(Prayer: This Appeal is filed under Section 374(2) Cr.P.C. praying to set aside the order dated 13.10.2011, passed by the II Additional City Civil and Sessions Judge and Special Judge, Bangalore in S.C. No. 611/2010, convicting the appellant/accused for the offence punishable under Section 302 of Indian Penal Code.)
Mohan M. Shantanagoudar, J.
1. The judgment and order of conviction dated 13.10.2011 passed by the II Additional City Civil and Sessions Court, in SC.No. 611/2010 convicting the accused-appellant herein for the offence punishable under Section 302 of IPC is appealed against by the convicted accused.
Appellant herein who is accused No. 1 faced trial before the trial Court. Accused No. 2, namely Khalim @ Khalim Pasha was a juvenile and hence he is being tried before the Juvenile Justice Board separately.
2. Case of the prosecution in brief is that money transaction existed between the accused and the deceased; quarrel had taken place prior to the incident in question, i.e., on the day of Shivarathri festival with regard to money transactions; the quarrel was pacified at the intervention of PWs. 3, 8 and others.
With the aforesaid background, at about 9.15 p.m. on 5.3.2010, both the accused came opposite to Gold Finch Hospital, situated at Kodigehalli Mani Road; while the deceased was proceeding to his house, he was restrained by both the accused; accused No. 1 (appellant herein) kicked on the body of the deceased with his knee and accused No. 2 “ juvenile offender (who is now facing trial before the Juvenile Justice Board) took out a knife and stabbed on the chest of the deceased; PWs. 3, 8, 9 and 10 were the eye witnesses to the incident in question; PWs. 3 and 8 took the deceased to Gold Finch Hospital immediately; however, the doctors were not available in the said hospital and therefore they shifted the injured to Columbia Asia Hospital in an autorickshaw; the hospital authorities of Columbia Hospital declared that the injured was brought dead; the first information came to be lodged at about 10.45 p.m. on 5.3.2010, before PW. 16, the Sub-Inspector of Police of Kodigehalli Police Station in Crime No. 50/2010; PW.15, the Assistant Commissioner of Police completed the investigation and laid the charge sheet against both the accused.
3. Since accused No. 2 “ Khalim @ Khalim Pasha who was a juvenile during the relevant point of time, the case against him was split up and was referred to Juvenile Justice Board for trial and consequently, the trial went on only against accused No. 1 “ appellant herein for the offence punishable under Section 302 of IPC and for the offence punishable under Section 3(2)(v) SC and ST (Prevention of Atrocities) Act.
4. In order to prove its case, the prosecution in all has examined 16 witnesses and got marked 14 Exhibits and 8 Material Objects. The trial Court on evaluation of the material on record, convicted the appellant herein for the offence punishable under Section 302 of IPC and acquitted him of the offence punishable under Section 3(2)(v) of SC and ST (Prevention of Atrocities) Act.
5. Sri Mohammed Tahir, learned advocate appearing on behalf of the appellant (accused No. 1) taking us through the entire material on record submits that the evidence of the alleged eye witnesses “ PWs. 3, 8, 9 and 10 is unbelievable and unreliable; they are all got up witnesses; all these alleged eye witnesses are friends of the deceased and therefore their evidence ought to have been evaluated by the trial Court with the greatest caution; PWs. 3 and 8 were the accused in a murder case; the deceased was also having criminal antecedents; though PWs. 9 and 10 are close friends of the deceased, they did not try to save the life of the deceased when they saw the incident from the distance of about 8 to 10 mtrs; the evidence of PW.9 bristles with contradictions and he has made number of improvements to the case of the prosecution; though the incident has taken place on a public road in front of the hospital, no independent witness is examined and there is no reason as to why the police relied upon only on the testimony of PWs. 3, 8, 9 and 10; though PWs. 3 and 8 shifted the injured to the hospital in an autorickshaw, none of the clothes of these witnesses were blood stained and therefore their presence cannot be believed; the Investigating Officer has also clarified that no blood stains were found on the spot; the post-mortem report discloses that the width of the injury was 1.5 cms., whereas blade of the knife used by accused No. 2 was having width of 2 inches and no struggle marks were found on the spot as is clear from the evidence. On these among other grounds, he prays for acquittal of the accused on the ground that the prosecution has not proved its case beyond reasonable doubt.
