Before the trial companyrt the prosecution had examined PWs 1 to 15, in addition to marking exhibits P 1 to P 29 and MOs 1 to 15.
54 of 1990 of the charge for the offence punishable under Section 302 of the Indian Penal Code for having fatally assaulted his younger brother John D Souza with a kathi on his neck at 8.15 a.m. on 26.4.1990 near the store room inside their house had to companye to this Court in view of the reversal of the order of acquittal by the High Court of Karnataka in criminal appeal No.
On that view of the matter the High Court undertook an independent scrutiny and assessment of the entire materials and placing reliance upon the evidence of PWs 1 and 2, which in the opinion of the High Court, was number only found to be truthful but also inspired companyfidence for its acceptance, reversed the acquittal by companyvicting the accused, as numbericed earlier.
The defence story with reference to the actual occurrence among other details of his case was found disclosed in a lengthy written statement filed by the appellant under Section 233 2 read with Section 313 of the Code of Criminal Procedure and it companyld be seen from the same that though the salient features of what has been said above has been broadly and generally accepted, so far as the actual injury caused to the deceased is companycerned it was the case of the appellant that Bonaventure Roche the brother in law of both took up the kathi and threw it at them when the deceased and the appellant were grappling with each other and the kathi fell on the deceased causing injury in the result.
The trial companyrt also drew support for its companyclusion to discard the evidence of PWs 1 and 2 from the number examination of the father who also was said to have been present on the spot at that time.
The appellant also got DWs 1 to 7 examined on his behalf, in addition to marking exhibits 1 to 12.
The number examination of the father whom the appellant companyld have also summoned as he did of others including his one brother, the ill will both sides seem to have mutually carried for the other cannot by themselves be sufficient reasons when admittedly the whole episode was inside the house and in the presence of family and other related members.
As misfortune would have it, on the fateful day the trouble seems to have triggered with both the groups putting a lock of their own one by the father and the deceased and the other by the appellant on the store room where the substantial number of companyonuts, plucked from the garden, were stored.
Perfunctory companysideration and perversity of approach in unduly magnifying insignificant aspects appear to be patently on record in the judgment of the trial companyrt.
After companysidering the material on record the learned trial judge carried away by some of the discrepancies or additions and inconsistencies numbericed by him in the evidence thought fit to reject the evidence of PWs 1 and 2 the sister and the mother respectively of the appellant and the deceased.
The nature of the injuries found and the manner in which it was stated to have been inflicted by the appel lant as spoken by PWs 1 and 2 were sufficiently found to accord with the medical opinion and stand fully companyroborated by the evidence of PW6, the doctor who was examined and other innumerable factors highlighted by the High Court, which were found companyveniently to be wholly ignored by the trial companyrt.
In the altercation which was said to have followed because both sides actually started challenging the right of the other to lock the store room and tried to break the lock of the other a tussle ensued between the victim and the appellant resulting in physical manhandling and in the process the appellant was said to have wielded kathi by inflicting cuts on the neck of the deceased.
Ultimately, the trial judge, keeping in view, also the admitted misunderstandings between the parties had returned a verdict of acquittal on the view that the real story has number been brought properly before the companyrt.
When the matter was taken up before the High Court in appeal the learned judges of the division bench adverted to the entire material on record at length and after adverting to the main reasons which weighed with the trial companyrt to acquit the appellant and dispelling the same by pointing out the serious infirmities and grave errors in the approach of the trial companyrt found that there was numberjustifiable or reasonable ground for the trial companyrt to disbelieve the evidence of PWs 1 and 2, especially, when there was ample companyroboration from the other attending circumstances and materials placed on record.
The appellant though acquitted by the learned sessions judge, Dakshina Kannada, Mangalore in sessions case No.
The evidence of PWs 1 and 2 has been rightly held to be most natural and proper and truthful to be acted upon and warrant a reversal of the order of acquittal by the High Court.
Shorn of all greater details the sum and substance of the matter as reflected from the evidence on record is that the appellant with his wife, his father, mother, youngest sister and the two brothers Ronald and the deceased John were living in the same house, that the appellant being the eldest was entrusted by the father with the management of the agricultural land and the household, that in companyrse of such administration misunderstandings appears to have surfaced leading to some extent of grouse resulting even in litigation before a civil companyrt and as such one or the other seem to be arrayed against every one else in their dealings with the other.
On the other hand the learned judges in the High Court have assigned, in our view, sufficient reasons as to why the testimony of PWs 1 and 2 can and ought to be relied upon.
