A.Shankar vs State Of Karnataka

A. Shankar ...Appellant

Versus

State of Karnataka ...Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This criminal appeal has been filed under Section 2(a) of the

Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,

1970 against the judgment and order dated 28.2.2007 of the High Court

of Karnataka, Bangalore, in Criminal Appeal No.1069 of 2000 by

which the High Court has reversed the judgment and order dated

31.10.1998 passed by the XVth Additional City Sessions Judge,

Bangalore, in Sessions Case No.366 of 1996, acquitting the appellant

of the charges under Sections 302 and 307 of the Indian Penal Code,

1860 (hereinafter called `IPC').

2. Facts and circumstances, as per the prosecution case

giving rise to this appeal had been that the law was put into motion by

younger brother of the deceased, Shankara (PW.8), who lodged a

complaint orally on 26.3.1996 that the appellant came to the Barber

Saloon of Murthy Prasad, deceased, on 25.3.1996 at about 8 p.m. and

demanded Rs.150/- from the deceased. Since the deceased did not

give the money demanded, the accused got angry and threatened that

he would take care of him later. Appellant accused again came back at

9.30 p.m. to the shop of the complainant, sought shelter therein, had

food, and slept there with the deceased and the complainant. At about

2 a.m. the complainant heard sounds and after being awaken he saw

that the appellant was hitting his elder brother with a knife on the chest

and on shouting of the complainant the appellant hit him also with the

same on the left abdomen and hands and ran away. Murthy Prasad

died of assault and the complainant got injured, and was taken to the

hospital for treatment.

3. On the basis of the said oral complaint, an FIR No.82/96

dated 26.3.1996 (Ext.P4) was recorded. The investigation ensued and

the appellant was arrested on 31.3.1996. After conclusion of the

investigation, charge sheet was filed against the appellant and he was

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put to trial under Sections 302 and 307 IPC. In order to prove the guilt

of the appellant, prosecution examined 17 witnesses. The appellant

was examined under Section 313 of Code of Criminal Procedure, 1973

(hereinafter referred to as "Cr.P.C.") wherein apart from denying the

evidence against him given by the witnesses directly, he also denied to

have gone to the Saloon of the deceased at all as alleged by the

prosecution.

4. After considering the entire evidence on record, the Trial

Court came to the conclusion that prosecution failed to prove beyond

reasonable doubt that the appellant had committed murder of Murthy

Prasad or made an attempt to kill the complainant Shankara (PW.8).

Thus, vide judgment and order dated 31.10.1998, the appellant was

acquitted of the charges under Sections 302 and 307 IPC.

5. Being aggrieved, the State of Karnataka preferred

Criminal Appeal No.1069 of 2000 which has been allowed by the High

Court convicting the appellant under Section 302 IPC for committing

the murder of Murthy Prasad, deceased and awarding him life

imprisonment. The appellant also stood convicted under Section 324

IPC for causing injuries to the complainant Shankara (PW.8) and has

been awarded six months imprisonment and a fine of Rs.5,000/-. In

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default of depositing the fine to undergo simple imprisonment for a

period of one month. Both the sentences have been directed to run

concurrently. Hence, this appeal.

6. Shri Sanjay Mishra, learned counsel appearing for the

appellant has submitted that the High Court has committed an error in

interfering with the well reasoned judgment of acquittal by the Trial

Court and relying upon the evidence on record while ignoring the

material inconsistencies between the evidence of the witnesses; and

medical and ocular evidence. No motive was proved by the

prosecution to commit the offence. There had been an inordinate delay

of 4 hours in lodging the F.I.R. as the murder was alleged to have been

committed at 2 a.m. while the complaint was lodged at 6 a.m. on the

same day, though the Police Station was at a distance of only one

kilometre. There had been discrepancy relating to the seizure and kind

of weapon used in the offence. Therefore, the appeal deserves to be

allowed.

7. Per contra, Ms. Rashmi Nandakumar, learned counsel

appearing for the State of Karnataka vehemently opposed the appeal

contending that the High Court has rightly reversed the findings

recorded by the Trial Court being the First Court of Appeal after

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appreciating the evidence properly. The Court below had mis-

appreciated the material evidence of the witnesses. More so, the trial

Court had failed to give due weightage to the evidence of injured

witness, namely Shankara (PW.8). Hence, the appeal lacks merit and

no interference is required.

8. We have considered the rival submissions made by

learned counsel for the parties and perused the record.

