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2003 DIGILAW 303 (KAR)

STATE OF KARNATAKA v. RAJU

2003-03-26

KUMAR RAJARATNAM, MANJULA CHELLUR

body2003
KUMAR RAJARATNAM, J. ( 1 ) THIS is an appeal against the acquittal preferred by the State. The State being aggrieved by the judgment of acquittal rendered by the trial Court in Sessions Case 51/1997, on the file of the Sessions judge, Uttara Kannada, Karwar, has preferred this appeal against the acquittal. ( 2 ) THE prosecution case in brief as follows: the accused was working as a Mason and was also doing construction work at different places. The accused had taken up some construction work for P. W. 15. The accused in turn entrusted the work to the deceased-Durgappa on payment of a commission. ( 3 ) ON the date of occurrence i. e. , 7. 6. 1997, the accused went to the site of the construction work and demanded his commission from the deceased. The accused demanded Rs. 2,000/ -. The deceased did not agree to pay the said sum of Rs. 2,000/- to the accused. The accused returned to his house. The deceased and his wife- p. W. 5 also came back to their house. ( 4 ) SOMETIME later, after taking food the deceased went to the house of P. W8, the father-in-law of the accused and complained about the accused demanding Rs. 2,000/- from the deceased. The accused came to know about this and slapped the deceased. The deceased followed the accused and asked as to why he slapped him. There was a quarrel. During the quarrel, the accused assaulted the deceased with a wooden reaper-M. O. 1 over his ear and the deceased fell down. Thereafter, the accused pushed some brittle bricks situated near the scene of occurrence, which fell on the deceased. The deceased was shifted to the house of P. W. 8 and some water was sprinkled on him. The deceased was shifted in a rickshaw to the government Hospital at Karwar. By the time, he reached the Hospital, the deceased had died. ( 5 ) THE sub-Inspector of Police, Karwar Rural Police Station - p. W. 20 received a phone message at 11. 00 P. M. and he also came and helped the deceased to be shifted to the Hospital at Karwar where the deceased was declared as dead. P. W. 20 the Police inspector who visited the Hospital recorded the statement from P. W. 5, the wife of the deceased as per Ex. 00 P. M. and he also came and helped the deceased to be shifted to the Hospital at Karwar where the deceased was declared as dead. P. W. 20 the Police inspector who visited the Hospital recorded the statement from P. W. 5, the wife of the deceased as per Ex. P5 and registered a case in crime No. 104/1997. ( 6 ) P. W. 14-Keshav is the Doctor, who conducted the Postmortem examination over the dead body of Durgappa Mallappa Hollapurkar. He found the following injuries:-1) "soft swelling over the left temporal Region and above the left ear, 4" x 3". 2) Left Black eye. 3) Contused abrasion left cheek 1" x3/4th red in colour. 4) Contused abrasion near left orbic in the left temporal area 3/4" x 3/4" red. 5. Contused abrasion above left eyebrow 3/4" x 3/4" red. 6. Bleeding to both ears. The Doctor has opined that the death was due to cardiac respiratory failure as a result of the injuries to the vital organs. In the cross-examination, the Doctor denied the suggestion that the deceased died as a result of a heart attack. However, the Doctor admits that the injuries on the deceased were possible if a person assaulted the deceased with the wooden reaper-M. O. 1. Curiously, the Doctor has also stated that the injuries on the deceased could be caused by the fall of bricks on the deceased. ( 7 ) FROM the nature of the injuries, we can take it that the deceased must have died as a result of the injuries sustained by him as a result of the assault by wooden reaper M. O. 1. It has come out in the evidence that the bricks were brittle and the soil was wet and the injuries found on the deceased could not have been caused by soft soil falling on the deceased. The Trial Court was pleased to acquit the accused on imaginary and untenable grounds. One such ground was that when the deceased was taken to the Hospital, the wife of the deceased P. W. 5 had narrated the incident to the Doctor. According to the trial Court, the Doctor who pronounced the deceased dead ought to have been examined. ( 8 ) WE are not able to appreciate the reasoning of the learned trial Judge as to why the Doctor, who pronounced the deceased dead, should be examined. According to the trial Court, the Doctor who pronounced the deceased dead ought to have been examined. ( 8 ) WE are not able to appreciate the reasoning of the learned trial Judge as to why the Doctor, who pronounced the deceased dead, should be