Karnataka High Court
Rasool Fakrusab Mulla vs The State Of Karnataka on 13 December, 2021
Bench: Suraj Govindaraj, J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR.JUSTICE *SURAJ GOVINDARAJ
AND
THE HON'BLE MS.JUSTICE J.M. KHAZI
CRIMINAL APPEAL NO.100018/2019
BETWEEN
1. RASOOL FAKRUSAB MULLA
AGE: 46 YEARS, OCC: DRIVER,
R/O: OBLAPUR, TQ: RAMADURGA,
DIST: BELAGAVI.
2. MUMTAZA W/O RASOOL MULLA
AGE: 42 YEARS, OCC: H/W,
R/O: OBLAPUR, TQ: RAMADURGA,
DIST: BELAGAVI.
...APPELLANTS
(BY SRI.M.B.GUNDAWADE &
SRI.A.M.GUNDAWADE, ADVS. FOR R1,
APPEAL OF A2 IS ABATED)
AND
THE STATE OF KARNATAKA
REP. BY CIRCLE POLICE INSPECTOR,
RAMADURGA POLICE STATION,
BY SPP, HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
* Corrected Vide Court
Order dated 22.12.2021
Sd/-
(JMKJ)
2
ORDER DATED 15.12.2018 PASSED BY THE X ADDL. DISTRICT
AND SESSIONS JUDGE, BELAGAVI IN S.C. NO.45/2015 FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH
SECTION 34 OF IPC AND ACQUIT THE APPELLANTS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.11.2021 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by their conviction and sentence for
the offence punishable under Section 302 read with
Section 34 of the Indian Penal Code, 1960 (hereinafter
referred to as "IPC" for short), appellants, who are accused
Nos.1 and 2 have filed this appeal under Section 374(2) of
the Code of Criminal Procedure, 1973 (hereinafter referred
to as "Cr.P.C." for short).
2. For the sake of convenience, the parties are
referred to by their rank before the Trial Court.
3. Accused Nos.1 and 2 are husband and wife.
They, deceased, his family members as well as majority of
the prosecution witnesses are residents of Oblapur of
Ramadurga Taluk, Belagavi District. It is alleged that
deceased was having illicit relationship with accused No.2.
Even though about two years prior to the date of incident,
accused No.2 has remained away from the deceased, he
was not ready to break away from the said relationship. In
this background, on 18.11.2014 at 06:30 a.m. while
deceased carrying head load of cow dung in a plastic
basket was proceeding towards dung pit, accused No.1
armed with an Axe and accused No.2 armed with a Knife
confronted the deceased. Accused No.1 assaulted the
deceased with the Axe on his left cheek and left portion of
the stomach, whereas, accused No.2 assaulted the
deceased with the Knife on his neck. Throwing the plastic
basket containing the cow dung on the spot, when
deceased started running, accused No.1 started his vehicle
i.e., Land Cruiser Toofan bearing registration No.KA-
26/9499 and from the backside ran over the deceased. As
a result of which the deceased died on the spot and
thereby accused Nos.1 and 2 have committed the offence
punishable under Section 302 read with Section 34 of IPC.
4. For the charges levelled against them, accused
have pleaded not guilty and claimed trial.
5. In support of the prosecution case, 21
witnesses are examined as PWs.1 to 21, Exs.P1 to 37 and
MOs.1 to 11 are marked.
6. During the course of their statement under
Section 313 of Cr.P.C. accused Nos.1 and 2 have denied
the incriminating evidence led on the prosecution side.
They have not chosen to lead evidence on their behalf.
7. After hearing the arguments of both sides, vide
the impugned judgment and order, the learned Sessions
Judge has convicted the accused persons and sentenced
them to undergo imprisonment for life and pay fine of
Rs.10,000/- each with default sentence for non-payment
of fine.
8. During the course of his arguments, the
learned counsel for accused submits that prosecution has
failed to establish the guilt of the accused beyond
reasonable doubt. The impugned judgment and order is
opposed to facts, probabilities, circumstances and law and
liable to be set aside. The Sessions Court has heavily relied
upon the evidence of interested minor witness, who is
tutored by her mother and grandfather to give false
evidence against the accused. It has relied upon evidence
of the witnesses which consist of full of contradictions and
omissions.
9. He would further submit that there are no
overt acts alleged against accused No.2 and as such, her
conviction is liable to be set aside. Complainant i.e., PW.1
is not an eye witness and consequently, the conviction
based on her evidence is not tenable. No independent
witnesses have supported the prosecution case and
therefore, conviction based on the interested testimony of
PWs.1 and 2 is liable to be set aside and prays to allow the
appeal. He has relied upon the following decisions:
"i. Imrat Singh and others Vs. State of
Madhya Pradesh reported in 2020 AIAR
(Criminal) 168.
ii. Basheera Begam Vs. Mohammed Ibrahim
and others reported in 2020 AIA
(Criminal) 818."
10. On the other hand, supporting the impugned
judgment and order of the Trial Court, the learned
Additional State Public Prosecutor submits that through the
evidence of PWs.1 and 2, who are eye witnesses to the
incident, the prosecution has proved the motive as well as
the overt acts committed by accused Nos.1 and 2. The
three independent witnesses examined are common
neighbours of the accused persons as well as the
deceased. In order to save the accused persons, they have
turned hostile. However, the testimony of PWs.1 and 2 is
sufficient to bring home guilt to the accused. Appreciating
the oral and documentary evidence with regard to the
motive and actual commission of the offence, the Trial
Court has rightly convicted the accused and sentenced
them appropriately and prays to dismiss the appeal.
