A.B. Vasu vs State

Mohan M. Shantana Goudar, J—The judgment and order of conviction dated 28.6.2010 passed by the Principal Sessions Judge, Mandya in Sessions Case No. 48/2009 is called in question by the convicted accused.

The appellant/sole accused was charged and convicted for the offence punishable under Section 302 of IPC.

This is a case of ghasthy crime involving murder of two persons, simultaneously.

Case of the prosecution in brief is that the elder sister of the accused, Smt. Jyothi was married to Shankaregowda, who was working as Archak in Shanidevaru temple (hereinafter called as D-1); however, D-1 deserted Smt. Jyothi; consequently Smt. Jyothi had moved the Civil Court and Family Court for appropriate reliefs; number of litigations were pending between the husband and wife; Ramakrishnegowda (hereinafter called as D-2) is the younger brother of D-1; he was working at Bombay. However, he came back to the village about 3-4 years prior to the incident in question i.e., after quarrel ensued between D-1 and his wife Jyothi. After deserting Jyothi, D-1 had married P.W. 8-Smt. Bharathi. In that regard, accused being the elder brother of Smt. Jyothi was nursing grouse against D-1.

At about 7.45 p.m. on 26.10.2008, when Archak of Shanidevaru temple-D-1 was performing pooja near Aralikatte situated in front of temple, the accused came to the said spot holding a chopper and assaulted D-1 mercilessly all over the body; Ramakrishna Gowda (D-2) who was running a shop near the temple rushed to the scene in order to save his brother; the accused did not spare him and he was also assaulted with the chopper, consequent upon which, both D-1 and D-2 collapsed on the ground and died instantaneously.

One of the eye-witnesses (P.W. 1) lodged the complaint as per Ex. P1 before the Assistant Sub-Inspector of Police of K.R. Pet town police station (P.W. 22), Mandya district at about 8.40 p.m. on 26.10.2008 consequent upon which, the said Assistant Sub-Inspector of police registered Crime No. 186/2008 in the said police station for the offence punishable under Section 302 of IPC. He issued the FIR as per Ex. P19. During the course of investigation, the autopsy of both the dead bodies were conducted, ultimately, P.W. 24, the Inspector of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 25 witnesses and got marked 30 exhibits and 15 material objects. On behalf of the Court, 4 exhibits were got marked. The defence did not adduce any evidence and did not mark any evidence on its behalf. As aforementioned, the trial Court convicted the accused for the offence punishable under Section 302 of IPC and sentenced him to undergo life imprisonment.

The State has not filed the appeal praying for enhancement of sentence.

Sri. Anand, learned advocate for the convicted accused taking us through the entire material on record submits that all the witnesses except the eyewitnesses have turned hostile to the case of the prosecution; the evidence of P.Ws. 2 and 3 is contradictory to the version of P.W. 1; the presence of P.W. 1 on the spot is doubtful; since P.W. 3 is the student studying in a different village, there was no occasion for him to visit the temple situated in Harirayanahalli. According to him, the case of the prosecution as put forth before the Court is artificial and hence, the accused should be given the benefit of doubt.

The said submissions are opposed by Sri. P.M. Nawaz, learned SPP.

P.Ws. 1, 2 and 3 are the eyewitnesses to the incident in question. Among them P.W. 1 is the complainant. He lodged the complaint as per Ex. P1. P.Ws. 4, 5, 6, 9, 10, 13, 14, 15, 16, 17 and 18 have turned hostile to the case of the prosecution. Their evidence may not be of much use either to the prosecution or to the defence. However, the evidence of P.Ws. 7, 8, 11, 12 supports the case of the prosecution to certain extent in as much as, they have deposed about the motive for the accused to commit the offence. P.W. 19 Doctor H.T. Venkatesh conducted autopsy over both the dead bodies and issued post mortem report as per Ex. P13 and Ex. P14. P.W. 21 is the Junior Engineer. He drew the sketch of scene of offence as per Ex. P18. P.W. 20 is the Scientific Officer of Forensic Science laboratory. He has examined the article sent for the laboratory for examination and issued the report as per Ex. P17.

The evidence of the Doctor P.W. 19 and post mortem reports Exs. P13 and P14 would amply prove that both the deceased have suffered homicidal death. Shankar Dixit @ Shankaregowda (D-1) has sustained as many as 8 incised wounds. The Doctor has opined that his death is due to shock and hemorrhage, as a result of fatal injuries to major vessels and multiple fractures. Ramakrishna Gowda (D-2) has suffered one incised wound apart from abrasion. The incised wound was measuring 10 x 5 x 4 inches starting from a point behind and below the right ear extending downwards and medially below the lower border of mandible encircling the neck pointed 1 inch right lateral to the middle line in front of the neck, cutting the larynx, esophagus, large blood vessels and nerve roots on the left side of the neck and cutting the 2nd, 3rd and 4th vertebra and spinal cord. The head of D-2 was almost detached from the trunk.

From the aforementioned narration of the injuries, it is clear beyond reasonable doubt that it is a case of ghastly murder of two persons with the use of chopper (a sharp cutting weapon). It is also clear from the records that because of the injuries sustained, both the deceased died instantaneously on the spot. Hence, the trial Court is justified in concluding that this is a case of two homicidal deaths.

