1. The State has filed this appeal questioning the legality and correctness of the Judgment and order of acquittal dated May 26, 1982 passed by the Addl. Sessions Judge, Dakshina Kannada, in Sessions Case No. 3 of 1982 acquitting theRespondents-A-1 to A-3 of the charge of the offence of murder punishable under Section 302 I.P.C., read with Section 34 I.P.C., as also of the charge of the offences punishable under Sections 448, 323 and 324 I.P.C., as levelled against them.
2. One Ayappa Poojary of surlimoole in Vittal Kanaba Village, Bantwal Taluk Dakshina Kannada District in thedeceased. A-3 Smt. Kamala is his wife. A-2 Sadashiva is his son. A 1 Babu Poojary is their distant relative i.e., A-3's sister's daughter is given in marriage to the nephew of A-1. The deceased was suspecting fidelity of A-3, his wife, and that had given cause for the difference between him and A-3. He was living all alone separately in a house situated in the Darkhast land allotted to him by the Government. He had erected a small house covered by thatched roof. The house was surrounded by dwarf walls on three sides with a thatti wall on the other side with a thatti door. He used to work as a coolly and make his living.
On September 27, 1981 when he returned back to his house in the evening, he found his steel trunk containing clothes and other utensils was missing. He suspected the hand of A-3 and went to the house where she was putting up with A-2 and abused her and returned back to his house. When he was sleeping there in the hut, it is the prosecution case, at about 11 or 11-30 P.M., the three accused broke open the thatti wall and, having trespassed into house, started assaulting the deceased A-l and A-2 assaulted him with knives and A-3 assaulted him with hands. She gave fist blows on the chest and abdomen. The deceased, having sustained injuries, kept himself lying pretending to have died and the accused, thereafter, left the house. The deceased, thereafter, almost naked with a loincloth, went with injuries on his person to the house of P.W.I. Ismail Beary and woke him up and informed him about what had happened. He told him that his son Sadashiva and Babu Poojary had assaulted him by means of knives. P.W.I Ismail Beary then went to the house of P.W. 2 Veerappa Poojary, uncle of the deceased, and told him about what had happened and returned back. As P.W. 2 was near the deceased, he went to bring an auto rickshaw. When questioned by P.W. 2 Veerappa Poojary, the deceased told before him also that Pabu Poojary and Sadashiva as also his wife Kamala hadassaulted him. When P.W. 1 returned with an auto rickshaw driven by P.W. 3 Thimmappa Shetty, P.Ws. 1 and 2 together took the deceased in theauto rickshaw to the Primary Health Center at Vittal.
P.W. 11 Dr. Nanjaiah, who was on duty in the hospital, examined and found that the deceased had sustained 15 injuries as follows :-
'2. No.l. An incised wound on the medial aspect of the right foot, size 2cm bleeding plus, plus plus. Depth could not be made out.
No. 2. Two incised wounds situated below the left knee in the interior aspect, size about 2 cm in length situated 2cm apart witheach ether, bleeding plus plus superficial.
No.4. An incised wound situated on the middle of the lateral aspect of the left arm size about 2cm gaping by point 5cm, bleeding plus plus depth was about 5 cm.
No.5. A contusion on the posterior aspect of the left wrist, size 5 cm x 3cm, skin was bruised on the middle of the contusion.
No. 6. A contusion on the left clavicle, size about 7x2 cm, the skin was bruised on the contusion.
No. 7.An incised wound situated on the lateral aspect of the left arm 5 cm above the elbow joint, size 1 cm in length bleeding plus plus superficial.
No. 8. An abrasion on the posterior aspect of the left elbow, size 3x5 cm.
No.9. There were three abrasions-one below the other on the anterior aspect of the left fore leg, size 3 x 2 cm each.
No.10. An incised wound about 2 cm in length horizontally situated on the left gluteal region size about 2 x 5cm, and bleeding plus plus, depth could not be made out because of bleeding.
