witness, namely, PW 3. The judgment under appeal cannot, therefore, be sustained.

• I

STATEOFKARNATAKA v. PANCHAKSHARIGURUPADAYYAHIRAMATH[REDD!, J.] 711

In the result the appeal is allowed setting aside the order of the High A Court and by .confirming the conviction and sentence recorded by the trial Court. The respondent shall be taken into custody to undergo the remaining period of sentence.

S.K.S.

Appeal allowed.