State Of Karnataka vs Bhimappa Mallappa Janagouda on 16 December, 2022

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Karnataka High Court

State Of Karnataka vs Bhimappa Mallappa Janagouda on 16 December, 2022

Bench: B.M.Shyam Prasad

                             1




     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH


        DATED THIS THE 16TH DAY OF DECEMBER, 2022

                         PRESENT

        THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

                           AND

            THE HON'BLE MS.JUSTICE J.M.KHAZI

          CRIMINAL APPEAL NO.100284 OF 2015
                        C/W
          CRIMINAL APPEAL NO.100122 OF 2015

IN CRL.A NO.100284 OF 2015

BETWEEN:

STATE OF KARNATAKA
THROUGH MAL MARUTI POLICE
STATION, BELAGAVI,
REPRESENTED BY ADDL. STATE
PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT BENCH UNIT,
DHARWAD.
                                   ...COMPLAINANT/APPELLANT
(BY SRI. V.M.BANAKAR, ADDL. SPP)

AND

1.    BHIMAPPA MALLAPPA JANAGOUDA,
      AGE: 75 YEARS,
      OCC: AGRICULTURE

2.    JAYAPAL BHIMAPPA JANAGOUDA,
      AGE: 52 YEARS,
      OCC: PRIVATE WORK

3.    KUNTINATHA @ NEMINATHA
      BHIMAPPA JANAGOUDA,
                             2




     AGE: 41 YEARS
     OCC: AGRICULTURE

4.   KUSUMAVVA BHIMAPPA JANAGOUDA
     AGE: 70 YEARS,
     OCC: HOUSEHOLD

5.   NIRMALA,
     D/O BHIMAPPA JANAGOUDA,
     AGE: 39 YEARS
     OCC: HOUSEHOLD

     ALL ARE R/O ALARWADA,
     TALUK AND DISTRICT BELAGAVI
                                   ...ACCUSED/RESPONDENTS

(BY SRI. M.M.SHAIKH &
    SRI. S.H.YADAWAD, ADVOCATES FOR R2 TO R5;
    R1 SERVED)

      THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF
THE CODE OF CRIMINAL PROCEDURE PRAYING TO a) GRANT
LEAVE TO APPEAL AGAINST THE JUDGMENT DATED 10.07.2015
PASSED IN S.C.NO.46/1995 ON THE FILE OF IX ADDL. DISTRICT
AND SESSIONS JUDGE, BELAGAVI ACQUITTING THE ACCUSED
NO.1 TO 5 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
307, 302, 504 R/W 149 OF I.P.C; b) SET ASIDE THE JUDGMENT
PASSED BY THE LEARNED IX ADDL. DISTRICT AND SESSIONS
JUDGE, BELAGAVI AT BELAGAVI IN S.C.NO.46/1995 IN SO FAR
AS SECTION 307, 302, 504 R/W SEC 149 OF I.P.C., IN THE
INTEREST OF JUSTICE AND EQUITY.

IN CRL.A.NO.100122 OF 2015

BETWEEN:

1.   BHIMAPPA MALLAPPA JANAGOUDA,
     AGE: 75 YEARS,
     OCC: AGRICULTURE

2.   JAYAPAL BHIMAPPA JANAGOUDA,
     AGE: 52 YEARS,
     OCC: PRIVATE WORK

3.   KUNTINATHA @
     NEMINATHA BHIMAPPA JANAGOUDA,
                             3




      AGE: 41 YEARS
      OCC: AGRICULTURE

4.    KUSUMAVVA BHIMAPPA JANAGOUDA
      AGE: 70 YEARS,
      OCC: HOUSEHOLD

5.    NIRMALA,
      D/O BHIMAPPA JANAGOUDA,
      AGE: 39 YEARS
      OCC: HOUSEHOLD

      ALL ARE R/O ALARWAD,
      TALUK AND DISTRICT BELAGAVI

                                 ...ACCUSED / APPELLANTS
(BY SRI. M.M.SHAIKH &
    SRI. S.H.YADWAD, ADVOCATES FOR R2 TO R5;
    SRI. BHIMAPPA MALLAPPA JANAGOUDA FOR APPELLANT
    NO.1)

AND

THE STATE OF KARNATAKA
REPRESENTED BY S.P.P.
ADVOCATE GENERAL'S OFFICE
HIGH COURT OF KARNATAKA DHARWAD

                                ...COMPLAINANT/RESPONDENT
(BY SRI. V.M.BANAKAR, ADDL. SPP)

     THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF THE CODE
OF CRIMINAL PROCEDURE PRAYING THAT THIS APPEAL MAY
KINDLY BE ALLOWED AND THEREBY JUDGMENT & ORDER OF
CONVICTION    DATED   10.07.2015    FOR   THE    OFFENCES
PUNISHABLE UNDER SECTION 143, 147, 148, 448, 427, 324 R/W
149 OF INDIAN PENAL CODE PASSED BY THE HON'BLE IX ADDL.
DISTRICT AND SESSIONS JUDGE BELAGAVI IN S.C.NO.46/95 MAY
KINDLY BE SET ASIDE AND THEREBY THE APPELLANTS BE
ACQUITTED TO MEET THE ENDS OF JUSTICE.

      THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
13.09.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:
                                 4




                          JUDGMENT

While Crl.A.No.100122/2015 is filed by accused Nos.1 to 5 challenging their conviction and sentence for the offences punishable under Sections 143, 147, 148, 448, 427, 324 r/w Section 149 I.P.C, Crl.A.No.100284/2015 is filed by the State with a prayer to convict accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 448, 427, 307, 302, 504 r/w Section 149 I.P.C.

2. For the sake of convenience the parties are referred to by their rank before the trial Court.

3. A charge sheet came to be filed against accused Nos.1 to 5, alleging that there was difference of opinion between complainant and his family members on one hand and the accused persons on the other hand with regard to a gold chain which had fallen to the share of accused persons in the partition that took place between complainant, accused No.1 and their brother Manik (PW-3), which deceased Sunanda was claiming to have been given to her by her parents at the time of her marriage and also with regard to open space in front of their houses and there used 5 to be frequent quarrel between both the families. In this background on 30.09.2003, at about 12.00 noon accused persons picked up quarrel with deceased Sunanda and complainant and abused them in filthy language and accused Nos.4 and 5 assaulted deceased Sunanda with hands. Accused No.2 Jayapala tresspassed into the house of complainant, brought a double barrel gun belonging to complainant, struck it on the platform (PÀmÉÖ) situated outside of the house of the complainant and broke into two pieces. Accused Nos.1 to 3 assaulted complainant and deceased Sunanda indiscriminately with sticks and broken gun pieces, with the intention of causing the death of deceased Sunanda and the complainant. As a result of the injury sustained by her deceased Sunanda died on 02.10.1993 while undergoing treatment, whereas complainant sustained serious injuries and thereby accused Nos.1 to 5 committed the offences punishable under Sections 143, 147, 148, 448, 427, 307, 302, 504 r/w Section 149 I.P.C.

4. In respect of the incident complaint was lodged by Mahaveer Janagouda, the husband of deceased Sunanda. He is also injured in the incident in question. According to 6 him he is a resident of Alarwad. His family consist of his wife, a son and two daughters. He is working as a physical instructor at Smt.J.R.Doddavar High School, Halaga. He is having two brothers viz., Manik and accused No.1 Bhimappa and they are divided and living separately.

4.1 It is further stated in the complaint that at the time of partition, accused persons retained to their share a gold chain which was given to his wife deceased Sunanda by her parents at the time of marriage and there used to be frequent quarrel between deceased Sunanda and accused Nos.4 and 5 whenever they wore it. In addition, in the open site abutting their residence, complainant and accused No.1- Bhimappa were having equal share and subsequently, complainant purchased the share of accused No.1-Bhimappa. However, after sometime he started laying a claim on it refuting sale made in favour of complainant. For this reason also, the relationship between the family of the complainant and accused persons was strained.

4.2 It is further stated in the complaint that on the date of the incident i.e., on 30.09.1993, curfew was imposed in Belagavi city and therefore, complainant did not attend 7 school. On that day, complainant visited his village and returned around 12 noon. In front of his house, complainant found all the accused persons quarreling with deceased Sunanda demanding whether her name is engraved on the gold chain which she always claim as belonging to her. They abused her using foul language and were assaulting her with hands. He intervened and demanded as to why they are quarreling and to leave her. Accused persons said that complainant has become very arrogant and that they would kill him. Suddenly, accused No.2 -Jayapala barged into the house of the complainant, brought a double barrel gun belonging to the complainant, struck it on the platform - Katta (PÀmÉÖ) situated outside the complainant's house and broke it into two pieces. Accused No.1 - Bhimappa brought a Babool stick. Holding each piece of the Gun, accused No.2 - Jayapala and accused No.3 - Kuntinatha @ Neminatha Janagouda and accused No.1 with Babool stick indiscriminately assaulted complainant and deceased Sunanda on their head, body, hands and legs. Accused No.4

- Kusumavva and accused No.5 -Nirmala assaulted them with hands. When they cried for help, complainant's elder brother - Manik, his children - Bharama, Bahubali and one 8 Ashok Kudakudi intervened and rescued them. Number of people had gathered. On finding that deceased Sunanda fell down unconscious, accused ran away taking the weapons with them. Complainant sustained injury on his head, legs and back. Deceased Sunanda also sustained injuries on her head, forehead, chin and she was bleeding profusely and unconscious.

5. It is the case of the prosecution that complainant's daughter Sarika who was aged about 12 years intimated the Malmaruthi Police about the incident over phone. The concerned police visited the spot and shifted injured complainant and his wife Sunanda to Government Hospital, Belagavi. From there they were shifted to K.L.E Society Hospital, Belagavi, as both of them were serious.

6. While undergoing treatment at K.L.E.Society Hospital, Belagavi, complainant gave a written complaint and based on it Malmaruthi Police registered a case in crime No.131/1993 and transmitted the FIR to the Court. The Investigating Officer has visited the spot and recorded the statement of Kum. Sarika. Since it was night, the Investigating Officer has deputed Police Constable to guard 9 the scene of occurrence. Though tried, the Investigating Officer could not record the statement of Sunanda as she remained unconscious through out.

6.1 On the next day, Investigating Officer visited the spot and drawn the mahazar and recovered plain earth, blood stained earth and a wooden handle and belt used to tie the Gun. He has also recorded the statement of witnesses. On 02.10.1993, while undergoing treatment, Sunanda succumbed to the injuries. Investigating Officer has drawn inquest on her dead body and subjected it to post mortem examination. He has also seized the blood stained clothes of the deceased and also injured complainant. After accused Nos.1 to 3 were arrested, based on their voluntary statements and at their instance, the Investigating Officer has recovered the double barrel gun which was in two pieces and also two Babool sticks through mahazar. He has submitted the incriminating articles for forensic examination. The Investigating Officer has also collected the opinion of the medical officer as to whether the injuries sustained by complainant and deceased are possible if assaulted with the seized material object. Accused Nos.4 and 5 were also 10 arrested. Accused Nos.1 to 5 secured bail. Investigating Officer has collected the wound certificate, Post Mortem Report, opinion of the medical officer regarding the weapons of offence. He has also collected the assessment extract in respect of the scene of occurrence which is a vacant site situated in front of the house of complainant. After completing investigation, Investigating Officer has filed charged sheet against accused Nos.1 to 5.

7. The Trial Court has framed charge against accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 448, 427, 307, 302, 504 r/w Section 149 of I.P.C.

8. Accused pleaded not guilty and claimed trial.

9. In order to prove the charges levelled against the accused, at the first instance the prosecution examined PWs- 1 to 17 and got marked Exs.P-1 to 42 and MOs.1 to 16.

10. During their statement under Section 313 of Cr.P.C, accused have denied the incriminating evidence.

11. Accused did not choose to lead defence evidence. 11

12. Vide judgment and order dated 06.12.2003, the trial Court acquitted accused Nos.1 to 5 of all the charges.

13. It was challenged by the State in Crl.A.No.417/2004. Vide judgment and order dated 07.03.2011, the said judgment and order was set aside. The case was remanded to the trial Court with a direction to hold further trial for limited purpose of allowing the prosecution to prove contents of the PM Report and record finding on all the points formulated independently.

14. After the remand, the prosecution has examined Dr.Rameshbabu Javali as PW-18.

15. After recording further statement of accused under Section 313 of Cr.P.C, vide the impugned judgment and order, the trial Court has convicted accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 448, 427, 324 r/w Section 149 of IPC and sentenced them as detailed in the impugned order.

16. However, the Trial Court has acquitted accused Nos.1 to 5 for the offences punishable under Sections 307, 302, 504 r/w Section 149 of IPC.

17. Being aggrieved by the same, both accused as well as the State are before this Court in these appeals.

18. During the course of arguments, learned counsel representing the accused submitted that the order under appeal is perverse, capricious and untenable in the eye of law. The entire approach of the trial Court is one sided and against the principles of natural justice. The impugned judgment and order are based on presumptions and assumptions. It has not appreciated the oral and documentary evidence in right perspective. It has erred in holding that the prosecution has proved the allegations against accused beyond reasonable doubt. The authorities relied upon by the accused are not considered by the trial Court.

18.1 He would further submit that the prosecution case is full of suspicious circumstances. The Trial Court has erred in holding that accused did not meet out the definite defence. According to the prosecution, injured Sunanda was taken to the Hospital at 2.25 p.m., whereas PW-13 -Dr. Eshwar Ingaligi has deposed that as per the history of assault, the incident took place at 11.00 a.m. The 13 gold chain which is the subject matter of dispute is not seized. The evidence placed on record is not sufficient to prove the charges levelled against the accused. The prosecution case is improbable as normally in the villages, the front yard (CAUÀ¼À) would not be swept at 12 noon. The PM report and inquest do not corroborate with each other. Since the remand was for limited purpose, the Trial Court has erred in re-appreciating the prosecution case. The punishment imposed is disproportionate and prays to allow the appeal.

