(Prayer: This Crl.A filed under 374(2) of Cr.P.C., praying to set aside the Judgment and Order of conviction Dated 08.03.2013 and sentence Dated 11.03.2013 passed by the P.O., F.T.C.-III, Bengaluru (R) District, Bengaluru in S.C.No.214/2005-convicting the Appellant/Accused for the offence punishable under Section 143, 148, 341 r/w 149 and 302 r/w 149 of IPC. etc.,)
1. These three appeals are preferred against the judgment of conviction dated 8.3.2013 and order of sentence dated 11.3.2013 passed by the Fast Track Court-III, Bengaluru Rural District, Bengaluru in Sessions Case No.214/2005.
2. The appellants in Appeal No.296/2013 are accused Nos.1, 2 and 6 and the appellants in Appeal No.305/2013 are accused Nos.3 and 4 and the appellant in Appeal No.367/2013 is accused No.5 in S.C.No.214/2005. In these appeals, the respective appellants will be referred to in the same ranking as in S.C.No.214/2005.
3. A charge-sheet came to be filed against accused Nos.1 to 6 by the CPI of Hoskote Circle (PW.20) for the alleged offences punishable under sections 143, 148, 341 r/w. sections 149 and 302 r/w. section 149 of Indian Penal Code. Accused were put on trial. To bring home the charges levelled against them, prosecution examined in all 20 witnesses. Amongst them, PW.4 G.K.Thyagaraj, PW.5 Devaraj, PW.6 Krishna Murthy and PW.7 Nagaraj are examined as eye-witnesses to the incident. PW.4 is also examined as the complainant who set the law into motion by lodging a complaint as per Ex.P1.
4. PW.1 Muninanjappa and PW.2 Devaraj @ David are examined to speak about the motive.
PW.3 Anjina Murthy is the scribe of the complaint Ex.P1
PW.8 M.Ramesha is the panch witness for seizure of the blood stained shirt (M.O.3) of accused No.3 under mahazar Ex.P2.
PW.9 is the wife of the deceased G.K. Narayanaswamy.
PW.10 K.Ramanjanappa is the panch witness for the spot mahazar Ex.P3 and seizure of M.Os.4 to 8 namely chappal, knife-pouch, seven packets of coriander seeds, sample mud and blood stained mud from the spot of occurrence.
PW.11 Munegowda is the owner of grocery shop from whom accused No.2 is said to have purchased 100 gms of chilli powder on 28.7.2004 at 8.00 p.m.
PW.12 Narasimhaiah is the photographer who took the photographs of the corpse as per exhibits P.4 to P7 and their negatives Ex.P8.
PW.13 Kempanna is the Police Constable who shifted the dead body of the deceased G.K.Narayanaswamy to the Hoskote Government Hospital for post mortem examination.
PW.14 Ramachandrappa is the Police Constable of Hoskote Police Station who submitted the articles to FSL.
PW.15 Dr.Gangadhar is the Medical Officer who conducted the post mortem and issued post mortem report as per Ex.P9 certifying that the death was due to the injuries to the spinal cord, lungs and shock and hemorrhage as a result of injuries noted in the post mortem report Ex.P9. This witness has also spoken about the examination of the weapons M.Os.1 and 2 and issuance of the report as per Ex.P11.
PW.16 Prabhakar is the Police Constable who submitted the FIR Ex.P12 to the Magistrate on 29.7.2004.
PW.17 Kempaiah is the mahazar witness for the seizure of the motorcycles M.Os.10 and 11. This witness is also examined as panch witness for the recovery of knives (baku) M.Os.1 and 2 under mahazar Ex.P15. He is also a witness for the mahazar Ex.P16 whereunder the shirt produced by accused No.4 Ramanjini was seized by the Police. The said shirt is identified by this witness as M.O.9.
PW.18 B.V.Rajanna is the ASI attached to Hoskote Police Station at the relevant time. He received the complaint Ex.P1 and registered the case in Cr.No.416/2004 and forwarded the FIR Ex.P12 to the Magistrate.
PW.19 P.T.Subramanyam is the PSI of Kadugodi Police Station who along with the other police officials apprehended accused Nos.2 to 4 and produced them before the CPI, Hoskote.
PW.20 B.Ramachandrappa the then CPI of Hoskote Circle is the Investigating Officer who laid the charge-sheet against the accused.
5. Through the above witnesses, the prosecution has produced in evidence 23 documents which are marked as exhibits P1 to P23. In the course of cross-examination of these witnesses, the defence has got marked Ex-D1 to D20. On consideration of the oral and documentary evidence produced by the prosecution and the accused and on hearing the parties, the Trial Court found accused Nos.1 to 6 guilty of all the charges leveled against them and has recorded a judgment of conviction. On hearing the accused, the learned Fast Track Court Judge has imposed the sentence which reads as under:
"All the accused are sentenced to undergo SI for one month for the offence punishable under section 143 of Indian Penal Code and shall also pay a fine of Rs.5,000/- (five thousand only) each, in default of payment of fine, they shall undergo SI for a period of one month.
All the accused are sentenced to undergo SI for one month for the offence punishable under section 148 of Indian Penal Code and shall also pay a fine of Rs.5,000/- (five thousand only) each, in default of payment of fine, they shall undergo SI for a period of one month.
All the accused are sentenced to undergo SI for one month for the offence punishable under section 341 r/w. section 149 of Indian Penal Code and shall also pay a fine of Rs.5,000/- (five thousand only) each, in default of payment of fine, they shall undergo SI for a period of one month.
All the accused are sentenced to undergo life imprisonment for the offence punishable undersection 302 r/w. section 149 of Indian Penal Code and shall also pay a fine of Rs.5,00,000/- (five lakhs only) each, in default of payment of fine, they shall undergo SI for a period of three years.
All the sentences to run concurrently."
6. Aggrieved by the impugned judgment, the accused have preferred three separate appeals as above. The common grounds urged in the appeals are that the impugned judgment and order of sentence passed by the Court below is opposed to law, facts, circumstances and probabilities of the case. The Trial Court though disbelieved the testimony of PW.6 and PW.7 has erred in relying on the testimony of PW.4 and PW.5 which is equally unnatural, improbable and unbelievable. It is specifically contended that the prosecution has relied on Ex.P1 complaint as the First Information Report; but the Trial Court has held that Ex-D14(a) is the earliest information received in the Police Station and Ex.P1 is hit by section 162 of Code of Criminal Procedure. That being the theory, the Trial Court ought to have disbelieved the entire case set up by the prosecution. It is further contented that the entries made in the Station House Dairy as per Ex-D14(a) discloses the presence of only two assailants, but the charge-sheet was filed against six accused which indicates that accused are falsely implicated after much consultation and deliberations.
7. The accused have further taken up a plea that they have been falsely implicated in the alleged incident on account of the political rivalry by fabricating the complaint Ex.P1 and setting up the so called eye-witnesses who are inimically disposed towards the accused. Further the accused have contended that except the interested testimony of the complainant and the political opponents of the accused, there is no direct or circumstantial evidence whatsoever to connect the accused to the alleged offences. The Trial Court has failed to appreciate all these facts and circumstances unfolded in the evidence in proper perspective and thereby has caused a serious miscarriage of justice which calls for interference by this Court in exercise of its appellate jurisdiction.
