Budihal R.B., J. - The judgment and order of conviction dated 25-9-2012 passed by Principal Sessions Judge at Chikmagalur in S.C. No. 67 of 1998 is called in question in this appeal.
By the said judgment and order of conviction, the learned Sessions Judge convicted the appellant-accused for the offence punishable under Section 307 of Indian Penal Code, 1860 and sentenced him to undergo Rigorous Imprisonment for ten (10) years and to pay fine of Rs. 50,000/- and in default to pay the fine amount, to undergo further simple imprisonment for a period of one year, and also convicted the appellant-accused for the offence punishable under Section 302 of IPC and sentenced him to undergo Imprisonment for life till his death and to pay fine of Rs. 1,00,000/- and in default to pay the fine amount, to undergo further simple imprisonment for a period of two years and ordered that both the sentences shall have to run concurrently.
Being aggrieved by the said judgment and order of conviction, the appellant-accused has preferred this appeal on the grounds as mentioned in the appeal memorandum.
2. Case of the prosecution is to the effect that on 10-4-1998, Head Constable (P.W. 15), after receiving the message from Chethana Nursing Home, Chikmagalur, at 3.45 p.m., that one Surendra was under treatment for gunshot injuries, had been to the hospital at 4.00 p.m. and found said Surendra under treatment and recorded the statement of said injured from 4.00 p.m. to 4.30 p.m. in the presence of the doctor. Ex. P. 9, the statement of Surendra, S/o. Krishnegowda, resident of Hosahalli Village, Avuthi Hobli, Chikmagalur Taluk discloses that he was residing in the said address. On 10-4-1998 at 1.00 p.m. when he was in front of his house, his elder brother Satish was objecting to the partition effected by his father in respect of the properties between himself and his brothers; and his elder brother (accused) was not satisfied with the said partition alleging that the properties were not equally divided and also on the ground that the coolie workers on the side of the deceased were objecting for the coolie workers of the appellant-accused to use the pathway; in that regard the appellant-accused purposely picked up quarrel at about 1.00 p.m. in front of the house with the father of the appellant-accused ; went inside the house; brought the double barrel gun and by addressing to the deceased that only if he survives, he can do all such things; so saying, he loaded the gun with an intention to commit his murder fired at the deceased; the deceased sustained injuries on his stomach, right hand, right thigh and other grievous injuries; Krishnegowda H.R, and Smt. Susheelamma, the parents of the deceased, and the coolie worker Chandru came and pacified the quarrel; the deceased was immediately shifted to Chikmagalur Hospital; after firing the gun, the appellant-accused ran away along with the gun; therefore, legal action may be taken against Satish-appellant, who made an attempt to commit the murder of the deceased and that informant/injured is getting the treatment as impatient at Chethana Nursing Home. On the basis of the said statement of the injured Surendra, Chikmagalur Rural Police have registered Crime No. 119 of 1998 in their Police Station for the offences punishable under Section 307 of IPC and under Section 25 of the Arms Act, 1959 and issued the FIR as per Ex. P. 10.
3. The materials placed on record show that in the evening of 10-4-1998, the injured Surendra was shifted to Bengaluru for higher treatment and he was admitted to St. John''s Medical College Hospital, Bengaluru. The injured survived till 17-4-1998 and he succumbed to injuries on 17-4-1998 at 9.15 p.m. The Koramangala Police at Bengaluru have been informed by the hospital authorities, who in turn have registered the case in UDR No. 37 of 1999 under Section 174 of Criminal Procedure Code, 1973; on the next day i.e., on 18-4-1998 the Koramangala Police have conducted the inquest panchanama over the dead body of the deceased, which is marked as per Ex. P. 1; Ex. P. 2 is the report of UDR No. 37 of 1998. Subsequently, the documents with regard to registration of UDR and conducting inquest mahazar proceedings were transferred to the Rural Police Station at Chikmagalur.
After completion of investigation, the Circle Inspector of Police, Rural Police Station, Chikmagalur, filed the charge-sheet against the appellant-accused under Sections 307 and 302 of IPC read with Sections 3 and 25 of the Arms Act.
4. In order to prove its case, prosecution has examined 23 witnesses and got marked 28 documents and 11 material objects. On the side of the defence, one witness has been examined.
The Trial Court after considering the merits of the case, convicted the accused for the offence punishable under Section 307 of IPC, so also for the offence punishable under Section 302 of IPC.
Being aggrieved by the said judgment and order of conviction the accused preferred appeal before this Court in Cri. A. No. 1065 of 2002 (H.K. Sathisha v. State by Rural Police, Chikmagaluri 2007 (4) Kar. L.J. 19 (D.B.) : ILR 2006 Kar. 2713 (DB) : 2006 (5) AIR Kar. R. 158 (DB)). The Division on Bench of Court by the judgment and order dated 9-6-2006 allowed the said appeal and set aside the judgment and order of conviction and sentence passed by the Trial Court against the appellant-accused and case was remitted to the Trial Court for fresh disposal according to law, bearing in mind the observations made in the said judgment. After remand of the matter, the Trial Court has given an opportunity to the accused cross-examine the prosecution witnesses; the prosecution has relied upon the evidence of P.Ws. 1 to 23 and the documents-Exs. P. 1 to P. 28 and M.Os. 1 to 11. On the side of the defence one witness was examined as D.W. 1 and no documents were produced. After hearing the arguments of both the sides the Trial Court passed the judgment and order of conviction, convicting the accused for the offences punishable under Sections 307 and 302 of IPC, against which the present appeal is preferred.
5. The appellant is a party-in-person ; though we have informed the appellant-accused that he is having the right to engage the Counsel of his choice and if he desires, the legal assistance will be given to him by engaging the Counsel through the Legal Service Authority, for which the appellant-accused not agreed and he prayed for permission to argue the matter personally. As the appellant-accused is a party-in-person, and in order to have effective representation on his behalf, we appointed Sri N.S. Sampangi Ramaiah as Amicus Curiae to assist the Court so also to represent the appellant-accused while hearing the arguments. We heard the arguments of the appellant-accused, and the learned Amicus Curiae as well as the arguments of the learned State Public Prosecutor for the respondent-Stare.
6. The appellant-accused submitted before us that he has prepared the written arguments and he may be permitted to read the same. Accordingly, he was permitted and he read the entire writ Jen arguments consisting of 47 pages so also the additional written arguments consisting of four pages. After reading over the written arguments the appellant-accused made submission that he is innocent and he has not committed the alleged offences. However, the Trial Court has, without appreciating the materials in a proper perspective, has wrongly convicted him and hence, his appeal be allowed and he may be acquitted of the charges levelled against him.
7. Learned Amicus Curiae Sri N.S. Sampangi Ramaiah has taken us through the entire material on record and made submission that looking to the material on record, the prosecution has not proved the alleged offences. So far as Ex. P. 9-the alleged dying declaration of the deceased is concerned, it is his submission that the evidence of the complainant-Kaviraj (P.W. 1), Dr. H.K. Govindaswamy (P.W. 13), the evidence of the Investigating Officer (P.W. 17) and also the document-Ex. P. 9, shows that the deceased had not at all given such a statement before the police when he was under treatment in Chethana Nursing Home at Chikmagalur. It has come on record that he was treated as an out patient and as his condition was critical, immediately, he was shifted to another hospital for higher treatment. Hence, he submitted that the contention of the prosecution that the deceased gave such a statement while he was under treatment at Chethana Nursing Home cannot be accepted at all. With regard to Ex. P. 9, learned Amicus Curiae submitted that the doctor has not certified that the injured was in a fit state of mind to give the statement. In the absence of such certification, the document-Ex. P. 9 cannot be said to be the dying declaration of the deceased. With regard to the seizure of gun (M.O. 7), he submitted that there is no acceptable evidence on record to show that the accused was travelling in the Contessa Car of Nagesh (P.W. 4) along with another person towards Mysuru ; that Holenarasipura Police intercepted the car and brought back the accused along with the car of P.W. 4 and also the gun (M.O. 7) and produced before P.W. 16. It is a false story created by the prosecution. Though it is the evidence of the police of Holenarasipura Police Station that they intercepted the car of P.W. 4 nearby the petrol bunk, no mahazar was drawn by them at the said place. The evidence of Nagesh (P.W. 4) clearly shows that he did not see as to whether the accused had any article with him. Hence, it is the contention of the learned Amicus Curiae that in view of all these materials, it cannot be said that Holenarasipura Police intercepted the car in which the accused was said to have been travelling and P.W. 16 went to Holenarasipura Police Station and seized the gun and taken the accused into his custody.
Learned Amicus Curiae further submitted that FSL report goes to show that the bloodstains on the clothes of the deceased and the sample mud are of ''B'' blood group whereas the document case sheet (Ex. P. 29) of St. John''s Medical Hospital, Bengaluru goes to show the blood group of the deceased as ''O'' origin. Hence, this also creates a doubt in the mind of the Court as to whether the clothes said to have been seized were really belonging to the deceased or not. He further submitted that looking to the evidence of Smt. Susheelamma (P.W. 5) who is the mother of the deceased, though she claims that she is the eye-witness to the incident, in the cross-examination, she has stated that she came out of the house after hearing the sound and therefore, she cannot be said to be the eye-witness to the incident ; the prosecution has not placed the worth believable material to prove the charges against the accused person ; the Trial Court has wrongly read the evidence and has wrongly convicted the accused for the said offences; hence, the appellant-accused is entitled for acquittal from both the charges. Alternatively, the learned Amicus Curiae made submission that in case if this Court comes to the conclusion that the appellant-accused has committed the said offences, then the sentence imposed by the Trial Court is to be modified as the sentence of imprisonment till his death as observed in its order is very harsh and disproportionate.
