Karnataka High Court
Prabhakar Anchan @ Prabha vs The State Through on 5 February, 2024
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CRL.A No. 1290 of 2017
C/W CRL.A No. 1026 of 2017
CRL.A No. 39 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1290 OF 2017
C/W
CRIMINAL APPEAL NO.1026 OF 2017
CRIMINAL APPEAL NO.39 OF 2018
CRL.A.NO.1290 OF 2017
BETWEEN:
1. PRABHAKAR ANCHAN @ PRABHA
S/O KRISHNAPPA
AGED ABOUT 38 YEARS
R/O NEKKILAGUDDE
DEREBAIL VILLAGE, ASHOKNAGAR POST
MANGALORE TALUK
DAKSHINA KANNADA DISTRICT - 575 003.
2. NISHANTH @ NISHANTH KAVOOR
Digitally signed by
LAKSHMINARAYANA
S/O LATE GURURAJ
MURTHY RAJASHRI AGED ABOUT 32 YEARS
Location: HIGH
COURT OF R/AT C/O LANCY, LOHITH NAGARA
KARNATAKA
ASHOKNAGAR POST
MANGALORE TALUK
DAKSHINA KANNADA DISTRICT - 575 003.
...APPELLANTS
(BY SRI RAVI B. NAIK, SENIOR COUNSEL FOR
SRI R. B. DESHPANDE, ADVOCATE FOR APPELLANT
A-1 DELETED VIDE ORDER DATED 8-11-2017)
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CRL.A No. 1290 of 2017
C/W CRL.A No. 1026 of 2017
CRL.A No. 39 of 2018
AND:
THE STATE OF KARNATAKA
BY KAVOOR POLICE STATION
DAKSHINA KANNADA DISTRICT - 575 015
(REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU - 560 001)
...RESPONDENT
(BY SRI DIWAKAR MADDUR, H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 30.5.2017/31.5.2017 PASSED BY THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN
S.C.NO.96/2015 - CONVICTING THE APPELLANTS/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 302, 307, 324 AND 323
READ WITH 34 OF IPC.
CRL.A.NO.1026 OF 2017
BETWEEN:
PRABHAKAR ANCHAN @ PRABHA
S/O KRISHNAPPA
AGED ABOUT 38 YEARS
R/O NEKKILAGUDDE
DEREBAIL VILLAGE, ASHOKNAGAR POST
MANGALURU TALUK
MANGALURU DISTRICT - 575 006.
...APPELLANT
(BY SRI RAVI B. NAIK, SENIOR COUNSEL FOR
SMT. VIJETHA R. NAIK, ADVOCATE)
AND:
THE STATE THROUGH
KAVOOR POLICE STATION
KAVOOR - 575 015
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI DIWAKAR MADDUR, H.C.G.P.)
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CRL.A No. 1290 of 2017
C/W CRL.A No. 1026 of 2017
CRL.A No. 39 of 2018
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 30.5.2017 PASSED BY THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN
S.C.NO.96/2015 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 302, 307, 324 AND 323
READ WITH 34 OF IPC.
CRL.A.NO.39 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
BY KAVOOR POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...APPELLANT
(BY SRI DIWAKAR MADDUR, H.C.G.P.)
AND:
1. VINOD RAJ SHETTY @ BOTI
S/O LATE PURUSHOTHAM SHETTY
AGED ABOUT 26 YEARS
R/AT PINTO COMPOUND
LONG LANE, URVA
MANGALURU - 575 015.
2. SHAILESH SHETTY @ SHAILU
S/O MAHABALA SHETTY
AGED ABOUT 29 YEARS
R/AT EWS - 56, BONDEL
KAVOOR VILLAGE
MANGALURU - 575 015.
3. BHARATHESH
S/O MALATHESH
AGED ABOUT 22 YEARS
R/AT VIGNESH NILAYA
DEVINAGARA, KAMBLAPADAVU
MUDIPI, KONAJE
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CRL.A No. 1290 of 2017
C/W CRL.A No. 1026 of 2017
CRL.A No. 39 of 2018
MANGALURU TALUK - 575 015.
...RESPONDENTS
(BY SRI RAVI B. NAIK, SENIOR COUNSEL FOR
SMT. ATHMA V. HIREMATH, ADVOCATE FOR R1 TO R3)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 30.5.2017 PASSED BY THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN
S.C.NO.96/2015 INSOFAR AS IT RELATES TO ACQUITTING THE
ACCUSED/RESPONDENTS FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 143, 144, 147, 148, 302, 307, 324, 323 READ WITH 149
OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 9-11-2023, THIS DAY, VENKATESH NAIK T. J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT
Crl.A.No.1290/2017 is filed by accused No.2 Nishanth,
Crl.A.No.1026/2017 is filed by accused No.1 Prabhakar Anchan
and Crl.A.No.39/2018 is filed by the State aggrieved by the
judgment of conviction dated 30.05.2017 and order
on sentence dated 31.05.2017 passed by the learned
IV Addl. District and Sessions Judge, Dakshina
Kannada, Mangaluru in S.C.No.96/2015, whereby the
trial court convicted accused Nos.1 and 2 for the
offences punishable under sections 302, 307, 324 and
323 r/w 34 IPC and acquitted accused Nos.3 to 5 of
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the offences punishable under sections 143, 144, 147,
148, 302, 307, 324 and 323 r/w 149 IPC.
2. The case of the prosecution in brief is as
under:-
The name of the deceased is Rithesh. The
complainant-Lohith(PW-1) lodged a complaint on
30.03.2015 at 6.00 a.m., alleging that during the
night of 29.03.2015, there was a Tulu Drama by name
'Paniyara Avandina' at Ashwath Katte, Nekkilagudde
organized by Arjun Mories and groups led by accused
No.1- Prabhakar Anchan. The complainant(Lohith-PW-
1) went to watch the drama alongwith his friends
Mithun-PW-2, Rithu @ Rithesh(deceased) and
Yathish(PW-3). The audience had gathered to watch
the drama, and at around 12.30 a.m., the drama
ended. PWs.1 to 3 and deceased Rithesh were
standing near the drama stage and at that time,
deceased enquired accused No.1 to return the hand
loan borrowed by him and in this regard, there was
exchange of words between them. Thereafter,
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accused No.1 brought a Talwar, which was kept
underneath the stage and assaulted Rithesh on his
head, hands, legs and accused No.2 Nishanth and
three other persons came with Talwars and assaulted
Rithesh on his forehead, hands and legs. When PWs1
to 3 tried to pacify the quarrel, accused No.1
assaulted PW-1 on his right hand and accused No.2
assaulted PW-1 on his right arm. When PW-2 Mithun
tried to stop the quarrel, accused Nos.1, 2 and three
others assaulted him on his face, neck and back.
PW-3 tried to stop the assault, accused Nos.1 and 2
and three others assaulted on his hand and leg. Due
to severe injuries, Rithesh fell down and died on the
spot. After receipt of the information, PW-19, the ASI
of Kavoor came to the spot around 2.30 a.m. saw the
dead body, took PWs1 and 2 to AJ. Hospital at 5.00
a.m., where PW-1 lodged the complaint- Ex-P2. This
led to registration of FIR and investigation.
3. In order to prove its case, the prosecution in
all examined 21 witnesses as PW-1 to PW-21 and got
marked 35 documents as per Exs-P1 to P35 and marked
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27 material objects as per M.O.1 to M.O.27. The
accused got examined three witnesses as DWs-1 to 3
and got marked four documents as per Exs-D1 to D4.
4. After evaluating the evidence, the trial court
came to the conclusion that the prosecution was able
to prove its case beyond reasonable doubt and held
accused Nos.1 and 2 guilty of the offences punishable
under Sections 323, 324, 307 and 302 of IPC. The
main reasons assigned by the trial court for convicting
accused Nos.1 and 2 is that the case is based on
eyewitnesses-PWs.1 to 3 and recovery of bloodstained
clothes of accused persons. Eyewitnesses have
categorically stated about the individual overt acts of
accused Nos.1 and 2 and the manner of assault
committed by them on PWs.1 to 3 and the deceased.
Their oral testimonies are corroborated by the
evidence of Doctors-PWs.9 and 10. As per the medical
evidence, the cause of death of deceased Rithesh was
'due to complications of multiple injuries sustained as
a result of sharp force trauma'. The motive behind
commission of murder of deceased Rithesh was in the
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backdrop of financial transactions between accused
No.1 and the deceased. The medical evidence and the
evidence of the eyewitnesses are supported by the
spot and seizure mahazar witnesses. Hence, the trial
court convicted the accused.
