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2002 DIGILAW 38 (KAR)

STATE OF KARNATAKA v. SIDDAPPA MALLAPPA BADACHI

2002-01-16

M.F.SALDANHA, N.K.PATIL

body2002
M. F. SALDANHA, J. ( 1 ) WE have heard the learned State Public Prosecutor for the State and the respondents' learned Counsel on merits. ( 2 ) THE incident in this case occurred at about 2. 15 p. m. on 27-9-1989 at Rampura Village. The deceased, Shrishail Nagappa Guddodagi (hereinafter referred to as 'nagappa') is alleged to have been assaulted by 7 accused, out of whom it is alleged that accused 6-Chandrawwa threw chilli powder in the eyes of the deceased and that the remaining six persons assaulted him with deadly weapons as a result of which he sustained injuries and died at the spot. The incident is alleged to have been witnessed by P. Ws. 1 and 2 namely, the wife and the father and by several other persons some of whom have not been examined and others who have not supported the prosecution case. The Dalapathi reported the matter to the police who came to the spot commenced investigation, and arrested the accused persons. On completion of the investigation the accused were charge-sheeted for having committed offences punishable under Sections 148 and 149 read with Section 302 of the IPC. The learned Trial Judge after a detailed analysis of the evidence acquitted the accused and, one of the principal reasons for this was because the accused 7 had sustained an injury of some seriousness as a result of an axe blow and the Trial Court took the view that the suppression of this material fact and the non-explanation of the injury was fatal to the prosecution case. The State has assailed the correctness of the order of acquittal. ( 3 ) THE learned State Public Prosecutor who appears in support of the appeal as also the respondents' learned Counsel Sri Kalyana Shetty have taken us through the record of which we have done a thorough view. The principal submission canvassed on behalf of the appellants is that, this is a case in which the wife who is P. W. 1, Smt. Sayawwa has wrongly been disbelieved. She has very clearly deposed to the effect that she was in the house when the incident took place, she has referred to the presence of her father-in-law who is P. W. 2 and she states that when she heard the commotion she had gone out and that she witnessed the entire incident. She has very clearly deposed to the effect that she was in the house when the incident took place, she has referred to the presence of her father-in-law who is P. W. 2 and she states that when she heard the commotion she had gone out and that she witnessed the entire incident. She has squarely implicated all the seven accused and has stated that it was because of the assault by them that her husband lost his life. The learned State Public Prosecutor submits that the ground on which this evidence has been discarded is unsustainable, because he points out that the Court has overlooked the fact that having regard to the status of the witness who is only a village woman and being a wife who has witnessed her own husband being brutally assaulted must be given a certain level of allowance. It is true that the police have not taken charge of her saree which she says was bloodstained. It is also true that there are some minor infirmities with regard to the presence or otherwise of the child but the main body of the evidence virtually remains unshakable. Similarly, the learned State public Prosecutor has relied on the evidence of P. W. 2 who is the father and he again points out that this witness is a natural witness and that he has very clearly identified all the seven accused and implicated them in the incident and that his evidence is fully corroborated by the evidence of P. W. 1. Here again, the attack as far as his evidence is concerned is that there are some minor inconsistencies with regard to his having taken the child to get some medicine, with regard to the aspect of his clothes being bloodstained, with regard to minor contradictions between the police statement and his evidence. Again the learned State public Prosecutor vehemently submits that as far as the main incident is concerned that his evidence not only corroborates the evidence of P. W. 1 but that it is in consonance with the medical evidence, namely, the injuries on the deceased. On the basis of this material, the learned state Public Prosecutor submits that regardless of other witnesses having turned hostile that the prosecution has established a caseagainst all the seven accused and that the order of acquittal requires to be interfered with. ( 4 ) MR. On the basis of this material, the learned state Public Prosecutor submits that regardless of other witnesses having turned hostile that the prosecution has established a caseagainst all the seven accused and that the order of acquittal requires to be interfered with. ( 4 ) MR. Kalyana Shetty, learned Counsel who represents the accused has at the very outset submitted that this is not a case in which any interference is called for because this Court must accept the legal position which is well-defined namely, that where there is a serious injury on the accused and the prosecution has not only suppressed but has also not explained that injury that the circumstance is fatal to the prosecution and that the Court cannot rely on that evidence for purposes of recording a conviction. He has placed reliance on the two decisions relied on by the Trial Court namely, State of Uttar Pradesh v Madan Mohan and Others and Yellappa v State of Karnataka, and we do not for a moment dispute the legal position which the learned Counsel has placed before us, namely, that in cases where the prosecution has failed to explain an injury