Dismissed

Rasool Fakrusab Mulla v. the State of Karnataka

Karnataka HC13 Dec 2021CRL.A/100018/2019

Case brief

AI extract

What is this about?

A murder conviction arising from an armed assault followed by running a vehicle over the victim was upheld. The court accepted the wife’s and minor daughter’s eyewitness testimony and rejected challenges concerning tutoring, recoveries, medical evidence and the complaint. The first accused’s appeal was dismissed; the second accused’s appeal had already abated.

What the court decided

AI extract

Rasool Fakrusab Mulla Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF DECEMBER, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SURGAJ GOVINDARAJ

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AND

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THE HON’BLE MS.JUSTICE J.M. KHAZI

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CRIMINAL APPEAL NO.100018/2019

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BETWEEN

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RASOOL FAKRUSAB MULLA AGE: 46 YEARS, OCC: DRIVER, R/O: OBLAPUR, TQ: RAMADURGA, DIST: BELAGAVI.

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MUMTAZA W/O RASOOL MULLA AGE: 42 YEARS, OCC: H/W, R/O: OBLAPUR, TQ: RAMADURGA, DIST: BELAGAVI.

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...APPELLANTS

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(BY SRI.M.B.GUNDAWADE & SRI.A.M.GUNDAWADE, ADVS. FOR R1, APPEAL OF A2 IS ABATED)

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AND

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THE STATE OF KARNATAKA REP. BY CIRCLE POLICE INSPECTOR, RAMADURGA POLICE STATION, BY SPP, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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…RESPONDENT

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(BY SRI.V.M.BANAKAR, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND

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ORDER DATED 15.12.2018 PASSED BY THE X ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI IN S.C. NO.45/2015 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF IPC AND ACQUIT THE APPELLANTS.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.11.2021 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Being aggrieved by their conviction and sentence for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1960 (hereinafter referred to as “IPC” for short), appellants, who are accused Nos.1 and 2 have filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” for short).

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For the sake of convenience, the parties are referred to by their rank before the Trial Court.

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Accused Nos.1 and 2 are husband and wife. They, deceased, his family members as well as majority of the prosecution witnesses are residents of Oblapur of Ramadurga Taluk, Belagavi District. It is alleged that deceased was having illicit relationship with accused No.2.

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Even though about two years prior to the date of incident, accused No.2 has remained away from the deceased, he was not ready to break away from the said relationship. In this background, on 18.11.2014 at 06:30 a.m. while deceased carrying head load of cow dung in a plastic basket was proceeding towards dung pit, accused No.1 armed with an Axe and accused No.2 armed with a Knife confronted the deceased. Accused No.1 assaulted the deceased with the Axe on his left cheek and left portion of the stomach, whereas, accused No.2 assaulted the deceased with the Knife on his neck. Throwing the plastic basket containing the cow dung on the spot, when deceased started running, accused No.1 started his vehicle i.e., Land Cruiser Toofan bearing registration No.KA26/9499 and from the backside ran over the deceased. As a result of which the deceased died on the spot and thereby accused Nos.1 and 2 have committed the offence punishable under Section 302 read with Section 34 of IPC.

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For the charges levelled against them, accused

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have pleaded not guilty and claimed trial.

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In support of the prosecution case, 21

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witnesses are examined as PWs.1 to 21, Exs.P1 to 37 and MOs.1 to 11 are marked.

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During the course of their statement under Section 313 of Cr.P.C. accused Nos.1 and 2 have denied the incriminating evidence led on the prosecution side. They have not chosen to lead evidence on their behalf.

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After hearing the arguments of both sides, vide the impugned judgment and order, the learned Sessions Judge has convicted the accused persons and sentenced them to undergo imprisonment for life and pay fine of Rs.10,000/- each with default sentence for non-payment of fine.

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During the course of his arguments, the learned counsel for accused submits that prosecution has failed to establish the guilt of the accused beyond reasonable doubt. The impugned judgment and order is opposed to facts, probabilities, circumstances and law and liable to be set aside. The Sessions Court has heavily relied upon the evidence of interested minor witness, who is

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tutored by her mother and grandfather to give false evidence against the accused. It has relied upon evidence of the witnesses which consist of full of contradictions and omissions.

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He would further submit that there are no overt acts alleged against accused No.2 and as such, her conviction is liable to be set aside. Complainant i.e., PW.1 is not an eye witness and consequently, the conviction based on her evidence is not tenable. No independent witnesses have supported the prosecution case and therefore, conviction based on the interested testimony of PWs.1 and 2 is liable to be set aside and prays to allow the appeal. He has relied upon the following decisions:

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“i. Imrat Singh and others Vs. State of Madhya Pradesh reported in 2020 AIAR (Criminal) 168.

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ii. Basheera Begam Vs. Mohammed Ibrahim and others reported in 2020 AIA (Criminal) 818.”

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On the other hand, supporting the impugned judgment and order of the Trial Court, the learned

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Additional State Public Prosecutor submits that through the evidence of PWs.1 and 2, who are eye witnesses to the incident, the prosecution has proved the motive as well as the overt acts committed by accused Nos.1 and 2. The three independent witnesses examined are common neighbours of the accused persons as well as the deceased. In order to save the accused persons, they have turned hostile. However, the testimony of PWs.1 and 2 is sufficient to bring home guilt to the accused. Appreciating the oral and documentary evidence with regard to the motive and actual commission of the offence, the Trial Court has rightly convicted the accused and sentenced them appropriately and prays to dismiss the appeal.

