STATE OF KARNATAKA v. ESHWARAIAH — 1987 DIGILAW 94 (KAR)

M. S. NESARGI, J. ( 1 ) THE State has challenged the judgment of acquittal passed by the XVIII Additional City Civil and Sessions Judge, Bangalore City on 2-1-1985 in Sessions Case No. 32 of l983 acquitting the respondents, who were accused Nos. 1 and 2 before him, for having committed the offence punishable under S. 302 read with S. 34, I. P. C. ( 2 ) THE deceased is one Ramesh son of Sri Krishnaswamy Rao. ( 3 ) THE undisputed facts are that the deceased was residing in his house No. 6/5, 9th Cross, Adarsha Nagar, Chamarajpet, Bangalore. He was a bachelor, aged about 38 years at the time of his death, which has taken place during the night between 14th and 15th Dec. , 1982. A-2 has not disputed that she was the mistress of the deceased for more than 7-8 years prior to the date of incident. She was also residing in house in Kotige Ramachandra Rao's Vatara, in which the house of the deceased is situated. She was often visiting the house of Ramesh, the deceased, during night time. She had filed an application claiming maintenance from her husband PW-7 and had secured an order in her favour. ( 4 ) THE prosecution case is that while A-2 was attending to her case for maintenance, she became acquainted with A-1 a Constable attached to the Wilson Garden Police Station, who used to be on Court duty. Intimacy developed between them. On 14-12-1982 a Tuesday, both the accused witnessed a second show cinema in Uma Talkies. They returned together. When they reached Kottige Ramachandra Rao's Vatara and were near the house of the deceased at about 1 or 1. 15 a. m. on 15-12-1982. A-2 lapped on the front door of the house of the deceased and Ramesh opened the door. At that time A-1 was standing at a little distance away from the house. A-2 entered into the house and A-1 also entered in the house. P. W. 1 Raghunath Rao, who is residing in the house adjacent to the house of the deceased, heard a harsh cry and he woke up. He came out and went to the house of his neighbour Hemoji Rao, (PW3) a retired Constable, and requested him to give his company to find out what it was. Both of them went to the house of Ramesh. He came out and went to the house of his neighbour Hemoji Rao, (PW3) a retired Constable, and requested him to give his company to find out what it was. Both of them went to the house of Ramesh. They did not hear any sound from the said house. PW-4 Sundaresh, the elder brother of the deceased also has his residence nearby. PWS. 1 and 3 went to the house of PW-4 to wake him up and inform him about the sound that PW-1 had heard as emanating from the house of the deceased. They did accordingly. The three of them once again came near the house of the deceased. PW-4 tapped the door of the house of the deceased, but there was no response. PW-4 left the place saying that he would inform his brother Ramachandra Rao and also his cousin Inderesh. He informed them and returned immediately to the house of the deceased. PW-2, R. Seetharama Reddy, who is a neighbour of the deceased woke up on hearing the barking of a dog. He came near the house of the deceased. PWs. 1 and 3 told him what PW- 1 had heard. PW-2 also tapped, but there was no response by that time PW-4 returned and found PW-2 also in the company of PWs. 1 and 3. One Raju known to PW-4 happened to come there and PW-4 requested Raju to go and inform the police. Raju went away and returned immediately with two beat constables - PW-5 H. Nanjundappa - P. C. 6131 and another P. C. 4656 Basavaraju. It is the prosecution case that PW-5 and Basavaraju were attached to the same police station, but were on different beats, and that those beats converged at a particular place, where they had met and where they were contacted by Raju. After these two constables came to the place of incident, PW-4 broke open the window pane and flashed the torch inside. They did not see anything. Then the front door of the house of the deceased Ramesh was broken open with the size stone M. O. 1 and all these persons entered. The other residents of the Vatara had also become aware by that time including one PW-13, Vijaya. These people switched on the light of the front hall of the house of Ramesh. They did not see anything there. The other residents of the Vatara had also become aware by that time including one PW-13, Vijaya. These people switched on the light of the front hall of the house of Ramesh. They did not see anything there. The door leading to the bed room was a little opened. They entered the bed room and switched on the light. They did not see anything. When PW-2 flashed the torch underneath the cot they noticed A-1 and A-2 couched below it, shivering all the while. On being called both of them came out. They were given to the custody of the two constables PW-5 and Basavaraju. The deceased was nowhere to be seen. They switched on the light of the pooja room, which is adjacent to the kitchen. At that stage they saw the legs of the deceased in the kitchen. When they switched on the light of the kitchen room, they saw Ramesh lying on his back in the kitchen. M. O. 5, the blood stained turkish towel was found lying a little distance away from the body of Ramesh. Scratch marks were found on the face of Ramesh. His neck was swollen and blood was seen on the lips of Ramesh. PW-4 went to his house and wrote a complaint Ex. P-3. He then went to the Police Station where Pratap Singh, Sub-Inspector of Police, PW-14 was officer in charge of the Police Station. He presented Ex. P-3 at 2 a. m. and PW-14 registered a crime at No. 562 of 1982 and issued F. I. R. Ex. P-11. He reached the spot by 2. 15 a. m. and observed all that had transpired there. He sent messages to his superiors and PW-19 Circle Inspector of Police, received the message and he came to the Police Station and took over investigation from PW-14. He arrested the accused at 2. 45 a. m. He noticed that the shirt and pant of A-1 appeared to be stained with blood. He secured Panchas including PW-8 and seized M. Os. 90 and 91 and sealed them. A-1 is said to have produced counterfoils of two theatre tickets of Uma Talkies, which are M. Os. 92 and 93. He seized and sealed them in the presence of panchas, including PW-8, who is a Tailor. PW-14 thereafter proceeded to the scene of offence and drew up a mahazar as per Ex. 90 and 91 and sealed them. A-1 is said to have produced counterfoils of two theatre tickets of Uma Talkies, which are M. Os. 92 and 93. He seized and sealed them in the presence of panchas, including PW-8, who is a Tailor. PW-14 thereafter proceeded to the scene of offence and drew up a mahazar as per Ex. P1, under which he seized the two pairs of blue chappals M. Os. 6 and 7, the turkish towel M. O. 5, the button M. O. 8 that was lying in the corner of the living room and which appeared to be a button torn from the shirt of the deceased Ramesh. The stick, with which the window pane was broken and some naked photos of A-2, which are M. Os. 12 to 89 were also seized. Police Photograher PW-10 was secured and photographs of the scene of offence were taken. Inquest was held over the dead body and the dead body was sent for autopsy. It is in evidence that PWS. 17 and 18 jointly conducted the. post-mortem examination on the dead body at about 12 noon on 15-12-1982 and prepared the p. m. notes as per Ex. P-14. By about 4 p. m. or 4. 