H.N. Narayan, J.@mdashThe State has challenged the legality and correctness of the order of acquittal passed by the learned Additional District and Sessions Judge, Bangalore Rural District, Bangalore, in S.C. No. 59 of 1993. The learned Trial Judge has acquitted the accused for the offence punishable u/s 302 of the IPC.
2. The case of the prosecution, in brief, is as follows:
The accused and the deceased were bosom friends. The father-in-law of the accused was a tenant of Rukmunamma-P.W. 6, mother-in-law of the deceased even prior to the marriage of P.W. 13-Manjula with the accused. The marriage of the accused with P.W. 13-Manjula took place about 8 years prior to the date of incident which occurred in the year 1992. They had two sons. It is the case of the prosecution that deceased being the youngest son of P.W. 6 was employed in a weaving factory at Thyamagondlu in Nelamangala Taluk, had developed illicit relationship with P.W. 13-Manjula and it continued even after her marriage. It is also the case of the prosecution that on 9-9-1992 when her husband had gone to his work and was expected to return only at about 9 or 10 p.m., the deceased came to the house of the accused and knocked the door and he was asked to go out immediately as she was expecting her husband; however, the deceased insisted to have sex with her and therefore both of them slept in the kitchen room and at about 1 or 2 a.m. there was a knock on the door and that her eldest son Renuka got up and opened the door. In the meantime, the deceased started dressing up and hid himself behind the door and the accused entered the house asking his wife as to why there was delay in opening the door and he wanted her to serve food and that the accused noticed the presence of the deceased in the kitchen who somehow escaped from the hind door and that P.W. 13-Manjula begged for pardon. In this background, it is alleged by the prosecution that on 19-12-1992 at about 9 p,m. when the deceased Aswatha was proceeding in front of Ravi Wines, the accused who found the deceased, started quarrelling with him and a fighting ensued between them and these two people started quarrelling in front of Ravi Wines and came upto S.R.S. Wine Stores situate in the same road at a distance of about 200 ft. and in the course of the said quarrel, the accused is stated to have stabbed him with the help of M.O. 1- the knife. When the deceased raised hue and cry which was initially witnessed by P.W. 1-T.H. Nagaraj his own friend, was called for his help. When P.W. 1 went there to rescue the deceased, the accused slapped him and pushed him aside and thereafter ran away from the place holding the blood stained knife.
3. P.W. 2 Rajendra, the Cashier of SRS Wine Stores, P.W. 3 Harish who was working at Ravi Wines as Assistant Salesman and P.W. 14-Gangaraju who was also working in Ravi Wines as Salesman, witnessed the incident from their wine shops; while P.W. 14 closed his shop and left the place, P.Ws. 2 and 4 assisted P.W. 1 in removing the injured to the nearby Government hospital. This incident of stabbing near SRS Wine Store was reported to the police. The Sub-Inspector of Police-P.W. 20 Shivanna who came to know of this incident, took his Head Constable with him and rushed to the place of incident which was at a distance of 80 ft. and came to know that the injured was shifted to the hospital, immediately came back to the hospital where he found the injured Aswatha under the treatment of P.W. 5-Dr. Siddalingaswamy.
