1. This appeal is preferred by the appellants who were the accused in the Trial Court against the judgment of the Sessions Judge, Kodagu District, Madikeri, in S.C No. 57 of 1993 dated 9th June, 1994, convicting the appellants/accused Nos. 1 & 2 for the offence punishable under Section 302 read with Section 34, IPC and accused No. 3 for the offence punishable under Section 109 read with Section 302, IPC and sentencing them to imprisonment for life.
2. We have heard the learned Counsel for the appellants/accused Sri Ponnappa and the learned Additional State Public Prosecutor Sri A.B Patil fully and perused the records of the case. The case of the prosecution is as follows:
The deceased — Kushalappa, purchased 40 acres of land in the year 1978 from the father of accused Nos. 1 & 2. There was enmity between the accused on the one hand and the deceased on the other. Near the land of the accused, the deceased had some forest land where a panuvala tree had grown. The deceased had sold some Panuvala trees from that particular area to Raghava P.W 9 for a sum of Rs. 300/- on 23-3-1993 and the servants of Raghava came and cut some trees on that day and there was no objection from any of the accused for cutting that tree on that day. On 24-3-1993 P.W 5 Krishna Kutty, Raghava, Shankara and Murali came to cut the other trees. The trees were shown to them by P.W 1, the writer of the deceased-Kushalappa. When they began to cut the trees, A-1 and A-2 objected cutting the of trees. They came and told this fact to P.W 1 the writer of Kushalappa. P.W 1 went to Kushalappa and told about the resistance made by A-1 and A-2 to the cutting of that tree. The deceased-Kushalappa himself went to the spot. He was followed immediately by P.W 1 Kamalaksha, the writer, P.W 4 Kaveramma, the wife of the deceased, P.W 6 Kasthuri, the wife of P.W 1, Krishna Kutty-P.W 5, Muralidhar, the worker who had come to cut the trees. On reaching the spot, the deceased-Kushalappa asked the workers to cut the trees but they hesitated to do so. That the deceased himself took the axe from the hands of Krishna Kutty P.W 5 and went to cut that tree. Immediately A-1 came and cut on the right side of the neck of Kushalappa by means of ‘kathi’ and A-2 cut on the back side of the head of Kushalappa and A-3 was standing nearby holding ‘kathi’ in her hand and she was instigating A-1 and A-2 not to leave Kushalappa as, if left alive and if he were to get up, he would not spare them. Even after Kushalappa fell down, A-1 and A-2 dealt a number of blows by means of ‘kathi’ and Kushalappa died on the spot. P.W 7 Sarojini who came to the scene of occurrence on hearing the cries saw A-1 to A-3 there with ‘kathies’ in their hands. The ‘kathies’ in the hands of A-1 and A-2 and their clothes were blood-stained. P.W 1 went to Suntikoppa and gave his written complaint as per Ex. P-1. The police registered a case in Cr. No. 26 of 1993 and started investigating into the case and after completion of the investigation, filed charge-sheet against the accused persons.
3. The learned Counsel for the appellants/accused argued as follows:
That the evidence presented by the prosecution to the Court consists of the evidence of interested witnesses. P.W 1 is the writer of the deceased. P.W 4 is the wife of the deceased. P.W 6 is the wife of P.W 1 and P.W 5 is the worker of the deceased. It could not have been safe for the Trial Court to rely on the evidence of such interested eye-witnesses. The axe which is alleged to have been used by Kushalappa for cutting the trees has not been seized by the police. There is shifting of scene of offence as there is divergence and contradiction in the evidence of the witnesses as to where Kushalappa fell down after the assault. The Trial Court could not have relied on the evidence of these witnesses. In the alternative, he submitted that there are injuries on the person of accused Nos. 1 & 2 and they are on the vital parts of their bodies. The prosecution has not only explained those injuries but suppressed them. It has also not seized the axe with which Kushalappa was alleged to have been cutting the tree at the time of the incident. Therefore, the possibility of the accused persons exercising their right of private defence cannot be ruled out in this case. He relied on Lakshmi Singh v. State of Bihar . 1976 4 SCC 394, wherein the Supreme Court has held that where the prosecution has not explained the injuries sustained by the accused, it can lead to the inference that the genesis of the case has been suppressed. He also relied on Puran Singh v. State of Punjab . 1975 4 SCC 518, where the same principle is laid down. On the basis of these arguments he submitted that the appeal may be allowed and the appellants may be acquitted of the offences with which they have been charged.