examined. Indeed, it is the Police who came to the hospital and recorded the statement of the deceased which is the complaint and is marked as Ex. P5. That complaint contains the circumstances under which the deceased died. It also contains the name of the accused. ( 9 ) ANOTHER untenable ground on which the accused was acquitted was that P. W. 5, the wife of the deceased, was in a state of shock and therefore according to the trial Court it improbablises the version of the complainant having lodged the complaint as per Ex. P5 before the P. S. I. . It is natural for a wife to be in a state shock when her husband is snuffed out of her life. But that would not mean that ex. P5 is false. Ex. P5-the complaint given by his wife, who is the eyewitness, and it was recorded by the S. I. of Police. There were some minor contradictions in the evidence of P. W. 5 which loomed large in the mind of the Trial Court. The Trial Court states that P. W. 5 in the cross-examination does not remember who sprinkled the water on the deceased in the house of P. W. 8. Therefore her version cannot be relied upon. These are minor contradictions, which in no way cast any doubt on the identity of the accused. Another ground of not believing P. W. 5 was that when P. W. 5 went along with the deceased she had taken the food after the deceased had taken the food and that the incident took place shortly thereafter would indicate that P. W. 5 was still taking food when the occurrence took place. Yet again, a minor contradiction in the evidence of P. W. 5, who is a rustic woman, illiterate and totally shattered as a consequence of tragedy that had befallen on her. ( 10 ) P. W. 6 is an eyewitness and the sister of P. W. 5. She goes to the scene of occurrence as soon as she had heard that there was a quarrel between the deceased and the accused. ( 10 ) P. W. 6 is an eyewitness and the sister of P. W. 5. She goes to the scene of occurrence as soon as she had heard that there was a quarrel between the deceased and the accused. During the quarrel, she witnesses the accused assaulting the deceased with a wooden reaper - M. O. 1. She also states that the deceased was taken in a rickshaw to the Hospital and that the Doctor had declared him as dead. She admits that she lives in an adjoining hut of the accused. She also fairly admits that there was exchange of words between the accused and the deceased. She also stated that her younger sister P. W. 7 Smt. Chandra Santosh Waddar also witnessed the occurrence. She, however, honestly stated that there was no electricity in her village. She also very honestly admitted that the deceased was addicted to liquor and had consumed liquor on that very day. She further states that there was quarrel between the deceased and the accused. The Trial Court deisbelieved the evidence of P. W. 6 on the ground that she must have come to the spot only after the occurrence. ( 11 ) THE trial Court concludes that there was no electricity in the village and the accused could not have seen the occurrence. In the words of the trial Court one fails to understand as to how this witness could have seen the accused assaulting the husband of the complainant with the wooden reaper and could have identified the accused and the deceased Durgappa during the incident. ( 12 ) WE are unable to concur with the reasoning of the trail Court that P. W. 6 was not a truthful witness. If indeed she was not speaking the truth, there was no need for P. W. 6 to have stated that there was a quarrel and that the accused was in an inebriated state when the occurrence took place. It is not necessary that there should be electricity to identify an accused. Rural people as pronounced by the Supreme Court have an uncanny training of identifying the people in the dark. The evidence of P. W. 6 has a ring of truth. This can be seen from the objective manner in which she has stated as to how the entire incident occurred. Rural people as pronounced by the Supreme Court have an uncanny training of identifying the people in the dark. The evidence of P. W. 6 has a ring of truth. This can be seen from the objective manner in which she has stated as to how the entire incident occurred. ( 13 ) P. W. 7 is also a sister of P. W. 5. She says that she saw the incident from a distance. She lives nearby. She saw the accused assaulting the deceased with reaper M. O. 1. The evidence of P. W. 7 was rejected by the trial Court since she did not state any water sprinkled over the deceased-Durgappa before he was taken to the hospital. It was also disbelieved on the ground that there was no electricity in the village. All the witnesses viz. , P. Ws. 5,6 and 7 are natural witnesses to speak the truth objectively