18.2 Relying upon the decision in Dr.S.L.Goswami Vs. The State of Madhya Pradesh1 (Dr.S.L.Goswami's case), wherein the Hon'ble Supreme Court held that in a criminal trial the burden of establishing the guilt of the accused beyond reasonable doubt is always on the prosecution and accused is entitled for benefit of doubt, the learned counsel for accused submitted that in the present case the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and therefore accused are entitled for benefit of doubt.

1 AIR 1972 SC 716 14

19. On the other hand, during the course of arguments, learned Addl.SPP submitted that the impugned judgment is neither based on oral nor documentary evidence placed on record and as such, the same is bad in law. It is against the established principles of law as well as canons of justice. He would further submit that having regard to the fact that PW-1 is the injured, his presence at the scene of occurrence cannot be disputed. PW-2, the daughter of complainant and deceased is an eye witness. Being the housemates and having regard to the place where the incident has taken place, PWs-1 and 2 are natural witnesses. Accused being the brother of complainant/PW-1, his wife and children are known and as such their identities are not in dispute. The trial Court has not appreciated the testimony of PWs-1 and 2 in proper perspective.

19.1 Learned Addl.SPP would further submit that the PM report clearly discloses that the death is due to fracture of skull, left temporal lobe and due to hypovolaemic and neurogenic shock. The injuries sustained by the deceased Sunanda clearly corroborates with the eye witness account. Deceased suffered fracture of skull, rupture of 15 brain and excessive bleeding which are sufficient to cause her death. The opinion of the medical officer also prove that the injuries sustained by the complainant and deceased are possible if assaulted with the seized material objects. Even the injuries sustained by complainant are sufficient to cause death in the ordinary course of nature and therefore, the prosecution has proved the charges under Section 307 and 302 of IPC.

19.2 He would further submit that the medical evidence and the oral testimony of PWs-1 and 2 clearly establish the allegations against the accused persons. The blows given by accused were persistent and continuous. There was no opportunity either to the deceased or PW-1 to run away as they were surrounded by the accused persons and were assaulted mercilessly.

19.3 The trial Court has erred in holding that the injuries noted in the MLC register of Government Hospital, inpatient record of K.L.E. Society Hospital, Belagavi and PM Report does not corroborate with each other. It has lost sight the fact that the entries in the MLC register and inpatient record are made immediately after arrival of the patient 16 based on superficial examination whereas PM Report is based on detailed examination of the dead body. The trial Court has wholly erred in holding that the death was due to failure of the Doctors during operation. This observation is not based on any evidence. The Trial Court has failed to examine the material on record in the light of the intention and knowledge on the part of the accused persons with regard to the injuries inflicted on the deceased and complainant and prays to allow the appeal and convict accused Nos.1 to 5 also for the offences punishable under Sections 307, 302 and 504 read with Section 149 of IPC.

19.4 In support of his arguments, learned SPP has relied upon the following decisions:

i) Jayantibhai Bhenkarbhai Vs. State of Gurajat2 (Jayantibhai's case)

ii) Animireddy Venkata Ramana & Ors.

Vs. Public Prosecutor, H.C. of A.P.3 (Animireddy's case)

iii) Balakram Vs. State of Uttarakhand & Ors.4 (Balakram's case)

iii) Mallikarjun and Ors. Vs. State of Karnataka5 (Mallikarjun's case) 2 (2002) 8 SCC 165 3 2008 (2) Crimes 63 (SC) 4 (2017) 7 SCC 668 5 2019 (5) KCCR 338 (SC) 17

20. We have heard elaborate arguments of learned Addl.State Public Prosecutor and learned counsel Sri.M.M.Shaikh, representing accused Nos.1 to 5.

21. Thus, accused have challenged their conviction and sentence for the offences punishable under Section 143, 147, 148, 448, 427, 324 r/w Section 149 I.P.C, contending that the prosecution has miserably failed to prove the allegations against them even for the above offences. On the other hand State has challenged the impugned judgment and order of acquittal of accused Nos.1 to 5 for the offences punishable under Sections 307, 302, 504 r/w Section 149 I.P.C, contending that despite coming to the conclusion that deceased Sunanda and PW-1 Mahaveer were assaulted by accused Nos.1 to 5, in the light of the overwhelming evidence placed on record, the trial Court has erred in holding that the injuries which were responsible for the death of deceased was due to medical negligence and that the allegations attracting the offence punishable under Section 307 I.P.C so far as PW-1 Mahaveer is not made out.

22. In the light of the specific grounds urged by both parties, it is to be examined whether accused Nos. 1 to 5 18 have made out any justifiable grounds to interfere with the conviction and sentence imposed by the trial Court against them, keeping in mind the principles of enunciated by the Hon'ble Supreme Court in Dr. S.L.Goswami's case referred to supra, relied upon the defence.

23. While reiterating the scope and ambit of power exercisable by the High Court in an appeal against acquittal, in Shyamal Saha and Anr. Vs. State of West Bengal (Shyamal's case)6, the Hon'ble Supreme Court held as follows:

"(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.

(ii) The appellate court can also review the trial court's conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.

(iv) An order of acquittal is to be interfered with only when there are 'compelling and substantial reasons' for doing so. If the order is 'clearly unreasonable', it is a compelling reason for interference.

(2014) 12 SCC 321 19

(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."

24. In the light of the principles enunciated in the above decision, it is necessary to examine whether the evidence placed on record leads to an irresistible conclusion that the death of Sunanda occurred on account of assault on her by accused Nos.1 to 3 and whether the assault on PW-1 Mahaveer by accused Nos.1 to 3 is with the intention of causing his death attracting provisions of Section 307 I.P.C and whether the impugned judgment and order is perverse calling for interference by this Court.

25. Before considering the merits of the case it is necessary to examine the contention of accused that the remand was limited, but the trial Court has decided all the issues afresh. We are afraid that this ground urged by the accused is not correct. As evident from the remand order passed in Crl.A.No.417/2014, the entire judgment is set aside with a direction to the trial Court to reconsider the matter by holding further trial for the limited purpose of 20 allowing the prosecution to prove the contents of post mortem report and thereafter to record findings on all the points formulated by it independently. Therefore, no error is committed by the trial Court in deciding the matter afresh after permitting prosecution to summon PW-18 to prove the post mortem report at Ex.P32.

26. It is relevant to note that PW-1 is an eye witness and also injured. PW-2 is an eye witness. PWs-1 and 2 are the husband and daughter of deceased Sunanda. Though PWs-3 to 5 are cited as eye witnesses, they have not supported the prosecution case. PWs-6, Arjun Kattimani, a witness to the spot mahazar, PW-7 Sudha, a witness to the inquest, PW-8 Ayyappa, a witness to the seizure mahazar of blood stained clothes of PW-1 Mahaveer and deceased Sunanda and PW-12 Suresh a witness to the recovery of weapons of offence at the instance of accused Nos.1 to 3 have also not supported the prosecution case and turned hostile. In other words except PWs-1, 2 and the official witnesses, all the other related and independent witnesses have not supported the prosecution case.

27. In this regard in Mallikarjun's case referred to supra, relied upon by the learned Addl.SPP, the Hon'ble Supreme Court held that in case of panch witnesses to recovery having turned hostile, it cannot be held that recovery is vitiated and in such case, the evidence of Investigating Officer can be relied. Similarly, in Ramesh and Ors Vs. State of Haryana 7 (Ramesh's case), wherein the father and brother of the deceased compromised with the accused to nullify the effect of the dying declaration of the deceased, while discussing the culture of compromise, factors and reasons for witnesses turning hostile, the Hon'ble Supreme Court held that inspite of material witness turning hostile the Court may rely upon the other evidence and to examine whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

28. In the light of the above decisions, having regard to the fact that except PWs-1 and 2 and the official witnesses, the other related and independent witnesses have not supported the prosecution case, it has become necessary to examine whether the testimony of PWs-1 and 2 and the 7 (2017) 1 SCC 529 22 official witnesses inspires confidence in the mind of the Court to hold that accused persons are guilty of the offences alleged and sufficient to convict the accused persons also for the offences punishable under Sections 307 and 302 read with Section 149 of IPC.

29. The relationship between complainant i.e., PW-1 Mahaveer and accused persons is not in dispute. Accused No.1 Bhimappa, PW-3 Manik and PW-1 Mahaveer are brothers. It is also not in dispute that these three brothers have partitioned and living separately. It has come in the evidence that while accused persons and family of PW-1 Mahaveer were living in adjoining houses, the house of PW-3 Manik is situated adjacent to Basti away from the houses of accused persons and PW-1 Mahaveer. This fact is deposed by PW-1 Mahaveer. Of course it is not in dispute.

30. Motive - According to the prosecution, at the time of marriage of PW-1 Mahaveer and deceased Sunanda, the parents of deceased Sunanda gifted a gold chain. At the time of partition, accused persons retained the same to their share and deceased Sunanda was not happy and whenever the woman folk of accused family wore the said gold chain, 23 she used to taunt them. It is also the case of the prosecution that a vacant space situated in front of the house of PW-1 Mahaveer and accused was jointly purchased by accused No.1 Bhimappa, PW-1 Mahaveer and PW-3 Manik and in the partition, it fell to the joint share of accused No.1 Bhimappa and PW-1 Mahaveer and subsequently PW-1 Mahaveer purchased the share of accused No.1 Bhimappa. However, he started disputing the said fact and in this regard also there used to be quarrel between them.

30.1 PW-1 Mahaveer has deposed on this aspect. Though in the complaint he has stated that accused No.1 Bhimappa was objecting complainant's family using the vacant space situated in front of their house, during the course of his evidence, he has deposed that due to rain a portion of the western wall of the house of accused had collapsed and they were repairing the said wall and for this reason, accused started using the open space situated in front of their houses and it was objected by him.

30.2 It is an unfortunate case wherein though cited an eye witness, PW-3 Manik, who is no other than the real brother of PW-1 Mahaveer and accused No.1 Bhimappa 24 has turned hostile. Though he has been cross-examined by the prosecution, the learned Prosecutor has not properly cross-examined him and failed to elicit even the undisputed facts such as situation of the houses of accused and PW-1 Mahaveer adjoining each other, the fact of vacant side having fallen to their share and subsequent purchase of share of accused No.1 Bhimappa by PW-1 Mahaveer, etc. Instead of eliciting admissible evidence and thereafter suggesting that part of the evidence which he disputes and making suggestion that he has given statement before the Police only with regard to the disputed portion, the learned Prosecutor has mechanically cross-examined PW-3 Manik simply suggesting that he has given statement before the Police, which he has denied. The same thing is with the other witnesses who have turned hostile.

30.3 Anyhow, the claim of the prosecution that the vacant site belong to PW-1 Mahaveer is supported by Ex.P41 assessment extract issued by the Corporation, Belagavi, which state that Khata of the said property was transferred from the name of PW-3 Manik to the name of PW-1 Mahaveer as per order dated 28.11.1988. During the 25 cross-examination of PW-1 Mahaveer, it is elicited that the partition took place between the brothers in 1980 during the lifetime of their father. The fact that during 1988 Khata came to be changed in the name of PW-1 Mahaveer supports his evidence that subsequently he has purchased the share of accused No.1 Bhimappa and when accused persons continued to use the same, it was objected by PW-1 Mahaveer and his family members and it was also one of the reason for the quarrel between accused persons and the family of PW-1 Mahaveer. Suggestions are made to PWs-1 and 2 that they were not in visiting terms with accused persons and the sons of accused No.1 never came to his help also supports the case of the prosecution that the relationship between them was not cordial. All said and done, if there is direct trustworthy evidence of witnesses as to the commission of the offence, motive part loses its significance, as held by the Hon'ble Supreme Court in Habib Vs. State of Uttar Pradesh8 (Habib's case).

31. The double barrel gun owned by PW-1 Mahaveer used to be kept in the ground floor of his 8 (2013) 12 SCC 568 26 house: It has come in the evidence of PW-1 Mahaveer and PW-2 Sarika that PW-1 Mahaveer owned licensed double barrel gun and used to keep it in his house. Of course the accused persons are not disputing the said fact. They have claimed that the said gun was used to be kept in the room situated in the first floor of the house, whereas during the course of their evidence, PW-1 Mahaveer and PW-2 Sarika in unequivocal terms have deposed that it was kept in the room of ground floor. In fact a suggestion is made to PW-1 Mahaveer and PW-2 Sarika that all the villagers knew that their family is owning a double barrel gun. During their cross-examination, PW-1 Mahaveer and PW-2 Sarika have denied that the gun used to be kept in the first floor, but admitted that the ammunition i.e., cartridges were kept in the almirah under lock and key. Thus, the testimony of PW-1 Mahaveer and PW-2 Sarika prove that the double barrel gun owned by PW-1 Mahaveer was kept in the room situated in ground floor and all the villagers including the accused persons knew about the same.

32. A katta (PÀmÉÖ) is existing outside the house of PW-1 Mahaveer: It is specific case of the prosecution that 27 in front of the house of complainant and accused persons a katta (PÀmÉÖ) i.e., platform is existing and the incident took place in front of the house of complainant. During the course of their evidence PW-1 Mahaveer and PW-2 Sarika have deposed that after giving threat of killing PW-1 Mahaveer, accused No.2 Jayapal rushed into their house, brought the double barrel gun, broke it into two pieces by striking it on the katta (PÀmÉÖ). Therefore, the existence of platform (PÀmÉÖ) outside the house of complainant is a corroborative piece of evidence. This fact is forthcoming from Ex.P38 rough sketch got prepared by PW-17 Babalal Tatagar the Investigating Officer. During the course of his evidence PW-17 has deposed that he got prepared sketch of the scene of occurrence with the assistance of constable Hanchinamani as per Ex.P38. Though a suggestion is made to PW-17 that the sketch is not depicting the true facts existing at the place of incidence, the defence has failed to elicit any admissions to show that Ex.P38 is contrary to the fact existing at the place of incident. Thus, the testimony of PWs-1, 2 and 17 establish the fact that outside the house of PW-1 Mahaveer, a katta (PÀmÉÖ) i.e., platform is existing.