9. The post mortem examination report dated 26.3.1996 revealed

that following injuries were there on the person of Murthy Prasad:

(1) Vertically placed incised wound over the front of tip of right

thumb measuring 3 cm x 0-5 cms x 0-5 cms deep;

(2) Incised wound over top of left shoulder measuring 2 cms x 0-5

cms x skin deep;

(3) Incised wound over left side of chest situated 8 cms vertically

below left arm fit, measuring 2 cms x 0-5 cms;

(4) Incised wound over left side lower part of chest situated 23 cms

below later 1/3rd of left collar bone, vertical measuring 2 cms x 0-5

cms x 5 cms, deep;

(5) Incised wound over left side lower part of chest situated 20 cms

below left arm fit, oblique measuring 2.5 cms x 0-5 cms x 0-5 cms,

deep;

(6) Incised wound over left side lower part of front of abdomen

measuring 2.5 cms x 0-5 cms x 1 cms, deep;

(7) Horizontally placed stab wound present over the left side of hip

situated 3 cms behind and 2 cms below the level of left anterior

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iliac spine measuring 2.5 cms. x 2 cms x 9 cms deep, the front end

is pointed and back end blunt, margins are clean cut, the wound is

directed backwards, downwards, and to right by cutting sciatic

nerve and underlying vessels edged clean cut;

(8) Incised wound over left side upper part of neck situated 2 cms

below middle of ramus of mandible, measuring 1 cms x 0-5 cms x

0-5 cms, deep;

(9) Stab incised wound present over left side back of chest situated 12

cms below the level of 7th cervicle spine 5 cms to left of midline

measuring 3 cms x 1.5 cms chest cavity deep.

The post mortem report further revealed that so far as injury no.9

was concerned, the weapon had cut the skin and muscles of chest had

entered the chest cavity in 5th intercostals space, and pierced the lower

lobe of left lung on which it measures 2 cms x 0.5 cms x 0.5 cms deep.

According to the opinion of the Doctor, the death was due to shock and

haemorrhage as a result of the aforesaid injuries.

10. The medical examination report of complainant Shankara, aged

18 years dated 26.3.1996 revealed the following injuries on his person :

(1) Incised wound seen on the left side of abdomen measuring 1-

1/2 cm x 0.5 cm x just below the last rib on the left side at

mid clavicular line;

(2) Incised wound seen on the front of right fore at lower 1/3rd

measuring 1-1/2 cm x 1 cm, skin deep;

(3) Incised wound seen on the medial side of left thumb, 2-1/2

cm x 1/2 cm;

6 (4) Incised wound seen on the left upper arm on the detoid

muscle measuring 1-1/2 cm x 1/2 cm skin deep;

(5) Incised wound seen on the left cheek measuring 1-1/2 cm x

1/2 cm skin deep.

11. Dr. B.R.S. Kashyap (PW.5) who conducted post mortem

examination on the body of Murthy Prasad explained in his deposition

in the court that it was not normally possible to cause injuries to the

deceased with weapon Ext.MO.1 if held with both of its arms together

while inflicting the injuries. However, if the sharp edge and tip of the

scissors is held open while assaulting, the injuries can be caused. So

far as the evidence of Dr. H. Venkatesh (PW.6) who examined

Shankara (PW.8) complainant is concerned, he deposed that injuries

found on his person could be caused of sharp edged weapon. Thus, in

view of the above, there could be no dispute that as per the opinion of

Doctors, it was possible to cause the injuries found on the person of the

deceased and the complainant with scissors in case the sharp edge and

tip of the scissors is held open at the time of assault.

12. Material Contradictions :

(I) Evidence of Witnesses:

7 Murthyalappa (PW.2), and Smt. Ramanjanamma (PW.3),

the brother-in-law and sister of the deceased, respectively, deposed in

the Court that they made a visit to the hospital where Shankara (PW.8)

had been admitted and he had told to both of them that the appellant

had killed Murthy Prasad, and caused injuries to him. Though

Shankara (PW.8) complainant himself deposed in his examination-in-

chief that he came to know about the death of his brother only after

being discharged from the hospital living therein as indoor patient for

15 days.

Shankara (PW.8), while lodging the complaint stated as under:

"On 25.3.1996 at about 8.00 P.M. the accused younger

brother of Rudresh came to the Super Hair Style Shop

of the deceased, elder brother of the complainant viz.,

Murthy Prasad and demanded Rs.150/- from him.

Since he did not give the money demanded, the

accused got angry and threatened that he would take

care of him later. He once again came back at 9.30

P.M. to the shop of the complainant and with intent to

murder the complainant and his elder brother, he

sought shelter in the shop, had food and slept there

itself."

