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2013 DIGILAW 559 (KAR)

STATE OF KARNATAKA v. H. S. SRIDHARA

2013-04-24

MOHAN M.SHANTANAGOUDAR, V.SURI APPA RAO

body2013
JUDGMENT MOHAN M. SHANTANAGOUDAR, J.-State has filed this appeal against the Judgment and Order of acquittal passed by the II Additional City Civil & Sessions Judge, Bangalore City in S.C. No. 158/2005. Though the complaint came to be lodged against number of persons initially, the charge sheet came to be filed by the Police after investigation only against three persons viz., Lokesha, H.S. Sridhara and Shivakumar @ Kumara. Accused No. 1-Lokesha expired on the next date of the incident by consuming poison. Thus the charge came to be framed against Accused Nos. 2 and 3 only. However during the course of trial, Accused No. 3-Shivakumar @ Kumara also expired due to illness. Thus the judgment came to be pronounced only against Accused No. 2-Sridhara acquitting him. Consequently, the appeal came to be filed by the State against Accused No. 2 only. 2. The case of the prosecution in brief is that the deceased is the mother of the complainant. The complainant's father owns a site in the village and the said site is situated adjacent to the site of Siddagangamma (mother of the accused). Twenty days prior to the incident, Accused Nos. 1 to 3 had encroached the site of the father of the complainant by about one feet and they had commenced digging of foundation; the father of the complainant questioned the same; the accused agreed that they would remove the foundation dug by them if it is found after measurement that there is any encroachment by them; therefore the father of the complainant did not purse the matter subsequently; at about 12.30 to 12.45 p.m. on 16.9.2002 the accused with an intention to commit the murder of the deceased i.e., the mother of the complainant stabbed her on various parts of the body with knife; consequently, the mother of the complainant viz., Jayamma died during transit to the hospital. According to the complainant, the incident was witnessed by PW-3, the child witness; the complainant was informed by one Mr. Kumara while the complainant (PW-1) was taking class in the school. Immediately thereafter PW-1 rushed to the spot and found that her mother had fallen on the spot with bleeding injuries all around her body; the deceased told PW-1 and PW-6, who also came to the spot immediately thereafter that Accused Nos. 1 to 3 and others assaulted her with deadly weapons. Immediately thereafter PW-1 rushed to the spot and found that her mother had fallen on the spot with bleeding injuries all around her body; the deceased told PW-1 and PW-6, who also came to the spot immediately thereafter that Accused Nos. 1 to 3 and others assaulted her with deadly weapons. The Police after investigation laid the charge sheet against three persons though the complaint came to be registered against number of persons including the women folk of the accused family. As aforementioned, Accused No. 1 consumed poison during the night of the date of the incident itself and died in the hospital on the next date of the incident. The accused allegedly insulted the deceased prior to her murder by using abusive language knowing full well about her caste. Accused Nos. 2 and 3 were charged for the offence punishable under Section 302 read with Section 34 of IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 34 of IPC. 3. In order to prove its case, the prosecution in all examined 19 witnesses and got marked 17 Exhibits and 11 Material Objects. On behalf of the defence, one witness was examined and 5 Exhibits were marked. The trial Court on evaluation of the material on record, acquitted the accused by giving benefit of doubt in favour of the accused. 4. PW-1 is the daughter of the deceased. She has lodged the complaint as per Ex.P1 at about 2.30 p.m. on the date of the incident before the Inspector PW-17 in front of mortuary of Victoria hospital, Bangalore. The said complaint is marked at Ex.P1. She has deposed about the motive and the oral dying declaration said to have been made by her mother. She has also deposed that on hearing the news, she went to the spot and saw Accused Nos. 1 to 3 on the spot; PW-2 is the husband of the deceased. She has deposed about the motive of the incident in question; PW-3 is the child witness who is stated to be the eye-witness for the incident in question. He is the son of PW-6. He was aged about 3 Vi to 4 years at the time of incident; PWs.4 are 5 are the eye-witnesses to the incident. They have turned hostile to the case of the prosecution in part. He is the son of PW-6. He was aged about 3 Vi to 4 years at the time of incident; PWs.4 are 5 are the eye-witnesses to the incident. They have turned hostile to the case of the prosecution in part. However, they have supported the case of the prosecution in part by deposing that Accused No. 1 had committed the murder of the deceased; PW-6 is the daughter of the deceased. She also came to the spot after hearing the news from the third person. She has also deposed