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2001 DIGILAW 727 (KAR)

STATE OF KARNATAKA v. SIDDAPPA SATYAPPA JAGADAL

2001-09-21

K.R.PRASADA RAO, M.F.SALDANHA

body2001
SALDANHA, J. ( 1 ) THE State of Karnataka has assaulted the correctness of the judgment and order passed by the learned IV Additional Sessions Judge, Bijapur, in Sessions Case No. 115 /1998. The prosecution had alleged that the accused who is the husband had assaulted the deceased wife Muttawwa in front of his hut on 24-3-1998 at about 5 PM with a sickle and stone. The assault was one of considerable seriousness and as a result of the same, Muttawwa died on the spot. The incident in question was witnessed by PWs. 1 and 2. P. W. 1 Mahadeva is the son and P. W. 2. Rukmavva is the daughter who at the relevant time was aged about 15 years. The apparent reason for the assault was because the accused suspected the fidelity of the wife and he was harboring the suspicion that Muttawwa was carrying on a love affair with one Ningappa Appanna Jagadal who is P. W. 9. The assault on Muttawwa was rather savage in so far as the postmortem notes indicate that the accused had not only assaulted her but that he had virtually battered and bashed up her face with the stone. The incident was reported to the police, the accused was arrested and on completion of the investigation he was charge-sheeted for an offence punishable under Sec. 302, IPC. At the trial, the evidence virtually narrowed down to the depositions of P. Ws. 1 and 2, namely, the son Mahadeva and the daughter Rukmavva. The learned trial Judge took note of the fact that P. W. 2 was a child witness and furthermore that P. W. 1 the son, in the view of the learned trial Judge had deposed on the basis of information gathered from P. W. 2 and not on the basis of his own knowledge. The reason for this was because the learned trial Judge held that Mahadeva had come to the scene of offence after the actual incident took place and that the report of what had happened had been relayed to him by the sister. The learned trial Judge assessed the evidence of Rukmavva and came to the conclusion that it is not of a sufficient caliber that would instill the confidence in the court to the extent that a Court base the conviction on the sole testimony of P. W. 2. The learned trial Judge assessed the evidence of Rukmavva and came to the conclusion that it is not of a sufficient caliber that would instill the confidence in the court to the extent that a Court base the conviction on the sole testimony of P. W. 2. The supportive evidence in this case establishes that the deceased met with a homicidal death but as far as fixing of the liability is concerned, if the evidence of P. Ws. 1 and 2 is unacceptable then a conviction would be unsustainable. It is for this reason that the learned trial Judge recorded an order of acquittal against the accused. The State has preferred the present appeal assauling the correctness of the order acquitting the accused. ( 2 ) THE accused did not engage any advocate before the trial Court and was afforded State assistance. After service of the notice in this appeal the accused has not engaged any lawyer of his choice and we have therefore appointed learned Advocate Sri G. A. Chandrashekar to appear as amicus curiae. The learned SPP has very ably argued the appeal on behalf of the State and we need to record our equal appreciation for the efforts put in by the learned advocate Sri Chandrashekar who has represented the respondent-accused and who has studied the case well and advanced his submission supporting the order of acquittal. ( 3 ) THE main submission canvassed by the learned SPP is to the effect that this is a case in which the two witnesses who have been cited by the prosecution P. Ws. 1 and 2, are none other than the son and daughter of the accused and the deceased. Secondly, what is pointed out is that both of them were residing with the parents and are not strangers or passersby or even neighbours for that matter. The submission is that their presence is perfectly natural and normal and that consequently the learned trial Judge was in error in having doubted their presence at the scene of offence. Secondly, what is pointed out is that both of them were residing with the parents and are not strangers or passersby or even neighbours for that matter. The submission is that their presence is perfectly natural and normal and that consequently the learned trial Judge was in error in having doubted their presence at the scene of offence. The learned SPP has demonstrated to us from the depositions that the defence did try to establish that Rukmavva was not present when the incident took place, that she had only seen the dead body and that only because of some hostility between the father and the mother which had been going on for sometime that she informed her brother that the father was the assailant. Similarly, the case put to Mahadeva is that he was out of the house, and that he received the news of the assault on the way home. What the learned SPP has pointed out is that the witnesses have denied the suggestion but more importantly he has demonstrated to us from the caliber of the evidence that first of all P. Ws. 1 and 2 are rustic villagers and secondly that if one were to examine the evidence virtually line by line both in the examination-in-chief and cross-examination that it will be very clear that these witnesses have neither been tutored nor have they fabricated. He has then taken us through the cross-examination and the submission which he has advanced merits due consideration from this Court. What the learned SPP points out to us is that the charge regarding fabrication could be made in instances where hostility is demonstrated between the witnesses and the accused or that the charge of fabrication could be levelled in cases where presence of the witnesses is seriously in doubt. Having established that the witnesses were residents of that place and were present when the incident took place and furthermore that they were the son and daughter of the deceased and the accused, his submission is that the grounds on which the evidence has been faulted by the trial