[Cites 3, Cited by 0]
Karnataka High Court
Sajjad Khan vs The State Of Karnataka on 13 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.513/2018
BETWEEN:
SAJJAD KHAN
AGED ABOUT 32 YEARS
S/O EQBAL KHAN
R/AT NO.24, GROUND FLOOR
ALI BUILDING, 12TH CROSS
B.M. LAYOUT, VENKATESHPURA
ARABIC COLLEGE POST
BENGALURU-560045. ... APPELLANT
(BY SRI. N.S.SAMPANGI RAMAIAH, ADVOCATE,
APPOINTED AS AMICUS CURIAE,
VIDE COURT ORDER DATED 22.01.2026)
AND:
THE STATE OF KARNATAKA
BY K.G.HALLI POLICE STATION
BENGALURU-560045
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BENGALURU-560001. ... RESPONDENT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 10.01.2018 AND SENTENCE DATED
18.01.2018 PASSED BY THE LIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-60) IN
S.C.NO.158/2015 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND
ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.02.2026 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE VENKATESH NAIK T
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
This appeal is filed challenging the judgment of conviction
and sentence dated 10.01.2018 and 18.01.2018 passed in
S.C.No.158/2015 by the LIX Additional City Civil and Sessions
Judge, Bengaluru City for the offence punishable under Section
302 of IPC.
2. Heard the learned Amicus Curiae who appears on
behalf of the appellant and also the learned Additional SPP
appearing for the respondent/State.
3. The factual matrix of case of prosecution before the
Trial Court that the accused was residing in the house bearing
Corporation No.24, situated at 12th Cross, Bharath Matha Layout,
Kadugondanahalli, Bangalore, in ground floor as a tenant. In the
first floor of that house, PW3-Fareen Taj and her husband Abdul
Javeed were residing as tenants. The owner of the building was
residing in a separate house in different place. The deceased -
Sadiq Sharief, aged 28 years, was the family friend of Fareen Taj
and Abdul Javeed and he was residing with his wife and children
in different address near the house of Fareen Taj. Sadiq Sharief
was visiting to the house of Fareen Taj oftenly as he was their
family friend. The accused was not tolerating the visit of Sadiq
Sharief or anybody to the house of Fareen Taj.
4. It is further case of the prosecution that on
13.09.2014 at about 11.30 p.m. Sadiq Sharief left his house and
came to the house of Fareen Taj as Fareen Taj and her husband
called him over phone. When Sadiq Sharief was going to the
house of Fareen Taj by climbing the stairs, the accused who was
residing in the ground floor picked up a quarrel with Sadiq
Sharief and questioned his visit to the house of Fareen Taj.
Having heard the sound of quarrel, Fareen Taj and her husband
came to balcony of their house. The accused in order to kill
Sadiq Sharief, stabbed him with knife and Sadiq Sharief tried to
escape by running towards the road situated in front of the
house of the accused. Then also the accused chased him and
again stabbed with knife. Hence, Sadiq Sharief sustained
grievous injuries and fell down on the ground. This act of the
accused has been witnessed by both Fareen Taj and also her
husband Abdul Javeed. Fareen Taj immediately informed the
wife of Sadiq Sharief over phone at midnight about 12.04 a.m.
about the incident. The incident took place about 11.45 p.m.
Thereafter, the brother of Sadiq Sharief by name Siddiq Sharief
and wife of Sadiq Sharief by name Seema Sharief reached to the
spot and Sadiq Sharief was alive at that time. Thereafter, Siddiq
Sharief, Seema Sharief, Fareen Taj and her husband Abdul
Javeed taken the Sadiq Sharief to Ambedkar Hospital for
treatment in an auto. The medical officer of that hospital given
the treatment and declared the death of Sadiq Sharief at
midnight about 01.05 a.m. on 14.09.2014. Thereafter, Siddiq
Sharief and Seema Sharief taken the dead body to the Santhosh
Hospital in the ambulance wherein also the doctor stated that
Sadiq Sharief is no more. Not convinced with this fact, again
Siddiq Sharief and Seema Sharief taken Sadiq Sharief to Bowring
hospital wherein also the doctor confirmed the death of Sadiq
Sharief at about 02.00 a.m. on 14.09.2014. Thereafter, Siddhiq
Sharief went to the police station and filed the complaint about
the incident before the K.G. Halli police station on 14.09.2014
which was registered at about 03.30 a.m. The police registered
the crime against the accused for the offence of Section 302 of
IPC and launched the investigation.
5. The investigating officer visited the spot and drawn
panchanama at the spot and collected the blood-stained mud,
sample mud and chappals of Sadiq Sharief including the knife
which was used to stab Sadiq Sharief which was lying at the spot
by drawing panchanama. Thereafter, Investigating Officer has
conducted the inquest and recorded the statement of various
witnesses. The accused was arrested on 14.09.2014 and he was
produced before the Court. Later, he was released on bail. After
the investigation, charge sheet was filed and matter was
committed to the Sessions Court. The Sessions Judge having
taken the cognizance and also considering the material available
on record, framed the charge and accused did not plead guilty
and claims for trial.
6. The prosecution in order to prove the guilt of the
accused relied upon the evidences of PW1 to PW12 and got
marked documents at Ex.P1 to P18 along with material objects
at MO1 to MO8. On closure of the evidence of prosecution, the
accused was examined under Section 313 of Cr.P.C. and he
denied the incriminating evidence and also submitted his
statement in writing and examined two witnesses as DW1 and
DW2 and got marked the documents at Ex.D1 to D3 in support
of his defence.
7. The Trial Court having considered the submissions of
the respective counsels and also considering the judgments
which have been relied upon and also the written arguments
filed by the accused counsel comes to the conclusion that the
death of Sadiq Sharief on 14.09.2014 was homicidal. The Trial
Court also comes to the conclusion that prosecution has proved
the case against the accused and the same is a culpable
homicide amounting to murder and convicted the accused
sentencing for life imprisonment with fine of Rs.10,000/- for the
offence punishable under Section 302 of IPC.
8. Being aggrieved by judgment of conviction and
sentence, the present appeal is filed before this Court by
accused. The main contention of the learned counsel for the
accused in this appeal is that PW1 is the hearsay witness and he
came to spot on information. The Trial Judge has not rightly
considered the cross-examination of PW1 in which, it has been
elicited that on the fateful day, he was not aware that where his
brother went. It is further elicited that the police station is also
about half a kilometer from the place of alleged incident. It is
contended that before the Medical Officer it was stated that
quarrel ensued with regard to drinking water as reflected in
Ex.P11 intimation to police. There is contradiction in the
evidence of this witness with reference to the complaint at Ex.P1
and this contradiction was not considered by the Trial Court.
9. The counsel also contend that PW2 who is the wife of
deceased is not an eyewitness to the incident and she is also a
hearsay witness to the incident wherein she says that on the
date of incident, her husband has gone to the house of PW3 and
she does not know that from how many years, her husband was
having friendship with PW3. Her further evidence is that her
husband was visiting the house of PW3 in the day time and not
in the evening. It will take 15 minutes to reach the house of PW3
from her house. It is elicited that PW3 called the deceased to her
house at about 10.00 p.m. and none of the neighbours were
enquired about the incident. The deceased was alive for 10
minutes in the hospital, but he did not whisper anything about
the incident.
