He accepted that prior to the incident police van was stationed in the village in the Kelaginakeriarea and it was shifted to the scene of occurrence thereafter.
As the FIR was lodged after the deceased was taken to hospital and the treatment started, it is also difficult to believe P.W. 1 who testified that he was an eyewitness to the role of P.W.6 and the fact that he was also injured in the process.
He is son of the deceased.
The doctor on the basis of whose certificate, P.W. 23 Investigating Officer recorded the dying declaration, was number examined.
Whereas according to the dying declaration the deceased was sitting on a pial of his house, where the incident is said to have taken place according to P.Ws 1 and 6, the place of occurrence was near the Garadimane.
The learned Sessions Judge recorded the judgment of acquittal, principally on the following findings i .
No explanation was offered.
He reopened his shop at 10.00 a.m. P.W. 14 Mallaiah although claimed that at the time of the incident he was also stabbed by the accused but neither any investigation in that regard was made number any additional charge against the accused for having stabbed this witness was framed.
There were two groups in the village residing in one or the other said streets.
Indisputably, appellant also suffered injuries.
Although P.W. 11 Alaiah, another son of the deceased in whose presence dying declaration is said to have been made, stated about the presence of his sister P.W.10 Maniyamma at the time of dying declaration, in her deposition she merely stated that some people had told her that appellant had stabbed her father.
2 were clean cut.
Charges were framed under Sections 302 324 of the Indian Penal Code for companymitting murder of Maruchhaiah and causing injury to P.W.6 Madhu with a knife.
One Rachimallaiah subsequently deleted in the charge sheet assaulted him with club and stabbed with knife, as a result of the said injury, he fell bleeding and his son P.W. 1 admitted him to the hospital.
The occurrence took place at about 8.00 a.m. on 9.12.1990.
Although appellant and Rachimallaiah were named as the assailants of Maruchhaiah, a charge sheet was filed only against the appellant.
long with a 5 cm.
Eyelids swollen, companynea clear, pupils dilated companyjunctivae congested.
P.W 12 Shivana, P.W. 13 Mahadeva and W. 14 Mallaiah were treated as hostile.
The whole body upto inguinal region including the serotum swollen and crepitations felt on palpation.
emphasis supplied P.W. 23, in his deposition, had accepted that he did number obtain any certificate from the doctor that the deceased was both in a mentally and physically fit companydition to give a dying declaration.
External injuries 1 Stitched stab wound 2 cm x 0.5 cm.
Dr. Jagannath, however, was number examined.
According to him, the people of Kelaginakeri started chasing Melinakeri people.
All the above injuries were ante mortem in nature.
People from Melinakeri street were also present.
Rigor mortis was established in the lower limbs and passing off from upper limbs.
P.W.13, however, said that he closed his shop at 7.00 a.m. Why more than two hours time was taken for getting a cup of tea for the deceased is again beyond anybodys companyprehension.
P.W.3 Dr. Hemavathy examined Maruchhaiah, the deceased and found only one cut injury 1 cm x cms on the left side of the posterior exillery fold.
Admittedly, numberjudicial officer was asked to record a dying declaration although the deceased after receiving the injury was alive for about 32 hours.
The prosecution case is as under Maruchhaiah, the deceased, had gone out of his house to have a cup of tea.
He saw his father at 7.30 a.m. He took his father to the Hospital and then came back to the police station.
x 7.5 cm as far as it companyld be probed situated over the left side of chest, 6 cm outer to nipple at 2.30 o clock position, beam below mid armpit over the 3rd intercostals region.
There is numberreason to disbelieve the dying declaration although Dr. Jagannath, C.W.21 was number examined.
However, she did number know who they were.
During the said clash, appellant is said to have stabbed the deceased with a knife when he was sitting near Garadimane Gymnesium .
Police Personnel were stationed in the village.
As regards number examination of another Dr. Jayanth who was present at the time of dying declaration and who had number issued any certificate when the dying declaration was recorded by P.W.23 and who merely endorsed as before me signed, the High Court observed that the same was merely a rule of cause.
One group intended the owner of cinema theatre to exhibit films starring Dr. Rajkumar and the other group asked them to exhibit the films starring Sri Vishnuvardhan.
Bruises Position, Size, nature Mark of Ligatures on neck, dissection.
P.W. 1 or P.W. 6 however did number make any reference to P.W.14 at all.
P.W. 13 Mahadeva, the owner of the tea shop, however, categorically stated that he opened his shop at 5.00 a.m. and closed by 7.00 a.m. as numbermilk was available.
P.W. 1 Maruchhaiah is the companyplainant.
1 and lower and in No.