Court are totally unjustified. He has also emphasised that the quality of the evidence was very high in so far as it has not been shattered in cross-examination nor has it been diluted to the least extent and that consequently, this evidence will have to be accepted in its entirety. He has also emphasised that the quality of the evidence was very high in so far as it has not been shattered in cross-examination nor has it been diluted to the least extent and that consequently, this evidence will have to be accepted in its entirety. What he next demonstrates is that the supportive evidence viz. , recovery of the sickle and the stone fully corroborates the evidence of P. Ws. 1 and 2 in so far as the number of injuries and the nature of injuries tally with the weapons used. Secondly, what he submitted is that the evidence fully makes out the charge under Sec. 302, IPC and that the accused is liable to be convicted. ( 4 ) MR. Chandrashekar who represents the respondent/accused initially drew our attention to the fact that there is a well accepted and well defined principle relating to appeals against acquittals which is to the effect that where the judgment of the trial Court has not overlooked any of the evidence, where the reasons given by the trial Court are logical and plausibly and where the trial Court has recorded a view in favour of the accused that interference in an appeal against acquittal is unjustified. In other words, he has emphasised that in a series of cases the High Courts have held that merely because another view is possible that this is no ground for interference with an order of acquittal. We do not dispute the correctness of these principles but what we need to emphasise is that if the trial Court has basically gone wrong in its findings with regard to the credibility of the evidence and the acceptability of the evidence then, even if logical or relatively good reasoning follows that it would still result in a failure of justice or miscarriage of justice and interference would be necessary from the High Court. ( 5 ) THE other allied submission that was canvassed was that in an appeal against acquittal the fundamental principle which holds good in criminal jurisprudence would still apply, viz. ( 5 ) THE other allied submission that was canvassed was that in an appeal against acquittal the fundamental principle which holds good in criminal jurisprudence would still apply, viz. , that even if two views are possible, that the one in favour of the accused must be upheld and it was his submission that it is not only another view but the fact that the view in favour of the accused has been upheld by the trial Court and that even if the learned SPP is in a position to demonstrate to this Court that a parallel view which results in a conviction is possible or permissible that the Court still should not accede to that view in view of the aforesaid principles. What we need to reiterate here is that while the principles generally hold good, the learned SPP was quick to point out to us that the question is not of two views or two sides of the coin but the overriding principle as to whether the view which favours the accused is essentially tenable and whether that view is at all permissible on the evidence before the Court. If the trial Court has gone wrong on basics then it is very necessary to correct that view and it is not possible to take shelter behind the principle that it is one possible conclusion which the Court should not interfere with. We see considerable force in the submission canvassed by the learned SPP because it is really the interests of justice which predominate and if the evidence which is perfectly good has been wrongly rejected by the trial Court then interfernce by this Court becomes absolutely essential. ( 6 ) THE respondent's learned Advocate then pointed out to us that the son Mahadeva and daughter Rukmavva P. Ws. 1 and 2 have been cross-examined with regard to the background to this case and that there does emerge some material from where the defence has been able to show that the accused had reason to believe that something was amiss. In other words, what the learned Advocate points out is that deceased Muttawwa had given some cause for suspicion. 1 and 2 have been cross-examined with regard to the background to this case and that there does emerge some material from where the defence has been able to show that the accused had reason to believe that something was amiss. In other words, what the learned Advocate points out is that deceased Muttawwa had given some cause for suspicion. Secondly, what he emphasises is that the relationship between the husband and the wife appears to have been rather stormy or in other words that there used to be frequent quarrels often times of a relatively serious nature and that consequently the sympathies of P. Ws. 1 and 2 were essentially attached towards the mother and that they were anti-father. Some of the passages from the cross-examination have been used for purposes of illustrating this and the submission is that it is for this reason that they have falsely deposed against the father. We have carefully assessed the implications of this argument because even within families, there may be situations wherein the children from some reason are extremely hostile to a particular parent though it would be a little rare to find a situation in which the offspring would give false evidence against a parent in a murder case. Taking into consideration the fact that this is a case in which the mother of these witnesses has been murdered, that the evidence establishes the presence of the witnesses when the incident took place which means that they have seen the assailant because the incident took place in broad daylight at 5 PM in the evening and it would be therefore too farfetched to hold that the son and daughter would shield the real assailant and falsely implicate their own father on a murder charge. From the caliber of the evidence we need to record that there is no justification for such a conclusion at all because the evidence is very clear, very credible and very trust-worthy and the possibility of false implications needs to be