10. The counsel would contend that the sole eye witness
is PW3 and she has narrated in her evidence that how an
incident has taken place. But her evidence is very clear in the
cross-examination that about 15 to 20 times, Sadiq Sharief has
come to her house and used to stay till 1 o'clock in the night. It
is elicited that about 20 to 25 houses are adjoining to the house
of PW3 and the people are residing there. If any quarrel took
place in that road, the people used to assemble there. The
mobile number of deceased Sadiq Sharief is with this witness
and her husband. It is also elicited that she did not inform the
police or the neighbours immediately after the alleged incident.
The distance between the place of incident and the police station
is about 5 minutes walk. The counsel submit that there are
series of omissions and contradictions in her evidence and the
same was not considered by the Trial Court and erroneously
convicted the appellant/accused.
11. The counsel further contends that PW4 is panch
witness to Ex.P4-Inquest Panchanamma. It is elicited in the
cross- examination of PW4 that he did not disclose the contents
of the mahazar and signature was taken on Ex.P4 saying that no
other relatives were available at the time of mahazar.
12. The counsel further contend that the other witness is
PW5 who is a witness to Ex.P3-Spot mahazar wherein he says
that the police have prepared the mahazar and collected
bloodstain mud, knife and slipper from the spot. In his cross-
examination, he admitted that he was secured to the place of
incident and people were already gathered therein and the police
have not taken the signature of any other persons who are the
residents of that locality. The counsel submits that this witness is
an interested witness and his evidence is not helpful to the case
of prosecution.
13. The counsel would contend that PW6 is an Assistant
Executive Engineer, BBMP who prepared the sketch of seen of
offence as per Ex.P6. In the cross-examination, he admits that
he has not shown the street lights in the sketch.
14. The counsel also contends that PW7 is an Associate
Professor in Forensic Medicine who conducted post mortem of
the dead body and issued the report as per Ex.P9. It is observed
in Ex.P9 that the deceased has sustained four injuries on his
body. His evidence contradicts the ocular evidence of the alleged
eyewitness-PW3. thus, the counsel submits that the benefit of
this contradicting evidence has to be given to the appellant.
15. The counsel further contend that PW8 is working as
a Casual Medical Officer at Dr.Ambedkar Medical College and this
witness has treated the injured at the initial stage and issued the
certificate as per Ex.P11. The history taken by this witness is
marked as Ex.D1 which clearly goes to show that alleged quarrel
took place between the deceased and the appellant was for
different reason and hence, the story of the prosecution cannot
be believed and acted upon.
16. The counsel would submit that PW9 is working as a
Police Constable and he carried the dead body to the Bowring
hospital and after the post mortem, the body was handed over
to the relatives of the deceased. The PM report and other sealed
articles were produced before CW21 and this witness is a formal
witness.
17. The counsel would submit that the other witness is
PW10 who is working as Incharge Assistant Director of FSL,
Bengaluru wherein she deposed that on 24.12.2014, she had
received two sealed covers from K G Halli police station in
Cr.No.447/2014 containing sample soil and the blood stained soil
which have been examined and given report as per Ex.P14. The
counsel submit that this witness is also a formal witness.
18. The counsel further contend that PW11 is a Police
Inspector at K G Halli Police Station who received the complaint
at 03.30 a.m. on 14.09.2014 and registered the case as per
Ex.P15 and conducted the spot mahazar in terms of Ex.P3 and
seized the articles which are marked as MO1 to MO5. This
witness has conducted the entire investigation and filed charge
sheet. The answer elicited in his cross-examination has not been
considered by the Trial Judge and wrongly comes to the
conclusion that the appellant has committed the murder and
convicted him. This witness has not whispered anything about
delay in dispatching the first information report to the
jurisdictional Court. There is totally 12 hours delay in registering
the case and dispatching the first information report to the
Court. That itself clearly indicates that there is manipulation of
first information report.
19. The counsel would submit that the other witness is
PW12 who is working as a Scientific Officer at FSL. This witness
deposed that he examined 8 articles sent by the Police Inspector
and given the report in terms of Ex.P18. It is his evidence that
blood stains were not detected in Item No.3. Blood found in Item
No.8 was disintegrated. Hence, the origin could not be
determined. The blood found in the other articles is belonged to
B group. It is elicited in the cross-examination that many
persons are having B group blood. Hence, the counsel contend
that the report of this witness is not conclusive proof and the
evidence of this witness is not helpful to the case of prosecution.
20. The counsel also vehemently contend that there is
an inordinate delay in registering the case and dispatching the
FIR to the jurisdictional Magistrate and the same has not been
explained by the witness during the trial. That itself create
suspicion in the case of the prosecution. First information report
reached the jurisdictional Magistrate on 14.09.2014 at 12.00
p.m. though the police station is at a distance of 5 minutes walk
from the place of incident and complaint was given and FIR was
registered at 03.30 a.m. Thus, there is delay in lodging the
complaint and delay in dispatching the FIR. That itself creates
serious doubt about the genuineness and authenticity of the
complaint. The counsel would submit that PW1, PW2 and PW3
evidences are contradictory to each other and these
contradictions were not taken note of by the Trial Court. The
Trial Court solely considering the evidence of PW3 convicted the
appellant and failed to notice that there are serious
contradictions and omissions in the evidence of eyewitness-PW3.
The Trial Court blindly convicted the appellant in a case of capital
punishment.
21. The counsel would vehemently contend that the
defense has examined DW1 and DW2 and also got marked the
documents at Ex.D1 to D3 to prove the defense version. The trial
Judge has not appreciated the evidence of DW1 and DW2 and
Ex.D1 to D3 and simply brushed aside the same. The Engineer
who prepared the sketch did not mention the place where street
light is in existence and the judgment of conviction is without
application of mind and mechanically convicted the appellant.
There is no any independent corroboration. The witnesses who
are all relied upon by the prosecution are the interested
witnesses as they are not the neighbouring witnesses at the
place of incident and all of them are either relatives or friends of
the informant.
22. The counsel also brought to notice of this Court the
admission of PW3 wherein she contend that opinion of expert
with regard to the fingerprint was taken when the case of the
prosecution that the accused inflicted injury with the knife since
the knife was lying at the spot according to the prosecution and
there is no any recovery. The counsel also would contend that
PW3 and her husband who have allegedly witnessed the incident
have not given the complaint. The counsel also would contend
that according to the prosecution, the incident was taken place
when the deceased claiming the staircase of the house of PW3,
but according to the evidence of PW1, blood stains were found in
first floor and not in the steps. Thus, this creates the doubt in
the mind of the Court. The counsel further contends that when
PW3 and her husband witnessed the incident, they could have
taken the injured immediately to the hospital, but they waited
for arrival of PW1 and PW2 and thereafter only they shifted the
injured to the hospital. The same also create doubts in the case
of the prosecution. Hence, it requires interference of this Court.
