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2002 DIGILAW 666 (KAR)

NAGAPPA v. STATE OF KARNATAKA

2002-10-28

H.N.NARAYAN, S.RAJENDRA PRASAD

body2002
NARAYAN, J. ( 1 ) THESE two appeals are directed against the judgment dated 12-8-1999, passed in S. C. No. 76/1997 on the file of Principal Sessions Judge, Raichur. The learned Sessions Judge has convicted A. 1 and A. 2 for the offences under Sections 302 read with S. 34 of the Indian Penal Code, and sentenced them to suffer imprisonment for life with fine and default clause. By the same judgment, the learned Sessions Judge acquitted A. 3 to A. 8 of the offences with which they stood charged. While A. 1 and A. 2 have challenged the judgment of conviction and sentence in Criminal Appeal No. 900/99, the State has assailed the judgment of acquittal passed, acquitting A. 3 to A. 8 in Criminal Appeal No. 1073/1999. We have taken up both the appeals together for consideration by the consent of learned counsel on both sides, heard and disposed of by this common order. ( 2 ) THE Circle Inspector of Police of Devadurga Police Station laid a charge-sheet against eight accused persons alleging the offences punishable under Sections 143, 147, 148, 302 read with S. 149 of the Indian Penal Code. The fourth accused died during the trial. Hence, only A. 1 to A. 3 and A. 5 to A. 8 were tried for the offences stated supra. Since the accused denied the charges framed against them, Prosecution was called upon to prove the charges. So, in proof of the charges, the Prosecution has relied on the evidence of P. Ws. 1 to 8 and the documentary material Exs. P. 1 to P. 16 and Mos. 1 to 8. The accused persons have been examined as required under Section 313 of the Code of Criminal Procedure, and they denied the truth of the evidence let in by the Prosecution. As it was not a case of acquittal under Section 232 of the Code of Criminal Procedure, the learned Sessions Judge called upon the accused to enter the defence. But the accused persons had not chosen to adduce any defence evidence. The learned trial Judge, after hearing the arguments of the learned Public Prosecutor for the State, and the learned counsel for the accused persons, found A. 1 and A. 2 only guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code, and acquitted all other accused persons. The learned trial Judge, after hearing the arguments of the learned Public Prosecutor for the State, and the learned counsel for the accused persons, found A. 1 and A. 2 only guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code, and acquitted all other accused persons. ( 3 ) WE have heard the arguments of Sri R. B. Deshpande, learned counsel for the accused persons in both the appeals and Sri. B. C. Muddappa, the learned Additional S. P. P. , for the State. We have perused the evidence. ( 4 ) IT is the case of the Prosecution that there was a property dispute between the accused and the deceased and P. Ws. 1, 2 and 4, in respect of the land bearing Survey No. 47/2a of Neelavanchi Village, Devadurga Taluk, Raichur District. It is alleged that P. W. 1 and his family members were cultivating the said land after obtaining injunction order from the Court. They had filed a suit against the accused persons claiming their right in the property and also for injunction not to disturb their peaceful possession of the property. It is alleged that on 5-11-1996, at about 6. 30 or 7. 00 p. m. , the deceased, P. Ws. 1, 2 and 4 came to know the fact that accused were found cultivating the disputed land in spite of the injunction order passed against them. So, they went the to the said land and found the accused cultivating the land and they were also sowing the seeds. The deceased Mudiyappa was ahead of all other witnesses and he questioned the accused about their right to cultivate the land in spite of the Court Order. On hearing this A. 1, and A. 2 assaulted him to death by hitting with chopper and strangulating him. The other accused persons, according to the Prosecution, assaulted him with sticks. Deceased Mudiyappa died at the spot at about 7. 00 p. m. ( 5 ) THE family members of the deceased remained at that place on the said night, as according to them there was no conveyance to reach the Police Station, which was at a distance of 13 Kms. Deceased Mudiyappa died at the spot at about 7. 