totally ruled out. Also, the submission itself is unjustified because the defence has not been able to illustrate any admission or any other material on the basis of which they could sustain the allegation that P. Ws. 1 and 2 were on such hostile terms with the accused that they would falsely implicated him. Also, the submission itself is unjustified because the defence has not been able to illustrate any admission or any other material on the basis of which they could sustain the allegation that P. Ws. 1 and 2 were on such hostile terms with the accused that they would falsely implicated him. ( 7 ) THE prosecution relies heavily and totally on the evidence of the two witnesses P. W. 1 Mahadeva and his sister P. W. 2 Rukmavva. We shall deal with the depositions of these two witnesses in common because even though the respondent's learned Advocate submitted that there are inter se contradictions between the evidence, we find that apart from minor and insignificant blemishes that the evidence of the two witnesses tallies totally and completely. Possibly, because of the difference in age and the mental makeup of the two witnesses there are minor variations which are more descriptive than of substance. These two witnesses in terms state that they were present at the scene of offence and that they saw the accused assaulting their mother with the stoneand thereafter with the sickle. P. W. 1 Mahadeva even goes to the extent of stating that his father came to assault him and that he escaped from that place and went to the police station. As far as Rukmavva was concerned, she also deposed to the effect that he has seen the accused who was her father assaulting her deceased mother with the stone and sickle as a result of which Muttawwa died. It is only after this that she had also left the scene of offence. As indicated by us earlier, this material fully and completely establishes that the accused was the assailant, secondly that the injuries found on the person of the deceased Muttawwa were inflicted by him by using a stone and sickle and thirdly, that it was as a result of these injuries that deceased Muttawwa died. All the ingredients having been established, the order of acquittal passed by the Sessions Court is rendered unsustainable and is accordingly set aside. All the ingredients having been established, the order of acquittal passed by the Sessions Court is rendered unsustainable and is accordingly set aside. ( 8 ) ON the question of whether it is a case which comes under Sec. 302, IPC or whether it qualifies for conviction on a lesser charge, the learned SPP pointed out that there is a background to this case and secondly, that the evidence clearly indicates that there was no provocation of any type that emanated from the side of the deceased, on the other hand Mr. Chandrashekar submits that there is some hint of a suggestion regarding the alleged affair between the deceased and Ningappa but beyond this , what he demonstrates to us is that even though there are as many as 22 external injuries that most of them are of a serious nature. Next, it was his submission that it is very clear from the sequence of events that the accused who was a person of advanced years had virtually lost his temper and had obviously lost control of himself, which was, why he assaulted the deceased so many times during a short span of time. We have considered the facts and circumstances very carefully and we have also assessed the law on the question as to whether any of the factors in this case could bring the conviction down to a lesser charge under Sec. 302, IPC, we find that this is virtually impossible because it is not only the number of injuries but the nature of injuries and the seriousness of the injuries that is of consequence. The doctor who has opined on the cause of death has pointed out almost all the body's vital organs such as the brain, the lung and the main blood vessels had been seriously damaged and that this has resulted in the death. This is not a case of a single blow but it is a case in which it is very clear that the accused has battered the deceased until he had virtually killed her. The only inference which the Court can gather is that the assault was made with the intention of causing cicumstances that are in favour of the accused and consequently, the conviction under Sec. 302, IPC will have to be recorded. ( 9 ) IN the view which we have recorded the appeal succeeds. The only inference which the Court can gather is that the assault was made with the intention of causing cicumstances that are in favour of the accused and consequently, the conviction under Sec. 302, IPC will have to be recorded. ( 9 ) IN the view which we have recorded the appeal succeeds. The order of acquittal recorded in favour of the accused by the trial Court is set aside. The accused is convicted of the offence punishable under Sec. 302, IPC and it is directed that he should undergo RI for life. The accused shall undoubtedly be entitled to set off for the period undergone by him in custody. ( 10 ) THE professional charges payable to the learned advocate Shri Chandrashekar are quantified at Rs. 1000/ -. The learned Advocate however, requests the Court that this amount be paid over to some worthwhile cause as he submits as a young professional, he has assisted the accused out of a sense of duty and that he is therefore desirous that even if he is entitled to payment from the State that the money should be earmarked for some worthwhile cause. We need to once again record that we are deeply impressed by the sentiments expressed by the learned Advocate Shri Chandrashekar. He is a young professional and it is an excellent gesture on his part to ensure that the payment in question to which he is richly entitled is put to some good use. Having regard to this position the office to ensure that the sum of Rs. 1000/- is paid over to the Advocates' Welfare Fund. ( 11 ) WITH these observations, the appeal to stand disposed off. We are informed that the accused is already in custody. He will be required to undergo the remainder of the sentence but he shall be entitled to set off for the period already undergone. Appeal allowed. --- *** --- .