23. The counsel appearing for the respondent/State
would vehemently contend that the Trial Court even taken note
of not collecting the fingerprint in respect of MO5 weapon and
also taken note of the evidence available on record in
considering the defence that accused has impliedly admitted that
he was opposing the visit of deceased to the house of PW3. This
fact supports the statement of PW3 to prove the motive of the
accused to commit murder of the deceased. Thus, the Trial Court
comes to the conclusion that the said admission is clear that
there was enmity between the deceased and accused and
because of this reason, the accused was quarreling with the
deceased on the date of the incident. The counsel also would
vehemently contend that no dispute that the deceased went to
the house of PW3 and on the date of incident and there was
quarrel between deceased and the accused. PW2 categorically
deposes that her husband received call from PW3 and her
husband after dinner and thereafter, the deceased went to the
house of PW3 at about 11.30 p.m. This fact has been spoken by
PW1 and this statement is based on the statement of PW2. The
evidence of PW3 is very clear that she was present in front of
her house and she saw the quarrel between the deceased and
the accused and the deceased sustained grievous injuries and
PW1 and PW2 shifted the deceased to the hospital in the
autorikshaw. The material also clearly discloses that there was a
quarrel between the accused and the deceased and blood stains
were also found on the staircase and also in front of the house.
The presence of PW3 and her husband is not disputed and
accused also not disputed the incident. Hence, it is clear that
PW3 was very much present at the incident spot and believed
the evidence of PW3. It is contended that PW3 has categorically
narrated that she witnessed the quarrel taken place between the
accused and deceased along with her husband and given an
explanation that when the accused suddenly stabbed the
deceased, they were unable to pacify the quarrel. PW1 also
stated that in order to save the life of the deceased took the
injured to the hospital and did not observe whether neighbours
were gathered on the spot or not.
24. The counsel would vehemently contend that DW1
and DW2 are said to be the neighbours of accused and PW3.
DW1 says that there was a reception of his daughter. At around
11.00 to 11.30 p.m., there was a quarrel between PW3 and her
husband. After hearing the sound, himself and many people
witnessed the said quarrel. He also stated that another third
person was present with PW3 and her husband at the time of
quarrel. He does not know the name of that third person. But he
has produced Ex.D3 to show that there was marriage and
reception in the family. In his cross examination, he says that
the distance between the house of DW1 and PW3 is 100 meters.
A suggestion was made that he is the friend of accused and the
same was denied. The other witness is that DW2 who deposed
that there were 5 other houses. When she was in her house, she
heard the noise from the house of PW3. But she did not go to
the house of PW3. The evidence of DW1 and DW2 indicate that
both of them are residing near the house of PW3 and heard the
noise of quarrel in the house of PW3. The Trial Court rightly not
accepted the evidence of DW2 since she did not visit the house
of PW3. When DW1 witnessed the quarrel between PW3 and her
husband, he ought to have seen that what had happened to the
deceased who fell down on the road situated in front of the
house of PW3. The presence of the deceased and the injury
sustained by him including his fall on the road was suppressed
by DW1. Hence, not accepted the evidence of DW1 and DW2.
The counsel would vehemently contend that Trial Court has not
committed any error and the evidence of PW3 is material
evidence since, she immediately called PW1 and PW2 and they
came to the spot and shifted the injured to the hospital.
25. The counsel would contend that Ex.D2 is the
statement of the accused recorded by the Investigating Officer
wherein he has categorically denied the voluntary statement
dated 14.09.2014 said to be given by him before PW11. Ex.D2
discloses that injured was taken from the house of PW3 but the
same is not spoken by PW1 to PW3. The Trial Court having
considered the material on record in detail discussed in
paragraphs 53 to 56 and rightly comes to the conclusion that
accused only committed the murder of the deceased. Hence, the
judgment of the Trial Court does not require any interference.
26. Having heard the learned Amicus Curiae who
appears for the appellant and the learned Additional SPP
appearing for the respondent/State and having given anxious
consideration to the material available on record, the Point that
would arise for consideration of this appeal is:
1. Whether the Trial Court committed an error in
convicting the accused by relying upon the
evidence of prosecution witnesses and
whether such finding is erroneous and it
requires interference of this Court?
2. What order?
Point No.1:
27. Now, this Court has to reanalyze both oral and
documentary evidence placed on record particularly taking note
of charges framed against the accused. The evidence of PW1 is
very clear that the deceased is his brother. PW2 is the wife of
the deceased. CW7 and CW8 are the friends of his brother i.e.,
PW3 and her husband. It is his evidence that he had seen the
accused in the police station. That on 13.09.2014 at about 11.45
p.m., PW2 got the call informing that his brother was subjected
to assault and the accused inflicted the injury. Immediately, he
rushed to the spot along with PW2 and found the injured brother
and noticed the injuries. Immediately, he himself, his sister-in-
law and PW3 took the injured to the Ambedkar Medical College
Hospital in an auto-rickshaw and in the hospital it is informed
that he was dead. But they did not believe the same and shifted
the injured to Santhosh Hospital and then Bowring hospital. In
the Bowring hospital also confirmed that the death of his
brother. Hence, he gave the complaint in terms of Ex.P1.
28. This witness was subjected to cross-examination. In
the cross-examination, it is elicited that his brother was not
every day visiting the house of PW3. But while going there, he
did not inform him. On Sundays, generally he used to go out at
08.00 p.m. and come back to house at 10.00 p.m. PW3 was
known to his brother through the husband of PW3 from last 7 to
8 years. PW3 was known to their family. It was around 11.30
p.m., when he came to know about the incident. Prior to this
incident, he had not seen the accused. They left the house at
around 11.35 and reached the spot within 3 minutes. Public were
not there and no one was proceeding. The injured was lying on
the road at the distance of 10 feet from the house of PW3 and
found the street light and he did not find any material object at
the spot. The distance between the police station and the place
of incident is half a kilometer. The auto was brought at around
11.45 p.m. and they reached the hospital at 11.50 p.m. A
suggestion was made that he gave the information that quarrel
took place in connection with drinking water and accused
assaulted his brother and said suggestion was denied.
29. It is evidence of PW1 that PW3 also came to lodge
the complaint at the police station and he had lodged the
complaint at 03.30 a.m. and the same was registered within 15
minutes. He had seen the accused for the first time at 11o clock
on the next day in the police station. It is suggested that his
brother was having illicit relationship with PW3 and the same
was denied. Further suggestion was made that he was having
the habit of drinking and the same also denied. It is suggested
that when husband of PW3 was not there in the house, at that
time, his brother used to visit the house of PW3 and he was
having illicit relationship with PW3 and the said suggestion was
denied. It is suggested that neighbours also warned PW3 and the
same also denied. It is suggested that PW2 went and quarreled
with PW3 and the same was denied. It is suggested that accused
used to quarrel with PW3 and he only made galata with
deceased and assaulted the deceased and the same was denied.
30. The other witness is PW2 who is a wife of the
deceased. She says that she was having acquaintance with PW3
and her husband and they are the family friends. She further
deposed that she had seen the accused in his house and his
house is at B.M layout. Accused is staying in a ground floor of
the house of PW3. PW3 and her husband were staying in the first
floor. It is her evidence that she came to know about the
incident when PW3 and her husband called and asked her to
come to the spot. PW2 further deposed that her husband went at
around 11.30 p.m. and at around 11.45 p.m., she has received a
phone call from PW3 stating that accused stabbed her husband
with a knife and the same was informed to her brother-in-law
i.e., PW1 and herself and PW1 went near the house of PW3 in
two wheeler and found the injured near the house of PW3 and
noticed the injuries on the right hand, chest and on the stomach
and the injured was bleeding. Immediately, the injured was
shifted to the Ambedkar hospital and in the hospital, he declared
as dead. Thereafter taken the injured to Santhosh hospital and
then to the Bowring Hospital and in Bowring hospital also
declared the death of the injured. Thereafter, PW1 had lodged a
complaint.