33. Incident took place outside the house of PW- 1 Mahaveer: According to the prosecution on the date of incident deceased Sunand was cleaning the house, PW-2 Sarika was sprinkling water to the front yard and on sighting accused No.4 and 5 coming together and accused No.4 wearing the gold chain, deceased Sunanda taunted her which led to accused Nos.4 and 5 quarreling with her and later on accused Nos.1 to 3 joining them. It is the definite case of the prosecution that the incident took place in the front yard of the house of PW-1 Mahaveer. One of the defence taken by the accused is that a quarrel took place between PW-1 Mahaveer and deceased Sunanda inside their house and he tried to assault deceased with the gun and the stroke fell on the wall and broke into two pieces and with the broken gun he assaulted the deceased, etc. In other words according to the defence the incident took place inside the house of PW-1 Mahaveer.

33.1 However, during the course of their evidence, PW-1 Mahaveer and PW-2 Sarika have deposed in unequivocal terms that the incident took place in the front yard of their house. Though they have been cross-examined 29 at length, the defence has failed to establish that the place of occurrence was inside the house of PW-1 Mahaveer. This evidence of PW-1 and PW-2 is supported by the testimony of PW-16 Vithal Jadhav, Head constable 991 of Malmaruthi P.S, who is one of the first person to reach the spot, on being informed by PW-2 Sarika about her parents being injured. During the course of his evidence, he has deposed that he along with constable Hanchinamani went to the spot on motor cycle at about 12.30 p.m. and found deceased Sunanda fallen on the ground in front of her house unconscious and he also found PW-1 Mahaveer with bleeding injuries and not in a position to speak. He has also deposed that they went to the highway, stopped a sand lorry, brought it to the place of occurrence and shifted PW-1 Mahaveer and deceased Sunanda to District hospital, Belagavi. His testimony that the place of occurrence was in front of the house of PW-1 Mahaveer is not seriously disputed and dislodged by the defence except suggesting that he is deposing falsely to that effect.

33.2 The fact that the incident took place in front of the house of PW-1 Mahaveer is supported by the 30 testimony of PW-14 Hanamantagouda Patil, who has registered the case and conducted initial investigation. During the course of his evidence, he has deposed that after registering the case based on the complaint at Ex.P1 given by PW-1 Mahaveer, he visited the spot, recorded the statement of PW-2 Sarika, deputed staff to guard the scene of occurrence. On the next day i.e., on 01.10.1993, he visited the spot and in the presence of panchas drew mahazar at Ex.P5 in between 7-00 to 8.30 a.m. He has specifically deposed that place of incidence is shown by PW-3 Manik and the place of incidence is at a distance of 5 ft from the house of PW-1 Mahaveer. From the place of incident, he has also collected sample soil, blood stained soil, wooden handle of the gun and a leather belt which is used for tying the gun at MOs.10 to 13 through the said mahazar. Ex.P5 which is prepared at the earliest available opportunity prove that the scene of occurrence is in front of the house of complainant and the defence is wrongly depicting it as inside the house.

33.3 It is pertinent to note that during his cross- examination at page-7 of his evidence, PW-14 has stated 31 that he has seen an entry in station house diary dated 30.09.1993 that deceased and her husband PW-1 Mahaveer have sustained injuries in Alarwad in scuffle in their house. However, during his cross-examination by the defence he has denied that he is falsely deposing that the place of incident was in front of the house of PW-1 Mahaveer at a distance of about 5 ft from their house and that he found blood stains and through mahazar he has collected blood stained earth. So far as his evidence regarding entry in the station house diary that PW-1 Mahaveer and deceased Sunanda were injured in a scuffle in their house, he is treated as hostile and cross-examined by the prosecution, wherein he has clarified that by mistake and over sight he deposed to that effect. On this aspect he is further cross- examined by the defence, wherein he has denied that in the phone message, PW-2 Sarika disclosed that there was a quarrel between her parents inside the house and during the said scuffle they have sustained injuries.

33.4 Undisputedly, PW-14 is not the author of the alleged entry. The evidence of PW-14 that he saw an entry in the station house diary about the scuffle between 32 PW-1 and his wife is not supported by any documentary evidence, including the mahazar drawn at Ex.P5 by him and also the testimony of PW-16 Vithal Jadhav, who made the said entry, who has specifically deposed before the Court that in the said telephonic call, PW-2 Sarika informed him that her parents were assaulted by the accused persons with sticks and Butt end of the gun and pleaded him to reach early. It appears to help the accused persons PW-14 in the cross-examination tried to indicate that there is such an entry in the station house diary and when he was treated as hostile, he has clarified that by mistake he gave such version. As already discussed, through the testimony of PW- 17 prosecution has proved that after taking over the investigation he visited the spot, got prepared the rough sketch at Ex.P38 through his staff, which clearly indicates that the scene of occurrence is outside the house of PW-1 Mahaveer. Through the cross-examination of these witnesses the defence has failed to prove that the incident took place inside the house in a scuffle between PW-1 Mahaveer and deceased Sunanda.

33.5 The Investigating Officers have been cross- examined at length by defence with regard to entry made by PW-16 Vithal Jadav in respect of the information received by him from PW-2 Sarika about the incident in the station house diary. By the time witnesses were examined the station house diary was destroyed as per the letter dated 14.07.2003. However, along with the said letter the concerned police have produced page Nos.1 to 20 of carbon copy of case diary which are also in torn condition. Page No.1 of case diary dated 30.09.1993 reveal that on 29.09.1993 at the time of Anantha Ganapati immersion (C£ÀAvÀ UÀt¥Àw «¸Àdð£É) due to clashes curfew was imposed and since 29.09.1993 the police personnel are on bandobast duty. On 30.09.1993, he received information from one Sarika to the effect that her parents are assaulted by her senior uncle and his family members, etc.. This supports the prosecution case. Therefore, the evidence of PW-14 Hanumanthagouda Patil that he saw entry in the station house diary with regard to scuffle between PW-1 Mahaveer and his wife i.e., deceased Sunanda inside the house is without any basis.

33.6 In this regard the learned Addl.SPP has relied upon Balakram's case referred to supra, wherein the Hon'ble Supreme Court held that "police diary is only a record of day to day investigation made by the Investigation Officer. Neither accused nor his agent is entitled to call for such case diary and also are not entitled to see them during the course of enquiry or trial. Unfettered power conferred by statute under Section 172 (2) Cr.P.C on Court to examine entries of police diary would not allow accused to claim similar unfettered right to inspect the same. If there is any inconsistency or contradictions arising in the evidence, the Court can use the entries made in the diaries for the purpose of contradicting the Police Officer, who made them as provided under Section 172(3) Cr.P.C, but the entries in the police diary are neither substantive evidence nor corroborative evidence and they cannot be used against any other witness other than against the Police Officer, who made the entry that too for the limited extent indicated above. Even where the station house diary is produced for the inspection of the Court or when the Police Officer uses the same for refreshing his memory, its admissibility is subject to the provisions of Sections 145 and 161 of the 35 Evidence Act." In the light of the above decision, PW-14 Hanumanthagouda Patil, is not competent to speak about the said entry. More so when the said document is not produced for the inspection of the Court and the defence is not at liberty to seek advantage on the ground that the station house diary is destroyed.

33.7 As already discussed, the prosecution has proved beyond reasonable doubt that the message received by PW-16 Vithal Jadav from PW-2 Sarika was to the effect that her parents are assaulted by the accused persons and the said fact is noted by him in the station house diary when he returned to the police station after shifting the injured to the hospital. Therefore, the non production of the station house diary at the instance of accused is not fatal to the case of the prosecution.

34. Curfew was imposed on 30.09.1993: It is the specific case of the prosecution that curfew was imposed on 30.09.1993 in Belagavi and other places and therefore PW-1 Mahaveer who was working as physical instructor in a high school at Belagavi did not attend the school. Defence has disputed this fact. On the other hand a faint attempt is made 36 by the defence by suggesting that accused No.2 being a B.Sc. graduate is employed in Co-operative Bank since 1988, accused No.3 is taking education and thereby indicating that on the date of incident, accused No.2 was at the place of his work and accused No.3 was attending college. In other words, they were not present at the scene of occurrence. In fact a suggestion is also made to PW-1 Mahaveer that on 30.09.1993 he worked the entire day in the school and returned around 7.00 p.m. Therefore, the fact whether on 30.09.1993 curfew was imposed assumes importance.

34.1 The fact that curfew was imposed on 30.09.1993 and therefore, PW-1 Mahaveer did not attend the school is forthcoming in the complaint itself. During the course of their evidence, PW-1 Mahaveer and PW-2 Sarika have deposed that a curfew was imposed on 30.09.1993 and schools were closed. This fact is also forthcoming in the testimony of PW-16 Vithal Jadhav who was working as Head constable with buckle No.991 at Malmaruthi P.S, wherein he has deposed that in the absence of P.S.I he was the SHO. During his cross-examination he has deposed that on that day PSI also attended work, but he was on bandobast duty in Malmaruthi P.S. limits.

34.2 PW-14 Hanamanthagouda Patil, who has registered the case and conducted initial investigation has also deposed that on 30.09.1993, he was on bandobast duty and after returning to the P.S. received phone call from PW- 16 Vithal Jadhav, from District Hospital, Belagavi about admission of PW-1 Mahaveer and deceased Sunanda. During his cross-examination at page-7 para-6 he has also deposed that on 29.09.1993 and 30.09.1993, he was on bandobast duty and the said fact is noted in station house diary. Though the accused have disputed that curfew was imposed on 30.09.1993, no specific suggestions are made to PWs-1, 2, 14 and 16 on that aspect.

34.3 Despite taking a specific defence that 30.09.1993 was a normal day and work as usual went on and PW-1 Mahaveer and accused No.2 Jayapal attended duty at their workplace and accused No.3 Kunthinath @ Neminatha attended the College at Belagavi, accused have not led any evidence to prove the said fact even by preponderance of probablity. The least they could have done was to get the attendance certificate from the Management of the school, Society and College to show that it was a 38 normal day and accused Nos.2 and 3 were not present at the spot when the incident took place. As held by the Hon'ble Supreme Court in Jayantibhai's case referred to supra, the accused have failed to prove even by preponderance of probabilities their plea of alibi. Thus the evidence of PWs-1, 2, 14 and 16 prove that curfew was imposed on 30.09.1993 and as such schools and other establishments did not work on that day and more particularly, PW-1 Mahaveer was available at his residence at 12.00 noon when the incident took place.

34.4 It is argued by the learned counsel for accused that if curfew was imposed on 30.09.1993, then the police personnel would have been available in the area where the incident took place. It is relevant to note that Alarwad is in the out-skirts of Belagavi. There is no evidence that in the Alarwad area also there was law and order situation calling for posting of police personnel. In fact defence has not made suggestions to PW-16 Vithal Jadhav who came to the spot and shifted the injured and also PWs-14 and 17 who have conducted investigation about the presence of police force in Alarwad. Therefore, this argument cannot be accepted. 39

35. Actual Incident: Now coming to the actual incident dated 30.09.1993. It is relevant to note that the incident in question took place in a broad day light in front of the house of complainant. It is not in dispute that the house of accused persons is adjoining the house of PW-1 Mahaveer and the houses of PW-3 Manik, who is the brother of PW-1 Mahaveer and accused No.1 Bhimappa is also nearby which is surrounded by the houses of other prosecution witnesses. It is definite case of the prosecution that when the incident took place, PW-3 Manik and his sons CW-12 Bharama, CW- 13 Bahubali, PW-4 Ashok Kudakude, CW-15 Mahendra, PW-5 Paras Jirale were present and have witnessed the incident. However, for obvious reasons to help the accused, PWs-3 to 5 have not supported the prosecution case and turned hostile. Of course PW-1 Mahaveer and PW-2 Sarika being the husband and daughter of the deceased Sunanda and PW-1 Mahaveer himself being injured have supported the prosecution case. Therefore, in the absence of support from the independent witnesses, it is necessary to examine whether the testimony of PWs-1 and 2 inspires confidence of the Court to prove the complicity of accused persons in the crime.

35.1 Having regard to the fact that PW-1 Mahaveer is injured prove his presence at the scene of occurrence when the incident took place. Accused have taken up a specific defence that a quarrel took place between PW-1 Mahaveer and his wife i.e., deceased Sunanda inside their house and during the said quarrel, PW-1 Mahaveer assaulted deceased Sunanda with his double barrel gun and in the process the stroke fell on the wall and the broke into two pieces and with the said gun piece, he assaulted deceased Sunanda resulting in she suffering injuries. The accused have also taken up a defence that PW-1 Mahaveer is suffering from Epilepsy and on 30.09.1993 after returning from school, he suffered Epileptic attack and in such a condition brought the double barrel gun from the first floor, assaulted his wife and during the same the stroke fell on the wall and the gun broke into two pieces and during this process he pushed his wife with force resulting in she suffering injury on her head and during the scuffle between he and his wife, PW-1 Mahaveer also suffered two minor injuries. By taking such defence the accused have admitted that both PW-1 Mahaveer and deceased Sunanda sustained injuries on 30.09.1993. In the light of the same, we have the task of 41 examining whether in the absence of support from the independent witnesses, the testimony of PWs-1 and 2 is reliable and trustworthy and prove the allegations against the accused persons or the evidence placed on record probabilise the defence taken by the accused.

35.2 At the outset it is relevant to note that though PW-16 Vithal Jadhav and a constable by name Hanchinamani shifted PW-1 Mahaveer and deceased Sunanda to District Hospital, Belagavi, the hospital records of K.L.E. Society Hospital, Belagavi indicate that PW-3 Manik was present when they were shifted to the said hospital. In fact he has given the history of assault as noted in the said Hospital records. Anticipating that being eye witnesses PW-3 Manik and his sons i.e., CW-12 Bharama and CW-13 Bahubali would support him, the defence has chosen to cross-examine PW-1 Mahaveer suggesting that his portion of the land is cultivated by PW-3 Manik and his sons; that in case of any difficulty they would come to his rescue and in criminal cases PW-3 Manik has stood as Surety and got him released on bail and thereby build a foundation that in case they supporting the prosecution case, it would be of some 42 help to the defence. However, irony is that the defence has managed to get PW-3 Manik turn hostile. It appears for this reason the prosecution has not chosen to examine CW-12 Bharama and CW-13 Bahubali, who would obviously have turned hostile.