without any exaggeration. ( 14 ) THERE are bound to be minor contradictions. But these contradictions cannot escape the scrutiny for truth. The truth is that there was a quarrel between the accused and the deceased over payment of commission owing to the accused and that this quarrel went on for some time and the accused lost his cool and assaulted the deceased Durgappa with wooden reaper M. O. 1. The trivial contradiction with regard to sprinkling of water on the deceased and the discrepancy in timing cannot have any basis for disbelieving the evidence of P. Ws. 5,6 and 7 in its material contents. ( 15 ) THE evidence of Postmortem Doctor-Keshav P. W. 14 and the fact that the complaint was given contemporaneously by P. W. 5 can leave no doubt that there was quarrel between the accused and the deceased over payment of commission and the accused alone had inflicted injury on the deceased with a wooden reaper M. O. 1. ( 16 ) P. WS 1, 2, 3 and 4 are panch witnesses and they did not support the prosecution. ( 17 ) WE have already seen the evidence of P. W. 5, the wife of the deceased an eye witness, who fully supports the case of the prosecution and gave the complaint expeditiously to the Police at the Hospital. ( 18 ) THE testimony of P. W. 5 is fully corroborated by P. Ws. 6 and 7. ( 17 ) WE have already seen the evidence of P. W. 5, the wife of the deceased an eye witness, who fully supports the case of the prosecution and gave the complaint expeditiously to the Police at the Hospital. ( 18 ) THE testimony of P. W. 5 is fully corroborated by P. Ws. 6 and 7. Both are sisters of P. W. 5. ( 19 ) P. WS. 5, 6 and 7 are natural eye-witnesses. P. W. 5, as stated earlier, is the wife of the deceased. P. Ws. 5,6 and 7 live in a cluster of huts close to each other. There is no contradiction in the evidence of P. Ws. 5,6 and 7 which goes to the root of the matter. ( 20 ) P. W. 8 is the father-in-law of the accused. P. W. 8 being the father-in-law of the accused naturally did not support the prosecution and was treated as a hostile witness. ( 21 ) THE learned Trial Court Judge curiously relies on the crossexamination of P. W. 8 and states that this evidence falsifies the presence of P. Ws. 5 to 7. We are not able to appreciate as to how the evidence of the father-in-law of the accused, who was treated hostile is an impediment for the trial Court to assess the evidence of P. Ws. 5 to 7. Merely because P. W. 8 (the hostile witness) states that he alone was there at the time of occurrence will not lead to the conclusion that P. Ws. 5,6 and 7 were not at the scene of occurrence as is made out by the trial Court. P. W. 9 also does not support the prosecution. There were other witnesses like P. Ws. 10,11 and 12, who did not support the prosecution. P. W. 20 is the Sub- inspector of Police, who shifted the deceased to the Hospital and recorded Ex. P5 the complaint. P. W. 21 is the C. P. I. who submitted the charge sheet. ( 22 ) P. W. 5, the wife of the deceased, is a natural witness. She has accompanied the deceased anticipating the quarrel between the deceased and the accused. She takes the deceased to the Hospital by the time the deceased was taken to the Hospital, the deceased had died. ( 22 ) P. W. 5, the wife of the deceased, is a natural witness. She has accompanied the deceased anticipating the quarrel between the deceased and the accused. She takes the deceased to the Hospital by the time the deceased was taken to the Hospital, the deceased had died. In the mean while, the Police come to the Hospital and recorded the statement of P. W. 5, which the complaint-Ex. P5 in this case. The complaint mentions the other eye witnesses P. Ws. 6 and 7 although P. Ws 6 and 7 are the sisters of the deceased it cannot be said that they would implicate the accused falsely. ( 23 ) WE have carefully perused the evidence of P. Ws. 5, 6 and 7. They are the natural witnesses. There is no justification for rejecting the evidence of P. Ws. 5,6 and 7 by the Trial Court on the ground of minor contradictions. ( 24 ) IT is settled law that rustic people are overawed by such situations and their evidence is prone to minocontradictions. However, the focus of the Court should be on whether the identity of the accused has been established by the testimony of the eye witnesses and whether the medical evidence supports the account of the incident by the eye witnesses. A further scrutiny is whether the complaint reaches the magistrate in time. On all these aspects, we have no hesitation to conclude that the evidence of P. W. 5 supported by the evidence of P. Ws. 6 and 7 is truthful and worthy of acceptance. ( 25 ) WE are conscious of the fact that we are dealing with an