Evidence Law - If there is any inconsistency in the evidence of the eye witnesses and the medical evidence, the Court has to believe the evidence of the eye witnesses. In other words, ocular evidence prevail over the medical evidence.
IN
THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2018
PRESENT THE HON’BLE MR.JUSTICE BUDIHAL R.B. AND
THE HON’BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.905/2013
Santhosha v. State by Maddur Police Station
Appellants (By Sri B.C. Rajanna, Advocate); Respondent (By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed
under Section 374(2) of the Cr.P.C praying to set aside the order dated
24.06.2013 passed by the II Addl. District & Sessions Judge, Mandya in
S.C.No.205/2002 a/w 135/2005, 49/2007 and 189/2008-convicting the
appellants/accused for the offences punishable under Sections 143, 148, 324,
307, 302 r/w 149 of Indian Penal Code.
This
Criminal Appeal having been heard and reserved on 04.06.2018 coming on for
pronouncement of judgment this day B.A.PATIL J., delivered the following:-
J U D G M E N T
The present
appeal is preferred by accused Nos.1 to 5, challenging the judgment and order
of conviction and sentence dated 24.6.2013 passed by the II Additional District
and Sessions Judge, Mandya inSC.No.205/2002 along with SC.Nos.135/2005, 49/2007
and 189/2008.
2. The sum and
substance of the case of the prosecution is that complainant Kamaraju gave a statement
as per Ex.P1 alleging that there was a dispute with regard to Site No.26 of
Valagerehalli Village between Manchaiah and Laxmaiah and there were two groups pertaining
to the said dispute. Accused were supporting Laxmaiah, whereas the complainant
and injured CWs.1 to 5 were supporting Manchaiah. In that light, there existed
animosity between the said two groups. In this background, on 12.6.2002 at
about 10.00 p.m., when the complainant was talking with Kamalamma in front of the
house of one Chunchamma, accused persons by constituting an unlawful assembly
in furtherance of their common object, came there by holding deadly weapons and
abused the complainant and his wife in filthy language. Accused No.6-Shivananda
told to finish Kamaraju as there would be a single case if they kill oneperson
or several persons and instigated accused No.1. Accused
No.1 with an intention to kill Kamaraju, assaulted on his head with chopper and
as a result of the same, Kamaraju sustained grievous injuries. Accused No.2-Sathisha
assaulted the complainant Kamaraju with knife on his right arm and caused the
injuries. Accused Nos.3 and 4 assaulted the complainant when he fell down,
Kamalamma who was standing nearby, questioned the accused persons, for which
accused No.1 assaulted on her head with chopper and accused Nos.3 and 4 assaulted
on her back, left side of stomach. On hearing the same, Raju, the brother of
the complainant came there and when he questioned the accused, in order to kill
him, accused No.1 assaulted him with chopper on his head and as a result of the
same, he sustained grievous injury on his left eye and at that time, CWs.3 to 5
came and pacified the quarrel. Thereafter, accused No.5 snatched the club from
accused No.3 and assaulted CW.3 Nirmala on her left elbow and accused No.1
assaultedCW.4 Bhanuprakash, S/o.Nirmala on his head. Accused No.2 also tried to
assault Bhanuprakash with knife and when he escaped, it caused injury to left
side of stomach and at that time, accused No.2 by taking a stone assaulted on
left eye of CW.5. Accused No.7 who was also present there, threatened them with
dire consequences if they support Manchaiah in the dispute in question. Raju,
the brother of the complainant who sustained the injuries was shifted to
NIMHANS Hospital for treatment and subsequently on 16.7.2002 at about 2.30
p.m., he succumbed to the injuries sustained by him. When the complainant was
in the hospital, his statement was recorded as per Ex.P1 and a case was registered
in Crime No.294/2002. After completion of investigation, the Investigating
Officer filed the charge sheet against the accused persons.