35.3 In the light of these circumstances, we are now examining the testimony of PW-1 Mahaveer and PW-2 Sarika and see whether it inspire confidence and accept the case of the prosecution about the complicity of the accused persons in the crime. It is relevant to note that at the time of incident PW-2 Sarika was aged about 12 years. The complaint as well as the evidence of PW-1 Mahaveer reveal that PW-2 Sarika is his eldest daughter and in addition he is having another daughter and a son. During his cross- examination PW-1 Mahaveer has deposed that his both daughters and son were present when the incident took place. Since the other daughter and son were younger than PW-2 Sarika who was aged about 12 years, it appears the Investigating Officer has not examined and cited them as witnesses.

35.4 During the course of her evidence PW-2 Sarika has deposed that on 30.09.1993, at about 10-00 or 10-30 a.m. her father went out of the house. At about 11.30 a.m. or 12.00 noon, her mother was sweeping the house and she was sprinkling water in front of the house and at that time on seeing accused No.4 Kusumavva and accused No.5 Nirmala coming and observing the gold chain in the neck of accused No.4, her mother taunted saying accused No.4 showing off wearing of chain that does not belong to them (AiÀiÁgÁÝgÉ ZÉÊ£ÀÄ ºÁPÉÆAqÀÄ ªÉÄjvÁ¼ÀÄ). The evidence of PW-2 Sarika further prove that enraged by the said comment, accused Nos.4 and 5 reacted by saying whether her name i.e., name of deceased Sunanda is engraved on the chain, and started assaulting her with hands. She has deposed that at that time PW-1 Mahaveer who came from outside intervened and questioned as to why they are assaulting his wife. Hearing the commotion accused Nos.1 to 3 rushed to the spot. Accused No.1 abused PW-1 Mahaveer saying "AiÀiÁPÉÆ ªÀÄUÀ£É §ºÀ¼À ¸ÉÆPÀÌ §AzÀzï" and that they would finish him. PW-2 Sarika has specifically deposed that accused No.2 Jayapala rushed inside her house, brought the gun belonging 44 to her father, struck it on the katta (PÀmÉÖ) i.e., platform and assaulted PW-1 Mahaveer with the Butt end of the gun on the back side of his head; accused No.1 Bhimappa assaulted PW-1 Mahaveer with a stick on his head and also accused No.3 Kunthinatha @ Neminatha assaulted PW-1 Mahaveer with a stick on his knee. PW-2 has deposed that hearing the cries of her father when her mother came out of the house to his rescue, at this stage accused No.1 assaulted her with stick on her head and left shoulder; accused No.3 assaulted on her back with a stick and in the process when the stick fell down from his hand, accused No.3 picked up barrel of the gun and assaulted her mother on her chin; accused No.2 assaulted her mother with the Butt end of the gun. PW-2 Sarika has specifically deposed that PW-3 Manik and his sons CW-12 Bharama and CW-13 Bahubali and PW-4 Ashok intervened and separated the accused persons. After seeing people collecting, accused Nos.1 to 5 ran away taking the stick and broken pieces of the gun.

35.5 The defence has taken up exception to evidence of PW-2 Sarika that when accused Nos.1 to 3 started assaulting PW-1 Mahaveer, her mother i.e., deceased 45 Sunanda came out of house to his rescue and she was also assaulted by them contending that this is contrary to the case of the prosecution that accused Nos.4 and 5 assaulted deceased Sunanda outside of the house. It is relevant to note that the place of incident is front yard about 6 ft from the main door. The evidence of PWs-1 and 2 prove the fact that enraged by the taunt by deceased Sunanda, accused Nos.4 and 5 started quarreling with her and slapped her and at this stage, PW-1 Mahaveer intervened and on hearing his voice, accused Nos.1 to 3 rushed to the spot. At this stage the possibility of deceased Sunanda entering into the house cannot be ruled out. The evidence of PW-2 Sarika prove that when she saw accused Nos.1 to 3 indiscriminately assaulting her husband, she again stepped out of the house and came to his rescue. At no stretch of imagination it could be accepted that at the first part of incident deceased Sunanda was not outside of the house. This piece of evidence in no way contradict the case of the prosecution.

35.6 Speaking with regard to the incident, PW-1 Mahaveer has deposed that since there was curfew, he did not attend the school duty and went to the village and 46 returned at about 12 noon and found accused Nos.4 and 5 quarreling with his wife Sunanda and questioned them. He has specifically stated that accused No.2 without ascertaining what is happening gave threat saying that he would kill PW-1 Mahaveer; so saying accused No.2 entered the house of PW-1 Mahaveer, brought his licensed Gun struck it on the katta (PÀmÉÖ) i.e., platform; at this juncture, accused No.1 went inside his house, brought a Babool stick and assaulted him on his head causing bleeding injury; accused Nos.2 and 3 with the broken gun pieces started assaulting him and his wife indiscriminately i.e., on the head, chin, back, hands and legs of his wife; while accused Nos.4 and 5 assaulted deceased Sunanda with hands; having suffered bleeding injuries, his wife fell down unconscious; while he was trying and requesting accused not to assault them, PW-3 Manik, CW-12 Bharama and CW-13 Bahubali, PW-4 Ashok Kudukudi intervened and saved them from further assault. PWs-1 and 2 have identified MOs-1 to 4 as the weapons used by the accused to assault.

35.7 PW-1 Mahaveer and PW-2 Sarika are cross examined at length by the defence making several 47 suggestions that in the complaint and during their statement before the Investigating Officer, they have not stated material facts. It is suggested to PW-1 that before the Police, he has not stated that accused No.1 Bhimappa went inside the house and brought Babool stick. Though in specific terms, PW-1 Mahaveer has not stated that accused No.1 Bhimappa went inside the house and brought Babool stick, his evidence prove that accused No.1 Bhimappa assaulted him with the Babool stick while accused Nos.2 and 3 used the broken pieces of gun to assault him and his wife. PW-1 Mahaveer has denied that before the Police he has not stated that his wife and children were present in the house and that having sustained bleeding injuries, his wife fell on ground unconscious.

35.8 Though during the course of her statement before the Police, PW-2 Sarika has not specifically stated that on the date of incident, there was curfew, she has stated that on that day, her father returned from village when accused Nos.4 and 5 were assaulting her mother with hands, which means that he did not attend school. In addition, during her cross examination at paragraph Nos.3 to 5, the 48 defence has suggested several omissions, but PW-2 Sarika has denied the same. However, the defence has not cross examined PW-14 - Hanamantagouda Patil and PW-17 Babalal Tatagar who have recorded the statement and further statement of PW-1 Mahaveer and PW-2 Sarika about these alleged omissions. In fact we have examined the statement and further statement of PW-1 Mahaveer and PW-2 Sarika and find that there are no such omissions and wantonly the defence has not brought these alleged omissions to the notice of the Investigating Officers and consequently have failed to establish that there are any such omissions in the testimony of these witnesses amounting to contradictions going to the root of the prosecution case.

35.9 It is argued by the learned counsel representing the accused that usually the house would be sweeped and water is sprinkled in the front yard during early hours of the day and the case of the prosecution that at around 11.30 a.m to 12.00 noon, deceased Sunanda was sweeping the house and PW-2 Sarika was sprinkling water to the front yard cannot be believed. What he said is the normal practice of the inmates, especially women folk. 49 However, there is no hard and fast rule that it shall be done in the early hours of the morning. Having regard to the fact that due to curfew, PW-1 Mahaveer and children were not attending school, deceased Sunanda and PW-2 Sarika may be laid back and doing the said chore belatedly. However, this itself would not make the prosecution case doubtful. Fact remains that when the incident took place deceased Sunanda and PW-2 Sarika were in the house and PW-1 Mahaveer who had gone out had just returned home.

35.10 The evidence of PWs-1 and 2 reveal that after intervention of Manik and others and on seeing Sunanda falling down unconscious, accused Nos.1 to 5 ran away from the spot taking the Babool sticks and the Butt end and Barrel portions of the gun. Thereafter, PW-2 Sarika went to the shop of Bahubali Budavi and called the Police. In response to the said call, PW-16 Vithal Jadhav and another constable came to the spot and shifted PW-1 Mahaveer and deceased Sunanda who were injured to the District Hospital, Belagavi. The evidence of PW-16 Vithal Jadhav corroborate with the testimony of PWs-1 and 2 on this aspect. During the course of his evidence, he has deposed that on 30.09.1993, 50 while he was the SHO of the Mal Maruthi P.S. at about 12.05 p.m. he received a call from PW-2 Sarika about assault of her parents by the accused persons with sticks and Butt end of the gun and requested him to come to the spot early. He along with constable Hanchinamani went on a motor cycle to the Alarwad village i.e., to the spot and found deceased Sunanda fallen on the ground in front of the house unconscious having sustained bleeding injuries and PW-1 Mahaveer has also sustained bleeding injuries and he was not in a position to talk. He has specifically stated that he and police constable went to the highway and stopped a truck carrying sand load, brought it to the spot and shifted injured PW-1 Mahaveer and his wife Sunanda to DistrictHospital, Belagavi for treatment and both of them were admitted to the hospital. He has also deposed that he informed P.S.I telephonically about the incident and after the arrival of the P.S.I, he went to the police station and made entry in the station house diary about the incident.

35.11 Even though this witness i.e., PW-16 is cross-examined at length, his entire cross-examination is directed whether when he went to the spot he made any enquires with the local persons about the incident, whether 51 he drew any mahazar at the spot; whether he took any instructions from the P.S.I as to what is to be done; whether he engaged any staff to guard the place of occurrence; whether he enquired from which phone number he received the call; whether on receipt of information, he made sure about the reliability of the said information; whether he drawn any panchanama at the place of occurrence before shifting the injured to the hospital. Of course he has answered all the questions in the negative. He has rightly deposed that having been informed about the complainant and his wife severally injured, his first and foremost duty was to shift them to the hospital. He has only received a cryptic information about the assault of these two persons by the accused persons and therefore he could not be expected to register a case based on the said information. As held by the Hon'ble Supreme Court in Animireddy's case, a report noted in the general diary could not be treated as a FIR and when an Officer incharge of a police station receives an information regarding occurrence of an offence, he is duty bound to reach the place of occurrence as early as possible. An information received in regard to commission of a cognizable offence is not required to be preceded by an FIR. 52

35.12 Rightly PW-16 has rushed to the spot along with another constable and shifted both injured to the hospital in a sand lorry. Of course he has denied the suggestion that PW-2 Sarika had informed him that her mother was injured in a quarrel with her father i.e., PW-1 Mahaveer and in order to help the complainant, concealing the said fact he is deposing falsely. His evidence establish the fact that around 12.05 p.m., i.e., immediately after the incident through telephonically from PW-2 Sarika, he received the information and he reached the spot in about 1 1/2 hours and after getting sand lorry he shifted PW-1 Mahaveer and his wife Sunanda to District Hospital at about 2.30 p.m. His evidence with regard to his arrival at the spot and finding Sunanda in a unconscious state in front of the house of complainant bleeding profusely and also PW-1 Mahaveer being injured and not in a position to speak has remained unchallenged despite lengthy cross-examination.

35.13 It is argued by the learned counsel for accused that the constable Hanchinamani who accompanied PW-16 Vithal Jadhav is not cited as witness and the statement of both PW-16 and the constable Hanchinamani 53 are not recorded by the Investigating Officer. It is relevant to note that normally the statement of official witnesses are not recorded, as they would not be witnesses to the incident and the part played by them would be forthcoming from the entries made in the station house diary and general diary. In fact PW-16 Vithal Jadhav is also not cited as witness. On the application filed by the learned Public Prosecutor, the Court has summoned him. Since the testimony of PW-16 prove the fact of shifting the injured to the District Hospital, Belagavi, we hold that non citing and examining of constable Hanchinamani is not fatal to the case of the prosecution. His evidence would be duplication of evidence of PW-16 Vithal Jadhav.

35.14 The learned counsel for accused vehemently argued and submitted that the prosecution case that PW-1 Mahaveer and deceased Sunanda were shifted in a sand lorry can not be believed. One cannot loose the sight of the fact that the incident took place during 1993, that too on a day when curfew was imposed. Therefore, what PW-16 Vithal Jadhav and the constable Hanchinamani could do to shift the injured at the earliest to the hospital was to get a vehicle 54 plying on the highway and shift them to the hospital. Looking to the seriousness of the injuries sustained by deceased Sunanda, it was the best option which was available to them and one cannot find fault with the same.

35.15 The defence has tried to make much out of the fact that while admitting PW-1 Mahaveer and deceased Sunanda to the District Hospital, the time of incident is stated as 11.00 a.m instead of 12.00 noon. In fact it is one of the grounds urged in support of the appeal filed by the accused persons. At the outset it is relevant to note that it was PW-16 Vithal Jadhav who admitted PW-1 Mahaveer and deceased Sunanda to the District Hospital. He is not an eye witness to the incident and as such he was not aware of the exact time at which the incident took place. Ex.P31 is the M.L.C book in respect of the admission of PW-1 Mahaveer and deceased Sunanda, wherein the time of incident is noted as 11.00 a.m. and the person who brought the injured is stated as head constable Vithal Jadhav buckle No.991 of Malmaruthi P.S who is PW-16. Therefore, in all probabilities he has given an approximate time of the incident. 55

35.16 However, the subsequent documents clearly state that the incident took place at about 12.00 noon and they corroborate with the testimony of PWs-1 and 2 with regard to the time of incident. In fact during the course of his evidence, PW-16 Vithal Jadhav has clearly deposed that he received the phone call at 12.05 p.m and it has come in the evidence of PWs-1 and 2 that immediately after the incident, PW-2 Sarika ran to the shop of Bahubali Budavi and called the police. From District Hospital, Belagavi, PW-1 Mahaveer and deceased Sunanda were shifted to K.L.E. Society Hospital by PW-3 Manik and he has given the time of incident as 12.00 noon and he has also given the cause of injury as assault by the accused persons. Ex.P13 is the medical record of deceased Sunanda at K.L.E Society Hospital.