about the motive and the oral dying declaration made before her. She has also allegedly saw Accused Nos. 1 to 3 on the spot immediately after the incident; PW-7 went to the spot after hearing the news and saw Accused No. 1 on the spot; PW-8 is a eye-witness, who has turned hostile; PW-9 is the witness for the inquest panchanama-Ex.P7; PW-10 is the witness for the scene of offence panchanama-Ex.P8; PW-11 is another scene of offence panch, who has turned hostile; PWs.12, 13, 14 and 15 are the witnesses for the seizure of knife at the behest of Accused No. 2 and blood stained clothes at the behest of Accused Nos. 2 and 3 and they have turned hostile; PW-16 is the police constable who took first information to the JMFC on 16.9.2002; PW-17 is the Inspector who went to Victoria hospital after hearing the news and recorded the statement of PW-1 in front of mortuary of the Victoria hospital on 16.9.2002 and came back to the Police Station and registered Crime No. 511/2002. He has investigated the crime in part; PW-18 is the doctor who conducted post-mortem examination. The post-mortem report is at Ex.P14. He has given opinion as per Ex.P15 with regard to cause of death of the deceased. Ex.P16 is the clarification on the opinion expressed by the doctor after seeing the weapon shown to him by the Investigating Officer; PW-19 is the Investigating Officer who completed the investigation and laid the charge sheet. On behalf of the defence, DW-1 is examined. He is the Head Master of the school wherein PW-3 was studying V KG during the relevant period. He has deposed that 'KG and 'U' KG classes are being taken up from 10.00 a.m. to 12.30 p.m. He has also deposed that such timings are maintained by the school since from 13 years. 5. He is the Head Master of the school wherein PW-3 was studying V KG during the relevant period. He has deposed that 'KG and 'U' KG classes are being taken up from 10.00 a.m. to 12.30 p.m. He has also deposed that such timings are maintained by the school since from 13 years. 5. From the above, it is clear that evidence of PWs.1 to 7 is important for deciding the case. It is the case of the prosecution that PW-3 is the eye-witness to the incident and PWs. 1,4,5,6 and 7 went to the spot soon after hearing the news and saw the accused on the spot immediately after the incident. PW-3 was aged about 4 years at the time of the incident in question. He was studying V KG in Rajeshwari Vidya Shale situated at Halage Vaderahalli village, Bangalore. According to the case of the prosecution, the incident had occurred at about 12.30 p.m. In order to show that PW-3 could not have been present on the spot at about 12.30 p.m., the defence has lead the evidence of DW-1, who had produced Ex.D5, the certificate issued by DW-1 about the school timings. Ex.D5 clearly discloses that the administrative committee of the school has fixed the school timings from 10 a.m. to 12.30 p.m. for 'L' Kg classes. DW-1 is the Head Master of the school. He has been working in the said school since 35 years. He has further deposed that aforementioned school timings are being maintained since from 13 years. He has further stated that the school is at a distance of about one kilometer from Halagevaderahalli village. Thus it is clear that the school timings are up to 12.30 p.m. PW-3 has admitted in the cross-examination that he came to the house alongwith his mother (PW-6) by walk and thereafter changed his school uniform. Subsequently, he had his lunch in the house and thereafter he was taken by his grand-mother (deceased) to Hittalu for collecting grass. Even according to the case of the prosecution, the school is situated at a distance of about one kilometer from the village. Naturally, it will take at least 15 to 20 minutes to cover one kilometer for a child who is aged about four years. Even according to the case of the prosecution, the school is situated at a distance of about one kilometer from the village. Naturally, it will take at least 15 to 20 minutes to cover one kilometer for a child who is aged about four years. PW-6 has deposed that on that day also she came to the house by walk with the child and while coming, she had chat with the parents of other children. These facts would clearly reveal that the minimum time taken by PWs.3 and 6 to come to the house from the school by covering one kilometer would be about 15 to 20 minutes after the school hours. It is not the case of the prosecution that PW-3 came from school at an early point of time by skipping one hour of studies. On the contrary, it is the case of the prosecution that after closure of the school, PW-3 came alongwith his mother to the house. Thereafter PW-3 changed his uniform and had his lunch and then gone to Hittalu. Therefore the child must have taken at least about 45 minutes to reach the house and to go to Hittalu after school hours. If it is so, it may not be possible for the child to witness the incident which had occurred at 12.30 p.m. If the incident had taken place at 12.30 p.m., it is impossible for PW-3 to see the incident at that point