11. In support of his arguments, the learned
Additional State Public Prosecutor has relied on the
following decisions:
"i. Rana Pratap and others Vs. State of
Haryana reported in (1983) 3 SCC 327.
ii. Ratansinh Dalsukhbhai Nayak Vs. State
of Gujarat reported in (2004) 1 SCC 64.
iii. Shivappa and others Vs. State of
Karnataka reported in 2008 (4) Kar.L.J.
183 (SC).
iv. Mallikarjun and others Vs. State of
Karnataka reported in 2019 (5) KCCR
338 (SC)."
12. We have heard elaborate arguments of both
sides and perused the records.
13. It is an undisputed fact that accused Nos.1 and
2 are husband and wife, whereas, PW.1 Laxmavva and
PW.2 Shilpa are the wife and daughter of the deceased
Ramappa. All these persons as well as the other witnesses
are residents of Oblapur. It is the definite case of the
prosecution that deceased had an illicit relationship with
accused No.2 and it was objected to by both accused No.1
as well as PW.1 Laxmavva and inspite of advise by
everyone, including the elders, deceased did not desist
from making advances towards accused No.2 and for this
reason, accused Nos.1 and 2 and their family shifted to
Ramadurga and stayed there for two years. It is further
case of the prosecution that immediately prior to the date
of incident, accused Nos.1 and 2 had returned to Oblapur
to perform the marriage of their eldest daughter. It is
alleged that even after accused Nos.1 and 2 returned to
Oblapur, deceased did not stop his attempts to make
overtures towards accused No.2 and unable to bear the
same, on the date of the incident, accused No.1 armed
with an Axe and accused No.2 with the Knife, attacked the
deceased and inspite of having suffered bleeding injuries,
when deceased started running, accused No.1 started his
vehicle i.e., Land Cruiser Toofan bearing registration
No.KA-26/9499 and dashed against the deceased and
when he fell down, ran over the deceased, killing him
instantaneously.
14. In order to prove the motive as well as the
actual incident, the prosecution has relied upon the
evidence of PW.1 Laxmavva, PW.2 Shilpa, the wife and
daughter of the deceased as well as PW.3 Shivappa, PW.4
Mallappa and PW.5 Dharmappa, the immediate neighbours
of the deceased. However, PWs.3 to 5 have not supported
the prosecution case. Therefore, the prosecution is left
with the evidence of PWs.1 and 2.
15. The accused have taken up a defence that
deceased was a womanizer and used to tease many
women and girls of the village and as such, he had several
enemies and accused might have been killed by any of
these persons and the blame is put on them. On this
ground, they have also disputed the postmortem
examination report so far as the time of death is
concerned which according to the prosecution has occurred
at 06:30 a.m. on 18.11.2014. In view of the specific
defence taken by the accused persons, it is to be examined
whether the interested testimony of PWs.1 and 2 is
reliable, cogent and consistent and whether the Trial Court
is justified to return a judgment of conviction on the basis
of their evidence.
16. Speaking with regard to the motive, PWs.1 and
2 have deposed that deceased was having illicit
relationship with accused No.2 and inspite of advise by
them and the elders, he was not ready to discontinue the
same and that was the reason for the accused persons to
commit the offence in question. During their cross-
examination, it is elicited that deceased had illicit
relationship with accused No.2 since five years, but since
about two years prior to the date of incident, the accused
persons had left the village and were staying in
Ramadurga, the said relationship had discontinued. After
they returned to Oblapur for performing the marriage of
their daughter, though accused No.2 discontinued her
relationship with deceased, but deceased was not ready to
discontinue the same and that was the reason for accused
Nos.1 and 2 to commit the offence in question.
17. The fact that deceased had illicit relationship
with accused No.2 is established by the very suggestions
made to PWs.1 and 2 by the defence during their cross-
examination. At para 11 (page 6) of the evidence of PW.1,
she has admitted the suggestion that she used to quarrel
with deceased that though she is his legally wedded wife
and giving all satisfaction to him, why he is having illicit
relationship with accused No.2. A suggestion is made to
PW.1 that deceased used to consume alcohol every night
and in drunken condition used to visit the house of accused
No.2 and forcing her to continue the illicit relationship with
him and giving trouble to her. Even though PW.1 has
denied the suggestion, the very suggestion made by the
defence proves the fact that deceased and accused No.2
were having illicit relationship. On this aspect, during her
cross-examination, PW.2 has deposed that she came to
know about the illicit relationship when her mother and
deceased used to quarrel on the subject and that her
father i.e., deceased was reluctant to discontinue his
relationship with accused No.2. At para 12 page 7 of her
deposition, PW.1 has stated that accused No.1 came to
know about the illicit relationship between the deceased
and his wife i.e., accused No.2 and since then he became
angry. It is argued by the learned counsel representing the
accused that since two years before the incident, no
quarrel had taken place between the accused persons and
the deceased and it cannot be accepted that after a gap of
two years, accused persons would attack the deceased.
18. It is relevant to note that according to the
accused themselves, two years prior to the date of
incident, they had left Oblapur and shifted to Ramadurga
and they came back to Oblapur to perform the marriage of
their daughter. This explains the fact that after accused
No.1 coming to know about the illicit relationship between
the deceased and accused No.2, no quarrel had taken
place. After they returned to Oblapur, on realizing that
deceased is not ready to discontinue his illicit relationship
with accused No.2 and in view of the daunting task of
performing the marriage of their daughter, they were
angry towards the deceased for the nuisance being created
by him cannot be ruled out. Thus from the testimony of
PWs.1 and 2, coupled with suggestions made to them
during their cross-examination by the defence, the
prosecution has proved the motive.
