Madesh and Others vs The State of Karnataka

P.S. Dinesh Kumar, J.—The appellants, in this appeal, were tried, convicted and sentenced to undergo life imprisonment and to pay fine with a default clause by judgment dated 1st January 2010 passed in S.C. Nos. 98 & 228/2007, on the file of the IV Addl. District & Sessions Judge, Mysore. Being aggrieved by the said judgment and sentence, the appellants have preferred this appeal.

We have heard Shri Somashekar Kashinath for the appellants, Shri Chethan Desai, learned HCGP for the respondent-State and perused the records.

Learned Counsel for the appellants submitted that the Court below has recorded the conviction and passed orders of sentence, without there being any cogent evidence and prosecution having failed to prove its case beyond reasonable doubt and accordingly prays for setting aside the order of the court below.

Per contra, learned HCGP supports the order of the trial Court and prays for dismissal of the appeal.

The case of the prosecution is that P.W. 1, accused Nos. 1 and 2 are brothers and residents of Haginavalu village in Nanjangud Taluk. During the lifetime of their father, there was a family partition and in that a land measuring 1 acre 20 guntas was retained by their parents. After the death of their parents, P.W. 1 was demanding that the land retained by their parents be partitioned. On 27.4.2006, the wives of accused Nos. 1 and 2 had assaulted wife of P.W. 1 in connection with the said family dispute. Wife of P.W. 1 had lodged a complaint before the police who had called the accused and their wives and advised them suitably.

On 5.7.2006, at about 7.30 P.M., the accused Nos. 1 and 2 trespassed into their house. Accused No. 2 held Mahadevamma, wife of P.W. 1 and accused No. 1 stabbed her with a knife couple of times, inflicting grievous injuries. P.W. 1 raised hue and cry, as a result of which P.W. 23 - Chikkandaiah and one Mahadevaswamy came to the spot. Incidentally, the District Reserve Police were present in the village in connection with some other case and P.W. 1 immediately informed them about the incident, who in turn intimated the Rural Police Station of Nanjangud. The police came to the spot and shifted injured Mahadevamma to J.S.S. Hospital, Mysore, for treatment, where she succumbed to the injuries. A complaint as per Ex. Pl was registered at 11.55 P.M. on 5.6.2006 in crime No. 177/2006, for offences punishable under Sections 448 , 341 , 114 , 302 , read with Section 34 of IPC in Nanjanagudu Rural police station.

After investigation, the C.P.I. - P.W. 21 has laid the charge sheet. After trial, the Court below has convicted and sentenced the accused.

To prove its case, the prosecution has examined 26 witnesses, got 41 exhibits and 12 material objects marked. No witness is examined nor any document marked on behalf of the defence.

P.W. 1, the husband of the deceased is the Principal witness in this case.

P.W. 2 is the niece of P.W. 1 (daughter of elder sister of the deceased).

P.W. 3 is the brother of the deceased.

P.W. 4 is the scribe of Ex. P1-complaint and panch witness to the inquest mahazar - Ex. P. 4 and seizure mahazar - Ex. P. 5, where under the cloths of the deceased were seized.

P.Ws. 5 and 12 are panch witnesses to the spot mahazar Ex. P3. Both have turned hostile.

P.Ws. 6 and 17 are panch witnesses to seizure mahazar Ex. P29 under which M.O. 7 (knife) seized at the instance of accused No. l. Both have turned hostile.

P.W. 7 is an independent witness who had seen the deceased and P.W. 1 returning from their work.

P.W. 8 is the medical officer who examined the deceased immediately after the incident and issued wound certificate Ex. P. 9.

P.W. 9 is the secretary of the Panchayath who has issued the assessment register extract of the house (Ex. P. 10) where P.W. 1 and deceased were living.

P.W. 10 is an officer of the Electricity Company who has certified that the village had electricity supply on the date of incident.

P.W. 11 is the photographer.

P.W. 13 is the doctor who conducted post mortem and issued report as per Ex. P 16.