4. It is the further case of the prosecution that P.W. 5 admitted the injured and recorded the history of the incident as given by the injured himself and while he was administering some medicine to the injured, the PSI came to the place and in the presence of the doctor P.W. 5 recorded the statement of the injured Aswatha as in Ex, P. 8. However, the injured Aswatha succumbed to the same at 9.30 p,m. The Sub-Inspector returned to the police station. At about 10 p.m. P.W. 1-T.R. Nagaraj appeared in the police station and gave a written complaint as per Ex. P. 1 on the basis of which he registered a case in Cr. No. 79 of 1992 u/s 302 of the IPC against the accused. P.W. 22 D.M. Krishna Raju the Circle Inspector of Police, Nelamangala who received a wireless message informing the death of Aswatha due to stabbing by one Mahadevaiah, immediately proceeded to Thyamagondlu along with his staff. There was tension in Thyamagondlu on account of communal disturbances. .He therefore visited the Government hospital Thyamagondlu, found the dead body of Aswathanarayana with bleeding injuries over the right side chest, near his neck and cheek, he made arrangement to keep watch over the dead body; he thereafter took up further investigation of this case from P.W. 20. On the next day morning he conducted inquest panchanama in the presence of the panchas P.W. 8 and another and prepared inquest panchanama as in Ex. P. 3. He secured and examined the blood relatives of the deceased. He also examined and recorded the statements of P.Ws. 2, 3, 5 and 14. The dead body thereafter was sent to post-mortem examination. P.W. 5 who conducted the post-mortem examination on the next day morning, submitted his report as in Ex. P. 7. The accused was absconding since the date of incident. He was produced before CPI-P.W. 22, by P.W. 20 and a P.C. on 22-12-1992 at about 11.25 a.m. and was arrested and the accused volunteered to make a statement as in Ex. P. 20 which is as follows:
P.W. 22 found that the accused was wearing a sweater which was bloodstained. He therefore immediately secured the panchas P.W. 9 and another and seized the sweater M.O. 2 under the mahazar Ex. P. 9. The C.I. thereafter secured two witnesses P.Ws. 4 and 11 and the accused led them to vacant site belonging to one Guddahanumanthaiah wherein he produced the bloodstained knife M.O. 1 which was seized under a mahazar Ex, P. 4. The accused was thereafter produced for judicial custody. The bloodstained articles were subjected to chemical examination and after completing the formalities of investigation, P.W. 22 laid a charge-sheet against the accused for the offence of murder.5. The accused was charged for the said offence of murder for which he pleaded not guilty and claimed to be tried. In proof of the charge against the accused, the prosecution examined 22 witnesses, got marked 20 documents and 17 M.Os. Two documents were exhibited on behalf of the defence. The learned Trial Judge found this evidence placed by the prosecution insufficient to hold the accused guilty of the offence of murder and therefore acquitted him of the offence alleged against him, the legality and correctness of which is challenged in this appeal by the State.
6. Sri S.S.Koti learned Additional SPP contended before us that the appreciation of evidence of eye-witnesses by the Trial Judge is erroneous and the learned Trial Judge committed an error in rejecting the evidence on the ground that the eye-witness account is discrepant with reference to the medical evidence and that the Trial Judge has also erred in discarding the dying declaration of the deceased recorded by the ASI-P.W. 19 in the presence of Medical Officer-P.W. 5 and the Trial Judge has also erred in discarding the evidence of arrest and recovery of the knife and the sweater which are incriminating articles. The learned Additional SPP also drew our attention to the entries made in Ex, D. 1, the entries in the accident register made by P.W. 5 also incriminates the accused and therefore he contended that the Trial Judge has clearly erred in reading the prosecution evidence with tainted glass resulting in an erroneous conclusion which is liable to be set aside.
7. Sri Sebastian-learned Counsel for the respondent-accused however justified the judgment of acquittal rendered by the Trial Judge. In fact, the learned Counsel for the respondent has taken the same line of argument placed before the Trial Judge by him in justification of the order and submitted that the judgment does not suffer from legal infirmities which require to be reversed. The learned Counsel for the respondent has also relied upon the decision of the Supreme Court in Prem v Daula and Others.
8. Therefore, the question for our consideration in this appeal is whether the judgment of acquittal rendered by the Trial Judge suffers from legal infirmities liable to be reversed.
9. We have given our utmost consideration to the contentions raised on both sides. We have also carefully scrutinised the entire evidence placed by the prosecution and in our opinion the learned Trial Judge has not considered the evidence or record with correct perspective and erred in reaching the conclusion resulting in acquittal of the accused.
10. The fact that father of P.W. 13-Manjula who is father-in-law of the accused was the tenant of P.W. 6-the mother of the deceased long prior to the date of incident about 13 years back is not in dispute. In fact, the statement of P.W. 6 and P.W. 7 the eldest son of P.W. 6 remained uncontroverted on this aspect. Both of them have stated that the accused''s father-in-law was their tenant. The motive for the offence as alleged by the prosecution is that the deceased Aswath developed illicit relationship with P.W. 13-Manjula even prior to her marriage with the accused. P.W. 7 Lakshminarasimhaiah has stated in an unequivocal terms about the relationship. He has stated that the accused and his wife Manjula were on visiting terms with them, the deceased Aswatha was having illicit relationship with the accused; they advised Aswatha not to indulge in such things and he would be got married after Sabarimalai visit. This statement of P.W. 7 remained uncontroverted in cross-examination. This evidence placed by the prosecution on record establishes the fact that the deceased had illicit relationship with Manjula, though P.W. 13-Manjula was examined to prove the particular incident which occurred on the night of 9-9-1992 in her house in the absence of the accused, the lady clearly denied any such happening on the said night. She has also denied her illicit relationship with the deceased. It is quite natural for a lady to have denied this suggestion made to her by the prosecution. But the fact remained that she had relationship with the deceased. This fact was also known to the accused. This is inferable from the evidence of P.W. 7 himself. It is also the case of the prosecution that by that time the accused who had married P.W. 13-Manjula had a separate residence. In this background it is alleged by the prosecution that the accused was grudging ill-will against the deceased and to kill him. We may hasten to add at this stage itself that there was no immediate cause for the accused to kill the deceased on the very day except that there was quarrel between them on the said night.