19. The evidence of PWs.1 and 2 establish the fact
that on the date of incident, they, deceased, CW.20
Kumari Shaila another daughter of the deceased got up at
around 06:00 a.m. While PW.1 was engaged in watering
(zsÀ£ÀUÀ½UÉ ªÀÄĸÀÄgÉ w¤ß¸ÀĪÀÅzÀÄ) the cattle in the house, PW.2 Shilpa
cleaned the front yard (ªÀÄ£É ¨ÁV°UÉ ¤ÃgÀÄ ºÁPÀĪÀÅzÀÄ), deceased
collected the cow dung in a blue coloured plastic basket
from the cattle shed and started moving towards the
Harijanakeri to go to dung pit, where his family usually
dump the cow dung (which would be later used as manure
in the lands). Simultaneously PW.2 started following him
with small mug (ZÀjUÉ) of water in order to go to answer
nature's call (as would be done in villages where they don't
have a latrine in the house). A suggestion is made to PW.2
that a girl would not go behind her father to attend
nature's call. In the present case, the deceased was
carrying a heap of cow dung in a basket to throw the same
in the cow dung pit, whereas, PW.2 was going to answer
nature's call. It does not mean that both of them were
going to the same place.
20. PW.2 is a witness to the entire incident
consisting of accused Nos.1 and 2 assaulting the deceased
with an Axe and a Knife respectively and after the injured
sustained the injuries and in order to escape, tried to run
away, accused No.1 starting his vehicle i.e., Land Cruiser
Toofan and dashing against the injured and when he fell
down, running it over him. The evidence of PW.1 makes it
evident that when accused Nos.1 and 2 started attacking
the deceased with the Axe and Knife, PW.2 cried and
shouted for help and hearing the commotion, she came
running to the spot and saw the second part of the incident
namely accused No.1 starting the Land Cruiser and
running it over the injured, who died on the spot.
21. During the course of her evidence, PW.2 has
deposed that deceased did not observe accused Nos.1 and
2 at the place of occurrence when he was carrying the cow
dung basket and when he reached the said spot, no
exchange of words took place between deceased and
accused No.2, but on seeing the deceased, accused No.1
started assaulting him with the Axe. In this regard, she
has stated that accused Nos.1 and 2 came from the vehicle
which was parked on the rough road (PÀZÁÑ gÀ¸ÉÛ) in front of
the house of Yallappa.
22. PWs.1 and 2 have been cross-examined at
length as to the distance between them and the deceased,
when the incident took place. In this regard, PW.2 has
deposed that when accused Nos.1 and 2 assaulted the
deceased, she was at a distance of about 10 feet from her
father. On this aspect, PW.1 has deposed, hearing the
cries of her daughter, she went to the spot and saw the
incident and she was at a distance of about 8 to 10 feet.
She has also stated that the place from which her daughter
i.e., PW.2 cried for help is at a distance of about 150 to
200 feet from her house. However, she has denied that
from the said distance, it was not possible for her to hear
her cries.
23. PWs.1 and 2 have been cross-examined at
length as to whether from the distance they saw the
incident, the blood oozing from the wounds of the
deceased came to be sprinkled on their clothes, which the
witnesses have answered in the negative. It is not the case
of the prosecution that the wound sustained by deceased
was such that it led to gushing of the blood in such a
manner that either the clothes of the accused persons or
that of PWs.1 and 2 became stained with the blood. In
fact, the scene of occurrence at both places i.e., the first
place where the deceased was assaulted with the Axe and
Knife and the place where he was run over by the Toofan
Cruiser vehicle by accused No.1 were stained with blood.
There is no evidence that the clothes of the accused were
stained with blood. Having regard to the fact that both
PWs.1 and 2 were at a distance of 8 to 10 feet from the
deceased, question of their clothes staining with blood
would not arise.
24. PWs.1 and 2 are also cross-examined as to
whether they tried to go to the rescue of the deceased
when accused Nos.1 and 2 assaulted him with the Axe and
Knife and also when accused No.1 ran the Toofan Cruiser
vehicle over him. These witnesses have replied that since
the accused Nos.1 and 2 were armed with deadly weapons
and as accused No.1 gave threat by showing the Axe, they
did not go to the rescue of the deceased. Moreover, the
entire incident has taken place in a very short duration and
after assaulting the deceased with Axe, accused No.1 did
not stop. On the other hand, he started the Toofan Cruiser
vehicle belonging to him and run over the deceased. Such
being the case, being a girl of tender age, PW.2 cannot be
expected to go to the rescue of the deceased. After
hearing the cries of her daughter, when PW.1 came out of
her house and started running towards the place of
occurrence, though she was able to see what was
happening, she was not by the side of the deceased to go
to his rescue. Moreover, when the accused No.1 started
the Toofan Cruiser vehicle and charged towards the
deceased, it cannot be expected that either PW.1 or PW.2
would be able to fall on the body of the deceased to save
him or drag him away. If they would have ventured to do
so, the possibilities of accused running over them also
cannot be ruled out.
25. As held by the Hon'ble Supreme Court in Rana
Pratap's case (referred to supra) relied upon by the
prosecution, the conduct of eye witnesses cannot be
predicted. The presence of an eye witness cannot be
judged by any preconceived notion of how he should have
reacted at the time of occurrence. On this aspect, the
Hon'ble Apex Court further observed that "every person
who witnesses a murder reacts in his own way. Some are
stunned, become speechless and stand rooted to the spot.
Some become hysteric and start wailing. Some start
shouting for help. Others run away to keep themselves as
far removed from the spot as possible ..... Everyone reacts
in his own special way. There is no set of rule of natural
reaction. To discard the evidence of witnesses on the
ground that he did not react in any particular manner is to
appreciate evidence in a wholly unrealistic and
unimaginative way". This decision is rightly applicable to
the case on hand. Merely for the reason that PWs.1 and 2
did not go to the rescue of the deceased or drag him out of
the way to save him from accused No.1 running over his
vehicle is no ground to disbelieve the testimony.