3. After filing of
the charge sheet, accused Nos.1 to 3 absconded and split up case was committed
as against accused Nos.4 to 7 to the Sessions Court. Subsequently,
accused Nos.1 to 3 were apprehended and their case was also committed
separately and in that light, these four cases have been separately registered and
tried by the Sessions Judge. The learned Sessions Judge after committal took
cognizance and after hearing the learned counsel for the parties, framed the
charge. Accused
persons pleaded not guilty and they claimed to be tried as such the trial was
fixed.
4. In order to prove
its case, the prosecution has got examined 28 witnesses as PWs.1 to 28 and got marked
the documents at Exs.P1 to P33 in SC.No.205/2002; 26 witnesses as PWs.1 to 26
and marked Exs.P1 to 21 in SC.No.49/2007; 21 witnesses (PWs.1 to 21) and marked
Exs.P1 to P26 in SC.No.189/2008; 7 witnesses (PWs.1 to 7) and marked Exs.P1 to
P3 in SC.No.135/2005. The prosecution has also got marked MO.Nos.1 to 12.
During the course of cross-examination, accused got marked Exs.D1 to D4. Thereafter
the statement of the accused came to berecorded under Section 313 of Cr.P.C. by
putting incriminating material as against them, which they denied. However,
they have not led any evidence. But, accused No.2 in SC.No.189/2008 filed the
written say along with his statement recorded under Section 313 Cr.P.C. After
hearing the parties, the impugned judgment and order of conviction and sentence
came to be passed by the trial Court convicting accused Nos.1 to 5 for the
offences punishable under Sections 143, 148, 324, 307, 302 r/w. Section 149 of IPC.
However, accused Nos.6 and 7 are acquitted of the offences with which they were
charged. Aggrieved by their conviction and sentence, accused Nos.1 to 5 have
preferred this appeal.
5. The main grounds
urged by the learned counsel Sri Rajanna B.C. appearing for the accused that
the witnesses examined before the Court are related and interested witnesses.
Though independent witnesses were available, the Investigating Agency has notrecorded
their statements. The place of incident is stated to be in front of the house
of Kamaraju, but the panchanama which has been drawn shows that it is in front of the house of
Chunchamma, hence there is contradiction in the spot mahazar at Ex.P3 and the evidence
placed before the Court. Though such evidence was available, the trial Court
has not properly considered and appreciated and wrongly convicted the
accusedappellants herein. PW.10, the wife of the deceased Raju is an eye
witness to the incident who has deposed that the alleged incident has taken
place and completed by midnight 12.00 or 1.00 O’clock. Thereafter, they went to
the hospital in an autorickshaw at about 2.00 a.m., and she was there in the
hospital up to 4.00 a.m, but the complaint came to be registered earlier to the
said dates and time. It is the version of the complainant-PW.1 that the alleged
incident has taken place at about 10.00 p.m., on 12.6.2002 and Ex.P1 complaint
was got registered at about 12.35 p.m. by recording the statement of PW.1 Inthat
light, he submitted that there is inconsistency of the statements and the
evidence produced by the prosecution. Though the prosecution has utterly failed
to prove the guilt of the accused, the trial Court has wrongly convicted the
accused-appellants herein. He further submitted that the medical records
produced before the Court do not disclose as to who brought the injured to the
hospital and who assaulted the injured and at what place and other details. If
really the injured witnesses were conscious, definitely they could have given
the history of assault and who actually assaulted them. In the absence of such
material, it can be inferred that the said documents have been concocted and created
only to implicate the accused persons in this case. There is no motive proved
by the prosecution. Even
the trial Court by relying on the evidence of the prosecution has wrongly
convicted the accused. He further submitted that the FIR has reached the jurisdictional
Court belatedly, which itself goes to showthat there was a debate and
discussion and thereafter the case has been registered against the accused persons.
No persons came forward when the alleged incident took place either to save the
deceased Raju or other injured witnesses. On these grounds, he prayed for allowing
the appeal by setting aside the judgment and order passed by the trial Court.