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In support of his arguments, the learned Additional State Public Prosecutor has relied on the following decisions:

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“i. Rana Pratap and others Vs. State of Haryana reported in (1983) 3 SCC 327 .

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ii. Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat reported in (2004) 1 SCC 64 .

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iii. Shivappa and others Vs. State of Karnataka reported in 2008 (4) Kar.L.J. 183 (SC) .

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iv. Mallikarjun and others Vs. State of Karnataka reported in 2019 (5) KCCR 338 (SC) .”

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We have heard elaborate arguments of both

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sides and perused the records.

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It is an undisputed fact that accused Nos.1 and 2 are husband and wife, whereas, PW.1 Laxmavva and PW.2 Shilpa are the wife and daughter of the deceased Ramappa. All these persons as well as the other witnesses are residents of Oblapur. It is the definite case of the prosecution that deceased had an illicit relationship with accused No.2 and it was objected to by both accused No.1 as well as PW.1 Laxmavva and inspite of advise by everyone, including the elders, deceased did not desist from making advances towards accused No.2 and for this reason, accused Nos.1 and 2 and their family shifted to Ramadurga and stayed there for two years. It is further case of the prosecution that immediately prior to the date

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of incident, accused Nos.1 and 2 had returned to Oblapur to perform the marriage of their eldest daughter. It is alleged that even after accused Nos.1 and 2 returned to Oblapur, deceased did not stop his attempts to make overtures towards accused No.2 and unable to bear the same, on the date of the incident, accused No.1 armed with an Axe and accused No.2 with the Knife, attacked the deceased and inspite of having suffered bleeding injuries, when deceased started running, accused No.1 started his vehicle i.e., Land Cruiser Toofan bearing registration No.KA-26/9499 and dashed against the deceased and when he fell down, ran over the deceased, killing him instantaneously.

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In order to prove the motive as well as the actual incident, the prosecution has relied upon the evidence of PW.1 Laxmavva, PW.2 Shilpa, the wife and daughter of the deceased as well as PW.3 Shivappa, PW.4 Mallappa and PW.5 Dharmappa, the immediate neighbours of the deceased. However, PWs.3 to 5 have not supported the prosecution case. Therefore, the prosecution is left with the evidence of PWs.1 and 2.

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The accused have taken up a defence that deceased was a womanizer and used to tease many women and girls of the village and as such, he had several enemies and accused might have been killed by any of these persons and the blame is put on them. On this ground, they have also disputed the postmortem examination report so far as the time of death is concerned which according to the prosecution has occurred at 06:30 a.m. on 18.11.2014. In view of the specific defence taken by the accused persons, it is to be examined whether the interested testimony of PWs.1 and 2 is reliable, cogent and consistent and whether the Trial Court is justified to return a judgment of conviction on the basis of their evidence.

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Speaking with regard to the motive, PWs.1 and 2 have deposed that deceased was having illicit relationship with accused No.2 and inspite of advise by them and the elders, he was not ready to discontinue the same and that was the reason for the accused persons to commit the offence in question. During their crossexamination, it is elicited that deceased had illicit

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relationship with accused No.2 since five years, but since about two years prior to the date of incident, the accused persons had left the village and were staying in Ramadurga, the said relationship had discontinued. After they returned to Oblapur for performing the marriage of their daughter, though accused No.2 discontinued her relationship with deceased, but deceased was not ready to discontinue the same and that was the reason for accused Nos.1 and 2 to commit the offence in question.

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The fact that deceased had illicit relationship with accused No.2 is established by the very suggestions made to PWs.1 and 2 by the defence during their crossexamination. At para 11 (page 6) of the evidence of PW.1, she has admitted the suggestion that she used to quarrel with deceased that though she is his legally wedded wife and giving all satisfaction to him, why he is having illicit relationship with accused No.2. A suggestion is made to PW.1 that deceased used to consume alcohol every night and in drunken condition used to visit the house of accused No.2 and forcing her to continue the illicit relationship with him and giving trouble to her. Even though PW.1 has

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denied the suggestion, the very suggestion made by the defence proves the fact that deceased and accused No.2 were having illicit relationship. On this aspect, during her cross-examination, PW.2 has deposed that she came to know about the illicit relationship when her mother and deceased used to quarrel on the subject and that her father i.e., deceased was reluctant to discontinue his relationship with accused No.2. At para 12 page 7 of her deposition, PW.1 has stated that accused No.1 came to know about the illicit relationship between the deceased and his wife i.e., accused No.2 and since then he became angry. It is argued by the learned counsel representing the accused that since two years before the incident, no quarrel had taken place between the accused persons and the deceased and it cannot be accepted that after a gap of two years, accused persons would attack the deceased.

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It is relevant to note that according to the accused themselves, two years prior to the date of incident, they had left Oblapur and shifted to Ramadurga and they came back to Oblapur to perform the marriage of their daughter. This explains the fact that after accused

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No.1 coming to know about the illicit relationship between the deceased and accused No.2, no quarrel had taken place. After they returned to Oblapur, on realizing that deceased is not ready to discontinue his illicit relationship with accused No.2 and in view of the daunting task of performing the marriage of their daughter, they were angry towards the deceased for the nuisance being created by him cannot be ruled out. Thus from the testimony of PWs.1 and 2, coupled with suggestions made to them during their cross-examination by the defence, the prosecution has proved the motive.