4. The learned Additional State Public Prosecutor Sri A.B Patil argued as follows:
The injuries on the accused appear to have been caused earlier to the assault by them on the deceased. The evidence discloses that A-3, the wife of A-2, had asked the other two accused to finish off the deceased, or else he would not leave them alive. These circumstances in the evidence go to disclose that the accused might have acted in the right of self-defence. He further submitted, but the accused seem to have exceeded the right of private defence. Accused Nos. 1 and 2 seem to have caused the injuries to the deceased with the intention of causing his death and, therefore, the offence will fall under Part-I of Section 304, IPC. But the evidence does not show beyond reasonable doubt that the offence was committed at the abetment of A-3. On the basis of these arguments he prayed for passing suitable orders in the appeal as deemed fit in the case.
5. It cannot be doubted in this case that the deceased died a homicidal death. P.W 10, the Medical Officer of Suntikoppe Primary Health Centre, has deposed about the post-mortem examination that he conducted on the dead body of Kushalappa. There is also the evidence that inquest was held by the police as per Ex. P-4 and the dead body was seen lying in a pit by the side of the footpath. The inquest report also discloses that there were injuries on the dead body of the deceased. Post-mortem report discloses that there were as many as 15 injuries on the dead body. They were all ante mortem and that the cause of the death of the deceased was haemorrhage and shock as a result of various injuries noted by him. In view of these pieces of evidence it will have to be held that the prosecution has proved beyond reasonable doubt that the deceased died a homicidal death.
6. In order to connect the accused with the offence alleged against them, the prosecution has relied on the evidence of P.W 1 the complainant in this case, and also the writer of deceased Kushalappa and the evidence of P.W 4 Kaveramma, the wife of the deceased, P.W 6, who is the wife of P.W 1, and P.Ws 7 and 8. The evidence of P.W 1 is to the effect that he was working as a writer under deceased Kushalappa and that Kushalappa had purchased 40 acres of land from the father of A-1 and A-2, A-1 and A-2 were not on talking terms with the deceased and that the deceased had left some forest near his land and he was claiming that it belonged to him and whereas, A-1 and A-2 were laying claim to that piece of property. His evidence is further to the effect that after dividing the property, a barbed wire fence was put up and Kushalappa had sold some panuvala trees to one Raghava and on 23-3-1993 Raghava and 4 servants came to cut some Panuvala trees and that on 24-3-1993 again 4 servants of Raghava came at about 9.45 or 10.00 a.m and he was sent by Kushalappa to show the trees that were to be cut, and he took the servants near the trees and pointed out the trees and when Krishna Kutty began to cut the tree, A-1 and A-2 came and objected and the cutting of the tree was stopped and P.W 1 came and informed Kushalappa about the objection raised by the accused and that the deceased himself came to the spot and his wife with a baby in her arms followed him and Kushalappa asked the servants to cut the trees but they did not come forward and then Kushalappa himself took the axe from the hands of Krishna Kutty and took about 4 steps and then A-1 cut on the right side of the neck and A-2 cut on the back side of the neck by means of ‘kathies’ on the person of the deceased and they gave 3 or 4 blows and then Kushalappa fell down near the pit by the road side and A-3 was telling A-1 and A-2 not to leave the deceased alive because if he were to get up, he would not spare the accused and even after Kushalappa fell down, A-1 and A-2 dealt a number of blows on him. It is further his evidence that the wife of Kushalappa also asked the accused not to assault her husband but they threatened her that they would also be murdered. He has deposed about his going to the police station and giving his complaint.
