Karnataka High Court
Sandeep John vs State Of Karnataka on 10 November, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.616 OF 2015
CONNECTED WITH
CRIMINAL APPEAL NO.603 OF 2015,
CRIMINAL APPEAL NO.743 OF 2015
AND
CRIMINAL APPEAL NO.772 OF 2015
IN CRL.A. NO.616 OF 2015:
BETWEEN:
SANDEEP JOHN
S/O. K.J. JOHN KARGAL,
AGED ABOUT 40 YEARS,
RESIDENT OF MASJID ROAD,
KARGAL, TALUKA SAGAR,
SHIMOGA DISTRICT - 577 421.
... APPELLANT
(BY SRI P.P. HEGDE, ADV., FOR SRI VENKATESH SOMAREDDI)
AND:
STATE OF KARNATAKA
BY KARGAL POLICE,
SAGAR TALUK,
SHIMOGA DISTRICT - 577 421,
REPRESENTED BY STATE PUBLIC PROSECUTOR.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)
2
IN CRL.A. NO.603 OF 2015:
BETWEEN:
SIDDU @ SIDDA
(REAL NAME IS 'SIDDAPPA S.' ),
S/O. SHIVANANJA,
AGED ABOUT 30 YEARS,
OCCUPATION: DRIVER,
RESIDENT OF CHOWLI CAMP,
KARGAL VILLAGE, SAGAR TALUK,
SHIMOGA DISTRICT - 577 421.
... APPELLANT
(BY SRI HASHMATH PASHA, SENIOR COUNSEL,
ALONG WITH SRI KALEEM SABIR, ADV.)
AND:
STATE OF KARNATAKA
BY KARGAL POLICE,
SAGAR TALUK,
SHIMOGA DISTRICT - 577 421,
REPRESENTED BY STATE PUBLIC PROSECUTOR.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)
IN CRL.A. NO.743 OF 2015:
BETWEEN:
1. SHASHIKUMAR ALIAS BUDDHA
ALIAS MOOGA ALIAS MUNNA,
S/O. PALANISWAMY ALIAS PALANI MANJA
ALIAS PALANI SWAMY,
AGED ABOUT 27 YEARS,
OCCUPATION: COOLIE,
RESIDENT OF BHAGYA MANDIRA COLONY,
KARGAL - 577 421,
SAGARA TALUK.
3
2. MANI ALIAS KARIYA
S/O. PALANISWAMY,
RESIDENT OF WATER TANK AREA,
MARIKAMBA ROAD,
KARGAL - 577 421,
SAGARA TALUK.
... APPELLANTS
(BY SRI RAJKUMAR C., ADV.)
AND:
STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
KARGAL POLICE,
KARGAL - 577 421.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)
IN CRL.A. NO.772 OF 2015:
BETWEEN:
MADHAVA @ ARODI MAHADEVA
S/O. SHANKAR NAIKA,
AGED ABOUT 45 YEARS,
OCC: CONTRACTOR,
RESIDENT OF ARODI VILLAGE,
BARANGI HOBLI,
SAGAR TALUK,
SHIMOGA DISTRICT - 577 401.
... APPELLANT
(BY SRI C.H. JADHAV, SENIOR COUNSEL,
ALONG WITH SRI HARISH KUMAR M.S.)
4
AND:
THE STATE OF KARNATAKA
BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA BUILDING,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. S.P.P.)
***
THESE CRIMINAL APPEALS ARE FILED UNDER
SECTION 374(2) OF THE CR.P.C. PRAYING TO SET ASIDE
THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER
ON SENTENCE DATED 20-4-2015 PASSED BY THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA, SITTING AT SAGAR, IN S.C. NO.142 OF 2012
CONVICTING THE APPELLANTS-ACCUSED NOS.1, 2, 3, 5
AND 6 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
143, 120B, 302 AND 201 READ WITH SECTION 149 OF THE
IPC.
THESE CRIMINAL APPEALS ARE COMING ON FOR
HEARING THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:
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JUDGMENT
(i) Criminal Appeal No.616 of 2015 is filed by accused No.1, (ii) Criminal Appeal No.603 of 2015 is filed by accused No.2, (iii) Criminal Appeal No.743 of 2015 is filed by accused Nos.3 and 5 and
(iv) Criminal Appeal No.772 of 2015 is filed by accused No.6 against the impugned judgment of conviction and order on sentence dated 20-4-2015 made in Sessions Case No.142 of 2012 on the file of V Additional District and Sessions Judge, Shivamogga, Sitting at Sagar, for having convicted and sentenced them to undergo simple imprisonment for six months with fine of Rs.1,000/- each for the offence punishable under Section 143 of the IPC (for short, 'the IPC'); further sentenced to undergo simple imprisonment for five years with fine of Rs.3,000/- each for the offence punishable under Section 120B of the IPC; further sentenced to 6 undergo imprisonment for life with fine of Rs.10,000/- each for the offence punishable under Section 302 of the IPC and further sentenced to undergo simple imprisonment for three years with fine of Rs.2,000/- each for the offence punishable under Section 201 of the IPC.