8. Per contra, learned SPP appearing for the respondent-State submitted that the case of prosecution is not only based on the dying declaration (Ex. P. 9) of the deceased, but there are also eye-witnesses to the incident; so far as the offence under Section 307 of IPC is concerned, the appellant-accused made first attempt by firing the gun at his father (P.W. 2) and the father avoided hitting of the bullet; there is evidence of the eye witnesses to that effect. While referring to the document-Ex. P. 9, the learned SPP admitted that in Ex. P. 9, there is no reference of such an attempt on the father (P. W.2), but the injured, while giving the statement, has concentrated only on the injuries caused on him and he has not mentioned about the attempt on his father; when there are other materials available on record, the ground that the accused attempted to murder P.W. 2 is not mentioned in Ex. P. 9, is not the basis to disbelieve the charge for the offence under Section 307 of IPC. Learned SPP further submitted that the Head Constable of Chikmagalur Rural Police Station who recorded the statement (Ex. P. 9) of the injured has been examined before the Trial Court as P.W. 15. He has clearly deposed in his evidence that in between 4.00 p.m. and 4.30 p.m. on 10-4-1998, he recorded the statement of the injured Surendra at Chethana Nursing Home and on the basis of the same, he registered the case. It is also the further submission that though the witness-Dr. H.K. Govindaswamy (P.W. 13) has not at all deposed about the injured giving such statement in Chethana Nursing Home at Chikmagalur, that itself is not a ground to disbelieve the case of prosecution regarding the dying declaration (Ex. P. 9). P.W. 13-Dr. H.K. Govindaswamy, the consulting surgeon and P.W. 21-Dr. Rajashekar who was present while recording the statement of the injured have clearly deposed about the Head Constable coming to the Hospital and recording the statement of the injured in his presence. So far as the certification by the doctor about the mental condition of the deceased is concerned, learned SPP submitted that even if no such certification is available, only on that basis, the dying declaration cannot be disbelieved if otherwise it is acceptable. The learned SPP also made the submission that the plea of the accused is alibi, but the same has not been established with satisfactory material. In the statement of the accused under Section 313 of Cr.P.C., at tone stretch, he states that his brother Surendra is not at all dead and he does not know whether he is alive or not and at another stretch, he mentions that the police did not take him even to the funeral of his brother. During the course of cross-examination of prosecution witnesses, no suggestion was made by the accused about his plea of alibi. The seizure of gun (M.O. 7) from the possession of the accused is also clearly established by the evidence of P.W. 16. Even the FSL report fully supports the case of prosecution regarding the use of gun (M.O. 7) and discharge of the bullets from the barrels of the said gun. There may be minor discrepancies in the evidence of prosecution witnesses, but the entire materials if appreciated together clearly make out a case about the involvement of the accused. The Trial Court has rightly appreciated the entire materials on record and has rightly convicted the accused. With regard to the sentence imposed on the accused, the learned SPP made submission that the Trial Court has observed that if the accused is not imposed such punishment, he may involve in committing such offences against his family members. Hence, he submitted that there is no merit in the appeal and the same may be dismissed.
9. Before coming to the merits of the case, let us refer to the version of each of the prosecution witnesses in brief, which will be useful for appreciating the case.
P.W. 1 is the PSI, who was working at Koramangala Police Station speaks that on 18-4-1998 he received the death report under Ex. P. 3 from Dr. Roopa, St. John''s Medical College Hospital, Bengaluru, and on the basis of said death intimation he registered the case in UDR No. 37 of 1998 under Section 174 of Cr.P.C. as per Ex. P. 2 and conducted the inquest mahazar over the dead body of the deceased as per Ex. P. 1.
P.W. 2 is the owner of the Coffee Estate, who is the father of the deceased and appellant, has deposed in his evidence that accused raised objection for construction of new coolie lane; accused purchased one gun M.O. 7 about 4 years back; he claims that he is the eye-witness to the incident and also present when the spot mahazar-Ex. P. 4 was conducted; he identified M.Os. 1 to 7.
P.W. 3 is said to be the eye-witness to the incident, who is a worker in the estate of P.W. 2. He has supported the case of the prosecution that he has personally witnessed the incident.
Nagesh (P.W. 4) deposed that he was going to Mysuru in his Contessa car, accused on the way boarded the said car, then Police stopped the car at Holenarasipura Town and asked who is Satish and arrested the accused.
P.W. 5 is the mother of the deceased, she deposed that she is the eyewitness to the incident, she has seen the accused firing with the gun firstly at her husband which was missed and then fired on the deceased.
P.W. 6 is the nephew of P.W. 2; he has deposed that he enquired with the deceased, who told him that accused fired at him and deceased requested P.W. 6 to save him.
P.W. 7 is also nephew of P.W. 2; he speaks that he along with Dr. Vinay (C.W. 12) shifted the injured to Bengaluru for higher treatment and when he asked the injured, he told him that he was shot by accused.
P.W. 8 is the panch witness to spot mahazar, who deposed about seizure of M.Os. 1 to 4 from the spot.
P.W. 9 is the panch witness for seizure of gun (M.O. 7) under Ex. P. 5 and also the seizure of M.O. 8-Live Cartridge.
P.W. 10 is the panch witness to inquest mahazar-Ex. P. 1.
P.W. 11 is the brother of the accused, he is not the eye-witness to the incident, but he has deposed that his mother told him about the incident. He has further deposed that when he enquired the deceased in the Hospital at Bengaluru, the deceased told him that accused firstly fired at his father but it was missed and then, fired at him.
P.W. 12 is the P.W.D. Engineer, who deposed that he prepared the sketch of scene of occurrence as per Ex. P. 6.
P.W. 13 is the Doctor at Chethana Nursing Home, Chikmagalur, who ; deposed that he issued intimation letter to the Police as per Ex. P. 7 and wound description letter as per Ex. P. 8.
P.W. 14 is the Police Constable at Rural Police Station, Chikmagalur, who carried the gun (M.O. 7) and other articles to FSL Bangalore on 14-5-1998.
P.W. 15 is the Head Constable of Chikmagalur Rural Police Station, who deposed that on the basis of the information received, he went to Chethana Nursing Home and recorded the statement of deceased between 4.00 p.m. and 4.30 p.m. on 10-4-1998 at Chethana Nursing Home as per Ex. P. 9 and on the basis of the same, registered the case in Crime No. 119 of 1998 for the offences under Section 307 of IPC and Sections 3 and 25 of the Arms Act.
P.W. 16 is the PSI at Chikmagalur Rural Police Station, who has deposed that he seized gun (M.O. 7) and live cartridge (M.O. 8) from the accused at Holenarasipura under seizure mahazar-Ex. P. 5. He has recorded the statements of Umesh and Nagesh and drawn the spot mahazar under Ex. P. 4 and seized M.Os. 1 to 6 at the spot; P.W. 2 shown the spot to him; he has received UDR case papers and M.O. 9 from Koramangala Police Station, Bengaluru.
P.W. 17 is the Investigating Officer, who completed the investigation and filed the charge-sheet against the accused.
P.W. 18 has deposed that he brought and produced the case sheet and x-ray films-Exs. P. 18 to P. 22.
P.W. 19 has deposed that he obtained Ex. P. 14 report from ballistic experts.
P.W. 20 has deposed that he issued the sanction order Ex. P. 13 for prosecution of the accused.
P.W. 21 is the Doctor at Chethana Nursing Home, who deposed that on 10-4-1998 one injured by name Surendra was brought to the said nursing home and Police have recorded the statement of the injured as per Ex. P. 9, and he was also present and signed the Ex. P. 9.
P.W. 22 is the PSI in Holenarsipura Police Station, who deposed that he took the Contessa car and the accused to the Police Station and then informed P.W. 16, who came and seized the gun under Ex. P. 5.
P.W. 23 is the Doctor, who conducted the post-mortem examination over the dead body of the deceased and issued post-mortem report as per Ex. P. 24.
D.W. 1, who has been examined on the side of the defence, deposed that about 10-12 years back when he came to Chikmagalur Taluk Office along with one K.T. Prakash, the Police obtained the signature of K.T. Prakash to the mahazar-Ex. P. 5.
10. We have perused oral and documentary evidence produced by the prosecution, evidence of D.W. 1-the judgment and order of conviction passed by the Trial Court, written arguments submitted by the appellant-accused (party-in-person), so also considered the arguments advanced by the learned Amicus Curiae for appellant and the learned SPP appearing for the State.
11. The prosecution in support of its case has relied upon Ex. P. 9 said to be the dying declaration of Surendra (deceased), the evidence of eye-witnesses and the oral evidence of other witnesses, recovery of the gun (M.O. 7) and live cartridge (M.O. 8) as well as the medical evidence.
12. Let us examine the document dying declaration (Ex. P. 9) to know as to whether the prosecution was able to prove that it was the statement given by the deceased before his death and it amounts to dying declaration.
About the contents of Ex. P. 9, we have already narrated in detail while describing the case of prosecution in the beginning of the judgment.
In the endorsement dated 10-4-1998 at the end of the document-Ex. P. 9, there is a mention by the police that on 10-4-1998 when P.W. 15 was in the Police Station at 3.45 p.m., he received the MLC intimation from the hospital and in between 4.00 p.m. and 4.30 p.m., he recorded the statement of the said person in the hospital and came back to the police station at 4.45 p.m. and registered a case in Crime No. 119 of 1998 of Chickmagalur Police Station for the offence punishable under Section 307 of IPC read with Sections 3 and 25 of the Arms Act.
The Head Constable who said to have recorded the statement examined before the Trial Court as P.W. 15, in his evidence also deposed that, on 10-4-1998, he received information from Chethana Nursing Home at 3.45 p.m. to the effect that one Surendra was under treatment for the gunshot injuries. He went to the hospital at 4.00 p.m. and found one Surendra under treatment in the said hospital. There were bleeding injuries on his stomach, legs, thigh and hands. The doctor said that injured was in a fit condition to give statement and that he may record the same. He recorded the statement of the injured from 4.00 p.m. to 4.30 p.m. in the presence of the doctor. The injured Surendra also put his signature on the statement. He further deposed that injured gave statement with regard to property dispute and construction of coolie lane and for that his brother Sathisha had shot at him. The doctor has also signed the statement and he came back to Chickmaglur Police Station and registered a case in Crime No. 119 of 1998 for the offence under Section 307 of IPC read with Sections 3 and 25 of Arms Act and issued FIR as per Ex. P. 10.