No. 11. An abrasion on the back of the left scapula size 5x5 cm.
No. 12. A lacerated wound on the right anterior iliac bone size about 5x3 cm. superficial.
No. 13. An abrasion on the right gluteal region, size 7x3 cm.
No. 14. An abrasion on the lateral aspect of the right thigh 5' below the greater trochanter, size 7 x 3.cm.
No. 15. Curved abrasions 3 in number one below the other nearer to each other on the right side of the neck, 5' away from the middle line, about I cm each convexity towards posterior.'
P.W. 11, the doctor, questioned the deceased regarding the circumstances under which he had sustained the injuries and having, accordingly, made entries in the Accident Register, admitted him for treatment. He also, thereafter, sent a memo as per Ex. P-9 to the Police Station at Vittal.
On receipt of the memo, Ex. P-9, P.W. 12 B.M. Vishwanath, Head Constable of Vittal Police Station, having made entries in the Station House Diary, went to the hospital and found that the deceased, who was under treatment there, was conscious and able to speak. He questioned him and recorded his complaint as per Ex.P-12. He then returned back to the Police Station and, on the basis of the statement, Ex. P-12, registered a case in Crime No. 77 of 1981 and issued F.I.R. to the Court as per Ex. P-13. He, thereafter, went to the locality concerned and examined the place of incident shown to him by P.W. 2 Veerappa Poojary and drew up a panchanama, Ex. P-l, and seized thereunder abloodstained mat (M.O.3), a bloodstained bed sheet (M.O.5) and bloodstained cocoanut leaves (M.O.4.) near the thatti. He also thereafter recorded the statement of P.W. 2 Veerappa Shetty. He also prepared a hand sketch of the scene of offence as per Ex. P-14 and thereafter went to the Police Station.
When the deceased, who was under treatment in the hospital, died on September 28, 1981 at about 5 P.M., and P.W. 11 sent a memo, Ex. P-10, to the Police Station intimating the death of the deceased, P.W.13 S.J. Manappa, Sub-Inspector of Police, who was in charge of the Police Station, sent further report to the Court for altering the offence from 324 I. P.C,. to 302 I.P.C.,and sent express reports to his superiors.
On receipt of the information regarding the death of the deceased, P.W. 14 N.V. Kishanprasad, Circle Inspector ofPolice, who took up investigation of the case on September 29, 1981, went to the hospital, collected panchas including P.W. 14 Ismail and held inquest proceedings over the dead body of the deceased as per Ex. P-2. During theinquest, he also questioned and recorded the statements of P.Ws. 1, 2 and 3 and, thereafter, he made over the dead body of the deceased to the Medical Officer for P.M. examination.
P.W. 11, the doctor, himself conducted P.M. examination over the dead body of the deceased and, in addition to the injuries already mentioned above, he also found, ondissection, that all other organs were intact except abdominal organs. Small intestines were injured due to external injury (on the abdominal region) and the cause of death was due to shock due to injury to abdominal organs. He, accordingly, later on issued P.M. report as per Ex.P-l1.
P.W. 14 C.P.I, went to the locality concerned, secured the presence of the witnesses and recorded further statements of the witnesses already examined as also the statements of some other witnesses. On the same day i.e., on September 29, 1981, A-2 and A-3 were brought and produced before him by H.C.B. No. 1024. He arrested them and, on the information furnished by A-2 as per Ex. P-17, he also recovered a knife (M.O. 6) from the basket kept hanging in the roof of the veranda of his house and seized it under a panchanama, Ex. P-3. It was stained with blood and he, therefore, packed and sealed it. He also seized an old steel trunk (M.O. 7) under a panchanama, Ex. P-4. Later on, when the Sub-Inspector of Police brought and produced A-l Babu Poojary, P.W. 14 CPI arrested him and, on the basis of the information furnished by him as per Ex. P-18, he recovered the blood-stained knife (M.O. 8) kept behind a photo inside his house and seized it under a panchanama, Ex. P-5. He sent the accused to the Court and obtained judicial custody remand. He also, later on, sent the bloodstained articles to the Chemical Examiner and, after completing the investigation, he placed a charge sheet against the accused.
