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2015 DIGILAW 796 (KAR)

State of Karnataka v. Irudayaraju Alias Manthri

2015-07-22

MOHAN M.SHANTANAGOUDAR, R.B.BUDHIAL

body2015
JUDGMENT : Mohan M. Shantanagoudar, J.- The judgment and order dated 5-8-2010, passed by the Fast Track Court-II, Bangalore Rural District, Bangalore in SC No. 319 of 2009, is called in question in this appeal by the State. 2. The accused-respondent herein was charged with the offence punishable under Section 302 of Indian Penal Code, 1860. However, he is convicted for the offence punishable under Section 326 of IPC by the Trial Court. The State is aggrieved by the judgment and order of acquittal passed by the Trial Court acquitting the accused of the offence punishable under Section 302 of IPC. Hence, this appeal. 3. Case of the prosecution in brief is that the deceased Vincent is the husband of the complainant-Smt. Joy; accused is the younger brother of Vincent; Smt. Joy had an younger sister by name Shanthi; when Shanthi was aged about 17 years, the accused-Mantri (respondent herein) married her without the consent of the complainant and the deceased and therefore they had grouse against the accused and they used to quarrel with them; according to the deceased and the complainant, the accused being the younger brother of the deceased, by abducting Shanthi and marrying her without the consent of the deceased and others has spoiled the name of the family of the deceased; accused had even threatened and warned the deceased with dire consequences if he intervenes in his family affair; subsequently, the accused used to quarrel with the deceased as well as with the complainant whenever he used to see them. At about 6.45 p.m. on 28-8-2009, when the deceased was returning to the house after finishing his carpentry work, the complainant was standing in front of the house waiting for her husband; in the meanwhile, the accused came near the deceased holding a chopper along with three persons and stabbed the deceased; accused assaulted on the head of the deceased with the chopper repeatedly; the other three persons also assaulted the deceased with clubs consequent upon which, the deceased fell down on the ground; since the incident was seen by the complainant (wife of the deceased), she rushed to the scene and cried for the help of the people who gathered there; she shifted her husband to Vydehi Hospital for treatment at the first instance; at that point of time the deceased was not in a position to speak; since the family of the members of the deceased were not in a position to meet the expenses of Vydehi Hospital, which is a private hospital, the authorities of Vydehi Hospital advised to shift the patient to NIMHANS and accordingly, the patient was shifted to NIMHANS; the hospital authorities of NIMHANS declared the patient as brought dead; the death has occurred at about 9.15 a.m. as is clear from Ex. P. 10. Complaint came to be lodged by P.W. 1 at about 9.00 p.m. on 28-8-2009 before Whitefield Police Station, based on which the Sub-Inspector of the said Police Station (P.W. 12) registered the case in Crime No. 224 of 2009 against Manthri (respondent herein) and three others. The FIR as per Ex. P. 9 was sent by the said Police Officer to the jurisdictional Magistrate which reached the Magistrate at 2.45 p.m. on 29-8-2009. P.W. 10 being the Inspector, completed the investigation and laid the charge-sheet. 4. In order to prove its case, the prosecution in all examined 12 witnesses and got marked 15 Exhibits and 7 Material Objects. On behalf of the defence, no witness is examined. As aforementioned, the Trial Court convicted the accused-respondent herein for the offence punishable under Section 326 of IPC and acquitted him of the offence punishable under Section 302 of IPC. 5. On behalf of the defence, no witness is examined. As aforementioned, the Trial Court convicted the accused-respondent herein for the offence punishable under Section 326 of IPC and acquitted him of the offence punishable under Section 302 of IPC. 5. Sri Vijayakumar Majage, learned Additional State Public Prosecutor appearing on behalf of the State taking us through the material on record submits that the Trial Court is incorrect in convicting the accused-respondent herein for the offence punishable under Section 326 of IPC; the evidence on record, more particularly, the version of eye-witnesses and the version of the doctor who conducted the post-mortem examination would clearly reveal that injury Nos. 1, 2, 3, 7, 8 and 9 could be caused by chopper (M.O. 3) used by the accused for commission of offence; other injuries, i.e., injury Nos. 4, 5 and 6 are mere abrasions which could be caused by pushing or dragging the injured on the ground. According to him, the reasons assigned by the Trial Court while acquitting the accused of the offence punishable under Section 302 of IPC are improper and incorrect. 