But, in the court Shankara (PW.8) deposed:

"Last year on one day at about 8 p.m. the accused came

to our saloon and enquired me about my brother. I

informed the accused that my brother had gone out and

he will be returning soon. Accused stayed in my saloon

only. My brother Murthy Prasad returned to Saloon at

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about 9 p.m. Myself, my brother and accused took

meals in the saloon and slept in the saloon."

Thus, it is evident that Shankara (PW.8) in his deposition in

court did not mention about the first visit of the appellant and demand

of Rs.150/- from Murthy Prasad.

(II) Medical Evidence & Ocular Evidence:

As per the medical evidence, injury nos.7 and 9 found on the

person of Murthy Prasad deceased had been fatal and could be caused

with the pointed part of the scissors, if used holding sharp edge and tip

of the scissors open, at the time of assault.

In his oral complaint on 26.3.1996, Shankara (PW.8) had

stated that the accused caused the injuries with knife. He deposed in

the Court:

"Accused was stabbing my brother with a

scissors. He stabbed on the stomach of my brother...

Accused also stabbed me from the scissors on my left

side of stomach, on right hand and on the left

shoulder...Now I see the scissors M.O.1, the accused

assaulted me and my brother with M.O.1".

(Emphasis added)

Thus, it is apparent from the above that Shankara (PW.8) was not

sure as to whether injuries were caused by knife or scissors. No

explanation came forward as to whether the complainant, Shankara

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(PW.8) was capable to understand the distinction between knife and

scissors.

(III) Identity of the accused:

As per Ramanjanamma (PW.3), brother of one Rudresh

murdered Murthy Prasad. According to Sriram (PW.4), the brother

of Umesh assaulted them: "I do not know who is brother of Umesh. I

do not know the accused." Shankara (PW.8) refers to the accused as

brother of Rudresh. Abdul Suban (PW.17) stated that "I tried to

ascertain and search for Rudresh but he was not found. I did not

enquire the father of the accused and his family members about

Rudresh".

(IV) FSL Report:

As per Abdul Suban (PW.17), he sent all the seized articles

including M.O.1 for FSL examination through Police Constable

2313 on 2.6.1996 and received back on 7.6.1996. However, FSL

report was not produced before the Court. Abdul Suban (PW.17)

has admitted that he received the Post Mortem report and FSL report

and after completing the investigation he submitted the charge sheet

on 27.6.1996. No explanation has been furnished as to why this FSL

has not been produced before the court as it was necessary to

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ascertain as to whether M.O.1 was actually used in the commission

of offence or not.

(V) Recovery of weapon:

As per Abdul Suban (PW.17) the accused in the presence of

panchas had seen the occurrence and also took out a scissors hidden

under a stone slab near the saloon. He seized the scissors M.O.1 in

the presence of Panchas under Panchnama Exh. P-8. As per the

evidence of Ganganarasaiah (PW.9) the scissors was in the bucket

which was filled with water. The bucket was inside the shop. The

police alone saw it. Narayanaswamy (PW.15) stated that the

accused told him that he committed the offence and he took out a

scissors kept under a stone slab. Police seized the same and wrapped

in a cloth and drawn a mahazar. He signed the mahazar and stated

that M.O.1 was the scissors seized by the police.

13. The trial Court has taken into consideration each and every

discrepancy/contradictions referred to hereinabove. However, the

High Court has dealt with the case observing that presence of

Shankara (PW.8) at the place of occurrence has not been disputed.

Injuries found on his person are also supported by the evidence and

particularly other statements made by Shankara (PW.8) in the Court

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which were worth acceptance regarding his staying outside for some

time. The High Court came to the conclusion that there was nothing

unnatural in his statement. However, the High Court did not deal with

the contradictions referred hereinabove.

14. The contradiction in the statement of Shankara (PW.8) in the

court as compared with his statement before the police under Section

161 Cr.P.C. also demolishes the aspect of motive.

15. There was delay in lodging the FIR. In the present case, the

alleged occurrence took place at 2.00 p.m. and the police station was

hardly at a distance of 1 K.M. from the place of the occurrence and

Shankara (PW.8) had never deposed that he had become unconscious,

the delay has not been explained.

16. Abdul Suban (PW.17), the I.O. consistently deposed that he

was searching for Rudresh. Admittedly, even as per the prosecution,

author of the crime had been Shankar-appellant and not his brother

Rudresh. We fail to understand as for what reason the I.O. was trying

to apprehend the brother of the accused.