2. It is the case of the prosecution that Madesha (hereinafter referred to as 'deceased') was an Advocate practicing at Sagar Court. He was resident of Kargal Village and used to travel from Kargal to Sagar for professional work by bus. On 17-2-2012 at 6:00 p.m., the deceased and his wife- P.W.1 had gone for shopping in Kargal and while returning, the deceased left her halfway and asked her to go to the house as he had some work to attend. At 8:30 p.m., P.W.1 called the deceased, he said, he will return after some time. Again when 7 P.W.1 called the deceased at 9:30 p.m., he said, he is with Iliyas and will return soon. Again, P.W.1 called the deceased at 11:00 p.m., he said, he is with Sandeep John (accused No.1) and will return after half-an-hour. At 12:30 midnight, P.W.1 received missed call from the phone of the deceased and when she called back, the deceased did not receive the call. Therefore, P.W.1 slept thinking that he will come later. On 18-2-2012 at 8:30 a.m., P.W.1 went to the house of Alferd, a friend of the deceased, and enquired about him. At 12:30 p.m., she came to know from her neighbours that the deceased was admitted in the Hospital. Therefore, P.W.1 along with P.W.2-brother of the deceased went to meet the deceased. At that time, the deceased was shifted to Government Hospital, Sagar. At about 5:30 p.m., the deceased was shifted to Nanjappa Hospital and he was unconscious. After two days, the deceased 8 regained conscious and again, he was semiconscious. On 27-2-2012 between 8:30 a.m. and 10:00 a.m., the deceased said that Sandeep John, Siddu and Munna (accused Nos.1 to 3 respectively) assaulted him in Omni van. On 29-2-2012 at 2:30 p.m., the deceased was suffering from severe headache and was crying. On 1-3-2012 at 5:40 a.m., the deceased died in the Hospital. As P.W.1 was engaged in providing treatment to the deceased, there is a delay in lodging the complaint. As the deceased was unconscious, P.W.1 thought that the deceased will lodge the complaint later. After the death of the deceased in the Hospital, P.W.1 lodged the complaint on 1-3-2012 at 12:30 p.m. On the basis of the complaint, the jurisdictional Police registered a case in Crime No.20 of 2012 for the offence punishable under Section 302 read with Section 34 of the IPC. After the 9 investigation, charge-sheet has been filed against six accused persons for the offences punishable under Sections 143, 120B, 302, 201 and 115 read with Section 149 of the IPC.
3. After taking cognizance, the learned Magistrate committed the case to the Sessions Court. The learned Sessions Judge framed the charges on 14-5-2013 against accused Nos.1, 2, 3, 5 and 6, except accused No.4 as he was absconding. When the charges were read over and explained to the accused persons, they pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of the accused persons, the prosecution examined 31 witnesses as per P.W.1 to P.W.31, got marked 98 documents as per Ex.P.1 to Ex.P.98 and marked 3 material objects as per M.O.1 to M.O.3. After conclusion of the 10 prosecution evidence, the statements of accused persons as contemplated under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') have been recorded. The accused persons denied all the incriminating evidence adduced against them, but not led any defence evidence.