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The evidence of PWs.1 and 2 establish the fact that on the date of incident, they, deceased, CW.20 Kumari Shaila another daughter of the deceased got up at around 06:00 a.m. While PW.1 was engaged in watering (zsÀ£ÀUÀ½UÉ ªÀÄÄ¸ÀÄgÉ w¤ß¸ÀÄªÀÅzÀÄ) the cattle in the house, PW.2 Shilpa cleaned the front yard (ªÀÄ£É ¨ÁV°UÉ ¤ÃgÀÄ ºÁPÀÄªÀÅzÀÄ), deceased collected the cow dung in a blue coloured plastic basket from the cattle shed and started moving towards the Harijanakeri to go to dung pit, where his family usually

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dump the cow dung (which would be later used as manure in the lands). Simultaneously PW.2 started following him with small mug (ZÀjUÉ) of water in order to go to answer nature’s call (as would be done in villages where they don’t have a latrine in the house). A suggestion is made to PW.2 that a girl would not go behind her father to attend nature’s call. In the present case, the deceased was carrying a heap of cow dung in a basket to throw the same in the cow dung pit, whereas, PW.2 was going to answer nature’s call. It does not mean that both of them were going to the same place.

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PW.2 is a witness to the entire incident consisting of accused Nos.1 and 2 assaulting the deceased with an Axe and a Knife respectively and after the injured sustained the injuries and in order to escape, tried to run away, accused No.1 starting his vehicle i.e., Land Cruiser Toofan and dashing against the injured and when he fell down, running it over him. The evidence of PW.1 makes it evident that when accused Nos.1 and 2 started attacking the deceased with the Axe and Knife, PW.2 cried and

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shouted for help and hearing the commotion, she came running to the spot and saw the second part of the incident namely accused No.1 starting the Land Cruiser and running it over the injured, who died on the spot.

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During the course of her evidence, PW.2 has deposed that deceased did not observe accused Nos.1 and 2 at the place of occurrence when he was carrying the cow dung basket and when he reached the said spot, no exchange of words took place between deceased and accused No.2, but on seeing the deceased, accused No.1 started assaulting him with the Axe. In this regard, she has stated that accused Nos.1 and 2 came from the vehicle which was parked on the rough road (PÀZÁÑ gÀ¸ÉÛ) in front of the house of Yallappa.

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PWs.1 and 2 have been cross-examined at length as to the distance between them and the deceased, when the incident took place. In this regard, PW.2 has deposed that when accused Nos.1 and 2 assaulted the deceased, she was at a distance of about 10 feet from her father. On this aspect, PW.1 has deposed, hearing the

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cries of her daughter, she went to the spot and saw the incident and she was at a distance of about 8 to 10 feet. She has also stated that the place from which her daughter i.e., PW.2 cried for help is at a distance of about 150 to 200 feet from her house. However, she has denied that from the said distance, it was not possible for her to hear her cries.

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PWs.1 and 2 have been cross-examined at length as to whether from the distance they saw the incident, the blood oozing from the wounds of the deceased came to be sprinkled on their clothes, which the witnesses have answered in the negative. It is not the case of the prosecution that the wound sustained by deceased was such that it led to gushing of the blood in such a manner that either the clothes of the accused persons or that of PWs.1 and 2 became stained with the blood. In fact, the scene of occurrence at both places i.e., the first place where the deceased was assaulted with the Axe and Knife and the place where he was run over by the Toofan Cruiser vehicle by accused No.1 were stained with blood. There is no evidence that the clothes of the accused were

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stained with blood. Having regard to the fact that both PWs.1 and 2 were at a distance of 8 to 10 feet from the deceased, question of their clothes staining with blood would not arise.

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PWs.1 and 2 are also cross-examined as to whether they tried to go to the rescue of the deceased when accused Nos.1 and 2 assaulted him with the Axe and Knife and also when accused No.1 ran the Toofan Cruiser vehicle over him. These witnesses have replied that since the accused Nos.1 and 2 were armed with deadly weapons and as accused No.1 gave threat by showing the Axe, they did not go to the rescue of the deceased. Moreover, the entire incident has taken place in a very short duration and after assaulting the deceased with Axe, accused No.1 did not stop. On the other hand, he started the Toofan Cruiser vehicle belonging to him and run over the deceased. Such being the case, being a girl of tender age, PW.2 cannot be expected to go to the rescue of the deceased. After hearing the cries of her daughter, when PW.1 came out of her house and started running towards the place of occurrence, though she was able to see what was

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happening, she was not by the side of the deceased to go to his rescue. Moreover, when the accused No.1 started the Toofan Cruiser vehicle and charged towards the deceased, it cannot be expected that either PW.1 or PW.2 would be able to fall on the body of the deceased to save him or drag him away. If they would have ventured to do so, the possibilities of accused running over them also cannot be ruled out.

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As held by the Hon’ble Supreme Court in Rana Pratap’s case (referred to supra) relied upon by the prosecution, the conduct of eye witnesses cannot be predicted. The presence of an eye witness cannot be judged by any preconceived notion of how he should have reacted at the time of occurrence. On this aspect, the Hon’ble Apex Court further observed that “every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible ….. Everyone reacts in his own special way. There is no set of rule of natural

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reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way”. This decision is rightly applicable to the case on hand. Merely for the reason that PWs.1 and 2 did not go to the rescue of the deceased or drag him out of the way to save him from accused No.1 running over his vehicle is no ground to disbelieve the testimony.