In the cross-examination, P.W. 15 has deposed that when he visited the hospital, the victim was conscious and was in good condition to talk. His clothes were removed. There was profuse bleeding on his right thigh, stomach, abdomen and right hand, etc. P.W. 15 recorded the statement till 4.30 p.m. He identified the signature of the injured Surendra and the signature of the doctor who was present at that time. He has denied the suggestion that he did not visit the hospital and did not record the statement of the victim and Ex. P. 9 was created for the purpose of this case in the police station.
We have also perused the FIR (Ex. P. 10). The endorsement on the FIR by the concerned Magistrate is to the effect that it was received on 10-4-1998 at 10.30 p.m. at the residence through P.C. No. 244 of Chikmagalur Rural Police Station.
Dr. Rajashekar (P.W. 21) has deposed in his evidence that on 10-4-1998, one patient by name Surendra brought to Chethana Nursing Home, with the history of gunshot injuries. Himself, Dr. Govindaswamy (P.W. 13) and Dr. K.G. Srinivas examined the patient and they opined that the patient must be taken to the higher centre. While the patient was in the hospital, the police came there and recorded statement of the injured Surendra. He was present, when police were recording the statement and he identified the statement as per Ex. P. 9 and his signature as per Ex. P. 9(c).
In the cross-examination, P.W. 21 has admitted that it is true that on Ex. P. 9, he has not written about the physical and mental condition of the patient while recording the statement. He has further deposed that on Ex. P. 9, there is no endorsement by him or by the attending doctor about the condition of the patient to give statement. He has denied the suggestion that he signed Ex. P. 9 in the police station and not in the hospital.
H.N. Sridhar (P.W. 6) who is the nephew of Krishnegowda (P.W. 2) has deposed in his evidence that on 10-4-1998, at about 1.00 p.m. he was in his house and talking to one Hoovaiah (C.W. 10), who was the worker in his land and he sent him. Within five minutes, C.W. 10 returned and told him that he heard the sound of firing bullet twice nearby the house of Krishnegowda (P.W. 2). Then he took his jeep immediately and went to the house of P.W. 2 along with C.W. 10; Surendra (deceased) had fallen down nearby Tulasikatte of the house of P.W. 2 sustaining the bleeding injuries; he enquired him as to what had happened; then the injured said that his brother Satish fired at him. Then himself, Krishnegowda (P.W. 2) and Hoovaiah (C.W.10) brought him in his jeep to Chethana Nursing Home.
In the cross-examination, P.W. 6 has deposed that he reached the spot after hearing through Hoovaiah (C.W. 10) about the gunshot; he saw that the victim had fallen on the ground with bleeding injuries. He has also deposed that when he talked to the injured, he was conscious but he had lost his sense at his leg; when the victim was admitted at Chethana Nursing Home, he was treated by the doctor. He denied the suggestion that he is deposing falsely at the instance of the police.
Rajith (P.W. 7) is also the nephew of Krishnegowda (P.W. 2). He has deposed in his evidence that on 10-4-1998, he had come to Chikmagalur; in the town, he was told by one of the persons with whom he was acquainted that the deceased Surendra had been fired at by his brother Satish and that he has been admitted to Chethana Nursing Home; he went to Chethana Nursing home and found that Surendra had sustained the bleeding injuries. The doctor opined that the injured must be taken to Bengaluru for higher treatment; himself and Dr. Vinay (C.W. 12) took the injured in the ambulance to Bengaluru; they went to Manipal Hospital, Bengaluru and they were told that there was no bed in ICU; they took him to St. John''s Hospital and got admitted; he was there for six days; the injured was having capacity to talk till the evening of 16-4-1998 and he died on 17-4-1998.
In the cross-examination, P.W. 7 has deposed that P.W. 6 told him that the victim was shot by the accused; he asked the victim and he too told him that he was shot by the accused. He denied the suggestion that immediately after the incident, the victim had lost his consciousness and that he had no consciousness while he was admitted to the hospital and when he was in the hospital.
H.K. Suresh Raj (P.W. 11) who is also the brother of the deceased as well as the appellant-accused, has deposed in his evidence that Krishnegowda (P.W. 2) is his father and the accused is his elder brother. Surendra (deceased) is his younger brother; on 10-4-1998, he had been to Bengaluru; he returned on the same day at about 11.00 p.m. to Chikmagalur; then his mother told him that the accused had fired at his younger brother Surendra; he was also told that Surendra was first admitted to Chethana Nursing Home and since the treatment was not possible at the said hospital, he was taken to St. John''s Hospital, Bengaluru; police came there in the morning of 11-4-1998; he went to Bengaluru to see his brother on 11-4-1998; on enquiry, his brother Surendra told him that at 1.00 p.m., the accused fired at their father and then at him, and that he could not avoid the hit.
13. Therefore, looking to these materials on record more particularly, the evidence of Dr. Rajashekar (P.W. 21), who has clearly deposed that the statement of the injured was recorded by the Police in Chethana Nursing Home at Chikmagalur and he was also present at the time of recording the statement of the injured and he has identified his signature on Ex. P. 9 as per P. 9(c). Even during the course of cross-examination nothing has been elicited from his mouth so as to disbelieve his evidence about his presence at the time of recording the statement under Ex. P. 9. But, it is no doubt true, he has admitted that he has not mentioned about the physical or mental condition of the patient while recording the statement. Because of this reason, the accused as well as the learned Amicus Curiae contended that there is no certification from the doctor regarding the mental condition of the injured and hence, the statement cannot be believed as a dying, declaration of the injured.
14. We are conscious of the legal position about the dying declaration that it is the statement not given on oath by the declarant and the person giving the statement was not subjected to cross-examination and if the dying declaration is satisfactorily proved, it can be the sole basis for conviction of an accused person without seeking corroboration from the other materials. Therefore, the Court has to examine about the quality of the evidence and whether it is trustworthy and acceptable to prove that the statement said to have been given by the injured is really amounting to dying declaration or not.
15. The prosecution has also examined Dr. H.K. Govindaswamy as P.W. 13, who was a Consulting Surgeon at Chethana Nursing Home Chikmagalur, who has deposed in his evidence that one H.K. Surendra, S/o. Krishnegowda was brought to their nursing home on 10-4-1998 at about 1.30 p.m. with a history of gunshot injuries; his condition was quite critical at that time, he gave preliminary treatment and then advised that he must be taken to a major hospital and he has sent an intimation to Chikmagalur Rural Police Station as per Ex. P. 7 and his signature is marked as per Ex. P. 7(a). He has also deposed that there were multiple gunshot marks on the abdomen and right thigh. But, in the cross-examination, he has deposed that by observing the wounds on the patient, he opined that the injuries were caused by gunshot and when the patient was admitted to the hospital he was suffering from profuse bleeding from the injuries; his mental condition was not fit to give the history of the case. Therefore, it is the contention of the defence that looking to the evidence of Dr. Govindaswamy (P.W. 13), who has already deposed in the cross-examination that the mental condition of the injured was not fit to give the history of the case, assumes importance. But it is not the case of the prosecution that while recording the statement under Ex. P. 9, Dr. Govindaswamy (P.W. 13) was also present. But on the other hand as per the evidence of Dr. Rajashekar (P.W. 21) he made it clear that when the injured was brought to Chethana Nursing Home, himself, Dr. Govindaswamy (P.W. 13) and Dr. K.G. Srinivas examined the patient and opined that the patient must be taken to higher centre. But Dr. Rajashekar (P.W. 21) has specifically deposed in his evidence that he was present when Police recorded the statement. Thus, it is clear that while recording the statement of the injured, Dr. Govindaswamy (P.W. 13) was not present. Therefore, when P.W. 21 has consistently deposed that the Police of Chikmagalur Police Station came to the hospital and recorded the statement of the injured in his presence, which evidence was not shaken in the cross-examination. Hence, only on the basis of the evidence of Dr. Govindaswamy (P.W. 13), who was not present while recording the statement of the injured, that injured was not in fit state to give the history of the case, the case of the prosecution regarding the dying declaration under Ex. P. 9 cannot be disbelieved.
Even the evidence of the Head Constable (P.W. 15) about whose evidence we have already made reference in detail also clearly shows that he went to Chethana Nursing Home and recorded the statement of the injured as per Ex. P. 9. It is no doubt true, regarding the writings under Ex. P. 9, the Head Constable (P.W. 15), has deposed at one stretch that the writings are in his handwriting and at another stretch he deposed that the writings are in the handwriting of his staff, but that itself is not a ground to disbelieve the statement-Ex. P. 9, this is why because, the date of recording the statement is 10-4-1998 and the evidence of P.W. 15 was recorded after the lapse of four years, therefore, he might not have recollected his memory correctly.
