JUDGMENT
1. The appellant herein is the convicted accused in Sessions Case No. 73 of 1999 by the Additional Sessions Court, Chitradurga for the offence punishable under Section 302 of the IPC.
2. The case of the prosecution in brief is that, accused 1 is the husband of accused 2 and father of accused 3. Deceased Thippaiah is the uncle of Accused 1. The house of the accused and deceased were adjoining each other. Deceased Thippaiah after dismantling his hut obtained permission for construction of the house from the Panchayath and was preparing to dig the foundation for the construction of the house on 22-9-1998 at Gejjiganahalli. On that day, at about 7.30 p.m. Accused 1 picked up quarrel with the deceased on the ground that the deceased Thippaiah was encroaching upon his site. In the meanwhile, P.W. 1-Shanthamma came to the rescue of her husband Thippaiah. Accused 2 and 3 also came to the spot. Accused 1 took the axe –M.O. 1 from accused 2 assaulted on the head of deceased at the instigation of accused 2 and 3. As a result of the said assault, Thippaiah fell down after sustaining severe bleeding injuries and died on the spot .
3. P.W. 1 along with P.W. 3 and others of the village went to the Police Station and lodged the complaint at 11.00 p.m. on the very day as per Ex. P. 6 before P.W. 12-PSI of Thalak Police Station of Challakere Taluk. On the basis of the said complaint, P.W. 12 registered a case in Cr. No. 102 of 1998 against three accused including the appellant herein for the offences punishable under Sections 324 and 302 read with Section 34 of the IPC. FIR -Ex. P. 7 was sent to the jurisdictional Magistrate through police constable-P.W. 10. The concerned jurisdictional Judicial Magistrate First Class received the said FIR at about 12.30 a.m. (i.e., 00.30 hours) on 23-9-1998 (intervening night between 22-9-1998 and 23-9-1998). Accused was arrested on 23-11-1998 i.e., after about two months of the incident. The. Inspector of Police (P.W. 14) filed the charge-sheet after investigation against all the three accused.
4. The Trial Court framed charges against the appellant for the offences punishable under Sections 324 and 302 of the IPC. Accused 2 and 3 were charged for the offence punishable under Section 302 read with Section 114 of the IPC.
5. The prosecution in order to prove its case, in all examined 14 witnesses and got marked 12 exhibits and 9 material objects. On behalf of the defence, neither any witness was examined nor any exhibit was got marked.
6. The Trial Court after hearing, acquitted accused 2 and 3 and convicted accused 1 (appellant herein) for the offences punishable under Sections 324 and 302 of the IPC. Accused 1 is sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/-.
7. This appeal is filed by the convicted accused through jail as an indigent person. Therefore, the Court requested Sri Bipin Hegde, Advocate to assist the Court as Amiens Curias.
8. Heard Sri Bipin Hegde, Advocate and Sri Ramesh, learned High Court Government Pleader for the State.
9. The fact that the death of the deceased was homicidal is not in dispute. However, as can be seen from the evidence of P.W. 5-Doctor, coupled with the post-mortem report Ex. P. 3, it is clear that the deceased had sustained injuries on skull. The parietal bone of the deceased is fractured. The membranes and brain matter is protrouding out through the fractured bone. The doctor has opined that the death of the deceased is due to shock and haemorrhage as a result of injury on vital part like brain. Thus, the evidence of P.W. 5-Doctor coupled with the evidence of eye-witness-P.W. 1 proves that the deceased died a homicidal death.
10. The prosecution, in support of its case, mainly relies upon the evidence of P.W. 1 who is the injured eye-witness to the incident. P.W. 1 is the wife of the deceased. She has deposed about the motive aspect as well as the incident in question. Her evidence discloses that the house of the deceased was dismantled for the purpose of constructing a new house on the same site. The Government was helping them to construct a new house, accused 1 objected for construction of the house on the ground that the deceased was constructing the house by encroaching upon the site of accused 1. On the date of the incident at about 7.30 p.m. when the foundation was being laid, accused 1 came to the spot and again questioned the deceased as to why he is constructing the house. The deceased told him that he was constructing his house in his site. In the said quarrel accused 1 assaulted her husband Thippaiah twice with axe on head. P.W. 1 also deposed that accused 2 and 3 instigated accused 1 to finish Thippaiah. P.W. 1 saw the incident in the light of electric bulb fixed to the public electric pole which is at a distance of 20 to 25 ft. from the scene of offence; that after assaulting her husband, accused 1 came near her to assault her also; she ran away from the said place. While so running, P.W. 1 met Chinna Obaiah-P.W. 3 and due to fear of assault and murder by accused 1 she bowed to the legs of P.W. 3 and requested him to save her from accused 1. P.W. 3 scolded accused 1 as to why he wants to kill this woman. P.W. 3 and P.W. 1 came back to the scene of offence after accused 1 left the spot. At about 9 p.m. P.W. 1 along with others went to police station and lodged the complaint.