00 p. m. ( 5 ) THE family members of the deceased remained at that place on the said night, as according to them there was no conveyance to reach the Police Station, which was at a distance of 13 Kms. On the next day morning, P. W. 1 Balappa-elder brother of the deceased, appeared before the Assistant Sub-Inspector of Police-P. W. 5-Siddappa and made an oral complaint, which he recorded as in Ex. P. 1, on the basis of which he registered a criminal case in Crime No. 60/96 under Sections 143, 147, 148, 302 read with 149 of the Indian Penal Code and submitted the First Information Report to the jurisdictional Magistrate, P. W. 7-Circle Inspector of Police was informed of the incident, who immediately took up further investigation of the case, visited the place of incident and drew up the inquest proceedings as per Ex. P. 7 and Spot Panchanama-Ext. P. 8 and seized at the spot M. Os. 3 and 4-two sticks. He recorded the statements of some persons during the course of inquest. Therefore, the dead body was sent to P. W. 3-Dr. Prabhakar Patil, for Post Mortem examination, who after conducting the Post Mortem examination issued the Post Mortem Report Ext. P. 2 and opinion-Ex. P. 3. The Investigating Officer continued the investigation, questioned and recorded the statements of some more witnesses. Accused persons were absconding. But later they were arrested on different dates. He recorded the voluntary statements of A. 1 and A. 2 leading to the recovery of M. Os. 1 and 2. He also sent the seized articles to the Forensic Science Laboratory, Bangalore, who furnished the opinion as per Ex. P. 16. After completing the formalities of the investigation, P. W. 17 laid the charge-sheet against all the eight accused persons. ( 6 ) THE learned trial Judge, on scrutiny of the evidence of witnesses-P. Ws. 1 to 3, held their evidence as reliable and credible. The learned Sessions Judge has also made certain credible comments on the evidence of Post Mortem Doctor-P. W. 3, who made certain contradictory statements on oath before the Court. But, in his opinion, the evidence of eye-witnesses and other circumstances placed on record are sufficient to hold the accused 1 and 2 guilty of the offence of murder of Mudiappa on the evening of 5-11-1996. But, in his opinion, the evidence of eye-witnesses and other circumstances placed on record are sufficient to hold the accused 1 and 2 guilty of the offence of murder of Mudiappa on the evening of 5-11-1996. The legality and correctness of this judgment is assailed by the convicted accused. The State is also aggrieved by the Order of acquittal recorded by the learned Sessions Judge. ( 7 ) SRI. R. B. Deshpande, learned counsel for the accused-appellants and for respondents in the counter case, contended that though the incident occurred, according to the Prosecution, at 7. 00 p. m. , none of the family members of the deceased who of whom are brothers, approached the Police at the earliest possible time and their explanation that no conveyance was available on that night is difficult to believe, as the evidence shows that there were number of vehicles plying on the road leading to Devedurga and it is connected by well maintained road, which is at a distance of 13 Kms. The explanation offered by the Prosecution through witnesses is not reliable and not truthful, regarding the delay in lodging the complaint. It is further submitted that apart from the evidence of P. W. 3-Post Mortem Doctor, the Inquest Panchnama and the evidence of P. W. 7-the Circle Inspector of Police who conducted the Inquest, does not disclose any blood in the injuries or on the person of the deceased. The Circle Inspector of Police, who conducted the spot panchnama and inquest, has not been able to point out that there were any blood stains at the spot. No blood stained-articles were seized from the alleged place of incident. Therefore, according to him, the incident has not happened in the manner in which the Prosecution has sought to establish before the Court. The opinion of the Post Mortem Doctor shows that the death was not due to the alleged injuries found on the dead person and there is no evidence that all those injuries were ante-mortem. Therefore, the presence of witnesses namely P. Ws. 1, 2 and 4 at the place of incident at the alleged time of incident is difficult to believe. It is purely a concocted case foisted against the accused persons. Therefore, the presence of witnesses namely P. Ws. 1, 2 and 4 at the place of incident at the alleged time of incident is difficult to believe. It is purely a concocted case foisted against the accused persons. While the learned Sessions Judge is right in acquitting A. 3, A. 5 to A. 8, he is wrong in convicting A. 1 and A. 2 on this insufficient and doubtful evidence. There is no application of mind, there is no scrutiny of evidence and the learned trial Judge without scrutinising the evidence properly, accepted the evidence of eye-witnesses in toto in ignorance of this improbability occurring in the Prosecution's case. Therefore, he submitted that the judgment is perverse and is not sustainable in law and hence, it is liable to be set aside. ( 8 ) SRI. B. C. Muddappa, learned Additional S. P. P. for the State, though submitted that the evidence of P. Ws. 1, 2 and 4 is acceptable and reliable, he is unable to justify the conduct of P. W. 3-the Post Mortem Doctor and P. W.