5. Considering the oral and documentary evidence on record, the learned Sessions Judge framed four points for consideration and recorded a finding that;
i. The prosecution proved beyond all reasonable doubt that accused Nos. 1, 2, 3, 5 and 6 along with accused No.4 on 17-2-2012 at about 9:00 p.m. at Kargal formed unlawful assembly with an intention to kill Madesha and thereby, committed an offence punishable under Section 143 read with Section 149 of the IPC;
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ii. The prosecution proved beyond all reasonable doubt that accused Nos.1, 2, 3, 5 and 6 along with accused No.4 on 17-2-2012 at about 9:00 p.m. at Kargal have hatched a plan for criminal conspiracy to kill Madesha and commit an offence punishable with death or life imprisonment and thereby, committed an offence punishable under Section 120B read with Section 149 of the IPC;
iii. The prosecution proved beyond all reasonable doubt that accused Nos.1, 2, 3, 5 and 6 along with accused No.4 on 17-2-2012 at 9:30 p.m. brought Madesha from Shridevi Hotel, took him in Omni van, bearing No.G.A-01/R.0299, and assaulted Madesha and again took him to Hajani Village to an orchard belonged to the father of accused No.1, assaulted Madesha in his hand to the backdoor of Omni van, when he fell on the ground, 12 he was kicked by the accused all over the body and then, admitted him to the Hospital. Ultimately, he succumbed to the injuries on 1-3-2012 at 5:45 a.m. and thereby, the accused have caused the death of Madesha and committed an offence punishable under Section 302 read with Section 149 of the IPC; and iv. The prosecution proved beyond all reasonable doubt that accused No.5 on 18-2-2012 at Kargal at about 12:15 p.m. brought Madesha to the Primary Heath Centre and told to the Hospital-in- Charge that Madesha sustained injuries in a motor bike accident and other accused by giving false information and thereby, committed an offence punishable under Section 201 read with Section 149 of the IPC.
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6. Accordingly, the learned Sessions Judge by the impugned judgment, convicted the accused persons for the aforesaid offences. Hence, the present appeals.
7. We have heard the learned counsel for the parties.
8. Sri P.P. Hegde, learned counsel appearing for accused No.1, has contended with vehemence that the impugned judgment of conviction and order on sentence passed against accused No.1 along with other accused by the learned Sessions Judge for the offences made out in the charge-memo is erroneous and contrary to the material on record and the same cannot be sustained. He has further contended that the oral dying declaration of the deceased is unbelievable as P.Ws.1 and 2 have not stated about the fit state of mind of the deceased to make 14 statement, or produced Certificate issued by the Doctors. P.Ws.27 and 28-Doctors, who treated the deceased, have not stated about the deceased regaining conscious, when the deceased was admitted in the Hospital for a period of thirteen days. He has further contended that Ex.P.70- treatment extract of Government Hospital, Sagar, clearly reveals that on 18-2-2012, the deceased was admitted to the Hospital with the history of a road traffic accident and Ex.P.95-Death Summary also clearly reveals that the deceased sustained injury on 18-2-2012 in a road traffic accident.
9. The learned counsel has further contended that P.W.28-Doctor has stated that the deceased was brought to Nanjappa Hospital on 18-2-2012 with the history of a 'road traffic accident' and he noticed bleeding in the brain. He has further 15 contended that P.W.29-Doctor has stated that the injuries sustained by the deceased are due to 'blunt object'. Except the evidence of P.Ws.1 and 2, medical evidence do not disclose that the deceased has regained conscious and he was in a fit state of mind to give statement against the accused persons. Therefore, he submits that the impugned judgment of conviction based upon the oral dying declaration cannot be sustained.
10. The learned counsel has further contended that the complaint is lodged by P.W.1 on 1-3-2012, after 'thirteen' days of the incident. The delay is fatal to the case of the prosecution. When P.Ws.1 and 2 came to know about the incident and shifted the deceased to the Hospital, what prevented them from lodging the complaint to the Police is not explained by the prosecution. He has further 16 contended that the oral dying declaration made by the deceased in the Hospital on 27-2-2012 between 8:30 a.m. and 10:30 a.m. was not recorded in the medical records or certified by any Doctor. He has further contended that in the examination-in-chief, P.W.1 has stated that she was waiting for her husband to lodge a complaint. The complaint lodged by P.W.1 is due deliberation only to implicate the accused persons. Therefore, the delay is fatal and the same has not been considered by the learned Sessions Judge while passing the impugned judgment of conviction.
11. The learned counsel has further contended that the homicidal death is not proved by the prosecution, or the motive of the accused persons to assault the deceased. He has further contended that the evidence of P.W.28-Doctor and 17 Ex.P.95-Death Summary disclose that the deceased died due to cardio respiratory arrest. The evidence of P.W.29-Doctor and Ex.P.69-post-mortem examination report clearly reveal that the deceased died due to injuries sustained as a result of blunt force trauma, consistent with history provided. He has further contended that Ex.P.73 is the letter issued by GVK EMRI - 108 Services stating that informer had called 108 requesting for an ambulance for a male victim (Madesha) injured in a road traffic accident. Therefore, based upon the evidence of the Doctors and material documents, the prosecution has not proved the homicidal death. He has further contended that absolutely there is no material produced to prove the criminal conspiracy between the accused persons and the deceased to assault the deceased.