35.17 PW-13 Dr Ishwar Ingalgi is the Medical Officer at District Hospital, Belagavi who examined PW-1 Mahaveer and deceased Sunanda when they were brought to the hospital. He has clearly deposed that they were brought by head constable 991 (who is examined as PW-16) and the time of the incident is given by him as 11.00 a.m. However, 56 PW-11 Dr.Somashekaraiah Pujar is the doctor who admitted PW-1 Mahaveer and deceased Sunanda on the same day at 4.10 p.m. at K.L.E. Society Hospital, Belagavi. He has clearly stated that they were brought by Manik who is examined as PW-3 and gave the history of injury as assault at 12.00 noon on 30.09.1993. Through him the case papers of the said hospital are produced and marked as Ex.P13 consisting of 34 pages. It is to be remembered that immediately after the incident, PW-1 Mahaveer and deceased Sunanda were shifted in a sand lorry to the District Hospital. Consequently, other persons were not able to travel with the injured apart from PW-16 Vithal Jadhav and another constable who had come on motor cycle. Therefore, in all probabilities PW-3 Manik the brother of the injured has reached later and has accompanied PW-1 Mahaveer and deceased Sunanda to K.L.E. Society Hospital and consequently has given the correct time of assault and also given the history of assault. Despite the fact that PW-3 Manik has turned hostile, the entries made at the K.L.E. Society Hospital at the earliest point of time based on the information given by him prove that PW-1 Mahaveer and deceased Sunanda were injured in an assault made by the accused persons. A witness may give 57 false evidence, however, records would not aid in the falsehood of the witnesses who have turned hostile. While admitting deceased Sunanda to K.L.E. Society Hospital, the history of injury is given as assault by brother-in-law (husband's brother) on 30.09.1993 at 12.00 noon.

35.18 PWs-1 and 2 have withstood the rigor of cross-examination. Their evidence is reliable, cogent, consisting and trustworthy. Inspite of their marathon cross- examination, the defence has failed to point out any discrepancy to doubt veracity of their evidence. Being an injured and being an eye witness and inmate of the house, the presence of PWs-1 and 2 is proved beyond reasonable doubt. Being the relatives and immediate neighbours of deceased Sunanda, PWs-1 and 2 and in the absence of establishing alibi at least by preponderance of probability by accused Nos.1 to 3, the prosecution has proved their presence at the place of occurrence when the incident took place. As held by the Hon'ble Supreme Court in Ramesh's case referred to supra, even in case of some of the witnesses turning hostile the Court is duty bound to examine the evidence of other witnesses and other evidence to ascertain 58 whether on such evidence, prosecution has proved its case. Despite the fact that PWs-3 to 6 have not supported the prosecution case and turned hostile, in the light of reliable and trustworthy evidence of PWs-1 and 2, we are of the considered opinion that the prosecution has proved the allegations against accused beyond reasonable doubt.

35.19 Ex.P14 is the wound certificate in respect of PW-1 Mahaveer, wherein also the history of injury is given as assault by his brother with stick at 12.00 noon on 30.09.1993. Ex.P25 is the admission record of PW-1 Mahaveer wherein his I.P.No. is 39983. PW-11 has specifically deposed that though PW-1 Mahaveer did not appears to have suffered grievous injuries, since he had suffered head injury and complained of giddiness, as a precautionary measure, he was also admitted to the hospital. While admitting both PW-1 Mahaveer and deceased Sunanda, PW-3 Manik being on an eye witness has correctly given the time of incident as 12.00 noon and in the light of the said information given by him, the entry made at the District Hospital that the incident took place at 11.00 a.m. which is not based on eye witness account is to be ignored and no weight could be attached to it.

36. Treatment at District Hospital, Belagavi: At the relevant point of time PW-13 Dr.Ishwar Ingalgi was working as Medical Officer, District Hospital, Belagavi. His evidence prove that on 30.09.1993, at 2.25 p.m injured Sunanda Mahaveer and PW-1 Mahaveer were brought to the said hospital with the history of assault having taken place at 11.00 a.m. We have already clarified the entry regarding the time of incident being noted at 11.00 a.m. instead of 12.00 noon in the foregoing paras.

36.1 PW-13 has deposed that Sunanda Mahaveer was unconscious, bleeding present through wounds. She was admitted in the emergency ward for management and treatment and he found the following external injuries on her person:

"1) Lacerated wound over right side of the chin 3 cms x 1 cm, bleeding present.

2) Black eye on right side present.

3) Lacerated wound on the left outer canthus on the left eye, 3 x 4 cms, bleeding present.

4) Lacerated wound on right parietal region oblique in nature, 4 cm x 1 cm, bleeding was present

5) Lacerated wound on left parietal region oblique 3 cm x 1 cm."

36.2. So far as PW-1 Mahaveer is concerned PW- 13 has deposed that his general condition was good and he was admitted for further management and treatment. He has in detail noted all the injuries including tenderness. The following injuries were noted by him on his person:

"1) Abrasion right eye-brow on medial side 0.5 x 0.5 cms.

2) Contusion on the right side of the frontal region 4 x 2 cms.

3) Lacerated wound on right parietal region 2 cms x 0.5 cm.

4) Abrasion left side of the fore arm on the dorsal aspect, 10 cms x 1 cm.

5) Abrasion right knee, 3 cms x 1 cm

6) Abrasion right leg 6 cms x 0.5 cms.

7) Abrasion left knee joint.

8) Contusion right side of the chest posteriorly 6 cms x 1 cm

9) Tenderness present right side of the chest

10) Tenderness present over the thorasic spine at T-6, T-7 and T-8."

36.3 The M.L.C. register pertaining to deceased Sunanda and PW-1 Mahaveer is produced and marked as Ex.P31 and the relevant entries are at Ex.P31(a) & (b). Before the Court, he has examined MOs.1 to 4 and opined 61 that the injury sustained by both deceased Sunanda and PW- 1 Mahaveer are possible if assaulted with them. He has specifically stated that Sunanda was discharged against medical advise. However, during the course of his evidence, PW-14 Hanumantha Gouda Patil who has conducted initial investigation has stated that since the condition of Sunanda was very serious and proper treatment was not available at District Hospital, Belagavi, he was advised to shift her to a higher centre and therefore, he shifted Sunanda to K.L.E. Society Hospital.

36.4 It is not in dispute that through out Sunanda remained unconscious. The facilities which are available at K.L.E. Society Hospital which is a higher centre, were not available at District Hospital. It appears to play safe, the Doctors at the District Hospital, Belagavi have made entry to the effect that she was discharged against medical advise. Anyhow fact remains that Sunanda needed further treatment and therefore, she was shifted to K.L.E. Society Hospital. Along with her PW-1 Mahaveer was also treated at the said Hospital. Of course PW-13 has denied that he did not find 5 injuries on the person of Sunanda and 62 10 injuries on the person of PW-1 Mahaveer as noted in Ex.P-31(a) & (b). The entries in Ex.P-31(a) & (b) are made at the earliest point of time when both injured were admitted to District Hospital by PW-16 Vithal Jadhav and we find no reason to suspect that PW-13 had any reason to note injuries other than those which were found on the person of the injured. The testimony of PW-13 prove the fact that by 2.25 p.m. both injured were at the District Hospital, Belagavi.

37. Treatment at K.L.E.Society Hospital, Belagavi PW-11 Dr.Somashekhariah Pujar is the casualty Medical Officer at K.L.E. Society Hospital, Belagavi. He has deposed that on 30.09.1993, at about 4.10 p.m injured Sunanda was brought by PW-3 Manik and PW-1 Mahaveer, with the history of assault at 12.00 noon on the same day and he found the following external injuries on her person:

"1) Multiple contused lacerated wounds on the head face i.e., 1 1/2: x scalp deep and 2" x scalp deep on left parietal region of head. 2" x muscle deep on submental region of face, blood clots were present, 1 1/2" x bone deep, 1/2" x 1/4" on both eye brow regions.

2) Both black eyes - Reddish brown in colour and was unconscious.

3) Cerebral contusion at left temporal lobe -

laceration of the brain was present.

4) Crepitus felt on mental region of face i.e., fracture mandibular bone present clinically." 37.1 He has opined that all the injuries were grievous in nature and could be caused by blunt object and age of injuries was within 12 hours. She was admitted to Intensive Care Unit and she succumbed to the injuries on 02.10.1993 at about 11.00 p.m. The case papers pertaining to her are produced and marked at Ex.P13 (34 pages).

37.2 Speaking with regard to PW-1 Mahaveer, PW-11 has deposed that he was also brought with the history of assault and he found the following external injuries on his person:

"1) Contused lacerated would of 1 1/2" x scalp deep on vertex region of head, bleeding clots were present.

2) Graised abrasion 1" x 1/2" on left leg shin bone, blood clots were present."

37.3 PW-11 has deposed that the injuries suffered by PW-1 Mahaveer were simple in nature, age was within 12 hours and could be caused by hard and blunt object. The wound certificate of PW-1 Mahaveer is marked as Ex.P14.

37.4 PW-11 has also examined MOs-1 to 4 and given opinion at Ex.P15 to 20 as to whether the injuries sustained by deceased Sunanda and PW-1 Mahaveer are possible if assaulted with them.

37.5 It is pertinent to note that at the first instance, when PW-11 was examined, he produced only the medical records pertaining to deceased Sunanda. Therefore, he has been cross examined at length suggesting that PW-1 Mahaveer was never treated at K.L.E Society Hospital and that injury certificate at Ex.P29 pertaining to him was issued without he being treated at the said Hospital and it was issued at the instance of one Ashok Paris Badavannanavar. Of course PW-11 has denied these suggestions. Later, the records of the K.L.E Society Hospital pertaining to treatment of PW-1 Mahaveer as out patient as well as in patient are produced. Ex.P-24 is the MLC Register, Ex.P-25 is the admission record, Ex.P-26 is the MLC Report dated 30.09.1993 when he was admitted to Hospital and Ex.P-27 is the MLC Report dated 02.10.1993 when PW-1 Mahaveer was discharged from the Hospital, Ex.P-28 is the in patient bill of PW-1 Mahaveer.

37.6 These documents establish the fact that along with deceased Sunanda, PW-1 Mahaveer also took treatment at K.L.E Society Hospital and as evident from testimony of PW-11, since he complained of giddiness and as he also suffered head injuries, he was admitted to the Hospital as a precautionary measure. Moreover, having regard to the serious injuries sustained by the deceased Sunanda and she was in an unconscious state through out, it is quite natural that PW-1 Mahaveer would also accompany her to the K.L.E Society Hospital. In fact, his presence at the K.L.E Society Hospital is forthcoming in Ex.P-29, the wound certificate of deceased Sunanda.

37.7 As evident from the testimony of PW-11, deceased Sunanda was brought to the K.L.E Society Hospital by PW-3 Manik and her husband i.e., PW-1 Mahaveer. As discussed earlier, since she was fatally injured and was unconscious through out, and when compared to her, the injuries suffered by PW-1 Mahaveer was not fatal, it is but natural that PW-1 Mahaveer also accompanied her to the K.L.E Society Hospital. Since he was also injured, he has taken treatment and after he complained of giddiness, he 66 was admitted to the Hospital as in patient. The documents at Ex.P-14, 24 to 28 are the medical records in respect of PW-1 Mahaveer having taken treatment as in patient.

37.8 Since both of them were brought at the same time, rightly PW-11 has deposed that he has seen deceased Sunanda and PW-1 Mahaveer at the same time. As both of them are not referred to by the District Hospital, it is noted that they were discharged against the medical advice. Based on the statement of PW-3 Manik and PW-1 Mahaveer, the fact of they were treated at the District Hospital is noted in the records of K.L.E Society Hospital. Moreover, the evidence of PW-11 reveal that both were bandaged. On that basis also the doctors at K.L.E.Society Hospital were able to ascertain that they were already treated at some other Hospital. At the earliest and undisputed point of time, these entries have been made and there is nothing to suspect the veracity of these entries. Right from the beginning it is the definite case of the prosecution that both deceased Sunanda and PW-1 Mahaveer were assaulted by accused Nos.1 to 5 who are the known persons and relatives of the injured. At the earliest point of time, they were admitted to the Hospital and the fact of history of assault is also noted. 67

37.9 Therefore, there was nothing for the complainant, PW-3 Manik and PW-16 who is an unrelated witness to fabricated false story against accused persons. Ex.P-26 MLC report reveal that PW-1 Mahaveer was admitted to Hospital on 30.09.1993, Ex.P-27 which is also MLC Report reveal that he was discharged from the Hospital on 02.10.1993. These documents falsifies the suggestion made to PW-1 that Ex.P-14 is issued without PW-1 Mahaveer being treated at the casualty ward as well as the OPD of K.L.E Society Hospital. PW-11 is cross examined at length as to the nature of the injuries sustained by both PW-1 Mahaveer and deceased Sunanda. Having regard to the specific defence taken by the accused that Sunanda was assaulted by PW-1 Mahaveer with the Butt end of the gun, and that in the process, PW-1 also fell down and sustained injuries, these suggestions would not assume much importance.

37.10 In the light of the documents produced at Exs.P-24 to 28, the suggestion made to PW-11 that PW1 was never treated as in patient at K.L.E Society Hospital is also incorrect. The evidence of PW-11 that since PW-1 had sustained injury on the vertex and he felt giddiness, he was 68 admitted to Surgical ward for observation, also justify the admission of PW-1 in the Hospital. Moreover, when his wife was in serious condition and admitted to the Hospital and in the same incident, PW-1 sustaining injuries to the head, it is but natural for the Doctors to admit him to the Hospital as precautionary measure.