6. Per contra, Sri Vijayakumar Majage, learned Additional SPP appearing for
the respondent-State vehemently argued by contending that PWs.1, 2, 3, 5, 6 to
8 and 10 who are the eye witnesses to the alleged incident have categorically
deposed that the accused persons by constituting an unlawful assembly came to the
place where they were talking and assaulted the complainant and when deceased
Raju came there, they have also assaulted him with deadly weapons and caused grievous
injuries who ultimately succumbed to the said injuries. When there is an
evidence of the eye witnesses, motive need not be proved by the prosecution. Hefurther
contended that the evidence of PW.21 and other witnesses clearly goes to show
that there was a dispute regarding a site and in that light, there were two
groups, one group attacked another and caused the injuries. Hence,
there is no question of falsely implicating the accused persons in this case.
He further submitted that the defence which was taken by the accused is that as
the deceased consumed alcohol and fell down he sustained the injuries. But the
defence has not explained as to how and where other injured persons have sustained
the injuries. In the absence of such explanation, the version of the injured
witnesses can be relied upon by the Court for the purpose of conviction. He
further submitted that as the medical certificates are issued by the Government
Hospital there is no question of issuance of false certificates in respect of
the victims. Even
the prosecution has also produced MLC Register extracts before the Court and during
the course of crossexamination, the said document has not been denied. Under such circumstances, the appellants cannot contend that the
medical certificates are falsely created by the complainant and other injured.
He further submitted that there is a recovery of weapons and blood stained clothes
at the instance of the accused persons. If really no such incident has taken
place, they could not have produced the said articles. He further submitted
that if the accused persons have not been involved in the alleged incident,
they ought not to have absconded, but as per the evidence of PW.19, it
indicates that the accused persons were absconded and subsequently apprehended
which is also one of the circumstances to show the involvement of the accused
in the alleged incident. On these grounds, he prayed for dismissal of the
appeal by confirming the judgment and order passed by the trial Court.
7. We have carefully
and cautiously gone through the submissions made by both the parties and also perused
the records including the impugned judgmentand order. Though it is the
contention of the learned counsel for the appellants that all the witnesses are
related witnesses and PW.3 is the relative of the injured who is also a panchayat member by using
her position and foist a false case has been registered against the accused, it
is well established principle of law that merely because the witnesses are
related to each other, their testimony cannot be discarded. It is the duty of
the Court to scrutinize the evidence carefully and cautiously. As
could be seen from the evidence of PW.3 she is a relative of PW.1 and she is
also a member of Taluka Panchayat. Merely because she is related to other witnesses and she is
the member of Maddur Taluka Panchayat, no inference can be drawn that a case has been registered
against the accused persons by using her power and position. Even if we peruse
the evidence of the said witness, she went to the place of incident after hearing
the galata and
she has also asked as to why they were quarrelling, PW.1-Kamaraju and Kamalammaexplained
and at that time the accused persons assaulted PW.1 with macchu and other accused
persons also assaulted the other injured including the deceased Raju. When
PW.3 went to the spot after galata has started, there is no question of falsely implicating the
accused persons by using her power. Even if we peruse Exs.P7 to P12 they
clearly go to show that the injured have gone to the hospital and they got
treated. Exs.P13 to 18 are the extracts of MLC Register which is kept in the
ordinary course of business and there is an entry existing in respect of the
injuries suffered and the assault committed by the accused persons. With regard
to the first contention about the admissibility of the evidence of related and
closely related witness to the injured and deceased, there is no bar in
considering the evidence of relatives. On close analysis of the evidence of
those witnesses, it is clear, cogent and without much contradictions. When such
evidence is consistent and duly corroborated with medical evidence, it is notpossible
to discard the same only on the ground that they are related and interested
witnesses. Even no such material is placed to discard their evidence. In that
light, the contention taken up by the learned counsel for the accused is not
acceptable in law. It is the second contention of the appellants’ counsel that
no independent witnesses came forward when alleged incident took place, though
so many houses were situated in that area. It is true that no independent
witnesses came to pacify the galata when alleged incident took place. But generally no other persons
try to come and involve in the case that too in a criminal case when two groups
are fighting with regard to a site in the same village. It is only related and
interested witness who comes forward and gives the evidence. In the light of
the above discussion, we are of the considered view that there is no force in
the contention raised by the learned counsel for the appellants and hence, the
same is rejected.