P.W. 14 is the reserve policeman who was present in the village at time of incident in connection with some other work.

P.W. 15 is an head constable before whom deceased had lodged complaint Ex. P. 22, a complaint against Accused Nos. 1 & 2 and their wives.

P.W. 16 was a member of the panchayath which had tried to resolve the family dispute between the accused and P.W. 1.

P.W. 18 is witness to the inquest mahazar - Ex. P. 4.

P.Ws. 19, 20, 23 to 25 hail from the same village but turned hostile. They were supposed to speak about the accused entering the house of P.W. 1, or coming out of the house after the incident.

P.Ws. 21 is I.O. who has laid the charge sheet.

P.W. 22 is PSI who has registered complaint Ex. P. 1.

P.W. 26 is JMFC, Nanjangud, who has recorded the statement of P.W. 1 under Section 164 Cr.P.C.

As mentioned supra, P.W. 1-husband is the important eyewitness to the incident. He has deposed in his evidence that he is eldest among three brothers; he and his wife had gone to attend the agricultural operations and returned home in the evening at about 6.00 P.M.; he had his evening tea and relaxing on the cot; the main door of the house was not fully closed; he heard a knock on the main door and before he could get up, his younger brothers accused Nos. 1 & 2 barged inside and all of a sudden accused No. 2 held his wife who was in the kitchen. The accused No. 1 started stabbing his wife and inflicted stab injures on both sides of the stomach, forearm, lower abdomen and left shoulder. Accused No. 2 while holding the deceased firmly was provoking accused No. 1 to stab the lady and he was assuring accused No. 1 that he would standby him under all circumstances.

The accused ran away immediately after the incident and the wife of P.W. 1 came out of the house crying and collapsed. By that time, P.W. 23 and Mahadevaswamy (P.W. 4) came near the house. Incidentally, some personnel of the District Reserve Police were in the village in connection with some other case and P.W. 1 informed them about the incident who visited the spot and informed the concerned police station. The police arrived at the scene of offence and the P.S.I., helped in shifting the injured to J.S.S. hospital. The wife of P.W. 1 succumbed to the injuries at 11.20 P.M. in the hospital. Thereafter, P.W. 1 lodged a complaint as per Ex. P1.

P.W. 1 in his evidence has also spoken about his family affairs, his agricultural operations, his dealings with the bank etc. He has identified the knife M.O. 7 which was used to assault his wife. In the cross-examination, the defence has sought to introduce a theory of P.W. 1''s desire to marry some other lady as he did not have any issues from his deceased wife. However, the P.W. 1 has denied the said theory of an ostensible motive for P.W. 1 to commit the murder of his wife and withstood the cross-examination firmly. However, he has admitted in the cross-examination that one year after the death of his wife, he married an Anganawadi teacher namely, Nagamani. The other suggestions such as his acquaintance with Nagamani even during the life time of first wife is denied.

P.Ws. 2 and 3 have supported the version of P.W. 1. P.W. 2 in her evidence has deposed that the deceased used to confide in her with regard to the family fights between the deceased and the accused.

P.W. 16 is a panchayathdar, who had advised that share must be given to P.W. 1 in the crop.

P.Ws. 4, 7, 17, 19, 20, 23 to 25 have turned hostile to the case of the prosecution.

P.W. 8 is the doctor who attended the injured in J.S.S. hospital in his examination-in-chief, he has narrated the details with regard to the injuries sustained by the deceased and identified his signature in the wound certificate-Ex. P9. He has deposed that injured has suffered the following injuries.

"1. Laceration present on the lateral side of the left arm 4 cms.

Laceration present on the medial side of the left arm 3 cms.

Laceration present on the medial side of the right wrist.

ABDOMEN:

Incised wound omentum present 8 cms. below the left nipple.

Incised wound present with omentum 7 cms. below right nipple."

The doctor has opined that the above injuries are grievous in nature and M.O. 7 could have caused above injuries. According to him, the cause of death is cardiac arrest due hypo lemic shock following multiple injuries. However in the cross-examination, except his admission that he was seeing the M.O. 7 in the Court and not earlier, the defence has not been able to elicit anything fatal to the case of prosecution.