30 p. m. PW-6 CR Revamma, a practising Advocate went to the spot and contacted the Investigating Officer. His statement was recorded. Accused were produced before the jurisdictional Magistrate at 9. 30 a. m. with a request for judicial custody remand, but the Magistrate ordered police custody till the Court opened on 16-12-1982 and directed the Investigating Officer to produce the accused before Court on that day. They were remanded to judicial custody from 16-12-1982. After the completion of the investigation, the charge sheet was filed. ( 5 ) BOTH the accused have given their statements under S. 313 of the Cr. P. C. They have also submitted written statements. ( 6 ) A-1 has denied all the circumstances appearing in the evidence against him. He has contended that he was taken to custody from his house. ( 7 ) A-2 has admitted that she was the mistress of the deceased and the deceased was not only looking after her, but also looking after her children. She was visiting the deceased during the nights and the naked photographs M. Os. 12 to 89 are in fact her photographs. ( 7 ) A-2 has admitted that she was the mistress of the deceased and the deceased was not only looking after her, but also looking after her children. She was visiting the deceased during the nights and the naked photographs M. Os. 12 to 89 are in fact her photographs. She has denied having entered the house of the deceased at about 1. 00 or 1. 15 a. m. on 15-12-1982 and having been found below the cot of the bed room along with A-1 in the house of the deceased. She has contended that the deceased had instructed her not to visit him on 13th and 14th December, 1982 as he was expecting some friends and hence she was all along in her house with her children. According to her the police took her to custody at 7. 15 a. m. on 15-12-1982. ( 8 ) DW-1 Dr. C. B. Gopalkrishna, Professor in Forensic Medicine, Madras, has been examined on behalf of the accused as witness for the defence. The contention of the defence is that the death of Ramesh was not homicidal in nature, but Ramesh had died a natural death. ( 9 ) THE learned Sessions Judge has noted, in our opinion, rightly, that the prosecution case is based on circumstantial evidence. He has narrated the circumstances in para, 13 of his Judgment as follows: -1) Ramesh was alone residing in his house on the night in between 14-12-1982 and 15-12-1982. 2) At about 1 or 1. 15 a. m. on 15-12-1982, Ramesh was found opening the front door of his house when A-2 Mayamma tapped on the said door. 3) Both the accused entered the said house of Ramesh at about 1 or 1. 15 a. m. on 15-12-1982. 4) Hearing of " sound or sound as" by Raghunatha Rao, a next door neighbour, from inside the house of Ramesh at about 1. 30 a. m. on 15-12-1982. 5) Both the accused were found under a cot in the bed room of the house of Ramesh at about 1 or 1. 15 a. m. when the neighbours of the said house including Sundaresh entered the said house after breaking open the front door. 30 a. m. on 15-12-1982. 5) Both the accused were found under a cot in the bed room of the house of Ramesh at about 1 or 1. 15 a. m. when the neighbours of the said house including Sundaresh entered the said house after breaking open the front door. 6) The presence of bloodstains on the shirt and pant of A-1 Eswaraiah; 7) Ramesh was found lying dead in the kitchen with face upwards; 8) Abrasions found on the face and swelling on the neck of Ramesh; 9) Chappals of both the accused found inside the house and on the terrace of the said house; 10) Evidence of Dr. Patil and Prof. Somaiah who had conducted the post-mortem examination on the dead body of Ramesh and their opinion that death was due toasphyxia as a result of smothering (closing mouth and nostrils) and pressure over the neck. One more circumstance ought to have been taken into consideration by the learned Sessions Judge and that circumstance is the conduct of both the accused. ( 10 ) THE learned Sessions Judge has held that the prosecution has satisfactorily established circumstance Nos. 1 to 5, 7 and 8. He has in regard to circumstance No. 6, observed that the pancha PW-8 had not explained why he was still present in his tailoring shop at 3 a. m. on 15-12-1982 and therefore his evidence was of suspicious character and that the prosecution has not shown that the blood of A-1 was not of 'a' group and therefore the report of the Chemical Examiner and Serologist in regard to the bloodstains on M. Os. 90 and 91 would not be of any assistance. So far as circumstance No. 9 is concerned, the learned Sessions Judge, has not believed the evidence of PW-13 and the finding of a pair of chappals on the terrace. It may be stated that PW-13 Vijaya, has given evidence that she shouted that someone was on the terrace when P. Ws. 1 to 4 were making attempts to break open the door of the house of the deceased, and that someone was A-1. ( 11 ) IN regard to circumstance No. 10 the learned Sessions Judge has concluded that the post-mortem was done only by Dr. Patil and not by Prof. 1 to 4 were making attempts to break open the door of the house of the deceased, and that someone was A-1. ( 11 ) IN regard to circumstance No. 10 the learned Sessions Judge has concluded that the post-mortem was done only by Dr. Patil and not by Prof. Somaiah, PW-18 and that their evidence would not be sufficient to establish that Ramesh died a homicidal death due to smothering and further that the evidence of DW-1 supported this conclusion. ( 12 ) AS the accused were unrepresented this Court appointed Sri L. Umakantha, a Standing Counsel as Amicus Curiae. We have to record here itself that he has discharged his duties quite satisfactorily. The State is represented by Sri Devaraj, Special Public Prosecutor. ( 13 ) PW-6 C. R. Revanna, has sworn that he had gone to witness the 2nd show in Nalanda Talkies and was returning home and that while he was passing by the side of the house of the deceased, he saw in the glow of the light of the electric light fixed to the outer portion of the house of the deceased and a nearby street tube light that A-2 was tapping the door of the deceased. He was answering the call of nature and noticed that A-1 was standing a few feet from the place where he was. He further saw Ramesh opening the door of the house and A-2 entering the house and thereafter A-1 also