and for that matter, where the evidence is suppressed that a serious doubt arises with regard to the veracity of the version put forth by the prosecution. Learned Counsel is also more or less right when he points out that invariably the Courts would regard this situation as absolutely fatal to the prosecution and would refuse to rely on the evidence in totality. There could however be a very small category of cases where the prosecution evidence is sufficiently good but where, the non-explanation of the injury would then have the result of virtually watering it down. In our considered view, for the reasons that we are proposed to invoke, the latter position holds good in the present instance. ( 5 ) MR. Kalyana Shetty then pointed out to us another circumstance of importance. He stated that if we were to carefully scrutinise the record there is clear mention of three other persons C. Ws. 7, 8 and 9 and they having been present and having witnessed the incident. It is his submission that these persons were independent witnesses whose evidence will inspire confidence in the mind of the Court as against the P. Ws. 7, 8 and 9 and they having been present and having witnessed the incident. It is his submission that these persons were independent witnesses whose evidence will inspire confidence in the mind of the Court as against the P. Ws. 1 and 2 who are family members and are highly interested and who are hostile towards the accused. The non-examination of these independent witnesses is a circumstance which the Court should view serionsly because it is very clear that the independent witnesses were not supporting the prosecution. We have placed sufficient reliance on his submission, but what we need to take into special account is that it is not unusual particularly in rural areas for persons other than those who are immediately connected with the incident to disown or to show reluctance when it comes to the question of coming to the Court, particularly in criminal cases where the offences are serious. We do not know why these persons were not examined but it will be a little harsh on the prosecution if it is held that it will adversely affect the case merely due to their non-examination. ( 6 ) AS far as the merits go, Mr. Kalyana Shetty attacked the evidence of P. Ws. 1 and 2. He vehemently submitted that apart from contradictions, there are inter se inconsistencies between the evidence of these witnesses. We have already dealt with this aspect of the matter and we have held that irrespective of the various minor infirmities that the substance of the evidence of P. Ws. 1 and 2 is good enough to establish that it was at the hands of accused 1 to 7 who were acting in furtherance of their common intention that the injuries were inflicted on the deceased. ( 7 ) THE charge in this case is one of unlawful assembly and rioting but in our considered view, those ingredients were not present, and consequently, the acquittal under Sections 148 and 149 will have to be upheld. Similarly, in the light of what has been pointed out on behalf of the accused, it is not permissible to record a conviction under Section 302 of the IPC. Accordingly, we uphold the acquittal under Section 302 of the ipc. Similarly, in the light of what has been pointed out on behalf of the accused, it is not permissible to record a conviction under Section 302 of the IPC. Accordingly, we uphold the acquittal under Section 302 of the ipc. However, on an overall view of the facts and circumstances and having virtually recreated the incident as it obviously took place, we hold that this is a case that would be covered by the provisions of section 304, Part II of the IPC. Again, we take cognizance of what is pointed out on behalf of the respondents-accused in the first instance, that they are agriculturists and not persons coming from the background of what one may call regular criminals. Secondly, we take note of the fact that it is not impossible, having regard to the background of the case, that the incident itself was started and provoked by the deceased. Thirdly, there is a clear suggestion of misbehavior attributed to the deceased which again this Court needs to take cognizance of and lastly, the most important circumstance namely, the fact that it is very obvious that the injury on accused 7 was inflicted by the deceased. This is all the more clear from the facts when Mr. Kalyana Shetty pointed out to us that otherwise there was no explanation for the weapon that was found at the scene of offence despite the fact that the other weapons were recovered at the instance of the accused. Taking into consideration all these circumstances and the fact that almost 13 years have passed since the incident, it would not be proper to reopen old wounds. Consequently, in keeping with the orders passed by the Supreme Court in several similar cases while we convict the 7 accused for the offence punishable under Section 304, Part II read with Section 34 of the IPC, we direct that they be sentenced to imprisonment for the period undergone and to pay a fine of Rs. 2,000/- each. No in default sentence is prescribed. The accused are granted 12 weeks time to deposit the fine amount in the trial Court and if they default, the Trial Court to recover the same from them. Once the said amount is recovered the Trial Court to issue notice to the wife of the deceased, P. W. 1-Sayavva and to pay over the said amount to her as compensation. Once the said amount is recovered the Trial Court to issue notice to the wife of the deceased, P. W. 1-Sayavva and to pay over the said amount to her as compensation. ( 8 ) THE appeal succeeds to this extent and stands disposed off. Bail bonds of the accused to stand cancelled. --- *** --- .