8. The learned counsel appearing for the accused have argued in support of the contentions raised in the memorandum of appeal and have relied on the following decisions:-
(i) SHAHID KHAN vs. STATE OF RAJASTHAN reported in (2016) 4 SCC 96
(ii) T.T.ANTONY vs. STATE OF KERALA AND OTHERS with DAMODARAN P. AND OTHERS vs. STATE OF KERALA AND OTHERS with STATE OF KERALA AND OTHERS vs. REVADA CHANDRASEKHAR AND OTHERS reported in (2001) 6 SCC 181
(iii) LALITA KUMARI vs. GOVERNMENT OF UTTAR PRADESH AND OTHERSreported in (2014) 2 SCC 1
(iv) STATE OF ANDHRA PRADESH vs. PUNATI RAMULU AND OTHERS reported in AIR 1993 Sessions Court 2644
9. In reply, the learned HCGP has argued in support of the impugned judgment. It is the submission of the learned HCGP that, though the earliest information recorded in Ex.D14 assumes the character of the first information report, yet in the statement recorded by the investigating officer on the same day, PW.5 and PW.4 have disclosed the names of all the accused and have narrated the specific details of the incident. Therefore the existence of Ex.D-14(a) does not vitiate the prosecution case. It is the submission of the learned HCGP that the recovery effected by the investigating officer clearly connect the accused to the offences charged against them and hence, there is no infirmity whatsoever in the conviction recorded by the Trial Court. In support of his submission, the learned HCGP has relied on the decision reported in the case of ASHOK DEBBARMA @ ACHAK DEBBARMA vs. STATE OF TRIPURA reported in (2014) 4 SCC 747.
10. We have carefully considered the submissions made by the learned counsel and have carefully scrutinized the oral and documentary evidence produced by the prosecution as well as the defence taken up by the accused during their examination under section 313 Cr.P.C., and have gone through the reasoning assigned by the Learned Trial Court Judge, in the impugned judgment.
The point that arises for consideration is:
"Whether the impugned judgment of conviction calls for interference in exercise of the appellate jurisdiction under section 374(2) of Cr.P.C.?"
11. Records reveal that the criminal law was set in motion by lodging a complaint Ex.P1 by the younger brother of the deceased namely PW.4. In the said complaint it was alleged that the deceased G.K.Narayanaswamy along with PW.5 Devaraj proceeded to Hoskote at about 9.00 a.m. on 29.7.2004 to bring coriander seeds for sowing. Since the deceased and PW.5 did not return for a considerable time, PW.4 went in search of the deceased and on the way near CGS Hospital gate, he saw the accused following the motorcycle of the deceased and PW.5. Further in the complaint it is stated that accused Nos.1 and 2 intercepted the motorcycle of the deceased and threw chilli powder on the deceased and PW.5 Devaraj as a result, both of them fell down and at that time, accused No.3 Narayana and accused No.4 Rama indiscriminately stabbed the deceased with knife (chaku) and dagger (baku) and by then, accused No.6 Hanumantha and accused No.5 Venkataramanaswamy also assaulted the deceased on the nape. PW.4 raised alarm and hearing his screams, PWs.7 and others rushed to the spot and seeing them, the accused fled away in their vehicles and PW.4 ran to the village to inform about the incident. Further in the complaint, it is specifically stated that the complainant and the deceased belonged to Janata Dal (S) and the accused belonged to the Congress Party. During inauguration of the BTS bus stand in the village, the present MLA and accused No.1 openly proclaimed to finish off the deceased and with that motive, the deceased was done to death at 9.45 a.m. on 29.7.2004.
12. Here itself it is relevant to note that the complaint does not make any allegations of assault by accused Nos.1 and 2; nor are there any allegations that they were armed with any weapons. As per this complaint Ex-P1; the complainant (PW.4), Devaraj (PW.5), Krishna Murthy (PW.6) and Nagaraj (PW.7) were the eyewitnesses to the incident.
13. But contrary to the allegations made in the complaint, when it came for his evidence before the court, PW.4, the complainant is seen to have substantially departed from the allegations made in the complaint. In his evidence PW.4 has deposed that when he reached in front of CGS Hospital, he saw accused Nos.1 and 2 coming in a motorcycle and they intercepted the motorcycle of the deceased. By then, Narayana and Rama accused Nos.3 and 4 came from the Hoskote side. Accused Nos.5 and 6 also came in a motorcycle. Accused No.2 threw chilli powder on the deceased and PW.5 Devaraj, as a result, both of them fell down and when the deceased tried to run away, accused Nos.3 and 4 assaulted him with knife (chaku) and dagger (baku) indiscriminately on his chest, stomach and neck and seeing this, PW.4 raised alarm and cried for help and by then, Nagaraj PW.7, Jayapal and Sampangi came running to the spot. Further, according to PW.4, he approached his friend namely PW.3 Anjina Murthy and got scribed the complaint - Ex.P1 in the Police Station and on its basis FIR was registered at 10.30 a.m. on the same day.
14. There is material omission in the testimony of PW.4 with regard to the overt acts committed by accused Nos.1, 2, 5 and 6. Except stating that all the accused threatened to kill him, PW.4 has not narrated in his examination-in-chief the overt acts committed by accused Nos.1, 2, 5 and 6. Though in the later part of his evidence, he added that accused Nos.6 and 7 also stabbed the deceased on his hands and legs, this part of the evidence is proved to be an improvement affecting the credibility of his testimony given before the Court.
15. PW.5 Devaraj is the material eyewitness examined by the prosecution. According to this witness, on the date of the incident, at about 8 O' clock, he went to the house of the deceased on his motorcycle. From there, both of them proceeded to Hoskote to buy coriander seeds. They purchased 14 kilos of coriander seeds from Nitin Traders and carried it in a gunny bag in the carrier of the motorcycle. According to this witness, deceased was driving the motorcycle. When they reached near CGS Hospital, all of a sudden, accused Nos.1 and 2 came in a motorcycle and overtook the motorcycle of PW.5 and accused No.2 threw chilli powder on PW.5 and the deceased. Both of them lost control and fell down. By then, accused Nos.3 and 4 came in a motorcycle and accused Nos.5 and 6 came to the spot in a scooter. Accused Nos.3 and 4 were holding knife and dagger in their hands. They came to hold the deceased and since the chilli powder had fallen into his eyes, the deceased could not escape from the spot. Accused Nos.3 and 4 caught hold of the deceased and stabbed on his chest and stomach seven or eight times. The deceased collapsed on the ground. At that time, Rama accused No.4 stabbed on the neck of the deceased from behind and also stabbed on his legs and hands about seven or eight times. Even after the deceased collapsed on the ground, accused Nos.5 and 6 stabbed the deceased on his neck and accused No.5 stabbed him on the right ribs. According to PW.5, on hearing his screams, Thyagaraj PW.4 and Chikkagattiganabba Krishna Murthy PW.6 rushed to the spot. By then, one Nagaraj, Sampangappa and Jayapala also came running to the spot from the nearby arrack shop. PW.5 has further stated that accused Nos.3 and 4 chased him and came forward to assault him, but he escaped and got into an autorickshaw and went to the Police Station.