The said submissions are opposed by Sri Vijayakumar Majage, learned Additional SPP contending that the evidence of PWs. 3 and 8 is consistent, cogent and reliable; these eye witnesses did not have any ill-will against the accused though the said witnesses are facing trial in other sessions case; the lapse on the part of the Investigating Officer in not seizing the clothes of the witnesses would not come in the way of the Court to assess the entire material on record homogeneously; the case of the prosecution cannot be rejected merely on technicalities having regard to the fact that the eye witnesses are not educated; the fact remains that the complaint is lodged immediately after the incident showing the names of both the accused and their overt acts which clearly reveals that the case of the prosecution as made before the Court is true and the prosecution has not concocted the case. On these among other grounds, he prays for dismissal of the appeal.
6. PW.1 is the witness for scene of offence mahazar at Ex.P1.
PW.2 is the father of the deceased. He has deposed about the motive for commission of offence. He has identified accused No. 1- appellant herein before the Court.
PWs. 3, 8, 9 and 10 are the eye witnesses to the incident in question. Among them, PW.3 lodged the complaint as per Ex.P2. PWs.3 and 8 shifted the victim to Gold Finch Hospital and thereafter to Columbia Asia Hospital. They have also deposed about the motive for commission of offence. Each of the eye witnesses has deposed the overt acts of the accused and they have identified the knife (MO.No.1) which has been used by the accused for commission of offence.
PW.4 is another witness who has deposed about the motive for commission of offence.
PW.5 is the witness for inquest panchanama at Ex.P3.
PW.6 is the witness for panchanama at Ex.P4 under which clothes of the deceased are seized.
PW.7 is the witness for panchanama at Ex.P6 under which the knife-MO.No.1 is recovered at the instance of accused No.2. Evidence of PW.7 also discloses that accused No.2 had hidden the said knife.
PW.11 is the Engineer who drew the sketch of scene of offence as per Ex.P6.
PW.12 is the doctor who conducted post-mortem examination over the dead body. P.M. report is at Ex.P7. PW.12 has given his opinion as per Ex.P8 after examining theknife-MO.No.1 which is used by the accused for commission of offence.
PW.13 is the doctor attached to Columbia Asia Hospital, where it was declared that the victim was brought dead.
PW.14 is the Investigating Officer who investigated into the crime.
PW.15 is the Assistant Commissioner of Police, who completed the investigation and laid the charge sheet.
PW.16 is the Sub-Inspector of Police of Kodigehalli Police Station. He received the complaint as per Ex.P2 lodged by PW.2 and registered the crime based on the same. He sent FIR (Ex.P14) to the jurisdictional Magistrate, which has reached the jurisdictional Magistrate at 5.30 a.m. on 6.3.2010.
7. From the above, it is clear that the case of the prosecution mainly depends upon the evidence of the eye witnesses PWs. 3, 8, 9 and 10. We have perused the evidence of these witnesses and assessed their versions with great care and caution in view of the fact that they are the friends of the deceased and were facing trial in another sessions case.
8. PW.3 (first informant) has deposed that he knew the deceased from his childhood and he knew his father also; the deceased was working in Axis Bank, whereas PW.3 is an autorickshaw driver. His version discloses that, himself and PW.8 were having tea near a bakery situated in front of Gold Finch Hospital at about 9.00 p.m. to 9.15 p.m.; he saw accused No. 1 kicking the deceased with knee, whereas accused No.2 Khalim (juvenile offender) stabbed on the chest of the deceased; by the time they could interfere with the incident, both the accused committed the crime and fled away from the scene; thereafter, PWs. 3 and 8 shifted the victim to Gold Finch Hospital and subsequently to Columbia Asia Hospital, where the victim was declared as brought dead. It is specifically deposed by PW.3 that the stab injury was caused on the chest of the victim. He has also deposed about lodging of complaint as per Ex.P2 and about the motive for commission of offence and also deposed that the deceased had told him about the quarrel between the accused and the deceased with regard to money transactions; deceased had also told him about the quarrel which had taken place on day of Shivarathri festival; PW.3 identified MO.No.1 used for commission of offence by accused No.2; he also identified accused No. 1 who was before the Court.