5. Assailing the findings of the trial court,
Sri Ravi B. Naik, learned senior counsel appearing on
behalf of Smt. Vijetha R. and Sri. R. B. Deshpande,
learned counsel for accused Nos.2 and 1 in
Crl.A.No.1026/2017 and Crl.A.No.1290/2017 argues
that the prosecution is guilty of suppression of
material facts and has not come forward with the true
version of the incident. The trial court wrongly relying
upon the evidence of PWs.1 to 3, who are interested
witnesses being friends of the deceased and without
appreciating the fact that there was a long and
unexplained delay in filing the complaint has held that
there was motive on the part of the accused persons
to commit the murder of the deceased. Further,
PWs.1 to 3 admitted certain aspects in their evidence
and made improvements, which have not been
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considered by the trial court. The recovery of the
material objects has not been done in accordance with
law, as PWs.7 and 8 are friends/known persons to the
deceased. The deceased and PWs.1 to 3 had enmity
with the accused persons. There are serious infirmities
and discrepancies in the evidence of
PW-20-Investigating Officer and his testimony
contradicts the contents of exhibited documents
marked on behalf of the prosecution. There is long and
unexplained delay in filing the complaint and
submitting the FIR to the jurisdictional Magistrate and
the manner in which the complaint came into
existence, creates a serious doubt in the prosecution
case. As per Ex.D2-letter of MESCOM and the oral
testimony of PW-11-Assistant Engineer, Kooluru
Branch, MESCOM, there was no supply of electricity to
the place where the incident is said to have occurred.
The prosecution failed to prove the place of incident,
as the contents of Exs.P10 and P29 differ from the
case of the prosecution. There are several loopholes in
the investigation. PW-19 who visited the spot around
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2.30 a.m. failed to report the incident to the SHO.
He was duty bound to inform the SHO, since, he was
on rounds and in-charge of PCR vehicle, but he failed
to do the same. It is contended that when the
deceased died at the spot, the PSI sent the dead body
for autopsy in a private ambulance to the Wenlock
Government hospital without conducting the spo t
mahazar, and the spot or scene of crime was not
protected by the police. It is contended that the
offences were so severe and heinous in nature that the
police ought to have secured a photographer, finger
print expert, sniffer dogs' squad, but the police failed
to do so. Further, the notice was not served on the
mahazar witnesses by name Clinton D'Souza(PW-7)
and Akshay Salian(CW12). It shows that the
Investigating officer has conducted improper
investigation to implicate accused No.1 deliberately in
order to tarnish him, his reputation and image and
spoil his political prospects.
6. It is contended that inquest mahazar (Ex-P9)
was not drawn on the spot or scene of crime, but it
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was drawn at Wenlock Government Hospital where the
autopsy was done, which itself shows the manner in
which the investigation was conducted. Further, there
was delay of four months in sending the mahazar to
the trial court; the identification parade was also not
done in the present case. It is contended that at about
5.00 a.m., on the day of the alleged incident,
PW-1 Lohith went to AJ hospital for treatment
alongwith his brother, where he reported that he was
subjected to assault near Kottara Chowki. PW-2 Mithun
went to AJ hospital for treatment along with a police
constable, where he reported that he was subjected to
assault near Kottara Chowki and there is no mention
of Nekkilagudde. But, in the statement recorded
under section 161 Cr.P.C., the wound certificates,
complaint and spot mahazar, it is indicated that the
incident took place at Nekkilagudde. Therefore, the
prosecution has failed to establish the exact place of
occurrence of incident and there are contradictory
statements of PWs.1 and 2 with regard to the place of
the incident.
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7. It is contended that the prosecution has failed
to produce the blood groups of PWs.1 to 3 and the
deceased, as it plays a very important role to prove
the case of the prosecution and a conclusive proof to
connect the blood stains with the accused. But in the
FSL report, the blood group is shown as 'O'.
Therefore, the prosecution has failed to explain the
difference that arose in the blood groups.
8. It is contended that PWs.1 to 3 are planted
witnesses, their evidence is interested in nature; the
trial court has not considered the statements of the
accused persons while recording it under Section 313
of Cr.P.C. and the defence evidence elicited as DWs.1
to 3 and Exs.D1 to D4 documents. On all these
grounds, the learned senior counsel prays to allow the
appeals of accused Nos.1 and 2 and set aside the
judgment of conviction and sentence passed by the
trial court. The learned counsel relied upon the
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following decisions:-
1. 2022 SCC OnLine SC 883 in the case of
Shahaja @ Shahajan Ismail Mohd. Shaikh v.
State of Maharashtra.
2. (2019) 16 SCC 242 in the case of State of
Karnataka v. M.S. Basappa and others.
3. 2023 SCC OnLine SC 262 in the case of Nand
Lal and others v. State of Chhattisgarh.
4. 1994 Supp (1) SCC 590 in the case of State of
A.P. v. Punati Ramulu and others.
9. Per contra, Sri Diwakar Maddur, learned High
Court Government Pleader for the appellant-State in
Criminal Appeal No.39 of 2018 and for
respondent-State in Criminal Appeal No.1026 of 2017
and Crl.A.No.1290 of 2017 submits that PWs.1 to 3
being the eye witnesses to the incident have clearly
stated about the manner of incident, accused Nos.1 to
5 assaulting the deceased near the drama stage with
MOs.1 to 5 and hence, the deceased succumbed to the
injuries on the spot. These witnesses have identified
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the accused persons in the open court. The oral
testimonies of eyewitnesses-PWs.1 to 3 are
strengthened by the medical evidence. MOs.1 to
4-talwars and MO.5-knife were recovered at the
instance of the accused persons. But the trial court
acquitted accused Nos.3 to 5 on the ground that their
names did not find place in the FIR and PWs.2 and 3
came to know the names of accused Nos.3 to 5 only
after their arrest by the police and also when the
names of accused Nos.3 to 5 were published in the
newspaper. This appreciation of the trial court was not
correct as there is no hard and fast rule to name
accused Nos.3 to 5 in the FIR. It is contended that
PWs.1 to 3 have stated that the incident took place
during night and they witnessed the incident in the
street light, the accused persons assaulted the
deceased and PWs.1 to 3 have given the description of
the accused persons, their clothes and their presence
at the scene of occurrence, at the relevant point of
time. Therefore, the case of accused Nos.3 to 5 does
not differ in any manner with that of accused Nos.1
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and 2. Hence, the trial court ought to have invoked
Section 149 of the IPC and convict accused Nos.3 to 5
under vicarious liability. It is contended that PW.3 in
his statement before the police has stated that he
would identify other three persons, if he sees the
accused persons. Accordingly, he identified
accused Nos.3 to 5 before the trial court and his
evidence corroborates the evidence of PWs.1, 2 and
the Investigating Officer. Therefore, there was no
occasion for the trial court to suspect the evidence of
PWs.1 to 3. It is contended that as per the evidence
of PW.8, the police secured accused Nos.3 to 5 with
him and recovered MOs.1 to 4 and MOs. 10 to 19.
Therefore, recovery of the weapons at the instance of
accused Nos.3 to 5 is also proved, which is permissible
in evidence under Section 27 of the Indian Evidence
Act. Under the same set of facts and evidence, the
trial court convicted accused Nos.1 and 2, but took a
different view in acquitting accused Nos.3 to 5. It is
contended that there is sufficient material placed on
record against accused Nos.3 to 5 to show that the y
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had intention to commit the offence, but the trial court
failed to assign any reasons in acquitting accused
Nos.3 to 5, when the evidence of the prosecution
witnesses coupled with material objects clearly
established the guilt of accused Nos.3 to 5 along with
accused Nos.1 and 2. It is contended that the
evidence of injured witnesses should not be
disbelieved, unless, contrary is proved. However, the
trial court erroneously acquitted accused Nos.3 to 5,
which requires interference by this court. Hence, he
prayed to dismiss the appeals filed by accused Nos.1
and 2 and to allow the appeal filed by the prosecution.