31. In the cross-examination of PW2, it is elicited that
her husband was not having the habit of consuming alcohol. It is
also elicited that PW3 also visited her house on several occasions
so also her husband visited the house of PW3 along with her on
several occasions. It is also the evidence that her husband used
to visit the house of PW3 during daytime. After the completion of
the work, he used to visit along with her to the said house and
says that in the night he did not visit the house of PW3. It is also
elicited that husband of PW3 called her husband on the said
date. When they visited the spot, neighbours were not there. It
is also elicited that when she visited Bowring hospital along with
her in-law, relatives were also there. In the further cross-
examination, it is suggested that her husband was having illicit
relationship with other ladies and PW3 also his friend and the
same was denied. It is suggested that PW3 and her husband
assaulted her husband and the same was denied.
32. The other witness is PW3 who is the eyewitness to
the incident. According to PW3, accused is the tenant of ground
floor and she is the tenant of first floor. She identifies her
signature at Ex.P2 and accused came to the said house after 3
months of her tenancy. It is also her evidence that she knows
the deceased and they are the family friends. The deceased used
to repair the vehicle and her husband used to prepare the
number plate. Hence, they were having the friendship. That on
13.09.2014, when the deceased came at around 11.15 p.m. to
11.20 p.m., the accused questioned him that why he is coming
here and the deceased replied that why accused is questioning
him and scuffle was taken place. After hearing the galata sound,
herself and her husband came out. At that time, accused
inflicted injury on the deceased on his right hand. When the
deceased tried to escape from his clutches by going towards
down, accused inflicted injury with the knife on his left chest and
once again, he inflicted injury on him. As a result, injured fell
down. Thereafter, she instructed her husband to get the
autorikshaw. It is her evidence that she called PW2 through
mobile and informed that accused had inflicted her husband.
PW1 and PW2 came to the spot within 3 to 5 minutes. It is her
evidence that herself, PW1, PW2 and her husband-CW8 have
shifted the injured in an autorikshaw to Ambedkar College
Hospital and the doctor declared that he is no more. Having
received the information that he is no more, herself and her
husband came back. PW1 and PW2 took him to Santhosh
Hospital and Bowring Hospital as they are not satisfied with the
same. Is it also her evidence that accused was staring if anyone
comes to her house. The police came to the spot on next day
and she showed the place of incident. Mahazar was drawn in the
presence of her, CW13 and CW14. Police also seized the blood
stained mud and unstained mud and also collected the blood
stains which were found in the steps and also seized the knife
which was lying near the steps and chappal of the deceased also
seized and took her signature at Ex.P3.
33. This witness was subjected to cross-examination. In
the cross-examination, it is elicited that she has studied upto
SSLC; however, she is unable to read Kannada and English
clearly. It is also her evidence that she married 3 years ago and
she was having acquaintance with the deceased after her
marriage and he is a family friend. Her husband and the
deceased used to go out once in 3 days. It is also her evidence
that the deceased was visiting her house daily or on alternative
days along with his wife. But on the date of the incident he came
alone. He used to be there in the house for about 1 hour. It is
elicited that there are other houses near her house. It is elicited
that in front of her house there is no street light, but there is
street light near to her house and the same extends to her
balcony. It is elicited that they used to lock the gate at around
11.30 p.m. and normally the ground floor resident used to lock
the gate and sometimes he used to keep the same open and
both are having the key. It is elicited that her husband never
went to the ground floor house, since their relationship was not
cordial. She says that the accused was staring at the deceased.
It is elicited that when the galata was taken place between the
accused and the deceased, the same was witnessed by her and
prior to that she did not witness both the accused and the
deceased talking. On the date of the incident, she had already
had the food. There was no reason to call Sadiq Sharief and he
came to home at around 11.15 p.m. to 11.20 p.m. and he was
not coming during daytime. The deceased had not yet entered
the house on the date of the incident. On the date of the
incident, the neighbours had gathered and the injured was taken
to the hospital in an autorikshaw.
34. It is suggested that there was no difficulty for her or
her husband to inform the police and the witness volunteers that
their first duty was to take the injured to the hospital. She says
that she did not notice whether anyone is observing the same
and they concentrated only to save the life of the injured. The
nearest police station is K.G. Halli and they can reach within 5
minutes. The incident was taken place when herself, her
husband, Sadiq Sharief, accused and the wife of the accused
were there. Having heard the galata sound, herself and her
husband came out from the house and before pacifying the
galata, the accused had inflicted the injury on the deceased. It
is her evidence that herself, P.W.1, P.W.2 and her husband
C.W.8 took the injured to Ambedkar Medical College. The doctor
declared that he is no more. Thereafter, for confirmation P.W.1
and P.W.2 took him to other hospital and herself and her
husband came back to house. It is elicited that inflicting of
injury was not disclosed to the neighbours and for the first time
she is deposing before the Court. It is her evidence that the
police came in the early morning and mahazar was drawn and
she is aware of the contents of the mahazar. It is elicited that
she has signed the mahazar at 8.15 a.m. There were no blood
stains on all the steps, but blood stains were present where the
injured was standing.
35. The other witnesses to the mahazar are Mohammed
Waheed and Soheb Khan. It is elicited that she is identifying the
knife since she had witnessed the knife at the time of stabbing.
It is suggested that she used to talk with the deceased even at
late hours also and in this regard, the wife of the deceased came
and enquired her and her husband was angry with the deceased
in this regard and the same is denied. It is suggested that
herself and her husband inflicted injury on the deceased and
thereafter, shifted the injured in front of the house of the
accused and the same is denied.
36. P.W.4 is the inquest witness, who is the mahazar
witness to Ex.P.4. In the cross-examination, it is elicited that the
deceased is his friend.
37. P.W.5 is the spot mahazar witness along with P.W.3.
He deposed that the police came and held the spot mahazar and
seized blood, mud, knife and chappal and chappal was put in a
bag and collected the mud in the bottle and mahazar was drawn
in terms of Ex.P.3 and he identifies his signature as Ex.P.3(b).
He says that the spot was shown by P.W.3. P.W.3 and C.W.13
were also present at the time of mahazar and he identifies M.O.1
to M.O.6. In the cross-examination, it is elicited that the police
called him and hence, he went to the spot. He says that the
deceased is his friend and not relative and nothing is elicited
except this.
38. P.W.6 is the one who prepared the sketch. Ex.P.5 is
the request letter and Ex.P.6 is the sketch and he identifies his
signature in Exs.P.6 and 7. It is suggested that he has not
prepared the sketch and the same is denied.
39. The other witness is P.W.7, who conducted the post
mortem. At the time of conducting post mortem, he found that
there was black colour underwear with lable poloralehlauren and
found three injuries on the lower third of right forearm and over
right forearm just below elbow and also oblique stab wound
present over the outer aspect of left side of chest situated 5
cms. below armpit, 13 cms. from left nipple, margins are clean
cut, inner lower edge is sharp, outer upper edge is blunt. It is
directed downwards towards midline. The track of wound is filled
with blood and blood clots and opined that death was due to
shock and hemorrhage as a result of stab injury sustained to
chest and issued the report in terms of Ex.P.8 and identifies his
signature as Ex.P.8(a). It is his evidence that he received
requisition from the Police Inspector along with one sealed
article. It was intact and boared FSL seal. On opening it, it
contained single edged steel knife with metallic round handle
and shows red stains on either side. He gave the opinion that
external wounds 1 to 4 and corresponding internal wounds are
possible to sustain with the article/weapon which he examined
and gave the certificate in terms of Ex.P.9 and he identifies his
signature as Ex.P.9(a). Sample seal is marked as Ex.P.10 and
signature is marked as Ex.P.10(a).