-7-the Circle Inspector of Police, Devadurga, who investigated this case. He was further unhesitant to make comments on the material placed on record and virtually he was unable to justify the judgment of conviction recorded by the learned trial Judge against A. 1 and A. 2. ( 9 ) IN this background, the short point that arises for our consideration is : whether the judgment of conviction recorded against A. 1 and A. 2 and the acquittal recorded against A. 3 and A. 5 to A. 8 is justifiable in law? ( 10 ) IN a case of murder, the Prosecution is required to establish the homicidal death of the deceased person. It is submitted by the learned counsel for the accused that this is wanting in this case. Ex. P. 2 is the Post mortem Report submitted by P. W. 3-Dr. Patil Prabhakar, who was working as Medical Officer, Devadurga during the year 1995-96. He conducted Post Mortem on the dead body of Mudiyappa between 2. 30 p. m. , and 3. 30 p. m. , on 6-11-1996. He noticed the following injuries :1. Contused lacerated wound on the left side of the temporal occipital region of the head size 1" x 0. 5" x scalp deep;2. He conducted Post Mortem on the dead body of Mudiyappa between 2. 30 p. m. , and 3. 30 p. m. , on 6-11-1996. He noticed the following injuries :1. Contused lacerated wound on the left side of the temporal occipital region of the head size 1" x 0. 5" x scalp deep;2. Incised wound on the right side of the neck situated 2" above the middle of the clavicle, measuring 1. 5" x 0. 25" x muscle deep;3. Incised wound on the right side of the arm situated in the middle above downwards of size 2" x 0. 5" x muscle deep;4. Incised wound situated on the right side of the thigh above downwards in the middle measuring of size 2" x 0. 25" x muscle deep;5. Hanging mark : situated in the middle of the neck above thyroid measuring 6" x 0. 5", not grooved commencing 1. 5" below mastoid and ending 1" below the left mastoid, more contused in the middle and tapering near the mastoid and was of black colour. On dissection, the Doctor noticed that all the internal organs were congested, and there is no fracture of hyoid bone. According to him, injuries mentioned in Ex. P. 2 are not possible by a single fall. According to him, injury No. 5-hanging is the cause of death. He also furnished further opinion at the request of the Investigating Officer as per Ex. P. 3 by mentioning that those injuries were ante-mortem injuries. He has also opined that when the person is hanged or when a rope is encircled around the neck and lifted for some time, the mark found on the dead body is possible. But this witness has turned round during the course of his evidence before the Court and deposed that the injuries found on the injuries found on dead body are post mortem injuries. ( 11 ) WE are surprised to read the evidence of P. W. 3-Dr. Patil Prabhakar, who appears to be a well-experienced Doctor. Initially, he has not furnished his opinion as to the injuries in his Post Mortem Report as to whether they were ante mortem injuries or post mortem injuries. After delay of two months and on the requisition of the Circle Inspector of Police, he furnished his opinion that the injuries found on the dead body of Mudiyappa were ante mortem in nature. After delay of two months and on the requisition of the Circle Inspector of Police, he furnished his opinion that the injuries found on the dead body of Mudiyappa were ante mortem in nature. He has not explained on what basis he furnished this opinion after this long lapse of time. The Doctor has also not noticed that a rope was used for committing the hanging. However, this Doctor when confronted with the nature of information furnished by him with reference to the injuries, readily obliged the defence counsel by stating that the injuries found on the dead body; of Mudiyappa were post mortem. The learned trial Judge took exception to this evidence of P. W. 3 and therefore, rejected this evidence as unworthy of acceptance. The conduct of this Medical Officer is difficult to accept. His conduct violates the norms expected of him and laid down by the Medical Council. ; He had given evidence before the Court on Oath ignoring the effect of making such a statement on Oath. There is utmost negligence and contempt exhibited by a responsible Medical Officer. This conduct requires to be inquired into and we find it appropriate even at this stage to refer his case for enquiry by the Director of Health and Family Welfare, Bangalore, and to take appropriate action. ( 12 ) WE have to examine whether the