11. Though, P.W. 1 was cross-examined at length, her version is not shaken in the cross-examination. Nothing is brought out in the cross-examination so as to discard her testimony. The presence of P.W. 1 on the spot is natural inasmuch as she and deceased were living in the hut adjoining the scene of offence itself. There is no dispute relating to the identity of accused 1 inasmuch as P.W. 1 knows accused 1 very well, as accused 1 is the uncle of the deceased. We do not find absolutely any reason to disbelieve the evidence of P.W. 1. The version of P.W. 1 is consistent with the case of the prosecution and the averments made in her complaint As aforesaid, not only her presence is natural but also her evidence. P.W. 1 is a rustic village lady. There appear to be some minor variations and exaggerations in her evidence. Minor variations in the evidence of P.W. 1 do not affect the core of her testimony. Minor exaggerations, do not take away the effect of her evidence.
12. The evidence of P.W. 1 is amply corroborated by the evidence of P.W. 3-Chinna Obaiah who is the neighbour of the deceased and the accused. The evidence of P.W. 3 discloses that when he was coming from his land to his house, P.W. 1 came running and fell to his feet saying that accused 1 had killed her husband and that he wants to kill her also. At that time P.W. 3 warned accused 1 by calling him “ye bekoofa”. After hearing P.W. 3, accused 1 ran away from the scene. Thereafter, P.Ws. 1 and 3 went to the scene of offence and saw the dead body. He also deposed about the existence of electric pole and burning of the bulb on that night near the scene of offence. He is not cross-examined much on the point of presence of P.W. 1 near the scene of offence at the relevant point of time. The evidence of P.W. 3 discloses the presence of P.W. 1 and the accused near the scene of offence. The conduct of P.W. 1 running away from the scene by fear and falling into the feet of elderly person-P. W. 3 and seeking his help in the matter, appears to be natural. Nothing has been brought out in the cross-examination of P.W. 3 to discard his testimony. In the re-examination, it is affirmed by P.W. 3 that the electric pole near his house was fixed with the bulb.
13. As aforesaid, the incident has taken place at 7.30 p.m. near the house of P.Ws. 1 and 3. The presence of P.Ws. 1 and 3 near the scene of offence at that point of time is natural. The evidence of P.W. 3 fully supports the evidence of P.W. 1 and the case of prosecution about the presence of P.W. 1 during the incident and her witnessing the incident in the light of electric bulb. Therefore, we do not find any reason to disbelieve the consistent and cogent evidence of P.Ws. 1 and 3.
14. In addition, the prosecution also place reliance upon the recovery of weapon-M.O. 1 at the instance of accused, to prove its case. The seizure panch-P.W. 8 has turned hostile. But the prosecution heavily relied upon the evidence of P.W. 14-the Investigation Officer. Upon consideration of the relevant material on record relating to recovery, the Court is of the considered opinion that there is absolutely no reason as to why the evidence of independent witness-public servant i.e., Investigating Officer-P.W. 14 should be disbelieved. The evidence of P.W. 14-Inspector discloses that on getting information about the presence of accused at Chikkaullarthi, he went to the said place along with the staff and arrested the accused. The voluntary statement of accused-Ex. P. 9, was recorded. The accused led the Police and Panchas to the land called Sangammanavara Ajjanna Hola near Gajjiganahally bus stand and took out kodli (M.O. 1) from Jali bush. There is nothing on record the show that P.W. 14 has got any axe to grind against the accused and that he has acted partially.