16. The further evidence of PW.5 reads that he told the Police Inspector that accused Nos.3, 4 and 6 are murdering the deceased and requested him to come to the spot immediately. The Inspector came to the spot in the police jeep, but by the time they reached the spot, Narayanaswamy had died and on enquiry, PW.5 was told that the accused have fled away in their motorcycles towards Mallasandra. PW.5 has further stated that he immediately asked PW.4 to inform the matter to his father and mother and accordingly, PW.4 brought his father and mother to the spot of occurrence.
17. Thus according to PW.5 during the incident, he escaped from the spot and rushed to Police Station and narrated the incident to the Police Inspector disclosing the names of accused Nos.3, 4 and 6. According to this witness, PW.4 came to the spot only on hearing his screams and till the arrival of the police, PW.4 was at the spot and only thereafter, he brought his father and mother to the spot of occurrence.
18. PW.6 Krishna Murthy is another witness projected by the prosecution as eyewitness to the incident. His evidence is that on 29.7.2004 at about 9.30 a.m., when he was waiting for the bus at Ganagalu Circle, PW.4 Thyagaraj came there in his Hero Honda motorcycle and PW.6 requested him for a drop to Hoskote and accordingly, he got on to the motorcycle. At 9.45 a.m., when they reached near CGS Hospital, the deceased and PW.5 came there in their motorcycle from Hoskote side. Accused Nos.1 and 2 were following them in their Hero Honda motorcycle. Behind them, accused Nos.3 and 4 came in Yamaha motorcycle and accused Nos.5 and 6 were following them in their scooter. Accused No.1 overtook the motorcycle of the deceased and accused No.2 threw chilli powder on the deceased and PW.5. When the deceased and PW.5 fell down, accused Nos.3 and 4 came forward to hold the deceased. They were holding knife and dagger in their hands. At that time, PW.6, PW.4 and PW.5 raised alarm. Hearing their screams, Kodihalli Nagaraj, Jayapala and Sampangappa came running from the nearby arrack shop. On seeing them, accused Nos.1 and 2 fled towards Mallasandra. Accused No.3 who was holding the deceased told accused No.4 Ramanjini that the deceased should be finished off today itself lest he will not leave them alive and so saying, he stabbed on the chest of the deceased two or three times with the long knife. He also stabbed the deceased on the stomach, right thigh and near the chest. Accused No.4 Ramanjini stabbed the deceased on the nape. Accused Nos.5 and 6 also stabbed the deceased with knife on his left leg on the left side. Thereafter, the accused ran to catch hold of PW.5, but PW.5 got into an autorickshaw and proceeded towards Hoskote. When PW.4 Thyagaraj, Sampangi, Jayapal, Nagaraju and PW-6 tried to catch accused persons, the accused threatened to murder them and thereafter, all of them went towards Mallasandra. This witness has further deposed that after a while PW.5 Devaraj returned to the spot with the police and at that time, PW.4 Thyagaraj was seen crying seeing the deceased.
19. It is relevant to note that according to PW.6 accused Nos.3 and 4 came forward to hold the deceased holding knife and dagger in their hands, and on hearing the screams of PW.4 and PW.6 and the arrival of K.Nagaraj, Jayapal and Sampangappa, accused Nos.1 and 2 went away in their motorcycles towards Mallasandra. He is specific in his evidence, that only accused Nos.3, 4, 5 and 6 inflicted injuries on the deceased. Further according to this witness, until PW.5 returned with the police, PW.4 was still at the spot of occurrence.
20. PW.7 is another eyewitness examined by the prosecution. According to this witness, about three years back at about 9.00 and 10.00 a.m., he was sitting in front of his arrack shop along with Jayapal and Sampangappa and at that time, on hearing the screams near hospital, they ran to that place, where they saw all the accused assaulting the deceased with knives. The deceased was trying to escape and was running here and there. All the six accused surrounded him and stabbed him with knife and dagger saying that he should be finished off there and then itself lest he would not leave them alive. According to this witness, all the accused stabbed the deceased with knives and daggers on his legs, back, chest, stomach and neck inflicting about 25-30 injuries. Further this witness has deposed that when the accused came to chase PW.5 Devaraj, he got into an autorickshaw, and after some time, he returned with the police, but by then, the deceased had died with his intestine protruding out.
21. Before assessing the worth of the testimonies of the above witnesses, it is necessary to refer to the evidence of PW.18 the ASI attached to the Hoskote Police Station. It is pertinent to note that according to this witnesses, on 29.7.2004, one V.L.Ramesh was the PSI and the said V.L.Ramesh left the Police Station at 9.45 a.m. stating that an incident has taken place and he would proceed to the place of the incident and accordingly he along with his staff went away from the Police Station. It is brought out in the cross-examination of PW.18 that the said PSI Sri.V.L.Ramesh has made an entry in the SHD at about 9.45 a.m. before proceeding to the spot of incident. The original SHD came to be produced before the Court and the same is marked as Ex.D14 through PW-18 and the relevant entry therein is marked as Ex.D14(a) which reads as under:
09.45 LANGUAGE .
22. For reasons best known to the prosecution, the aforesaid Sri.V.L.Ramesh who recorded Ex.D14(a) has not been examined by the prosecution. Nonetheless, it is brought out in the evidence of PW.20 the investigating officer that he has examined Ex-D.14(a) and it had come to his knowledge that at 9.45 a.m., the PSI who recorded the said entry had proceeded to the spot. In the cross-examination, PW.20 the Investigating Officer admits that when he had proceeded to the spot, the case was not registered against the accused. It is also elicited from his mouth that until the submission of the charge-sheet, he did not examine the said PSI Sri.V.L.Ramesh.
23. From the above evidence it follows that even though the investigating officer was well aware of the receipt of the information of a cognizable offence in the Police Station at 9.45 a.m., FIR was not registered, though the information given by PW-5 disclosed the commission of a cognizable offence and also the name of the assailants and the manner of violence. The evidence on record reveals that the Investigating Officer had proceeded to the spot much before the receipt of the complaint from PW-1 and had enquired into the incident from the so-called eyewitnesses gathered at the spot, as a result, the earliest information entered in Ex-D14(a) assumes the character of a FIR within the meaning of Section 154 of Cr.P.C.
24. Regarding the evidentiary value of Ex-D14(a) is concerned, we may usefully refer to the case of ASHOK DEBBARMA @ ACHAK DEBBARMA vs. STATE OF TRIPURA reported in 2014 (2) Crimes 11 (SC) wherein the Hon'ble Supreme Court has observed that:
"The police machinery had already been set in motion on the basis of the information PW.18 had already got and, it was during the course of investigation, he had received the complaint from PW.2. Though the complaint received from PW.2 was treated as the First Information Report, the fact remains that even before that PW.18 had started investigation. Consequently, written information (Ex.1) received from PW.2, at best, could be a statement of PW.2 made in writing to the police during the course of investigation. Of course, it can be treated as a statement of PW.2 recorded underSection 161 Cr.P.C. and the contents thereof could be used not as the First Information Report, but for the purpose of contradicting PW.2."