37.11 PW-11 is cross-examined at length suggesting that having regard to the allegations made against the accused and the weapons used, in all probabilities, PW-1 Mahaveer would have sustained fractures. On this aspect, PW-1 has deposed that this fact depends on the force with which the person has been assaulted. It appears since PWs-1 to 3 mainly concentrated on assaulting the deceased Sunanda and in the process also assaulted PW-1 Mahaveer, he has received less grievous injuries than deceased. However, that itself would not falsify the case of the prosecution that he was also assaulted with MOs.1 to 4. PW-11 has clearly deposed that since the injuries were crushed i.e., the edges were crushed, but they were not clean cut, he has described them as CLW (contused lacerated wound).

37.12 PW-11 has also denied that since the injuries were dressed he could not make out the nature of injuries and specifically deposed that he removed the dressing and examined the nature of the injuries. When both PW-1 Mahaveer and deceased Sunanda were admitted to the Hospital for further treatment, it is but natural for the Doctors to remove the earlier dressing and proceed with the treatment. Therefore, in MLC Register, the fact of removal of dressing is not noted would not mean that the dressing was not removed and no treatment was given. Of course he has admitted that injury Nos.1 and 2 as noted in Ex.P-14 i.e., the wound certificate of PW-1 Mahaveer are possible if a person comes in contact with hard and irregular surface like stone etc. However, that itself would not disprove the case of the prosecution that PW-1 Mahaveer was assaulted by PWs-1 to

3. The overwhelming testimony of PWs-1 and 2 prove the said fact.

37.13 Time and again suggestions are made to PW-11 that at the instant of one Ashok Paris Badavannanavar, he has issued false certificates. The defence has not proved who this Ashok Paris 70 Badavannanavar and in what way he influenced the Doctors and how his name is relevant to this case, especially when the defence has not made any suggestions to PWs-1 and 2 regarding the said Ashok Paris Badavannanavar. Ex.P-28 is the bill pertaining to PW-1 Mahaveer for a sum of Rs.813/- and the bill pertaining to Sunanda is part and parcel of the medical records in Ex.P-13 which is for a sum of Rs.2,615/- and the same has been paid. Therefore, the suggestion made to PW-11 that since the payments were not made in respect of the treatment of Sunanda and PW-1 Mahaveer, the Hospital did not take proper care and due to medical negligence, Sunanda died is incorrect. Of course it is very absurd suggestion to make that because initially, credit facility was availed, the Hospital authorities were negligent in treating Sunanda.

37.14 As the accused have taken up a contention that at the time of the incident, PW-1 suffered Epilepsy and in the said condition, he assaulted Sunanda with the Butt end of the gun, defence has chosen to cross examine PW-11 on this aspect. In this regard, PW-11 has stated that Epilepsy is not a mental illness but it is a disease. He has 71 stated that Epilepsy is an abnormal electrical discharge of neuron. He has deposed that Epilepsy means patient will have an abnormal behaviour and it is a temporary feature. He has specifically denied that in case of attack of Epilepsy, one will be more pro active, but admitted that person will not be knowing nature of his acts sometimes. He has deposed that if a man breaks the gun in an angry mode, it is only an emotional act. In case of Epilepsy, the person will be loose control over his body and is under seizure. Such being the case, it cannot be accepted that after suffering epileptic attack, PW-1 Mahaveer would go upstairs, bring a gun, break it and assault his wife. In fact in an Epileptic attack, the person will be invariably fallen on the ground and till the seizure is terminated, he will not be in a position to hold anything, even stand let alone go to upstairs, bring a double barrel gun, break it and assault his wife. Therefore, the suggestion of the defence that PW-1 Mahaveer assaulted his wife under an attack of Epilepsy is farfetched and imaginary and cannot be accepted.

37.15 At para 15 of his evidence, PW-11 has clearly denied the suggestion that when Sunanda was 72 brought to the casualty ward of K.L.E. Society Hospital, PW-1 was not there. He has also denied that he is falsely deposing that the history of assault was given by PW-3 Manik, the elder brother of PW-1 Mahaveer. The testimony of PW-11 clearly establish the fact that Sunanda was brought to the Hospital at 4.10 p.m and she was accompanied by PW-1 Mahaveer and PW-3 Manik. PW-11 has vehemently denied the suggestion that since post operative care was taken by the PG students, there was negligence resulting in her death. He has also denied that the death of Sunanda was due to excess administration of anaesthesia. He has denied that the injuries noted in Ex.P-29 are different from the injuries noted in the PM examination. So far as the injuries noted in the PM report, we would discuss little later.

37.16 PW-11 has specifically denied that injury suffered by deceased Sunanda are possible due to fall. As evident from the medical records deceased Sunanda had sustained number of injuries including multiple contused lacerated wound i.e., she sustained lacerated wound on the left parietal region, right parietal region, left outer canthus on the left eye, mental region (chin) and her both eyes were 73 black. Having regard to the nature of these injuries and their location, it is highly improbable that she would sustain such multiple injuries due to fall.

37.17 A suggestion is made to PW-11 that an injury could be caused to the brain even without there being a fracture. He has admitted that he did not notice any injury to the skull of the deceased but there was fracture of mandibal bone. He has denied that a CLW i.e., contused lacerated wound could be caused by a sharp edged weapon. He has denied the suggestion that he is falsely deposing that injury No.3 of Ex.P-9 i.e., cerebral contusion (left temporal lobe laceration of brain) is fatal. He has denied that due to medical negligence, deceased Sunanda died and she would have survived had she got better treatment. He has also denied that if during an altercation between the husband and wife, if one is dashed against a wall, injuries mentioned in Ex.P-29 are possible. Though time and again, suggestions are made to PW-11 that PW-1 Mahaveer was not treated at K.L.E Society Hospital, no suggestions are made to him on this aspect. Ex.P-28 falsifies the suggestion that there are no medical bills to show that PW-1 Mahaveer was treated at the 74 K.L.E Society Hospital. Based on inpatient record though PW- 11 has deposed that he saw PW-1 Mahaveer on 30.09.1993 at 7.10 p.m and his general condition was better, his evidence reveal that when Sunanda was brought to K.L.E Society Hospital at 4.10 p.m., PW-1 was present with her.

37.18 PW-11 has admitted that when Sunanda was brought to the casualty ward, he did not receive any requisition from the concerned Police. It is relevant to note that the complaint came to be lodged at 5.30 hours and as Sunanda was admitted at 4.10 p.m., there was no occasion for the concerned Police to give any requisition. Except the fact that PW-16 Vithal Jadhav shifted the injured Sunanda and PW-1 Mahaveer to the Hospital on being informed by his daughter, in the absence of registering the case, till the complaint was lodged at 5.30 p.m., there was no occasion for the concerned Police to give any requisition. He has specifically deposed that injury Nos.2 and 3 noted in Ex.P-29 are fatal. Injury No.3 is not an external injury. He has denied that casually he has written in the wound certificate at Ex.P29 that Injury No.3 was a cerebral contusion, but it has been written on clinical examination and operative findings. He has denied that Injury No.2 is not an injury as such. 75

37.19 Now coming to the nature of treatment given to the deceased at K.L.E. Society Hospital. As evident from Ex.P13 which are the papers regarding the treatment given to her consisting of 34 pages. The out patient record of K.L.E.Society Hospital noted at 4.10 p.m on 30.09.1993 state that the patient was brought with the history of assault by her husband's brother Bhimappa at 12.00 noon today i.e., on 30.09.1993, in which she has suffered injury to her head, face and became unconscious following injury and not recovered till now. The following injuries were found on her person:

Multiple CLWs (5) in number

1. Two on scalp of head i.e., 1-1/2 x scalp deep 2" x scalp deep - blood clot +

2. both eyebrow region i.e., (L) 1-1/2 skin deep (R) 1/2 x 1/2" blood clot +

3. 2" x muscle deep on sub mental [below the chin] region of the face blood clots+

4. Both black eyes - redish brown in colour.

(dressed wounds present on face) 37.20 As per the admission record, deceased Sunanda was admitted as in-patient No.39979. At the 76 admission, the injury sustained by her is diagnosed as 'Cerebral contusion and Epi-phenomenon'. The history of injuries is given as assault on 30.09.1993 at 12.00 noon.

37.21 In the summary sheet, the following injuries were noted:

     (i)     Bilateral black eye (+)

     (ii)    C.L.Ws one in the left parietal region 1½ x ½"

(iii) One over lateral angle of right eye ½" x ½"

     (iv)    C.L.W below the chin 1 x ½"


     37.22        The history state that the injured was

brought with history of assault at 12.00 noon by brother-in- law (husband's brother) on 30.09.1993. This page also states about the injuries with diagnosis as cerebral contusion with multiple cut lacerated wounds.

37.23 Before the operation at 6.00 p.m. in the progress record and treatment sheet, it is noted that "in view of incomplete history and now patient is showing left dilated pupil? (R) haemiplagia?, CAT scan cannot be done here and therefore the patient is to be taken for burrhole". 77

37.24 The progress record and treatment sheet noted at 6.00 p.m. on 30.09.1993 state that "the case was seen by Dr.S.S.Mahanthashetti and on examination he found that there is pupilary asymmetry (dilation on left side) and (R) Hemiparesis, it was explained to the relatives that patient requires CT scan to rule out intra-cerebral contusion, which is not available in the said hospital and it would take a minimum of 12 hours to get it done. In view of laceration signs patient is being taken for exploratory burrhole SOS craniotomy and will be of help, if there is any extra dural hematoma. It will not be of much help if intra cerebral hematoma convulsion." Thus, having regard to the emergency and as there was no chances of getting the CT scan done, the patient was subjected to surgery by way of burrhole and the haematoma was removed.

37.25 The operation record state that the pre- operative diagnosis is Cerebral contusion with Epi- phenomenon. The post operative diagnosis is noted as left temporal cerebral laceration. The operation conducted is left sided sub-temporal craniotomy with burrhole. The operation was started at 8.00 p.m. and completed at 9.30 p.m. The 78 findings and procedure state that the patient was given general anasthesia in suphine position. The part was painted and draped. Cerebro spinal fluid leak was found from throat indicating that there was injury to the brain. Left temporal and parietal wound debridment was done. Left temporal bone fracture present. Two burrholes were placed over left temporal and parietal bone (AC - ED & P -#) [auditory canal

- ethmoid & parietal fracture] The two burrholes were joined. Minimal blood clot was aspirated [removed by suction]. The Dura was opened and minimal accute subdural haematoma was aspirated. Left temporal pole laceration seen. Haemostasis achieved [bleeding was controlled] and wounds closed in layers. It also state that patient withstood the surgery well.

37.26 The condition of the patient after surgery and post operative details goes to show that for full two days the patient survived though continued to be unconscious and ultimately on 02.10.1993 at 11.00 p.m. she expired.

37.27 In the medical certification of death, the cause of death is stated as "left sided temporal cerebral laceration (two days). The cerebro spinal fluid leak and it is homicidal in nature".

37.28 Thus, the record maintained at the K.L.E.Society Hospital regarding the treatment given including the operation conducted goes to show the details of the treatment and the condition of the deceased Sunanda was very serious and having regard to the same, a limited burrhole surgery was conducted to remove the haemotoma and in fact patient survived for two full days. In this case the prosecution has not examined the Neurosurgeon who conducted the operation. However, whatever treatment he has given is forthcoming from the records and it is not in dispute that such a procedure was conducted. Since the patient did not survive and later on she was subjected to PM examination, wherein the cause of death is ascertained, the non-examination of the Neurosurgeon is not fatal to the case of the prosecution.

38. Complaint and registering of case: While injured Sunanda and PW-1 Mahaveer were taking treatment at the K.L.E.Society Hospital, PW-14 Hanumanthagouda Patil, PSI has registered the case based on written complaint at Ex.P1 given by PW-1 Mahaveer. The evidence of PW-14 reveal that he tried to record the statement of deceased 80 Sunanda while she was at District Hospital, and K.L.E.Society Hospital, Belagavi. As she remained unconscious right from the beginning till her end, her statement could not be recorded. After initial treatment at K.L.E.Society Hospital, based on written complaint given by PW-1 Mahaveer, he registered the case and transmitted the FIR at Ex.P10 to the Court. In fact the evidence of PW-1 Mahaveer corroborate with this, wherein at page-3 of his deposition he has stated that at 5.00 p.m. while undergoing treatment he gave complaint as per Ex.P1 and his signature is at Ex.P1(a).

38.1 PW-9 Venkappa Hongal, Constable attached to Mal Maruthi P.S has transmitted the FIR to the Court and handed over to the jurisdictional Magistrate. He has deposed that on 30.09.1993 at 6.30 p.m he was given the FIR and he went to the residence of jurisdictional Magistrate and handed over the same at 7.15 p.m. In this regard he had submitted report as per Ex.P11. The endorsement made by the jurisdictional Magistrate on complaint at Ex.P1 and FIR at Ex.P10 prove the fact that it was received by him at 7.15 p.m. The cross-examination of PW-9 reveal that the residence of jurisdictional Magistrate was at a distance of 3 81 kms from the police station. Having regard to the fact that the complaint was given at 5.00 p.m, case was registered at 5.30 p.m, FIR was transmitted at 6.30 p.m and it has reached the jurisdictional Magistrate at 7.15 p.m. within a reasonable time, there is no delay. PW-14 has denied that PW-1 Mahaveer was not at the K.L.E.Society Hospital till 7.00 p.m and he has specifically deposed that he was there.

38.2 As already discussed by us as per the out patient record, deceased Sunanda was at K.L.E.Society Hospital at 4.10 p.m and she was accompanied by PW-3 Manik and PW-1 Mahaveer, the presence of PW-1 Mahaveer at K.L.E.Society Hospital by 4.10 p.m. is established. Since PW-1 Mahaveer was admitted as in-patient at 7.00 p.m, the records reveal the said time. However, the evidence of PW- 11 Dr.Somashekhariah Pujar prove that at 4.10 p.m he examined deceased Sunanda and thereafter he has examined PW-1 Mahaveer. Therefore, there is no substance in the say of defence that there was delay in registering the case and it is an after thought cannot be accepted. In view of the evidence of PWs-1 and 2 of whom PW-1 Mahaveer was also an injured, at the earliest point of time the involvement 82 of accused Nos.1 to 5 is revealed. It is not a case where the identity of the assailants is not known and as such the prosecution gained advantage by registering the case at a later stage by anti timing the complaint and FIR.