of time since the school of PW-3 closes at 12.30 p.m. As aforementioned, PW-3 had come to house from the school alongwith his mother by covering one kilometer distance, that too chit-chatting with other children and their parents and thereafter he had lunch after changing the uniform. In this view of the matter, the defence is justified in arguing that PW-3 is a planted witness. PW-1 is the aunt of PW-3. She is the daughter of the deceased. According to PW-1, when she was teaching in the school on the date of the incident, she got the news from one Mr. Kumara at about 1.15 p.m. or so and then she immediately left the school and went to the spot and saw the injured lying with bleeding injuries. Neither in the examination-in-chief nor in her complaint, PW-1 has stated about the presence of PW-3. Kumara at about 1.15 p.m. or so and then she immediately left the school and went to the spot and saw the injured lying with bleeding injuries. Neither in the examination-in-chief nor in her complaint, PW-1 has stated about the presence of PW-3. If PW-3 were to be present on the scene of offence when PW-1 went to the spot, then the complainant would not have left mentioning in her complaint about the presence of PW-3. She has not even deposed about the presence of PW-3 in the Court. On the contrary, PW-1 has admitted in the cross-examination that when she went to the spot, none of her relatives were present on the spot, which means neither PW-3 nor PW-6 was present on the spot when PW-1 went to the scene of offence. This clearly means when PW-1 went to the scene of offence at 1.15 p.m., she did not see the presence of PW-3 as well as PW-6. Though it is the case of the prosecution that about 9 to 10 persons including the women folk of the accused family grouped together and with the common intention assaulted the victim, as aforementioned, the charge sheet came to be filed only against Accused Nos. 1 to 3. PW-3 being the eye-witness strangely confines his deposition only against Accused Nos. 2 and 3. In his evidence, PW-3 has deposed that accused before the Court stabbed his grandmother. Accused before the Court at that particular point of time were Accused No. 2 and 3 only. To a specific question as to whether any other person doing anything other than the two accused persons present before the Court is seen by him, he has fairly admitted that he has not seen any other person committing the crime except the accused before the Court, which clearly means that he confines the case of the prosecution only to Accused Nos. 2 and 3. There is absolutely no reason as to why he exonerated Accused No. 1 during the course of deposition. 6. Absolutely, nothing is found on record as to why the other accused who were allegedly instrumental for the commission of the offence are left out in the charge sheet. As per the evidence of PWs.1 and 6, the deceased made oral dying declaration before them. According to them, the deceased had told that Accused Nos. 6. Absolutely, nothing is found on record as to why the other accused who were allegedly instrumental for the commission of the offence are left out in the charge sheet. As per the evidence of PWs.1 and 6, the deceased made oral dying declaration before them. According to them, the deceased had told that Accused Nos. 1 to 3 alongwith Siddagangamma (mother of Accused Nos. 1 to 3), Suvarnamma and daughters-in-law quarreled with the deceased and stabbed the deceased with knife. If this were to be the true dying declaration made by the deceased, the other culprits would not have been left out, more particularly when the declarant had expired at about 2.10 p.m. itself that is within one hour from the time of making the dying declaration. Since we find that the evidence ofPW-3 is totally unbelievable and as he is a planted witness, the only material in favour of the prosecution is the oral dying declaration. The deceased must have been the best person to say as to what happened on the date of the incident. Even according to the prosecution, the deceased herself had stated about women folk of the accused family also. Even then, all the women folk of the accused family are left out without any valid reason. This clearly shows that the so called oral dying declaration allegedly made by the deceased before PWs. 1 and 6 appears to be concocted and created. 7. PW-1 admittedly staying in a separate house. She is not residing with the family of the deceased. According to her, while she was teaching in the school, one Kumara came and informed her. Unfortunately the said Kumara is not examined before the Court. His statement is recorded during the inquest proceedings. Ex.P7 is the inquest panchanama. According to the prosecution case, Mr. Kumara is the first person who has gone to the scene and saw the injured lying in the pool of blood. Immediately thereafter the said Kumara rushed to the school and informed PW-1. Unfortunately prosecution has failed to examine Kumara. He would have been the best witness for the prosecution. Such material witness has remained unexamined. It is also relevant to note that the said Kumara himself is also one of the mahazar witnesses for the scene of offence panchanama. Immediately thereafter the said Kumara rushed to the school and informed PW-1. Unfortunately prosecution has failed to examine Kumara. He would have been the best witness for the prosecution. Such material witness has remained unexamined. It is also relevant to note that the said Kumara himself is also one of the mahazar witnesses for the scene of offence panchanama. Though in the complaint-Ex.P1, PW-1 has stated that Kumara had informed her, in her deposition, she has deposed that one Mr. Subhash had informed her while she was in the school. The said Mr. Subhash is also not examined before the Court. 