25. Similar proposition is laid down in the case of T.T.ANTONY vs. STATE OF KERALA and OTHERS reported in (2001) 6 SCC 181, wherein it is reiterated that only the information about the commission of a cognizable offence which is the first entry in the SHD by the officer-in-charge of the Police Station can be regarded as FIR under section 154 - All such subsequent informations will be covered by section 162.
26. The law on this point is further elucidated by the Constitution Bench of the Hon'ble Supreme Court in the case of LALITA KUMARI vs. GOVERNMENT OF UTTAR PRADESH and OTHERS reported in (2014) 2 SCC 1 wherein considering the legislative intent of section 154 Cr.P.C. as elucidated in Bajanlal's case, the Hon'ble Supreme Court has laid down that any information disclosing of a cognizable offence is laid before the officer-in-charge of a Police Station satisfying the requirements of section 154(1) of the Code, such Police Officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register the case on the basis of such information. In the said decision, the Hon'ble Supreme Court has considered the effect of the entries made in the general diary or station diary or daily diary maintained in the Police Station and has laid down:
"If at all, there is any inconsistency in the provisions of Section 154 of the Code and Section 44 of the Police Act, 1861, with regard to the fact as to whether the FIR is to be registered in the FIR book or in the General Diary, the provisions of Section 154 of the Code will prevail and the provisions of Section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy.
In view of this legal proposition, Ex-D14(a) has to be treated as FIR in the eye of law and the complaint Ex-P1 which is alleged to have been received in the Police Station at 10.30 a.m. has to be considered as a statement recorded under Section 161 Cr.P.C.
27. This takes us to the next question as to whether in the face of Ex.D14(a), the evidence adduced by the prosecution apparently on the basis of the investigation conducted pursuant to Ex-P1 can be relied on for deciding the culpability of the accused or whether the entire case of the prosecution has to be thrown out as false and fabricated on account of the delay in registering the case as contended by the accused? The learned counsel for the accused have put forth the contention that on account of suppression of Ex-D14(a), the investigation carried on by PW-20 gets tainted and consequently, the case set up by the prosecution is rendered susceptible to doubt as it stands established that the occurrence has not taken place in the manner projected by the prosecution and therefore the entire case of the prosecution is liable to be rejected. We do not subscribe to this view.
28. It is now well settled that if for any reason, the complaint registered by the police is found to be subsequent to the receipt of the first information within the meaning of Section 154 of Cr.P.C., as held in the decision referred above, the effect thereof is that the complaint cannot be treated as FIR and it would be relevant only as a statement made during the investigation. Therefore, merely on account of failure of the police to register the case on the basis of Ex-D14(a), the prosecution case cannot be thrown out lock, stock and barrel, though this fact may put the Court on its guard to scrutinize the material produced by the prosecution with greater care, caution and circumspection.
29. Now coming to the crucial question as to the proof of the charges leveled against the accused, at the outset, it is relevant to note that in view of Ex-D14(a), two versions have come on record regarding the incident in question namely, one narrated in Ex-D14(a) and the other version found in Ex-P1. As already stated above, the prosecution has adhered to the version contained in Ex-P1 wherein all the six accused are implicated, whereas in Ex-D14(a), PW-5 has named only accused No.3 and described another assailant by physical appearance, as such, there is material contradiction in the two versions found in Ex-P1 and Ex-D14(a). Learned HCGP however has tried to offer an explanation stating that soon after commencement of the investigation, the Investigating Officer has recorded the statement of PW-5 wherein PW-5 has named all the six accused as perpetrators of the crime and in his evidence before the Court also he has deposed in conformity with the prosecution case, identifying all the accused and describing the role played by each of them, therefore, whatever omission found in Ex-D14(a) stands clarified during the evidence given before the Court. In other words, it is the argument of the learned HCGP that based on the evidence of PW-5, all the six accused are liable to be convicted for all the offences proved against them despite naming only two assailants in Ex.D14(a).
30. We are not impressed by the argument canvassed by the learned HCGP. It is now well settled that the first information statement is not a substantive evidence. Law does not require that every detail of the event need be mentioned in the FIR. In the instant case, if it is demonstrated that the FIR relied on by the prosecution has come into existence after thoughtful deliberation, concoction and fabrication, there is no escape from the conclusion that the version depicted in the earliest information Ex-D14(a) should be given its due weight.
31. In this backdrop, on thorough evaluation of the testimony of the witnesses examined by the prosecution namely PW.4, PW.5, PW.6 and PW.7 and the circumstances brought out in their evidence, we are of the firm view that Ex.P1 is the outcome of deliberation, consultation and fabrication and therefore, the case set forth by the prosecution based on the complaint Ex.P1 implicating six accused persons and consequently, the testimony given by PW.4, PW.6 and PW.7 based on the version contained in Ex.P1 cannot be believed for the following reasons:-
(i) According to the prosecution, complaint Ex.P1 was lodged by PW.4 at about 10.30 a.m. on the date of the incident. As a matter of fact, the endorsement made by PW.8 thereon goes to show that the said complaint was received in the Police Station at 10.30 a.m. Undisputedly, by the time the FIR was registered, the police had already reached the spot. PW.4, PW.5 and PW.6 have stated on oath that till the arrival of the police, PW.4 was at the spot of occurrence. If infact PW.4 was an eyewitness to the incident and the incident was witnessed by PW.6 and PW.7, as made out by the prosecution, nothing prohibited the police from receiving the complaint from PW.4 at the spot of occurrence. PW.4 in his evidence has admitted that when he was at the spot of occurrence, the Police Sub-Inspector had reached there. He has also admitted the suggestion that he did not inform the incident to the police. He has further admitted that he did not disclose the names of the accused to the Circle Inspector at the spot. This conduct of PW.4 leads to doubt his presence at the spot of occurrence from the inception of the occurrence as projected by the prosecution.
(ii) PW.5 has deposed in his evidence that after returning to the spot along with the police, he asked PW.4 to go to the village to bring his parents and accordingly, PW.4 returned with his parents after about half an hour. There is consistent evidence that the occurrence had taken place at 9.45 a.m. If the police had reached the spot shortly thereafter say about 10.00 a.m., PW.4 in all probability might have returned to the spot with his parents around 10.30 a.m. PW.4 in his evidence has stated that after the incident, he proceeded to Hoskote on his motorcycle and brought PW.3 to the Police Station and got the complaint scribed through PW.3 and lodged it before the police. As the circumstances discussed above go to show that till 10.30 a.m., PW.4 was at the spot of occurrence, it cannot be believed that he could travel to Hoskote and bring PW.3 to the Police Station and thereafter prepare a complaint running to two pages and lodge before the police at 10.30 a.m. as endorsed in Ex.P1. This is a strong circumstance indicating that the FIR was deliberately ante-timed.