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12. The learned counsel has further contended that in so far as recovery of M.O.1-watch of the deceased from accused No.5 at the instance of P.W.24 is not proved as P.W.24 is a star witness, turned hostile and mahazar as per Exs.P.31, P.36, P.40, P.42 and P.56 have not been proved by the prosecution. He has further contended that the circumstantial witnesses, i.e. P.Ws.3 to 23 have turned hostile. He has further contended that the learned Sessions Judge has relied upon the call details though not recorded and not posed any question with regard to incriminating evidence as contemplated under Section 313 of the Cr.P.C. Therefore, the same cannot be relied upon. He has further contended that the evidence of P.W.1 is inconsistent with the evidence of P.W.2 and cannot be relied upon. There is no material to prove the involvement of the accused and no circumstantial 19 evidence before the Court. Therefore, he sought to allow the appeal filed by accused No.1.
13. In support of his contention, the learned counsel has relied upon the following judgments of the Hon'ble Supreme Court with regard to dying declaration or statement by the deceased. i. In the case of SURINDER KUMAR v. STATE OF HARYANA reported in (2011) 10 SCC 173;
ii. In the case of ROOP RAM AND ANOTHER v.
STATE OF MADHYA PRADESH reported in (2011) 14 SCC 577;
iii. In the case of ARUN BHANUDAS PAWAR v.
STATE OF MAHARASHTRA reported in (2008) 11 SCC 232;
20iv. In the case of DARSHANA DEVI v. STATE OF PUNJAB reported in (1995) SUPP (4) SCC 126;
v. In the case of BALAJI v. STATE OF MAHARASHTRA reported in (2019) 15 SCC 575;
vi. In the case of WAIKHOM YAIMA SINGH v.
STATE OF MANIPUR reported in (2011) 13 SCC 125; and vii. In the case of SRI AKASH @ NEELAKANTA v. STATE OF KARNATAKA decided by this Court on 5-10-2020 in Criminal Appeal No.677 of 2015.
14. Sri Hashmath Pasha, learned senior counsel appearing for accused No.2, while adopting the arguments of Sri P.P. Hegde, learned counsel for 21 accused No.1, has contended that on 18-2-2012 on information from the neighbours, P.Ws.1 and 2-wife and brother of the deceased respectively went to the Primary Health Centre, Kargal, to meet the deceased, who was admitted in the Hospital with the history of a 'road traffic accident'. The deceased was in Hospital for 'thirteen days', no complaint has been registered as it was a road traffic accident. He has further contended that the deceased died in Nanjappa Hospital and the complaint is lodged by P.W.1 after due deliberation and when the deceased regained conscious in the Hospital, what prevented P.W.1 to lodge the complaint or inform the Doctor is not forthcoming. The evidence of P.Ws.1 and 2 is without any corroboration and the same relied by the learned Sessions Judge is not safe. Absolutely, there is no recovery made at the instance of accused Nos.1 and 2. Therefore, he submits that the entire 22 case of the prosecution is manipulated and deliberate. Hence, he sought to allow the appeal filed by accused No.2.
15. Sri Rajkumar C., learned counsel appearing for accused Nos.3 and 5, while adopting the arguments of the learned counsel for accused Nos.1 and 2, has contended that M.O.1-watch of the deceased is recovered on the voluntary statement of accused No.5 in the presence of P.W.24, who turned hostile and the same cannot be acceptable. The entire case is on assumptions and presumptions of probabilities and the same cannot be sustained. Therefore, he sought to allow the appeal filed by accused Nos.3 and 5.
16. Sri C.H. Jadhav, learned senior counsel appearing for accused No.6, has contended that the 23 prosecution has not proved the motive. He has further contended that the learned Sessions Judge, relying upon the evidence of P.Ws.1 and 2, who are not the eyewitnesses and the prosecution witnesses, i.e. P.Ws.3 to 23, who have turned hostile, proceeded erroneously to convict the accused persons. He has further contended that the oral dying declaration made by the deceased before P.Ws.1 and 2 was not proved in the Hospital. Except their statements, there is no corroborative material and in the absence of same, the oral dying declaration is not safe to rely upon. He has further contended that absolutely, there is no medical evidence to prove the homicidal death of the deceased. P.W.27-Doctor, who gave first-aid to the deceased at Sagar Hospital and P.W.28-Doctor, who treated the deceased at Nanjappa Hospital and P.W.29-Doctor, who conducted post-mortem examination and issued 24 Ex.P.69-Post-Mortem examination report clearly disclose that it was a 'road traffic accident' and the deceased died due to cardio respiratory arrest.