In the cross-examination, PW.3 admits that he is an accused in a murder case and he is released on bail fifteen days prior to his deposition before the Court; he was in judicial custody for about 3 months prior to his release on bail; his house is situated about kms. from the bakery before which he was having tea; he was in the hospital up to 12.00 O'clock mid night intervening between 5.3.2010 and 6.3.2010 and thereafter he went to Police Station at about 12.30 a.m. of 6.3.2010 (mid night); the police had come to the hospital at about 10.30 p.m. on 5.3.2010.
Though PW.3 was subjected to lengthy cross-examination, not even a single sentence is asked by the defence to this witness to deny that accused No. 1 had shared a common intention with juvenile offender. There is also no cross-examination with regard to incident in question. The defence has concentrated mainly on the antecedents of this witness and other factors subsequent to happening of the incident. PW.3 has withstood in his cross-examination with regard to the incident in question. A suggestion was made to this witness that he was not present on the scene which came to be denied by him. No other material was tried to be brought on record by the defence.
9. The evidence of PW.3 is supported by PW.8. We have already mentioned supra that PW.3 in his deposition has clarified that himself and PW.8 were having tea near a bakery situated in front of Gold Finch Hospital. Same is the evidence of PW.8. He has also deposed that himself and PW.8 apart from PW.9 and 10 and another were having tea near a bakery situated in front of Gold Finch Hospital. In other words, PW.8 clarified the presence of PW.3 on the spot along with him, during the relevant point of time. With regard to the incident in question, PW.8 has deposed that both the accused came to the spot where the deceased was proceeding; the deceased was scolded in filthy language by the accused and by declaring that the deceased would not be allowed to live henceforth, accused No. 1-appellant herein kicked on the body of the deceased, whereas accused No. 2 stabbed on the chest of the deceased with knife, consequent upon which the deceased sustained bleeding injury and fell down; both the accused fled away from the scene; thereafter the deceased was shifted to Gold Finch Hospital and subsequently to Columbia Asia Hospital. PW.8 has also deposed about the motive for commission of offence as deposed by PW.3. He has identified the knife used for commission of offence.
In the cross-examination, PW.8 has admitted that he was not present when the quarrel took place between the accused and the deceased on the day of Shivarathri festival with regard to money transaction. He has further clarified in the cross-examination that the eye witnesses including PWs.9 and 10 were standing away at the distance of 10 mtrs. and that the incident took place for about 10 minutes. PW.8 did not try to interfere with the quarrel; however, two other persons tried to pacify the quarrel; after admitting the victim to Columbia Asia Hospital, he went back to his house at about 10.45 p.m.; however, PW.3 remained in the hospital; P.W.8 also admitted that he is an accused in a murder case and the said case is pending; he is released on bail; he was in judicial custody for about three months. Except this material, defence has not tried to bring out anything in its favour. The defence has committed the same fault while cross-examining as in the case of PW.3. It has not tried to elicit any material from PW.8 with regard to actual incident in question. It has merely concentrated on criminal antecedents of PW.8 and other events which are subsequent to the actual incident in question. We find that PW.8 has withstood in his cross-examination and has reiterated about the incident in question even in his cross-examination.
10. However, the learned advocate appearing for the defence is justified in arguing that the evidence of PWs.9 and 10 cannot be believed. Going through their evidence, we are also of the view that PWs.9 and 10 more particularly, PW.9 has tried to improve the case of the prosecution. Further, PW.10 has deposed about the actual incident in question as was deposed by PWs.3 and 8. He has also deposed that both the accused came together, waylaid the deceased and scolded him taking the name of his caste; thereafter accused No. 1 kicked on the body of the deceased, whereas accused No. 2 took out a knife and stabbed on the left side of the chest of the deceased. However, looking to the cross-examination of PW.10, we find that he is also not a reliable witness. His version in the cross-examination differs from the version as found in the examination-in-chief. Hence, we conclude that the evidence of PWs.9 and 10 is unreliable.