(iii) PW.5 has nowhere stated in his evidence or in Ex.D14(a) that when he and the deceased reached CSI Hospital, they noticed PW.4 or PW.6 coming in their scooter as stated by PW.4 and PW.6 in their evidence. The story put forth by the prosecution that PW.4 had gone in search of the deceased and on the way he met PW.6 and both of them witnessed the incident appears to be a make believe story which cannot be accepted at its face value. The deceased was not a school going child who was expected to return home at a fixed time so that PW.4 his brother would go in search of him when he was late by few minutes. Even assuming that there was some delay by the deceased in returning from Hoskote, it has come in evidence, that the deceased was carrying a mobile with him. If so, PW.4 or the wife of the deceased could have called him up to ascertain his whereabouts. The manner in which the prosecution has built up this theory indicates that only with a view to show the presence of PW.4 and PW.6 as eyewitnesses to the incident, the prosecution has set the story of PW.4 going in search of the deceased.
(iv) The circumstances proved in evidence go to show that on the date of the incident only the deceased and PW.5 had gone to Hoskote to buy coriander seeds. The fact that they had bought coriander seeds is proved by the seizure of seven packets of coriander seeds M.O.6 from the spot of occurrence and also by producing the bill at Ex.P21 issued by Nitin Traders which corroborates the testimony of PW.5 that he and the deceased had been to Hoskote and the incident took place while they were returning from Hoskote. It is the specific evidence of PW.5 that on the way when they reached CGS Hospital, they found accused Nos.3 and 4 following them in a motorcycle. PW.5 is specific in his evidence that accused Nos.3 and 4 began to assault the deceased and he immediately raised alarm and screamed for help and thereafter, rushed to the Police Station. This evidence appears to be true and natural and finds corroboration in the contents of Ex.D14(a) which has come into existence without any loss of time, contemporaneous with the occurrence thereby lending credence to the testimony of PW.5 that he was traveling with the deceased at the time of the incident and he was the sole eyewitness thereto. If the evidence of PW.5 regarding occurrence is believed, the testimony of PW.4 that he was also an eyewitness to the incident from the inception stands utterly falsified. If infact PW.4 and PW.6 were also present at the spot, in all probability PW.5 would have mustered courage to resist the sudden attack on the deceased with the help of PW.4 and PW.6 rather than rushing to the Police Station in his helplessness leaving the deceased to fend himself. All these circumstances clearly indicate that PW.4 and PW.6 were nowhere in the vicinity at the time of occurrence, therefore, the testimony given by these witnesses as eyewitnesses to the incident cannot be accepted.
(v) According to the prosecution, the complaint Ex.P1 was lodged in the Police Station at 10.30 a.m. on the date of the incident. There is no dispute that Ex.P1 is a written complaint. It has come in evidence that it was scribed by PW.3. According to PW.4, he fetched PW.3 from Hoskote in his motorcycle and thereafter, both of them proceeded to the Police Station to lodge the complaint. Even though the complaint is stated to have been lodged at 10.30 a.m., the FIR along with the complaint is seen to have reached the Magistrate only at 11.30 p.m., nearly 13 hours after the registration of the FIR. It has come in evidence that the Court of the Magistrate is located adjacent to the Police Station. There is absolutely no explanation by the prosecution for the inordinate delay in reaching the complaint to the Magistrate. We are conscious of the fact that the delay in dispatching the FIR to the Magistrate by itself may not be a reason to doubt or disbelieve the testimony of the witnesses or to discard the case of the prosecution, but in the instant case, this delay, in our view, assumes significance because of the existence of Ex.D14(a) wherein only two persons are mentioned as perpetrators of the crime whereas in Ex.P1 and in the FIR (Ex.P12) six persons are implicated in the death of the deceased. As the prosecution has failed to explain this delay, the involvement of all the six accused as stated in Ex-P12 is rendered doubtful.
(vi) In addition to the unexplained delay, there is overwhelming evidence to show that the complainant's party and the accused party were political rivals. In his complaint, PW.4 has stated that the deceased and the complainant belonged to Janata Dal Party and the accused belonged to Congress Party. Even in his evidence PW.4 has maintained that there has been political rivalry between the complainant's family and the accused persons. As a matter of fact, this political rivalry is projected by the prosecution as the motive for the commission of the offence by the accused. The accused have also brought on material by way of exhibits D11, D12 and D13 to show that there has been civil and criminal proceedings between the deceased and the accused persons. Motive is a double edged weapon as it could be a reason for the commission of the offence and it can also be a reason for false implication. In the instant case, the statements elicited from the mouth of PW.4 disclose that by the time he and PW.3 Anjinamurthy reached the Police Station, the Circle Inspector and the Sub- Inspector had already returned to the Police Station, and the elders of the Janata Dal Party had also gathered in the Police Station. He has admitted the suggestion that at that time, all of them were discussing that the deceased was murdered out of political rivalry by the members of the Congress Party. It is admitted by PW.4 that the complaint was written by PW.3 in the Police Station. He has also admitted that there was a discussion with the elders of his party as to who might have murdered the deceased. Added to that, it is brought out in the cross-examination of PW.3 that there was a civil suit pending between the father of accused No.5 and father of PW.3 and after the death of his father, he has been impleaded in the said suit. It is also brought out in the cross-examination that in the initial writing made in Ex.P1 alleging that Venkataramanaswamy-accused No.5 assaulted the deceased with macchu has been corrected as knife and likewise, the time of incident has also been inserted later. All these circumstances establish that there has been discussion and consultation among the political leaders at the time of drafting the complaint and by taking advantage of the intervening delay, accused Nos.1, 2, 5 and 6 appears to have been implicated in the alleged offence on account of previous enmity.
(vii) The above conclusion gets further fortified from the contents of the complaint Ex.P1. A reading of the complaint discloses that except making bald allegation that accused Nos.1 and 2 intercepted the motorcycle of the deceased and splashed chilli powder on the deceased and accused Nos.5 and 6 assaulted the deceased on the neck, the complaint does not mention any specific overt acts committed by accused Nos.1, 2, 5 and 6. Even in their evidence, PW.4 and PW.6 are not clear about the role played by accused Nos.1, 2, 5 and 6. The material contradictions in the evidence of PW.4 and PW.5 with regard to the involvement of accused Nos.1, 2, 5 and 6 are already detailed in the preceding paragraphs Nos.13 to 20 of this judgment. If in fact accused Nos.1, 2, 5 and 6 were actually present at the time of occurrence and inflicted injuries on the deceased, such inconsistencies and contradictions would not have appeared in the complaint and in the testimonies of PW.4, PW.6 and PW.7. This is another circumstance to show that accused Nos.1, 2, 5 and 6 have been implicated at a later stage after due deliberation and consultation with the political leaders who are inimically disposed towards the deceased and the complainant.