entering the house of the deceased. He proceeded to his house. He has stated that he knew A-2 and Ramesh and had also seen A-1 many times. He had seen A-2 visiting the house of Ramesh at night. In the morning of the next day, he went to Maranayakana Halli to see his friend by name Thimmarasappa and returned by about 4 p. m. or so. At that time he came to know about the murder of Ramesh. He, therefore, went to the house of Ramesh to communicate what he had seen during the previous night to the Investigating Officer. He met the Circle Inspector of Police PW-19 in the house of the deceased. His statement was recorded. Sri Umakantha, argued that the evidence of PW6 ought not have been believed by the Sessions Judge, to hold that the prosecution had satisfactorily established, circumstance No. 3. He met the Circle Inspector of Police PW-19 in the house of the deceased. His statement was recorded. Sri Umakantha, argued that the evidence of PW6 ought not have been believed by the Sessions Judge, to hold that the prosecution had satisfactorily established, circumstance No. 3. His argument is that the prosecution-ought to have examined that Thimmaarasappa at least to corroborate the evidence of PW-6, but it has failed to do so, and that as it is seen PW-6 has come out with his information as late as 4 p. m. on 15-12-1982 it would be highly unsafe to rely on his evidence. He nextly argued that PW-6 had not stated before the Police in his statement that the tube light and the light outside the house of Ramesh were burning. ( 14 ) PW-6 is an independent disinterested witness. Nothing is brought out in his cross-examination to show that he had any animosity against any of the acccused persons. Apart from the suggestion to the effect that PW-6 is an Advocate and Kottege-ramachandra Rao is also an Advocate, and therefore PW-6 is favouring Kottege Ramachandra Rao, nothing damaging is brought out. In fact he has stated that he does not know Kottegeramachandra Rao and if he (Kottigeramachandra Rao) "is a practising Advocate. Sri Umakantha, characterised the conduct of PW-6 going to the house of the deceased and volunteering the information to PW-19 as unnatural. We must state at the outset that none of these reasons advanced by Sri Umakantha have appealed to us. PW-6 is a law knowing, law abiding citizen. On coming to know about the death of Ramesh, he has gone immediately to impart the information he knew to the Investigating Officer. We do not see how anything can be strange in this conduct of PW-6. It is of course true PW-6 appears to have not stated before the Police about the lights burning outside the house of Ramesh. That is clearly an omission, which can (sic) be characterised as amounting to a contradiction as laid down in Tahsildar Singh v. State of U. P. , AIR 1959 SC 1012 . That only indicates how he could have identified A-1. When his statement was recorded during the investigation he would have offered the same explanation as he has offered in the witness box. Therefore, that omission cannot be made much of. That only indicates how he could have identified A-1. When his statement was recorded during the investigation he would have offered the same explanation as he has offered in the witness box. Therefore, that omission cannot be made much of. Hence, we agree with the learned Sessions Judge, that PW-6 is a reliable witness and his evidence establishes the circumstance No. 3 positively. ( 15 ) CIRCUMSTANCE No. 1 is not at all in dispute. Moreover, there is evidence of PWs. 1 to 4, 16 and 13 who are competent to speak of this circumstance. PWs. 1 to 3 and 13 are the residents of Kottige Ramachandra Rao's Vattara, where the residence of the deceased is situated. Therefore, we do not consider it necessary to discuss the evidence of these witnesses in detail. We agree with the learned Sessions Judge, that the prosecution has satisfactorily established circumstance No. 1. ( 16 ) THE reasons given by us while considering circumstance No. 3 and the conclusion reached by us lead to the further conclusion that the prosecution has satisfactorily established circumstance No. 2 also. ( 17 ) SO far as the circumstance No. 4 is concerned PW- 1 is the only witness speaking to the same. Corroboration from the evidence of PWs. 2, 3 and 4 is sought by the prosecution. PW-1 is undisputedly, the neighbour of the deceased, being a resident of the house adjacent to that of the deceased. He has sworn that around about 1. 30 a. m. on 15-12-1982, he woke up as he heard a harsh cry and shouting emanating from inside the house of Ramesh. He went to the house of PW-3, woke him up and in formed him of this fact. PW-3 and PW- 1 came to the house of the deceased, but could not hear any sound from inside. They decided to go to Sunderash, PW-4 and inform him. This was quite natural on their part as PW-4 is the elder brother of the deceased. PW-4 resides in a house situated on the 4th Main Road, Chamarajeet. They went to him and informed him. He also accompanied them. PW-4 Tapped on the from door and called out 'ramesh, Ramesh'. There was no response. PW-4 left the place to inform his elder brother Ramachandra Rao and his cousin brother Inderesh. PW-4 resides in a house situated on the 4th Main Road, Chamarajeet. They went to him and informed him. He also accompanied them. PW-4 Tapped on the from door and called out 'ramesh, Ramesh'. There was no response. PW-4 left the place to inform his elder brother Ramachandra Rao and his cousin brother Inderesh. By that time PW-2 another neighbour of the deceased, woke up hearing the barking of the dog and came there with a stick and a torch. He was told by PW- 1 about having heard the cry etc. PW-4 returned and all the four went again to the house of the deceased. By that time one Raju came and he was sent to bring the Police. Apart from the fact that PWs. 2 and 3 are the neighbours of the deceased, nothing worthwhile has been elicited in their cross-examination to make out that they are in any (way) interested witnesses. The evidence of P. W. 2 and P. W. 3 satisfactorily corroborates the evidence of PW-1 in regard to his having heard the said cry and he having come out of his house and he and PW-3 having gone to the house of the deceased in the first instance. These facts are in our opinion sufficient to hold that the prosecution has established these circumstances. We wish to observe at this stage the learned Sessions Judge, has while discussing the evidence of PW-1 adverted to the Medical evidence of PW-17, wherein it is elicited that a person suffering from epileptic fits, falling on the ground may also give out a strangled cry. We are unable to see how this can be got mixed with this circumstance, when the question is whether PW-1 did or did not hear the strangled cry. This aspect is to be considered while dealing with circumstance No. 10. ( 18 ) CIRCUMSTANCES Nos. 5 and 9 can be said to be somewhat mixed up. Circumstance No. 9 would be relevant for the purpose of showing the presence of A-1 inside the house of the deceased. If the evidence of P. Ws. 1 to 5, which is the only evidence relating to circumstance No. 5, is found acceptable the finding of circumstance No. 9 either in the affirmative or in the negative would be inconsequential. The learned Sessions Judge has elaborately dealt with the evidence on this circumstance in para. If the evidence of P. Ws. 1 to 5, which is the only evidence relating to circumstance No. 5, is found acceptable the finding of circumstance No. 9 either in the affirmative or in the negative would be inconsequential. The learned Sessions Judge has elaborately dealt with the evidence on this circumstance in para. 19 of his judgment. The Contention of Sri Umakantha, is that when Raju, the messanger is not examined, the evidence of PW-5, who is one of the Constables brought by Raju would be rendered suspect and thereby make the evidence of P. Ws. 1 to 4 also suspect. The question whether PW-5 was in fact present there can also be gone into with reference to the evidence of PW-14 Pratap Singh, Sub-Inspector of Police, who on receipt of the complaint Ex. P-3 at 2 a. m. proceeded to the spot and found PW-5 and other Constable Basavaraj present and also having the two accused in their custody. The fact that PW14 had gone to the spot after registering the case in Crime No. 562 of 1982, can be looked into for its truthfullness or otherwise on the basis of the F. I. R. Ex. P-11 reaching the Magistrate at 7 a. m. PW-14 has stated that after going to the spot he took the accused to the Police Station and thereafter PW-19 the C. P. I. arrived there at 2. 45 a. m. and took over investigation from him. Thereafter, he himself took the F. I. R. and Ex. P-3 to the residence of the Magistrate and delivered it. PW-19 has sworn that he arrested the accused and seized M. Os. 90 to 93 from A-1. He thereafter interrogated A-1 and A-1 voluntarily gave information, which is not marked. May be as the same does not fall within the ambit of S. 27 of the Indian Evidence Act. The seizure of M. Os. 90 to 93 at that time is seriously disputed by the defence. This aspect is not considered by the learned Sessions Judge as a separate circumstance. PW-8 Sri M. Muthu, a tailor by profession, is a panch, who witnessed the seizure of M. Os. 90 to 93 from A-1 under panchanama Ex. P-5. The Sessions Judge has doubted his evidence mainly on the ground that PW-8 has not explained why he happened to be present in his tailoring shop as late as 3. PW-8 Sri M. Muthu, a tailor by profession, is a panch, who witnessed the seizure of M. Os. 90 to 93 from A-1 under panchanama Ex. P-5. The Sessions Judge has doubted his evidence mainly on the ground that PW-8 has not explained why he happened to be present in his tailoring shop as late as 3. 30 a. m. on 15-12-1982. It is suggested to PW-8 that he is a Police witness. That suggestion is denied. No material is placed on record to make this suggestion plausible. We find, in the cross-examination he has been asked why he was present in the shop till so late in the night. His explanation is that his servant and he were working in the shop and he was called to the Police Station to act as a panch. The reasoning of the Sessions Judge has ignored that PW-8 is not given an opportunity to explain his late working, and if this opportunity had been given he would have offered explanation, which might or might not have been acceptable. It is not possible to condemn the witness without giving him a proper reasonable opportunity to explain a factor. When we find that PW-8 is otherwise an independent and disinterested witness and there is no other material in his cross-examination to make us suspect his evidence, we cannot agree with the learned Sessions judge, that his evidence is doubtful. The evidence of PW-8 supports the evidence of PW-19. That shows PW-19 had A-1 and A2 in his custody around 3 a. m. on 15-12-1982. When PW-19 had the custody of the accused at 3 a. m. on 15-12-1982 the evidence of PWl4 is to be accepted. That leads to the further conclusion that the evidence of PW-5 is to be relied on and accepted. If that is so, the evidence of PWs. 1 to 4 that the two accused were found in the house of the deceased becomes acceptable. There is no other possibility for the two accused, particularly A-1, being present near the vicinity of the house of the deceased at that time of the night. On the other hand, the contention of the accused is that they were secured by the Police from their houses on the morning of 15-12-1982. ( 19 ) THE scene of offence panchanama Ex. On the other hand, the contention of the accused is that they were secured by the Police from their houses on the morning of 15-12-1982. ( 19 ) THE scene of offence panchanama Ex. P-1 shows that the window panes of the windows of the house of the deceased had been smashed. That fact corroborates the evidence of PW-2 and therefore, the evidence of P. Ws, 1, 3, 4 and 5 that PW-2 smashed the window panes by means of the walkingstick M. O. 9 and all of them peeped into the house, while PW-2 flashed the torch light is to be accepted. The scene of offence panchanama further shows that the piece of the front door M. O. 11 and the tower bolt M. O. 10, of the front door had fallen inside and M. O. 1 the size stone was also there. These facts disclose that the door had been smashed by means of M. O. 1. That is the evidence of PWs. 1 to 5. Therefore, we have no hesitation in holding that the evidence of PWs. 1 to 5, that the front door of the house of the deceased was smashed and they gained entry into the hall is absolutely reliable. That further leads to the conclusion that their evidence that they found the two accused couching below the cot in the living room is also reliable. That is exactly what PW-5 has also stated. PWs. 1 to 4 have sworn that they handed over the accused to the custody of the Police Constables and that is supported by PW-5. The argument of Sri Umakantha, that Raju ought to have been examined by the prosecution fades to the background in view of the above stated reasons. ( 20 ) THE other argument is that nothing is produced by the prosecution to establish that in fact PW-5 and other Constable Basavaraju, were at that time there on beat duty. Production of other material would have made the evidence of PW-5 no more acceptable, because the evidence of PW-5 is very well supported by the evidence of PW-14, who is a responsible Police Officer. Hence, we agree with the learned Sessions Judge that the prosecution has established circumstance No. 5 in the affirmative. ( 21 ) PW-4 out of these PWs. Hence, we agree with the learned Sessions Judge that the prosecution has established circumstance No. 5 in the affirmative. ( 