7. P.W 4 Kaveramma is the wife of the deceased. She has also deposed that she followed her husband when he went to the spot on hearing that the accused were objecting to the cutting of the tree. She has also deposed on the same lines as P.W 1 about the assault by A-1 and A-2 on her husband Kushalappa.
8. P.W 6 Kasthuri also followed her husband. She is the wife of P.W 1, and she has also deposed about the incident on the same lines as P.Ws 1 and 4.
9. P.W 5 Krishna Kutty. His evidence is also to the effect that when Kushalappa went forward with an axe in his hand to cut the tree there was exchange of words between the accused and Kushalappa and accused assaulted Kushalappa by means of ‘kathies’ and out of fear he ran away.
10. P.W 7 has deposed that she heard cries from the scene of offence and she saw the 3 accused persons coming on the way and the ‘kathies’ in the hands of A-1 and A-2 were bloodstained and their clothes were also bloodstained. The Trial Court has believed this evidence and convicted all the 3 appellants.
11. The learned Counsel for the appellants contended that these witnesses are interested and therefore, the Trial Court was not justified in relying on these witnesses. It is not disputed in this case that P.W 4 is the wife of deceased Kushalappa. P.W 1 was the writer working under Kushalappa. P.W 6 is the wife of P.W 1 P.W 7 is another worker working under Kushalappa. But merely because these witnesses are interested, the Court would not be justified in rejecting their evidence. Time and again the Supreme Court has laid down that the witness being interested or related is not a ground for the rejection of the evidence of a witness. If a witness is related or interested to the deceased or to some party in the case, it is not a ground for the Court to reject the evidence but to assess and scrutinize that evidence cautiously and carefully. Even if after assessing the evidence cautiously and carefully, if the Court finds that the evidence is acceptable, the Court will be justified in accepting such an evidence.
12. Another contention of the learned Counsel for the appellants is that there is a discrepancy in the evidence as to where exactly Kushalappa fell after the assault. There appears to be some discrepancy in the evidence regarding the exact spot where Kushalappa fell after the incident. But this cannot be termed a major contradiction or a flaw in the evidence of these witnesses. When the witnesses are deposing, naturally there would be some discrepancies between the witnesses regarding time, place and other sequences to the incident. If the witnesses were to repeat parrot-like word to word in the same manner, it would be a sign of concoction in the evidence. The very fact that the witnesses committed such minor contradictions goes to show that they are natural witnesses. If the contradictions in their evidence are minor and they do not go to the root of the case, the Court is not expected to reject such evidence. The learned Counsel also contended that the prosecution has not placed all the facts fairly before the Court, inasmuch as it has not seized the axe which is alleged to have been used by Kushalappa for cutting the tree. But we do not think that it is a lacuna in the prosecution case as the said axe is not an incriminating article.
13. The evidence also discloses that A-1 and A-2 has sustained injuries. P.W 10 has deposed that he examined Poovaiah A-2 and he found the following injuries:
1. Incised cut wound on anterior and lower part of the right thigh, size 1½″ × ½″;
2. Incised cut wound on lower and right side of the ribs, size ½″ × ½″.
14. He also opined that the injuries were simple in nature. He also deposed that he examined accused Kariappa—A-1 and he found a vertical cut on the upper and middle of the forehead size ½″×½″ and he has stated that the injury was simple in nature. The evidence discloses that the accused persons had also sustained injuries in this case. The question is whether this non-explanation of the injuries on the person of the accused will lead to the inference that the prosecution has suppressed the genesis. In Lakshmi Singh's case, supra, the Supreme Court has held as follow:
“(A) Penal Code (1860), Section 300 — Murder case — Non-explanation of injuries sustained by accused — Inferences to be drawn — Cr. App. Nos. 479 and 483 of 1968, dated 30-4-1971 (Pat.), Reversed — (Evidence Act (1872), Sections 114 and 3)”.
15. In this Ruling it has to be noted that the Supreme Court itself has held as follows:
“There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries”.