3. The defence of the accused was one of total denial of their complicity in the commission of the offences.
4. The Learned Sessions Judge, discussing the evidence, in detail, given by the Medical Officer and the nature of the injuries found to have been sustained by the deceased, held that the deceased met with a homicidal death as a result of the injuries sustained by him. He, however, rejected the evidence of P.W. 1 Ismail Beary, P.W. 2 Veerappa Poojary and P.W. 6 Dennis Mascaren has regarding the oral dying declaration made by the deceased before them as also the statement of the deceased in the nature of dying declaration as contained in Ex. P-12 on the ground that the evidence, in this behalf, was discrepant and, even if the blood-stained knives were recovered at the instance of A-l and A-2, that circumstance, by itself, was not sufficient to find the accused guilty of the charge of the offences levelled against them. In that view, he, having acquitted the accused, the State has filed this appeal.
5. The fact that the deceased, having sustained injuries, was taken to the hospital by P.Ws. 1 and 2 in theauto rickshaw belonging to P.W. 3 and was got admitted there for treatment of the injuries and while he was under treatment there in the hospital, he died of the injuries sustained by him, is not at all sought to be disputed. The evidence given by the Medical Officer and the nature of the injuriesdescribed by him in the course of his evidence, to which reference has already been made above, also showed that the small intestines were injured and the injuries to the small intestines were the cause of death. Although the Medical Officer (P.W. 11) has stated that the cumulative effect of the injuries was also sufficient to cause death of the deceased, but he also, at the same time, stated that he never suspected that the deceased would die on account of the external injuries as found to have been sustained by him when he admitted him in the hospital and treated him for the same. He has, however, admitted that he did not try to explore if there were any internal injuries when he treated the deceased for the various injuries sustained by him, till he died, may be, because as stated by him, facilities like X-Ray etc., were not available to him. Whatever may be, the fact that the deceased died of the injuries found to have been sustained by him is not at all in. dispute.
6. However, the important question that requires to be considered is whether, as alleged by the prosecution and as tried to be made out at the trial, the accused or any of them were responsible for inflicting the injuries found to have been sustained by the deceased and whether they did so in furtherance of their common intention of causing his death or with the knowledge that the injuries caused would be sufficient to cause his death.
7. In order to establish this aspect of the case, as already noticed while narrating the facts of the case, there being noeyewitnesses to the incident, the prosecution has entirely sought to place reliance on the circumstantial evidence of the statement in the nature of dying declaration made by the deceased before different persons and at different times as also his statement in the nature of dying declaration as recorded in the complaint, Ex. P-12, and the conduct of the accused making themselves scarce and the recovery of the knives (M.Os. 6 and 8), at their instance, which were found to have been stained with blood.
8. P.Ws. 1, 2 and 6 have given evidence regarding the statement in the nature of dying declaration made by the deceased before them. The earlier statement made by the deceased is before P.W. 1. P.W. 1 has stated that, when he was sleeping in his house, which is at a distance of 100 meters from the house of the deceased, the deceased came, woke him up and told him that his son Sadashiva and Babu Poojary had stabbed him with knives. He has also stated that he then went and informed about the same before P.W. 2. P.W. 2 has not only corroborated about his having come to know of the incident from P.W. 1 and his going to the house of P.W. 1 and finding the deceased lying there with the injuries but also speaks that, when he questioned, the deceased told him that his son Sadashiva and Babu Poojary had stabbed him and his wife Kamala had fisted him. What he stated, in his own words, is:
'He told me that accused Babu Poojary and Sadashiva assaulted him with knives and Kamala assaulted with hands alter entering his house after breaking the Thatti.'
