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2003 DIGILAW 734 (KAR)

STATE BY NARONA POLICE STATION v. SIDDAPPA

2003-09-01

M.F.SALDANHA, M.S.RAJENDRA PRASAD

body2003
M. F. SALDANHA, J. ( 1 ) WE have heard three learned Counsels at length, in the course of which, we have examined the appeal on merits and have also had an occasion to read the records. ( 2 ) THE principal submission on behalf of the appellant-State is that the trial Court has wrongly disbelieved the evidence of P. Ws. 1 and 3, who happened to be the father and brother of the deceased, in the light of the fact that the medical evidence does support the oral evidence, that the reason for acquittal are weak and unsustainable and consequently, the order of acquittal is liable to be interfered. ( 3 ) THE respondents 1, 3 and 4 are represented by their learned Advocate smt. Manjula N. Tejaswi and so far as the remaining respondents, namely, respondents 2 and 5 are concerned, we were required to appoint the learned advocate Sri Somashekar Angadi, as Amicus Curiae Counsel. Both the learned Counsels have strongly supported the order of acquittal and the principal argument canvassed by them is that the eye-witnesses have unequivocally deposed to the fact that the assault was with the use of stone, two of which were of reasonable weight, weighing about 2 Kgs and 3 Kgs, respectively, and the third one which is alleged to have been dropped on the chest of the deceased was supposedly weighing over 10 Kgs. What has been pointed out to us is that the record indicates that these were relatively heavy stones and more importantly, that were not particularly smooth edged and it has been vehemently submitted before us that the medical evidence totally destroys the oral evidence, because there are no injuries of any consequence on the body of the deceased. More importantly, the learned Counsel who represents the first set of respondents brought it to our notice that the scrutiny of the post-mortem report conclusively establishes that there is not a single internal injury and she submits that it is absolutely and totally impossible to accept the evidence of the eye-witnesses in the light of the medical evidence. Two specific aspects were highlighted by the learned Counsel, the first being if a 10 Kgs. Two specific aspects were highlighted by the learned Counsel, the first being if a 10 Kgs. Stone were lifted and thrown on the chest of the deceased that apart from the external injuries that it would most certainly cause fracture of bones and that in turn would have caused serious internal injuries to the organs situated on that part of the body. The absence of these injuries, in the argument of the learned Counsel, would certainly indicate that the eye-witnesses have virtually fabricated the evidence. ( 4 ) LASTLY, the learned Counsel also harp on the fact that the motive for the assault is supposed to be because of non-repayment of the old loan of Rs. 3,000/ -. The submission is that this is certainly not a ground on which anybody would beat a person to death and the Trial Court has accepted the contention that the motive for the incident has not been established. Cumulatively, therefore, the contention is that the order of acquittal is to be upheld. ( 5 ) ONE other aspect which arises in this case and which has been heavily relied upon by the defence is that this was the habitat part of the village and the incident had taken place on an open road in the early hours of the day and that the fact that no independent witnesses have been examined is the factor which goes strongly against the prosecution. ( 6 ) RELIANCE is placed on the decision of the Supreme Court in Jandel Singh v State of Madhya Pradesh, wherein the Apex Court had occasion to uphold the acquittal order principally on the ground that the prosecution evidence did not inspire confidence principally because of the fact that the independent witnesses were not available. We do not dispute the proposition that independent witnesses are always desirable and perhaps more useful, than those connected with the deceased or with the family, but the Court cannot overlook the important aspect that when the death has occurred, the tendency of even those who may know something about the incident to avoid getting involved. The real question is as to whether the prosecution evidence itself can be accepted in this case or not. The real question is as to whether the prosecution evidence itself can be accepted in this case or not. ( 7 ) AS regards the time of the incident, the respondents have placed heavy reliance on the evidence of the doctor, who has opined that the injuries would have taken place not less than 12 hours prior to the post-mortem examination, which would fix the time at about 5. 