16. Apart from the evidence of P.Ws. 15 and 21, the evidence of P.Ws. 6, 7 and 11 also show that deceased Surendra made the oral dying declaration before all of them when they have asked the injured as to how the incident had taken place. Even in the cross-examination of these three witnesses i.e., P.Ws. 6, 7 and 11, the defence has not made out a case to disbelieve their version regarding the oral dying declaration said to have been made before them by the injured Surendra. Looking to the contents of Ex. P. 9 it is stated by the declarant that because of the property dispute the accused picked up quarrel and he fired at him with the gun and caused the gunshot injures. In this connection, let us refer to the evidence of P.Ws. 3 and 5, who are said to be the eye-witnesses to the incident as per the version of the prosecution. One Chandregowda (P.W. 3) has deposed in his evidence that he is working in the estate of Krishnegowda (P.W. 2) since six years; he knows all the family members of P.W. 2-Krishnegowda; about four years ago, he was keeping the bricks on the heads of the coolie to be taken to the place where the coolie lane was being constructed; at about 1.00 p.m., there was lunch break; some coolies went to have lunch; at that time the accused came from the bungalow and stood in the jagali and filled the gun with two cartridges; P.W. 2 was sitting in front of the Tulasi katte; the accused fired at his father (P.W. 2), but it missed the target; the deceased was standing by the side of Krishnegowda (P.W. 2), then the accused also fired at the deceased, then the bullet hit his upper portion of the right thigh, right hand and right portion of the abdomen; the deceased sustained bleeding injuries, then he fell down and the accused ran away through the hind side of the house along with the gun; P.W. 3 identified the gun-M.O. 7 and he also identified the pant and nikker worn by the deceased at the time of the incident, which are marked as M.Os. 5 and 6. In the cross-examination, he has deposed that on the date of incident they were constructing the coolie lanes, he cannot give the color of pant and shirt of the victim as he has forgotten. As soon as there was gunshot at the victim, he went to him to assist the injured while the injured was falling down, but the accused pointed the gun at him and thus, he left the victim and jumped to a ditch; the accused came out of the house armed with the gun. He denied the suggestion that he did not witness the incident and that no such incident as stated by him had taken place and he is deposing falsely. Therefore, looking to the evidence of P.W. 3, who is an independent witness, working in the estate of Krishnegowda (P.W. 2), has consistently deposed in his evidence that he has seen the accused firing at the deceased with the gun-M.O. 7 and caused the gunshot injuries. In the cross-examination absolutely nothing has been elicited by the defence to disbelieve the evidence of this independent eye-witness.
17. Coming to the evidence of Smt. Susheelamma (P.W. 5), who is the mother of the accused as well as the deceased, has also deposed in her evidence that on 10-4-1998 at about 1.00 p.m. she was in their garden house; her husband was sitting nearby and on Tulasikatte compound; she was keeping the plates for her husband and the children to take food, then she came out of the house; she saw the accused tooking DBBL Gun from his bedroom, coming out of the house and filling with two cartridges; that he fired at her husband but it missed the target, then he fired at her son Surendra and the shot hit on his right thigh, right abdomen and also on the right hand; he sustained bleeding injuries and his clothes became bloodstained and he fell down; accused went away along with the gun towards the left side of the house; the injured Surendra started screaming that the accused has hit him and he may be taken to the hospital, then her relative Sridhar Gowda came there in a jeep; Sridhar Gowda (C.W. 7), her husband and one Hoovaiah (C.W. 10) took the injured in the jeep. She identified the gun-M.O. 7 and also the pant and nikker of the injured as M.Os. 5 and 6.
In the cross-examination, P.W. 5 has deposed that there are 8 rooms in the house, if one stands in the middle hall, one can see the entire front view in the estate. When she heard the gunshot sound she was inside the middle hall of the house and behind the accused. After hearing the sound she did not do anything. Immediately, there was a second fire. She did not do anything after the first fire and before the second fire. There was no time for her to do anything to prevent the second fire. She has seen M.Os. 5 and 6. M.O. 5 is not that of her victim son, but M.O. 6 was belonging to him. She has further deposed that she has stated before the Police that at that time she was feeding children in the house and she heard two sounds of the gunshots that she came out of the house and saw Surendra Gowda falling to the ground. She has also stated in her statement that her husband and coolie Chandra were asking Surendra whether he has suffered injury. She further deposed that on enquiry she learnt that accused brought out the gun from his bedroom and shot at Surendra in connection with construction of wall near the coolie lane. She has also stated that when she asked about firing twice she learnt that first shot was at her husband and second was at her son Surendra and also learnt that after shooting Surendra, the accused has ran away. Looking to the evidence of P.W. 5, the mother of the deceased, it is no doubt true that during the course of cross-examination she deposed that after hearing the sound, she came out of the house and saw the incident. But she has made it clear in the cross-examination that if one stands in the middle of the hall one can see entire front view in the estate. Therefore, even if there are some minor discrepancies in the evidence of P.W. 5, that itself is not sufficient to disbelieve her version when it is supported by the evidence of P.W. 3, the independent witness, the evidence of P.Ws. 6, 7 and 11 so also the Head Constable and the doctor. We have also perused the sketch in respect of the house of Krishnegowda-P.W. 2 produced as per Ex. P. 6 prepared by the Assistant Engineer, P.W.D., Chikmagalur, so also the rough sketch (Ex. P. 25) prepared by the Police Officer. Looking to both the sketches under Exs. P. 6 and P. 25, it is clear that if a person stand s in the middle hall of the said house, the front portion of the entire area of the said house is clearly visible so also the place of occurrence.
18. Looking to the oral evidence of the above witnesses, it goes to show that the injured Surendra was in a position to talk after the incident till 16-4-1998. More particularly, the evidence of the Head Constable (P.W. 15) and Dr. Rajashekar (P.W. 21) made it very clear that when the injured was under the treatment in Chethana Nursing Home, P.W. 15 recorded the statement of the injured in the presence of the Doctor (P.W. 21). Even if there is no certification or endorsement by the doctor (P.W. 21) on the dying declaration (Ex. P. 9) regarding the condition of the injured that he was in a fit state of mind to give the statement, only on that basis the prosecution case regarding the dying declaration cannot be disbelieved. The important point for consideration is whether the evidence of the person who is said to have recorded the statement of the injured is worth believable or not. To ascertain the same the Court has to consider the entire materials placed on record homogeneously and to see as to what is cumulative effect of the same and it cannot be considered in isolation. Regarding the evidence of these witnesses, even with regard to the oral dying declaration also, we have referred to the evidence of P.Ws. 6, 7 and 11. In this connection, let us refer to the decisions of the Hon''ble Apex Court and the relevant paragraphs on this aspect which read as under (relevant portion) :
(i) Koli Chunilal Savji and Another v. State of Gujarat 2000 SCC (Cri.) 432.
"7. Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr. Keshwani, that in the absence of the doctor while recording the dying declaration, the said declaration loses its value and cannot be accepted. Mr. Keshwani in this connection relies upon the decision of this Court in the case of Maniram v. State of Madhya Pradesh, AIR 1994 SC 840. In the aforesaid case, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of aforesaid infirmity and interfered with the judgment of the High Court. But the aforesaid requirements are mere a rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. In Ravi Chander and Others v. State of Punjab, (1998) 9 SCC 303, this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubt ed. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur v. State of Punjab, (1994) 6 SCC 545, this Court has examined the same question and held :
"... As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the dying declaration itself but on the application, that would not render the dying declaration suspicious in any manner.""
(ii) Jai Prakash and Others v. State of Haryana 1999 (1) Cri. L.J. 837 (SC) :
"3. It was urged by the learned Counsel for the appellant that no reliance whatsoever should have been placed upon the said dying declaration as it was recorded on 7-10-1990; and even though Sushma survived till 11-10-1990, no further attempt was made to get her regular dying declaration recorded by a Magistrate. In our opinion, the submission made by the learned Counsel is misconceived. As Sushma was taken to the hospital with burns, the hospital authorities informed the police. The police after going there, recorded the statement of Sushma. It was then in the nature of a complaint and was later treated as a dying declaration because she died. Whether police could have recorded a regular dying declaration or not was a matter for cross-examination of the Investigating Officer. In absence of such cross-examination, it cannot have any bearing on the correctness or otherwise of the statement recorded on 7-10-1990. The said statement was sent to the police station at about 1.30 p.m. and the FIR was recorded at 3.30 p.m. A copy of the said FIR was received by the Magistrate on 8-10-1990 at about 10.00 a.m. Therefore, there is no scope for doubting genuineness of that statement in this case. We are emphasising this aspect because it was also contended by the learned Counsel that the dying declaration-Ex. PJ was not her statement at all. Only a vague suggestion was made to the Investigating Officer and to the Doctor that no statement at all was made by the deceased. This suggestion was denied by both of them. There is nothing on the basis of which it can be said that there is any substance in that suggestion.
4. It was next contended that no weight ought to have been given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the police officer was a dying declaration. As he recorded a complaint, it was not necessary for him to keep any doctor present or obtain any endorsement from him.
5. It was next submitted that when she was taken to the hospital at 7.30 a.m. she was not replying to the questions properly as deposed by the first doctor who had examined her. This submission has also no substance because thereafter she was given treatment and the evidence shows that thereafter she was in a fit condition to make a statement. It was not even suggested to the Police Officer that she was not able to speak clearly. No attempt was made in the cross-examination of the doctor to show that her condition had not improved between 7.30 a.m. and 1.30 p.m. and, therefore, this submission also deserves to be rejected.
6. It was next contended by the learned Counsel that the statement was not recorded in question and answer form and therefore no weight should be attached to it. It also deserves to be rejected as misconceived because a complaint is required to be recorded in question and answer form even though there is a possibility that later on it might be treated as a dying declaration. This dying declaration receives corroboration horn the site inspection report and also by the: application-Ex. PL referring to the compromise arrived at on the previous day."
(iii) Paras Yadav and Others v. State of Bihar 1999 SCC (Cri.) 104 :
"8. It has been contended by the learned Counsel for the appellants that the Investigating Officer has not bothered to record the dying declaration of the deceased nor the dying declaration is recorded by the Doctor. The Doctor is also not examined to establish that the deceased was conscious and in a fit condition to make the statement. It is true that there is negligence on the part of Investigating Officer. On occasions, such negligence or omission may give rise to reasonable doubt which would obviously go in favour of the accused. But, in the present case, the evidence of the prosecution witnesses clearly establishes beyond reasonable doubt that the deceased was conscious and he was removed to the hospital by bus. All the witnesses deposed that the deceased was in a fit state of health to make the statements on the date of incident. He expired only after more than 24 hours. No justifiable reason is pointed out to disbelieve the evidence of number of witnesses who rushed to the scene of offence at Ghogha Chowk. Their evidence does not suffer from any infirmity which would render the dying declarations as doubtful or unworthy of the evidence. In such a situation, the lapse on the part of the Investigating Officer (credence) should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. For this purpose, it would be worthwhile to quote the following observations of this Court from the case of Ram Bihari Yadav v. State of Bihar and Others, JT 1998 (3) SC 290 : (1998) 4 SCC 517:
"In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
9. In this view of the matter with regard to Paras Yadav, in our view, there is no reason to disbelieve the oral dying declaration as deposed by number of witnesses and as recorded in fardbeyan of deceased Sambhu Yadav. The fardbeyan was recorded by the Police Sub-Inspector on the scene of occurrence itself, within few minutes of the occurrence of the incident. Witnesses also rushed to the scene of offence after hearing hulla gulla. The medical evidence as deposed by P.W. 11 also corroborates the prosecution version. Hence, the Courts below have rightly convicted Paras Yadav for the offence punishable under Section 302 of IPC.