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PWs.1 and 2 have been cross-examined at length suggesting that since the incident took place in the month of November i.e., during winter, the visibility was very less and as such, they were not able to see the incident. They have been suggested that during winter, the sunrise would be at 07:00 a.m. However, both PWs.1 and 2 have denied that on the date of the incident, the visibility was very low and as such, they were not in a position to see the incident. The examination of the testimony of PW.2 makes it clear that she was following the deceased at a distance of about 10-15 ft. and after hearing her cries, when PW.1 came running to the spot and witnessed the second part of the incident, she was also at a distance at

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about 10-15 ft. from the deceased. When the incident commenced, it was 06:30 a.m. and within a span of next 15 minutes, the incident has concluded. In the light of the definite testimony of PWs.1 and 2, the argument that on account of winter, PWs.1 and 2 were not able to witness the incident cannot be accepted.

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The defence has attacked the testimony of PW.2 contending that she is a child witness and as admitted by her, she has been tutored. On this aspect, it is relevant to note that during the course of her evidence, PW.2 has stated that on that day she has come to the Court alongwith her grandfather and mother i.e., PW.1 and the panchas. She has admitted that her mother and grandfather have tutored her how to give evidence.

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It is pertinent to note that at the time of the incident, PW.2 was 14 years old and though in the cause title of her deposition, she is stated to be studying in 9^th standard, as deposed by her at page 4, para 4 of her deposition, when she gave evidence, she was studying in 10^th standard. Neither at the time of the incident nor when

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she gave evidence, she can be said to be a very small child of impressionable age to say that she was a tutored witness. In fact, examination of her evidence which consists of 18 pages of which 14 pages are her crossexamination, makes it evident that she is a natural witness and she has deposed what she has seen. She has withstood the rigor of cross-examination. If she were to be tutored, she would not have withstood the rigor of crossexamination. We find no reason to discard her evidence solely on the ground that at the time of incident, she was aged 14 years and that she is the daughter of the deceased. As held by the Hon’ble Apex Court in Ratansinh’s case (referred to supra), mere fact that the child was asked to say about occurrence and as to what she saw did not amount to tutoring. Similarly the evidence of PW.1 is natural, cogent and convincing. Her presence at the scene of occurrence is natural. We find no reason to disbelieve her testimony. Both PWs.1 and 2 have no ill-will or motive to depose falsely against the accused persons.

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PWs.1 and 2 have been cross-examined suggesting that deceased was a womanizer. The defence

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has gone to the extent of suggesting to PW.1 that she is having illicit relationship with one Mallappa Haligeri of their village i.e., Oblapur and her husband was having illicit relationship with the wife of said Mallappa Haligeri. A suggestion is also made to PW.1 that deceased made an attempt to outrage the modesty of wife of one Basappa Aribenchi and on coming to know about the same, Basappa Aribenchi and his family members assaulted him and the said incident had taken place about one and half months before the death of her husband i.e., the deceased. Similar suggestions are made to PW.2. In addition to it, it is also suggested to her that deceased was in the habit of eve teasing young girls of the village. Ofcourse, PWs.1 and 2 have denied these suggestions. They have also denied that on account of the objectionable conduct of the deceased, someone else had committed his murder and that a false complaint is filed against the accused persons. Absolutely there is no basis for these suggestions. The defence has not placed any material on record to establish these allegations, atleast by preponderance of probabilities. Moreover, if the deceased was murdered, by some one

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other than the accused, then the complainant and her family members would not have spared the real culprit.

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It is pertinent to note that during the investigation, the Investigating Officer has recovered MO.7 Knife at the instance of accused No.2 through mahazar Ex.P21, whereas, MO.1 Axe is recovered from beneath the driving seat of MO.11 Land Cruiser through spot mahazar Ex.P3.

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PWs.13 and 14 are witnesses to the recovery of MO.7 Knife at the instance of accused No.2. Even though PWs.13 and 14 have identified their signature in Ex.P21, they have not supported the prosecution case and denied that when MO.7 Knife was recovered at the instance of accused No.2, they were present. In this regard, the evidence of PW.20, who is the Investigating Officer and who has recovered MO.7 Knife on the information given by accused No.2 is relevant. He has specifically stated that as per her voluntary statement, accused No.2 led him, CW.4 (PW.13) and CW.5 (PW.14), to her house and took out MO.7 Knife. He has identified

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Ex.P14 as the photograph taken at the time of recovery of MO.7 and in addition to accused No.2, PWs.13, 14, the woman constable as well as himself are seen in it. It is relevant to note that the accused persons have managed to get all the material prosecution witnesses turn hostile. Consequently, PWs.4 to 6, who are immediate neighbours of the deceased as well as the accused and whose presence at the scene of occurrence was natural have not supported the prosecution case, especially when they have not disputed that at the time of incident they were not present in the village and that they were elsewhere. Similarly PWs.13 and 14 have also denied of having present when MO.7 was recovered at the instance of accused No.2. However, the evidence of PW.20, who is the Investigating Officer, proves the recovery of MO.7.

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MO.1 Axe is recovered through the spot mahazar Ex.P3. It is pertinent to note that after running over the Toofan Cruiser vehicle, both accused ran away leaving the vehicle at the spot. In fact, the photographs at Exs.P4 and 5 make it clear that when the spot mahazar at Ex.P3 was drawn, the dead body was still under the front

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right wheel of the said vehicle. Accused No.1 has not disputed that the vehicle in question belongs to him. With regard to Exs.P4 and 5, the learned counsel representing the accused submitted that these photos have been taken by setting up the vehicle over the dead body. It is relevant to note that the incident in question has taken place in a broad day light and as suggested to PWs.1 and 2, the place of occurrence is surrounded by several residential houses and other buildings and it is frequented by local residents. In fact, the evidence on record, indicates that soon after the incident, several people have gathered. Such being the case, it cannot be accepted that MO.11 Toofan Cruiser vehicle is set up on the body of the deceased and Exs.P4 and 5 photographs have been taken. In fact, no such suggestion is forthcoming during the cross-examination of any of the witnesses.