26. PWs.1 and 2 have been cross-examined at
length suggesting that since the incident took place in the
month of November i.e., during winter, the visibility was
very less and as such, they were not able to see the
incident. They have been suggested that during winter, the
sunrise would be at 07:00 a.m. However, both PWs.1 and
2 have denied that on the date of the incident, the visibility
was very low and as such, they were not in a position to
see the incident. The examination of the testimony of PW.2
makes it clear that she was following the deceased at a
distance of about 10-15 ft. and after hearing her cries,
when PW.1 came running to the spot and witnessed the
second part of the incident, she was also at a distance at
about 10-15 ft. from the deceased. When the incident
commenced, it was 06:30 a.m. and within a span of next
15 minutes, the incident has concluded. In the light of the
definite testimony of PWs.1 and 2, the argument that on
account of winter, PWs.1 and 2 were not able to witness
the incident cannot be accepted.
27. The defence has attacked the testimony of
PW.2 contending that she is a child witness and as
admitted by her, she has been tutored. On this aspect, it is
relevant to note that during the course of her evidence,
PW.2 has stated that on that day she has come to the
Court alongwith her grandfather and mother i.e., PW.1 and
the panchas. She has admitted that her mother and
grandfather have tutored her how to give evidence.
28. It is pertinent to note that at the time of the
incident, PW.2 was 14 years old and though in the cause
title of her deposition, she is stated to be studying in 9th
standard, as deposed by her at page 4, para 4 of her
deposition, when she gave evidence, she was studying in
10th standard. Neither at the time of the incident nor when
she gave evidence, she can be said to be a very small child
of impressionable age to say that she was a tutored
witness. In fact, examination of her evidence which
consists of 18 pages of which 14 pages are her cross-
examination, makes it evident that she is a natural witness
and she has deposed what she has seen. She has
withstood the rigor of cross-examination. If she were to be
tutored, she would not have withstood the rigor of cross-
examination. We find no reason to discard her evidence
solely on the ground that at the time of incident, she was
aged 14 years and that she is the daughter of the
deceased. As held by the Hon'ble Apex Court in
Ratansinh's case (referred to supra), mere fact that the
child was asked to say about occurrence and as to what
she saw did not amount to tutoring. Similarly the evidence
of PW.1 is natural, cogent and convincing. Her presence at
the scene of occurrence is natural. We find no reason to
disbelieve her testimony. Both PWs.1 and 2 have no ill-will
or motive to depose falsely against the accused persons.
29. PWs.1 and 2 have been cross-examined
suggesting that deceased was a womanizer. The defence
has gone to the extent of suggesting to PW.1 that she is
having illicit relationship with one Mallappa Haligeri of their
village i.e., Oblapur and her husband was having illicit
relationship with the wife of said Mallappa Haligeri. A
suggestion is also made to PW.1 that deceased made an
attempt to outrage the modesty of wife of one Basappa
Aribenchi and on coming to know about the same, Basappa
Aribenchi and his family members assaulted him and the
said incident had taken place about one and half months
before the death of her husband i.e., the deceased. Similar
suggestions are made to PW.2. In addition to it, it is also
suggested to her that deceased was in the habit of eve
teasing young girls of the village. Ofcourse, PWs.1 and 2
have denied these suggestions. They have also denied that
on account of the objectionable conduct of the deceased,
someone else had committed his murder and that a false
complaint is filed against the accused persons. Absolutely
there is no basis for these suggestions. The defence has
not placed any material on record to establish these
allegations, atleast by preponderance of probabilities.
Moreover, if the deceased was murdered, by some one
other than the accused, then the complainant and her
family members would not have spared the real culprit.
30. It is pertinent to note that during the
investigation, the Investigating Officer has recovered MO.7
Knife at the instance of accused No.2 through mahazar
Ex.P21, whereas, MO.1 Axe is recovered from beneath the
driving seat of MO.11 Land Cruiser through spot mahazar
Ex.P3.
31. PWs.13 and 14 are witnesses to the recovery
of MO.7 Knife at the instance of accused No.2. Even
though PWs.13 and 14 have identified their signature in
Ex.P21, they have not supported the prosecution case and
denied that when MO.7 Knife was recovered at the
instance of accused No.2, they were present. In this
regard, the evidence of PW.20, who is the Investigating
Officer and who has recovered MO.7 Knife on the
information given by accused No.2 is relevant. He has
specifically stated that as per her voluntary statement,
accused No.2 led him, CW.4 (PW.13) and CW.5 (PW.14),
to her house and took out MO.7 Knife. He has identified
Ex.P14 as the photograph taken at the time of recovery of
MO.7 and in addition to accused No.2, PWs.13, 14, the
woman constable as well as himself are seen in it. It is
relevant to note that the accused persons have managed
to get all the material prosecution witnesses turn hostile.
Consequently, PWs.4 to 6, who are immediate neighbours
of the deceased as well as the accused and whose
presence at the scene of occurrence was natural have not
supported the prosecution case, especially when they have
not disputed that at the time of incident they were not
present in the village and that they were elsewhere.
Similarly PWs.13 and 14 have also denied of having
present when MO.7 was recovered at the instance of
accused No.2. However, the evidence of PW.20, who is the
Investigating Officer, proves the recovery of MO.7.
32. MO.1 Axe is recovered through the spot
mahazar Ex.P3. It is pertinent to note that after running
over the Toofan Cruiser vehicle, both accused ran away
leaving the vehicle at the spot. In fact, the photographs at
Exs.P4 and 5 make it clear that when the spot mahazar at
Ex.P3 was drawn, the dead body was still under the front
right wheel of the said vehicle. Accused No.1 has not
disputed that the vehicle in question belongs to him. With
regard to Exs.P4 and 5, the learned counsel representing
the accused submitted that these photos have been taken
by setting up the vehicle over the dead body. It is relevant
to note that the incident in question has taken place in a
broad day light and as suggested to PWs.1 and 2, the
place of occurrence is surrounded by several residential
houses and other buildings and it is frequented by local
residents. In fact, the evidence on record, indicates that
soon after the incident, several people have gathered.