6. Sri Sudhanva, learned Amicus Curiae appearing on behalf of the respondent-accused argued in support of the judgment of the Court below contending that no valid reasons are forthcoming as to why three persons against whom specific allegations were made by one of the eye-witnesses (P.W. 1) are deleted from the charge-sheet; material on record does not disclose that the accused assaulted on the deceased with blunt edge of the chopper; since the final opinion of the doctor who conducted the post-mortem examination is that the death is due to shock and hemorrhage consequent upon multiple injures sustained by fairly sharp heavy cutting weapon and linear hard and blunt object, it is clear that the death is caused not only by the chopper, but also by hard and blunt object like club and iron rod. Thus, according to him, certain other persons also were involved in the incident in question and such other persons are deliberately left out while filing the charge-sheet. 7. Before proceeding further, it is relevant to note that the accused-respondent herein has not questioned the judgment of the Court below convicting him for the offence punishable under Section 326 of IPC. Thus, it is clear that the accused admits that he has committed the offence by assaulting the victim with chopper. 7. Before proceeding further, it is relevant to note that the accused-respondent herein has not questioned the judgment of the Court below convicting him for the offence punishable under Section 326 of IPC. Thus, it is clear that the accused admits that he has committed the offence by assaulting the victim with chopper. The Trial Court while concluding against the accused-respondent herein for the offence punishable under Section 326 of IPC has subsequently ruled that the version of all the eye-witnesses, i.e., P.Ws. 1, 3, 4 and 9 is believable and their version is trustworthy. The Trial Court has also concluded that the accused-respondent herein has assaulted on the head of the deceased with chopper (M.O. 3), consequent upon which the deceased has sustained chopped wounds on his head. These conclusions arrived at by the Trial Court are not questioned by the accused in the appeal, inasmuch as he has accepted the factual findings as well as the conclusion reached by the Trial Court that he has committed the offence punishable under Section 326 of IPC. However, in order to satisfy our conscience, we have reconsidered the entire material on record independently while passing this judgment. 8. P.Ws. 1, 3, 4 and 9 are the eye-witnesses to the incident in question. P.W. 1 is the wife of the deceased. She lodged the complaint as per Ex. P. 1 immediately after the incident at about 9.00 p.m. on 28-8-2009, based on which Crime No. 224 of 2009 came to be registered. All these eye-witnesses have supported the case of the prosecution. P.W. 2 is the witness for scene of offence mahazar at Ex. P. 2. He has turned hostile to the case of the prosecution. P.W. 3 apart from being an eye-witness to the incident in question is also the witness for scene of offence mahazar at Ex. P. 2 and inquest mahazar at Ex. P. 3. P.W. 4 as aforementioned is also an eye-witness. He supports the case of the prosecution insofar as the incident is concerned. However he has turned hostile to the case of the prosecution, inasmuch as he has not supported the case with regard to recovery of M.O. 3-chopper under panchanama at Ex. P. 4. P.Ws. 5 and 6 are the witnesses for inquest mahazar at Ex. P. 3. Among them, P.W. 6 has turned hostile. However he has turned hostile to the case of the prosecution, inasmuch as he has not supported the case with regard to recovery of M.O. 3-chopper under panchanama at Ex. P. 4. P.Ws. 5 and 6 are the witnesses for inquest mahazar at Ex. P. 3. Among them, P.W. 6 has turned hostile. He is also an eye-witness to the incident in question, but he has not supported the case of the prosecution. P.W. 7 is the doctor who conducted post-mortem examination. PM report is at Ex. P. 7. P.W. 8 is the Police Constable who carried the FIR to the jurisdictional Magistrate. As aforementioned, P.W. 9 is the eye-witness to the incident in question. He is also the witness for recovery panchanama at Ex. P. 4, under which M.O. 3-chopper is recovered. P.W. 10 is the Investigating Officer who conducted the investigation and laid the charge-sheet. P.W. 11 is the Scientific Officer attached to Forensic Science Laboratory. On examination of the articles sent to her, she gave report as per Ex. P. 14. P.W. 12 is the Sub-Inspector of Police attached to Whitefield Police Station. He received the complaint as per Ex. P. 1 lodged by P.W. 1 and registered the case in Crime No. 224 of 2009. He conducted part of investigation. 9. From the aforementioned, it is clear that P.Ws. 1, 3, 4 and 9, who are the eye-witnesses to the incident have supported the case of prosecution, though P.W. 6 is the eye-witness to the incident, he has turned hostile to the case of prosecution. We have evaluated the ocular testimonies of the eye-witnesses meticulously. All of them have supported the case of prosecution in all material particulars. All of them have supported the case of prosecution as found in the complaint-Ex. P. 1. 10. P.W. 1 has deposed about the motive for commission of the offence. She is the wife of the deceased and the elder sister of the wife of the accused. The accused is none other than the younger brother of the deceased. All of them have supported the case of prosecution as found in the complaint-Ex. P. 1. 