learned trial Judge is right in accepting his evidence and whether we can find any corroborative material to support the Post Mortem Report. The Post Mortem Report is initially doubtful as P. W. 3 has failed to express his opinion as to the nature of injuries found on the dead body of Mudiyappa. What is surprising to note in this case is that even the Investigating Officer-P. W. 7 has not mentioned whether the injuries found on the dead body of Mudiyappa were blood stained injuries. Not a drop of blood was found at the place of incidence, neither on the person of the deceased, nor on the wearing apparels except on the towel of the deceased. Three incised wounds were noticed though they were muscle deep. If a person is attacked and hit with a weapon like axe-M. Os. 1 and 2 by two persons, they would have caused severe injuries to the deceased but not muscle deep injury. However, this is murder without causing any bleeding injury. Three incised wounds were noticed though they were muscle deep. If a person is attacked and hit with a weapon like axe-M. Os. 1 and 2 by two persons, they would have caused severe injuries to the deceased but not muscle deep injury. However, this is murder without causing any bleeding injury. This is an exceptional case where the Prosecution wanted to prove the murder without pointing out that there were any blood stains at all. Therefore, the Spot Panchnama and the Inquest Panchnama have a bearing on the medical evidence also. We have scrutinised the evidence of the Investigating Officer and also the Inquest Report and Spot Panchanama prepared by him. His evidence is silent about this fact and his report is also silent, as we have already observed. Even the witnesses to Spot Panchnama have not supported the case of the Prosecution. If that is so, we must say on review of the evidence that it is not a homicidal death. The Prosecution, in our opinion, has failed to establish that Mudiyappa died a homicidal death. This is one aspect of this case. ( 13 ) THAT takes us to the direct evidence relied upon by the Prosecution. P. W. 1-Balappa, P. W. 2- Bheemalinga, are the two brothers of the deceased. P. W. 4-Dyavamma, is the mother of the deceased. According to them, deceased Mudiyappa who was working at Bombay had come to the Village a few days prior to the date of incident. At about 4. 00 p. m. , on the date of incident, which occurred on 5-11-1996, when they were in the house, they heard the news that the accused were cultivating the disputed land. Therefore, the deceased, P. W. 1-Balappa, P. W. 2-Bheemalinga and P. W. 4-Dyavamma, went to their land. They noticed that the accused were present in the disputed land and were cultivating the same. According to P. Ws. 1 and 2, the deceased was ahead of them by about 20'. When deceased asked the accused persons as to why they were cultivating, A. 1 and A. 2 who were holding the axes assaulted him. A. 3 and others put a rope around his neck and dragged him and Mudiyappa succumbed to the injuries at the spot. 1 and 2, the deceased was ahead of them by about 20'. When deceased asked the accused persons as to why they were cultivating, A. 1 and A. 2 who were holding the axes assaulted him. A. 3 and others put a rope around his neck and dragged him and Mudiyappa succumbed to the injuries at the spot. According to them, since there was not any conveyance to go to the Police Station, P. W. 1 went on the next day morning to lodge the complaint with the Police. ( 14 ) THE first contention of the learned counsel for the accused persons-Sri R. B. Deshpande in this regard is required to be considered. The evidence of the Sub-Inspector of Police and the Circle Inspector of Police reveal that this Neelavanchi Village, where the incident occurred, is connected by a well maintained road and that there were number of trucks and vans plying on that road to Devadurga both in the day time and in the night time. One has to pass through this village to go to Devadurga. P. Ws. 1 and 2 though rustic villagers, are not strangers to the litigation or to the Court. They have been litigating for over years in respect of the disputed land. There were cases and counter cases. There were also suits pending before the Court. The incident, according to the Prosecution occurred at about 7. 00 p. m. , on that day and the Police Station was at a distance of 13 Kms. , and it was not a big problem for these people to inform the Police on the said night. According to P. W. 1, he visited the Police Station only at 9. 