Be that as it may, we have already clarified that the evidence of PWs. 3 and 8 has practically remained unimpeached. They have withstood in their cross-examination. Both of them deposed that they were having tea near a bakery situated in front of Gold Finch Hospital at the time of incident. Merely because they were facing trial in a murder case, their presence on the spot, as also their version cannot be doubted, more particularly when they did not have any ill-will against the accused. Not even a suggestion is made by the defence to show that PWs.3 and 8 had got any ill-will against the accused. In the absence of any material on record the Court cannot presume that PWs. 3 and 8 had got ill-will against the accused for deposing before the Court.
The first information came to be lodged at 10.45 p.m., i.e., immediately after the incident. It is no doubt true that PW.3 was in the hospital up to about 12.00 O'clock mid night intervening between 5.3.2010 and 6.3.2010 and thereafter he went to Police Station. Therefore, at the most it can be said that complaint may not have been lodged at 10.45 p.m. and might have been lodged after 12.00 O'clock mid night. The first information contains the names of both the accused and it also contains the overt acts of each of the accused, including the motive for commission of offence. The first information report has reached the jurisdictional Magistrate at 5.30 a.m. on 6.3.2010. Therefore, there was no scope for concoction by PW.3 as well as by the prosecution more particularly when PW.3 did not have grouse against any of the accused.
11. The post-mortem report at Ex.P7 and the evidence of the doctor-PW.12 would disclose that the deceased sustained a single injury on the left side of his chest. At the time of incident, the deceased was wearing a banian, a T-shirt apart from a jeans pant. The post-mortem report further makes it clear that T-shirt was having a tear measuring 2 cms. on the left side of the chest surrounded by dried blood stain. It further clarifies that banian was also having a tear measuring about 2 cms. on the left side of the chest surrounded by dried blood stains. Though the deceased was wearing blue colour jeans pant and brown colour underwear as is clear from the post-mortem report, neither the pant nor underwear was blood stained, which means that the blood stains surrounded only the situs of the injury and not any other place. The injury as explained in the post-mortem report is, the wedge shaped stab wound measuring 1.5 cms. x 0.3 cms. obliquely placed over front of left side of chest in the 5th inter costal space in mid-clavicular line and is situated 5 cms. below and medial to left nipple, 6 cms. away from the midline and 21 cms. below the middle of the clavicle; margins of the wound are clean cut. It is also clarified in the post-mortem report that the depth of the injury is about 8 cms. Pericardial cavity contained 400 ml. of blood and blood clots and pericardial cavity contain 600 ml. of blood. Thus, it is clear from the post-mortem report and the evidence of the doctor that the huge quantity of blood had collected inside the body. Though the bleeding was present around the injury, such bleeding however was not outside the body.
12. In this context, the learned advocate for the appellant argues that injury itself was having width of 1.5 cms. and it could not have been caused by the knife having the blade of width of 2 cms. We have already mentioned supra that the banian as well as T-shirt of the deceased were having tear of about 2 cms. Naturally the tear of banian and T-shirt would be more than the width of the injury, in as much as the banian and T-shirt are having elasticity. Moreover, at the time of post-mortem examination, the doctor is not expected to give measurements of injury with mathematical precision. But the fact remains that injury was measuring 1.5 cms. and was having depth of about 8 cms. The difference of 1.5 cms. and 2 cms. is very meagre having regard to the other material on record.
It is also relevant to note that Ex.P8 is the opinion of the doctor furnished by him after examining the weapon “ MO. No. 1. The same discloses that the blade of the knife measures 10 cms. in length and maximum width of blade is 2 cms. The post-mortem report as well as the opinion of the doctor clarify that the depth of the injury was 8 cms. and blade of the knife was having length of 10 cms., which means that the blade of the knife has entered the chest up to 8 cms. Remaining portion of 2 cms. of the blade of the knife has not entered the chest. The doctor has opined that the maximum width of the blade is 2 cms. (near the handle) Since the entire blade had not entered in the chest, the injury might be having 1.5 cms. width. The doctor has opined in Ex.P8 that the stab wound mentioned in the postmortem report could be caused by the knife which he had examined. Therefore, we do not find any inconsistency in the case of the prosecution.