10. We have considered the arguments and
perused the entire evidence both oral and
documentary and examined the prosecution witnesses
namely:-
11. PW-1 Lohith, an injured eyewitness, who had
accompanied deceased at Nekkilegudde where Tulu
drama 'Paniyara Avandina' was played. According to
PW-1, accused No.1 had borrowed hand loan from
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deceased Rithesh. Soon after completion of the drama,
when the deceased demanded accused No.1 to repay
the loan borrowed by him, he got annoyed and there
was exchange of words between them. Accused No.1
along with four other accused persons took four
talwars and a knife which was kept underneath the
drama stage, accused No.1 assaulted Rithesh on his
head, legs and hands and then accused No.2 assaulted
Rithesh on his forehead, hands, legs, and when PWs1
to 3 tried to pacify the quarrel, accused No.1 also
assaulted him on his right hand, when PW-2 tried to
stop accused Nos.1 and 2, they also assaulted PW-2
on his forehead, neck and on his back. Immediately,
Rithesh succumbed to the injuries on the spot itself
(near Mahakali temple road).
12. PW-2 Mithun, a friend of deceased and an
eyewitness to the incident and injured witness has
stated in line with PW-1 and corroborated his oral
testimony. In the cross examination, he admits that
there was criminal case against him and a murder case
against Rithesh(deceased). He further admits that he
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came to know about the names of accused Nos.3 to 5
only after seeing their photographs in the newspaper
and media on the following day. He further admits that
there was no personal enmity between Rithesh and
accused No.1.
13. PW-3- Yathish, friend of deceased, an
injured eyewitness has reiterated the oral evidence of
PWs.1 and 2 with regard to the incident that occurred
near drama stage and accused Nos.1 and 2 committed
assault on deceased and PWs.1 to 3. In the cross
examination, PW-3 admits that soon after the incident,
he did not inform the police regarding the incident and
he did not even inform anyone at home. When he tried
to rescue deceased Rithesh, he sustained injury on his
left hand and after seeing the incident, PW-3 ran away
from the spot. He reached home around 2.30 a.m. He
further admits that, deceased Rithesh was one of the
accused in a murder case. It is the evidence of
PWs.1 to 3 that soon after the incident, PWs.1 and 2
went to AJ Hospital for treatment and PW-3 went to
his house.
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14. What emerges from the perusal of oral
testimonies of PWs1 to 3 is that on 29.03.2015, during
night, deceased Rithesh and PWs1 to 3 were at the
spot, at about 1.30 a.m., deceased Rithesh insisted
accused No.1 to return his amount and hence there
was heated discussion and exchange of words between
them. Immediately, accused Nos.1 and 2 brought
talwars and a knife which was kept underneath the
drama stage and assaulted Rithesh on his head, face,
neck and hands etc. In the meanwhile, PWs1 to 3
tried to pacify the quarrel, however, accused Nos.1
and 2 assaulted them with talwars, and hence they
also sustained bleeding injuries. PWs.1 to 3 have seen
the incident in street light and the decorative lights
installed at the drama stage. It is their consistent
evidence that PW-2 was hiding at a compound of a
house located nearby and at that time, a PCR vehicle
came to the spot and one police constable viz.,
Purushotam (CW-24) took him to AJ hospital for
treatment, where he undergone surgical operation and
took treatment for two months. PWs.1 to 3 have
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identified the clothes worn by accused persons and the
same were identified by PWs.1 to 3 as per MOs.10 to
19 and they also identified talwars and a knife
(MOs.1 to 5).
15. In this case, PWs.1 to 3 being injured
witnesses witnessed the incident and they have seen
accused Nos.1 and 2 stabbing the deceased with
talwars at 01.45 a.m. Thus, the oral testimonies of
PWs.1 to 3 clearly establishes that they have seen the
incident, attempted to rescue deceased Rithesh and
during this course, they also sustained bleeding
injuries by accused Nos.1 and 2. It is their consistent
evidence that, apart from accused Nos.1 and 2, some
other accused persons were also present at the spot,
but these witnesses have not stated their individual
overt acts in the incident. No doubt, PWs.1 to 3 are
the friends of the deceased, but their evidence
requires careful scrutiny to discover falsehood,
embellishment or exaggeration. It is the consistent
evidence of PWs.1 to 3 that the accused persons
assaulted deceased with MOs.1 to 5 and caused his
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death. They have also stated that, they too sustained
injuries in the incident, hence, the evidence of
PWs.1 to 3 appears to be trustworthy and their
evidence is corroborated with each other. The
evidence of PWs.1 to 3, being eyewitnesses to the
incident, remains unimpeachable and their evidence
cannot be discarded. When we analyze the conduct of
PWs.1 to 3, the credibility of their testimonies goes
stronger.
16. The learned senior counsel for accused
persons contended that PWs.1 to 3 are friends of the
deceased and they are planted eye witnesses and
interested witnesses. Hence, we shall first deal with
the contention regarding interestedness of the
witnesses from the prosecution version. The ground of
friendship is not a factor to doubt their credibility as
PWs.1 to 3 are injured eye witnesses. Thus the
testimonies of PWs.1 to 3 is clear, cogent and
credible.
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17. PW-4 Harish, elder brother of deceased and a
witness to inquest mahazar Ex-P9 has stated that on
30.03.2015, the police conducted inquest panchanama
at Wenlock Government hospital, Mangaluru in
between 10.00 a.m. to 1.00 p.m. on the dead body of
deceased Rithesh and noticed 35 injuries. He identified
clothes of deceased as per MOs.20 to 23. In the cross
examination, nothing has been elicited to discredit his
testimony.
18. PW-5 Umesh, uncle of deceased has also
deposed regarding conduct of inquest mahazar as per
Ex-P9 and the injuries on the body of the deceased
and identified the clothes worn by the deceased as per
MOs.20 to 23.
19. PW-6 Sandesh the witness to inquest mahazar
(Ex-P9) has stated that the police conducted inquest
panchanama at Wenlock Government hospital as per
Ex-P9. He has identified the dead body of deceased
and noticed 35 injuries over his head, legs and other
parts of the body, he saw blood stained clothes vide
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MOs.20 to 23. In the cross examination, nothing has
been elicited to disprove his testimony.
20. From the conjoint reading of the oral
testimonies of PWs.4 to 6, it is clear that deceased
was found with injuries and his clothes were blood
stained and Ex-P9 inquest mahazar was drawn at
Wenlock Government hospital, Mangaluru and
therefore, their evidence is clear, cogent and reliable
as to the conduct of inquest mahazar on the dead body
of deceased in their presence.
21. The prosecution in order to prove the spot
panchanama or scene of offence, examine d
PW-3 Yathish and PW-7 Clinton D'Souza a witness to
spot mahazar-Ex-P4, who have stated that on
30.03.2015, the police conducted spot mahazar at the
scene of offence in their presence and collected blood
stained soil, sample soil and seized knife as per
MOs.24, 25 and M.O.5 respectively. They have further
stated that they saw a temple at the scene of offence
and an electric pole where the police conducted spot
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mahazar and also drew the sketch as per Ex-P10. In
the cross examination, they admit that Rithesh was
known to them and Rithesh was the friend of Akshay
Salian(CW-12). The police were present at the spot.
When the police had called the local persons to sign
the mahazar, they have not come forward to sign. He
was not given a memo to stand as pancha. He has
denied that the police had not seized the material
objects.
22. From the evidence of PW-7, it is clear that
PW-3 Yathish had shown the place where the incident
took place and the mahazar was drawn in the presence
of panchas as per Ex-P4 and at that time, Ex-P10
sketch was drawn. There is no discrepancy in the
testimonies of PW-3 and PW-7. The prosecution also
examined PW-15 Rajesh Rai, who visited the scene of
offence and drew sketch as per Ex-P29. The evidence
of PW-7 is corroborated by the evidence of PW-3,
PW-15 and the Investigating Officer(PW-20).
Therefore, the testimonies of PW-3 and PW-7 with
regard to drawing of spot mahazar Ex-P4 and Ex-P10
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sketch, the collection of blood stained soil and seizure
of knife, is believable.
23. In order to prove the recovery of weapons
and blood stained clothes of the accused on the basis
of voluntary statements of the accused (Exs-P31 and
P32), PW-8 Rakesh, the relative of PW-1 was
examined on oath. He has stated that on 02.04.2015,
the accused persons were in the custody of police.
Accused Nos.1 and 2 were in one vehicle and accused
Nos.3 to 5 were in another vehicle. The accused led
police and PW-8 to a place at Jelligudde, a hillock
area. The accused went near the bushes and produced
saffron colour clothes in which four talwars were
wrapped, a sealed plastic cover containing black colour
T-Shirts and blue colour jeans pants. Hence, the police
recovered the same and drew seizure panchanama as
per Ex-P15 and seized talwars as per MOs.1 to 4 and
black T-shirts and blue jeans pants as per MOs.10 to
19. He identified the talwars and clothes seized under
Ex-P15.