8. It is the contention of the appellants’ counsel that nobody
came forward to save the injured and to pacify the quarrel. But during the
course of crossexamination of PW.1, he has deposed that when accused persons
assaulted, he made hue and cry and nobody came forward only because of the
reason that the accused persons threatened the said persons that they would
also finish them if they come forward to save the injured. As such the persons
who were residing near by the place of incident did not come and rescue them.
The said evidence appears to be natural and probable. When a galata is taking place
between two groups and if accused persons threaten them that if they come to rescue
the injured they would be finished, then under such circumstances, no persons
would come forward to take risk of their life and get an assault from the
accused persons.
9. As could be seen
the records and the paper book, PWs.1 2, 3, 5 to 8 and 10 are the eye witnesses
tothe alleged incident. They have categorically deposed that when PW.1 and
other injured were in front of the house of Chunchamma and were talking about
at 10.00 p.m. the accused persons by constituting an unlawful assembly came and
scolded them in filthy language and at that time, accused No.1-Ananda assaulted
the complainant on his head with macchu
and accused No.2- Sathisha stabbed with
knife on his right shoulder and Shekhar and Santhosh assaulted with club on his
leg and other parts of the body. They further deposed that when PW.4- Kamalamma
asked the accused persons as to why they are assaulting, accused persons also
assaulted her with macchu and club and also threatened her with dire consequence. In the
meanwhile, the deceased Raju also came there and asked as to why they are
assaulting, at that time the accused persons assaulted him on his head and
other parts of the body and as a result of the same, he fell down and became
unconscious. They further deposed that when Nirmala, Madhukar, Bhanuprakashcame
to pacify the quarrel, accused persons also assaulted them and caused injuries.
On going through the evidence of all these witnesses, there is consistency and
corroboration in so far as the overt acts of each of the accused in assaulting
PW1, the complainant and the deceased Raju and other injured witnesses. Even
they have also categorically deposed that there was a dispute with regard to
site No.26 of Valagerehalli Village between Manchaiah and Lakshmaiah and
accused were supporting Lakshmaiah whereas the injured were supporting Manchaiah.
In that light, there was a dispute and the accused persons by constituting an
unlawful assembly brought the deadly weapons and assaulted the injured witnesses
as well as the deceased Raju. When there are eye witnesses to the alleged
incident, motive is not relevant. In the case on hand, the prosecution has also
established that the accused and injured persons were having animosity in
respect of the dispute regarding the site.
10. It is well established principle of law that testimony of
injured witnesses has to be given a greater weight and much weight has to be
given to their presence at the time of alleged place of occurrence and it cannot
be doubted. It is also now well settled that it is not likely to spare the real
assailant and implicate the innocent person in order to discard the evidence of
the injured witnesses. There must be cogent evidence before the Court, then
only the testimony of the injured witnesses can be discarded. In that light,
defence has not brought any material and as such, the evidence of the injured
witnesses is acceptable and reliable. This proposition of law has been laid
down by the Hon’ble Apex Court in the case of Chandrasekar
& another Vs. State
reported in (2017)13
SCC 585, wherein at paragraph-10, it is observed
thus:-
‘10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that hewas speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P. observing as follows: (SCC p 302.para 28)
“28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.”….’
11. The aforesaid principle of law has been reiterated by the
Hon’ble Apex Court in the case Mohd. Ishaque
& others Vs. State of West Bengal & others, reported in (2013) 14
SCC 581 at Head Note- A, which reads as under:-
“A. Criminal Trial – Witnesses – Injured witness – Credibility – Criteria of appreciation – PWs.1, 2 and 4 in the present case sustained serious injuries and their evidence was believed by the court – Testimony of injured witnesses is entitled to great weight – It is unlikely that they would spare the real culprit and implicate an innocent person – Of course, there is no immutable rule of appreciation of evidence that evidence of injured witnesses should be mechanically accepted, it should also be in consonance with probabilities – Whether witnesses are interested persons and whether they had deposed out of some motive cannot be sole criterion for judging credibility of a witness – Main criterion would be whether their physical presence at the place of occurrence was possible and probable.”