appeal against acquittal and that if two views are possible the benefit of doubt must go to the accused. Equally there is no immunity to an erroneous order on scrutiny. Supreme Court in a number of pronouncements has used expressions such as substantial and compelling reasons and Strong reasons before an appeal against acquittal can be allowed. At this stage, we may refer to the judgment of the Supreme Court reported in STATE OF U. P. vs KRISHNA gopal AND ANOTHER which has dealt with the vexed questions of the power of the Appellate Court in an appeal against acquittal. Mr. M. N. Venkatachaliah J. (as he then was), speaking for the Bench, held at Para-13 as follows:-13. . . . . . Mr. M. N. Venkatachaliah J. (as he then was), speaking for the Bench, held at Para-13 as follows:-13. . . . . . . . . . . A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to proof is an exercise particular to each case. . . . . . . . . . . . Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. it must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and ultimately, on the trained intuitions of the judge. (emphasis supplied by us) ( 26 ) THE only question that remains to be answered is whether the accused can be held guilty for an offence punishable under section 302 I. P. C. as was submitted by the prosecution. We have carefully examined the evidence of eye-witnesses. The eye-witnesses clearly state that there was a quarrel between the accused and the deceased which lasted for more than 10 minutes. One of the eyewitnesses, p. W. 6 the sister-in-law of the deceased, has stated that the deceased was in an inebriated state. At the time when the quarrel was going on, the accused did not come with the reaper- M. O. 1 and the reaper is one of the items which is used in the construction business. One of the eyewitnesses, p. W. 6 the sister-in-law of the deceased, has stated that the deceased was in an inebriated state. At the time when the quarrel was going on, the accused did not come with the reaper- M. O. 1 and the reaper is one of the items which is used in the construction business. The accused was a Contractor and all this must have happened on the spur of a moment which may have been as a result of drunken brawl since there is some evidence to show that the deceased was under the influence of alcohol according to P. W. 6. There was no material to show that the accused actually assaulted the deceased with any stone after assaulting with the reaper. In fact, the stones were soft and brittle and had not been fully formed as stones were kept inside the house. In a normal course, the bricks will be put in the sun so that the bricks will become hard. This was not done and the soil was still loose and wet. There is no injury on the chest or any part of the body of the deceased to show that the bricks were also used by the accused to assault the deceased. There is also some material in the 313 Cr. P. C. statement to show that it was the deceased who tried to attack the accused. We do not place much reliance on the 313 Cr. P. C. statement. But it cannot be ruled out that the act of the accused was not with the intention to cause death, but it must have been with the knowledge that it is likely to cause. ( 27 ) WE accordingly, in the facts and circumstances of the case, find that the accused is guilty of the offence punishable under Section 304-Part II of I. P. C. ( 28 ) THE learned Counsel for the accused was asked about the sentence. He submitted that the occurrence took place about 6 years ago and he is a poor person and was in custody for some time during trial and it was submitted that he should not be sent back to jail. ( 29 ) WE are not persuaded that the accused deserves such a clemency on the question for sentence. He submitted that the occurrence took place about 6 years ago and he is a poor person and was in custody for some time during trial and it was submitted that he should not be sent back to jail. ( 29 ) WE are not persuaded that the accused deserves such a clemency on the question for sentence. We feel that ends of justice would be met if the accused is sentenced to undergo rigorous imprisonment for a period of three years and sentenced to pay a fine of Rs. 10,000/- in the trial Court, in default to undergo R. I. for six months. The fine amount shall be paid within a period of four weeks from the date of receipt of this judgment. On such payment, the trial Court shall disburse this amount as compensation to P. W. 5- smt. Nagavva w/o Durgappa Hollapurkar, wife of the deceased. The accused is entitled to set-off under Section 428 Cr. P. C. ( 30 ) THE accused shall surrender and serve the remaining portion of the sentence. --- *** --- .