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24. In the cross examination, PW-8 has admitted
that Rithesh was known to him, but, he is not his
relative. PW-1 is his brother-in-law. He was aware of
the injuries sustained by PW-1 and he was not aware
of injury sustained by Lohith till 7.00 p.m. The police
have called him and informed that they have to go to
Jelligudde. They have followed the police in their bike.
He does not know when the police have arrested the
accused persons. All the talwars were wrapped in a
single cloth. The police did not search at the spot. The
accused went to the spot and produced the material
objects. He does not remember whether the police
have put the handcuffs to the accused. He does not
know about the criminal case registered against
deceased Rithesh and PW-1. PW-8 has denied rest of
the suggestions.
25. From the perusal of the testimony of PW-8, it
is clear that the accused were already in the custody
of police, they led PW-8 and police to the place called
Jelligudde near the forest area and accused persons
showed four talwars wrapped in a saffron colour cloth,
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a sealed plastic cover containing black colour T-Shirts
and blue colour jeans pants MOs.1 to 4 and MOs.10 to
19 from the bushes. The evidence of PW-8 does not
disclose the recovery at the instance of accused Nos.3
to 5. However, accused Nos.1 and 2 led the police
along with accused Nos.3 to 5 to Jelligudde and
recovered the material objects and same were
recovered at the instance of accused Nos.1 and 2
alone. It is also clear that at the instance of
accused Nos.1 and 2, they showed MOs. 1 to 4 and 10
to 19 and at their instance, the material objects were
recovered, therefore, the evidence of PW-8 can be
considered against accused Nos.1 and 2 with regard to
recovery made under Ex-P15.
26. The prosecution in order to prove the injuries
sustained by PWs1 and 2, has examined PW-9, PW-12
and PW-14. PW-9 Dr. Jayaprakash K., who examined
PW-1 Lohith has stated that on 30.03.2015 at 6.00
a.m. at AJ hospital, Mangaluru, PW-1 came with a
history of assault. On examination, he found the
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following injuries:-
1. Cut wound, 7cm x 1cm x muscle deep, situated
obliquely over back of the right hand, extending
from inner aspect of the base of ring finger
upward and outwards, exposing the torn
extensor tendon of right ring finger.
2. Scratch abrasion 10 cm x 1mm, over outer
aspect of right shoulder and arm.
As per the opinion of the Doctor, injury no.1 is
grievous and injury no.2 is simple in nature. Injury
No.1 was caused by sharp cutting weapon and injury
No.2 was caused by sharp or relatively sharp weapon.
Hence, he issued wound certificate as per Ex-P16.
On the same day, at 3.20 p.m. PW-9 examined
PW-2 Mithun who came with a history of assault. He
examined him and found following injuries:-
1. Incised wound 4cm x 0.5 cm x bone deep, over
left side of the eyebrow and forehead.
2. Incised wound 5cm x 1 cm x bone deep, over
left side of the head, 4cm above the ear.
3. Superficial incised wound, 3 cm x 0.3 cmx skin
deep, horizontally over left side of the face, over
the angle of the lower jaw with a backwards
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extension in the form of scratch abrasion
measuring 6cm x 1mm.
4. Incised punctured wound, 6 cm x 2cm x 10cm
over left side of the back, 41cm below the
shoulder and 3cm away from the midline.
27. As per the opinion of the Doctors, injuries
Nos.1 to 3 are simple and injury No.4 is grievous in
nature. Injury Nos.1 to 3 could be caused by sharp
cutting weapon and injury No.4 could be caused by
sharp cutting pointed weapon. Hence, he issued wound
certificate as per Ex-P17. On 04.04.2016, at the
request of IO, he examined two talwars as per M.O.1
and M.O.2. Hence, he issued his opinion as per
Ex-P18. He has seen the blood group of PWs.1 to 3,
Mithun, Lohith and Yathish as per Exs-P19, 20 and 21
respectively. In the cross examination, he clarified the
timings of admission mentioned in the wound
certificate of Mithun and volunteered that the same
was wrongly mentioned as 2.55 p.m. instead of 2.55
a.m. The evidence of PW-9 is corroborated by the
evidence of PW-12 who had examined the injured at
about 2:55 a.m.
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28. PW-12 Dr. Ashok Hegde who treated Mithun
PW-2, has stated that on 30.03.2015, at 2.55 a.m., he
examined injured Mithun PW-2 at AJ Hospital, who
came with a history of assault, thus, he examined him
and treated him and conducted surgery and thereafter,
PW-9 Dr. Jayaprakash of AJ Hospital issued wound
certificate on the basis of MLC records.
29. PW-14 Dr. Dinesh Kadam, who examined
PW-1 Lohith on 30.03.2015, at 5.30 p.m., found two
injuries, accordingly, he issued wound certificate as
per Ex-P16.
30. Therefore, there is consistency in the
evidence of PWs9, 12 and 14 and their evidence do not
suffer from any infirmity. Thus, the prosecution is
able to establish that PWs.1 and 2 have sustained
injuries as mentioned in Exs.P16 and P17 and
underwent treatment at AJ hospital, Mangaluru.
31. The prosecution has also examined
PW-10-Dr. Pratheek Rastogi, who conducted the
autopsy on the dead body of deceased. PW10 has
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stated that he conducted the post-mortem on the body
of the deceased Rithesh on 30.03.2015 between
2.15 p.m. and 3.30 p.m. and found the following
injuries:-
1. Four chop wounds over the parieto-temporo-
occipital region over an area 12 x 15 cm
(horizontally placed). All 4 chop wounds are
parallel and horizontal, margins are contused
and underlying skull bone shows comminuted
fractures. The wounds are directed from
above downwards : (a) 1st chop wound
measures 10 x 0.5, 2 cm above the right ear,
b) 2nd wound measures 7 x 0.5 cm, 1 cm
above the previous, (2) 3rd wound measures
13x2 cm, 1 c, above previous, (d) 4th wound
measures 11x0.7 cm, 0.5 cm above previous.
2. Incised wound measuring 4 x 0.5 cm, bone
deep, horizontally present on right side of
forehead, directed from lateral to medial.
3. Superficial laceration measuring 1x0.5 cm, on
tragus of right ear.
4. Laceration, measuring 1.5 x 0.5 cm on pinna
of right ear.
5. Incised wound measuring 1.5 x o.5 cm,
present at outer canthus of right eye.
6. Incised wound measuring 1x0.5 cm, present
on right cheek parallel to and 1 cm lateral to
external injury No.5.
7. Incised wound measuring 2x0.5 cm present
on right cheek, 1 cm lateral to right nostril.
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8. Incised wound, measuring 2x0.3 cm,
horizontally placed 1cm below right ½ of
lower lip.
9. Abrasion, measuring 7x1cm, reddish brown in
colour, present on front of right shoulder.
10. Stab wound, measuring 2x1.5 cm,
perforating the pleura in 4th intercoastal
space in anterior axillary line. Tailing is seen
on the lateral end of wound.
11. Incised wound, measuring 2x1cm,
horizontally present in the right mid axillary
line in 5th intercoastal space.
12. Incised wound, measuring 2.5 x 1 cm, in the
right mid clavicular line, 2 cm below the right
costal margin.
13. Incised wound, measuring 1x0.5 cm, 2 cm
below the external injury No12.
14. Incised wound, measuring 2.5 x 1 cm, in the
right anterior axillary line, 3 cm below the
right costal margin.
15. Incised wound, measuring 10 x 2 cm,
muscle deep, obliquely present on right side
of abdomen. Anterior end is situated 9 cm
above iliac crest in mid axillary line,
perpendicularly directed with tailing at
posterior end.
16. Chop wound, measuring 18 x 7 cm x muscle
deep, present on upper part of right shoulder
directed from below upward and behind
forward with tailing in the front in 3
transactions. Margins underlying vessels and
muscles are crushed and contused.
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17. Chop wound measuring 15x9 cm, bone
deep, present on back of right elbow, margins
are contused and underlying muscles are
crushed with underlying fracture of lower end
of humerus.
18. Stab wound, measuring 13 x 4 cm in right
infrascapular region on the back, perforating
the right 7th inercostal space penetrating the
lower lobe of right lung.