12. Keeping in view the ratio laid down in
the aforesaid decisions if we peruse the evidence of PW.15- Dr.K.S.Vinaykumar,
who has examined the injured including the deceased who sustained the injuries
in the alleged incident on 13.6.2002, he has deposed thatinjured Raju,
Kamalamma, Madhukara, Bhanuprakash, Nirmala and the complainant came to him
with the history of the injuries due to assault at about 10.30 p.m. on
12.6.2002. He examined them and issued the wound certificates at Exs.P7 to P12.
He has also produced MLC Register extracts which are marked as Exs.P13 to P18. Even
the injuries sustained by all the injured correspond to the evidence of the eye
witnesses. Even as could be seen from the evidence of the doctor-PW.14 who has conducted
the postmortem examination over the body of the deceased who died subsequently
on 16.7.2002, he has opined that death was on account of assault with club at
10.00 p.m. on 12.6.2002 at Valagerehalli Village. Though
the learned counsel for the accused-appellants would contend that there is
inconsistency in the evidence of PW.14 and the eye witnesses, eye witnesses
have deposed that accused No.1 assaulted with macchu
on the deceased and the doctor has stated
that assault was with club, on careful and close scrutiny of the evidence ofPW.15,
he has deposed that he has sustained those injuries on account of assault with
same weapon as stated above. In that light, he has also seen chopper, macchu, club and stone.
As could be seen from the evidence of the eye witnesses, they have
categorically and consistently stated the overt acts of each of the accused with
which weapon they have assaulted the deceased and the injured. In that light,
if there is any inconsistency in the evidence of the eye witnesses and the
medical evidence, the Court has to believe the evidence of the eye witnesses.
In other words, ocular evidence prevail over the medical evidence. Even the evidence
of PW.14 does not help the accused-appellants since he has neither seen the
said deceased Raju when he was brought with the injuries in a coma condition to
NIMHANS hospital. Under such circumstances, the history which is said to have
been given for the death does not take away the case of the prosecution. The main
criterion would be whether their physical presenceat the place of occurrence
was possible and probable. Injuries
sustained by them would probablize their presence. The testimony of the injured
eye witnesses is corroborated with the evidence of other witnesses including
PWs.14 and 15 and recovery of the weapons by the Investigating Officer. Even it
is the case of the prosecution that the accused persons immediately after the
incident they threw the weapons at the spot and ran away and the same have been
collected by one person by name Nagaiah. Though it is the contention of the learned
counsel for the appellants-accused that Nagaiah had accompanied the injured and
there is inconsistency in the evidence of the witnesses and the recovery of the
said weapons, naturally the witnesses will leave the scene of offence as it is,
but in the in case on hand, the said weapons have been taken by Nagaiah and
kept into his house and subsequently he produced. Merely because he collected
the weapons and kept the same in his house, the evidence of eye witnesses
cannot bethrown to wind. In that light, the contention taken up by the learned
counsel for the accused-appellants is not sustainable in law and the same is
rejected.
13. The next
contention of the appellants’ counsel is that though the complaint is
registered as per Ex.P1 on 13.6.2002 at about 1.10 a.m., PW.28 carried the FIR
and handed over the same to the jurisdictional Magistrate at about 11.00 a.m.,
on 13.6.2002. On going through the evidence of PW.28, it reveals that at about
1.40 a.m. on 13.6.2002, the FIR has been entrusted and given possession to
PW.28 and as he was orderly working in Court was directed to take the FIR he
carried and submitted the same at 11.00 a.m. personally. When the FIR is
registered at about 1.10 a.m. and handed over at 1.40 a.m. to hand over it to
jurisdictional Court, then under such circumstances there is no delay at all in
issuing the FIR by the concerned police. It is only in carrying and delivering,
the delay has been caused. In that light, no adverse inference can be drawn
that thereis a delay and there is every possibility of tampering and concocting
the case of the prosecution.
