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2010 DIGILAW 1269 (KAR)

State of Karnataka v. Mallappa

2010-12-13

B.MANOHAR, K.L.MANJUNATH

body2010
Judgment :- 1. State has come up in this appeal challenging the judgment of acquittal passed by the Fast Track Court, Raichur dated 2.8.2006 passed in SC No.135/2003 and 14/2004 acquitting the accused persons for the offence punishable under Secs.447 & 302 R/w Sec.34 of IPC. 2. Jalahalli police registered a case in Cr.No.12/2003 based on the complaint lodged by one Kariyappa for the offences punishable under Sec.447 & 302 R/w Sec.34 of IPC against six persons. It is the case of the complainant PW-1 Kariyappa that on 21.3.2003 when his son deceased Malappa was sleeping along with PW-9 & 10 in front of a sheep-pen, accused persons at about 2-30 or 3 a.m. in the morning trespassed into the sheep-pen and A-1 strangled his son Malappa and the remaining accused were holding hands and legs of the deceased. According to the complainant, that he had been to Jatra known as Amreshwara Jatra at Lingsugur to purchase a pair of bullocks and when he was in the Jatra he received an information from one Hanumantha Harijan to the effect that his son had been murdered by the accused person. Immediately, he rushed to the spot and on enquiry came to know that accused having enmity with him and his brother PW-4 Yellappa thinking that PW-1 is sleeping in the land committed murder of his son Malappa. Based on the same, a criminal case was registered in Cr.No.12/03 and thereafter charge-sheet was filed only against three accused persons based on the further statement given by PW-1 complainant, PW-4 & 10. Case was committed to the Sessions Court. The accused persons pleaded not guilty. Therefore, the case was posted for evidence. 3. Prosecution in order to bring home the guilt of the accused, relied upon the evidence of PW-1 to 15, Exs. P-1 to 32 and MO-1 to 4. The defense relied upon Exs.D-1 to 11, statements of PW-1, 4, 9 & 10 recorded by the police. After hearing the prosecutor and the defence counsel, following points were formulated for its consideration: 1. Whether the prosecution proves that the accused have committed the offence under Sec.447 R/w Sec. 34 of IPC beyond reasonable doubt? 2. Whether the prosecution proves that the accused have committed the offence under Sec.302 R/w Sec.34 of IPC beyond reasonable doubt? 3. What order? Whether the prosecution proves that the accused have committed the offence under Sec.447 R/w Sec. 34 of IPC beyond reasonable doubt? 2. Whether the prosecution proves that the accused have committed the offence under Sec.302 R/w Sec.34 of IPC beyond reasonable doubt? 3. What order? .Upon appreciating the evidence available on record, held points 1 & 2 in the negative and acquitted the accused persons by giving benefit of doubt. This judgment of acquittal is called in question in this appeal. 4. Learned Addl. SPP contends that trial court has committed a serious error in acquitting the accused without appreciating the evidence let in by the prosecution to bring home the guilt of the accused. According to her, prosecution has proved the guilt of the accused beyond all reasonable doubt since trial court did not consider the evidence of PW-9 & 10 who are eye witnesses and who were sleeping along with the deceased Malappa and have seen the incident in the moon light and on account of the non-appreciation of evidence perspectively Sessions Court has wrongly acquitted the accused persons which resulted in mis-carriage of justice. She further contends that trial court has mainly relied upon small contradictions found in the evidence of PW-5 along with post-mortem report, Sessions Court would not have acquitted the accused persons. She further contends that trial court did not appreciate that both PW-9 & 10 are teen agers and their conduct cannot be made much by the trial court in order to acquit the accused persons. She further contends that PW-9 & 10 being shepherd boys could not cry for help when the accused persons assaulted the deceased. She further contends that in the morning of PW-9 & 10 went to the village and informed the incident. Therefore, their evidence is normal and acceptable. In the circumstances, she requests the court to set aside the judgment of acquittal. She also contends that just because no evidence is let in by the prosecution in regard to the presence of A-2 in the scene of occurrence and the overt-act of A-2 cannot be a ground to acquit A-1 & 3. 5. Sri Ishwaraj S. Chowdapur, learned defence counsel contends that the complaint lodged by PW-1 is on account of the enmity between him and his brother PW-4 with the accused persons. 5. Sri Ishwaraj S. Chowdapur, learned defence counsel contends that the complaint lodged by PW-1 is on account of the enmity between him and his brother PW-4 with the accused persons. According to him, at the first instance, complaint was lodged against six persons and later by recording further statements after the incident, case against three persons was deleted and charge-sheet is filed against A-1 to 3. While contending trial, prosecution has lead evidence as if it is proceeding against all the accused persons and he further contends that for the reasons best known to the prosecution no evidence is let in against A-2 and even the evidence is let in by the prosecution to fix A1 to 3 is not established, because PW-9 stated that A-1 strangled the deceased when the remaining five persons were holding hands and legs of the deceased. If the arguments of Addl. SPP is accepted that charge-sheet is filed against A-1 to 3 on account of their involvement and when no evidence is let in in regard to the presence of A-2, then how A-1 can strangle the neck of the deceased Malappa when A-3 could not hold both the hands and legs of the deceased, therefore the very theory of the prosecution cannot be accepted by any court. He further contends that PW-10 the other eye witness who was sleeping along with PW-9 and the deceased has categorically stated that he