He has also stated that the deceased told him that, on his return at about 5 P.M., when he did not find his box which contained money and clothes, he quarreled with his wife Kamala and son Sadashiva, in that connection, and because of that A-l to A-3 had assaulted him. P.W. 6, who claims to have gone to the hospital on coming to know that the deceased was admitted in the hospital for treatment of the injuries, has also stated that, at about 9-30 A.M., he saw Ayyappa Poojary and he was conscious and was speaking and he told him that his wife Kamala, his son Sadashiva and one Babu Poojary assaulted him.
9. It appears, there is absolutely no reason to disbelieve the evidence given by these witnesses, in this behalf. They are fairly independent witnesses and have no axe to grind against the accused. Although an attempt has been made to show that P. Ws. 1 and 2, having hatched a plot, had tried to knock off the land on which the deceased had built his house ; but, it appears, there is no substance in that suggestion put to the witnesses. They have not only stoutly denied the suggestion put to them, in this behalf, but nothing worth mentioning material has been produced or elicited from the evidence of any of the witnesses to support the same. It may be mentioned here that that there was also the earliest version of the happening as disclosed by the deceased before thedoctor (P.W.ll) when he was taken to the hospital and admit the there for treatment of the injuries sustained by him. P.W. 11 has stated that the deceased Ayyappa Poojary furnished him the history of assault and he treated him for the injuries sustained by him. According to him, he also sent a memo, Ex. P-9, intimating the fact to the Police. What is statedin he memo, Ex. P-9, is like this :
'Here I am treating one Sri Ayyappa Poojary assaulted by Babu Poojary, Karriala and Sadashiva. Please come and do the needful.'
Although, as elicited in his cross-examination, he has not specifically mentioned either in the Accident Register, Ex.P8 (a) or the memo, Ex. P9, that the deceased Ayyappa Poojary had furnished him the history, but he hasmaintained that Ayyappa Poojary had furnished him the history. There is no reason for the Medical Officer like P.W. 11 also to give evidence falsely about it if the deceased had not stated so before him. Even assuming for a moment that what is recorded in the memo, Ex. P-9, cannot be regarded as statement in the nature of dying declaration made by the deceased not so much because of the unreliability of the evidence given by P.W. 11, in this behalf, but the possibility of he also coming to know of the same from P.W.s, 1 and 2 who had taken the deceased to the hospital for treatment of the injuries, cannot be ruled out, then what is stated in the complaint, Ex. P-12, in this behalf, may, after the death of the deceased, be regarded as substantive evidence and what is stated therein clearly showed that it is the accused Babu Poojary and Sadashiva who had stabbed him with the knives and his wife Kamala had fisted on his chest and abdomen.
It was, however, contended that the complaint, Ex.P-12, cannot be admitted in evidence as the first information, in as much as Ex. P-9 sent by the Medical Officer was the first in point of time and it contained the details and, therefore, Ex. P-12 was hit by the provisions of Section 162 Cr. P.C. and hence it was not admissible in evidence as an FIR as such. There is no doubt, the memo, Ex. P-9 was received by the Head Constablein charge of the Police Station and that was the first in point of time and the Head Constable had not treated it as the first information, probably because, although names of the assailants and the victim were clearly mentioned therein, but it did not disclose a cognizable offence and, therefore, he did not treat it as the firstinformation and he went to the hospital and recorded the complaint of the deceased and, on the basis of the complaint, Ex. P-12, he registered the case. Therefore, it cannot be said that the complaint, Ex.P-12, is hit by the provisions of Section 162 Cr.P.C. Even assuming for a moment that what is contended is correct, it can very well be read in evidence as a record of dying declaration made by the deceased and the provisions of Section 162 Cr.P.C. are no bar to admit the same in evidence as such dying declaration statement. As pointed out by Their Lordships of the Supreme Court in the case of Dalip Singh - v. - State of Punjab, A.I.R. 1979 S.C. 1173 although the practice of Investigating Officer himself recording dying declaration ought not to be encouraged, the dying declaration recorded by the Police Officer during the course of the investigation is admissible in evidence under Section 32 of the Evidence Act. Similar is also the view taken by the Supreme Court in a recent decision in the case of Ramawati Devi - v. - State of Bihar : 1983CriLJ221 .' Distinguishing the earlier decisions in the case of Keshav Ganga Ram Navge- v.- State of Maharastra : 1971CriLJ798 and K.R. Reddy - v. - the Public Prosecutor : 1976CriLJ1548 . Their Lordships observed:
'A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case.'