8. According to PWs.1 and 6, they talked with the deceased for about five minutes and during the course of talks, the deceased revealed about the incident by the accused alongwith others. But the evidence of the doctor-PW 18 as well as the post-mortem report are sufficient to reject the said version of PWs.1 and 6. Injuries 1 and 2 sustained by the deceased are on the neck itself and they read thus: "(1) An oblique stab wound of 2 cm. × 0.5 cm × 1.5 cm was present over the right lateral side of neck in the middle and by the side of the thyroid-cartilage. From the medial end of the wound 4 cm long tailing superficial cut wound was extended upwards. (2) Naturally horizontal wedge shaped stab wound of 3 cm. × 1 cm. with pointed margins facing medially was present over the left lateral side of the neck and 4 cm from the middling in the middle of the neck." Apart from the aforementioned injuries, the victim had sustained as many as 25 injuries all over the body. On internal examination, the doctor had noticed that both the lungs showed gross collapse due to stab injuries; stomach was full of undigested food with normal smell and it was injured ; spleen was injured; left kidney was injured. 9. In the light of the aforementioned material, the trial Court is justified in observing that it might not have been possible for the injured to have given oral dying declaration before PWs.1 and 6. 10. According to the doctor, the death had occurred within half an hour after taking lunch by the deceased. He has deposed that it is possible to hold that the deceased must have died within 5 to 10 minutes after the last meal. 10. According to the doctor, the death had occurred within half an hour after taking lunch by the deceased. He has deposed that it is possible to hold that the deceased must have died within 5 to 10 minutes after the last meal. There is nothing on record to show as to when the deceased took her last meal. However, there is material to show that PW-3 took meals after coming from the school. Be that as it may, regard being had to the serious injuries sustained by the deceased, we are not in a position to believe the prosecution story that the injured had given oral dying declaration before PWs.1 and 6. 11. Though PWs.1 and 6 have deposed before the Court that when they went to the spot, they saw Accused Nos. 1 to 3 on the spot, the same is clearly unbelievable inasmuch as such deposition before the Court is full of improvements. The omissions are proved by the defence. PWs.1 and 6 have not stated so before the Police during the course of investigation. However, they have improved their versions before the Court by deposing that they saw Accused Nos. 1 to 3 on the spot. PW-6 went to the extent of saying before the Court that she saw Accused Nos. 1 to 3 assaulting the deceased. Such material is absent in her statement recorded by the Police. The omissions are proved during the course of evidence of the Investigating Officer PW-19. If the improvements made by PWs.1 and 6 are taken out from consideration, then at the most it may be said that they might have visited the spot only after getting the news and they had not seen the incident in question. 12. According to the case of the prosecution, Accused Nos. 1 and 3 have stabbed the deceased and another accused held the deceased. Thus according to the case of the prosecution, two accused have stabbed with two different knives. Such case of the prosecution is belied by the version of the doctor PW-18 who conducted the postmortem examination. He has opined that the death was due to shock, hemorrhage and respiratory failure as a result of multiple injuries sustained during an assault by a sharp pointed tip with one or both cutting margins of a dagger. Such case of the prosecution is belied by the version of the doctor PW-18 who conducted the postmortem examination. He has opined that the death was due to shock, hemorrhage and respiratory failure as a result of multiple injuries sustained during an assault by a sharp pointed tip with one or both cutting margins of a dagger. PW-18 in his examination-in-chief itself has deposed that the description of probable weapon of causation of the injuries, though was mentioned on page No. 3 of the postmortem report, based on the physical dimensions of the injuries, the weapons sent by the Investigating Officer do