32. Added to the above, on going through the material, we find that the evidence produced by the prosecution in proof of the involvement of accused Nos.1 ,2, 5 and 6 in the crime in question is highly discrepant, inconsistent, contradictory and does not inspire confidence to hold that accused Nos.1, 2, 5 and 6 are guilty of the alleged offences. A careful scrutiny of the evidence reveals that the prosecution has failed to produce any corroborative evidence to connect accused Nos.1, 2, 5 and 6 to the alleged offence. Except the interested testimony of PW.4, PW.6 and PW.7, there is no independent witness or any recovery or other circumstantial evidence pointing out the involvement of accused Nos.1, 2, 5 and 6 in the offences charged against them. The circumstances discussed above lead to the inevitable conclusion that accused Nos.1, 2, 5 and 6 have been the victims of political rivalry and they have been implicated solely at the behest of the rival party men. The circumstances discussed above make it abundantly clear that PW.4 has played a pivotal role in implicating accused Nos.1, 2, 5 and 6 by fabricating the complaint Ex.P1 with the aid of PW.3. In any event, the prosecution having failed to produce any direct or circumstantial evidence connecting accused Nos.1, 2, 5 and 6, in our view, the charges leveled against them are bound to fail.
33. The Trial Court however has believed the testimony of PW.4 and has found accused Nos.1, 2, 5 and 6 guilty of the offence. But on reappraisal of the evidence and the circumstances discussed above, we are convinced that PW.4 does not qualify to be an eyewitness at all. On thorough appreciation of the evidence on record, we are of the firm opinion that the prosecution has failed to produce any reliable and convincing evidence in proof of the complicity of accused Nos.1, 2, 5 and 6 in the murder of the deceased. None of the ingredients of the offence charged against them are proved. These accused were not named in the earliest information Ex.D14(a) lodged by PW.5 who is the sole eyewitness to the occurrence. Inclusion of the names of these accused in Ex.P1 and Ex.P12 is proved to be an outcome of deliberation and concoction. Except the interested testimony of PW.4, PW.6 and PW.7, no other independent evidence is available to establish the presence of these accused at the place of occurrence, nor has the prosecution proved any recovery or such other circumstantial evidence connecting these accused to the offences charged against them. For all these reasons, the conviction recorded by the lower court against these accused cannot be sustained. As a result, we hold that, for want of evidence, accused Nos.1, 2, 5 and 6 deserve to be acquitted of the charges framed against them under sections 143, 148, 341 r/w. section 149 and section 302 r/w. section 149 of Indian Penal Code.
34. Having come to the conclusion that the conviction against accused Nos.1, 2, 5 and 6 cannot be sustained, the question now remains to be considered is with regard to the complicity of accused Nos.2 and 3 in the alleged offences charged against them. The Trial Court has relied on the testimony of PW.4, PW.5 and the medical evidence produced by the prosecution coupled with the circumstance of recovery of the weapon at the instance of accused Nos.3 and 4 and has held accused Nos.3 and 4 guilty of the above offences along with the other accused. But on reassessment of the entire evidence, for the reasons assigned above, we have already discarded the oral testimony of PW.4 as he is shown to be an interested and trumped up witness and his testimony suffers from inherent inconsistencies and contradictions. For the same reason, the oral testimony of PW.4 cannot be considered for determining the guilt of accused Nos.3 and 4. Likewise, the testimony of PW.6 and PW.7 is also liable to be discarded as the circumstances discussed above go to show that these witnesses reached the spot of occurrence only on hearing the screams of PW.5 by which time, the assailants had fled away from the spot of occurrence. As a result, the prosecution is left with only the testimony of PW.5 who is the solitary eyewitness to the incident.
35. We have already extracted the gist of the evidence of PW.5 wherein this witness has narrated the overt acts committed by accused Nos.3 and 4. Even though PW.5 is cross-examined at length, the testimony of PW.5 either with regard to the presence of accused Nos.3 and 4 or with regard to the injuries inflicted by them on the deceased has not been discredited or falsified in the cross-examination. Further the prosecution has convincingly established that at the earliest instance, PW.5 rushed to the Police Station and narrated the incident as per Ex.D14(a) specifically mentioning the name of accused No.3 and describing the other assailant by physical appearance. EX.D14(a) not only lends credence to the oral testimony of PW.5 given before the Court, but also confirms the fact that he was an eyewitness to the incident. The circumstances in which PW.5 happened to accompany the deceased at the time of the incident inspires confidence to hold that he was physically present at the time of the incident and he is a natural witness. The defence has not brought out any circumstance to doubt or disbelieve his evidence regarding the involvement of accused Nos.3 and 4 in the murder of the deceased. On thorough evaluation of his evidence, we find the testimony of PW-5 is trustworthy and reliable in answering the charges leveled against accused Nos.3 and 4.
36. The learned counsel for the accused have attacked the veracity of the testimony of PW.5 contending that PW.5 has intentionally given false evidence against accused Nos.1, 2, 5 and 6 knowing fully well that they were not present at the spot of occurrence as he himself did not mention the names of these accused in the earliest information Ex.D14(a), therefore, his entire testimony is tainted and is liable to be discarded solely on that ground.
37. No doubt, it is true that in his evidence PW.5 has given evidence implicating accused Nos.1, 2, 5 and 6 even though their names do not find place in Ex.D14(a). To this extent, the evidence of PW.5 can be termed as improvement or exaggeration; but solely on that ground, his entire testimony cannot be rejected.
In the realm of appreciation of evidence, it is now well settled that the Court must weigh the evidence carefully in each case and not adopt any arbitrary formula or yardstick in measuring its worth or worthlessness. In State of Punjab v. Harisingh and S.G.P. Committee v. M.P.Dass Chela(AIR 1974 S.C. 1168), the Hon'ble Supreme Court has held that the maxim 'falsus in uno falsus in omnibus' is not acted upon by Indian Courts. In Ugar Ahir v. State of Bihar (AIR 1965 S.C. 277), the Hon'ble Supreme Court observed that the maxim is neither a sound rule of law nor a rule of practice. It may be difficult to come across a witness whose evidence does not contain a grain of untruth or at any rate, exaggeration, embroidery or embellishment. It is the duty of the court to scrutinize the evidence carefully and separate the grain from the chaff. But the court cannot selectively pick and choose and reconstruct a story of its own. If a part of evidence of a witness is found unreliable, the rest of his evidence must be scrutinized with caution and care. If the substratum of the prosecution case remains unaffected and remaining part of the evidence is trustworthy, the prosecution case should be accepted to the extent it is considered safe and trustworthy. The court must disengage truth from falsehood and accept what it finds to be true. If truth and falsehood are so intermingled to make it impossible to separate them, the entire evidence may be rejected.
38. In the instant case, the evidence given by PW.5 with regard to accused Nos.1, 2, 5 and 6 suffers from the same vice as that of PW.4 and therefore to this extent, the evidence PW.5 has to be excluded from consideration. But insofar as, the involvement of accused No.3 and accused No.4 are concerned, we find the evidence of PW.5 fully reliable and trustworthy and could be made the basis for the conviction of accused No.3 and accused No.4 as no circumstances are brought out by the defence to doubt the veracity of his evidence regarding the involvement of accused No.3 and accused No.4.