14. Be that as it
may, even as could be seen from the evidence of PW.28, he has deposed that the
FIR has been handed over to the jurisdictional Court at 11.00 a.m. on
13.6.2002. This witness has not been crossexamined by the defence for the
reasons best known to them. When this witness has not been cross-examined, then
under such circumstances, the appellants-accused cannot now contend that there
is a delay in sending the FIR to the jurisdictional Court and there is
possibility of concocting the case of the prosecution. The said plea is not
having any force and as such we are of the considered opinion that the same is
not sustainable and it deserves to be rejected and accordingly the same is rejected.
15. Even as could be
seen from the conduct of the accused, immediately after the incident, accused
Nos.3and 5 were absconding. As per the evidence of PW.19 they were arrested on
4.7.2002 and even PW.19 is not cross-examined regarding the apprehension of the
accused. When there is consistency in the evidence to the effect that the
accused persons have assaulted and subsequently they absconded from the place
of incident, an inference can be drawn that the accused persons after committing
the offence in order to conceal themselves have absconded.
16. Learned counsel
for the accused by drawing our attention to the evidence of PW.26 contended
that PW.26 has deposed that MO.No.1-knife was having a plastic handle, but the
other witnesses have deposed that the knife was having wooden handle. There is
inconsistency in the evidence in this behalf. No doubt as could be seen from
the cross-examination of PW.26, he has deposed that the said knife was
recovered as per Ex.P3 and MO.No.1-knife was having plastic handle. When the accused
persons by constituting an unlawful assemblycame and assaulted the deceased and
the injured that too, at about 10.00 p.m., then under such circumstances, it is
but natural that at the time of assault nobody would observe very keenly as to
what was the type of handle of the knife with which accused assaulted and their
concentration would be towards galata. The said contradiction appears to be a minor which cannot take
away the case of the prosecution and testimony of the eye witnesses. In that
light, the contention raised by the appellants’ counsel in this regard is
rejected.
17. Alternatively,
the learned counsel for the appellants submitted that the accused persons were
not having any intention or motive at the time of alleged incident so as to
cause the death of the deceased Raju and deceased died in the hospital after
lapse of one month, under such circumstances, the trial Court ought to have
convicted the accused for the lesser offence. But as could be seen from the
evidence of the eye witnesses and the evidence of the doctor-PW.15, the
deceasedsustained severe concussive head injury, split lacerated injury on the
left side of skull extending from frontal region till occipital region and even
the evidence of the eye witnesses clearly goes to show that the accused No.1 assaulted
the deceased Raju on his head when he tried to pacify the quarrel. At the time
of assault, he uttered while assaulting PW.2-Kamalamma to die and when he assaulted
the deceased he also uttered the words “I will also cause the same and smash
him” which clearly go to show that he was having an intention to cause the
death of the deceased. Be that as it may, it is the case of the prosecution
that the accused persons by constituting an unlawful assembly came with deadly
weapons, near the house of Chunchamma where Kamaraju, Kamalamma were talking
with an intention to assault them. When they carried the weapons along with
them that too deadly weapons, then under such circumstances, it cannot be held
that the incident has taken place in a spur of moment without any intention to
cause the death. Inthat light, the contention raised by the appellants’ counsel
in this regard does not stand to any reason so as to extend the benefit of
convicting the accused and reducing the sentence for lesser offence.
18. We have gone
through the judgment and order passed by the trial Court. We have also gone
through the entire material on record including the lower Court records with
exhibits. The trial Court after considering the entire material on record which
is consistent with the evidence of the eye witnesses has come to a right conclusion
and has rightly convicted the accusedappellants herein. Even on reappreciation
of the entire evidence on record, we are of the considered opinion that it is
not a case where another view is reasonably possible so as to give the benefit
to the accused. The accusedappellants herein have not made out any good grounds
so as to say that the impugned judgment and order is perverse and not in
accordance with law.
Hence, the appeal being devoid of merits, deserves to be
dismissed and accordingly the same stands dismissed.