19. Multiple linear reddish brown colour
abrasions over an area 24x21 cm horizontally
and obliquely present on right side of trunk
involving lower half of chest and upper half of
abdomen.
20. Incised wound, measuring 1x0.5 cm, on the
dorsum of right hand.
21. Incised wound, measuring 1x0.5 cm on the
back of right fore arm 10 cm above wrist
joint.
22. Incised wound, measuring 1x0.5 cm, on the
back of right forearm 12 cm above wrist joint.
23. Chop wound on right hand measuring 8 x 4
cm on the dorsal aspect with crushing of
underlying structure and fracture of proximal
phalanges.
24. Stab wound measuring 4x2 cm, cavity deep
present on the back 8 cm below the inferior
angle of left scapula, fracturing the 11th and
12th rib. Wound is directed from lateral to
medial with tailing at medial end.
25. Chop wound, measuring 11x3 cm, bone
deep present on the palmar aspect of left
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hand, directed below upwards with fractures
of underlying carpal bones.
26. Chop wound measuring 10x0.1 cm, bone
deep present on left thumb.
27. Stab wound, measuring 4 x 2.5 cm, bone
deep, obliquely present on the outer aspect of
right thigh in its middle 1/3 directed from
below upwards.
28. Avulsed laceration, measuring 3x2 cm,
present on the outer aspect of middle 1/3rd
of right thigh.
29. Incised wound, measuring 3x1 cm,
subcutaneous deep, over anterior aspect of
right knee.
30. Chop wound, measuring 15x4 cm, bone
deep, abliquely present, on the upper 1/2nd
of front of right leg with underlying fracture of
tibia. Medial end is 12 cm below knee and
lateral end to 23 cm below knee joint.
31. Incised wound, measuring 10x3 cm, muscle
deep, in the inner aspect of right leg,
vertically present in upper 1/3 rd.
32. Multiple abrasions, reddish brown in colour,
over an area 5x2 cm, over dorsum of right
great toe.
33. Linear abrasion, measuring 2 cm in length,
present on outer aspect of right leg in upper
1/3rd.
34. Chop wound, measuring 22x4 cm, bone
deep, vertically present on upper half of right
leg on its inner aspect.
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35. Incised wound vertically placed on the back
of right thigh measuring 7x3 cm, muscle deep
with tailing downwards.
36. Incised wound, measuring 5x2 cm, muscle
deep, present on the outer aspect of right
thigh 21 cm above knee.
37. Incised wound, measuring 4x1 cm, muscle
deep, horizontally place, directed above
downwards on the lower part of left hip.
38. Incised wound, measuring 4x1.5 cm, muscle
deep, horizontally placed on the inner aspect
of left leg directed from below upwards
present 10 cm above heel.
39. Superficial laceration, measuring 1x1 cm,
present on the undersurface of left great toe.
40. Fracture dislocation of left shoulder joint.
32. As per the opinion of the Doctor-PW-10, the
deceased died due to 'complications of multiple
injuries sustained as a result of sharp force trauma',
hence, he issued post mortem report as per Ex-P22.
On reading of the evidence and the post-mortem
report, it is clear that the deceased died due to
complication of multiple injuries sustained as a result
of sharp force trauma and the injuries are
ante-mortem in nature. PW-10 opined that the
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weapons MOs.1 to 5 is possible to cause injury, is also
believable. Thus, the prosecution is able to establish
that the deceased died on account of injuries
sustained by talwars and knife- MOs.1 to 5.
33. The prosecution in order to prove the blood
stains on material objects examined PW-13
Dr. Geethalaxmi P., Scientific Officer, RFSL,
Mangaluru. She has stated that she conducted the
chemical analysis on 26 material objects and found
blood stains of 'O' group on the material objects A1,
A3, B1, B2, B3, B4, C1, C2, C3, C4, C6, C7, C8, C9,
C10, C11, C12, C13, D3 and E1. Hence, she issued FSL
report Ex-P26 and serology report Ex-P28. In the cross
examination, she admits that the blood stains
contained in the material objects were dried and she
could not identify the RH factor of 'O' blood group.
Therefore, from the perusal of evidence of PW-13 and
contents of Exs-P26 and 28, it is clear that the
material object Nos.1 to 4(talwars), M.O.5 (knife),
M.O.6 (shirt of PW-1), M.O.10 to 19(shirts and pants)
belonging to accused persons, M.O.20 to 23
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(clothes and belt) belonging to the deceased,
M.O.24-blood stained soil and M.O.26-filter paper were
found with 'O' blood group belonging to human. It
shows that on account of assault, the clothes of
deceased, accused Nos.1 and 2, PW-1, talwars and
knife were stained with blood. Hence, the prosecution
is able to establish that on account of assault made by
accused persons, the clothes of deceased, accused and
PW-1 were stained with 'O' blood group.
34. The prosecution in order to prove the
visibility at night at Nekkilegudde has examined PW-11
P.M. Yogaraj, Asst. Engineer, MESCOM, Mangaluru. He
has stated that on 29.03.2015 in the night hours till
1.30 a.m. there was uninterrupted electricity supply
within the jurisdiction of Nekkilagudde village.
Accordingly, he issued his report as per Ex-P25. Later,
PW-11 was recalled after four months of his
examination, again, he was subjected to further cross
examination and confronted with Ex-D2 a letter issued
by MESCOM to one Krishna Prasad Rao. He has stated
that as per Ex-D2, there was no electricity on
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29.03.2015 from 13.37 to 13.42 and also in the night
hours till the next day i.e., 30.03.2015 up to 8.40
a.m. Therefore, PW-11 was treated as hostile witness
and was cross examined by the Public Prosecutor.
During cross examination, he once again admitted that
as per Ex-D2, there was continuous power supply on
29.03.2015 from 1.42 noon till next day upto 1.55
a.m. From the perusal of evidence of PW-11, it is clear
that there was uninterrupted supply of electricity,
which is abundantly clear from Ex-P25 and Ex-D2.
35. Sofar as official witnesses are concerned, the
prosecution relied upon the evidence of PW-18 T. R.
Mani, Head Constable, Station House Officer of Kavoor
Police Station, who has stated that on 30.03.2015, he
received a wireless message from control room about
the incident occurred at Nekkilagudde, hence,
immediately, he informed the staff, who were on
patrolling duty in PCR vehicle and instructed them to
visit the spot, accordingly, the staff visited the scene
of offence and instructed PW-18 to visit AJ Hospital,
accordingly, he visited AJ hospital and saw PW-1 who
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was admitted on account of injuries sustained in the
incident, hence, PW-18 recorded his statement vide
Ex-P2-complaint, in between 5.00 a.m. to 6.00 a.m.,
registered the case and sent F.I.R through PW-17. He
further stated that PW-2 Mithun was also admitted to
the said hospital for treatment. Since, PW-2 was not
able to speak, he did not record his statement. In the
cross-examination, he admits that, as soon as he
received the information from control room, he did not
enter the same in the station house diary.
36. The prosecution further relied upon the
evidence of PW-19 B. Keshava Hegde, ASI of Kavoor
Police Station who has stated that on 29.03.2015,
during night hours, he was on patrolling duty from
11.00 p.m. On the same night, when he was
proceeding towards Konchadi at about 1.40 a.m., he
received information about the incident which occurred
at Nekkilagudde, accordingly, he went towards
Nekkilagudde, however, on the way to Nekkilagudde,
he saw PW-2 Mithun, who was injured and was not in a
position to speak, hence, he alighted from the vehicle
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and shifted PW-2 to AJ Hospital through PCR vehicle
and on the same night, he visited the scene of offence
and saw dead body of deceased, Rithesh, again visited
AJ Hospital, enquired PW-1 Lohith and recorded his
statement as per Ex-P2.
37. PW-21 Lokesh L.C., Police Inspector,
investigated the matter and filed the charge sheet
against accused persons.
38. In order to rebut the case of the prosecution,
the accused persons examined Smt. Chandrayani as
DW-1, who in her evidence, has stated that, accused
No.1 used to organize programmes, distribute
uniforms to children, conduct blood donation camps
and eye treatment camps etc. On 29.03.2015,
accused No.1 and his groups organized a dance
programme and Tulu drama and later, she came to
know about murder of deceased Rithesh. Further ,
DW-2 Vinay Krishna and DW-3 Ravindra Rao reiterated
the oral testimony of DW-1. From the perusal of
evidence of DW-1, it is clear that some persons are
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trying to ruin the political career of accused No.1. She
admits that one Krishna Prasad Rao secured Ex-D2
letter from MESCOM. The report Ex-D2 obtained by
Krishna Prasad, is none other than son of DW-1. It
shows that DW-1 has close contact with accused No.1
and she is hearsay witness and not an independent
witness.