21 ) PW-4 out of these PWs. 1 to 5, has sworn that A- 1 was wearing a shirt and a pant and there appeared to be some bloodstains on the clothes. Thereafter, there appears the evidence of PWs. 8 and 19. It was argued that the evidence of PW-4 by itself is not sufficient to conclude that A-1 and A-2 were found in the house of the deceased and A-1 was wearing M. Os. 90 and 91 and they were stained with blood. We have shown while discussing the circumstance No. 5 that A-1 was wearing M. Os. 90 and 91, and they were seized under panchanama Ex P-5. It naturally follows that A-1 must have been wearing the same clothes when he was detained in the house of the deceased. The stains found on M. Os. 90 and 91 were ultimately traced to be blood of human origin as per the report of the Chemical Examiner and Serologist, Exs. P-19 and 20. Ex. P-20 further discloses that these bloodstains are of 'a' group, which is the blood group of the deceased as found on his clothes by the Chemical Examiner and Serologist. The learned Sessions Judge, has watered down this aspect by reasoning that the group of blood of A-1 may also be 'a' group and unless that possibility is eliminated, it cannot be said that the bloodstains found on M-Os. 90) and 91 were that of the deceased. We are not on that question, as that question will be taken up while dealing with the circumstance No. 10. We are on the question whether those stains were on M. Os. 90 and 91 and those clothes were worn by A-1 when he was under the cot in the bedroom of the house of the deceased when PWS. 1 to 5 forcibly opened the door of the house of the deceased, We have no hesitation in recording our finding in the affirmative. ( 22 ) CIRCUMSTANCES 7 and 8 are not much in dispute, Apart from the evidence of P. Ws. 1 to 5, 14 and 19, there is the inquest panchanama Ex. P-2 and the evidence of the Doctors PWs. 17 and 18. ( 22 ) CIRCUMSTANCES 7 and 8 are not much in dispute, Apart from the evidence of P. Ws. 1 to 5, 14 and 19, there is the inquest panchanama Ex. P-2 and the evidence of the Doctors PWs. 17 and 18. We are not at this stage applying our mind, as to how those injuries were found on the body of Ramesh. We are only on the question, whether the body of Ramesh was found lying in the kitchen, face upwards, with abrasions and scratches on the face and chest, and swelling in the neck, etc. , was also seen at that time by PWs. 1 to 5. We are satisfied that for these reasons, the prosecution has proved these circumstances in the affirmative. ( 23 ) THE all important circumstance, is circumstance No. 10. We have not adverted to circumstance No. 9 as we have adverted to it while discussing circumstance No. 5. It is sufficient to say that the learned Sessions Judge has not relied on the evidence of PW 13. Sri Devaraj, the learned Public Prosecutor, urged that the reasons given by the Sessions Judge to doubt the evidence of PW-13 are not satisfactory. Even if the evidence of PW13 is relied upon it will provide another circumstance, that is the seeing of the accused No. 1 on the terrace of the house of the deceased. Sri Umakanta argued if A-1 was on the terrace of the house of the deceased, he could not have been found under the cot in the bedroom of the house of the deceased. We do not think that these two facts are irreconcilable. The possible inference would be that after being seen on the terrace, he might have gone inside the house after seeing all the neighbours gathered in front of the house and tried to hide themselves (himself) till they left the place. That inference would be neither here nor there in view of the finding on circumstance No. 5. Hence, we proceed to consider circumstance No. 10, which is the all important circumstance in this case. ( 24 ) ORDINARILY circumstance No. 10 ought to have been considered in the first instance before adverting to the remaining circumstance, as the prosecution has to establish positively that the death of Ramesh was homicidal. Hence, we proceed to consider circumstance No. 10, which is the all important circumstance in this case. ( 24 ) ORDINARILY circumstance No. 10 ought to have been considered in the first instance before adverting to the remaining circumstance, as the prosecution has to establish positively that the death of Ramesh was homicidal. For the reasons to be stated presently, we have found that our conclusions on the remaining circumstances 1 to 8 will also have a direct bearing on circumstance No. 10. We, therefore, proceeded to record, our conclusions on the remaining circumstances Nos. 1 to 8 in the first instance. ( 25 ) THE prosecution has relied on the evidence of PW-17 Dr. Patil and PW-18 Prof. Somaiah, who have sworn that they have jointly conducted the post-mortem examination on the body of deceased Ramesh between 2 p. m. to 4 p. m. on 15-12-1982 and prepared post-mortem examination notes as per Ex. P-14. They have in their evidence described all that they had seen while conducting the post-mortem examination. We will be presently adverting to this aspect. As against the evidence of PWs. 17 and 18, the defence had examined DW-1 a retired Professor in Forensic Medicine, who has sworn that the injuries described in Ex. P. 14 will be there in case of natural death caused by asphyxia. He has made it clear in his evidence that he has not seen the injuries actually, but has gone through the description of injuries in Ex. P. 14 and that too on the, day he gave evidence in the Court. It is clear from his evidence, that he has not taken into consideration any other facts, factors or circumstances, that were available on the scene when the dead body of Ramesh was found lying in the kitchen of his house, that is, while furnishing the opinion in regard to the death of Ramesh being natural or homicidal in nature. ( 26 ) THE learned Sessions Judge, has without bearing this background in mind proceeded to analyse the evidence of P. Ws. 17 and 18 to find out whether PW-17 alone had performed the examination or PW-18 had joined him and thereby both of them jointly performed the autopsy over the dead body of Ramesh. ( 26 ) THE learned Sessions Judge, has without bearing this background in mind proceeded to analyse the evidence of P. Ws. 17 and 18 to find out whether PW-17 alone had performed the examination or PW-18 had joined him and thereby both of them jointly performed the autopsy over the dead body of Ramesh. He has scrupulously examined the evidence of PW-17 particularly in the light of the examination of PW-18 and has even gone to the extent of fixing his attention to the place where PW-18 has affixed his signature on Ex. P. 14 and come to the conclusion that PW-18 simply affixed his signature and had not taken part in the post-mortem examination over the dead body of the deceased. The defence has made much of the fact that the writing in Ex. P. 14 is in different