40. This witness was subjected to cross-examination. In
the cross-examination, it is elicited that he does not remember
the date on which day Ex.P.9 was sent to Police Inspector.
Ex.P.9 is in his own handwriting. He did not mention the date of
reference No.1 in Ex.P.9. It is elicited that letter sent with
weapon was bearing date 16.01.2015. Excluding Ex.P.9, he has
not issued any other letter in respect of opinion about the
examination of weapon. It is elicited that he cannot give any
opinion to the effect that if a person fall on sharp edged weapon,
injury Nos.3 and 4 shown in Ex.P.8 are possible, as it depends
upon weapon, nature of fall etc. It is suggested that he has not
conducted the post mortem and only affixed the signature and
the same is denied.
41. P.W.8 is the CMO of Ambedkar Medical College. He
says that on 13.09.2014 at 12.30 a.m. the injured was brought
to the casualty unit of the hospital. The person who brought the
injured told him that he is the relative of the injured. He had
seen the body of Sadiq Sharief and noticed that he had
sustained stab injury on his left part of chest and right forearm.
The patient was very serious. It is his evidence that he himself
and his staff have given required medical treatment to Sadiq
Sharief and then also he did not survive and he declared Sadiq
Sharief as dead at 1.05 am. After such declaration, the relatives
of Sadiq Sharief took the patient to some other hospital in 108
vehicle for further treatment. The person who brought Sadiq
Sharief to the hospital told him that Sajeed stabbed the injured.
Accordingly, he has issued the certificate, which is marked as
Ex.P.11 and he identifies his signature as Ex.P.11(a). In the
cross-examination, document was confronted that history was
given in terms of Ex.P.11. It is admitted that he has not shown
the stab injuries spoken by him in Ex.P.11. Ex.P.11 is sent to the
police at 1.00 a.m. on the date of death of patient.
42. P.W.9 speaks about conducting of post mortem on
14.09.2011. He handed over the body to the brother of the
deceased. The police gave 8 articles to take the same to the FSL
and he carried and handed over the same to the FSL. In the
cross-examination, a suggestion was made that he did not hand
over the sealed articles and the same was denied.
43. P.W.10 is the Incharge Assistant Director of FSL and
in her evidence she says that she received the sealed cover. On
opening the seal, the cover was containing sample soil and soil
said to be blood stained. She examined the soil sample
scientifically and gave the report in terms of Ex.P.14 and she
identified her signature as Ex.P.14(a) and also identifies article
Nos.1 and 2. The second article is marked as M.O.2. The first
article is marked as M.O.8. This witness was not cross-
examined.
44. P.W.11 is the one who registered the case. He says
that on 14.09.2014, he received the information at 2.00 a.m.
that a person was murdered. Hence, he came to the station.
P.W.1 gave oral complaint at 3.30 a.m. and the same was
reduced in writing and also issued FIR in terms of Ex.P.15 and he
identifies Ex.P.1. He went to the spot at 6.00 a.m. and secured
the panchas Mohammed Waheed and Shoaib Khan and the spot
was shown by P.W.3 and conducted the spot mahazar in terms
of Ex.P.3 and seized the articles at the spot. The inquest was
conducted in terms of Ex.P.4 and subjected the body for post
mortem and recorded the statement of witnesses. The body was
handed over to P.W.1 and the accused was arrested on the same
day by H.C.4842 and P.C.9470 and he was arrested by following
the procedure. The accused gave the voluntary statement and
he was produced before the Court and got the sketch of the spot
and also directed to produce the rental agreement. The seized
articles were sent to the FSL and obtained the sketch and filed
the charge-sheet awaiting the FSL report. The FSL report also
received as Exs.P.14 and 18 and also obtained the report from
the doctor, who conducted the post mortem, whether the knife
could cause such injuries.
45. This witness was subjected to cross-examination. In
the cross-examination, it is elicited that he received the
information in respect of the crime at 12.30 a.m. He came to
the station at around 1.50 a.m. and there were three staffs. He
received the death information at around 2.00 to 2.30 a.m. But
he did not mention the timings and also he did not mention the
nature of injuries and so also in Ex.P.1 and in Ex.P.11, the name
of the accused is not shown. But in Ex.P.11, mentioned that the
incident was taken place at 12.30 a.m. and also the house in
which the incident was taken place. The distance between the
incident spot and police station is 1.5 kms. Santhosh Hospital is
at 4 kms. and Bowring Hospital at 6 kms. The complaint was
given at 3.00 a.m. and the complainant was there for about one
hour and he gave oral statement and the same was reduced in
writing and he got it typed the same. During the investigation
not found that galata was taken place two times. He admits that
the complainant has not witnessed the incident. He admits that
in the complaint there is no reference that the accused inflicted
injury on the chest of the deceased. He went to the spot at 4.30
a.m. and he has not given notice to two spot panch witnesses. It
is suggested that he did not conduct the spot mahazar and the
same was denied.
46. He admits that there are other houses near the
incident house and the same is a residential area. While
conducting the panchanama, surrounding people were also
there. It is suggested that while conducting Ex.P.3, he did not
call the surrounding people and the same is denied. He says
that he found blood stains on the first floor at a distance of 20
feet from the place of incident and 20 feet from the first floor on
the road there were blood stains. He admits that the knife is a
new knife and fingerprints can be seen. But he did not collect
the fingerprints and also not obtained the FSL opinion. Ex.P.3
was written by his staff. It is suggested that panch witnesses
are the relatives of the deceased and the same is denied.
Except FSL report, he did not collect the grouping of blood.
When the accused was taken to the spot, no panchanama was
drawn. But he was aware of the place of the crime prior to that.
It is suggested that the accused in voluntary statement stated
that P.W.3 taken the injured to her house and the same is
marked as Ex.D.2. It is suggested that on 13.09.2014, P.W.3
husband came to know about the illicit relationship between his
wife and the deceased and hence, the husband of P.W.3 called
him and there was a galata and the public heard the same and
the same was denied. It is suggested that due to the said
incident only murder was taken place and the same is denied. It
is suggested that the accused has not committed any offence,
but he has been falsely implicated and the same is denied.
47. P.W.12 is the Assistant Director of RFSL. In his
evidence he says that on 15.11.2014, he has received the
articles seeking opinion and found 8 articles and he examined 8
articles sent by the Police Inspector and he gave the opinion.
The presence of blood stain was detected in item Nos.1, 2, 4, 5,
6 and 7 and the same is stained with human blood and not
detected in item No.3. The blood in item No.8 was disintegrated
and hence, its origin could not be determined. Item Nos.1, 2, 4,
5, 6 and 7 were stained with 'B' group blood. The witness
identifies his signature in Ex.P.18 opinion. In cross-examination,
it is elicited that the date mentioned in Ex.P.18 put by his office
dated 21.01.2015 indicates the date of dispatch of the
certificate. It is elicited that he has not given his opinion that
the blood stains found on each article tally with each other. He
further admits that many persons are having 'B' group blood.