In the said case, the dying declaration statement was recorded by the Assistant Sub-Inspector of Police and the statement so recorded by the Police Officer was held admissible in evidence under Section 32 of the Evidence Act to base a conviction on the accused.
10. Mr. Gopalakrishna Shetty and Mr. Kempanna, Learned Counsel appearing for the accused, however, submitted that, as rightly pointed out by the Learned Sessions Judge, the evidence adduced, on behalf of the prosecution, in this behalf, was discrepant, inasmuch as at the earliest moment, when the deceased made a statement before P.W. 1 Ismail Beary, he had not implicated A3 Kamala distinctly and her name came to be included only in the subsequent statement and that the name of Babu Poojary mentioned by the deceased either before P.W. 1 Ismail Beary, P.W. 2 Veerappa Poojary or P.W. 6 Dennis Mascarenhas did not conform to the identity of A-l Babu Poojary, inasmuch as, there is no evidence to show that A-l Babu Poojary was the same Babu Poojary of Kamblibettu as mentioned by the deceased in the statement, Ex. P-12. Of course, there is nothing positive in the evidence that A-l Babu Poojary before the Court is the same Babu Poojary of Kamblibettu. But, there is alsonothing negative in the evidence of any of the witnesses, There is, however, the other evidence which leaves no room for doubt that Babu Poojary of Kamblibettu is no other thanA-l himself. P.W. 5 Mudara is a close neighbor of the deceased. He has his house close to the house of the deceased in the same compound. He claims to have come out of the house on the night of the incident for answering first call of nature and also claims to have seen the three accused standing talking near the house of the deceased. Of course, it is not clear from his evidence, from what position, he had seen the three accused standing talking near the house of the deceased. But what has been elicited in the cross-examination itself showed that he had identified the three accused in the torch light flashed by the accused themselves. What is stated by the deceased in his statement, Ex. P-12, alsoshowed that the three accused, having broken open the thatti door entered into the house flashing torch, light and one of them was having torch. Therefore, there is no room for doubt that Babu Poojary of Kamblibettu mentioned in the complaint, Ex. P-12, is no other than A-1 himself. Although the Learned Sessions Judge has referred to the various authorities in the course of the judgment, but he has failed to consider the evidence in its proper perspective and has come to a wrong conclusion in rejecting the evidence of dying declaration on flimsy ground that there were discrepancies in the evidence.
11. It was, however, argued that even if Babu Poojary of Kamblibettu mentioned in Ex, P-12 and before other witnesses was A-l himself, the possibility of A-3 Kamala subsequently having been implicated under the influence of one or the other witnesses, could not be ruled out. Although it does not appear that the deceased had not mentioned the name of A-3 before P.W.2 Veerapa Poojary and P.W. 6, inasmuch as no omissions, in this behalf, have been elicited from the earlier statement recorded during investigation, the possibility of the deceased implicating A-3 Kamala subsequently cannot be ruled out. As pointed out by Their Lordships of the Supreme Court in the case of Balak Ram - v. - State of U.P. : 1974CriLJ1486 , where there is delay in recording the statement of dying declaration, there is every possibility of the deceased including one or the other under theinfluence of his friends and admirers. Such a possibility in the case on hand cannot be ruled out. As laid down by Their Lordships of the Supreme Court in the case of Mohan Lal - v. - State of Maharashtra, : 3SCR277 where there are more than one statement in the nature of dying declaration made by the deceased, one first in point of time must be preferred. Therefore, having regard to the fact that the deceased had not mentioned the name of A-3 Kamala before P.W. 1 before whom he made the statement first in point of time, a reasonable doubt arises if A-3 had also participated in assaulting the deceased and, therefore, she is entitled to the benefit of doubt.