11. The prosecution has strongly relied on the direct evidence of P.Ws. 1, 2, 3 and 14 in proof of the incident of stabbing on the night of 19-12-1992. P.W. 2 was working as Cashier at SRS Wine Store, P.Ws. 3 and 14 were the two workers of Ravi Wines. Though the evidence of these witnesses disclose insofar as the distance between these two wine stores, the evidence of ASI-P.W. 19 shows that these two wine stores situate at the distance of 200 ft. Their evidence also discloses that the Government hospital was at a distance of 80 ft. from Ravi Wines and the police station was adjacent to the Government hospital. P.W. 1 is dubbed as a planted witness, so also the three other eye-witnesses. However, it is difficult for us to accept this contention of the accused to totally discard their evidence on that ground. It is the contention of the learned Counsel for the accused that a curfew was imposed at Thyamagondlu town on account of communal violence and all the shops were ordered to be closed before 8 p.m. for a week. That period of one week was over 3 days prior to the date of the incident. The fact that there was still communal tension in Thyamagondlu could be seen from the evidence of their eye-witness and also from the evidence of ASI-P.W. 19. The local police used to go round the town on bumboats duty and forcing the wine store owners to close their shops before 8 or 8.30 p.m. It is upon this material, an argument was build up on behalf of the accused that shops were closed by 8 p.m. on that day and the presence of P.Ws. 2, 3 and 14 was not natural. It is contended by the learned Counsel for the defence that these 3 people were apprehended and brought to the police station immediately after the incident along with the accused and they were made the suspects in this case.
12. We have examined the contentions raised by the defence Counsel. P.W. 1 was returning from Bhajana Mandira at about 9 p.m. on that day. When he came in front of Ravi Wines, he noticed Aswatha and the accused quarrelling. After seeing him, the deceased called him to his help and when P.W. 1 attempted to pull out the accused, he slapped him and pushed him aside and thereafter dragged the deceased towards SRS Wine Stores and repeatedly stabbed him and Aswatha fell down on the road in front of SRS Wine Stores. The incident occurred for about 5 to 10 minutes. According to P.W. 1 the injured was immediately removed to nearby hospital at about 9.15 p.m. and when P.W. 5 doctor was summoned from his residence and when he was being treated in the hospital, P.W. 19-ASI also came there and recorded his dying declaration as in Ex. P. 8.
13. Material omissions were elicited in his evidence insofar as recording of dying declaration by the ASI and that is the material omission in the complaint lodged by P.W. 1. This witness was however subjected to lengthy cross-examination. The defence was successful in eliciting from this witness that there was not much light on the road except the light coming out from these two wine stores. The evidence of P.Ws. 2, 3 and 14 partly corroborate the statement of P.W. 1 to the effect that the accused and the deceased were quarrelling and the quarrel started in front of Ravi Wines and ended in front of SRS Wine Stores, specially after stabbing by the accused with the knife.
14. P.W. 1 in particular has stated that the accused was carrying a bag in his left hand and both the accused and the deceased alighted from the bus. This piece of evidence is also absent in the complaint Ex. P. 1. P.Ws. 2 and 3 have not stated anything about the bag in the hand of the accused though P.W. 14 had mentioned the same. All these witnesses have unequivocally identified M.O. 1 in the hands of the accused with which he stabbed the deceased.
15. We will now refer to the evidence of the Medical Officer-P.W. 5 who found the following external injuries:
"1. A linear abrasion 1" even edges over the cheek area.
2. A linear abrasion 1" with even edges over the chin.
3. An abrasion over the left mandibular area of the neck l-1/4" with even edges and scratched abrasion 2" x 1/2" over the thyroid cartilage area of the neck present.