The post-mortem report further clarifies that left pleural cavity contained 600ml. of blood and blood clots and pericardial cavity contained 400 ml. of blood and blood clots. Thus, about one litre of blood of was collected inside the chest of the deceased. The doctor has also opined that the death was due to shock and hemorrhage, as a result of stab injury sustained to the chest.
13. We also do not agree with the submissions made at the Bar by the learned advocate appearing for the appellant that the evidence of PWs.3 and 8 may not be relied upon as they are the partisan witnesses with criminal antecedents.
It is by now well settled that ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. We think that it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan, cannot be accepted as correct.
14. In the matter on hand, we have already clarified that the evidence of PWs.9 and 10 cannot be relied upon for convicting the appellant. Their evidence appears to be an improved version. In this context, the submissions made by the learned advocate for the appellant that the entire prosecution story should not be accepted in view of the fat that the prosecution has created a false evidence through PWs.9 and 10 in its favour. In essence prayer of defence is to apply the principle of falsus in uno falsus in omnibus (false in one thing false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. So also, if a plea of two witnesses is untenable, if the evidence of other two eye witnesses is reliable and the same is sufficient to prove the guilt of the accused notwithstanding the unreliability of the evidence of two witnesses, the conviction can be maintained based on the evidence of other two witnesses which are reliable. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maximum falsus in uno falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called a mandatory rule of evidence.'
15. We also disagree with the submissions made by the learned advocate appearing for the appellant that the version of PWs.3 and 8 cannot be believed since they did not try to interfere with the quarrel and tried to save the life of the deceased.
It is the common knowledge that different witnesses react differently in different situations. There cannot be any set pattern of or a rule of human reaction on the basis of non-conformity wherewith a piece of evidence may be discarded. It is the general knowledge that different witnesses react differently under different situations; whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise (see the judgment of the Apex Court in the case of Leela Ram Vs. State of Haryana, reported in (1999) 9 SCC 525).
Therefore, we do not find any valid reason to disbelieve the version of PWs. 3 and 8.
16. Learned advocate appearing for the appellant also submitted that the presence of PWs. 3 and 8 on the scene of offence itself is doubtful, inasmuch as their clothes were not blood stained though they shifted the victim to the hospital in an autorickshaw.
We have already mentioned supra that not even the jeans pant and the underwear of the deceased were blood stained. The blood stains were confined to the portion of the injury on the chest of the victim. The blood stains were seen around where blade of the knife had entered and consequently banian and T-shirt of the deceased only were blood stained and such blood stains were found only around the place of tear and not anywhere else. We have also clarified that one litre of blood was collected inside the chest cavity due to the incident. Thus, bleeding was more inside of the body than the outside of the body. Consequently, the blood stains on the clothes of PWs. 3 and 8 might not have been found.
17. It is clear from the facts that both the accused came together to the spot, among them one accused was holding knife; both the accused attacked the deceased; accused No. 1 “ appellant herein kicked with his knee on the body of the deceased; accused No. 2 stabbed on the chest of the deceased; both the accused scolded the deceased and quarrelled with him before assaulting him; immediately after the incident, both of them fled away from the scene. These facts would clearly reveal that both the accused shared common intention, otherwise, they would not have come to the spot fully prepared. As aforementioned, not even a suggestion is made by the defence to the eye witnesses to disbelieve the case of the prosecution with regard to sharing of common intention by the accused.
In this view of the matter, the Court below is justified in convicting accused No. 1- appellant herein for the offence punishable under Section 302 of IPC. Even on reconsidering the entire material on record, we do not find any ground to interfere with the reasons assigned and the conclusions arrived at by the trial Court.
Hence, appeal fails and accordingly, the same stands dismissed.