12. However, there is no room for doubt about A-1 and A-2 participating in the commission of the offences byassaulting the deceased by means of knives. Because, although there is no clear and satisfactory evidence if A-l and A-2 were found absconding, but the evidence given by the Circle Inspector of Police(P.W. 14) and the panch witness (P.W.7) gives no room for doubt that, at the instance of A-l and A-2, knives (M.O.s. 6 and 8) were recovered and they were stained with blood. The reports of the Chemical Examiner and Serologist, Exs. P-19 and P-20 respectively also go to show that they were stained with blood and the blood found on one of them was of human origin. This recovery of the blood-stained knives (MOs. 6 and 8) like ones used in the commission of the offence, also lends further corroboration and assurance to the evidence regarding the dying declaration statement made by the deceased before different persons and at different occasions regarding the assault on him by A-1 and A-2 by means of the knives and, therefore, there is no doubt about their complicity in the commission of the offences.
13. It was, however, argued that, having regard to the nature of the injuries as found to have been sustained by the deceased, it could not be said that the accused hadnecessarily the intention of causing the death of the deceased and, therefore, the charge of the offence of murder could not be sustained. There is sufficient force in this contention. If such was the intention of the accused in assaulting the deceased and they had assaulted the deceased when he was actually sleeping, nothing would have prevented them from inflicting injuries on vital parts of the body like neck, chest etc. But the fact that no such injuries were inflicted on the vital parts of the body of the deceased and the injuries inflicted were only on limbs and other part, showed that their intention was not to cause the death of the deceased. May be, they had thought of teaching a lesson to the deceased by assaulting him so, because of his having abused A-3 Karnala on the night previous to the incident. Therefore, the offence made out would be one under Section 324 IPC, and not under Section 302 I.P.C.
14. For the reasons stated above, we are, on a reappraisal of the evidence, satisfied that the learned SessionsJudges was not right in outright acquitting the accused. A-1 and A-2 were clearly guilty of the offences punishable under Sections 324 and 448 I.P.C.
15. It may be mentioned, in a case like this where the accused are charged with the commission of the offence of murder, it is not necessary to further charge them for the offences punishable under Sections 323 and 324 I.P.C. also, as has been done by the learned Sessions Judge in this case; because where there is a charge of murder, the accused can also be found guilty of the offences of minor nature even in the absence of any such charge.
16. In the result, we allow the appeal in part, confirm the order of acquittal as passed on A-3 Kamala and set aside the judgment and order of acquittal as passed on A-1 and A-2 by the Addl. Sessions Judge, Dakshina Kannada, in Sessions Case No. 3 of 1982, acquitting them of the charge of the offence of murder, hold them guilty of the offence punishable under Sections 448 and 324 I.P.C., read with Section 34 I.P.C., and convict them for the said offences.
Having regard to the peculiar facts and circumstances of the case and the fact that the deceased himself had invited the trouble by unnecessarily suspecting the hand of A 3 in the missing of the box from his house and abusing her, we do not think it proper to send them to jail at this distance of time particularly having regard to the fact that they were under detention for nearly eight months right from their arrest on 29-9-1981 till they were acquitted on May 26th, 1982. The ends of slice would be fairly met if they are sentenced to pay fine and, accordingly, we sentence them to pay a fine of Rs.200/- each and, in default to pay the fine, to suffer S.I. for a period of 15 days each. There shall be, however, no separate sentence for the offence under Section 448 I.P.C.