P.W. 13 is the doctor who conducted the post mortem and issued the P.M. report as per Ex. P16. While deposing, he has identified his signature on the P.M. report. He has deposed that he has observed following injuries.

"1. Stab wound pear shaped, obliquity placed measuring 5 X 2 c.m. X cavity deep present on the right lower chest. It is 8 cms. aware from the mid line and 13 cms. below right nipple. The margins of the wound are sharped. Tailing of 2 c.m. (of wound) present at its upper end.

Vertically placed spindle shaped stab wound measuring 2 X 3 cms. present over the left costal margin and is cavity deep (abdominal) depth is 13 cms. directing backwards, downwards and medially. It is 12 c.m. away from the mid line and 17 cms. below the left nipple margins are regular.

Stab wound of 1 X 1 cms. X abdominal cavity deep, present on the lower outer quadrant of abdomen.

Cut wound of 6 X 1 cms. X bone deep present on the inner aspect of the right forearm at its middle part. The underlying bone is cut involving a part of outer table of 0.5 c.m. X 0.2 cms. Extravasation of blood present.

Penetrating injury entering the outer and inner side of the middle of left arm measuring 4 X 1 cms. and 3 X 1 c.m. respectively. Intervening distance is 8 cms."

According to him, the death was due to shock and hemorrhage consequent to stab injuries. With regard to the knife, he has stated that he has given a separate opinion as per Ex. P17 wherein he has mentioned that external injuries and the corresponding internal injuries could be caused by using the knife - M.O. 7 which was sent for his examination and opinion by the Circle Inspector of Police, Nanjangud.

P.W. 15 speaks about the complaint Ex. P. 22 said to have been filed by the deceased on 27.4.2006. Ex. P22 is a complaint lodged by the deceased against both accused and their respective wives alleging inter alia that on 26.4.2006, both couple had gone to her house, picked up a quarrel with regard to the landed property, scolded her in filthy language and assaulted her, causing injury to her hand. It is also stated therein that both the couple were frequently quarrelling with her.

P.W. 21, Inspector of Police and investing officer has deposed that accused No. 1 was produced before him and based on his voluntary statement, the cloths of the accused were seized under a panchanama Ex. P27 which are marked as M.Os. 11 and 12. He has recovered the knife - M.O. 7 which was hidden on the inner side of the roof of the house belonging to the second wife of accused No. 1 under Ex. P29. He has identified the M.Os. 7, 11, 12 and other material objects about which he has deposed. In the short cross-examination by the defence, nothing much is elicited from this witness which would adversely affect the case of the prosecution.

An analysis of evidences of P.W. 1 (husband of the deceased) P.W. 2 (niece of the deceased) & P.W. 3 (brother of the deceased) clearly establish that the accused barged into the house of P.W. 1 and committed the offence as aforementioned. While P.W. 2 firmly held the victim, accused No. 1 stabbed the victim mercilessly. Thus, the accused with common intention have entered the house and committed the heinous offence of killing their sister-in-law.

However, during the course of argument, the appellant has urged the following grounds that:

a) there are no independent witnesses to the incident;

b) the recovery of knife is not proved;

c) evidence of P.W. 1 is not consistent with that of other witnesses;

d) majority of witnesses have turned hostile; and

e) motive for the murder is not proved.

The ocular testimony of P.W. 1 who is none other than the husband of the deceased, who has narrated the incident meticulously and withstood the cross-examination firmly, is in fact a sufficient evidence to hold that the accused have committed the crime. However, in addition to the ocular testimony of P.W. 1, the corroborative evidence of P.Ws. 2 and 3 is also available on record. Therefore, the grounds suggesting that an independent witness is not found in the instant case is untenable and accordingly rejected.