30 A. M. and the submission is that the eye-witnesses depose that the incident took place at about 7. 30 A. M. , which is virtually impossible to reconcile the timing with the oral evidence. The supreme Court in the decision in Bhim Singh v State of Haryana, had an occasion to uphold the proposition that where there is doubt with regard to the timing of the incident, the defence is entitled to the benefit of doubt. In this case, what we need to record is that the medical evidence is not sacrosanct, the evidence of the doctor with regard to the time of death, is opinion evidence and the real question is as to how reliable is his opinion evidence. From the general tenor of the doctor's evidence we find it is difficult to attach much confidence on the timing aspect and it would, therefore, be necessary to review the oral evidence on the basis of this quality of medical evidence. ( 8 ) RELIANCE was also placed by the defence on another decision of the supreme Court in Khima Vikamshi v State of Gujarat, wherein a serious doubt had arisen with regard to the presence of the so-called eye-witnesses. In this case, it is vehemently contended that P. W. 1 has, more or less admitted the fact that he had not seen the incident and the contention is that even as far as the 3rd witness is concerned, that there arises a very serious doubt with regard to his presence on the spot. We have carefully scrutinised the evidence and in our considered view, it would be impossible to hold that P. W. 3 was not present and had not witnessed the incident. ( 9 ) WE do need to uphold the majority of the submissions canvassed on behalf of the respondents-accused, insofar as the medical evidence in this case is not only vague, but is extremely weak. ( 9 ) WE do need to uphold the majority of the submissions canvassed on behalf of the respondents-accused, insofar as the medical evidence in this case is not only vague, but is extremely weak. Secondly, the injuries both external and internal are not sufficient to have caused the death of the deceased and consequently, it would be essential for us to confirm the order of acquittal under Sections 147, 148 and 302 read with Section 149 of the IPC. ( 10 ) WE, however, need to hold that the evidence of the eye-witnesses, particularly, P. W. 3 will have to be watered down considerably in the light of what has been pointed out to us with regard to the medical evidence and in our considered view, all that we can hold is that the accused are guilty of the offence punishable under Section 324 read with Section 34 of the IPC. There are many possible versions with regard to how the deceased could have died, one of them being the fact that he is supposed to have been an alcoholic and that could have contributed to his end. Suffice it to say, on the material before us, it would be permissible to hold the accused persons guilty for having committed offences punishable under Section 324 read with Section 34 of the IPC. ( 11 ) IN modification of the order passed by the Trial Court, we convict accused 1 to 5 of the offences punishable under Section 324 read with Section 34 of the IPC and we direct that they shall undergo imprisonment for the period already undergone and that they shall pay a fine quantified at Rs. 1,000/ -. No indefault sentence is awarded. They are directed to deposit the fine amount in the Trial Court within an outer limit of four months from today. Since, accused 2 and 5 are represented by Amicus Curiae Counsel, it will be necessary for the Trial Court to issue notice to them to afford them a period of four months for the purpose of paying the fine amount. If the fine amount is not deposited within the prescribed period, the Trial Court to recover the same from the accused. After recovery, the whole amount of Rs. If the fine amount is not deposited within the prescribed period, the Trial Court to recover the same from the accused. After recovery, the whole amount of Rs. 5,000/- will be paid over as compensation to the wife of the deceased siddarud and only if it turns out that there is no wife or children then the compensation amount be paid to P. W. 1, who is his father. ( 12 ) WITH these directions the appeal which partially succeeds to stands disposed of. For the reasons set out in I. A. No. I, the delay is condoned. We direct the office to pay a sum of Rs. 1,000/- as professional charges to the learned Advocate, who appeared as Amieus Curiae. We do need to observe that we have been very much impressed by the level of industry and research and quality of arguments advanced by Smt. Manjula N. Tejaswi, the learned counsel for respondents 1, 3 and 4. --- *** --- .