48. The defence also led the evidence by examining
D.W.1 and D.W.1 says that there was a reception of his daughter
on 13.09.2014 and there was a galata in the house of P.W.3.
Everyday quarrel used to take place between P.W.3 and her
husband and one person was daily visiting the house and hence,
there was a galata between both of them. On 13.09.2014, there
was a galata at around 11.00 p.m. to 11.30 p.m. and the same
was witnessed by others also. The character of P.W.3 was not
good. A third person was there at the time of galata. The police
did not enquire him. He says that his daughter's marriage was
held in choultry and the document of Ex.D.3 invitation card is
marked. In the cross-examination, he admits that several
people came to his house on the day of reception and there was
noise and hence, could not hear what was happening in the
neighbouring house. A suggestion was made that the distance
between his house and house of P.W.3 is 300 feet and the same
was denied and he says that it is 100 metres. A suggestion was
made that in his house as there was a function, he was unable to
hear what was happening in the neighbouring house and same
was denied. A suggestion was made that the accused is his
friend and hence, he is deposing falsely and the same is denied.
49. D.W.2 in her evidence says that her house is in
Bharath Layout 12th Cross. She is having acquaintance with
P.W.3 and her husband and both of them are residing in the very
same area. Between her house and the house of P.W.3, there
are five houses. It is her evidence that someone was coming to
the house of P.W.3 when her husband was not there and in this
regard, usual quarrel was there. But she is not aware of who was
visiting the house and police also did not enquire. She heard the
galata sound when the galata was taking place, but she did not
go to the spot and also she is not aware of who were there. She
came to know that galata was taking place between P.W.3, her
husband and third person. In the cross-examination, she says
that the distance between her house and the house of accused is
only 100 feet. It is suggested that the accused committed the
murder at 11.45 p.m. and the same was denied. It is suggested
that she and the accused are residing in the same area and the
same was denied. However, she admits that she is having a
good relationship with the accused.
50. The prosecution also relied upon the document of
Ex.P.1 complaint, Ex.P.2 rental agreement, Ex.P.3 spot mahazar,
Ex.P.4 inquest mahazar, Ex.P.5 letter with regard to the sketch,
Ex.P.6 sketch, Ex.P.7 letter with regard to spot sketch, Ex.P.8
post mortem report, Ex.P.11 wound certificate, Ex.P.12 request
letter given to the FSL, Ex.P.13 acknowledgment, Ex.P.14
certificate of examination of sample soil and the soil said to be
blood stained, Ex.P.15 FIR, Ex.P.16 request letter, Ex.P.17
request letter for FSL, Ex.P.18 report of FSL and Ex.D.2
voluntary statement of the accused.
51. Having considered both oral and documentary
evidence of the prosecution, P.W.1 and P.W.2 are the brother
and wife of the deceased, respectively and they came to the spot
on the information given by P.W.3 and shifted the injured to the
hospital. Their evidence is hearsay evidence and they came to
know about the incident through P.W.3 and their evidence is
only with regard to shifting of the injured to the hospital.
52. The prime witness is P.W.3. The incident was taken
place in the ground floor and P.W.3 was staying in the first floor
along with her husband. P.W.3, who is an eye witness to the
incident says that she is a tenant of first floor. To that effect,
Ex.P.2 is also marked. Her evidence is very clear that the
accused was staying in the ground floor and the deceased was a
family friend and close friend of her husband. She says that the
deceased was a mechanic and her husband is preparing the
number plate. Hence, they were having good friendship from last
7 to 8 years. She came to know about the deceased from last 3
years after her marriage. This witness speaks about how an
incident was taken place. Having heard the galata sound, herself
and her husband came out and found inflicting of injury with the
knife by the accused on the deceased. She also speaks about
spot mahazar and while conducting the spot mahazar, other
witnesses were also present. No doubt, in the cross-examination
of P.W.3, a suggestion was made that the deceased was visiting
her house frequently and she admits the same. She categorically
says that he was not coming in the day time, but he was coming
in the evening and he used to stay in the house for about 1 hour
and also was visiting along with his wife. But on the date of the
incident, he alone came. It is also elicited that there was a street
light, but not in front of her house and at a distance and the
same could extend its light to the first floor. Her evidence is
clear that others have not witnessed the incident, but gathered
after the incident and they did not notice more to that since their
intention was to take the injured to the hospital to save his life.
53. In order to come to a conclusion, the very defence
suggested to this witness in paragraph No.17 that while there
was a galata between the accused and the deceased, she
witnessed the same. Hence, the suggestion is clear that there
was a talk between the accused and the deceased and not
disputing the very incident between the accused and the
deceased. This suggestion of the accused counsel takes away
the case of the accused that the accused was not involved in the
crime. It is important to note that the incident was taken place
when the deceased was climbing the first floor and blood stains
are also found on the staircase. Even though the same is not on
all the steps, but it was where the injured was standing. In order
to prove the factum that P.W.3 was not at the spot, nothing is
elicited from the mouth of P.W.3. No doubt, the statement of
the husband of P.W.3 i.e., C.W.8 was also recorded, but not
examined him but the evidence of P.W.3 is consistent. It is
important to note that the very defence of the accused is that
the deceased was having an illicit relationship with P.W.3 and
hence, the galata between P.W.3 and her husband was taken
place and at that time, the deceased was also present and the
same was denied. It is important to note that the defence itself
is under confusion. A suggestion was made that both P.W.3 and
her husband inflicted injury on the deceased and the same was
denied. The evidence of P.W.3 is very clear that before pacifying
the galata, the accused inflicted injury with the knife on the
deceased. The Court has to take note of that this incident was
taken place between 11.00 p.m. to 11.30 p.m. and normally
people will go to bed by that time and cannot expect their
presence in the place of incident.
54. It is also important to note that P.W.3 only informed
the wife of the deceased i.e., P.W.2 about the incident and in
turn P.W.2 informed P.W.1 and both of them rushed to the spot.
It is important to note that when the injured was shifted to the
hospital, history was given and the doctor who has been
examined as P.W.8 at the first instance when the injured was
taken to hospital at 12.30 a.m., categorically deposes that the
person who brought Sadiq Sharief to the hospital informed him
that Sajeed stabbed the injured and hence, it is very clear that
name of the accused was informed that he had stabbed and also
the certificate was issued in terms of Ex.P.11. Having
considered Ex.P.11, history of assault is mentioned as stab
injury at 12.30 a.m. on the injured, visited Fareen Taj house i.e.,
P.W.3 discussed and drinking water quarrel started. But no
doubt, Ex.P.11 discloses that it was while drinking water quarrel
started. But the same is missing in the case of the prosecution.
The evidence of P.W.8 is very clear that when the injured was
taken to the hospital, the name of the accused was mentioned
specifically that he had stabbed. Hence, the evidence of P.W.3
and P.W.8 is very clear. The person who brought the injured to
the hospital is none other than the brother of the deceased i.e.,
P.W.1. When the prosecution mainly relies upon the evidence of
P.W.3 that she is an eyewitness, but nothing is elicited.