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PW.3 Shivappa Karadigudda is a witness to the spot mahazar Ex.P3. Since the incident has taken place at two places, the spot mahazar also consists of two portions. PW.3 has deposed with regard to the first portion wherein MO.2 plastic basket which was lying at the place where

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deceased was assaulted with the Knife and Axe was seized alongwith blood stained mud and plain mud. He has been treated as hostile with regard to the second portion of the mahazar, wherein MO.11 Toofan Cruiser vehicle was seized from the spot and also the MO.1 Axe was recovered. However, during his cross-examination by the prosecution, he has admitted that through the mahazar at Ex.P3, the vehicle, Axe, plain mud as well as blood stained mud were recovered.

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It is pertinent to note that at the first instance i.e., immediately after examination-in-chief, this witness i.e., PW.3 is not cross-examined by the accused. However, after a lapse of six months, he has been recalled at the instance of accused and cross-examined on their behalf. At this stage, he has turned hostile and denied of having present when the mahazar was drawn and admitted that his signatures were taken to blank paper. Even though rightly the prosecution has sought permission of the Court to cross-examine him, the Trial Court has deferred his further evidence by observing that defence has raised objection and sought for time. It appears thereafter this

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witness is not recalled. Anyhow, the examination of the deposition of this witness makes it evident that at the first available opportunity, he has deposed in accordance with Ex.P3. Only after he has been recalled at the instance of accused, he has turned hostile.

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In this regard, the decision of the Hon’ble Supreme Court in Mallikarjun’s case (referred to supra) relied upon by the prosecution is relevant and applicable. In this decision, relying upon the decision of the Hon’ble Apex Court, reported in (2001) 9 SCC 362 and (2004) 10 SCC 657, at para 23 rejecting the argument of the learned counsel appearing for the defence, the Hon’ble Apex Court held that “ there is no merit in the contention that merely because the panch witnesses have turned hostile, the recovery of the weapon would stand vitiated. It is fairly well settled that the evidence of the Investigating Officer can be relied upon to prove the recovery, even when the panch witnesses turned hostile ”. When the testimony of the Investigating Officer is reliable and convincing, we find no reason to disbelieve the evidence regarding the recovery of MO.7 at the instance of accused No.2 and

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recovery of MO.1 Axe through the spot mahazar, merely on the ground that PWs.3, 13 and 14 have turned hostile at the instance of accused Nos.1 and 2. Therefore, we hold that the prosecution has proved the recovery of Knife at MO.7 at the instance of accused No.2 and MO.1 Axe through the spot mahazar. This recovery becomes relevant in view of the medical evidence that injury No.2 is possible if assaulted with the Knife at MO.7 and similarly injury Nos.1 and 3 are possible with MO.1 Axe.

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As already discussed, MO.11 Toofan Cruiser vehicle is seized through the spot mahazar Ex.P3. MO.1 Axe is recovered from beneath the driving seat of MO.11. During the course of their evidence, PWs.1 and 2 have stated that after assaulting the deceased, accused No.1 kept MO.1 Axe beneath the driving seat and started the vehicle and ultimately ran over the deceased. In the complaint given by PW.1 as well as statement of PW.2 before the Investigating Officer, this fact is not forthcoming. Having regard to the fact that such a ghastly incident has taken place before their eyes, they might not have found the fact of accused No.1 keeping MO.1 Axe

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beneath the driving seat of MO.11 vehicle, very material or they might have missed referring to the same. Having regard to the fact that MO.1 Axe was recovered from the vehicle during the spot mahazar, they have referred to it in their testimony. This lapse itself does not make their evidence doubtful.

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During their examination-in-chief, PWs.1 and 2 have identified MO.11 Toofan Cruiser vehicle, MO.1 Axe and MO.7 Knife. During their cross-examination, PWs.1 and 2 have deposed that MO.1 Axe and MO.7 Knife were stained with blood. When MOs.1 and 7 were confronted to PW.1, she has stated that at the time of her evidence, they were not stained with blood. However, she has come up with an explanation that at this point of time, the stains might have disappeared. During her cross-examination, PW.2 has stated that when accused No.1 kept the blood stained Axe below the driving seat, she did not observe whether that portion of the vehicle was strained with blood. In fact, during his cross-examination, PW.19, the Investigating Officer has stated that he do not remember whether the place below the driving seat from where MO.1

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Axe was recovered had any blood stains. In fact, Ex.P3 through which MO.11 Toofan Cruiser vehicle was seized, from inside which MO.1 Axe was recovered does not state the presence of blood stains on the floor of the vehicle where MO.1 was kept.