39. In appreciating the evidence of PW.5, it is also pertinent to note that the medical evidence produced by the prosecution lends further corroboration to the testimony of PW.5 that accused Nos.3 and 4 inflicted the injuries on the deceased with the knife and caused his instantaneous death. PW.15 the Medical Officer who conducted the post mortem examination on the deceased has noted the following external and internal injuries:
External Injuries:
1. Stab injury on right leg as its middle on medial side 3 Cm x 1 Cm.
2. Stab injury 3cm x 2 cm around left mid lingual point.
3. Stab injury 3 cm x 2 cm situated 6 cm medial to wound no.2.
4. Stab injury measuring 4 cm x 1 cm situated above wound No.3. 5. Stab injury measuring 3 x 1.5 cm situated 6 cm above the wound No.4
5. Stab injury measuring 3 x 1.5 cm situated 5 cm above and lateral to wound no.5.
6. Stab injury measuring 4 x 2 cm involving the lower border of umbilicus
7. Incised injury 4 cm x 2 cm on supra sterna part of sternum near middle line.
8. Stab injury 4 cm x 1 cm situated 3 cm on right iliac
9. Incised injury 4.5 x 1 cm situated 3 cm below right end of linguinial regiment
10. Incised Injury 3 cm x 1.58 cm situated 2 cm below and lateral to injury No.10
11. Incised injury measuring 6cm x 1.5 cm on the posterior surface of right forearm near the distal
12. Lacerated injury 1cm x .5 cm on middle phalanx of right index finger on palmer surface.
13. Lacerated injury situated on dorsal surface of middle phalanx of right middle finger measuring 1 cm x .5 cm
14. Stab injury 5 cm x 1 cm situated 4 cm lateral to right nipple
15. Incised injury measuring 3 cm x 1 cm below the right mastoid process
16. Incised injury measuring 8 cm x 2 cm on the posterior surface of neck obliquely situated 2 cm wide at distal end 1 cm at upper end.
17. Lacerated injury semi-lunar shape 5 cm x 1 cm x scalp depth on the right side of occupital region.
18. Incised injury situated just in front of wound no. 18 measuring 3 x .5 cm.
19. On Dissection scull and structure are pale and intact
20. Thorax laceration of right lung with Haemorrhage
21. Abdomen: Pigmentation of skin right scrotum and prepuce. Phymosis present.
Internal Injuries:
22. Penetrating injury on middle part of Ileum 1 cm x .5 cm
23. Penetrating injury 20 cm distal to wound No.20 2 cm x 1cm
24. Penetrating injury 3 cm distal to wound No.21 3 cm x 1 cm
25. Tear in the Omentum 3 cm x 2 cm involving blood vessels
26. Penetrating injury on Iliac situated below the wound No.23.
27. Penetrating injury situated 5 cm distal to wound No.24 x cm x 1 cm
28. Penetrating injury on ileac amentium involving blood vessels with blood clot about 300 ml Haemorrhage in Abdominal cavity thoracic cavity This witness has certified that the injuries 1, 2, 3, 8, 10, 11, 12, 13, 14, 16, 17, 18, 19 are not penetrating injuries but with clean cut edges and all injuries on abdominal wall are roughly oval in shape. Wound No.17 involved damage to deeper muscles of neck, Ligament, Inter-vertebral structures C3-4 and spinal car. Injuries 4 to 9 are penetrating injuries.
All the injuries are ante mortem in nature. Death might have taken place about 5-6 hours before P.M. examination. PW.15 is of the opinion that the death was due to injury to spinal cord, lungs, and shock and haemorrhage as a result of injury sustained.
PW.15 has stated that he examined the weapons namely M.O.1 and M.O.2 and gave his opinion to the effect that the injuries found on the body the accused are possible to be caused with the weapons in question. The injuries noted in Ex.P9 correspond to the ocular testimony of PW.5 thereby establishing that the deceased was done to death by accused Nos.3 and 4.
40. In the course of investigation, the prosecution has recovered two weapons namely M.O.1 and M.O.2 at the instance of accused Nos.3 and 4. This recovery is proved by examining PW.17 Kempaiah. According to this witness, the police had called PW.17 Kempaiah and one Puttappa and Byregowda to the Police Station and when they went to the Police Station, Guruprasad (A2), Ramanjani (A4) and Narayanagowda (A3) were in the Police Station. They took PW.17 and other witnesses to Rajaghatta, Doddaballapura Road. The accused Narayanagowda (A3) identified two motorcycles and they were seized under mahazar Ex.P13. Thereafter, the above accused led them to Poojana Agrahara where Kempaiah had a poultry farm. Accused No.4 Ramanjani got down from the vehicle and produced a baku (dagger) kept beneath a bush adjoining banyan tree. It was seized under mahazar Ex.P14. Thereafter, the accused led them to the water tank near Koralur Mallasandra where the accused No.3 Narayanagowda got down from the vehicle and produced a baku (dagger) placed underneath a fence. This dagger had blood stains. The police seized the said baku, by drawing a mahazar as per Ex.P15. This witness identified both the weapons which are marked as M.Os.1 and 2. PW.17 has also spoken about the seizure of the blood stained shirt recovered at the instance of Ramanjani accused No.4. In this regard, PW.17 has deposed that after preparation of Ex.P15, the accused led them to Vartur Kodi. Accused No.4 Ramanjini got down from the vehicle and from a mori (drainage), he took out a shirt which was seized by the police by drawing mahazar as per Ex.P16. This witness identified the shirt which is marked as M.O.9. In the course of cross-examination though it is elicited that in the Police Station PW.17 did not talk to accused Nos.3 and 4, the recovery of the M.Os.1 and 2 as well as blood stained shirt recovered at the instance of accused No.4 has not been discredited in the cross-examination. Further, it is proved in evidence that after the recovery of M.Os.1 and 2, they forwarded to PW.15 who has given his opinion that the injuries sustained by the deceased are possible to be caused by the said weapons M.Os.1 and 2. Thus there is reliable evidence to show that the injuries sustained by the deceased correspond to the weapons recovered at the instance of accused Nos.3 and 4 which directly connect the accused Nos.3 and 4 to the alleged incident.
41. The learned counsel for the accused have raised serious objection to receive the evidence of PW.5 against accused No.4 contending that in Ex.D14, only the name of accused No.3 finds place whereas other assailant is described by description and by no stretch of imagination he can be related to accused No.4. We do not find any substance in this argument either. The Trial Court in para 36 of the judgment has observed that the description of the assailant in Ex-D14(a) resembles accused No.4. Though this identification by the Presiding Officer may not be a piece of evidence to connect accused No.4 to the alleged crime, but what is relevant to be noted is that in his evidence before the Court, PW.5 has identified accused No.4 and has given specific evidence about the overt acts committed by him. Though PW.5 is cross-examined at length, nothing has been elicited from the mouth of PW.5 that the accused No.4 was not present at the spot. No contradictions or omissions are brought out in the entire evidence touching the identity of accused No.4.