Such being the case, it cannot be accepted that MO.11
Toofan Cruiser vehicle is set up on the body of the
deceased and Exs.P4 and 5 photographs have been taken.
In fact, no such suggestion is forthcoming during the
cross-examination of any of the witnesses.
33. PW.3 Shivappa Karadigudda is a witness to the
spot mahazar Ex.P3. Since the incident has taken place at
two places, the spot mahazar also consists of two portions.
PW.3 has deposed with regard to the first portion wherein
MO.2 plastic basket which was lying at the place where
deceased was assaulted with the Knife and Axe was seized
alongwith blood stained mud and plain mud. He has been
treated as hostile with regard to the second portion of the
mahazar, wherein MO.11 Toofan Cruiser vehicle was seized
from the spot and also the MO.1 Axe was recovered.
However, during his cross-examination by the prosecution,
he has admitted that through the mahazar at Ex.P3, the
vehicle, Axe, plain mud as well as blood stained mud were
recovered.
34. It is pertinent to note that at the first instance
i.e., immediately after examination-in-chief, this witness
i.e., PW.3 is not cross-examined by the accused. However,
after a lapse of six months, he has been recalled at the
instance of accused and cross-examined on their behalf. At
this stage, he has turned hostile and denied of having
present when the mahazar was drawn and admitted that
his signatures were taken to blank paper. Even though
rightly the prosecution has sought permission of the Court
to cross-examine him, the Trial Court has deferred his
further evidence by observing that defence has raised
objection and sought for time. It appears thereafter this
witness is not recalled. Anyhow, the examination of the
deposition of this witness makes it evident that at the first
available opportunity, he has deposed in accordance with
Ex.P3. Only after he has been recalled at the instance of
accused, he has turned hostile.
35. In this regard, the decision of the Hon'ble
Supreme Court in Mallikarjun's case (referred to supra)
relied upon by the prosecution is relevant and applicable.
In this decision, relying upon the decision of the Hon'ble
Apex Court, reported in (2001) 9 SCC 362 and (2004) 10
SCC 657, at para 23 rejecting the argument of the learned
counsel appearing for the defence, the Hon'ble Apex Court
held that "there is no merit in the contention that merely
because the panch witnesses have turned hostile, the
recovery of the weapon would stand vitiated. It is fairly
well settled that the evidence of the Investigating Officer
can be relied upon to prove the recovery, even when the
panch witnesses turned hostile". When the testimony of
the Investigating Officer is reliable and convincing, we find
no reason to disbelieve the evidence regarding the
recovery of MO.7 at the instance of accused No.2 and
recovery of MO.1 Axe through the spot mahazar, merely
on the ground that PWs.3, 13 and 14 have turned hostile
at the instance of accused Nos.1 and 2. Therefore, we hold
that the prosecution has proved the recovery of Knife at
MO.7 at the instance of accused No.2 and MO.1 Axe
through the spot mahazar. This recovery becomes relevant
in view of the medical evidence that injury No.2 is possible
if assaulted with the Knife at MO.7 and similarly injury
Nos.1 and 3 are possible with MO.1 Axe.
36. As already discussed, MO.11 Toofan Cruiser
vehicle is seized through the spot mahazar Ex.P3. MO.1
Axe is recovered from beneath the driving seat of MO.11.
During the course of their evidence, PWs.1 and 2 have
stated that after assaulting the deceased, accused No.1
kept MO.1 Axe beneath the driving seat and started the
vehicle and ultimately ran over the deceased. In the
complaint given by PW.1 as well as statement of PW.2
before the Investigating Officer, this fact is not
forthcoming. Having regard to the fact that such a ghastly
incident has taken place before their eyes, they might not
have found the fact of accused No.1 keeping MO.1 Axe
beneath the driving seat of MO.11 vehicle, very material or
they might have missed referring to the same. Having
regard to the fact that MO.1 Axe was recovered from the
vehicle during the spot mahazar, they have referred to it in
their testimony. This lapse itself does not make their
evidence doubtful.
37. During their examination-in-chief, PWs.1 and 2
have identified MO.11 Toofan Cruiser vehicle, MO.1 Axe
and MO.7 Knife. During their cross-examination, PWs.1
and 2 have deposed that MO.1 Axe and MO.7 Knife were
stained with blood. When MOs.1 and 7 were confronted to
PW.1, she has stated that at the time of her evidence, they
were not stained with blood. However, she has come up
with an explanation that at this point of time, the stains
might have disappeared. During her cross-examination,
PW.2 has stated that when accused No.1 kept the blood
stained Axe below the driving seat, she did not observe
whether that portion of the vehicle was strained with
blood. In fact, during his cross-examination, PW.19, the
Investigating Officer has stated that he do not remember
whether the place below the driving seat from where MO.1
Axe was recovered had any blood stains. In fact, Ex.P3
through which MO.11 Toofan Cruiser vehicle was seized,
from inside which MO.1 Axe was recovered does not state
the presence of blood stains on the floor of the vehicle
where MO.1 was kept.
38. At this stage, it is relevant to refer to the FSL
report at Ex.P30. As per Sl. No.1 of opinion column, it
states that item No.1 (MO.3), item No.3 (MO.1), item No.4
(MO.5), item No.6 (MO.7), item No.8 (MO.9) were stained
with blood, which means as per Ex.P30, except the sample
mud collected from both places, the remaining articles
were stained with blood. However, at Sl. Nos.3 and 4, it is
stated that only item Nos.4 and 5 i.e., MO.5 blood stained
mud was stained with human blood of 'A' blood group. The
opinion regarding origin of the blood in the remaining
items namely item Nos.1, 3, 6, 7 and 8 are not specified.