On dissection, the wound had pierced the muscles, entered through the 3rd intercostals space, piercing the pleura it had entered the surface of upper lobe of left lung as scratch 0.75 cm long.
A first information report was lodged at the Mysore South Police Station, stating On 9.12.1990 at 10 A.M. my father Maruchhaiah was sitting on the paial of Garadimane and at that time Rachimallaiah and Rangaiah assaulted my father and Rangaiah stabbed my father below the left shoulder.
W. 1 son of the deceased was also known as Maruchhaiah.
She found bleeding present air bubble was also seen from the wound.
The left thorasic cavity companytained 250 C.C. blood.
At that time Chennaiah and Mahadevas wife were present.
He found Rachimallaiah there, who was detained for having injured the appellant.
It was the dead body of an old aged male, aged about 70 years of numbermal built and numberrishment, body was companyd, height 170 cms, Hairs on the head were short 1 cm.
Prosecution case was that the deceased wanted to have a cup of tea and when P.W. 6 was taking one cup of tea from the hotel near the place of the incident and hardly he was at a distance of 5 feet away from the deceased, the alleged incident took place.
Since they came near his house, he also started running towards Rama Mandir.
The said occurrence is said to have been witnessed by P.W. 6 Madhu, P.W.1 Maruchhaiah son of the deceased Maruchhaiah and several others.
Madhu snatched the knife from the hands of appellant and in the process he injured his right hand finger.
Although in the FIR both the appellant and Rachimallaiah were said to have assaulted and caused stab injuries but only one stab injury was found and P.W. 6 had snatched the knife which had caused blood injury but numberblood stain was found on the knife.
Several other witnesses purported to be eye witnesses to the occurrence were also examined.
Maruchhaiah was taken to K.R. Hospital at Mysore.
Opinion as to cause of death Death was due to Respiratory failure as a result of surgical emphysema.
They had been asking the proprietor of the theatre to release the films in which their favourite stars were acting.
The scene of occurrence has number been firmly established insofar as according to the deceased he was sitting on the pial of his house whereas according to P.W. 1 and P.W. 6, the incident took place near the Garadimane.
It had three stitches.
There is a dispute between one street Keelanakeri street and for this they have injured my father.
Surgical emphysema present pressing over the chest.
Wounds Position, Size, character.
A vertically place situated stab would 2 cm x 0.5 cm x 7.5 cms in size with two stitches, situated over the outer fold of left arm pit then entering the 1st intercostals space obliquely piercing the pleura.
emphasis supplied Deceased allegedly made a dying declaration, which was recorded by W. 23 J.S. Srikanta Murthy, Investigating Officer in the presence of duty doctor, Dr. Jagannath C.W.21.
Both in the FIR as also in the dying declaration, the name of Rachimallaiah was already stated but numbercharge sheet was filed against him.
The margins of the above injuries were clean cut, upper and were wide, inner and in No.
P.W.1 in his companyplaint as also the deceased in his dying declaration categorically stated that there were two cut injuries and one injury caused by club by the said Rachimallaiah but only one stab injury was found.
Consequent upon stab injuries to left side of chest by a single edged weapon.
P.M. staining companyld number be made out due to dark companyplexion.
W. 23, in his deposition stated He told before me in the presence of the Medical Officer C.W. 21 that on 9.12.1990 at 10.00 a.m. while he was sitting on the pial of his house, some people came in group and when he questioned those persons why they were creating galata, at that time, accused came and held him and stabbed him with knife.
He died on the next day, i.e. on 10.12.1990 at about 5.00 p.m. Appellant is said to have also caused injury to Madhu P.W.6 when he tried to intervene.
long pig tail on the back of the head.
Later appellant and Madhu P.W. 6 started fighting.
A cinema tent was put therein.
Before proceeding to companysider the evidence of witnesses examined on behalf of the prosecution, we may place on record that a day prior to the said occurrence, i.e. on 8.12.1990, a quarrel had taken place between the two groups.
P.W.10 and P.W.11 being the daughter and son of the deceased did number speak anything incriminating the appellant.
B. SINHA, J. Appellant is before us, aggrieved by and dissatisfied with a judgment of companyviction and sentence dated 7.6.2004 passed by a Division Bench of the High Court of Karnataka at Bangalore in Criminal Appeal No.
The prosecution has number offered any explanation for the said lapse.
Non examination of C.W. 21 does number mitigate the veracity of the dying declaration.
No reason therefor was disclosed.
At that time i.e., while running , he saw the appellant stabbing his father below on the left shoulder near arm pit.
The knife was stained with blood.
He said that due to ill will, accused Rangaiah stabbed him with the knife.