(Emphasis is supplied)
16. In Hare Krishna Singh v. State of Bihar . 1988 2 SCC 95 the Supreme Court has held as follows under note (A):
“The obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused”.
17. Further it has held that
“Where all the eye-witnesses have stated that the accused had fired on the deceased as a result of which he died and the prosecution witnesses have been believed by both the lower Courts, the prosecution would not be obliged to account for the injury sustained by the accused and the failure of prosecution to give a reasonable explanation of the injury would not go against or throw any doubt on the prosecution case”.
18. In fact the Trial Court has relied upon this ruling. After assessing the evidence of the above mentioned witnesses, we think that the Trial Court was justified in coming to the conclusion that in view of the cogent and acceptable evidence led by the prosecution regarding the assault by A-1 and A-2 on the deceased, the non-explanation of the injuries on the accused persons cannot be a ground to disbelieve the prosecution case. Even the evidence of P.Ws 6 and 7 who were tried to be branded as chance witnesses in the Trial Court has been rightly accepted by the Trial Court.
19. So far as the recovery is concerned, the Trial Court has up-held the recovery of weapons in pursuance of the voluntary statement of the accused. But there is one defect in respect of this alleged recovery and that is Ex. P-3 has been drawn in Suntikoppa Police Station. The trial Court has held that this lapse on the part of the Investigating Officer is not a ground for throwing the prosecution out of Court. In our view, the view of the Trial Court is not correct. Instead of separate mahazars in respect of the recoveries of the separate weapons, one mahazar itself is prepared and therefore, it will be difficult to find out as to whether all the 3 M.Os were recovered in pursuance of the different voluntary statements alleged to have been made by 3 different accused. Therefore, the Trial Court was not justified in up-holding the evidence of the prosecution regarding the alleged recovery. Even if that alleged recovery is excluded from consideration, we are of the opinion that the case of the prosecution remains unaffected in view of the clear, cogent and acceptable evidence of the eye-witnesses alone referred to by us. Now, the next question is whether the accused can be said to have exercised the right of private defence. P.W 1 has stated that when the deceased had walked four steps to cut the tree, accused No. 1 assaulted on the right side of the neck and accused No. 2 assaulted him on the back side of the head. Looking to the injuries sustained by the deceased and the manner in which the injuries are caused, as deposed by P.W 1 and other witnesses, the accused Nos. 1 and 2 causing these injuries in exercise of their right of private defence is clearly ruled out. If the injuries were to be caused in the right of private defence by any of the accused, the injuries would have been found on the front portion of the body of the deceased and not on the side portion and on the back side of the head, as found in this case. Even there were multiple cut wounds on the left hand and left finger which go to show that the deceased must have tried to defend himself when he sustained these injuries. Looking to the nature of the injuries and the manner in which they have been inflicted, as can be found from the evidence of these eye-witnesses, the possibility of the accused causing these injuries in exercise of the right of private defence is clearly ruled out. The evidence further discloses that even after the deceased fell on the ground, accused Nos. 1 and 2 continued to assault him. This further clearly rules out the possibility of the accused exercising the right of private defence in this case. Hence, we think that the Trial Court was justified in convicting accused Nos. 1 and 2 for the offence punishable under Section 302, IPC and sentencing them to R.I for life, but it was not justified in convicting accused No. 3 for the said offence as the evidence does not prove beyond reasonable doubt that A-1 and A-2 committed the offence due to abetment by A-3. Hence, we proceed to pass the following:
The appeal is allowed in part. The judgment of the Trial Court convicting accused Nos. 1 and 2 for the offence punishable under Section 302, IPC and sentencing them to R.I for life is confirmed, but the Judgment convicting accused No. 3 for the offence punishable under Section 109 read with Section 302, IPC is set aside and she is acquitted of the offence with which she has been charged and she is set at liberty in this case and her bail bonds are cancelled. The period of detention undergone by A-1 and A-2 is given set off against the sentence awarded to them.
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