All abrasions are skin deep.
4. Details of stab wound.--There was a stab wound present over the front of the chest (right side) situated at the right border of the sternum and 3" left to the right nipple measuring 1-1/4 x 1/2" x 3" in 4th intercostal space, wedge shaped with clean cut edges. The right pectorals major muscle is cut across also intercostal muscle of 4th intercostal space was also cut. Costal cartilage of 4th rib was fractured. (cut across)".
Further according to P.W. 5, on dissection, he found the following internal injuries:
"1. The right chest cavity pierced, the middle lobe of right lung and right strum and into rights trial cavity. The stab wound is directed back and inwards i.e., towards left side blood extravagated around the tract of the stab wound.
2. Middle lobe of the right lung was punctured 1 in length.
3. Right strum was punctured 1". in length."
16. The doctor was of the opinion that death was due to shock and haemorrhage as a result of stab wound sustained by him which was antemortem in nature and that injury 4 was fatal and it was sufficient in the ordinary course of nature to cause death and that the time since death was 15 hours. The doctor has also opined that the injuries could have been caused by means of a knife M.O. 1. The other injuries also be caused if the person stabs by means of M.O. 1. However, after examining the knife M.O. 1 the doctor was of the clear opinion that the injuries found on the dead body, more so the 4th injury, could not have been caused by a weapon like M.O. 1. Relying upon this, the learned Counsel for the respondent contended that the evidence of eye-witnesses is discrepant so far as the medical evidence is concerned and therefore not safe to rely upon such evidence. This position is clarified by the Apex Court in the following 3 decisions:
In
"The mere fact that in a murder case the evidence of eye-witnesses is inconsistent with the medical evidence will not by itself render the former unreliable".
In
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence".
In Prem''s case, supra, it is stated as under:
"In the facts and circumstances of the case, opinion evidence of the doctor cannot nullify the evidence of the eye-witnesses".
17. In this case P.W. 5 has affirmatively stated that these injuries could have been caused by a sharp edged weapon like M.O. 1. We therefore, do not agree with the contention raised by the defence that these injuries could not have been caused by a weapon like M.O. 1 and that the medical evidence contradicts with the eye-witness account.
18. The evidence of these eye-witnesses clearly go to show that the people were moving about in the town even at 9 p.m. Some shops were opened till 9 p.m. though the police forced them to close the shops before 8.30 p.m. there was no such rule to close it and therefore they were running the business and there were some customers in SRS Wine Stores also though the witness was not in a position to give the names and particulars of those customers. These witnesses are not related to the deceased though P.W. 1 claims to be his friend. The accused was not a stranger to them. They had an occasion to see the accused moving about in the said road. Therefore, it was not very difficult for the witnesses to have identified the accused. On the said night, it was not totally dark and therefore, the witnesses could still identify these two persons quarrelling in front of their shops. It is true that the witnesses have spoken to the blood drops at the place of incident, but no blood was seized as it was a public road and the spot mahazar was conducted only on the next day morning. In our opinion, non-seizure of bloodstains in front of SRS Wine Stores or near Ravi Wines is no infirmity to throw away the prosecution case.
19. The Trial Judge has discarded the evidence of these eye-witnesses as unreliable, unnatural and totally discrepant. In our opinion, this observation made by the Trial Judge is incorrect.
20. The Supreme Court had in fact recorded certain guidelines in this aspect as to how the evidence of eye-witnesses should be scrutinised by the Trial Courts, in
"It is no doubt true that the prosecution evidence does suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The Main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspect thereof".
In
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences from out of context here and there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals".
21. After careful examination of the discussion made by the Trial Judge, we find the discussion and the finding are not satisfactory, specially where the Trial Judge erred in scrutinising the evidence of these eye-witnesses making much of the trivial infirmities pointed out in the course of cross-examination of these witnesses. We are satisfied from the careful scrutiny of the evidence of these witnesses that stabbing incident occurred at 9 p.m. on the date alleged wherein the accused stabbed the deceased Aswatha in front of these two wine stores during the quarrel which ensued between them.