The case of the prosecution mainly depends upon the version of the eyewitnesses (P.Ws. 1, 2 and 3). As aforementioned, P.W. 1 is the complainant. He has deposed before the Court supporting his version as found in the complaint. The complaint discloses all the material particulars with regard to the incident in question. It also discloses about the motive for commission of the offence i.e., the desertion by the D-1 of his first wife i.e., the elder sister of the accused. Almost similar material is spoken to by P.W. 1 before the Court. It is clarified by P.W. 1 that the accused had brought chopper and assaulted Shankaregowda who was taking rounds near Aralikatte situated in front of the temple. D-2 arrived in the meanwhile and he was also assaulted by the accused. Thereafter, the accused fled away from the scene with the chopper. P.W. 1 has also deposed about the motive for commission of the offence. However, it is deposed by P.W. 1 that accused surrendered before the police station. It seems such version of P.W. 1 runs contrary to the version of the Investigating officer, who has deposed that he arrested while the accused was running away from the scene. Be that as it may.

In so far as the incident of committing murder of both the deceased is concerned, P.W. 1 has withstood in his cross-examination. He fully supports the case of the prosecution as found in Ex. P1. He has identified the M.O. 1 chopper used by the accused for commission of the offence. He has also deposed as to the lodging of the complaint by him. It is no doubt true that P.W. 1 has deposed that the accused switched of the light in the temple at the time of incident. That does not mean that the accused could not have been seen by anybody much less, by P.W. 1, on the contrary, the cross-examination by the defence would clearly reveal that the defence admits the presence of accused on the scene. Even otherwise, the evidence of P.W. 1 which is consistent with the case of the prosecution and which has remained almost untampered even in cross-examination, would reveal the overt acts of the accused on both the victims. It is relevant to note that P.W. 1 has deposed about the presence of P.Ws. 2 and 3 along with him at the time of incident.

P.W. 2 has deposed that she had been to temple at about 7-7.15 p.m. on the date of incident for performing pooja; she had given the pooja materials to D-1 for performing pooja in Shanidevaru temple. After performing pooja, D-1 was taking rounds near Aralikatte. At that point of time, the incident has taken place. She has fully supported the case of the prosecution as well as the evidence of P.W. 1 by deposing that the accused came to the spot while D-1 was going back inside the temple after taking rounds near Aralikatte and D-1 was assaulted by the accused mercilessly with the chopper and when D-2 intervened he was also not spared by the accused. However, P.W. 2 did not depose about the motive for commission of the offence, hence, she was treated hostile by the prosecution only on that point. In the cross-examination by the Public Prosecutor, P.W. 2 admits that the crime has taken place because the accused was aggrieved by the action of D-1 in deserting his first wife and marrying P.W. 8 as his second wife. Though P.W. 2 is subjected to certain amount of cross-examination by defence, nothing worth is elicited so as to discard her evidence; she has reiterated that D-1 had married second wife by deserting his first wife, who is none other than the elder sister of the accused and in that regard, the incident has taken place.

P.W. 3 was aged about 14 years at the time of incident and he was studying in 9th standard. The trial Court, after testing his capacity to depose, administered oath to him, after being satisfied that P.W. 3 knows the importance of oath which he had taken. P.W. 3 has deposed that he had gone to the temple at about 7.00 p.m. on the date of incident and at that point of time P.Ws. 1 and 2 were there; accused came to the spot with chopper and assaulted D-1 initially, who collapsed on the spot and when D-2 intervened, he was also assaulted by the accused. He also did not depose about the motive for commission of the offence. In that regard the prosecution has treated him as hostile only for limited purpose. However, in the cross-examination by the Public Prosecutor he admits that there was ill-will generated because of the desertion by D-1 of his first wife who is none other than the elder sister of the accused. The defence was not able to shake the evidence of P.W. 3 by cross-examining him. At one point of time, P.W. 3 has admitted that he has gone to the temple that too in the afternoon and thereafter he had not visited. However, in the succeeding paragraphs P.W. 3 has clarified that he had been to temple at 7.00 p.m. on the date of incident also and he had seen the crime committed by the accused.

On going through the evidence of P.Ws. 1 to 3 meticulously, we are of the clear opinion that their evidence is consistent, cogent and highly reliable. We do not find any ground to disbelieve the evidence of these three witnesses, more particularly, when they are independent villagers. Nothing is suggested to them to show that they are biased against the accused or they are favouring the family of the deceased. Their presence on the spot appears to be natural. Even on reconsideration of the material on record, we fully agree with the reasons assigned by the trial Court for believing the version of P.Ws. 1 to 3. Absolutely no material is found to suspect their evidence. Nothing worth is brought out by the defence in its favour, in the cross-examination of these witnesses.

The ocular testimony of P.Ws. 1 to 3 is fully supported by the medical evidence. We have already mentioned supra that both the deceased have sustained incised wounds on their body. The weapon used is chopper which is a sharp cutting weapon. Hence, it is clear that the ocular testimony as supported by the medical evidence proves the case of the prosecution beyond reasonable doubt.

The articles including the blood stained clothes of the victims and accused, blood stained mud as well as chopper were sent for scientific examination. The Forensic Science Laboratory report as well as the Serologist report Exs. P17 and P30 respectively would make it amply clear that all such articles were blood stained and having "O" blood group. Thus, it is clear that the blood group on the blood stained clothes of the deceased matches with the blood group on the chopper (M.O. 1) used for commission of the offence. The Forensic Science Laboratory report as well as the Serologist report coupled with the evidence of Doctor has proved beyond reasonable doubt that the chopper which is seized during the course of investigation is used for the commission of offence.

Aforementioned discussion leads us to the only conclusion that the accused has committed the offence of murder punishable under Section 302 of IPC. Hence, no interference is called for. The appeal fails. The same stands dismissed.