17. In all criminal cases, normal discrepancies are bound to occur

in the depositions of witnesses due to normal errors of observation,

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namely, errors of memory due to lapse of time or due to mental

disposition such as shock and horror at the time of occurrence. Where

the omissions amount to a contradiction, creating a serious doubt

about the truthfulness of the witness and other witnesses also make

material improvement while deposing in the court, such evidence

cannot be safe to rely upon. However, minor contradictions,

inconsistencies, embellishments or improvements on trivial matters

which do not affect the core of the prosecution case, should not be

made a ground on which the evidence can be rejected in its entirety.

The court has to form its opinion about the credibility of the witness

and record a finding as to whether his deposition inspires confidence.

"Exaggerations per se do not render the evidence brittle. But it can be

one of the factors to test credibility of the prosecution version, when

the entire evidence is put in a crucible for being tested on the

touchstone of credibility." Therefore, mere marginal variations in the

statements of a witness cannot be dubbed as improvements as the

same may be elaborations of the statement made by the witness

earlier. "Irrelevant details which do not in any way corrode the

credibility of a witness cannot be labelled as omissions or

contradictions." The omissions which amount to contradictions in

material particulars, i.e., materially affect the trial or core of the

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prosecution's case, render the testimony of the witness liable to be

discredited. [Vide: State Represented by Inspector of Police v.

Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR

2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh,

(2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors.

v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v.

State of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh & Ors.,

(2011) 4 SCC 324; and Brahm Swaroop & Anr. v. State of U.P.,

AIR 2011 SC 280].

Where the omission(s) amount to a contradiction, creating a

serious doubt about the truthfulness of a witness and other witness also

make material improvements before the court in order to make the

evidence acceptable, it cannot be safe to rely upon such evidence.

(Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).

18. If the case in hand is examined in the light of the aforesaid

settled legal proposition, the prosecution has definitely made an

attempt to establish the presence of the accused in the shop and

Shankara (PW.8) is the only eye witness. His presence also cannot be

doubted in view of the fact that he himself got injured in the incident.

However, the question does arise as under what circumstances he has

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told his sister and brother-in-law that his brother has been killed by

accused-appellant when in his substantive statement before the court

he has deposed that he came to know about the death of his brother

after being discharged from the hospital and he remained there as

indoor patient for 15 days. Such a statement made in the court also

creates a doubt as to whether he could be the author of the complaint

for the reason, that in the complaint lodged by him on 26.3.1996 he

has stated that his brother had died. Similarly, non-production of the

FSL report in the court by the prosecution is fatal as in absence

thereof it was difficult for the court to reach to the conclusion as to

whether the offence has been committed with M.O.1.

More so, after the incident, Abdul Suban (PW.17) had

been busy in searching Rudresh, brother of the accused and he made

no attempt to search the accused. These factors clearly indicate that

investigation has not been conducted fairly.

19. It is settled legal proposition that in exceptional circumstances

the appellate court under compelling circumstances should reverse the

judgment of acquittal of the court below if the findings so recorded by

the court below are found to be perverse, i.e., the conclusions of the

court below are contrary to the evidence on record or its entire

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approach in dealing with the evidence is found to be patently illegal

leading to miscarriage of justice or its judgment is unreasonable based

on erroneous law and facts on the record of the case. While dealing so,

the appellate court must bear in mind the presumption of innocence of

the accused and further that acquittal by the court below bolsters the

presumption of his innocence. (Vide: Abrar v. State of U.P., (2011) 2

SCC 750; and Rukia Begum & Ors. v. State of Karnataka, (2011) 4

SCC 779).

20. In view of the above, we are of the considered opinion that the

High Court committed an error in recording the finding of fact that

the prosecution succeeded in proving the case beyond reasonable

doubt. The High Court failed to meet the grounds pointed out by the

trial Court discarding the case of prosecution and thus, the findings of

fact recorded by the High Court remain perverse.

In view of the above, the appeal succeeds and is allowed.

The judgment and order of the High Court dated 28.2.2007 is hereby

set aside and judgment and order of the trial Court dated 31.10.1998

passed in Sessions Case No.366 of 1996 is restored. The appellant

has been enlarged on bail by this Court vide order dated 26.7.2010.

The bail bonds stand discharged.

....................................J.

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(Dr. B.S. CHAUHAN)

.....................................

J.

(SWATANTER KUMAR)

New Delhi,

June 9, 2011

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