10. The next question would be with regard to the conviction of accused 2 and 3, that is Satan Yadav and Tulsi Sonar under Section 302 read with Section 34 of IPC. In our view the learned Counsel for the appellants rightly pointed out that the prosecution version with regard to the part played by accused 2 and 3 is inconsistent. Some witnesses deposed that the deceased informed that accused 2 and 3 surrounded him while other witnesses deposed that the deceased told that they gave fist blows or slaps while some witnesses state that the deceased told that Tulsi Sonar and Satan Yadav caught hold of the deceased. Considering, the aforesaid inconsistencies in the dying declaration as deposed by the witnesses with regard to the part played by accused 2 and 3, and as there is no direct evidence in our view, it cannot be said that prosecution has proved beyond reasonable doubt that accused 2 and 3 are guilty for the offence punishable under Section 302 read with Section 34 of IPC."
(iv) Vijay Singh v. State of Madhya Pradesh 2000 Cri. L.J. 650 (M.P.).
"13. Learned Counsel for the appellant urged that on the First Information Report there was no report of Doctor that the patient was fit to make a statement. Such report is never to be recorded on the First Information Report. It is not suggested to Faguram P.W. that the injured was not fit to make a statement. The Supreme Court has observed in case of Jai Prakash v. State of Haryana, reported in JT 1998 (2) SC 308 : 1999 Cri. L.J. 837 (SC)) that a First Information Report given by the deceased before his death need not bear any opinion of the doctor that the maker of the First Information Report was in a fit state of mind to make a statement. That can be established. The fact that he made a statement and police official recorded suggests his fit state of mind unless otherwise it is established and further that it makes no difference if such statement to police officer by the injured was not recorded in question answer from. The statement when recorded was only a complaint for which neither presence of the Doctor was required nor it was required to be in question answer form."
(v) P.V. Radhakrishna v. State of Karnataka (2003) 6 SCC 443 :
"15. It was observed by a Constitution Bench of this Court in Laxman v. State of Maharashtra, (2002) 6 SCC 710 that where the medical certificate indicated that the patient was conscious, it would not be correct to say that there was no certification as to the state of mind of the declarant Moreover, state of mind was proved by the testimony of the doctor who was present when the dying declaration was recorded. In the aforesaid background it cannot be said that there was any infirmity. Further if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such a dying declaration will not be invalid solely on the ground that it is not certified by the doctor as to the condition of the declarant to make the dying declaration. (See Rambai v. State of Chhattisgarh, (2002) 8 SCC 83)."
(vi) Laxman v. State of Maharashtra (2002) 6 SCC 710 :
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must he exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate end when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
.....
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab, (1999) 6 SCC 545 wherein the Magistrate in his evidence had ascertained that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of Andhra Pradesh, (1999) 7 SCC 695 to the effect that : "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opines that the injured was in a fit state of mind at the time of making a declaration" has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where after he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma and Others v. State of Andhra Pradesh, (1999) 7 SCC 695 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji and Another v. State of Gujarat, (1999) 9 SCC 562."
19. Considering the evidence of the prosecution witnesses, so also the legal position in the above referred decision, we are of the dear opinion that the prosecution has established that the deceased gave statement as per F.x. P. 9 before his death. The said factum is established by the prosecution with cogent, consistent and worth believable material. Therefore, the Trial Court is also justified in coming to the conclusion that the injured made his declaration before his death.
20. Considering the above materials, the case of the prosecution based on the dying declaration-Ex. P. 9, oral evidence of the eye-witnesses-P. Ws. 3 and 5 and other witnesses, whose evidence we have already referred, the sketch of the spot and the medical records, seizure of the gun and one live cartridge-M.Os. 7 and 8 respectively, so also the reports from the FSL under Exs. P. 15, P. 14 and P. 23, clearly satisfy the conscience of the Court that it is the accused, who fired with the gun-M.O. 7 at his younger brother Surendra (deceased) and thereby committed an offence punishable under Section 302 of IPC. It is no doubt true, perusing the evidence of P.Ws. 3 and 5, who are said to be the eye-witness to the incident, immediately they have not went to rescue of the deceased Surendra after the first firing, but Chandregowda (P.W. 3) the independent eye-witness has made it clear in his evidence during the course of cross-examination that he tried to go to rescue of the injured Surendra before he fell down on the ground, but the accused showing the gun threatened him and for that reason he did not go to rescue the injured. It is no doubt true, so far as Susheelamma (P.W. 5) is concerned, she has admitted in her evidence that after hearing the sound she did not do anything and further deposed that immediately there was second fire she did not do anything after first fire and before the second fire and there was no time for her to do anything to prevent the second fire. Even if, she has admitted in the cross-examination that she did not do anything after the first fire, only on that basis her evidence cannot be disbelieved. After seeing the incidents the eye-witnesses may react in their own way.
In this regard, we are referring to the following decisions of the Hon''ble Apex Court and the relevant paragraphs in the said decisions read as under :
(i) Leela Ram (dead) through Duli Chand v. State of Haryana and Another (1999) 9 SCC 525.
"16. It is the above evidence which has prompted the High Court to ask the learned Advocate appearing for the prosecution "to caricature any position in which a man can strike such an injury with a.12 bore gun.....". Whether there was one shot or two shots, can it not be termed to be immaterial in the matter of assessing the culpability of the accused ? The son who saw his father has been shot at and thereafter fell dead - total stunning effect on the son and it is on this score that mere hair-splitting on the available evidence ought not to be undertaken and instead the totality of the situation ought to have been reviewed. The empty cartridges were found and the Ballistic Expert''s report that the cartridges match with the injury. The High Court ascribes this to be an immaterial piece of evidence. We, however, do not think so. Ballistic Expert''s evidence cannot be brushed aside since that is in the normal course of events, a valuable material vis-a-vis the use of the gun and the injury. The High Court went on to record the contradiction from the medical evidence but unfortunately the same does not find support from the evidence on record. Dr. A.S. Chaudhary having done the post-mortem examination on the deceased Maman, has stated in his evidence that : "injuries 2, 4 and 5 are the exit wounds. Injuries 1 and 3 are the entry wounds". Dr. Chaudhary further said that "Injury 1 is an entry wound of point blank range". The doctor has been subjected to cross-examination and he at the end of it ail said that : "it can be said that the injuries on the person of the deceased were the result of one shot". It is on this count, the High Court recorded that Dr. Chaudhary "had also to agree to this position". Needless to say that the Doctor probably has not been able to match the cross-examining Lawyer and there was thus an unequal duel between the medical man and a refined Lawyer. Can it be said : that by reason of the evidence of Dr. Chaudhary the contradictions are galore in nature, so far as the evidence of Leela Ram is concerned - the High Court upon consideration of the factum of such a contradiction answers the same on a positive note. This however, is not acceptable to this Court the discrepancy does not seem to be of such a nature so as to effect the creditworthiness or the trustworthiness of the witness. As a matter of fact it does not do so by reason of the fact that Maman fell a victim of gunshot injuries and died: it is immaterial as to whether one or two gunshots were fired - the contradiction at its highest cannot but be stated to be in regard to a minor incident and does not travel to the root of the nature of the offence. The other piece of evidence is that the Sarpanch and the members of the village panchayat saw the accused running away towards the village Aharwan just after firing with his gun."
(emphasis supplied)
(ii) State of Karnataka v. K. Yarappa Reddy 2000 SCC (Cri.) 61. :
"19. But can the above finding (that the Station House Diary is not genuine) have any inevitable bearing on the other evidence in this case ? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinised independently of the impact of it. Otherwise criminal trial will plummet to that level of the Investigating Officers ruling the roost. The Court must have predominance and preeminence in criminal trials over the action taken by Investigating Officers. Criminal justice should not be made a casuality for the wrongs committed by the Investigating Officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit Investigating Officer''s suspicious role in the case."
21. Case of the prosecution is that the appellant-accused has caused the gunshot injuries on the deceased Surendra by firing at him with the gun (M.O. 7). Let us examine the available material in this regard.
Ex. P. 8 is the wound certificate issued by Dr. H.K. Govindaswamy (P.W. 13) who was serving in Chethana Nursing Home, Chikmagalur issued to the Circle Inspector of Police, Chikmagalur Rural Circle. Perusal of this document goes to show that there were about 20-30 gunshot injuries on the abdomen portion and also on the right thigh of the injured. They might have been caused 1-3 hours prior to the treatment and the said injuries have been caused by the gunshot and some of the injuries are grievous in nature.
Ex. P. 24 is the post-mortem report. The doctor who conducted post-mortem examination gave the opinion that death is due to shock as a result of peritonitic consequent upon gunshot injuries sustained. The doctor who has been examined as P.W. 23 has also deposed in his oral evidence about the injuries noticed on the dead body, so also he deposed about the cause of death i.e., as mentioned in the post-mortem report.
Ex. P. 26 is the extract/copy of the medico legal register wherein in the column "history of accidental injuries", it is mentioned H/o. alleged gunshot injuries when patient was shot by his elder brother around 1.00 p.m. on 10-4-1998 near Ayathi Chikmagalur.
Ex. P. 27 is the copy of the MLC death intimation issued by St. John''s Medical College Hospital, Bengaluru, dated 17-4-1998 wherein it is mentioned that Mr. Surendra H.K, aged about 32 years said to be normally residing at the below mentioned address has come/has been brought to the casualty of the said hospital with history'' of gunshot injury on 10-4-1998.