On this aspect, PW.18 Dr.Chaya Kumari has deposed that
while typing the said portion, by mistake item Nos.1, 3, 6,
7 and 8 are not noted. It is pertinent to note that item
Nos.7 and 8 are the blood stained bunian and lungi of
deceased which are marked as MOs.8 and 9. Having
regard to the fact that deceased has met a homicidal
death, if not the other items, these two would certainly
have the blood of human origin. The very fact that these
two items are also not specified and only blood stained
mud is stated to contain blood of human origin and 'A'
group goes to show that the non-mentioning of opinion
regarding the origin of the blood and its group in respect of
item Nos.1, 3, 6, 7 and 8 is only by mistake.
Unfortunately, while receiving Ex.P30, the Investigating
Officer has not observed this lapse and sought for further
information. Anyhow, in the light of substantive evidence
of PWs.1 and 2, Ex.P30 is only corroborative piece of
evidence and this lapse would not go to the root of the
prosecution case.
39. Since the vehicle is involved in the incident,
the Investigating Officer has got it examined through the
Motor Vehicle Inspector i.e., PW.11 and he has given
report at Ex.P17 to the effect that no mechanical defects
were found. Usually IMV report is secured in accident cases
where accused would take a defence that accident was due
to mechanical defect. During his cross-examination, PW.11
has denied the suggestion that he did not drive the vehicle
to ascertain whether there are any mechanical defects,
even though he has admitted that in Ex.P17, he has not
specifically stated that he drove the vehicle. In the present
case, it is not the defence of accused Nos.1 and 2 that the
deceased sustained injuries on account of a motor vehicle
accident. Therefore, the fact that in Ex.P17, PW.1 has not
mentioned that he examined the vehicle by driving it will
not assume any importance.
40. Now coming to the medical evidence regarding
the cause of death. PW.15 Dr.Bannigidad, Medical Officer,
General Hospital, Ramadurga, has conducted the
postmortem examination. The postmortem report is at
Ex.P25. His testimony coupled with Ex.P25 establish the
fact that the deceased has suffered the following ante
mortem injuries:
"i. Incised wound present over the left side
of the face at angle of mandible 1 cm
below the left triages of ear, across the
left chin measuring 6 X 2 X bone depth.
Edges are short and retracted blood
stained. It is 7 cm away from the left
angle of mouth.
ii. Incised wound over the nape of the neck
measuring 4 X 1 X 3 cm depth. Present
at the level of lower edge of occipital hair
line.
iii. Incised perforating wound present on left
side of abdomen, situated 7 cm left and
7 cm down to the umbilicus. 1 cm above
the anterior superior Iliac spine on left
side, wound is obliquely present
measuring 12 cm X 4 cm letting the
large intestine and small intestines
momentum to come out. edges are sharp
and blood stained and retracted.
iv. Abrasion present over the left shoulder 6
cm X 6 cm.
v. Crush injury present over the over the
right side of chest at infrascapular and
scapular, infra-axillory, right side of
chest front with multiple markings like
tyre marks, with a scattered peeled
lesion over it, measuring 34 cm X 32 cm.
Blood staining at the edges present.
vi. Abrasion over the left knee anteriorly 3
cm X 4 cm.
vii. Abrasion over the left leg measuring 3
cm X 3 cm, 1 cm below the left knee
joint.
viii. Abrasion over the lateral part of left hip
region measuring 4 cm X 1.5 cm.
ix. Abrasion over the right leg measuring 3
cm X 3 cm infero lateral part of right
knee joint."
41. His evidence with regard to internal injuries is
as follows:
"After dissecting the thorax, I have seen
multiple fractures on the ribs No.4, 5, 6, 7, 8,
9 and 10 on right side present with lacerated
muscles attach to them. Torn right pleura
membrane present. Edges of the fracture ribs
are sharp and even with blood stain.
Pleura and cavity torn on right side with
blood collection present. Lunges right side
lacerated middle and lower part of right lunge
present.
On further detection of abdomen,
regarding wall and peritoneum, skin and
underline fascia, muscles are perforated below
the abdominal inside the wound.
On the further detection of mouth,
pharynx and esophagus same was intact and
fracture of mandible on left side underneath
the left cheek incised wound with irregular
edges and blood stain present. On further
detection of small and large intestine, if ound
less irate perforation present in the descending
colon measuring 4 X 3 cm with multiple
perforating injuries in small intestine presence.
I found unclothed blood present on right side
of abdominal cavity at renal area about 200
ml."
42. PW.15 has deposed that the time since death
was 12 to 24 hours and the cause of death was due to
Neurogenic and Hypovolemic shock due to multiple injuries
to abdominal organs and chest.
43. In response to the requisition at Ex.P26 given
by the Investigation Officer, PW.15 has also examined the
MO.1 Axe, MO.7 Knife and MO.11 vehicle and given
opinion as per Ex.P27 that injury Nos.1 and 3 could be
caused if assaulted with MO.1 Axe, injury No.2 could be
caused if assaulted with MO.7 Knife and similarly the
injuries on the chest, stomach and back are possible if run
over by vehicle similar to MO.11 Toofan Cruiser vehicle
No.KA-26/9499. He has also opined that the injury on the
chest and stomach are fatal in nature. In reply to question
No.5 of Ex.P26 he has stated that the intestine has come
out of the stomach of the deceased on account of the
injury sustained on the stomach and it is not on account of
the vehicle passing over him.
44. As already discussed, according to the
prosecution the incident took place at around 6:30 a.m.