was assaulted and threatened by the CPI, Deodurga on account of the same he has given his statement. In other words, if PW-10’s evidence is scrutinized with the evidence of PW-9, no such incident has taken place on the early morning of 21.3.2003/22.3.2003. He further contends that even the evidence of PW-9 cannot be believed since PW-1 stated that PW-9 was suffering from high fever and he was sleeping till morning. But PW-9 has stated that he and PW-10 were sitting after the incident till morning. It has come in the evidence that the house of PW-2 Basaiah is next to the place of incident. As a matter of fact, Pw-2 has also been examined to show that as if he has seen the accused persons going together after the incident. But PW-9 has stated that he and PW-10 were sitting after the incident till morning. It has come in the evidence that the house of PW-2 Basaiah is next to the place of incident. As a matter of fact, Pw-2 has also been examined to show that as if he has seen the accused persons going together after the incident. When the house of PW-2 is so near to the place of incident, the normal conduct of PW-9 & 10 is to cry for help is at all there are only two persons A-1 & 3 in committing the murder of the deceased as the prosecution has given up the case against the remaining 4 persons. Even otherwise, atleast after the incident there was no difficulty for Pw-9 & 10 to come to the village and inform the incident immediately as the distance between the place of incident and the village is very very short and not even half a kilometer and that too when there was a moon light according to the prosecution. He further contends that even the doctor who has conducted post-mortem though noted several injuries on the body is unable to say whether they are anti-mortem or post-mortem and PW-5 has also stated that only in case of hanging tongue would be protruded but in the present case, it is the case of the prosecution that when the deceased was sleeping he was strangled. If that is the case, tongue cannot be protruded and one of the witnesses has stated that tongue was protruded, another witness has not stated anything about the same. He further contends that it is difficult to believe that there could be any mandible fracture on account of the attack said to have been made by A-1 when it is a specific case of the prosecution that Malappa died on account of the strangulation. In the circumstances, he contends that in order to fix A-1 & 2, PW-1 & 4 hanging in glove with the CPI, Deodurga by recording the statement of PW-9 & 10 three months after the incident have foisted false case and that trial court is justified in acquitting the accused persons. 6. Having heard the counsel for the parties, the only point to be considered in this court is: 7. Homicidal death of Malappa is not disputed by both the counsel. 6. Having heard the counsel for the parties, the only point to be considered in this court is: 7. Homicidal death of Malappa is not disputed by both the counsel. Therefore, there is no necessity for us to give any finding in this regard. The only dispute is in regard to the cause for the death of Malappa and whether A-1 & 3 have committed the offence. 8. It is not in dispute that originally the complaint was lodged against six persons. It has come in the evidence that PW-1 & 4 are direct brothers. PW-4 Yellappa had married the sister of A-1 and Sabamma sister of A-1 was first wife of Yellappa. Through the said marriage, A-2 was born to PW-4 and Sabamma and also other persons whose names were found in the complaint. Sabamma had filed a case against Yellappa PW-4 claiming maintenance since PW-4 had taken second wife. In other words, there was a dispute between his first wife Sabamma in connection with matrimonial affairs. But there is nothing on record to show that there was an ill-will between the accused person and PW-1 Kariappa. PW-1 Kariappa and PW-4 Yellappa though are direct brothers, they are living separately. If at all there is a dispute between Sabamma first wife and Yellappa, there cannot be any reasons for A-1 & 3 to take revenge against PW-1 and on account of the said enmity on the night of 21.3.2003, A-1 & 2 mis-identified the deceased Malappa as PW-1 committing the offence of murder. At the first place, prosecution has failed to prove the motive or the preparation to commit murder of PW-1 or deceased Malappa as contended by the prosecution. 9. Admittedly, deceased was sleeping along with PW-9 & 10 on the date of the incident. The incident is said to have taken place in the early morning between 2.30 a.m. and 3 a.m., When PW-9 & 10 have categorically stated that six persons had come and A-1 strangled and the remaining five persons were holding hands and legs of the deceased Malappa, it is difficult to believe their version, later that only A-1 to 3 were there and again while giving evidence no whisper is said against A-2 because A-2 is none other than the son of PW-4 born to his first wife Sabamma. When four persons are left out by the prosecution out of six persons, then it is for the prosecution to prove how the prosecution has implicated A1 & 3 alone and how such incident could be caused by A-1 & 3 alone and how such incident could be caused by A-1 & 3 on the night of 21.3.2003. 