Ex. P. 28 is the copy of the MLC intimation of St. John''s Medical College Hospital, Bengaluru, wherein it is mentioned about the alleged gunshot injury on 10-4-1998. Ex. P. 29 is the case sheet maintained in St. John''s Medical College Hospital, Bengaluru, in respect of Surendra (deceased). In the said document also, it is mentioned that Surendra was having the gunshot injuries.
Ex. P. 1 is the inquest mahazar. Perusal of columns XI, XII and XIII would clearly goes to show that at the earliest point of time itself, it was mentioned that because of the property dispute, the elder brother of the deceased fired with the DBBL gun at the deceased on 10-4-1998 and caused the gunshot injuries and the injured was admitted to St. John''s Medical College Hospital, Bengaluru, and expired on 17-4 1998 at 9.15 p.m.
Exs. P. 14 and P. 23 are the certificates of fire arm examination. In Ex. P. H in the opinion column, it is mentioned that the DBBL gun in Article 4 bears signs of discharge. The wad pieces and lead pellets in Article 6 and lead pellets in Article 8 could have been fired through the DBBL gun in Article 4. It is also mentioned that the holes found on the pant and kacha in Articles 6 and 8 have been caused due to the passage of lead pellets which could have been fired from the DBBL, gun in Article 4.
Ex. P. 23 is the document showing the method of examination and reasons for the opinion furnished in Cr. No. 119 of 1998 of Chikamgaluru Rural Police Station vide fire arms examination Certificate No. FAS 59/1998. The detailed reasons are mentioned in Ex. P. 23 wherein it is also mentioned that the holes mentioned in the pant and kacha are caused due to passage of lead projectiles. The doctor who examined (M.O. 7) i.e., the ballistic expert has also been examined before the Court as P.W. 19. In his oral evidence also, he has deposed in detail about the examination of the gun-M.O. 7 and furnished his opinion as per the document-Exs. P. 14 and P. 23. In the cross-examination, nothing has been elicited from his mouth so as to disbelieve his version about the contents of the certificates-Exs. P. 14 and P. 23.
22. We have also perused the document-Ex. P. 17, it is the letter dated 6-7-1998 addressed from the office of the Police Commissioner, Mysore City, to Circle Inspector of Police, Chikmagalur Rural Police Station, wherein it is stated that for the self-protection of H.K. Satish they sanctioned one revolver and one 12 bore DDBL gun to H.K. Satish i.e., the accused. Another document-Ex. P. 13 relates to the proceedings issued from the office of the Deputy Commissioner, Chikmagalur, dated 27-6-1998. Perusing the same, it is the sanction order under the provisions of the Arms Act, wherein it is mentioned that accused Satish was sanctioned with the gun to be used in the jurisdiction of Mysore District and he took the said gun to Chikmagalur jurisdiction and allegedly fired at Surendra, the brother of the accused, with the said gun.
23. Apart from these documents even the oral evidence of the prosecution witnesses also clearly goes to show that the deceased Surendra sustained gunshot injuries. Insofar as the seizure of pant and kacha (M.Os. 5 and 6) is concerned, it is the contention of the defence that there is no satisfactory evidence on record as to whether the articles-M.Os. 5 and 6 were seized at Chethana Nursing Home, Chikmagalur or in St. John''s Medical College Hospital, Bengaluru. As we have already observed above, there may be minor discrepancy about the same. The witnesses were examined before the Court after the lapse of four years after the incident. Therefore, the Court should not be too much hyper technical in considering those procedural aspects. The Court has to appreciate the materials to do substantial justice and not to deny the same on mere technicalities. In this connection, we are referring to the decision of the Hon''ble Supreme Court in State of Himachal Pradesh v. Lekh Raj and Another (2000) 1 SCC 247 and the relevant paragraphs in the said decision read as under :
"7. In support of the impugned judgment the learned Counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution''s case doubtful. The normal course of the human conduct would be that while-narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions, Parrot like statements are disfavoured by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala, (1974) 3 SCC 767, held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of Madhya Pradesh, 1981 SCC (Cri.) 676, this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki and Another, (1981) 2 SCC 752 held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.
10. The High Court appears to have adopted a technical approach in disposing of the appeal filed by the respondents. This Court in State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh, (1974) 3 SCC 227, held :
"A criminal trial is not like a fairy tale wherein one is free to give fight to one''s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt of innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal Jurisprudence cannot be considered to be a Utopian thought but have to be considered as part and parcel of the human civilisation and the realities of life. The Courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind."
24. Considering these aspects of the matter, we are of the clear opinion that the deceased sustained gunshot injuries from the gun (M.O. 7).
25. With regard to the seizure of gun (M.O. 7) and the arrest of the appellant-accused, the prosecution has relied upon the evidence of Nagesh (P.W. 4), T. Nagesh Shetty (P.W. 16) and Umesh Sait (P.W. 22) so also the document-Ex. P. 5.
26. The prosecution case as per the dying declaration-Ex. P. 9 and the oral evidence of the eye-witnesses-P.Ws. 3 and 5 namely, Chandregowda and Susheelamma is that the accused after firing at Surendra, the deceased, ran away from the said place along with the gun.
27. Nagesh (P.W. 4) has deposed in his evidence that he is the native of Avathi-Hosahalli Village; he is having a contessa car; he know P.W. 2-Krishnegowda and his sons; about three years ago, he had been to Chikmagalur in his car as he had some work at Chikmagalur and from there he had to go to Mysuru as one Ravi his relative is residing at Mysuru; accordingly, he and his younger brother left to Mysuru; at 4.00 p.m., accused H.K. Sathish met him near Pooja Talkies, Chikmagalur and said that he would also come to Mysuru; P.W. 4 did not see whether he had any articles with him; by about 7.00 p.m., they reached Holenarasipura Town; there the police stopped their car and enquired as to who was Sathish; he showed the accused who was with them; the police took away Satish; he then went to Mysuru; he does not know about the accused possessing any article and the police taking it from him. In the cross-examination he deposed that his car was bearing No. KA-18- J046 or 1648; eh was not arrested by the police; his car was also not seized by the police; they arrested accused only; he cannot mention the place at which, his car was intercepted by the police; when the accused was arrested it was about 7.30 p.m.; he did not observe the materials possessed by the accused at the time he was arrested; he denied the suggestion that on that day he was not t king the accused in his car; that the accused was not arrested by the polio - at Holenarasipura and that he is deposing falsely.
Umesh Shet (P.W. 22), Police Inspector has deposed in his evidence that he was working as PSI at Holenarasipu a Rural Police Station; on 11-4-1998 when he was SHO at about 5.30 p.m. he received a wireless message to the effect that one Sathish after firing at a person was going in a sky blue coloured contessa car with registration No. KA 77 18/M-1648; it was also stated that he was having a gun with him and is travelling from Chikmagalur towards Hassan and if found he must be detained; at about 7.00 p.m. while he was on rounds, he saw a sky blue coloured contessa car going from Holenarasipura towards Mysuru; when the car came nearby, it suddenly turned towards left side of the petrol bunk; he went nearby the car and saw the registration number; it has tallied with the number given in the wireless message; he asked the person in the car about his name; he came to know his name as Sathish; he also questioned him as to where is the gun for which he replied that it is inside the car; he produced the gun from the rear seat and it was a DBBL gun; he then took the car, (he said person and the gun to the police station and made him to sit in the police station and informed the control room so also, to Chikmagalur Pol ice Station about the same; by about 12.30-12.40 p.m. one Nagesh Shetty (P.W. 16) ASI of Chikmagalur Rural PS, one HC and one PC and panch witnesses namely, Prakash, Krishriewgowda came there; he informed about the incident to them; he handed over the gun to Nagesh Shetty (P.W. 16); Nagesh Shetty drew up a mahazar and seized the car and the gun under the mahazar-Ex. P. 5; his signature is as per Ex. P. 5(c); he identified the gun as M.O. 7; while drawing up the mahazar, the gun was opened and there was a live cartridge in it; same is marked as M.O. 8. In the cross-examination he has deposed that accused pointed out the gun inside the car and thus he took the car with the accused and the weapon to the police station; he did not draw mahazar at the spot where he found the car; he did not seize the gun immediately and did not draw the mahazar, but brought them to the police station; the persons in t Ire petrol bunk saw the car, gun and the accused at the spot; he did not record the statement of those persons in the petrol bunk.
T. Nagesh Shetty (P.W. 16), Police Inspector, Chikmagalur Rural Police Station has deposed in his evidence that on 10-4-1998 at about 5.30 p.m. he took up further investigation in Crime No. 119 of 1998 from P.W. 15; he went to Chetana Nursing Home and came to know that injured was shifted to Bangalore hospital; at about 7.00 p.m. he got the information that the accused Sathish had gone in contessa car bearing registration No. KA-18/M-1648 towards Mysuru; he sent a message to Superintendents of Police of Hassan District and Mysuru, District regarding the same; at 8.00 p.m. he received the wireless message from PSI, Holenarasipura Police Station that he secured contessa car, Sathish (accused) and two others and also a double barrel gun; then he along with his staff and two witnesses by name K.T. Prakash (P.W. 9) and Krishnegowda (C.W. 17) went to Holenarasipura Rural Police Station at 1.00 a.m. on 11-4-1998; he found the accused Sathish and two others namely, Umesh and Nagesh in the police station and in the presence of panch witnesses he drew up mahazar-Ex. P. Sand seized the DBBL gun and one live Cartridge, which are marked as per M.Os. 7 and 8. In the cross-examination he has deposed that on 10-4-1998 he took P.W. 9-Prakash and Krishnegowda with him while going to Holenarasipura to act as panchas; on 11-4-1998 at about 6.00 a.m. he came back and reached Chikmagalur with the accused and the gun with live cartridge; he denied the suggestion that he seized the gun M.O. 7 from the house of P.W. 2-Krishnegowda; he also denied the suggestion that on 11-4-1998 at about 9.00 a.m. itself the accused surrendered before him in Chikmagalur Rural Police Station.