39. DW-3 husband of DW-1 has also reiterated
the version of DW-1. Therefore, the defence raised by
the accused persons does not discredit the evidence of
the injured witnesses. There is no evidence on record
to show that to spare the real culprits, accused Nos.1
and 2 have been falsely implicated in this case.
40. In the light of the above, we have to examine
whether the prosecution was successful in proving the
motive and what is the evidence available on record to
prove the alleged act of accused persons. In the
instant case, according to PWs.1 to 3, there was
financial transaction between deceased and
accused No.1, hence, accused No.1 demanded to repay
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the money due to which accused No.1 got annoyed and
scuffle took place between them and immediately
accused Nos.1 and 2 brought talwars, assaulted the
deceased indiscriminately. At that point of time,
PWs.1 to 3 were present there and they tried to pacify
the quarrel, the accused persons also assaulted them
with talwars and knife, hence, they too sustained
bleeding injuries and injured Rithesh succumbed to the
injuries on the spot. Thereafter, PWs.1 and 2 went to
AJ Hospital for treatment and PW-3 went to his house
to save his person. In the morning at 6.00 a.m., PW-1
lodged the complaint as per Ex-P2.
41. It is also evident from the records that
police visited the spot, conducted panchanama Ex-P4,
arrested the accused persons, recorded their voluntary
statements vide Exs-P31 and P32 and at their
instance, MOs.1 to 4 and 10 to 19 were recovered
under Ex-P15. The evidence of Investigating Officer
also corroborates the oral testimony of PW-8 and
strengthens the case of the prosecution. We have also
given our precious considerations to the evidence of
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PW-10, who conducted post mortem on the body of
deceased. His oral testimony is corroborated by post
mortem report Ex-P22 and the Doctor has opined that
deceased died due to complication of multiple injuries
sustained as a result of sharp force trauma. Further
the Doctor opined that the injuries found on the body
of deceased were sufficient to cause death.
42. We find from the evidence of PWs.1 to 3 that
the prosecution proved the scuffle that took place near
drama stage between accused No.1 and deceased and
in that process, being annoyed, accused Nos.1 and 2
assaulted the deceased with MOs.1 to 5 and in that
course, PWs.1 to 3 also suffered injuries. Therefore,
accused Nos.1 and 2 committed the overt acts that led
to the death of deceased.
43. The learned Senior counsel for the accused
relied upon the decision of the Hon'ble Apex Court in
the case of SHAHAJA ALIAS SHAHAJAN ISMAIL
MOHD. SHAIKH v. STATE OF MAHARASHTRA
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reported in 2022 SCC OnLine SC 883 wherein the
Hon'ble Supreme Court at para 28 held as under:
"28. In assessing the value of the evidence of the
eyewitnesses, two principal considerations are
whether, in the circumstances of the case, it is
possible to believe their presence at the scene of
occurrence or in such situations as would make it
possible for them to witness the facts deposed to
by them and secondly, whether there is anything
inherently improbable or unreliable in their
evidence. In respect of both these considerations,
the circumstances either elicited from those
witnesses themselves or established by other
evidence tending to improbabilise their presence or
to discredit the veracity of their statements, will
have a bearing upon the value which a Court would
attach to their evidence".
44. Whereas in this case, as per the evidence of
PWs.1 to 3, they were present at the scene of
occurrence, they sustained injuries from
accused Nos.1 and 2 with talwars and knife and they
were admitted to AJ hospital for treatment and PWs.9,
12 and 14 Doctors have corroborated their oral
testimonies. Therefore, their testimonies will not tend
to any improbabilities and we do not find any ground
to doubt or discredit the veracity of their oral
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testimonies. Therefore, PWs.1 to 3 as eyewitnesses to
the incident, their presence at the scene of offence
was natural and with normal human conduct or
behavior, and thus can be acted upon. Therefore, the
decision cited supra is aptly applicable to the case on
hand.
45. If the entire evidence is assessed, PW1
promptly lodged the complaint-Ex.P2 without any
delay regarding murder of deceased and assault on
PWs.1 to 3. The spot, inquest and seizure mahazars
witnesses have clearly stated about the mahazars
drawn in their presence. Contrary to this evidence, the
accused have not placed any material to raise
suspicion in the case of the prosecution.
46. So far as recovery is concerned, the IO
seized blood stained clothes of accused persons as per
MOs.10 to 19 and MOs.1 to 4 four talwars under
Ex-P15 seizure panchanama. PW-8 seizure mahazar
witness has categorically stated the manner of seizure
of blood stained clothes(MOs.10 to 19) of accused
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Nos.1 and 2 and MOs.1 to 4 at their instance. The FSL
report Ex-P26 and the oral evidence of PW-13 the
Scientific Officer, RFSL, Mysore, clearly establishes
that the clothes of accused Nos.1 and 2 and MOs.1 to
5 were stained with 'O' blood group. From the perusal
of evidence of PW-8, the police seized blood stained
clothes of deceased Rithesh as per MOs.20 to 23 under
Ex-P9 mahazar. Hence, from the perusal of evidence
of PWs.8, 13 and 20, it establishes that the clothes of
accused Nos.1 and 2 were stained with 'O' blood
group, which belonged to deceased Rithesh, but,
accused Nos.1 and 2 did not offer any explanation as
to how their clothes were stained with 'O' blood group.
contended that there are major contradictions in the
testimonies of PWs.1 to 3 and they are planted eye
witnesses. It is to be noted that when the eye
witnesses knew the accused persons prior to the
incident and at the time of incident, they saw the
accused persons from close quarters with the aid of
street lights and stage decorative lights and when they
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sustained bleeding injuries by accused Nos.1 and 2 in
the incident, there was no reason to doubt the truth of
their testimonies. Therefore, the question of planting
the eyewitnesses would not arise. Contrary to the
evidence of PWs.1 to 3, the accused persons have not
placed any material to discredit their testimonies.
48. The learned counsel for accused submits that
in Ex-P1 - F.I.R., names of accused persons do not
find place and there is delay in lodging the complaint
and registration of F.I.R. We have perused the
contents of Ex-P1 FIR and Ex-P2 complaint, wherein
PW-1 has mentioned in Ex-P1 FIR, the names of
accused Nos.1 and 2 mentioned at para No.10, but,
the police officer who registered FIR has not
mentioned the names of accused No.1 and 2 in column
No.6 of FIR for want of full particulars of accused
persons. The accused persons cannot be acquitted on
the sole ground of non mentioning of names in column
No.6 of FIR. Infact, their names have been shown in
column No.10 of FIR and in Ex-P2 complaint.
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Therefore, there is no merit in the contention of
learned counsel for the accused.
49. The learned counsel for the accused further
contended that after receipt of cognizable offence,
neither PW-18 nor PW-19 reduced the information in
writing about commission of cognizable offence in the
Station House Diary. Hence, the prosecution has
suppressed the material facts. In the instant case,
the incident took place in the intervening night of
29/30.03.2015 at 1.45 a.m., the injured persons viz.,
PW-1 was admitted to AJ hospital, Mangaluru at about
2.30 a.m. for treatment and during this period, PW-19
the ASI, who was on patrolling duty, on the way to
scene of offence, he saw injured PW-2, hence, PW-18
shifted injured to AJ hospital for treatment and again
he visited the spot and on receipt of credible
information at 5.30 a.m., PW-18-SHO visited
AJ Hospital and recorded statement of injured- PW-1
in the form of complaint.
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50. Normally, the SHO would receive information
from the informants, but, there would be lack of
particulars of names of the accused, victims and
witnesses. The primary duty of the police officers who
visit the scene of occurrence, is to shift the injured to
hospital, safe guard or protect the incriminating
articles at the spot. As such, PW-18 after ascertaining
the fact, visited AJ hospital and recorded statement of
PW-1 and registered the case without any delay and
the same does not lead to any inference that the first
information was anti dated or doubtful. First
information need not be an encyclopedia of all the
facts and circumstances on which the prosecution
relies. Purpose of first information and complaint is to
set the law in motion. Law requires first information
to contain only the bare prosecution case and not the
details. Even if first information does not name the
accused, identity can be proved by reliable and
satisfactory evidence. In this case, PW-1 clearly
mentioned the names of the assailants in the first
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information and names of accused Nos.1 and 2, their
individual overt acts in the complaint.
