NAGARAJA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal is directed against a conviction recorded against the appellant under Section 302, Indian Penal Code by the learned ii additional sessions judge, Bangalore, in sessions case No. 140 of 1992. It is alleged that the appellant who is technically the nephew-in-law of the deceased pavithra, had stabbed her to death at about 4 p. m. on 12-2-1992 at nehru cross road. The background of the incident emanates from an altercation which took place between the two sometime before the incident on the same afternoon. The deceased pavithra who was accompanied by P. W. 3 is alleged to have uttered extremely abusive and offensive words inter alia to the effect that the accused was imputing immoral conduct to her and that he would not like it if similar allegations were made against his wife styling her as a prostitute and the deceased is also alleged to have even imputed impotency to the accused. The two ladies thereafter went to the house of P. W. 4 and while they were returning, the accused is alleged to have asked the deceased pavithra as to whether she would abuse him any more and he also uttered the words "i will finish your story" and attacked her savagely inflicting knife injuries on different parts of her person. P. w. 3 is alleged to have shouted at him in an attempt to stop the attack, but he continued to stab pavithra even after she had fallen down on the ground after which, the accused ran away towards the pipeline side. P. w. 3 shouted out in order to attract the attention of other people as the incident had taken place on a public road and a police constable who is P. W. 10 who had arrived on the scene, put the injured lady in an autorikshaw and took her to the victoria hospital. The record indicates however, that pavithra was dead by the time they reached the hospital. Since this was a medico-legal case, the police thereafter came into the picture, the first information report was recorded and the inquest panchanama was made after which, the investigations continued. The accused was arrested on the morning of 14-2-1992 and it is alleged that there were some blood-stains on his clothes which was why the clothes were taken charge of under panchanama. It is also alleged that on the same day, the accused made a certain statement pursuant to which he lead the police and the panchas to a dustbin from where he picked out a blood-stained knife which was recovered by the police. On conclusion of the investigation, the accused was charge-sheeted, committed to sessions and the trial proceeded. The learned trial judge held that the charge of murder was conclusively established and consequently, convicted the accused and sentenced him to suffer rigorous imprisonment for life. It is against this conviction and sentence that the present appeal is directed.

(2.) MR. Pasha, learned Advocate who represents the appellant, has taken us virtually thread-bare through the record. He has assailed the conviction principally on the ground that the learned trial judge ought not to have accepted the evidence of p. ws. 2 and 3 who claim to be eye-witnesses. Dealing first with the evidence of P. W. 2, the learned Advocate has submitted that admittedly, he is a shop keeper from the area where the incident took place, but he states that a very careful scrutiny of the evidence will indicate that there was no plausible reason why this witness's attention would have been directed towards the incident even if he was running a shop somewhere in the vicinity. The main plank of criticism is that P. W. 2 admittedly did not know the accused except for his admission that he had seen him in the area a few times and furthermore that the narration given by him, though he claims to be an eye-witness, would in fact boil down to a situation whereby he, like several others, must have been attracted to the scene of offence when the commotion started namely, after the incident had taken place. On the other hand, the learned state public prosecutor has vehemently contended that the evidence has remained unshaken despite very protracted and voluminous cross-examination and he submits that there is no valid ground in law on which a court can discard that evidence which has stood the test of scrutiny. The learned state public prosecutor points out and perhaps with considerable justification, that where the evidence has virtually come through the test of fire, that it is not permissible to seek to discredit it merely on the basis of generalised reasons. He has emphasised the fact that this witness is totally independent in so far as he has nothing to do with either of the parties, that his presence in the area is most natural because the shop is located there and that the narration given by him fully fits in with all the other circumstances of the case including the most crucial aspect namely, the injuries that have been sustained by the deceased. We have very carefully reviewed the situation and in our considered view, the learned trial judge was fully justified in having accepted the evidence of P. W. 2.

(3.) AS far as the evidence of P. W. 3 is concerned, the appellant's learned Advocate has attacked this evidence even more strongly. One of the principle heads of attack stems from the fact that P. W. 3 claims to have spent the whole of the afternoon in the company of the deceased and it is her case that she even shouted at the accused and tried to stop him from attacking the deceased pavithra. She also states that she had accompanied pavithra in the auto when she was taken to the hospital and that it was in the course of these incidents that her saree got blood-stained. The appellant's learned Advocate submits that if in fact this was the sequence of events, that nobody would have been better equipped to disclose the name of the assailant than P. W. 3 and that despite this fact, the entry in the casualty register at the hospital which has been made at the earlier point of time, states that pavithra was assaulted by an unknown person. The learned Advocate submits that this one circumstance alone is sufficient to totally discredit the claim of P. W. 3 that she was present when the stabbing took place and he submits that even if P. W. 3 arrived at the scene very shortly thereafter or even if she accompanied the deceased to the hospital which explains the blood-stains on her saree, that this would still not put her in the position of an eye-witness. As far as this aspect of the matter is concerned, the learned state public prosecutor has sought to point out that the first information report about which there is some controversy, as also the information that finds place in the casualty register, are essentially on the basis of what the doctor gatherered from the persons who had accompanied pavithra. It is very clear that she was taken to the hospital by P. W. 10 who was not present when the incident took place. It is not very clear as to where precisely P. W. 3 was at this point of time and it was in these circumstances that the casualty register mentions the assailant as an unknown person. We need to take cognizance of the fact that the appellant's learned Advocate has linked this argument of his with another aspect of the matter, namely that there is a reference to an unknown person even when the first information report was taken down which was as late as at about 8 or 9 p. m. in the first instance, he submitted that all those who had congregated on the spot had plenty of opportunity to discuss among themselves and having regard to the incident that had taken place between the accused and the deceased, namely the verbal altercations, that the accused was the most likely target of their suspicion. Learned Advocate submits that if P. W. 3 was an eye-witness and if P. W. 4 who also claims to be an eye-witness and who claims to have run and informed the husband of the deceased immediately, was also present, that it is inconceivable that the assailant would be described as an unknown person. The accused was virtually a family member and in this background, it cannot even be argued that the persons who may have seen him, did not know his name.