10. P.W. 1 has deposed about the motive for commission of the offence. She is the wife of the deceased and the elder sister of the wife of the accused. The accused is none other than the younger brother of the deceased. The dispute arose between the accused and the deceased on the ground that the accused had married Shanthi, the younger sister of the complainant, without the consent of the complainant and the deceased, who are the elders in the family; since the accused had developed intimacy with Shanthi, who was aged 17 years at the time of incident and had eloped with her, the deceased was feeling that the accused had spoiled the image of the family. In that regard, the accused had threatened the deceased that he would take away his life, if the deceased questions him once again. However, the difference which arose between the brothers continued for four months i.e. till the date of the incident. At 6.45 p.m. while the deceased was returning to his home from the carpentry work, the accused came with chopper and assaulted the deceased on his head repeatedly. Consequent upon which, the deceased had fell down on the ground. He remained unconscious till his death. Immediately after the incident, he was shifted to Vydehi Hospital and thereafter, to NIMHANS Hospital. The authorities of NIMHANS Hospital declared that the patient was brought dead. P.W. 1, though was cross-examined by the defence at length, his evidence could not be shaken. She has reiterated in the cross-examination that it was the accused who assaulted the deceased with the chopper and the accused had come to the spot armed with chopper. 11. The evidence of P.W. 1 is supported by P.Ws. 3, 4 and 9. All of them have deposed about the incident in question. However, P.Ws. 3 and 4 had admitted in the cross-examination that by the time they reached the spot, the deceased had fallen to the ground. They also have deposed that they were standing about 15 mts. away from the place wherein the accused was assaulting the deceased. In that regard, the learned Public Prosecutor is justified in submitting that P.Ws. 3 and 4 have seen the incident from the distance. They also have deposed that they were standing about 15 mts. away from the place wherein the accused was assaulting the deceased. In that regard, the learned Public Prosecutor is justified in submitting that P.Ws. 3 and 4 have seen the incident from the distance. But, by the time they reached the spot to pacify the quarrel, the deceased had fallen to the ground. P.W. 9 has also deposed about the incident meticulously and his evidence also supports the evidence of P.W. 1 in all material particulars. 12. On going through the evidence of P.Ws. 1, 3, 4 and 9, we are of the opinion that the Trial Court is justified in concluding that their evidence is consistent, cogent and reliable. We do not find any ground to disbelieve the said version. Therefore, the Trial Court is justified in relying upon their evidence in coming to the conclusion. Though the Trial Court has relied upon the evidence of all the eye-witnesses to the effect that it was the accused who assaulted on the head of the deceased with chopper, consequent upon which the deceased fell on the ground, it has not convicted the accused for the offence punishable under Section 302 of IPC on the ground that the complaint lodged by the eye-witness (P.W. 1) also discloses that there was assault by three other persons apart from the accused. The Trial Court felt that all the four persons including the accused on record collectively contributed to the death of the deceased and thus, the Trial Court chosen to convict the accused for the offence punishable under Section 326 of IPC. This conclusion of the Trial Court is erroneous in view of the material on record. 13. The Investigating Officer (P.W. 10) has deposed that he recorded the further statement of the complainant on 29-8-2009. Column (2) of the charge-sheet (investigation report) also makes it clear that C.W. 1 (P.W. 1) has given the further statement to the effect that the other three persons who allegedly caused crime did not actually participate in the crime. In the further statement, it is deposed by the complainant that it is the accused, who alone has committed the offence. In the further statement, it is deposed by the complainant that it is the accused, who alone has committed the offence. Thus, from the further statement of the complainant, it is clear that the complainant had seen the incident from a distance and misunderstood the 3-4 persons, who were standing nearby the incident, as the co-assailants along with the accused. Under such wrong notion, she has lodged the complaint that the accused and the three others have committed the offence. Hence the averments made in the complaint lodged by P.W. 1 are because of mistake of fact and misunderstanding of the complainant of the situation. The further statement of the complainant is recorded immediately on the next day of lodging of the complaint. It is not an after thought. In the further statement she has clarified that these other persons are merely onlookers. Therefore, the Investigating Officer proceeded only against the accused and having found a prima facie case against the accused on record and accordingly, laid the charge-sheet only against the accused. 