55. The learned amicus curiae appearing for the
accused in his arguments would vehemently contend that the
blood stains were found on the first floor and the same is also
spoken by the Investigating Officer. But the fact is that the
incident was taken place in the staircase. It is important to note
that the accused has given voluntary statement, wherein he says
that P.W.3 took the injured to her house and Ex.D.2 is also
confronted. But Ex.D.2 is an inadmissible document, since that is
the voluntary statement of the accused and the voluntary
statement could be considered, if there is any recovery and
other portion cannot be relied upon. Hence, the contention of the
learned counsel that Ex.D.2 discloses that the accused made the
statement before the police that P.W.3 took the injured to her
house, cannot be accepted and the same cannot be relied upon.
The very contention of the defence is that blood stains were also
found in the first floor and considering the voluntary statement,
it is suggested that P.W.3 took the injured to the first floor and
hence, there are chances of blood stains in the first floor. But the
same does not take away the case of the prosecution. The
incident is not disputed. Even suggestion was made to P.W.3
that when the accused and the deceased were quarreling, the
same was witnessed by P.W.3. Hence, the very genesis of the
crime is spoken by P.W.3 as well as doctor, who is examined as
P.W.8 at the first instance at 00.30 a.m. and noted that the stab
was made by the accused on the information given by the
person who brought the injured to the hospital. The evidence of
eye-witness is consistent.
56. The defence also made an attempt to probabilize the
case of the accused by examining two defence witnesses i.e.,
D.W.1 and D.W.2.
57. D.W.1 deposes that on 13.09.2014, there was a
marriage reception of his daughter and there was galata in the
house of P.W.3 and there was galata regularly in the said house
between husband and wife. It is also his evidence that a person
was coming to her house every day and hence, there was
frequent quarrel between the husband and wife. That on
13.09.2014 at 11.00 to 11.30 p.m., both husband and wife were
quarreling and when the galata was severe, he himself and other
people witnessed the same. The house of P.W.3 was in the first
floor and she was not having good character. But, while
quarreling, a third person was present and he is not aware of his
name and other four houses are also surrounding the house of
P.W.3 and the police did not enquire him and also produces
Ex.D3-marriage invitation card. He was subjected to cross-
examination. In the cross-examination, he admits that on the
date of reception, several persons visited his house and in the
said reception program, there was noise. He also admits that in
the said noise, he was unable to notice what is happening in the
neighbourhood house. This admission takes away the case of
defence and when he was unable to hear the noise in the
surrounding, question of witnessing the galata between the
husband and wife and a third person was present cannot be
accepted. Though suggestion was made that distance was 300
feet, the witness says distance between the house of P.W.3 is
100 meter. The suggestion was made that he did not notice
anything and also no such quarrel between the husband and wife
and only to help the accused, he deposing falsely and the same
was denied. Having considered the admission on the part of
D.W.1 that there were more number of people in the reception
and since there was noise in the said function, he was unable to
hear anything in the surrounding area, his evidence cannot be
accepted.
58. The other witness D.W.2 in her evidence says that
she is having acquaintance with P.W.3. and also her husband
and they are living in the very same area. But, witness says that
someone was coming to the house of P.W.3 when her husband
was not in the house, hence both the husband and wife were
quarreling with each other. But, says that she is not aware of the
person, who was coming to house and police also did not enquire
her. In her further chief, she says that she also heard galata in
the house of P.W.3 at 11.00 to 11.30 p.m., but she did not go to
the house of P.W.3 and also she did not see who are all were
there, but she came to know about the quarrel. In the cross-
examination, she says that at the distance of 100 feet, her
house is located. It is suggested that she is falsely deposing that
some third person was visiting the house of P.W.3 and the same
was denied and so also she did not heard any noise and the
same was denied. But, suggestion was made that accused
himself committed the murder of the deceased and the same
was denied. It is suggested that she and accused are residing in
the very same area and the same was denied. However, she
admits that she is having cordial relationship with the accused.
Having noticed the very chief evidence, it is very clear that
though she says that she heard the galata sound, but she did
not go near the house of P.W.3 and she did not see anyone at
the spot. When such evidence is given in the chief itself and she
says that she only came to know about galata that was taking
place between P.W.3 and her husband and when she did not
witness the incident and did not visit the house of P.W.3 and
only came to know about the same, her evidence is only hear
say. Further, answer elicited from the mouth of D.W.2 is very
clear that she was having cordial relationship with the accused.
Though she denied that she came to give evidence to help the
accused, but having considered the evidence, her evidence also
cannot be reliable.
59. Having considered the evidence of D.W.1 and D.W.2
and the suggestions made to P.W.2 and P.W.3 and also P.W.11-
Investigating Officer that someone was visiting the house of
P.W.3 and husband and wife were quarreling on the particular
day, the same is not established and nothing is found to come to
such a conclusion.
60. It is also important to note that when the defence
was taken that deceased was visiting the house of P.W.3 when
her husband was not in the house and that too there was an
illicit relationship between the deceased and P.W.3 and when the
suggestion was made to P.W.2 that since she came to know
about the same, she made galata with P.W.3, the same was
categorically denied. It is also important to note that when the
illicit relationship was attributed invariably, if really the same is
true, the wife of the deceased would not support the case of the
prosecution and come to rescue P.W.3. The evidence of P.W.2 is
very clear that her husband and deceased were friends from last
8 years and her marriage was solemnized 3 years ago and she
came to know about P.W.3 only after her marriage. Hence, the
theory of the defence cannot be accepted, since she was also
frequently visiting the house of PW3.
61. The other contention of learned Amicus Curie
appearing for the appellant is that though knife was seized at the
spot, but not collected the fingerprint at the spot and not
collected the fingerprint of the accused, in order to connect the
case. No doubt, there is a force in the contention of learned
Amicus Curie appearing for the accused, the same is insignificant
when evidence of eyewitness is available before the prosecution
that P.W.3 witnessed the incident and her evidence is consistent.
This Court has already observed that incident is not in dispute
and even suggested to P.W.3 that both deceased and the
accused were quarreling with each other and it is also not in
dispute that at the time of the incident, P.W.3, her husband, the
accused and his wife and deceased were there. Hence, the said
contention cannot be accepted.
62. Now coming to the evidence of P.W.11-Investigating
Officer with regard to seizure of blood stained knife at the spot,
the evidence of P.W.11-Investigating Officer is very clear that
having registered the case, he visited the spot and conducted
spot mahazar between 7.00 to 8.15 a.m. in terms of Ex.P3. It is
also his evidence that at that time, he seized blood stains which
were found on the steps, stained and unstained mud, 2 chappals
and a knife which are marked as M.Os.1 to 5. His evidence is
very clear that one Mohammed Asif was present at the time of
drawing the mahazar and also P.W.3 was very much present.
63. The Court also has to take note of the evidence of
P.W.5 and his evidence also corroborates with the evidence of
P.W.11-Investigating Officer for having seized the articles at the
spot by drawing the mahazar. He also categorically says that
P.W.3 was present at that time and she only pointed out the
spot to the police and identifies the M.Os. But, in the cross-
examination, though he admits that no notice was given, but he
went to the spot as requested by the police and suggestion was
made that deceased was his friend and relative and the same
was denied and nothing is elicited regarding no such mahazar
was conducted and articles were seized. Hence, the evidence of
P.W.11, P.W.5 and P.W.3 is very clear with regard to seizure of
articles M.Os.1 to 5 at the spot.
64. It is also the evidence of P.W.11 that he conducted
inquest of the body of the deceased and inquest mahazar
witness P.W.4 also speaks about drawing of mahazar Ex.P4.