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At this stage, it is relevant to refer to the FSL report at Ex.P30. As per Sl. No.1 of opinion column, it states that item No.1 (MO.3), item No.3 (MO.1), item No.4 (MO.5), item No.6 (MO.7), item No.8 (MO.9) were stained with blood, which means as per Ex.P30, except the sample mud collected from both places, the remaining articles were stained with blood. However, at Sl. Nos.3 and 4, it is stated that only item Nos.4 and 5 i.e., MO.5 blood stained mud was stained with human blood of ‘A’ blood group. The opinion regarding origin of the blood in the remaining items namely item Nos.1, 3, 6, 7 and 8 are not specified. On this aspect, PW.18 Dr.Chaya Kumari has deposed that while typing the said portion, by mistake item Nos.1, 3, 6, 7 and 8 are not noted. It is pertinent to note that item Nos.7 and 8 are the blood stained bunian and lungi of deceased which are marked as MOs.8 and 9. Having

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regard to the fact that deceased has met a homicidal death, if not the other items, these two would certainly have the blood of human origin. The very fact that these two items are also not specified and only blood stained mud is stated to contain blood of human origin and ‘A’ group goes to show that the non-mentioning of opinion regarding the origin of the blood and its group in respect of item Nos.1, 3, 6, 7 and 8 is only by mistake. Unfortunately, while receiving Ex.P30, the Investigating Officer has not observed this lapse and sought for further information. Anyhow, in the light of substantive evidence of PWs.1 and 2, Ex.P30 is only corroborative piece of evidence and this lapse would not go to the root of the prosecution case.

¶123

Since the vehicle is involved in the incident, the Investigating Officer has got it examined through the Motor Vehicle Inspector i.e., PW.11 and he has given report at Ex.P17 to the effect that no mechanical defects were found. Usually IMV report is secured in accident cases where accused would take a defence that accident was due to mechanical defect. During his cross-examination, PW.11

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has denied the suggestion that he did not drive the vehicle to ascertain whether there are any mechanical defects, even though he has admitted that in Ex.P17, he has not specifically stated that he drove the vehicle. In the present case, it is not the defence of accused Nos.1 and 2 that the deceased sustained injuries on account of a motor vehicle accident. Therefore, the fact that in Ex.P17, PW.1 has not mentioned that he examined the vehicle by driving it will not assume any importance.

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Now coming to the medical evidence regarding the cause of death. PW.15 Dr.Bannigidad, Medical Officer, General Hospital, Ramadurga, has conducted the postmortem examination. The postmortem report is at Ex.P25. His testimony coupled with Ex.P25 establish the fact that the deceased has suffered the following ante mortem injuries:

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“i. Incised wound present over the left side of the face at angle of mandible 1 cm below the left triages of ear, across the left chin measuring 6 X 2 X bone depth. Edges are short and retracted blood

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stained. It is 7 cm away from the left angle of mouth.

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ii. Incised wound over the nape of the neck measuring 4 X 1 X 3 cm depth. Present at the level of lower edge of occipital hair line.

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iii. Incised perforating wound present on left side of abdomen, situated 7 cm left and 7 cm down to the umbilicus. 1 cm above the anterior superior Iliac spine on left side, wound is obliquely present measuring 12 cm X 4 cm letting the large intestine and small intestines momentum to come out. edges are sharp and blood stained and retracted.

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iv. Abrasion present over the left shoulder 6 cm X 6 cm.

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v. Crush injury present over the over the right side of chest at infrascapular and scapular, infra-axillory, right side of chest front with multiple markings like tyre marks, with a scattered peeled lesion over it, measuring 34 cm X 32 cm. Blood staining at the edges present.

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vi. Abrasion over the left knee anteriorly 3 cm X 4 cm.

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vii. Abrasion over the left leg measuring 3 cm X 3 cm, 1 cm below the left knee joint.

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viii. Abrasion over the lateral part of left hip region measuring 4 cm X 1.5 cm.

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ix. Abrasion over the right leg measuring 3 cm X 3 cm infero lateral part of right knee joint.”

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His evidence with regard to internal injuries is

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as follows:

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“After dissecting the thorax, I have seen multiple fractures on the ribs No.4, 5, 6, 7, 8, 9 and 10 on right side present with lacerated muscles attach to them. Torn right pleura membrane present. Edges of the fracture ribs are sharp and even with blood stain.

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Pleura and cavity torn on right side with blood collection present. Lunges right side lacerated middle and lower part of right lunge present.

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On further detection of abdomen, regarding wall and peritoneum, skin and underline fascia, muscles are perforated below the abdominal inside the wound.

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On the further detection of mouth, pharynx and esophagus same was intact and fracture of mandible on left side underneath the left cheek incised wound with irregular edges and blood stain present. On further detection of small and large intestine, if ound less irate perforation present in the descending colon measuring 4 X 3 cm with multiple perforating injuries in small intestine presence. I found unclothed blood present on right side of abdominal cavity at renal area about 200 ml.”

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PW.15 has deposed that the time since death was 12 to 24 hours and the cause of death was due to Neurogenic and Hypovolemic shock due to multiple injuries to abdominal organs and chest.

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In response to the requisition at Ex.P26 given by the Investigation Officer, PW.15 has also examined the MO.1 Axe, MO.7 Knife and MO.11 vehicle and given opinion as per Ex.P27 that injury Nos.1 and 3 could be

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caused if assaulted with MO.1 Axe, injury No.2 could be caused if assaulted with MO.7 Knife and similarly the injuries on the chest, stomach and back are possible if run over by vehicle similar to MO.11 Toofan Cruiser vehicle No.KA-26/9499. He has also opined that the injury on the chest and stomach are fatal in nature. In reply to question No.5 of Ex.P26 he has stated that the intestine has come out of the stomach of the deceased on account of the injury sustained on the stomach and it is not on account of the vehicle passing over him.