14. In addition to the same, the post-mortem report (Ex. P. 7) coupled with the evidence of P.W. 7 who conducted the post-mortem examination have proved that the deceased had sustained ten injuries. Out of the same, the first three injuries are the chopped wounds found on the portion of the head; injury Nos. 4 to 6 are abrasions; injury Nos. 7 to 10 are either abrasions or contusions. Injury Nos. 4 to 10 are not so serious in nature. They are not on the vital portion of the body. On the other hand, injury Nos. 1 to 3, which are the chopped wounds, are on the vital organ i.e. the head of the deceased. The said injuries are very serious in nature. The doctor has clarified that the external injury Nos. 1 to 3 could be caused with the sharp edge of M.O. 3; injury Nos. 7 to 10 could be caused from the blunt edge of M.O. 3 and injury Nos. 4 to 6 could have been caused due to dragging of the body. Thus, it is clear that injury Nos. 1 to 3 and 7 to 10 could be caused by using M.O. 3-chopper. Since the incident of assault is seen by P.Ws. 1, 3, 4 and 9, while they were at the distance of about 15-20 mts. 4 to 6 could have been caused due to dragging of the body. Thus, it is clear that injury Nos. 1 to 3 and 7 to 10 could be caused by using M.O. 3-chopper. Since the incident of assault is seen by P.Ws. 1, 3, 4 and 9, while they were at the distance of about 15-20 mts. from the scene of occurrence, it may not be possible for them to view exactly as to whether the accused had assaulted the deceased with the sharp or blunt edge of the weapon. Even in the cross-examination, the doctor has reiterated that injury Nos. 1 to 3 could be caused from the sharp edge of M.O. 3 and injury Nos. 7 to 10 could be caused from the blunt edge of M.O. 3. It is also not in dispute that injury Nos. 4 to 6 could be caused either by dragging of the victim or by fall of the victim on the ground. From the aforementioned medical evidence, it is amply clear that it was the accused and the accused alone who has committed the murder of the deceased by using the chopper (M.O. 3). 15. The accused had come to the spot fully prepared; the incident has taken place on the public road. The motive behind the incident is also proved by the evidence of P.W. 1. Though the motive in this case appears to be weak, the same cannot be to the advantage of the accused in view of the ocular testimonies of P.Ws. 1, 3, 4 and 9. 16. Case of the prosecution is further supported by the evidence of Scientific Officer-P.W. 11 and the Forensic Science Laboratory Report (Ex. P. 14). The evidence of P.W. 11 and Ex. P. 14 proved beyond reasonable doubt that chopper-M.O. 3 and the clothes of the deceased-M.Os. 4 to 6 were stained with `A' group of human blood. The recovery of chopper at the instance of accused is deposed by P.W. 9. Recovery panchanama is at Ex. P. 4. The serology report as well as the FSL report amply proves that the clothes of the deceased and the chopper used by the accused were stained with `A' group of human blood. We have also mentioned supra that the recovery of chopper at the instance of the accused is proved from the evidence of P.W. 9. P. 4. The serology report as well as the FSL report amply proves that the clothes of the deceased and the chopper used by the accused were stained with `A' group of human blood. We have also mentioned supra that the recovery of chopper at the instance of the accused is proved from the evidence of P.W. 9. The Trial Court has also believed the aspect of recovery of chopper at the instance of the accused and has also rightly concluded that the aforementioned articles were found with `A' Group of bloodstains. 17. In view of the above, it is clear that the accused has committed the murder of the deceased. It was the accused and the accused alone, who was responsible for the death of the deceased. All the major injuries found on the dead body could have been caused by the chopper as opined by the doctor (P.W. 7). Therefore, the Trial Court is not justified in concluding that three other persons also must have been contributed to the death of the deceased. Consequently, the Trial Court is not justified in convicting the deceased for the offence punishable under Section 326 of IPC. The Trial Court ought to have convicted the accused for the offence punishable under Section 302 of IPC. For the reasons mentioned supra, we find that the view taken by the Trial Court acquitting the accused for the offence punishable under Section 302 of IPC is not the possible view under the facts and circumstances of the case. 1 Hence, the judgment and order of the Trial Court acquitting the accused for the offence punishable under Section 302 of IPC needs to be set aside and accordingly, the same stands set aside. 18. In view of the above, the following order is passed: (a) The accused is convicted for the offence punishable under Section 302 of IPC and he is sentenced to undergo imprisonment for life. (b) The accused is also imposed with fine of Rs.50,000/-. In default of payment of fine, he is sentenced to undergo further imprisonment for four years. (c) In case of recovery of fine, the entire fine shall be paid to P.W. 1-Smt. V. Joy (wife of the deceased). (d) The Trial Court is directed to secure the presence of the accused to serve the sentence imposed by this Court. (e) The appeal is allowed accordingly. (c) In case of recovery of fine, the entire fine shall be paid to P.W. 1-Smt. V. Joy (wife of the deceased). (d) The Trial Court is directed to secure the presence of the accused to serve the sentence imposed by this Court. (e) The appeal is allowed accordingly. We place on record the valuable assistance rendered by Sri D.S. Sudhanva, learned Amicus Curiae. The registry is directed to pay Rs. 10,000/- (Rupees Ten Thousand only) to learned Amicus Curiae, as honourarium.