38.3 The evidence of PW-14 reveal that after registering the case, he visited the spot, recorded the statement of PW-2 Sarika, searched for the accused without any success, deputed the staff to guard the scene of occurrence. On the next day i.e., on 01.10.1993, in the presence of panchas drew spot mahazar Ex.P5 and collected blood stained earth, sample earth, wooden handle of the gun, a leather belt used to tie the gun at MOs-10 to 13. The independent witness to the said mahazar viz., PW-6 Arjun Kattimani has not supported the prosecution case. However, the evidence of PW-14 prove the spot mahazar. As already discussed the prosecution proved beyond reasonable doubt that the place of incident is front yard of the house of PW-1 Mahaveer. At the same time the defence has failed to probabilise that the place of incident was inside the house of PW-1 Mahaveer and deceased Sunanda.

38.4 While undergoing treatment deceased Sunanda succumbed to the injuries. PW-14 has deposed that on 30.09.1993, while he was at the police station, at 7.15 a.m. he received information from K.L.E.Society Hospital, Belagavi that Sunanda succumbed to the injuries on 02.10.1993 at 11.00 p.m. Therefore, he sent a requisition to the jurisdictional Magisrate to change the Section from 307 I.P.C to 302 I.P.C. and handed over further investigation to PW.17 Babalal Tatagar, Circle Inspector.

38.5 PW-17 has conducted inquest on the dead body of deceased Sunanda as per Ex.P9. PW-7 Sudha Chougale is a witness to the inquest, but she has not supported the prosecution case and turned hostile. However, the evidence of PW-17 prove the inquest. He has deposed that during the inquest he noticed as many as 10 injuries as detailed therein, including peeling of skin on the forehead at two places at a distance of 1 inch apart. PW-7 has deposed that during inquest he has recorded further statements of PW-1 Mahaveer, PW-2 Sarika and others and sent the dead body to PM Examination. Much is made out of the fact that during inquest the investigating officer has recorded 10 84 injuries where as the other medical record indicate only 5 injuries.

38.6 A suggestion is made to PW-17 the Investigating Officer who has conducted the inquest that without actually observing the dead body, he has noted 10 injuries in the inquest panchanama. Of course, he has denied the same. As evident from the medical record, in addition to suffering major five injuries, deceased has also sustained multiple CLWs and in the inquest at Ex.P-9, the Investigating Officer has individually noted them and as such, 10 injuries are noted in the inquest.

39. Post Mortem examination of deceased Sunanda: PW-18 Dr.Rameshbabu Javali has conducted PM examination. It is pertinent to note that at the first instance prosecution did not chose to examine this witness, on the ground that his whereabouts were not known. For this reasons, through the evidence of PW-13 Dr.Ishwar Ingalagi, the prosecution got marked the PM report at Ex.P32 based on his ability to identify the signature of Dr.Rameshbabu Javali. As already discussed at the first instance, the trial Court acquitted the accused, which was challenged in 85 Crl.A.No.417/2004. While remanding the case the Co- ordinate Bench of this Court directed the trial Court to summon the doctor who conducted the PM examination. Consequently, after remand the prosecution has summoned him and he is examined as PW-18.

39.1 During the course of his evidence PW-18 Dr.Rameshbabu Javali has deposed that at the request of concerned police and as per the directions of the District surgeon, he has conducted post mortem examination on the dead body of deceased Sunanda on 30.09.1993 and found the following injuries on her person:

1) vÀ ÉAiÀÄ ªÉÄÃ É CAzÀgÉ §®Q«AiÀÄ ªÉÄÃ ÁãUÀzÀ°è 2 EAZÀÄ GzÀÝzÀ ºÉÆ°UÉ ºÁQzÀ UÁAiÀÄ.

2) vÀ ÉAiÀÄ ªÉÄÃ É CAzÀgÉ JqÀQ«AiÀÄ ªÉÄÃ É 5 EAZÀÄ GzÀÝzÀ ºÉÆ°zÀ UÁAiÀÄ.

(ªÉÄÃ°£À JgÀqÀÄ ºÉÆ°UÉUÀ¼ÀÄ ±À¸ÀÛç aQvÉì ªÀiÁr ºÁQzÀÝAvÀºÀ ºÉÆ°UÉUÀ¼ÁVzÀÝªÀÅ. vÀ ÉAiÀÄ ªÉÄÃ É JqÀV«AiÀÄ ªÉÄÃ ÁãUÀzÀ°è DzÀ UÁAiÀÄUÀ¼À M¼À¨sÁUÀzÀ°è «ÄzÀÄ¼ÀÄ ºÀjzÀÄ ºÉÆÃVvÀÄÛ. CzÉÃ ¨sÁUÀzÀ°è «ÄzÀÄ¼ÀÄ dfÓ ºÉÆÃVvÀÄÛ.]

3) JgÀqÀÄ PÀtÄÚUÀ¼ÀÄ PÀ¥ÁàVzÀÝªÀÅ. PÀtÄÚUÀ¼À M¼ÀUÀqÉ CwÃ ºÉaÑ£À gÀPÀÛ ¸ÁæªÀªÁVvÀÄÛ.

4) UÀzÀÝzÀ ªÉÄÃ É 1 EAZÀÄ GzÀÝ ªÀÄvÀÄÛ CzsÀð EAZÀÄ ºÉÆ°zÀ UÁAiÀÄªÁVvÀÄÛ.

5) vÀ É §ÄgÀÄqÉAiÀÄ ªÀÄÄA¨sÁUÀzÀ°è ¥ÀÆwðAiÀiÁV ªÀÄÆ¼É ªÀÄÄjzÀÄ ºÉÆÃVvÀÄÛ.

£À£Àß C©ü¥ÁæAiÀÄzÀ°è vÀ É§ÄgÀÄqÉ ªÀÄÆ¼É ªÀÄÄjzÀÄ ºÉÆÃV, JqÀ§¢AiÀÄ «ÄzÀÄ¼ÀÄ ¥ÀÆwð dfÓ ºÉÆÃV ªÀÄvÀÄÛ CwÃ gÀPÀÛ ¸ÁæªÀ¢AzÀ ªÀÄvÀÄÛ £ÀgÀUÀ½UÉ DzÀ DWÁvÀ¢AzÀ ªÀÄÈvÀ¼À ªÀÄgÀt GAmÁVzÉ.

39.2 He has given his opinion that the death has occurred in between 12 to 24 hours prior to the PM examination on account of the injury Nos.2 and 5 and also due to to hypovolemic and neurogenic shock, as a result of injury sustained by her. He has issued P.M report at Ex.P32. His signature is marked at Ex.P32(a). He has specifically deposed that the injury suffered by the deceased are possible if assaulted by sticks, Butt portion of the gun and such injuries are sufficient to cause the death of a person.

39.3 It is pertinent to note that PW-18 Dr.Rameshbabu Javali is cross-examined at length suggesting that as a General Surgeon he is not competent to conduct post mortem examination and it is only the Forensic Pathologist who is competent to conduct the post mortem examination. It is also suggested to him that he was not at all authorised by the police or the District Surgeon to conduct the PM examination and he on his own has ventured into the same. A suggestion is also made to him that he did not go through the records regarding the treatment given to 87 the deceased Sunanda while she was treated at District Hospital and K.L.E.Society Hospital. Of course he has denied these suggestions. The answers given during his cross- examination reveal that after the death, the dead body of Sunanda was shifted to District Hospital, Belagavi. The concerned police have given requisition to the District Surgeon who was the administrative head of the said hospital. He in turn has directed PW-18 Dr.Rameshbabu Javali to conduct the PM examination. Of course at the time of his evidence, PW-18 Dr.Rameshbabu Javali has not produced the said requisition and authorisation. In fact the address of this witness while giving evidence indicate that he is working as Professor at Kuppam, Andhra Pradesh and he could not anticipate the defence going to the extent of disputing his authority to conduct the post mortem examination and produce documents after lapse of 19 years.

39.4 As evident from the caption under which the said information is given, in the PM report, he has noted the crime number and provision of the offences for which the case was registered and also the fact that deceased Sunanda was assaulted with hard and blunt object, based on the 88 information available in the requisition of the police. The very answers given by this witness regarding the details of the treatment given at K.L.E.Society Hospital including the surgery under went by the deceased goes to show that he has gone through the records. Therefore, the cross- examination of PW-18 Dr.Rameshbabu Javali that he was not competent, that he was not authorised to conduct PM examination and he did not go through the records cannot be accepted. As a Medical Officer working in the District Hospital, he was competent to conduct the PM examination.

39.5 It is pertinent to note that all the injuries found on the person of deceased Sunanda as noted in the PM report, except the injury No.5 i.e., fracture of skull i.e., Anterior Cranial Fossa (vÀ¯É §ÄgÀÄqÉAiÀÄ ªÀÄÄA¨sÁUÀ ¥ÀÆwðAiÀiÁV ªÀÄÄjzÀÄ ºÉÆÃVzÉ) are forthcoming in Ex.P31 - the relevant entry at Ex.P31(a) of District Hospital, Belagavi, the out patient record, the summary sheet, the history sheet dated 30.09.1993 - which are part of Ex.P13, MLC register at Ex.P30 and also Wound certificate at Ex.P29 dated 14.01.1994 issued by K.L.E.Society Hospital, Belagavi. 89 Taking advantage of the fact that injury No.5 of the PM report is not forthcoming in the earlier records, the accused have tried to set up a defence that this injury which is also termed as fatal was not caused during the assault on the deceased Sunanda and it is caused due to medical negligence. At the same time the defence is trying to make out a case that this injury was caused during post mortem examination. A suggestion is also made to PW-18 Dr.Rameshbabu Javali that deceased Sunanda had a natural dent on her forehead and such injury is possible if a person carry heavy load on his/her head throughout life. Of course PW-18 has denied the suggestions that injury No.5 of PM report is either caused due to medical negligence or occurred at the time of PM examination or naturally found on the person of deceased.

39.6 As already discussed during the cross- examination of PW-11 who is the Medical Officer of K.L.E.Society Hospital, several suggestions are made that there was medical negligence while treating the deceased Sunanda, including when she was operated upon and her death was a result of medical negligence. Of course he has 90 denied the said suggestion. During the cross-examination of PW-18 a suggestions is made that Sunanda was operated at 10.00 p.m and she expired at 11.00 p.m, which he has admitted. This suggestion is made as though to indicate that she died within one hour of her operation and thereby there was negligence on the part of the Doctors who operated on her. However, as evident from the medical records, Sunanda was operated on 30.09.1993 at 10.00 p.m and she expired on 02.10.1993 at 11.00 p.m. She survived for whole two days. Hence, there is no substance in the contention of the defence that there was any medical negligence.

39.7 At the outset it is relevant to note that injury No.5 of the PM report is not an external injury. Consequently, it was not visible from outside. In fact PW-18 Dr.Rameshbabu Javali has denied the suggestion that when there is fracture of bone, there must be injury on the scalp, he has volunteered and stated that there can be fracture to the skull without injury to the scalp, but admitted that in that case there can be swelling of the scalp. This explains as to why none of the doctors were able to note the fracture of the skull which is injury No.5 of PM report at Ex.P32. 91

39.8 As discussed earlier except injury No.5 of Ex.P32 PM report, the rest of the injuries are forthcoming in the medical records throughout. The records pertaining to the operation clearly indicates that the lacerated wound on the left parietal region was the one where the operation was conducted i.e., burrhole surgery for removal of haemotoma. Consequently, during his cross-examination PW-18 Dr.Rameshbabu Javali has denied that injury No.1 of Ex.P32 i.e., lacerated wound on right parietal region is also an operative wound and it was not there when the deceased Sunanda was admitted to the District Hospital as well as K.L.E.Society Hospital. He has denied that death was due to not providing proper treatment and that he has not correctly noted the condition of the other organs and that deceased had suffered lung infection (pneumonia).

39.9 Though during his cross-examination PW-18 Dr.Rameshbabu Javali has stated that injury on the scalp above the left ear (which is described as laceration on the left parietal region), is an operation wound, the earlier records reveal that the said injury was there when deceased Sunanda was admitted to District Hospital. So far as not 92 finding sub dural or extra dural haemorrage at the sight of operation, PW-18 Dr.Rameshbabu Javali has explained that as it was removed through surgery he did not find it. He has also stated that since there was complete laceration of brain, it was not possible to identify such rupture in the left lobe. He has admitted the suggestion that when there is laceration of brain, certainly there would be fracture of the skull and volunteered that he has mentioned the same in the first column. Though he has stated that brain laceration can be detected in CT Scan, he has explained that the said facility was not available at that time i.e., during 1993.

39.10 Explaining what is "Fossa", PW-18 Dr.Rameshbabu Javali has deposed that "Fossa" is a pit or depression or cavity. The accused have also taken up a defence that deceased Sunanda had natural depression in the anterior cranial area and the same would be caused if a person carry heavy load on the head. A suggestion to this effect is made, wherein PW-18 Dr.Rameshbabu Javali has denied that deceased Sunanda had natural anterior cranial fossa and there was no fracture of cranial fossa. He has also denied that the anterior cranial fossa, which is injury No.5 of 93 PM report at Ex.P32 is due to defective post mortem while dissecting the skull. In the light of inherent contradiction that deceased Sunanda had natural anterior cranial fossa, that the said injury was caused due to medical negligence at the operation and also that it was caused due to defective post mortem makes it evident that such defence cannot be accepted.

39.11 PW-18 has admitted that if there is just fracture to the skull bone, there would be no neurogenic shock. He has specifically deposed that in this case the laceration caused to the left temporal lobe was sufficient to cause death of the deceased and denied that the said injury to left temporal lobe would have been cured with effective treatment and laceration was due to mishandling at the operation and not due to assault.