inks. Columns pertaining to the right lung, left lung, heart, mouth, stomach and the opinion as to the cause of death are looked into, the writing below the portion where the description of what was found on dissecting the neck is also of different ink. PW-17 has explained that these writings are in his hand, while the other writing is written by Dr. Somasekhara, who had taken dictation as given by PW-18. PW 18, a responsible Doctor of considerable standing has also given evidence to the same effect. This material directly available in the evidence of P. Ws. 17 and 18 explains the difference of the ink. Without considering this material, for its merits, the Sessions Judge, has proceeded to bestow attention to the place where the signature of PW-18 is found. That signature is at the left hand side on the bottom portion at the end of Ex. P. 14. The signature of PW-17 is affixed on the right hand side. Below the signature of PW-18, the date is found. The Sessions Judge observes that the date appears to have been written originally as 16 and the numeral 6 appears to have been changed to 5. PW-18 has sworn that he has effected the correction. It was the duty of the Sessions Judge, to examine this evidence before jumping to the conclusion that there is alteration of the date without showing interestedness or otherwise of PW. 17 or 18 in this case. There is no reason for PW. PW-18 has sworn that he has effected the correction. It was the duty of the Sessions Judge, to examine this evidence before jumping to the conclusion that there is alteration of the date without showing interestedness or otherwise of PW. 17 or 18 in this case. There is no reason for PW. 17 or 18 to show out of the way interest in this case. The defence case is that PW-17 knows Kottege Ramachandra Rao and that he has been influenced by him. The suggestion is denied. There is no material to probabilise this suggestion. Therefore, we have no hesitation in holding that PWs-17 and 18 have told the truth and nothing but the truth that they have conducted the post-mortem examination jointly. The fact that the signature of PW-18 is found on Ex. P. 14, irrespective of the place, where it is found, so long as it is on Ex. P. 14, at the end of it, puts a seal on this argument. Much appears to have been made of the fact that the post-mortem register in the book form is not maintained. In the evidence of DW-1 it is tried to be shown as to how important the maintenance of the Post-Mortem Register book is. We have nothing to disagree with those desirable aspects. But so long as Ex. P. 14 is shown to be the original post-mortem notes prepared by PW-17 and PW-18, particularly on the dictation of PW-18, maintenance or non-maintenance of post-mortem register in book form will have no bearing on this case. We record that the post-mortem Register ought to be maintained in a book form and hope the authorities will take note of this. Hence, the contention of the defence that the material appearing in deeper ink which are referred to as Exs. D. 4 to D. 8 in Ex. P. 14, must have been interpolated at a later date and death was not due to asphyxia and smothering (closing of mouth and nose), and pressure over the neck, has no basis. ( 27 ) THE next question is whether the opinion of P. Ws. 17 and 18 that the death was due to asphyxia due to smothering (closing of mouth and nose) and putting pressure over the neck is acceptable or not, vis-a-vis the evidence of DW-1. ( 27 ) THE next question is whether the opinion of P. Ws. 17 and 18 that the death was due to asphyxia due to smothering (closing of mouth and nose) and putting pressure over the neck is acceptable or not, vis-a-vis the evidence of DW-1. We have already pointed out that DW-1 did not have the advantage of seeing the injuries with his own eyes. He has pointed out to what he could gather from the description of the injuries provided in Ex. P. 14. PWs. 17 and 18 have in their evidence furnished reasons in support of their opinion. DW-1 has in his own way furnished opinion as to the cause of death. There can be no gain-saying P. Ws. 17 and 18 are experts in their field and so also DW-1. The Court has to decide which opinion is acceptable and if there is any doubt in this behalf, the benefit has to go to the accused. ( 28 ) WE do not propose to enter into a discussion of the reasons provided by PWs. 17 and 18 on the one hand and DW-1 on the other from the point of view of Medical experts. We propose to approach the question on the basis of the other material available on record and proved by the prosecution. In case there were to be direct evidence in regard to the homicidal death of Ramesh, the law as settled by now lays down that the opinio that supports the direct evidence is to be accepted. It is this principle we bear in mind while considering this question. Though there is no direct evidence available, we have already held that the prosecution has satisfactorily established the following. Ramesh was residing alone in his house and was all along present in his house in the night between 14-12-1982 and 15-12-1982. (2) He opened the front door when A. 2 tapped on the door at about 1-00 a. m. or 1-15 a. m. , admitted A. 2 and at that time A. 1 also effected entry into the house. (3) Around about the same time PW-1 heard a harsh cry and the cry 'ayoyo, ayoyo' emanating from the house of the deceased. (4) In a very little time thereafter, the front door of the house of the deceased was broken open and PWs. 1 to 5 effected entry. (3) Around about the same time PW-1 heard a harsh cry and the cry 'ayoyo, ayoyo' emanating from the house of the deceased. (4) In a very little time thereafter, the front door of the house of the deceased was broken open and PWs. 1 to 5 effected entry. (5) Thereafter they found the two accused couched under the cot in the bedroom and when they came out on being called they were shivering. (6) The dead body of Ramesh was lying on his back in the kitchen and blood was seen at the corners of the mouth, adges of lips and scratch marks were found on his face, nose and chest and neck was swollen. It was elicited in the cross-examination of PW-17 that a person suffering from epileptic fits and falling down may utter a strangled cry, the suggestion being that the cry given out by Ramesh while he was suddenly attacked by epileptic fits. In this connection A. 2 has stated in her statement under S. 313, Cr. P. C. that Ramesh used to have epileptic fits occasionally and Dr. Subramani used to give treatment to him as he was family Doctor of Ramesh and his brothers. It is to be noted here that when the defence has chosen to examine DW-1 a Doctor from Madras, it has not chosen to examine this Dr. Subramani, who would have been a competent witness to speak of the epileptic fits of the deceased Ramesh. It is in this connection the conduct of the accused