10. PW-5 is Dr.Hussain who issued Ex.P-5 post-mortem report. As could be seen from post-mortem report, blood was present in the nostril and mouth, tongue is protruded, a contusion was present on the right cheek measuring 5-6 cm in diameter, blurred multiple contusion marks were present on both sides of neck, lower incisors and canine “Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt to convict them for the offence punishable under Sec.302 R/w Sec.34 of IPC?” teeth were loose, fracture of mandible was evident, compression marks by hard substance present over back and nape of neck. It is the case of the prosecution that A-1 strangled the deceased. According to PW-9 & 10, they have seen A-1 strangling the deceased. How the deceased was strangled by A-1 has not been stated either in the evidence of PW-9 & 10 or the statement given by them before the police. By looking into the injury found on the neck, discloses that hard substance present over the back. That means, there is more pressure put on the back of the neck and such pressure cannot be used by means of hands. Either PW-9 or PW-10 have not stated the material used for strangulation. This is one of the doubt any court can entertain in order to accept the evidence of PW-9 & 10. Even there is no evidence to show that mandible fracture was caused on account of hitting the deceased by means of hard substance and if really there is only a fist, it is difficult to accept that incisors and canine teeth could be lost. PW-5 in his cross-examination has admitted that he has not mentioned in regard to the injuries found on the body either as anti-mortem or post-mortem. Be that as it may, we have to consider the evidence of PW-9 & 10 since they are the only eye witnesses who were present at the time of alleged incident. 11. PW-10 was aged about 20 years on the date of the incident. Be that as it may, we have to consider the evidence of PW-9 & 10 since they are the only eye witnesses who were present at the time of alleged incident. 11. PW-10 was aged about 20 years on the date of the incident. In the cross – examination he has admitted that his father is having two sons and he is the eldest and age of younger brother Sabanna is about 20 years. If the age of younger brother is 20 years, age of PW-10 cannot be less than 22 years and on the date of the incident he could be aged about 20 years. He has admitted that deceased was sleeping on the woolen blanket (Kambali). When the clothes of the deceased were blood-stained, naturally the blanket used by the deceased is bound to be blood-stained. But the blanket has not been recovered by the police and there is no explanation. If the case of the prosecution as argued before this court is accepted, that only A-1 & 3 were involved in the commission of offence, then it is difficult for the court to accept the arguments of the learned SPP in view of the conduct of PW-9 & 10. According to PW-10 the distance between the place where he was sleeping and the place where deceased was sleeping was hardly 4 feet and he has witnessed this incident in the moon light. He has not cried for help when A-1 strangled the deceased and even PW-9 has not cried for help and after the incident atleast he and PW-9 did not made any attempt to go to the village which is hardly at a distance of half a kilometer to inform the incident to the mother of the deceased and PW-4 and other relatives. According to him, till morning he was sitting in front of the deceased. But PW-10 has stated that on account of high fever PW-9 was sleeping till morning. But in the cross-examination PW-10 has stated that Circle Inspector of Police assaulting and scolding him, his statement was recorded. Even though he was examined before the JMFC., Deodurga, he has not disclosed the said fact to the court. But PW-10 has stated that on account of high fever PW-9 was sleeping till morning. But in the cross-examination PW-10 has stated that Circle Inspector of Police assaulting and scolding him, his statement was recorded. Even though he was examined before the JMFC., Deodurga, he has not disclosed the said fact to the court. Therefore, the evidence of PW-10 cannot be believed since said statement has been recorded by the police by using threat and assaulting him and similarly PW-9’s evidence also cannot be believed on account of various discrepancies in the evidence. PW-9 even went to the extent that his further statement was not recorded by the Circle Inspector of Police three months after the incident but the same is contrary to Ex. D-9 to 11. The trail Judge has considered and scrutinized the evidence of PW-9 & 10 along with the evidence of PW-1 & 4. The evidence of PW-1 & 4 is clear that it is a case foisted against the accused persons on account of their ill-will with the accused persons and no reasons are assigned by the prosecution why charge-sheet has not been filed against the remaining accused and why no evidence was let in against A-2 even though he is made as a party. The very fact that no evidence is let in against A-2 on account of he being the son of PW-4 and nephew of PW-1, a presumption would arise in the mind of the court that evidence of PW-1 & 4 so also PW9 & 10 cannot be believed. When the court has given adequate reasons for not believing the evidence of eye witnesses and the evidence of PW-9 & 10 are quite contradictory, it is difficult for the appellate court to reverse the findings and also to come to the conclusion that trail court has committed an error in acquitting the accused persons. As a matter of fact, PW-9 has stated in his cross-examination that his brother Malappa’s death was surprising and uncommon. If it is so, entire evidence of PW-9 & 10 cannot be believed and they could not be the eye witnesses and PW-9 has further stated that before the PSI he has stated that six persons had come to assault the deceased but not three persons. If it is so, entire evidence of PW-9 & 10 cannot be believed and they could not be the eye witnesses and PW-9 has further stated that before the PSI he has stated that six persons had come to assault the deceased but not three persons. If it is so, how Circle Inspector of Police has recorded the statement as further statement of PW-9 as if only three persons were there. PW-1 & 4 have admitted that only to see that all the six persons are convicted, their names were mentioned in the complaint, that means it goes without saying that the very complaint lodged by PW-1 is not fully correct and based on such false complaint and false evidence it is difficult for an appellate court to reverse the findings of the trail court. In the circumstances, we are of the opinion that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt and we do not see any merits in this appeal. 12. Accordingly, the appeal is dismissed.