The complaint came to be lodged at 12:15 p.m. In this
regard, PW.1 has deposed that she got the complaint
written through PW.10 Shekappa Holennavar. According to
PW.1 she, the scribe and others went to the Police Station
and she got the complaint written through the scribe and
filed the same. However, PW.10 has deposed that he wrote
the complaint at Obalapur itself in between 10:00 to 11:00
a.m. and thereby giving a go bye to the testimony of PW.1
that the complaint was written at the Police Station and
the scribe was also present at the Police Station. It is
pertinent to note that PW.19 B.J.Patil has conducted initial
investigation. He has deposed that on 18.11.2014 at 08:00
a.m. while he was in the Police Station, he received
information regarding the incident and immediately he
visited the spot and conveyed the said information to his
higher officers. He has stated that when he was at the spot
he came to know that already the complainant has gone to
Police Station to file complaint and therefore, he returned
to the Police Station. On this aspect he has been cross-
examined as to whether he requested the persons who
were present at the scene of occurrence to file the
complaint, PW.19 has replied that when he enquired the
relatives of the deceased who were present at the scene of
the occurrence, he came to know that already the wife of
the deceased had gone to Police Station to file complaint.
This supports the testimony of PW.1 that she went to the
Police Station and lodged the complaint which was written
by PW.10 Shekappa Holennavar. PW.10 is examined
before the Court on 29.06.2016. He is only a scribe. As a
literate person the possibility of he having written number
of petitions or complaints at the request of illiterate
persons cannot be ruled out and therefore he may not be
remembering where exactly he wrote Ex.P1. However, the
testimony of PW.1 that Ex.P1 was written at the Police
Station is not shaken and we find no reason to disbelieve
the same. Moreover, the fact where Ex.P1 was written is
not going to affect its contents and credibility of the
testimony of PW.1. Therefore, merely because the scribe
i.e., PW.10 Shekappa Holennavar has deposed that he
wrote Ex.P1 at Obalapur is not going to the root of the
prosecution case.
45. At para No.13 of her cross-examination, PW.1
has admitted that PW.10 Shekappa and Police brought a
written complaint and she has affixed her LTM and she was
not knowing what was written in the complaint. Admittedly
neither PW.10 Shekappa Holennavar nor any of the Police
personnels are eye witnesses to the incident. Such being
the case, a stray admission that PW.1 affixed her LTM to
the complaint brought by PW.10 Shekappa Holennavar and
the Police and that she did not know what was written
therein cannot be taken into consideration to hold that
PW.1 has not witnessed the incident and that she is not
the author of the complaint. In fact the entire testimony of
PW.1 corroborates with the contents of the complaint at
Ex.P1. The unimpeached testimony of PWs.1 and 2
establish the fact that they are the eye witnesses and as
such, it was quite natural for PW.1 to lodge the complaint.
46. During her cross-examination, PW.1 has stated
that she and her daughter had gone to Police Station to file
the complaint. It is pertinent to note that deceased and
PW.1 are having two daughters. It has come in the cross-
examination of PW.2 that after the incident till the dead
body was removed from the spot, she stayed with it. The
defence has not cared to ascertain along with which
daughter PW.1 had gone to the Police Station. The un-
impeached testimony of PW.2 that she stayed with the
dead body of her father till it was removed from the spot,
necessarily it goes to establish that PW.1 had gone to the
Police Station with the other daughter who was present in
the house when the incident took place. Thus from the
above discussion, we hold that there is no delay in filing
the complaint and the same is filed as soon as practicable
having regard to the distance between the place of
occurrence and the Police Station as well as in the shocked
condition in which PW.1 was after witnessing the ghastly
murder of her husband.
47. PW.15 i.e., Dr. N.B.Bannigidad who has
conducted Postmortem examination has been cross-
examined at length regarding the time since death when
he conducted postmortem examination. He has been
cross-examined on this aspect in order to demonstrate
that the death of deceased had taken place much earlier
than what is projected by the prosecution. On this aspect,
though PW.15 has stated that it takes 24 hours to set in
rigor mortis completely, he has volunteered that this
depends on the nature of the body and surrounding
environment. A suggestion is made to PW.15 that in winter
rigor mortis will be very slow. In the Postmortem Report at
Ex.P25 under the description 'External Appearance', it is
stated that multiple clear fluid filled Blebs all over the body
present. In this regard, PW.15 has admitted that formation
of Blebs require minimum 24 to 26 hours and exposure to
excessive heat for a long time. However, he has stated
that the Blebs were not smelling. In page 352 (26th
Edition) of "Modi, A Text Book of Medical Jurisprudence
and Toxicology", the learned author has observed that in
India, the rigor mortis usually commences in one or two
hours after death. He further observes that in general,
rigor mortis sets in one or two hours after the death, is
well developed from head to foot in about 12 hours.
48. Discussing with regard to opinion of the
Medical Officer, who conducts Postmortem regarding the
time since death, at page 366, the learned author has
observed that "the points to be noted in ascertaining the
time are warmth or cooling of the body, the absence or
presence of Cadaveric Hypostasis, rigor mortis and the
progress of decomposition. It must be remembered that
the conditions producing these changes vary so much in
each individual case that only a very approximate time of
death can be given". So far as Blebs are concerned at page
No.356, below the figure 2(A-B) the learned author has
observed that side by side with the appearance of a
greenish patch on the abdomen, the body begins to emit a
nauseating and unpleasant smell owing to the gradual
development of gasses of decomposition and these gasses
form Blebs (blisters) under the skin containing a reddish
colored fluid on various parts of the body. In the light of
these observations, it could be safely held that the time
since death as 12 to 24 hours from the time of conducting
the Postmortem examination is approximate and it
corroborates with the prosecution case. Moreover, as held
by the Hon'ble Supreme Court in Shivappa's case
(referred to supra) relied upon by the learned Additional
State Public Prosecutor, in the presence of testimony of
PWs.1 and 2, who are the eye witnesses, not much
importance need be given to the opinion of PW.15
regarding the time of death. Therefore, on this basis, the
contention of the defense that the death of the deceased
had occurred much earlier than what is projected by the
prosecution case and that PWs.1 and 2 are not eye
witnesses cannot be accepted.