K.T. Prakash (P.W. 9) who is the panch witness to Ex. P. 5-mahazar for seizure of gun-M.O. 7 and live cartridge-M.O. 8 has deposed in his evidence that he knows Kirshnegowda (P.W. 2), so also the accused; about four years ago, he had been to Holenarasipura Police Station wherein a gun was seized by the police; police said that they had seized the gun of Sathish who is the accused in this case; they had also seized a cartridge; they wrote panchanama in this regard and he attested the same as per Ex. P. 5(a); it was a DBBL gun; the gun was similar to the one which is before the Court; he has also identified the live cartridge-M.O. 8. In the cross-examination he has deposed that on 10-4-1998 he had not gone to Holenarasipura; he signed the mahazar Ex. P. 5 in Chikmagalur Rural Police Station; he did not sign it in Holenarasipura Police Station; he did not see the gun in Holenarasipura Police Station; but saw it in Chikmagalur Rural Police Station; at this stage, this witness was treated as hostile as prayed for by the Public Prosecutor arid witness was cross-examined by the Public Prosecutor; he deposed that he has passed S.S.L.C.; he denied the suggestion that he signs all the documents after going through the contents; he denied the suggestion that contents of Ex. P. 5 were read over to him by Holenarasipura Rural Police and that he too went through the same and signed it.
28. We have also perused document-Ex P. 5-the mahazar which is dated 11-4-1998; this document also shows that M.O. 7-gun and M.O. 8-live-cartridge were seized from the accused under mahazar-Ex. P. 5; Ex. P. 5 also shows that it was drawn in Holenarasipura Rural Police Station in the presence of K.T. Prakash (P.W. 9) and one H.R. Krishnegowda (C.W. 17). It is no doubt true that there are minor discrepancies in the oral evidence of P.W. 4, P.W. 22, P.W. 16 and P.W. 9. It is also true that though P.W. 22 has deposed in his evidence that he saw the sky blue coloured contessa car nearby the petrol bunk at Holenarasipura and he has admitted that he has not drawn the mahazar at the said place, but he deposed that he took the car, the accused, P.W. 4 and his another friend to the police station at Holenarasipura. P.W. 22 has deposed that he handed over the car and the gun to P.W. 16 and P.W. 16 seized the gun and the car; but, the fact remains that the car was not seized. Only on the basis of this discrepancy, the evidence of the prosecution witnesses cannot be rejected in to. There may be some lapses on the part of the police officers investigating the crime, but the accused cannot take advantage of the same and seek his acquittal from the case, if otherwise, the material on record is acceptable. In this connection we refer to the decision of the Apex Court in the case of Dhanaj Singh alias Shera and Others v. State of Punjab AIR 2004 SC 1920 :
"4. In reply, learned Counsel for the State submitted that faulty investigation cannot be a ground to affect the credibility of the eye-witnesses. It is a fairly settled position in law that when witnesses are branded as partisan or inimical, their evidence has to be analysed with care and scrutiny. That has been done in the present case and both the Trial Court and the High Court have found the evidence to be credible. Even if the investigation was faulty, both the Trial Court and the High Court have acted only in the permissible way i.e. to weigh the evidence carefully and come to an independent conclusion. As rightly noted by the High Court, the investigation seems to be slipshod. The highly improbable stand that the complainant and his relatives killed the deceased who was their close relative can hardly be accepted even with a pinch of salt. Though the deceased and the complainant had criminal track records, that per se will not affect the evidence of witnesses if it is otherwise credible and cogent. Both the Trial Court and the High Court after analysing the evidence found it to be credible, cogent and trustworthy. The plea that the primary duty to investigate the evidence is that of the police and when the police has given a clean chit, that should prima facie be accepted is clearly without substance.
5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. (See Karnel Singh v. State of Madhya Pradesh, 1995 Cri. L.J. 4173 (SC))
.......
8. The stand of the appellants relate essentially to acceptability of evidence. Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent. Further effect of non-examination of weapons of assault or the pellets etc. in the background of defective investigation have been considered in Amar Singh v. Balwinder Singh, (2003) 2 SCC 518 (supra). In the case at hand, no crack in the evidence of the vital witnesses can be noticed.
9. Both the Trial Court and the High Court have analysed the evidence of P.Ws. 2 and 3 with due care and caution keeping in view the correct legal principles and have found the accused persons guilty. We find no scope for interference with the conclusions so arrived at in an appeal under Article 136 of the Constitution of India. The appeal, is dismissed."
29. Looking to the entire materials on record, more particularly, the oral evidence of P.W. 4, the owner of the car, two police officers-P.W. 16 and P.W. 22 and the panch witness-P.W. 9, it shows that the deceased sustained gunshot injuries and the prosecution has established the fact about the seizure of gun-M.O. 7 and live cartridge M.O. 8 from the possession of accused when he was travelling in the car of P.W. 4 from Chikmagalur towards Mysuru and was apprehended at Holenarasipura.
30. Another contention of the defence in the written argument, so also the arguments of the learned Amicus Curiae that in the FSL and serology reports-Exs. P. 15 and P. 16 respectively, the blood group on the items sent to Forensic Science Laboratory for examination, is mentioned as ''B'' group, whereas in the document-Ex. P. 29, the case sheet maintained in the St. John''s Medical College Hospital, Benglauru, show that the blood group of the patient was ''O+ve'' and therefore, it is strongly contended by the defence that this raises reasonable doubt whether the person dead is the same Surendra as alleged by the prosecution.
It is no doubt true in the serology report-Ex. P. 16 the articles i.e., mud, one pant and one kaccha were examined by the Officer of FSL and he opined that they were stained with human blood and blood group of the stains on the said items are of ''B'' group blood. We have also perused the document the History Sheet (Ex. P. 29) maintained in the St. John''s Medical College Hospital, Bengaluru. On perusal of the blood transfusion report in the history sheet (Ex. P. 29) it is mentioned in the column patient''s blood group and Rh type ''O+ve'' and donor''s group and Rh type is also mentioned as ''O+ve''. But the materials on record clearly show that when the injured Surendra sustained the gunshot injuries and when he was taken to Chethana Nursing Home at Chikmagalur, the father of the injured accompanied along with other two persons and when the injured was shifted to Bengaluru for higher treatment, he was accompanied by his brother and the other family members and they were with him till his death.
31. Regarding the identity of the person, who sustained gunshot injuries, absolutely there is no doubt because the incident took place in the broad day light at 1.00 p.m. on 10-4-1998, the parents of the deceased are the witnesses to the incident so also there is an independent eye-witness Chandregowda (P.W. 3). During the inquest proceedings (under Ex. P. 1) the relatives of the deceased also identified the dead body as that of deceased Surendra. The evidence of P.Ws. 6, 7 and 11, the nephews of P.W. 2, and the brother of the deceased also shows that deceased while he was under the treatment made the oral statement before them about firing through the gun-M.O. 7 by the accused.
32. We have also perused the statement of the accused recorded under Section 313 of Cr.P.C., at one stretch he is contending that he does not know whether his brother Surendra is dead or alive and at another stretch he is making a statement that Police have not taken him even to attend the funeral of his brother. Therefore, considering all these materials on record, it cannot be said that the prosecution has not established that the deceased Surendra is the brother of the accused and the reasons assigned by the Trial Court at paragraph 16 of its judgment are not clear so far as the identity of the deceased person as Surendra. Hence, we have rejected the contention of the appellant-accused raised in his written arguments so also the arguments of the learned Amicus Curiae on this aspect.
33. As per the case of the prosecution, the motive for the accused to commit the said crime is the property dispute. As we have already observed while referring to the dying declaration (Ex. P. 9), deceased Surendra has also mentioned in his statement that because of the property disputes the accused picked up quarrel and fired at the deceased. P.W. 6-H.N. Sridhar, who is nephew of P.W. 2-Krishnegowda deposed that P.W. 2 is his junior uncle, the accused is the son of P.W. 2-Krishnegowda; that in January 1998, he participated in partition proceedings of family of Krishnegowda. One A.D. Puttegowda (C.W. 9) and one N.P. Manjunath Gowda (C.W. 8) were also present then. P.W. 2-Krishnegowda and his three sons, Smt. Susheelamma, wife of Krishnegowda were also present then. There was one separate coffee garden and a coolie lane. They were agreed to be given to the accused. At a distance of 5 feet from the coolie lane, Krishnegowda was to construct another coolie lane. Krishnegowda also had to pay some amount to the accused in respect of the house properties. There was no cross-examination of P.W. 6 were put to him on the aspect of the said partition as deposed by him.
H.K. Suresh Raj (P.W. 11), who is also the own brother of the accused and also the deceased, has deposed in his evidence that Krishnegowda (P.W. 2) is his father, the accused is his elder brother. Surendra (deceased) is his younger brother, their parents and the children were all residing together at Hosahalli. In the year 1997, the accused was asking for his share in the family properties. On 17-1-1998 in the presence of H.N. Sridhar (P.W. 6), N.P. Maniunath Gowda (C.W. 8) and A.D. Puttegowda (C.W. 9), who are their relatives, a partition was effected. A draft deed was made and the brothers and also panchayathdars signed the same. In March 1998, possession of the share of the accused was given to him. Further a sum of Rs. 10 Lakhs had been agreed to be paid to the accused in that partition. Out of Rs. 10 Lakhs, a sum of Rs. 1 Lakh had been paid to the accused on 4-2-1998. There was an old coolie lane, which had been given to the accused. He had to get a coolie lane constructed living a space of 5 feet from the old coolie lane. But he left a space of 7 feet. After convening panchayat and payment of money to the accused he got the land levelled and put up foundations and he had also raised the construction up to the height of 3 feet. Then the accused started demanding that new coolie lane should also be given to him. P.W. 11, His father and his younger brother (deceased) did not agree for the same. Again panchayathdars came told the accused that it was not possible.