ought to have been taken into consideration by the Sessions Judge and he has failed to do so and, therefore, we proceed to take this into consideration. Before proceeding to do that the principles laid down by the Supreme Court in Pershadi v. State of U. P. , AIR 1957 see Piara Singh v. State of Punjab, AIR 1977 SC 274 sc 211 is to be considered with reference to the facts and circumstances. The prosecution has conclusively established that A. 2 made the deceased Ramesh to open the door and entered into the house and thereby provided an opportunity for A. 1 also to enter the house and they did enter. Within a few minutes thereafter Ramesh has died. The prosecution has conclusively established that A. 2 made the deceased Ramesh to open the door and entered into the house and thereby provided an opportunity for A. 1 also to enter the house and they did enter. Within a few minutes thereafter Ramesh has died. The two accused have desparately denied these facts and have contended that they were not at all present in the house of Ramesh and they were taken into custody from their respective residences in the morning of 15-12-1982, thereby disassociating themselves from all these conclusively proved facts in regard to what transpired in the house of deceased Ramesh. They have disassociated themselves from the fact of finding the dead body of Ramesh and of the fact of having been noticed in the house of the deceased by P. Ws. 1 to 5. That by itself will be another circumstance against the accused and in favour of the prosecution. ( 29 ) WHEN it is shown that the accused were present and Ramesh was hale, healthy and alive when the two accused entered into the house, he himself having opened the door of the house, the natural conduct of the accused on seeing Ramesh suffering from epileptic fits would have been to call out for help from the neighbours. If in fact Ramesh had died because of these fits, resulting in asphyxia, it would have been much more natural for the accused to rush out of the house and call out to the neighbours. Prior to that the accused, particularly A. 2 would have naturally sought for the help in such a predicament of Ramesh. Her presence in the house was not strange for any one in that vatara and there was no need to suppress her presence. But that is not the conduct that has been seen. On the other hand, the accused hid themselves below the cot and did not even respond to the calls of the neighbours when they tapped on the front door and called out the name of Ramesh. Even if the accused were panicked and could not get out of the house, they would have been the first persons to respond to call of the, neighbours when they called out the name of Ramesh and inform them that Ramesh had died of such circumstances. Even if the accused were panicked and could not get out of the house, they would have been the first persons to respond to call of the, neighbours when they called out the name of Ramesh and inform them that Ramesh had died of such circumstances. On the other hand they kept quiet that too hiding under the cot with the found hope that the persons collected there would make their way to their respective houses, so that they could make good their way out quietly. ( 30 ) APART from the aforementioned facts and reasons, the finding of M. O. 5, the blood stained turkish towel a little distance away from the dead body is a fact that gives out a lot of information. Similarly the finding of a button M. O. 8, torn from the shirt of the deceased in the corner of the living room also gives out a lot of information. If Ramesh was suddenly attacked by a fit of epilepsy, it is certain that he could not have managed to get hold of a turkish towel and wipe out the blood from his mouth and throw it away so that it would fall a little distance away from him. How the button from his shirt could have broken away from his shirt and fall in a corner of the living room would be unexplainable in such circumstances. P. Ws. 1 to 5 and PWs. 14 and 19 are one in saying that the button was found lying in the corner of the living room and that it is the one missing from the shirt of the deceased. PWs. 17 and 18 are one in opining if an attempt is made to smother a person to death that person would struggle a great deal and struggle between the victim and assailant would always ensue. The button of the deceased getting torn from the shirt is indicative of such a fact. The injuries and abrasions on the face and chest of the deceased and injuries on the nose of the deceased would also go in support of this inference. The explanation that such injuries would have been caused on the deceased, if the deceased fell on the ground would have no appeal to us, unless the deceased had deliberately chosen to fall with such force to suffer those injuries. Such a set of facts cannot be imagined. The explanation that such injuries would have been caused on the deceased, if the deceased fell on the ground would have no appeal to us, unless the deceased had deliberately chosen to fall with such force to suffer those injuries. Such a set of facts cannot be imagined. We do agree the abrasions on the face and neck and injury on the nose can be caused when those parts came into contact with a hard and rough substance. But we cannot agree that all those injuries could be sustained in one fall, that too by a person suffering from epileptic fits. If Ramesh had fallen with his face downwards, i. e. towards the ground, it is unimaginable how he could have turned and be on his back while dying. All these factors are not explained by DW-1 in his evidence. He has simply stated that the abrasions on the face and nose can be caused by a fall. There can be no two opinions about that and we have already held (sic) dealt with that aspect. M. O. 5 has been proved to be stained with blood of the deceased as per the reports Exs. P. 19 and P. 20. That must have been the blood that was seen in the corners of the mouth and the lips of the deceased, but it is difficult to imagine how the deceased came into contact with M. O. 5 or how M. O. 5 had come in contact with the injuries. Ramesh himself could not have wiped himself with M. O. 5 when he was writhing with epileptic fits. That is common knowledge. No frothing was seen from the mouth. No injury was there between the lips and the gums. Biting of the tongue also was not there. On the other hand when the neck was dissected it was found that the blood had diffused in the subcutaneous tissues of the left side of the neck, over an area of 8 c. m. X 5 c. m. The opinion, of D. W. 1 is that there being no corresponding external injury, such injury could not have been formed. But in fact it has been found and we have no reason to doubt the evidence of P. Ws. 17 and 18 in that behalf. But in fact it has been found and we have no reason to doubt the evidence of