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As already discussed, according to the prosecution the incident took place at around 6:30 a.m. The complaint came to be lodged at 12:15 p.m. In this regard, PW.1 has deposed that she got the complaint written through PW.10 Shekappa Holennavar. According to PW.1 she, the scribe and others went to the Police Station and she got the complaint written through the scribe and filed the same. However, PW.10 has deposed that he wrote the complaint at Obalapur itself in between 10:00 to 11:00 a.m. and thereby giving a go bye to the testimony of PW.1 that the complaint was written at the Police Station and

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the scribe was also present at the Police Station. It is pertinent to note that PW.19 B.J.Patil has conducted initial investigation. He has deposed that on 18.11.2014 at 08:00 a.m. while he was in the Police Station, he received information regarding the incident and immediately he visited the spot and conveyed the said information to his higher officers. He has stated that when he was at the spot he came to know that already the complainant has gone to Police Station to file complaint and therefore, he returned to the Police Station. On this aspect he has been crossexamined as to whether he requested the persons who were present at the scene of occurrence to file the complaint, PW.19 has replied that when he enquired the relatives of the deceased who were present at the scene of the occurrence, he came to know that already the wife of the deceased had gone to Police Station to file complaint. This supports the testimony of PW.1 that she went to the Police Station and lodged the complaint which was written by PW.10 Shekappa Holennavar. PW.10 is examined before the Court on 29.06.2016. He is only a scribe. As a literate person the possibility of he having written number

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of petitions or complaints at the request of illiterate persons cannot be ruled out and therefore he may not be remembering where exactly he wrote Ex.P1. However, the testimony of PW.1 that Ex.P1 was written at the Police Station is not shaken and we find no reason to disbelieve the same. Moreover, the fact where Ex.P1 was written is not going to affect its contents and credibility of the testimony of PW.1. Therefore, merely because the scribe i.e., PW.10 Shekappa Holennavar has deposed that he wrote Ex.P1 at Obalapur is not going to the root of the prosecution case.

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At para No.13 of her cross-examination, PW.1 has admitted that PW.10 Shekappa and Police brought a written complaint and she has affixed her LTM and she was not knowing what was written in the complaint. Admittedly neither PW.10 Shekappa Holennavar nor any of the Police personnels are eye witnesses to the incident. Such being the case, a stray admission that PW.1 affixed her LTM to the complaint brought by PW.10 Shekappa Holennavar and the Police and that she did not know what was written therein cannot be taken into consideration to hold that

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PW.1 has not witnessed the incident and that she is not the author of the complaint. In fact the entire testimony of PW.1 corroborates with the contents of the complaint at Ex.P1. The unimpeached testimony of PWs.1 and 2 establish the fact that they are the eye witnesses and as such, it was quite natural for PW.1 to lodge the complaint.

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During her cross-examination, PW.1 has stated that she and her daughter had gone to Police Station to file the complaint. It is pertinent to note that deceased and PW.1 are having two daughters. It has come in the crossexamination of PW.2 that after the incident till the dead body was removed from the spot, she stayed with it. The defence has not cared to ascertain along with which daughter PW.1 had gone to the Police Station. The unimpeached testimony of PW.2 that she stayed with the dead body of her father till it was removed from the spot, necessarily it goes to establish that PW.1 had gone to the Police Station with the other daughter who was present in the house when the incident took place. Thus from the above discussion, we hold that there is no delay in filing the complaint and the same is filed as soon as practicable

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having regard to the distance between the place of occurrence and the Police Station as well as in the shocked condition in which PW.1 was after witnessing the ghastly murder of her husband.

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PW.15 i.e., Dr. N.B.Bannigidad who has conducted Postmortem examination has been crossexamined at length regarding the time since death when he conducted postmortem examination. He has been cross-examined on this aspect in order to demonstrate that the death of deceased had taken place much earlier than what is projected by the prosecution. On this aspect, though PW.15 has stated that it takes 24 hours to set in rigor mortis completely, he has volunteered that this depends on the nature of the body and surrounding environment. A suggestion is made to PW.15 that in winter rigor mortis will be very slow. In the Postmortem Report at Ex.P25 under the description ‘External Appearance’, it is stated that multiple clear fluid filled Blebs all over the body present. In this regard, PW.15 has admitted that formation of Blebs require minimum 24 to 26 hours and exposure to excessive heat for a long time. However, he has stated

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that the Blebs were not smelling. In page 352 (26^th Edition) of “Modi, A Text Book of Medical Jurisprudence and Toxicology”, the learned author has observed that in India, the rigor mortis usually commences in one or two hours after death. He further observes that in general, rigor mortis sets in one or two hours after the death, is well developed from head to foot in about 12 hours.

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Discussing with regard to opinion of the Medical Officer, who conducts Postmortem regarding the time since death, at page 366, the learned author has observed that “the points to be noted in ascertaining the time are warmth or cooling of the body, the absence or presence of Cadaveric Hypostasis, rigor mortis and the progress of decomposition. It must be remembered that the conditions producing these changes vary so much in each individual case that only a very approximate time of death can be given”. So far as Blebs are concerned at page No.356, below the figure 2(A-B) the learned author has observed that side by side with the appearance of a greenish patch on the abdomen, the body begins to emit a nauseating and unpleasant smell owing to the gradual

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development of gasses of decomposition and these gasses form Blebs (blisters) under the skin containing a reddish colored fluid on various parts of the body. In the light of these observations, it could be safely held that the time since death as 12 to 24 hours from the time of conducting the Postmortem examination is approximate and it corroborates with the prosecution case. Moreover, as held by the Hon’ble Supreme Court in Shivappa’s case (referred to supra) relied upon by the learned Additional State Public Prosecutor, in the presence of testimony of PWs.1 and 2, who are the eye witnesses, not much importance need be given to the opinion of PW.15 regarding the time of death. Therefore, on this basis, the contention of the defense that the death of the deceased had occurred much earlier than what is projected by the prosecution case and that PWs.1 and 2 are not eye witnesses cannot be accepted.