22. The prosecution has made an attempt to find some material corroboration of these eye-witnesses again by placing two other important circumstances viz., dying declaration said to have been made by the injured in the hospital in the presence of P.W. 5-the Medical Officer and also the recovery of M.Os. 1 and 2-the knife and the sweater. Upon careful examination of these two circumstances, we find it hard to rely upon these two circumstances, firstly because there is no mention of it in Ex. P. 1 registered at 10 p.m. on the said date in the police station even though the dying declaration Ex. P. 8 was recorded by P.W. 19 at 9.25 p.m. It is true that he did not insist upon a certificate by P.W. 5. We do not find any such circumstance since the doctor himself was signatory to the dying declaration Ex. P. 8. P.W. 5 has in fact supported the case of the prosecution stating that the injured was in a position to speak even at 9.15 p.m. when the S.I. visited the hospital and that the dying declaration was recorded by the S.I. within a span of five minutes as it consisted of only three sentences and that Aswatha died immediately thereafter at about 9.30 p.m. We find certain overwritings in the timing of recording the statement of the injured in Ex. P. 8. That itself does not throw any suspicion. But the recording of dying declaration by S.I. was enough for him to register the case against the accused person. He has not produced anything to show that immediately after returning to police station, he recorded in the care diary. Even otherwise, P.W. 1 who has spoken about the recording of dying declaration in the hospital has also not stated so in his complaint. Therefore, the Trial Judge is right insofar as this aspect is concerned in observing that it is an unbelievable material relied upon by the prosecution and rightly rejected the same.
23. Insofar as the absconding and arrest of the accused is concerned, the I.O. has again created this circumstance, as a matter of course. If the evidence of P.Ws. 2 and 14 has any indication, the accused was present in the police station on the night of 19-12-1992 and continued to be there in the custody till 20-12-1992. Therefore, recording of voluntary statement of the accused by P.W. 20 leading to discovery of M.O. 1 and seizure of M.O. 2 the bloodstained sweater from his person, in our opinion, is a make belief and false one. We deprecate the tendency of the I.Os. to this sort of investigation only to cook up material. We hasten to add that the I.O. must make his best effort to put forth the case as natural as possible without too much of padding, though sometimes, investigating agencies attempted to pad up the case in their overzealousness. Too much of padding up of cases destroys the genuine case. In this background, we do not propose to examine the seizure evidence of M.Os. 1 and 2 as we do not attach much importance to these seizures. That takes us to the question whether the prosecution has been able to prove whether the accused had any intention to kill the deceased and whether the conduct of the accused in stabbing the deceased falls within the definition of Section 300 of the IPC. If we carefully examine the entire case of the prosecution in the background of which it is commenced and as [untold] by these eye-witnesses and others, we find it hard to accept that the prosecution has made out a case punishable u/s 302 of the IPC. It falls short of the special mens rea required to convict the accused u/s 302 of the IPC. While reaching this conclusion, we have taken into consideration the fact that the deceased had developed illicit relationship with the wife of the accused. There was no immediate provocation for the accused to commit the offence, perhaps, the accused was entertaining some sort of ill-will against the deceased in this background. He entered into quarrel with the deceased perhaps when he saw him walking in front of Ravi Wines. P.W. 1 has clearly stated that both of them were not only had verbal quarrel but they were actually fighting physically. It is the case of the prosecution that the accused took out the knife from the bag though these witnesses have not specified whether the accused was actually carrying the knife with him or took out either from the bag or anywhere. There was some doubt from where exactly the accused secured this knife before stabbing the deceased. Therefore, these circumstances do not compel us to hold that the accused had certain degree of mens rea to commit the offence of murder punishable u/s 302 of the IPC. In our opinion, he had caused him injury which is sufficient in the ordinary course of nature, but without any intention to cause the death. Inferences are possible from the proved facts that he had stabbed the injured due to sudden quarrel. We therefore hold that the prosecution has been able to establish the offence punishable u/s 304, Part II of the IPC which is punishable with imprisonment for 10 years or with fine or with both. Therefore, we disagree with the finding recorded by the Trial Judge and reverse the order of acquittal and convict the accused for the offence punishable u/s 304, Part II of the IPC. We therefore allow the appeal in part; convict the accused for the offence punishable u/s 304, Part II of the IPC; sentence him to suffer R.I. for a period of seven years. However, his stay in jail both as under-trial prisoner and convict is given set off as provided u/s 428 of the Cr. P.C. We direct the accused to surrender forthwith to suffer the imprisonment. In the alternative, the Trial Judge shall secure the accused and commit him to prison to undergo the imprisonment. The order of this Court be intimated to the Trial Judge forthwith to carry out the orders.