49. During his cross examination PW 15 has
deposed that if injury is caused with sharp edged weapon
such as Axe, there are chances of blood oozing and
persons who are standing at a short distance may be
stained with blood. However, the testimony of PWs.1 and 2
makes it evident that despite the fact that accused No.1
assaulted the deceased on his cheek up to the neck and on
the stomach, there was no oozing out of blood from the
said injuries resulting in splashing of the same either on
the clothes of the accused Nos.1 and 2, who were near him
or on PWs.1 and 2, who were at a distance about 10 ft. A
suggestion is made to PW.15 that a person who suffered
injuries on his neck and stomach will not be in a position to
move. Answering the same, PW.15 has stated that it all
depends on the nature of the injury. The evidence on
record indicates that after sustaining the injuries due to
assault with Axe and Knife, in order to escape, deceased
made an unsuccessful attempt to run away but, before he
could cover a small distance, accused No.1 drove the
Toofan Cruiser vehicle and dashed against him, as a result
of which he fell on the ground after which accused No.1
ran over the vehicle on him. In light of the unequivocal
testimony of the PWs.1 and 2, as to what exactly
transpired at the scene of occurrence, the hypothetical
suggestions made to PW.15 as to what would have
happened is not of much consequence.
50. The learned counsel representing the accused
submitted that PW.19 B.J.Patil, the Investigating Officer,
who has registered the case and conducted initial
investigation has received telephonic information and
visited the spot and as such, it amount to commencement
of the investigation and therefore, Ex.P1 is hit by Section
162 of Cr.P.C. However, the cross-examination of PW.19
makes it amply clear that after receipt of telephonic
communication, he has not reduced the same into writing
and thereby treating it as complaint. When suggested that
such information should be treated as first information,
PW.19 has replied that in order to ascertain the veracity of
the said information, he has visited the spot, but he did
not start the investigation till he received the complaint at
Ex.P1. Though the information received by him indicates
that a murder is committed, on such cryptic information, it
cannot be expected that a responsible Police Officer would
commence investigation, especially when all the details are
not forth coming. Though Section 157 of Cr.P.C. provides
that on receipt of definite information regarding
commission of a cognizable offence, the Investigating
Officer may send a report to the Magistrate and proceeding
with the investigation, as in the present case, in absence
of definite information as to who has committed the
offence, the manner in which it is committed and whether
or not there are eye witnesses etc., the arguments of the
learned counsel that on the basis of telephonic
communication that a murder has been committed, PW.19
should have registered the case cannot be accepted.
Rightly PW.19 has waited till formal complaint as per Ex.P1
was lodged. Mere fact that he visited the spot cannot be
taken as commencement of the investigation thereby
rendering Ex.P1 inadmissible.
51. In Imrat Singh's case (referred to supra)
relied upon by the learned counsel for accused, the Hon'ble
Apex Court rejected the prosecution case by observing that
the person who first came to know about the incident was
not examined and the complaint came to be filed only after
the visit of the Police to the scene of occurrence and
therefore, there was possibility of a story being concocted
could not be ruled out and almost all the witnesses have
some criminal antecedents and some cases were pending
against them. However, in the present case, the
complainant had gone to the Police Station at 10:00 a.m.
After getting the complaint written through PW.10, she
lodged the complaint. As evident from the endorsement on
the complaint at Ex.P1 as well as FIR at Ex.P32, the
complaint is received at 12:15 p.m. In fact, it has reached
the jurisdictional magistrate at 02:00 p.m. on the same
day. Consequently, having regard to these facts, there is
no delay in filing the complaint. Even though PW.19, who
is the first Investigating Officer, who has registered the
case has deposed that after coming to know about the
incident, he visited the spot, his evidence makes it clear
that by that time, complainant had already gone to the
Police Station to lodge complaint and therefore, he did not
made any attempt to get complaint from any of the
persons who were present at the spot, who were
acquainted with the incident. Therefore, there was no
question of the Investigating Officer concocting the story
against the accused. For these reasons, we hold that this
decision is not applicable to the case on hand.
52. In Basheera Begum's case (referred to
supra) relied upon by the learned counsel for the accused,
the Hon'ble Apex Court held that in case based on
circumstantial evidence, it is necessary to prove the
motive. In the present case, the incident has taken place
in a broad day light, in the presence of eye witnesses, of
whom PWs.1 and 2 have deposed consistently regarding
the complexity of accused in the crime. As already
discussed, their evidence is cogent, consistent and reliable.
We find no reason to disbelieve their testimony. In addition
to establishing the involvement of the accused, their
evidence coupled with the very suggestions made to them
prove the motive. In the circumstances, we hold that the
above decision is not applicable to the case on hand.
53. Thus from the above discussion, we hold
that the learned Sessions Judge, after discussing the
oral and documentary evidence placed on record in
detail has come to a correct conclusion that the charges
levelled against the accused are proved beyond
reasonable doubt. The conclusions arrived at by the
Trial Court are based on the legal evidence. We find no
reason to interfere with the same. In the result, the
appeal fails and accordingly, we proceed to pass the
following:
ORDER
Appeal filed by accused No.1 is dismissed.
Appeal of accused No.2 is already abated.
Sd/-
JUDGE
Sd/-
JUDGE
Rsh