Adverting to the second ground, the appellant has relied on a ruling of the Apex Court in the case of Anil Sute and Another Vs. State of Maharashtra, , to support the submission that the prosecution cannot rely on the evidence of discovery of weapon on the testimony of panch witnesses who have turned hostile. It is no doubt true that the panch witnesses to the recovery mahazar Ex. P29 viz., P.Ws. 6 and 17 have turned hostile. However, the doctor who has treated the deceased before her death (P.W. 8) and the doctor who has conducted post mortem (P.W. 13) have supported the case of the prosecution. The gist of their deposition as extracted supra clearly establishes that the M.O. No. 7 was seen by both the doctors during the course of deposition in the Court and they are of the opinion that the said weapon would cause the injuries found on the body of deceased. In addition, P.W. 13-the doctor who has conducted the post-mortem has given a separate certificate as per Ex. P17 which was sent to him for his opinion by the investigating officer on 20.7.2006, that the external injuries Nos. 1 to 5 and the corresponding internal injuries could be caused with the use of the said weapon.

Further, to corroborate the evidence of the doctor with regard to the weapon, we have the evidence of Investigating Officer (P.W. 21). He has categorically deposed in his evidence that as per the voluntary statement of the accused No. 1, he was taken to the house of his second wife along with the panch witnesses. The accused No. 1 produced the knife (M.O. 7) which was seized under panchanama Ex. P29. The I.O. has identified his signature as Ex. P29(a). He has denied the suggestion on behalf of the defence that M.O. 9 before the Court was not the one used by the accused to commit the offence. The I.O. is an independent officer of the State and there is no reason why his testimony should be rejected. The defence has not elicited anything in his cross examination which may render his evidence shaky so as to discard the same.

It is now fairly well settled that when a police officer gives evidence in Court that certain article was recovered by him on the strength of the statement made by the accused, it is open to Court to believe his version to be correct if it is not otherwise shown to be unreliable. We may usefully extract the view of the Apex Court on this point, reported in the case of State, Govt. of NCT of Delhi Vs. Sunil and Another, which reads thus:-

"21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

The prosecution has also cross-examined P.Ws. 6 and 17 after they were declared hostile by the public prosecutor and suggested that the weapon was seized in their presence which has been denied by them. Both the witnesses are residents of the same village and admitted that they were acquainted with P.W. 1 and the accused. Therefore, even though the panch witnesses to the recovery mahazar have turned hostile, in the light of the evidence of the two doctors and their opinion together with the evidence of Investigating Officer, it can be safely concluded that M.O. 7 is the weapon which has been used by the accused to commit the offence.

Adverting to the ground suggesting that the evidence of P.W. 1 is not consistent with the other witnesses, we are of the view that when more than one witness is examined and different versions may be given by different witnesses and it is for the court to use the judicial acumen to arrive at a just conclusion as is normally oft coated in the phrase ''to remove the grain from chaff. We have already held that the evidence of P.Ws. 1, 2 and 3 is consistent and cogent. Therefore, the ground that the evidence of P.W. 1 is not consistent with the other witnesses is of little consequence.

The next ground urged on behalf of the appellant is that majority of the witnesses have turned hostile. As held by us, even though there are large number of witnesses giving various versions, vis-�-vis an incident, it is for the court to analyze all the witnesses and to come to a just conclusion. In this case, P.Ws. 4, 12, 17, 18, 19, 20, 23, 24, and 25 have turned hostile. A perusal of list of witnesses and the analysis of entire case leads us to an irresistible conclusion that the death of deceased is a homicidal death committed by the accused due to a long standing enmity between the accused and their respective wives on one side, P.W. 1 and his deceased wife on the other side stands and the prosecution has proved the same beyond reasonable doubt.

The trial Court after appreciating the evidence on record has come to the right conclusion and recorded conviction against the accused. On re-appreciation of the material on record, we are also of opinion that the evidence placed by the prosecution before the court is credible, consistent and cogent. The important witnesses have fairly withstood the cross-examination and a careful analysis of the witnesses as recorded by us hereinabove proves the case of the prosecution beyond reasonable doubt.

In the circumstances, the appeal fails and is accordingly dismissed.