51. So far as delay in lodging the complaint and
sending F.I.R to Court is concerned, the delay must be
satisfactorily explained. The complaint was lodged by
an eyewitness and injured in the hospital, the same
cannot be suspected on the ground that there was
delay, as PW-1 was under trauma. Delay in lodging the
complaint does not automatically render the
prosecution case doubtful. In this case, PW-1
promptly lodged the first information with relevant
particulars of the occurrence, names of the assailants,
weapons used and witnesses present at the spot.
Therefore, the contents of first information and
complaint will not lead to any embellishment to
consider it as an after thought and non naming of one
or few of the assailants in the complaint is not crucial
to disbelieve the evidence of injured eye witnesses.
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52. The learned counsel relied upon the decision
of the Hon'ble Apex Court in case of STATE OF
KARNATAKA V. M.S. BASAPPA AND OTHERS,
reported in (2019) 16 SCC 242, wherein it is held at
paras 2, 3 and 6 to 10 as under:
'2. The brief facts of the case are that
initially first information report (FIR) was
registered against 15 accused persons. Out
of them 8 accused persons were convicted
by the trial court. The conviction of A-1, A-
2, A-3 and A-8 was the subject-matter of
the appeals before the High Court. The High
Court allowed their appeals and acquitted all
those four accused persons.
3. It appears that during the pendency of
these appeals, Respondent 1 Bha Ramappa
(A-2) in Criminal Appeal No. 709 of 2010
and sole respondent Beemappa (A-8) in
Criminal Appeal No. 710 of 2010 have
expired. As a result thereof, the appeals qua
the abovesaid respondents stood abated
vide order of this Court dated 16-11-2016
[State of Karnataka v. M.S. Basappa, 2016
SCC OnLine SC 1813] . Therefore, we are
concerned with the appeals only qua A-1 &
A-3 who were convicted by the trial court
for the offences punishable under Sections
143, 324 and 302/114 IPC and acquitted by
the High Court.
6. We have perused the material placed
on record and heard arguments of the
learned counsel on both sides, at length.
From the material on record it is found that
PW 16 (Kiran) who is son of the complainant
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Manjappa (now dead), leader of the group,
saw the incident where the accused party
threatened him that they are going to kill
his family members. By the time, he also
saw that Siddappa (his uncle) is coming
towards the place of occurrence. Instead of
informing Siddappa about the threat given
by the accused, he ran away from the scene
of occurrence and went to his house, which
is an unnatural conduct of a person. Apart
from that he admits in his evidence that he
has given wrong information to the family
members that Siddappa was being assaulted
by the accused. The discrepant evidence of
PW 16 reveals that the prosecution has tried
to suppress the genesis of the incident. The
evidence of PW 16 cannot, therefore, be
relied upon.
7. There is also another discrepancy as to
the time of incident. In the FIR, though it
was stated at one stage of the complaint
that the incident took place at 6.30 p.m. but
at another stage it was stated that it took
place at 8.45 p.m. The High Court has also
found discrepancy in registering the case as
there was delay of four hours, despite the
police party stated to have reached the
scene of occurrence immediately after the
incident. But the police did not record any
statement from PW 16 (Kiran) though he
was present at the spot, and instead they
waited for Manjappa to come to the spot
and only thereafter registered a case
against the accused as per his statement.
8. There is yet another major
discrepancy in the prosecution version, as
regards to the place of occurrence. As per
the medical record (Ext. P-21) of the
hospital where the complainant party has
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received treatment, the incident took place
in the field and some neighbours have
beaten them whereas in the complaint (Ext.
P-13) it is stated that the incident took place
in the open place in front of the temple in
the village. The sketch shows that there is a
change in the place where the incident has
taken place, which is fatal to the prosecution
case.
9. Taking into consideration all the
aforementioned factors, the High Court has
rightly acquitted the accused. Apparently,
the prosecution has failed to prove the
alleged guilt of the accused, beyond
reasonable doubt. We, therefore, find no
grounds to interfere with the judgment
[M.S. Basappa v. State of Karnataka, 2007
SCC OnLine Kar 739] of the High Court.
10. Accordingly, the appeals are
dismissed being devoid of merits'.
53. The learned counsel relied upon the decision
of the Hon'ble Apex Court in case of NAND LAL AND
OTHERS v. STATE OF CHATTISGARH, reported in
(2023) SCC ONLINE SC 262, wherein it is held at
paras 30 to 32 as under:
30. We may gainfully refer to the
following observations of this Court
in Ramesh Baburao Devaskar v. State of
Maharashtra [Ramesh Baburao
Devaskar v. State of Maharashtra, (2007)
13 SCC 501 : (2009) 1 SCC (Cri) 212] :
(SCC p. 509, para 19)
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"19. In a case of this nature, enmity
between two groups is accepted. In a
situation of this nature, whether the first
information report was ante-timed or not
also requires serious consideration. First
information report, in a case of this nature,
provides for a valuable piece of evidence
although it may not be a substantial
evidence. The reason for insisting on lodging
of first information report without undue
delay is to obtain the earlier information in
regard to the circumstances in which the
crime had been committed, the name of the
accused, the parts played by them, the
weapons which had been used as also the
names of eyewitnesses. Where the parties
are at loggerheads and there had been
instances which resulted in death of one or
the other, lodging of a first information
report is always considered to be vital."
31. As held by this Court in Ramesh
Baburao [Ramesh Baburao
Devaskar v. State of Maharashtra, (2007)
13 SCC 501 : (2009) 1 SCC (Cri) 212] , the
FIR is a valuable piece of evidence, although
it may not be substantial evidence. The
immediate lodging of an FIR removes
suspicion with regard to over implication of
number of persons, particularly when the
case involved a fight between two groups.
When the parties are at loggerheads, the
immediate lodging of the FIR provides
credence to the prosecution case.
32. Undisputedly, the present case rests
on the evidence of interested witnesses. No
doubt that two of them are injured
witnesses. This Court, in Vadivelu
Thevar v. State of Madras [Vadivelu
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Thevar v. State of Madras, 1957 SCC OnLine
SC 13 : 1957 SCR 981 : AIR 1957 SC 614] ,
has observed thus : (AIR p. 619, paras 11-
12)
"11. ... Hence, in our opinion, it is a
sound and well-established rule of law that
the court is concerned with the quality and
not with the quantity of the evidence
necessary for proving or disproving a fact.
Generally speaking, oral testimony in this
context may be classified into three
categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly
unreliable.
12. In the first category of proof, the
court should have no difficulty in coming to
its conclusion either way -- it may convict or
may acquit on the testimony of a single
witness, if it is found to be above reproach
or suspicion of interestedness,
incompetence or subornation. In the second
category, the court equally has no difficulty
in coming to its conclusion. It is in the third
category of cases, that the court has to be
circumspect and has to look for
corroboration in material particulars by
reliable testimony, direct or circumstantial."
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54. The learned counsel relied upon the decision
of the Hon'ble Apex Court in case of STATE OF A.P. v.
PUNATI RAMULU AND OTHERS, reported in 1994
SUPP(1) SCC 590 wherein at para 5, it is held as
under:
'5. According to the evidence of PW 22,
Circle Inspector, he had received
information of the incident from police
constable No. 1278, who was on 'bandobast'
duty. On receiving the information of the
occurrence, PW 22 left for the village of
occurrence and started the investigation in
the case. Before proceeding to the village to
take up the investigation, it is conceded by
PW 2 in his evidence, that he made no entry
in the daily diary or record in the general
diary about the information that had been
given to him by constable 1278, who was
the first person to give information to him
on the basis of which he had proceeded to
the spot and taken up the investigation in
hand. It was only when PW 1 returned from
the police station along with the written
complaint to the village that the same was
registered by the Circle Inspector, PW 22,
during the investigation of the case at about
12.30 noon, as the FIR, Ex. P-1. In our
opinion, the complaint, Ex. P-1, could not be
treated as the FIR in the case as it certainly
would be a statement made during the
investigation of a case and hit by Section
162 CrPC. As a matter of fact the High Court
recorded a categorical finding to the effect
that Ex. P-1 had not been prepared at
Narasaraopet and that it had "been brought
into existence at Pamaidipadu itself, after
due deliberation". Once we find that the
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investigating officer has deliberately failed
to record the first information report on
receipt of the information of a cognizable
offence of the nature, as in this case, and
had prepared the first information report
after reaching the spot after due
deliberations, consultations and discussion,
the conclusion becomes inescapable that the
investigation is tainted and it would,
therefore, be unsafe to rely upon such a
tainted investigation, as one would not know
where the police officer would have stopped
to fabricate evidence and create false clues.