00 a. m. , on the next day morning and made a report as per Ex. P. 1 before the Station House Officer. This unexplained delay, having regard to the statement made by him regarding the alleged homicidal death of deceased, is a relevant piece of material. In our opinion, this delay is not properly explained. We are emphasizing the fact of lodging the First Information Report as expeditiously as possible to avoid all the suspicious circumstances, which come in the way of appreciating the evidence on record. ( 15 ) IN the complaint-Ex. P. 1, P. W. 1 has stated that there was an attempt of throttling on the neck of the deceased. We are emphasizing the fact of lodging the First Information Report as expeditiously as possible to avoid all the suspicious circumstances, which come in the way of appreciating the evidence on record. ( 15 ) IN the complaint-Ex. P. 1, P. W. 1 has stated that there was an attempt of throttling on the neck of the deceased. There was no reference of use of rope around the neck of the deceased and that dragging of the deceased by the accused persons. While P. W. 1 has stated that deceased was throttled by the accused, P. Ws. 1 and 4 have come out with a new story that he was killed by putting a rope around his neck and was dragged by the accused persons. Perhaps, prosecution thought of introducing this theory through the evidence of P. Ws. 2 and 4. If really it was a case of hanging, then these accused must have committed the offence elsewhere. There was no tree nearby and no bleeding injuries were found on the body of the deceased. This is the only possible conclusion that one reach after a careful reading of this evidence. Therefore, the evidence of these eye-witnesses raise serious suspicion. Their presence at the time of incident has to be suspected for the reason that if these four people had gone there to obstruct the cultivation of the land by eight accused persons, there would have been clash between the accused and the deceased and P. Ws. 1, 2 and 4. Some of the accused are women folk. P. W. 4 would have quarrelled with them. According to the prosecution, the deceased Mudiyappa and his two brothers and his mother went to the disputed land after coming to know that the accused were cultivating the land. It is not probable under those circumstances and having regard to the conduct of the people at that situation, to go to the land unarmed. This circumstances also shows that the probability of the presence of P. Ws. 1, 2 and 4 at the time of alleged incident is not true. It is true that the cross-examination of these eye-witnesses is not happy. But, suffice it to say that the Prosecution had failed to satisfactorily explain all these doubtful circumstances which reasonably arise having regard to the evidence on record. 1, 2 and 4 at the time of alleged incident is not true. It is true that the cross-examination of these eye-witnesses is not happy. But, suffice it to say that the Prosecution had failed to satisfactorily explain all these doubtful circumstances which reasonably arise having regard to the evidence on record. We have already held that the Prosecution has failed to prove the homicidal death of Mudiyappa. The essential ingredient of murder is not established. We must hold that the witnesses' account also suffers from deficiencies and the medical evidence let in through P. W. 3 not only falsifies his own evidence but also the case of the Prosecution. There is not even a serious attempt on the part of the Investigating Officer in this case to find out as to how the incident occurred and as to the cause of death. If it was really a case of hanging, the Investigating Officer could have avoided filing of a charge-sheet against these accused persons. In a doubtful case of this nature, the Prosecution should have taken enough care before presenting the final report against the accused. At every stage, we find laches, lethargy and negligence on the part of the investigating machinery. We regreat to express that the authorities concerned have no care for the law laid down in this regard by the Court of law. We only hope that the appropriate authorities would spend some time to examine such an ordeal in the investigation field. In the light of this discussion, we find that the entire discussion made by the learned Sessions Judge is in vain and the impugned judgment is not justifiable in law and it is absolutely perverse. ( 16 ) THEREFORE, Criminal Appeal No. 900/99 succeds and it is accordingly allowed. The impugned judgment of conviction and sentence recorded against appellants 1 and 2 is set aside. Appellants who are in custody are ordered to be set at liberty forthwith. Criminal Appeal No. 1073/1999 filed by the State is dismissed. We direct the Registrar General to send a copy of the judgment to the Director of Health and Family Welfare, Bangalore, with a direction to take appropriate action against Dr. Patil Prabhakar, wherever he is working, in accordance with law. Appeal allowed. --- *** --- .