P.W.11 also says that in the presence of Asghar, Zaheer
Hussain, Mohammed Asif and others inquest was conducted and
the body was subjected for post-mortem examination and cloth
of the deceased were also handed over to him by P.C.No.12613
and report is marked as Ex.P16. It is also his evidence that
accused was apprehended on the same day by H.C.No.4842 and
P.C.No.9470 and his voluntary statement was recovered. No
doubt, there was no recovery at the instance of the accused,
hence, the voluntary statement is inadmissible. But, his evidence
is very clear that seized articles were sent to FSL through Police
Constable and obtained sketch and after completion of the
investigation filed charge sheet. It is also his evidence that he
has received two FSL reports in terms of Ex.P14 and Ex.P18.
65. This witness was subjected to cross-examination. In
the cross-examination, he categorically says that he recorded
the voluntary statement of the complainant and the same was
got typed and it took 15 to 20 minutes and law was set into
motion. He also admits that P.W.1 is not an eye-witness and
none of the witnesses speak about inflicting injury on the left
chest. He also says that he went to spot at 4.30 p.m. which was
pointed out by the complainant and at the time of drawing
panchanama, neighbours also came to spot and except panchas,
he did not call anyone and the knife M.O.5 appears to be new
one and he did not collect finger print and except the FSL report,
he has not taken any other opinion.
66. Having taken note of admission on the part of
P.W.11, it is very clear that he came to know about the incident
in the midnight itself at around 00.30 a.m. and thereafter, he
went to police station at 1.15 a.m. and the complainant came
and gave oral statement and the same was reduced into writing
and case was registered. Thereafter, he went to the spot and
conducted spot mahazar in between 7.00 to 8.15 a.m. The
evidence of prosecution witness is very clear to that effect and
seizure was made in terms of Ex.P3 and nothing is elicited from
the mouth of P.W.11 to disbelieve the case of the prosecution,
except confronting the document of Ex.D2. This Court already
discussed with regard to Ex.D2 is concerned and nothing is
elicited that those articles were not seized at the spot and the
evidence of P.W.5 is consistent with regard to conducting the
spot mahazar. Apart from that the evidence of P.W.10 is very
clear that sample soil and soil said to be blood stained were
examined by him and he has given the report in terms of Ex.P14
and found the blood stains in the said articles. This witness was
not cross-examined.
67. This Court also has to take note of the evidence of
P.W.12-Assistant Director, RFSL Mysore. His evidence is also
very clear that on opening the sealed cover, found 8 articles and
conducted the examination and given the opinion that blood
stains were detected in item Nos.1, 2, 4, 5, 6 and 7 except item
No.3 and blood in item No.8 was disintegrated, hence its origin
could not be determined. His evidence is also very clear that the
articles were stained with 'B' blood group and given the report in
terms of Ex.P18. In the cross-examination, he says that he do
not remember the date on which the articles examined by him
were sent back to the Police Inspector. The date mentioned in
Ex.P18 put in the office dated 21.01.2015 indicates the date of
dispatch of the certificate. It is also elicited that many persons
have 'B' blood group, but not suggested to this witness that he
did not examine and given the report in terms of Ex.P18 and
even not disputed Ex.P18. When such being the case, the
evidence of P.W.10 and P.W.12 is very clear with regard to blood
stains found on the knife i.e., 'B' group blood of the deceased so
also in all the articles, except item No.3 and blood in item No.8
was disintegrated. Hence, his evidence also corroborates the
case of the Investigating Officer with regard to conducting the
spot mahazar, seizure of articles and also drawing of inquest
mahazar as well as seizure of cloth belonging to the deceased
when the same was produced and all these material clearly
disclose the involvement of the accused in committing the crime.
68. Now question before this Court is with regard to
homicidal death is concerned. It is the case of the prosecution
that accused himself committed the murder of the deceased and
mainly relied upon the evidence of P.W.7. P.W.7-Doctor in his
evidence clearly says that on receipt of requisition, he conducted
post-mortem and found three injuries mentioned in paragraph
No.4 and cause of death is due to shock and hemorrhage as a
result of stab injury sustained to chest and he has given the
post-mortem report. The external wounds 1 to 4 and
corresponding internal wounds are possible to sustain with the
article/weapon which he has examined. It is also important to
note that even the seized knife was sent to the Doctor for
getting the opinion. Hence, certificate is given in terms of Ex.P9.
Therefore, it is clear that with knife M.O.5 itself injuries were
inflicted on the body of the deceased. In the cross-examination
of P.W.7-Doctor, except eliciting that he do not remember the
date on which Ex.P9 was sent to the Police Inspector, nothing is
elicited. But, his evidence is very clear that Ex.P9 is in his own
hand writing and letter was sent with weapon on 16.01.2015.
Excluding Ex.P9, he has not issued any other letter in respect of
opinion about the examination of the weapon and when the
suggestion was made that if a person fall on sharp edged
weapon, the injury Nos.3 and 4 shown in Ex.P8 are possible as it
depends upon weapon, nature of fall etc., the witness says that
he cannot give any such opinion. However, admits that contents
of Ex.P8 are not in his own hand writing and except this
suggestion, nothing is elicited. In cross-examination, denied that
injury Nos.1 to 4 shown in Ex.P8 are not possible from the
weapon like knife and the said suggestion was denied. However,
the evidence of Doctor is very clear that injuries found could be
caused with this type of weapon. When such being the case, the
evidence of P.W.7 is also very clear that cause of death is an
account of injuries sustained by him that too, injury to his chest.
69. No doubt, P.W.8-Doctor, who treated the injured
when he was taken to the hospital at the first instance says that
he noticed stab injury on his left part of chest and right forearm
and his evidence also matches with the injuries caused by the
accused. His evidence also supports the case of prosecution with
regard to stab injuries are concerned. It is the case of the
prosecution also that accused himself inflicted the stab injuries.
Hence, it is a case of homicidal death.
70. Having reassessed both oral and documentary
evidence, we have consciously re-appreciated the evidence
available on record and the evidence of the prosecution
witnesses is consistent i.e., P.W.3 who is an eyewitness and no
inconsistency with regard to witnessing the incident is
concerned. Though defence was taken that husband of P.W.3
and P.W.3 inflicted the injuries on the deceased, the same is not
proved by the defence and even preponderance of probabilities
is not enough and there must be cogent evidence before the
Court to come to an other conclusion that P.W.3 and her
husband committed the murder and all the evidence available
before the Court points out the very act of the accused and there
is no any inconsistent evidence of P.W.3 and P.W.3 has narrated
how an incident has taken place and even suggestion made to
P.W.3 also goes against the defence. The medical evidence and
other circumstantial evidence of P.W.1 and P.W.2 and also
seizure of articles at the spot is consistent, particularly the
witness P.W.5 deposes regarding the same. P.W.10 and P.W.12-
FSL witnesses also point out the role of the accused and the
evidence of P.W.11-Investing Officer is also corroborated by the
evidence of P.W.5, P.W.10 and P.W.12. Hence, we do not find
any ground to come to an other conclusion as against the finding
of the Trial Court. Hence, we answer point No.1 accordingly.
Point No.2:
71. In view of the discussion made above, we pass the
following:
ORDER
The criminal appeal is dismissed.
The registry is directed to pay the fee of Rs.10,000/- to
the Amicus Curiae.
Sd/-
(H.P. SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
SN/MD/ST