15. In this connection, a reference may be made to the judgment of the Apex Court in the case of State Government of NCT of Delhi v Sunil and Anr. 2000(7) Supreme 728 : (2001)1 SCC 652 : 2001 SCC (Cri.) 248 : 2001 Cri. L.J. 504 (SC) wherein the Apex Court observed thus:
“It is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the Legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions”.
In the instant case, we find that the evidence of P.W. 14 is reliable and there is no reason for us to suspect the truthfulness of the records of the police investigation. Merely because, P.W. 14 is the Investigating Officer, his version cannot be discarded on the ground of alleged interested ness. We do not find any reason to disbelieve the recovery of M.O. 1 on the basis of voluntary statement of accused.
16. Lastly, Sri Bipin Hegde argued that the incident has taken place at the spur of moment without premeditation and consequently the offence is punishable under Section 304 of the IPC and not under Section 302 of the IPC. The record discloses that during the course of quarrel between the accused and the deceased, accused 1 got the axe from his house through accused 2 and assaulted the deceased with the said axe indiscriminately on the vital parts of the body. The doctor’s evidence (P.W. 5) discloses that the deceased had sustained fracture of parietal bone and the brain matter was protruding out. The overall material goes to show that the accused had the intention to commit the murder of the deceased. The incident cannot be said to have occurred at the spur of the moment as the accused got the axe from his house through accused 2. In view of the above, we do not find any reason to defer from the conclusion arrived at by the Court below. Consequently, this appeal is liable to be dismissed.
17. Before parting with the appeal, we would like to note that in spite of repeated observations and directions issued by the Hon’ble Supreme Court as well as this Court in respect of recording of statements under Section 313 of the Cr. P.C. the Trial Judge has not complied with the basic requirements while recording the statement under Section 313 of the Cr. P.C.
18. Examination of the accused under Section 313 of the Cr. P.C. is not an empty or idle formality. The underlined object behind Section 313 of the Cr. P.C. is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. Thus, said provision makes it obligatory on the part of the Court to question the accused on the evidence and circumstances appearing against him so as to apprise him the exact case which he is required to meet. Thus, each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to serious irregularity, vitiating the trial if it is shown to have prejudiced the accused. Apart from affording an opportunity to the accused to explain the incriminating circumstances against him, it would also help the Court in appreciating the entire evidence. While deciding the criminal case, the Court has to consider the statement of the accused in the light of the evidence adduced by the prosecution and weigh such statements with the probabilities of the case either in his favour or against him. Hence, the questions to be put to the accused are to be framed with care and caution which should contain mainly the incriminating material against the accused. Recording of the statement under Section 313 of the Cr. P.C. is the last opportunity for the accused to explain any circumstance that may appear against him in the evidence. The accused should know as to what is the exact incriminating material against him. As such the Trial Courts shall frame questions on the basis of incriminating evidence against accused. In spite of repeated pronouncements on this aspect, it is seen from the record of the present case that the learned Sessions Judge has not given his due attention to this aspect while framing the questions under Section 313 of the Cr. P.C. The learned Sessions Judge has simply extracted the evidence of the prosecution witnesses at length, some of the questions are running into pages, without pointing out exact material against the accused. Many questions put to the accused under Section 313 of the Cr. P.C. by the Court below do not conform to the requirements of Section 313 of the Cr. P.C.
19. Normally, in such cases we would have remanded the matter to the Trial Court for recording of the statement of accused under Section 313 of the Cr. P.C. afresh. But, in the absence of any contention on behalf of the accused that such defective recording of statement under Section 313 of the Cr. P.C. has caused prejudice to the accused, we have proceeded to dispose of the main matter on merits. The case of the accused is of total denial. In the absence of any material placed before the Court, as to how/why and in what manner the prejudice, if any, was caused to the appellant, it is difficult to arrive at a conclusion that prejudice is caused to the accused by recording such defective statement of the accused under Section 313 of the Cr. P.C. by the Trial Court. However, we place on record our displeasure in this regard and direct the office to send the copy of this judgment to the Trial Judge wherever he is presently working, for his future guidance.
20. With the aforesaid observations, this criminal appeal is dismissed.
In recognition of the able assistance of learned Amicus Curiae, the office is directed to pay an amount of Rs. 2,000/- as honorarium to Sri Bipin Hegde, Advocate.