42. It is seen from the records that the identity of accused No.4 was not disputed during trial. PW.5 has specifically deposed before the Court that accused Nos.3 and 4 came together on a motorcycle and both of them were armed with weapons and they indiscriminately stabbed the deceased with the knives. This evidence also has not been discredited or shaken in the cross- examination. If the evidence given by PW.5 did not relate to accused No.4, the accused should have either confronted or brought Ex.D14(a) to the notice of PW.5 and ought to have suggested that the accused No.4 did not fit into the description of the assailant mentioned in Ex.D14(a). There is not even a remote suggestion either to PW-5 or to any other witness that the person described in Ex.D14(a) was other than accused No.4 or that accused No.4 did not accompany accused No.3 at the time of incident.
43. In this context, it is also relevant to note that PW-8 M. Ramesha is examined as an independent witness to prove the seizure of blood stained shirt of accused No.3. According to this witness, on 29.7.2004 at about 10.00 a.m., when he was in the house, accused Nos.3 and 4 came to his house and asked for water to wash their hands. PW-8 has specifically stated in his evidence that accused No.3 asked him a shirt and at that time both accused Nos.3 and 4 were in panic condition and their hands and shirts were stained with blood. PW-8 has further stated in his evidence that he offered them water and also gave his shirt to accused No.3 and accused No.3 wore the shirt of PW- 8 and threw his blood stained shirt on the attic. According to PW.8,, he informed this matter to the owner of the workshop located in front of his house and at that time, he was told that the deceased was murdered near CGS Hospital and immediately he rushed to the spot and informed the Circle Inspector about the arrival of accused Nos.3 and 4 to his house. Accordingly, in the evening between 4.00 to 5.00 p.m., the Circle Inspector visited his house and the police seized the bloodstained shirt of accused No.3. Though an attempt is made in the cross- examination of PW.8, to show that this witness was also a member of JDS party, but his evidence with regard to arrival of accused Nos.3 and 4 to his house has not been discredited in the cross-examination. Even otherwise, in the absence of any material to show that the said shirt M.O.3 was seized from any other place, there is no reason to disbelieve the testimony of this witness regarding the seizure of M.O.3. Nothing has been brought out in the entire evidence to suggest that M.O.3 shirt did not belong to accused No.3 or that it was planted by the prosecution. The FSL report Ex-P23 and the Serology report Ex-P22 confirms that all the articles seized during the investigation including the shirts of accused Nos.3 and 4 were sent for forensic examination and it has been certified that the bloodstains found on M.Os.3 and 9 as well as clothes of the deceased were stained with 'O' group of blood. This evidence coupled with recovery of knife on the basis of the voluntary statement of accused No.4 which is duly proved in evidence directly connects accused No.4 to the murder of the deceased. Therefore, merely on the ground that his name was not mentioned in Ex.D14, the positive evidence brought on record connecting accused No.4 to the murder of the deceased cannot be discarded.
44. Thus on re-appreciation of the entire material on record, we find that the prosecution has adduced cogent, reliable and convincing evidence in proof of the guilt of accused Nos.3 and 4 for the offence of murder punishable under section 302 of Indian Penal Code as well as the offence of wrongful confinement punishable under section 341 of Indian Penal Code. The prosecution has proved beyond reasonable doubt that on the date of the incident, accused Nos.3 and 4 followed the motorcycle of the deceased and after intercepting his vehicle, accused Nos.3 and 4 indiscriminately assaulted the deceased with knife and dagger on vital parts causing instantaneous death of the deceased. The oral testimony of PW.5 -the eyewitness to the incident coupled with the medical evidence and the weapons recovered at the instance of accused Nos.3 and 4 directly connect these accused to the homicidal death of the deceased rendering them liable for conviction for the offence punishable under sections 341 and 302 of Indian Penal Code.
45. From the circumstances proved in evidence, it could be inferred that with the common intention of murdering the deceased, accused Nos.3 and 4 followed the deceased carrying deadly weapons with them which indicate that the act was premeditated and was committed with an intention of causing the death of the deceased. Under the said circumstance, though these accused were initially charged with the aid of section 149 of Indian Penal Code, in view of the findings recorded by us, acquitting accused Nos.1, 2, 5 and 6 of the charges under sections 143, 148 and 149 of Indian Penal Code, accused Nos.3 and 4 could be convicted with the aid of section 34 of Indian Penal Code. The Hon'ble Supreme Court in the case of DHANNA vs. STATE OF MADHYA PRADESH reported in AIR 1996 SC 2478 has expounded the legal position as to the circumstances when recourse to section 34 could be taken by the Court when the said section has not been specifically mentioned in the charge. Relying on the law enunciated in NANAK CHAND vs. STATE OF PUNJAB reported in AIR 1955 SC 274 held as under:
"8.xxxxx But the doubt was cleared by a constitution bench of this Court in Wille Slaney v. State of M.P. AIR 1956 SC 116, where this Court observed at para 86, thus:
"Section 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant."
9. It is, therefore, open to the Court to take recourse to Section 34 of I.P.C. even if the said section was not specifically mentioned in the charge and instead Section 149, I.P.C. has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course."
46. In the instant case, as the circumstances proved in evidence clearly establish that both accused Nos.3 and 4 were armed with knife and dagger and they followed the deceased on their motor cycle and inflicted fatal injuries on him thereby establishing that both the accused had a common intention to liquidate the deceased. For the foregoing reasons, holding accused Nos.3 and 4 guilty of the offences punishable under section 341 and 302 r/w. section 34 of Indian Penal Code, we proceed to pass the following:
ORDER
Crl.A.No.296/2013 and Crl.A.No.367/2013 are allowed. The conviction of accused No.1, accused No.2, accused No.5 and accused No.6 is set-aside. The accused No.1 Vasudeva, accused No.2 Guruprasad, accused No.5 Venkataramanaswamy and accused No.6 Hanumantha are acquitted of the offences punishable under sections 143, 148 of Indian Penal Code, section 341 r/w. section 149 of Indian Penal Code and section 302 r/w. section 149 of Indian Penal Code. Accused No.1 Vasudeva, accused No.2 Guruprasad, accused No.5 Venkataramanaswamy and accused No.6 Hanumantha shall be set at large forthwith, if they are not required in any other case. The bail bonds of accused Nos.1, 2, 5 and 6 stand cancelled and their sureties are discharged. I.A.2/16 for suspension of sentence and bail filed in Crl.A.No.367/2013 does not survive for consideration and accordingly, it is rejected.
Crl.A.No.305/2013 is partly allowed. The conviction of accused No.3 Narayana Gowda and accused No.4 Ramanjini for the offences punishable under sections 143 and 148 of Indian Penal Code are set-aside.
Conviction of accused No.3 Narayana Gowda and accused No.4 Ramanjini for the offences punishable under sections 302 r/w. section 34 of Indian Penal Code and section 341 r/w. section 34 of Indian Penal Code is upheld. The sentence imposed by the Presiding Officer, Fast Track Court- III, Bengaluru Rural District, Bengaluru in S.C.No.214/2005 against accused No.3 Narayana Gowda and accused No.4 Ramanjini for these offences is confirmed.
Registry is hereby directed to communicate the operative portion of this order to the concerned jail authorities forthwith to enable them to release accused Nos.1, 2, 5 and 6.