Though we agree that mere relationship of
the witnesses PW 3 and PW 4, the children
of the deceased or of PW 1 and PW 2 who
are also related to the deceased, by itself is
not enough to discard their testimony and
that the relationship or the partisan nature
of the evidence only puts the Court on its
guard to scrutinise the evidence more
carefully, we find that in this case when the
bona fides of the investigation has been
successfully assailed, it would not be safe to
rely upon the testimony of these witnesses
either in the absence of strong corroborative
evidence of a clinching nature, which is
found wanting in this case.'
55. We have perused the decisions relied by
learned counsel for the accused. There is no dispute as
to the ratio laid down in the decisions cited supra.
Whereas in the instant case, the incident occurred in
the midnight at 1.45 a.m., injured witnesses
PWs.1 and 2 were admitted to hospital at 2.30 a.m.,
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the police recorded their statements in between 5.00
a.m. to 6.00 a.m. as per Ex-P2 and registered the FIR
as per Ex-P1 at 6.15 a.m., and the FIR reached the
court at 9.50 a.m. on the same day, hence, there was
no delay either in lodging the complaint/FIR or
sending FIR to the Court.
56. So far as place of incident is concerned, the
learned counsel for accused contended that, some of
the prosecution witnesses have stated that the
incident took place at Kottara Chowki and some
witnesses have stated that the incident took place at
Nekkilagudde, therefore, there is change in mention of
scene of offence. As per Ex-P9 Inquest Mahazar, the
witnesses PW-6 and PW-20 to inquest mahazar have
stated that the incident took place at Nekkilagudde.
As per Ex-P4 - spot mahazar, PW-3 and PW-7 have
stated that the scene of offence is at Nekkilagudde
and as per Ex-P29 sketch,PW-15 has stated that the
incident took place in front of Bramhashree Mugera
Mahakali Temple, Malemar-Prashanth Nagar,
Nekkilagudde, Derebail Village, Mangaluru Taluk. As
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per the evidence of PWs.1 to 3, the incident took place
at Nekkilagudde. Therefore, the prosecution witnesses
have consistently stated that the incident took place
at Nekkilagudde and the dead body was removed from
the place at Nekkilagudde and shifted the body to
Wenlock Government hospital, Mangaluru for post
mortem examination. Hence, the place of incident was
at Nekkilagudde, thus there is no merit in the
contention of learned counsel for the accused persons
that there was change of place of the scene of offence.
57. It is contended that soon after the incident,
though PW-3 had a mobile phone with him, he did not
inform the incident to the police. There is no hard and
fast rule that, every injured person must inform the
fact of incident to the police immediately. As per the
prosecution evidence, accused Nos.1 and 2 committed
the murder of deceased Rithesh and assaulted
PWs.1 to 3. Since PWs.1 and 2 were severely injured,
they were shifted to hospital for treatment and
thereafter, PW-3 went to his house at 2.30 a.m. and
woke up between 6.00-7.00 a.m. and in the
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meanwhile, police called him over phone and enquired
him about the incident. In the cross examination,
PW-3 categorically stated that soon after assault on
Rithesh and PWs.1 and 2, he escaped from the place
of incident to save his life. Hence, he was under
trauma and he could not inform the police about the
incident. His contention was that he did not get
admitted to the hospital on account of injuries
sustained by him. It appears that since accused
persons assaulted the deceased and PWs.1 to 3 with
Talwars, PW-3 escaped from the scene of offence and
as he was under shock, he did not lodge any complaint
and in the meanwhile, at 5.30 a.m. in the morning,
PW-1 lodged the complaint as per Ex-P2 at
AJ Hospital, Mangaluru. One of the injured person had
lodged the complaint to the police. Hence, there is no
merit in the contention as to why PW-3 could not
lodge the complaint.
58. It is contended that there was non supply of
electricity at the scene of offence and the contents of
Ex-D2 is contrary to the evidence of PW-11. As per the
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oral evidence of PW-11, there was supply of electricity
within the jurisdiction of Nekkilagudde Village on
29.03.2015 at 1.30 a.m., accordingly, he issued his
report as per Ex-P25 and this contention is already
discussed above.
59. It is contended that, deceased was involved
in many murder cases and he was a rowdy sheeter and
hence, some unknown persons would have kille d
deceased Rithesh. Whereas, as per the case of the
prosecution, PWs.1 to 3 who are injured and eye
witnesses to the incident, have clearly stated that
accused Nos.1 and 2 assaulted deceased with talwars
and a knife when PWs.1 to 3 tried to pacify the
quarrel, accused Nos.1 and 2 assaulted them with
talwars and caused grievous and simple injuries.
Further, the medical evidence is corroborated by the
evidence of Doctors viz., PW-9, PW-12 and PW-14 who
have clearly stated about the injuries sustained by
PWs.1 and 2 in the incident. Ex-P16 and Ex-P17
wound certificates and the oral evidence of PWs1 to 3
is corroborated by medical evidence. Therefore, the
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contention of learned counsel for accused that
deceased Rithesh was a rowdy sheeter and he was
murdered by unknown persons falls to the ground. In
order to substantiate this ground, the accused have
not placed any material before the Court.
60. It is the contention of the learned counsel for
accused Nos.1 and 2 that the prosecution has failed to
examine the neighbouring witnesses, or any
independent witness relating to the incident.
PWs.1 to 3 are eye witnesses and also the injured
witnesses. The testimony of an injured witness is
accorded a special status in law. If the investigating
officer fails to examine any independent witness or
local person, the act of investigating officer cannot be
doubted, when witnesses do not come forward to stand
as witness. Further, mere defective investigation
cannot vitiate the trial and on this count, accused
persons cannot be acquitted.
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61. So far as allegation against accused Nos.3 to
5 is concerned, from the perusal of the prosecution
evidence, it appears that none of the prosecution
witnesses have stated about the role played by
accused Nos.3 to 5, their involvement in the
commission of the offence, particularly meeting of
minds and ingredients of sections 143, 144, 147, 148,
302, 307, 324 and 323 read with 149 IPC. There may
be evidence that accused Nos.3 to 5 were in the spot
along with accused Nos.1 and 2, but their actual
involvement is not elicited from the mouth of the
prosecution witnesses. It shows that there is
insufficient evidence against accused Nos.3 to 5.
Therefore, the trial court has rightly acquitted
accused Nos.3 to 5 of the offences charged.
62. Considering the evidence of the prosecution
witnesses and the material on record, we are of the
opinion that accused Nos.1 and 2 are not only guilty of
the offence under section 302 IPC for committing the
murder of deceased Rithesh but also they attempted to
commit murder of PW-2, caused grievous injuries to
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PW-1 and simple injuries to PW-3, and thereby,
committed the offences punishable under sections 302,
307, 324 and 323 IPC.
63. From the perusal of the evidence of the
prosecution witnesses, none of the prosecution
witnesses have stated about the role of accused Nos.3
to 5 in the incident. PWs.1 to 3 have not made
allegation against accused Nos.3 to 5 and they have
made allegations only against accused Nos.1 and 2.
Therefore, the charges made against accused Nos.3 to
5 are not proved. Looking into any angle, the
prosecution has been able to prove its case beyond
reasonable doubt that accused Nos.1 and 2 committed
the offences under sections 302, 307, 324 and 323 IPC
and therefore, the trial court has rightly convicted
accused Nos.1 and 2 for the offences charged, for
which, no interference is called for. Hence, we pass
the following:-
ORDER
1. Crl.A.No.1290/2017 and Crl.A.No.1026/2017
filed by accused nos.2 and 1 is dismissed and
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Crl.A.No.39/2018 filed by State is also
dismissed.
2. The judgment of conviction dated
30.05.2017 and order on sentence dated
31.05.2017 passed by IV Addl. District &
Sessions Judge, Dakshina Kannada,
Mangaluru in S.C.No.96/2015 is confirmed.
3. Registry is directed to send a copy of the
judgment along with trial court records to
the trial court.
Sd/-
JUDGE
Sd/-
JUDGE
MN