not match to the probable weapon. He has further deposed that the multiplicity of the injuries numbering to 27, their locations and their descriptions are suggestive that they are all caused probably by a single individual in a quick succession. Even in the cross-examination, he has reiterated that the injury must have been caused by a dagger with a sharp pointed tip with one or two sharp cutting edges. According to him, the injuries were caused with the same weapon. Thus according to the doctor, the injuries were caused by a single individual by use of the same weapon. Doctor is specific in his deposition that the weapon sent for his examination does not tally with the probable weapon. The two knives sent for opinion of the doctor PW-18 do not match the probable weapon. The expert's opinion as aforementioned belies the case of the prosecution, more particularly when the panchas for seizure panchanama have turned hostile. 13. From the evidence of the doctor, it is clear that one person must have committed the offence by using one weapon by stabbing the victim. PWs. 4 and 5 who are the eye-witnesses to the incident though have turned hostile have deposed to the effect that Accused No. 1 stabbed the victim repeatedly, consequent upon which deceased died on the spot. PWs.4 and 5 have deposed against Accused No. 1 only. In this view of the matter, the submission of the defence that Accused No. 1 alone was responsible for the incident in question assumes importance. 14. It has also come in the evidence of the Investigating Officer that he had mentioned in the remand application that there was illicit relationship between Accused No. 3 and the deceased. In this view of the matter, the submission of the defence that Accused No. 1 alone was responsible for the incident in question assumes importance. 14. It has also come in the evidence of the Investigating Officer that he had mentioned in the remand application that there was illicit relationship between Accused No. 3 and the deceased. According to the defence, Accused No. 1 was not liking the illicit relationship between Accused No. 3 and the deceased and therefore he has stabbed the deceased. Be that as it may, the said fact relating to illicit relationship is not forthcoming in the evidence of the relatives of the deceased. 15. It is curious to note that the complaint itself is tampered during the course of investigation. The complainant has stated in her complaint that when she asked her mother as to how the incident had occurred, deceased had told before her that when she had gone to the site for collecting the grass, the accused, Siddagangamma, Suvarnamma and their daughters-in-law assaulted her with knife at about 12.45 p.m. However, subsequently after recording the complaint, the words, "with grand-child" are inserted. Thus it is clear that the Investigating Officer has tampered the complaint in order to show that the deceased had gone alongwith her grand-child probably PW-3 for collecting grass, but such fact is not stated so by the complainant herself while lodging the complaint. The said fact is admitted by PW-1 in her cross-examination. She has pleaded ignorance as to when the words, 'with the grand-child' are inserted in the complaint and she has specifically admitted that she does not know as to when such words are inserted in the complaint. In order to show the presence of PW-3 alongwith the deceased, tampering exercise is done by the prosecution. 16. Though it has come in the evidence of PWs.1 and 6 that number of persons were present when PWs.1 and 6 went to the spot, none have deposed about the alleged dying declaration said to have been made by the deceased. No independent witness has deposed about the oral dying declaration. We cannot ignore the position of law that the oral dying declaration is a weak type of evidence and that the oral dying declaration needs to be corroborated by other substantive material on record. No independent witness has deposed about the oral dying declaration. We cannot ignore the position of law that the oral dying declaration is a weak type of evidence and that the oral dying declaration needs to be corroborated by other substantive material on record. In the matter on hand, we do not find any material which support the oral dying declaration allegedly made by the deceased before PWs.1 and 6. 17. As aforementioned, it might not be possible for the deceased to make the oral dying declaration, particularly having regard to the serious injuries on the neck and all over the body. The material on record discloses that the deceased was brought dead to the Victoria hospital, Bangalore. In view of the aforementioned facts and circumstances, we do not find any reason to disagree with the conclusion reached by the trial Court. In our considered opinion, the trial Court is justified in granting the benefit of doubt in favour of the accused. Since the view taken by the trial Court under the facts and circumstances is one of the possible views, no interference is called for. Appeal fails and the same stands dismissed.