P. Ws. 17 and 18 in that behalf. This is one of the manifestations of pressure having been applied on that part of the neck without causing any external injury. In the circumstances, the only inference that can be drawn is that M. O. 5 a turkish towel is the one that has been used for smothering the deceased. Because the towel is soft, the pressure applied to that part has not caused external injury. That explains how the blood stains caused by the blood of the deceased happened to be on M. O. 5. These reasons and conclusions, in our considered opinion, do satisfactorily take place of direct evidence for the purpose of deciding which of the two opinions furnished by PWs. 17 and 18 on the one hand and DW. 1 on the other is to be accepted. We have no hesitation in accepting the opinion of PWs. 17 and 18. ( 31 ) THE foregoing reasons show that the conclusions reached by the learned Sessions Judge, cannot be sustained. ( 32 ) AT this stage, one of the arguments of Sri Umakantha, requires to be considered, as it relates to the S. 34 of the Indian Evidence Act. Sri Umakantha argued that the trial is vitiated as charges have not been framed in accordance with law and that has caused prejudice to the accused. He placed reliance on the decision of the Supreme Court in Nanak Chand v. State of Punjab, AIR 1955 SC 274 . The learned Additional Sessions Judge, who has tried the case is not the judge who framed the charges on 4-5-1983. His predecessor has framed the charges. Two separate charges against the two accused have been framed. In each of the charges it is stated that the said accused in furtherance of the common intention to cause the death of K. Ramesh, at 1. 30 a. m. in between 14-12-1982 and 15-12-1982 did commit murder by intentionally causing the death of K. Ramesh. In the charge of A. 1, the name of A. 2 is not mentioned. In the charge of A. 2 the name of A. 1 is not mentioned. 30 a. m. in between 14-12-1982 and 15-12-1982 did commit murder by intentionally causing the death of K. Ramesh. In the charge of A. 1, the name of A. 2 is not mentioned. In the charge of A. 2 the name of A. 1 is not mentioned. Their pleas have been recorded on the very day and the records show that the accused by then were represented by a leading defence Counsel in this place. Sri M. T. Nanaiah and his Junior collogue were present when the charges were framed, read over and explained to the accused and their plea was recorded. It is no doubt true the charges as framed did not actually satisfy the need as it is intended to be. But each of the accused is charged with the offence punishable under. S. 302 read with S. 34, I. P. C. The charges have been read over to each of the accused in the presence of the other accused and the plea has been recorded in the presence of each of the accused and their Advocates. The sum and substance of the charges show that there is no scope or any chance for misunderstanding the part played by each one of them. In view of these facts and circumstances, all that can be said about the framing of the charges is that there is an irregularity. The principles laid down in W. Slaney v. State of M. P. , AIR 1956 SC 116 , B. N. Srikantiah v. Mysore State, AIR 1958 SC 672 and the decision in J. M. Desai v. State of Bombay, AIR 1960 SC 889 , are all applicable to these facts and circumstances. It appears that no argument was advanced during the trial about the prejudice caused to the defence, on the count of irregularity in framing the charges. We have adverted to the circumstances showing that the irregularity has not caused any prejudice to the accused. In this very connection Sri Umakantha argued that the material on record is not sufficient to satisfy the ingredients of S. 34 of the IPC. The proposition is that S. 34 of the IPC is a rule of evidence and does not create any substantive offence. In this very connection Sri Umakantha argued that the material on record is not sufficient to satisfy the ingredients of S. 34 of the IPC. The proposition is that S. 34 of the IPC is a rule of evidence and does not create any substantive offence. It is clear from the evidence of PW-6 as accepted, that A. 2 tapped on the front door of the house of the deceased Ramesh, that Ramesh opened the door, that A. 2 entered and at that time A. 1 was standing a little distance away and after A. 2 entered, A. 1 also entered the house of the deceased. M. Os. 92 and 93 show that both the accused attended the 2nd show cinema in Uma Theatre. Therefore, it is clear that both came to the house of the deceased and both of them entered into the house of the deceased. Both of them were found couching under the cot of the bed room in the house of the deceased and were found shivering. The circumstance that the shirt and pant M. Os. 90 and 91 seized from A. 1, were stained with the blood of the deceased is all proved. At this stage, the argument advanced, that the evidence of PW-4 by itself is not sufficient to establish even if A. 1 and A. 2 were present in the house of the deceased, that blood stains were present on M. Os. 90 and 91 can be, conveniently dealt with. We have already given our reasons on this aspect while dealing with the facts of seizure under Ex. P. 5. These facts, circumstances and reasons lead to an inevitable conclusion that P. Ws. 2 to 5 might not have noticed these stains in those moments of anxiety, when the accused were found under the cot. That speaks a lot in proof of their honesty. It was not difficult for them to fall in line with PW-4 by stating that they had also seen the stains. There was no occasion for those stains making their appearance when the accused were in the custody of PW-5 and the other constable Basavaraj. These facts and circumstances lead further to the inevitable conclusion that both the accused proceeded to the house of the deceased at that time of the night, and having planned to go in this particular manner, secured entry into the house of the deceased. These facts and circumstances lead further to the inevitable conclusion that both the accused proceeded to the house of the deceased at that time of the night, and having planned to go in this particular manner, secured entry into the house of the deceased. Hence, we hold that the ingredients of S. 34 of the IPC are satisfactorily established. ( 33 ) IN the result, we allow this appeal and set aside the judgment of acquittal passed by the XVIII Additional Sessions Judge, Bangalore, in Sessions Case No. 32 of 1983 and convict each one of the accused for having committed an offence punishable under S. 302 read with S. 34 of the IPC. The minimum sentence imposable by law is imprisonment for life. In the circumstances, we impose the sentence of imprisonment for life on each of the accused. We direct the accused to surrender and undergo the sentences imposed on them. Appeal allowed. --- *** --- .