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During his cross examination PW 15 has deposed that if injury is caused with sharp edged weapon such as Axe, there are chances of blood oozing and persons who are standing at a short distance may be

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stained with blood. However, the testimony of PWs.1 and 2 makes it evident that despite the fact that accused No.1 assaulted the deceased on his cheek up to the neck and on the stomach, there was no oozing out of blood from the said injuries resulting in splashing of the same either on the clothes of the accused Nos.1 and 2, who were near him or on PWs.1 and 2, who were at a distance about 10 ft. A suggestion is made to PW.15 that a person who suffered injuries on his neck and stomach will not be in a position to move. Answering the same, PW.15 has stated that it all depends on the nature of the injury. The evidence on record indicates that after sustaining the injuries due to assault with Axe and Knife, in order to escape, deceased made an unsuccessful attempt to run away but, before he could cover a small distance, accused No.1 drove the Toofan Cruiser vehicle and dashed against him, as a result of which he fell on the ground after which accused No.1 ran over the vehicle on him. In light of the unequivocal testimony of the PWs.1 and 2, as to what exactly transpired at the scene of occurrence, the hypothetical

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suggestions made to PW.15 as to what would have happened is not of much consequence.

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The learned counsel representing the accused submitted that PW.19 B.J.Patil, the Investigating Officer, who has registered the case and conducted initial investigation has received telephonic information and visited the spot and as such, it amount to commencement of the investigation and therefore, Ex.P1 is hit by Section 162 of Cr.P.C. However, the cross-examination of PW.19 makes it amply clear that after receipt of telephonic communication, he has not reduced the same into writing and thereby treating it as complaint. When suggested that such information should be treated as first information, PW.19 has replied that in order to ascertain the veracity of the said information, he has visited the spot, but he did not start the investigation till he received the complaint at Ex.P1. Though the information received by him indicates that a murder is committed, on such cryptic information, it cannot be expected that a responsible Police Officer would commence investigation, especially when all the details are not forth coming. Though Section 157 of Cr.P.C. provides

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that on receipt of definite information regarding commission of a cognizable offence, the Investigating Officer may send a report to the Magistrate and proceeding with the investigation, as in the present case, in absence of definite information as to who has committed the offence, the manner in which it is committed and whether or not there are eye witnesses etc., the arguments of the learned counsel that on the basis of telephonic communication that a murder has been committed, PW.19 should have registered the case cannot be accepted. Rightly PW.19 has waited till formal complaint as per Ex.P1 was lodged. Mere fact that he visited the spot cannot be taken as commencement of the investigation thereby rendering Ex.P1 inadmissible.

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In Imrat Singh’s case (referred to supra) relied upon by the learned counsel for accused, the Hon’ble Apex Court rejected the prosecution case by observing that the person who first came to know about the incident was not examined and the complaint came to be filed only after the visit of the Police to the scene of occurrence and therefore, there was possibility of a story being concocted

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could not be ruled out and almost all the witnesses have some criminal antecedents and some cases were pending against them. However, in the present case, the complainant had gone to the Police Station at 10:00 a.m. After getting the complaint written through PW.10, she lodged the complaint. As evident from the endorsement on the complaint at Ex.P1 as well as FIR at Ex.P32, the complaint is received at 12:15 p.m. In fact, it has reached the jurisdictional magistrate at 02:00 p.m. on the same day. Consequently, having regard to these facts, there is no delay in filing the complaint. Even though PW.19, who is the first Investigating Officer, who has registered the case has deposed that after coming to know about the incident, he visited the spot, his evidence makes it clear that by that time, complainant had already gone to the Police Station to lodge complaint and therefore, he did not made any attempt to get complaint from any of the persons who were present at the spot, who were acquainted with the incident. Therefore, there was no question of the Investigating Officer concocting the story

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against the accused. For these reasons, we hold that this decision is not applicable to the case on hand.

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In Basheera Begum’s case (referred to supra) relied upon by the learned counsel for the accused, the Hon’ble Apex Court held that in case based on circumstantial evidence, it is necessary to prove the motive. In the present case, the incident has taken place in a broad day light, in the presence of eye witnesses, of whom PWs.1 and 2 have deposed consistently regarding the complexity of accused in the crime. As already discussed, their evidence is cogent, consistent and reliable. We find no reason to disbelieve their testimony. In addition to establishing the involvement of the accused, their evidence coupled with the very suggestions made to them prove the motive. In the circumstances, we hold that the above decision is not applicable to the case on hand.

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Thus from the above discussion, we hold that the learned Sessions Judge, after discussing the oral and documentary evidence placed on record in detail has come to a correct conclusion that the charges

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levelled against the accused are proved beyond reasonable doubt. The conclusions arrived at by the Trial Court are based on the legal evidence. We find no reason to interfere with the same. In the result, the appeal fails and accordingly, we proceed to pass the following:

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ORDER

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Appeal filed by accused No.1 is dismissed.

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Appeal of accused No.2 is already abated.

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Sd/JUDGE

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Sd/JUDGE

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Rsh