39.12 During the course of his further evidence dated 20.08.2013 PW-18 has specifically deposed that the details noted in the PM report at Ex.P32 are as per the observation made at the time of conducting post mortem. He has also stated that along with the PM report, he has prepared the diagram sheet noting the injuries found on the 94 person of the deceased. However, during his further cross- examination dated 20.08.2013, by mistake the injury in respect of which the operation in question was conducted is referred to as injury No.1 instead of injury No.2 and accordingly, in the re-examination also he has stated that the surgery was necessary to cure injury No.1. As already noted that injury No.2 of PM report Ex.P32 is CLW on the left parietal region and it is in respect of which the burrhole surgery was conducted. Therefore, in the further cross- examination dated 20.08.2013 reference to injury No.1 is to be considered as injury No.2.

39.13 The documents placed on record coupled with the evidence of PW-18 Dr.Rameshbabu Javali prove that the death of deceased Sunanda was due to injury Nos.2 and 5 of PM report at Ex.P32 and resultant hypovolaemic and neurogenic shock. The relevant portion in Ex.P32 reads thus:

"ªÀÄÈvÀ¼À vÀ%É§ÄgÀÄqÉAiÀÄÄ ªÀÄÄjzÀÄºÉÆÃV JqÀ§¢AiÀÄ «ÄzÀÄ¼ÀÄ (Left temporal lobe laceration) ¥ÀÆwð dfÓ ºÉÆÃV ªÀÄvÀÄÛ CwÃªÀ gÀPÀÛ ¸ÁæªÀ¢AzÀ (Hypovolaemic shock and neurogenic shock) ªÀÄvÀÄÛ £ÀgÁWÁvÀ¢AzÀ ªÀÄÈvÀ¥ÀnÖzÁÝ¼É. "

39.14 It falsifies the defence that injury No.5 was not at all there and it is caused due to defective operation or defective post mortem examination. It also falsifies the defence that deceased Sunanda had a natural Cranial Fossa and it was not as a result of the assault. The medical evidence corroborate with the testimony of PWs-1 and 2 and the complaint averments.

40. Arrest of accused Nos.1 to 3 and recovery at their instance: The evidence of PW-17 Babalal Tatagar, Circle Inspector prove the arrest of accused Nos.1 to 3 and recovery of MOs-1 to 4 at their instance. PW-12 Suresh is witness to the recovery at the instance of accused Nos.1 to

3. He has not supported the prosecution case and turned hostile. As discussed earlier and as held by Hon'ble Supreme Court in Mallikarjuna's case, the evidence of Investigating Officer is admissible. According to the prosecution while accused Nos.2 and 3 used the Butt end and Barrel end of the gun to assault PW-1 Mahaveer and deceased Sunanda, accused No.1 used a Babool stick to assault them. However, based on his voluntary statement, two sticks are recovered at the instance of accused No.1. The defence is trying to take 96 advantage of the fact that during the course of complaint and evidence of PWs-1 and 2, there is no reference to the second stick.

40.1 It is relevant to note that the entire incident wherein accused Nos.1 to 3 assaulted PW-1 Mahaveer and deceased Sunanda took place within a short span of five minutes. During this, while accused No.2 entered the house of PW-1 Mahaveer, brought the double barrel gun belonging to him (PW-1 Mahaveer), broke it into two pieces by striking it on the katta and accused Nos.2 and 3 used the said two pieces to assault PW-1 Mahaveer and deceased Sunanda. In the meanwhile, accused No.1 assaulted them with a Babool stick. It has come in the evidence of PW-2 Sarika that accused No.3 assaulted her mother with a stick and in the process it fell down from his hand and he picked up the Barrel portion of the gun and assaulted her mother on her chin. Having regard to the quick succession in which the incident took place, PWs-1 and 2 might not have been able to see how many sticks were there. However, on the basis of his voluntary statement accused No.1 has produced two Babool sticks. As noted earlier PWs-1 and 2 have not spoken 97 to about the presence of another Babool stick. Therefore, the prosecution need not explain the recovery of two Babool sticks at the instance of accused No.2, the concealment of which was within his exclusive knowledge.

40.2 The possibility of injuries sustained by PW-1 Mahaveer and deceased Sunanda with MOs-1 to 4, which are recovered at the instance of accused Nos.1 to 3, is spoken to by PW-11 Dr. Somashekharaiah Pujar, who has examined them and given his opinion as per Ex.P15 to 20. In fact PW- 13 Dr.Ishwar Ingalgi, who first examined the injured at District Hospital, Belagavi, during the course of his evidence before the Court has examined MOs-1 to 4 and given opinion that the injury suffered by PW-1 Mahaveer and deceased Sunanda are possible if assaulted with them. The testimony of PW-11 and 13 is also corroborated by the evidence of PW- 18 that the injuries suffered by deceased are possible if assaulted with sticks and Butt end of the gun.

41. Further Investigation: The evidence of PW-17 further proved that he got prepared the sketch of the scene of the offence at Ex.P-38 through constable Hanchinamani, produced the accused persons before the Court, collected the 98 wound certificate, Post Mortem report, sent the blood stained cloths, samples soil and blood stained soil to FSL, collected report from FSL as per PW-39 and 40 and collected opinion of the Medical Officer K.L.E Society hospital regarding MOs.1 to 4 as per Ex.P15 to 20. After completing investigation he has filed charge sheet. Since the CTS extract at Ex.P41 was supplied subsequent to the filing of charge sheet, he submitted the same with a letter to include it in the charge sheet.

41.1 It is relevant to the note that in the inquest at Ex.P9, PW-17 has noted in all 10 injuries, whereas in the other medical records the number of injuries noted are 5. A suggestion is made to PW-17 that without actually conducting the inquest he has simply prepared the inquest mahazar at Ex.P9. It is pertinent to note that on 30.09.1993, while admitting deceased Sunanda the casualty Medical Officer of K.L.E. Society Hospital has noted multiple contusions, which is also reflected in the out patient record. Including these multiple contusions, the total number of injuries comes to 10 and corroborate with the inquest report. Even though PW-17 is cross-examined at length, nothing 99 worthy is elicited to indicate that he has not conducted property investigation and we find no reason to doubt his bonafides.

41.2 The evidence of PW-10 Gangamma, WHC and PW-17 Babalal Tatagar, Investigating Officer prove the arrest of accused Nos.4 and 5, which fact is not seriously disputed.

42. FSL Report: Ex.P39 prove that the clothes of PW-1 Mahaveer viz., shirt, banian and lungi and that of deceased viz., blouse and saree were stained with blood and Ex.P41 state that shirt, banian, blouse and saree are stained with 'O' group blood. Ex.P42 state that the stains on item No.5 i.e., lungi which had few scattered blood stains were disintegrated and as such their origin could not be determined.

43. Thus, from the above discussion, we hold that the prosecution has proved beyond reasonable doubt that the death of Sunanda was homicidal and PW-1 Mahaveer also sustained injuries in the assault made by accused Nos.1 to 3 with an intention of causing his death, but fortunately, he survived. Though the trial Court has come to the correct 100 conclusion that on 30.09.1993 deceased Sunanda and PW-1 Mahaveer was assaulted by accused Nos.1 to 5, it has erred in holding that injury No.5 of PM report at Ex.P32 was caused at the surgery and it was due to medical negligence. This finding of the trial Court is not based on any evidence. On the other hand the PM report coupled with the evidence of PW-18 Dr.Rameshbabu Javali prove that death was due to fracture of skull, laceration of left temporal lobe and Hypvolaemic and Neurogenic shock i.e., "ªÀÄÈvÀ¼À vÀ%É§ÄgÀÄqÉAiÀÄÄ ªÀÄÄjzÀÄºÉÆÃV JqÀ§¢AiÀÄ «ÄzÀÄ¼ÀÄ (Left temporal lobe laceration) ¥ÀÆwð dfÓ ºÉÆÃV ªÀÄvÀÄÛ CwÃªÀ gÀPÀÛ ¸ÁæªÀ¢AzÀ (Hypovolaemic shock and Neurogenic shock) ªÀÄvÀÄÛ £ÀgÁWÁvÀ¢AzÀ ªÀÄÈvÀ¥ÀnÖzÁÝ¼É."

44. On the other hand the defence even preponderance of probabilities failed to establish that deceased Sunanda and PW-1 Mahaveer sustained injuries in the scuffle in their house. At the same time, they have also failed to prove that at the time of incident PW-1 Mahaveer, accused Nos.2 and 3 were at their work place and that accused have been falsely implicated. Consequently, the appeal filed by accused is liable to be dismissed, whereas the State appeal deserves to be allowed.

101

45. From the evidence placed on record, the prosecution has proved the involvement of accused Nos.1 to 3 in fatal assault of deceased Sunanda and also assault on PW-1 Mahaveer with the intention of causing his death. The persistent blows given by accused Nos.1 to 3 on the vital parts of both deceased Sunanda and PW-1 Mahaveer prove their intention. However, though the assault by accused Nos.1 to 3 was triggered by the quarrel of accused Nos.4 and 5 with deceased Sunanda, wherein they have assaulted her with hands, fact remains that after the intervention of accused Nos.1 to 3, no overt acts are attributed to accused Nos.4 and 5. Till the arrival of accused Nos.1 to 3 on scene, it was just a squabble between accused Nos.4 and 5 and deceased Sunanda on the trivial issue of gold chain worn by accused No.4. After accused Nos.1 to 3 started hitting PW-1 Mahaveer and deceased Sunanda with Babool stick, Butt end and Barrel end of the gun, there are no allegations that accused Nos.4 and 5 joined hands with them. Therefore, we are of the considered opinion that accused Nos.4 and 5 are guilty of only the offence punishable under Section 323 r/w Section 34 I.P.C. On the other hand prosecution has proved that accused Nos.1 to 3 are guilty of the offences punishable 102 under Sections 504, 448, 427, 307 and 302 r/w Section 34 I.P.C. Having regard to the facts and circumstances of the case, we are of the considered opinion that accused Nos.4 and 5 have not shared the common object with accused Nos.1 to 3 for the commission of offences punishable under Sections 504, 448, 427, 307 and 302 I.P.C and accordingly, we proceed to pass the following:

ORDER

(i) Crl.A.No.100122/2015 filed by accused Nos.1 to 5 is dismissed.

(ii) Crl.A.No.100284/2015 filed by the State is allowed.

(iii) Accused Nos.4 and 5 are convicted for the offence punishable under Section 323 r/w Section 34 I.P.C.

(iii)(a) Accused Nos.4 and 5 were arrested on 05.10.1993 and released on bail on 06.10.1993. On 10.07.2015, on their conviction they were taken into custody and remanded to undergo sentence. After they 103 challenged their conviction, they were released on bail on 25.07.2015. In all they were in judicial custody for 16 days. For the offence punishable under Section 323 I.P.C r/w Section 34 I.P.C, accused Nos.4 and 5 are sentenced to undergo imprisonment for the period during which they were in custody.

(iv) Accused Nos.1 to 3 are convicted for the offences punishable under Section 504, 448, 427, 307 and 302 r/w Section 34 I.P.C.

Sd/-

JUDGE Sd/-

                                                  JUDGE


RR/MDS
                                  104




BMSPJ & JMKJ:                              Crl.A.No.100284/2015
02.01.2023                             c/w Crl.A.No.100122/2015

                 ORDER ON SENTENCE

We have heard accused Nos.2 and 3 and the learned counsel representing them as well as the learned Addl. State Public Prosecutor on sentence.

2. The learned counsel for accused Nos.2 and 3 submits that accused No.2 is retired official having a daughter yet to be married. Accused No.3 is having two young children studying in 7th and 3rd standard. This is the first offence committed by accused Nos.2 and 3, that too in a fit of anger and this case does not come under the rarest of rare category and prays to impose the lesser of the two punishments prescribed for the offence under Section 302 of IPC.

3. So far as the offence punishable under Section 302 is concerned, learned Addl SPP fairly concede that this case would not come under rarest of rare category falling for maximum punishment of death sentence and prays to sentence accused Nos.2 and 3 to life imprisonment.

105

4. The punishment prescribed for the offence under Section 427 I.P.C is imprisonment of either description for a term which may extend to two years, or with fine, or with both.

5. The punishment prescribed for the offence under Section 448 I.P.C is imprisonment of either description for a term which may extend to one year, or with fine, which may extend to Rs.1,000/-, or both.

6. The punishment prescribed for the offence under Section 504 I.P.C is imprisonment of either description for a term which may extend to two years, or with fine, or with both.

7. The punishment prescribed for the offence under Section 307 I.P.C is imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.

8. The punishment prescribed for the offence under Section 302 I.P.C is death or imprisonment for life and shall also be liable to fine.

106

9. Having regard to the facts and circumstances of the case we are of the considered opinion that this case does not come under the rarest of rare category. Hence, accused Nos.2 and 3 are sentenced as under:

10.1) Accused Nos.2 and 3 are sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of three months for the offence under Section 427 I.P.C.

10.2) Accused Nos.2 and 3 are sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of three months for the offence under Section 448 I.P.C.

10.3) Accused Nos.2 and 3 are sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for a period of three months for the offence under Section 504 I.P.C.

10.4) Accused Nos.2 and 3 are sentenced to undergo rigorous imprisonment for a period of five years and pay fine of 107 Rs.10,000/- each, in default to undergo simple imprisonment for a period of one year for the offence under Section 307 I.P.C.

10.5) Accused Nos.1 to 3 are sentenced to undergo imprisonment for life and pay fine of Rs.15,000/- each, in default to undergo simple imprisonment for a period of two years for the offence under Section 302 I.P.C.

11. All the substantive sentence shall run concurrently.

12. Out of the fine realized, a sum of Rs.50,000/- shall be paid to PW-2 Sarika by way of compensation.

13. Issue conviction warrant against accused Nos.2 and 3.

14. Registry is directed to supply free copy of judgment and order to accused Nos.1 to 3 forthwith.

Registry is directed to send back the TCR along with copy of the judgment and order.

Sd/-

JUDGE Sd/-

JUDGE RR

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Karnataka High Court