In the cross-examination, P.W. 11 has deposed and denied the suggestion that himself, his other brothers and their parents had executed general power of attorney in favour of the accused for management of estate and to attend the Court cases prior to the incident. He denied the further suggestion that with an intention to gulp the entire property of his father, they have created a false story against the accused.
34. It is no doubt true, even the father of the accused as well as the deceased was examined before the Trial Court as P.W. 2 and he has also deposed in his evidence in detail at paragraph 3 that there was such a partition in the presence of the panchayathdars, but P.W. 2 was not subjected to cross-examination. The deposition of P.W 2 shows that the Counsel for the accused prays time stating that he would engage another Counsel, but the said prayer was rejected and it is taken that there is no cross-examination.
35. As we have already observed above that when the Trial Court convicted the accused for the offence punishable under punishable Sections 307 and 302 of IPC, the said judgment was challenged by the accused by preferring an appeal before this Court, which was allowed and the matter was remanded back to the Trial Court for fresh disposal. Therefore, even after remand also there is no cross-examination of P.W. 2 since by that time P.W. 2 has expired. Therefore, as P.W. 2 was not subjected to cross-examination, we are not taking his evidence into consideration.
36. We have also perused the statement of the accused recorded under Section 313 of Cr. P.C. when he was examined by the Trial Court with regard to the incriminating materials. Looking to the said statement also it is dear that there were number of litigations both civil and criminal between the accused and other family members of the accused so also the deceased Surendra. Therefore, considering all these materials placed on record before the Trial Court, it is clear that there was a property dispute between the accused and other family members. The materials also show that even if there was a partition in the year 1998 and dividing the properties and handing over the possession of the properties and the old coolie lane to the accused, so also agreed to pay Rs. 10 Lakhs to him, the accused was neither happy nor satisfied and he was picking up quarrel with other family members. Therefore, prosecution placed satisfactory material even to show that there was a motive for the accused to commit the murder of his younger brother Surendra by firing at him with the gun-M.O. 7.
37. Therefore, considering all these materials placed on record by the prosecution, we are of the opinion that the prosecution has proved its case beyond all reasonable doubt that it is the accused, who committed the murder of the deceased Surendra by firing at him and causing the gunshot injuries. Therefore, the Trial Court is justified in appreciating the entire materials both oral and documentary'' so far as they relate to committing the murder of deceased Surendra is concerned and came to the right conclusion in convicting the appellant-accused for the offence punishable under Section 302 of IPC. Therefore, so far as that part of the judgment is concerned, there are no grounds for this Court to interfere with the judgment of the Trial Court either to reverse it or modify it.
38. By the judgment and order of conviction, the Trial Court has also convicted the accused for the offence punishable under Section 307 of IPC holding that the accused made an attempt to commit the murder of his father Krishnegowda (P.W. 2). It is no doubt true, the prosecution witnesses i.e., P.Ws. 3 and 5, who are said to be the eye-witnesses to the incident, have also deposed in their evidence that firstly the accused made an attempt by firing at P.W. 2, the father, the target was missed, and thereafter, he fired on the deceased Surendra.
39. From the materials placed on record, it is clear that the Investigating Officer while conducting the spot mahazar under Ex. P. 4, has noticed one empty cartridge at the spot and 5-6 pellets, which he had seized. Empty cartridge is under M.O. 3 and pellets together were marked as M.O. 4. We have also perused the spot mahazar-Ex. P. 4 wherein it is mentioned that because of the fire the pellets hit to the compound wall so also at the ground and the empty cartridge was lying there. In the presence of the panch witnesses the Investigating Officer (P.W. 16) seized them. Looking to the materials, admittedly, even according to the prosecution at the alleged first firing, the bullet was not hit to P.W. 2 and there were no injuries sustained by P.W. 2, the father of the accused and the deceased. If really the accused fired twice, firstly at his father P.W. 2 and thereafter, deceased Surendra second time, there would have been two empty cartridges fallen at the spot, but only one empty cartridge was seized during the spot mahazar which was said to be lying in front of the house. With regard to the seizure of empty cartridge-M.O. 3 and pellets-M.O. 4, it is no doubt true that the prosecution has examined one of the panch witnesses-Krishna Shetty as P.W. 8. The Investigating Officer (P.W. 16) also deposed in his evidence that an empty cartridge was lying in front of the house of the complainant and 5 small pellets at the spot. The blood had scattered on the ground, he collected the bloodstained mud, sample mud and seized the empty cartridge and 5 pellets. Looking to the evidence of Chandre Gowda (P.W. 3) and Susheelamma (P.W. 5), who have deposed in their evidence that they have seen the accused loading the gun (M.O. 7) with two cartridges. If that is so, even according to their evidence, two empty cartridges would have fallen at the spot. Learned SPP during the course of arguments submitted that after committing the offence and till the gun (M.O. 7) was seized, it was in the possession of the appellant-accused. Therefore, the accused might have loaded the gun with another live cartridge. When there is no such material on record, the Court I cannot presume the things that the accused might have loaded the gun with another cartridge after the incident took place. Therefore, the said contention cannot be accepted. Hence, looking to these materials placed on record, it raises reasonable doubt in the mind of the Court that whether really the appellant-accused made such an attempt by firing at his father Krishnegowda (P.W. 2) at the first time as alleged by the prosecution. Therefore, regarding this alleged attempt by the accused on his father to commit his murder and thereby making an attempt to commit the offence punishable under Section 307 of IPC, we do not find any cogent, satisfactory and acceptable material on record.
40. Apart from the said material, another important aspect to be considered here is that the deceased Surendra gave his statement under Ex. P. 9 as dying declaration about which we have already discussed above in detail; even in the said statement under Ex. P. 9, there is no mention that the accused also made such an attempt at the first instance on P.W. 2, the father of the deceased, by firing at him. There is no whisper in Ex. P. 9 about the same, but on the other hand, it is mentioned that when the deceased sustained injuries to the stomach portion, right hand and right thigh, the father Krishnegowda, mother Susheelamma, and the worker Chandru came and pacified. Even though the name of the father (P.W. 2) is referred that he came and pacified the quarrel, there is no such narration that an attempt was also made on his father by the accused. These important aspects were not properly considered and appreciated by the Trial Court and the Trial Court wrongly read the evidence so far as the alleged offence punishable under Section 307 of IPC as against the father-P.W. 2 is concerned and has wrongly convicted the accused for the offence punishable under Section 307 of IPC. Therefore, we are of the opinion that the charge under Section 307 of IPC has not been satisfactorily established by the prosecution. As we have already observed above that reasonable doubt arises in the mind of the Court that whether the accused has also committed the alleged offence punishable under Section 307 of IPC as against his father-P.W. 2. Hence, benefit of doubt has to go in favour of the accused and he is to be acquitted of the said charge.
41. When we say that the evidence of the prosecution witnesses that the charge under Section 307 of IPC is not acceptable, the defence cannot argue that their evidence is also to be disbelieved even so far as the offence punishable under Section 302 of IPC is concerned. This is why because, the maxim "falsus in uno, falsus in omnibus" is not applicable to the criminal trials. It is the duty of the Court to separate the grain from the chaff from the available material on records.
In this connection, we are referring to the decision of the Hon''ble Apex Court in case of Bhe Ram v. State of Haryana AIR 1980 SC 957 and the relevant paragraph reads as under :
"2. The prosecution case has been detailed in the judgment of the High Court and it is not necessary for us to repeat the same all over again. We have perused the judgment of the Sessions Judge and also that of the High Court and heard learned Counsel for the appellants at great length. We do not find any error of law or any error in the application of the evidence by any of the Courts below. Mr. Sawhney appearing for the appellants in Criminal Appeal No. 253 of 1974 and Mr. Gambhir in Criminal Appeal No. 252 of 1974 for the appellant-Bhe Ram, submitted two points before us. In the first place, it was argued that the High Court having rejected the essential details of prosecution case, the appellants also should have been acquitted. We have gone through the judgment of the High Court and we are not in a position to agree with the Counsel that the High Court has disbelieved the essential details of the prosecution case. The High Court has merely pointed out that in view of the charge of rioting, there may be some infirmities with respect to some of the accused persons who were entitled to the benefit of the doubt. The High Court has also rightly pointed out that the principle of falsus in uno, falsus in omnibus does not apply to criminal trials and it is the duty of the Court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds. We are of the opinion that the High Court has made an absolutely correct approach to these cases."
42. Therefore, perusing the entire materials on record so also the judgment and order of conviction of the Trial Court so far as the offence punishable under Section 307 of IPC is concerned, we disagree with the findings of the Trial Court. The benefit of doubt has to be given in favour of the appellant-accused so far as the offence punishable under Section 307 of IPC is concerned and he is to be acquitted.
43. Hence, we proceed to pass the following order :
(i) The impugned judgment and order of conviction dated 25-9-2012 passed by the Principal Sessions Court, Chickmagalur in SC No. 67 of 1998 convicting the accused-appellant herein for the offence punishable under Section 307 of IPC, stands set aside and the accused-appellant herein is acquitted of the said offence.
(ii) The impugned judgment and order of conviction dated 25-9-2012 passed by the Principal Sessions Court, Chickmagalur in SC No. 67 of 1998 convicting the accused-appellant herein for the offence punishable under Section 302 of IPC stands confirmed .
(iii) The appellant-accused is sentenced to undergo imprisonment for life and to pay fine of Rs. 1 00,000/- (Rupees one lakh only) for the offence under Section 302 of (PC and in default of payment of fine amount, he shall undergo further simple imprisonment for a period of two years. The sentence imposed by the Trial Court is modified accordingly.
44. Accordingly, the appeal is party allowed.
45. We appreciate and place on record the valuable service rendered by Sri N.S. Sampangiramaiah, learned Amicus Curiae. Registry is directed to pay a sum of Rs. 10,000/- (Rupees ten thousand only) to the learned Amicus Curiae as honorarium.