17. The learned senior counsel has further contended that the material on record clearly reveals that the deceased suffered injuries in a road traffic accident and knowing fully well, P.Ws.1 and 2 did not lodge a complaint till his death on 1-3-2012 which clearly indicates that the said delay is used by the complainant and the Police to give shape to the case of the prosecution and the complaint has come to the existence after due deliberation and concoction. He has further contended that the learned Sessions Judge proceeded to convict the accused persons mainly on the basis of statement of P.W.10 recorded under Section 161 of the Cr.P.C. which cannot be sustained. He has further 25 contended that there is unfair investigation by the Police. Absolutely, there is no material produced before the Court that the accused persons are involved in the alleged offences. He has further contended that chain of circumstance is not complete and the prosecution has failed to establish that the evidence produced by the prosecution unerringly points to the guilt of the accused and nothing else. The learned Sessions Judge is not justified in convicting the accused persons based on oral and documentary evidence without any corroboration. Therefore, he sought to allow the appeal filed by accused No.6.
18. In support of his contention, the learned senior counsel for accused No.6 has relied upon the following judgments of the Hon'ble Supreme Court: 26
i. In the case of GANESH BHAVAN PATEL AND ANOTHER v. STATE OF MAHARASHTRA reported in AIR 1979 SC 135 with regard to delay in examining eyewitnesses by the Investigating Officer, on the peculiar facts of a case, amount to serious infirmity in the prosecution case.
ii. In the case of GANPAT SINGH v. STATE OF MADHYA PRADESH reported in 2017 (16) SCC 353 with regard to requirements of case resting on circumstantial evidence.
19. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor appearing for the respondent-State, while justifying the impugned judgment of conviction and order on sentence, has contended that the call details of the alleged night marked by the prosecution and based upon the complaint given by P.W.1 and corroborative 27 evidence of P.W.2, the learned Sessions Judge proceeded to convict the accused persons. He has further contended that the material documents produced clearly indicate that the accused persons are involved in the commission of the alleged offences. He has further contended that P.Ws.1 and 2 in categorical terms stated an oath that on 18-2-2012, they have admitted the deceased to the Hospital and after two days, he regained conscious and muttered the names of accused Nos.1 to 3 stating that they assaulted him. P.Ws.1 and 2 have stated that after recovery of the deceased, he may lodge the complaint. Therefore, they could not lodge the complaint within reasonable time as they were waiting for the deceased to regain conscious. Hence, there is no delay in lodging the complaint before the jurisdictional Police.
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20. The learned Additional State Public Prosecutor has further contended that P.Ws.1 and 2 in categorical terms stated an oath that after three days, the deceased regained conscious and specifically stated against accused Nos.1 to 3. Nothing has been elicited in the cross-examination of P.Ws.1 and 2. Therefore, the evidence of P.Ws.1 and 2 has to be considered as corroborative evidence. He has further contended that when the deceased regained conscious, he was in a fit state of mind to make statement and therefore, based on the said statement of the deceased, P.W.1 lodged a complaint to the Police on 1-3-2012. The oral and documentary evidence including the medical and Police witnesses clearly reveal that the accused persons involved in the alleged assault on the deceased and thereby, he succumbed to the injuries in the Hospital and therefore, the prosecution proved 29 the case beyond all reasonable doubt against the accused persons for the offences made out in the charge-memo. Therefore, he sought to dismiss the appeals filed by the accused persons.
21. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration in these appeals is;
"Whether accused Nos.1, 2, 3, 5 and 6
have made out any grounds to interfere with the impugned judgment of conviction and order on sentence passed by the learned Sessions Judge for the offences under Sections 143, 120B, 302 and 201 read with Section 149 of the IPC in the facts and circumstances of the case?"
22. In order to re-appreciate the entire evidence on record, it is relevant to consider the 30 evidence of the prosecution witnesses and the documents relied upon;
i. P.W.1-Deepa is the wife of the deceased. She has deposed that on 17-2-2012, she had gone to the market along with the deceased and at about 7:30 p.m., the deceased left her stating that he has some work to attend and he will come later. She deposed about contacting the deceased on that night. She has deposed about meeting the deceased in the Hospital and shifting the deceased to the Hospital in Sagar and thereafter to Shivamogga. She has deposed about the deceased making oral dying declaration in the Hospital on 27-2-2012. After the death of the deceased on 1-3-2012, she lodged a complaint before Kargal Police. She has supported the case of the prosecution. 31
ii. P.W.2-Mahesh is the brother of the deceased. He has stated on par with P.W.1. He has deposed that on coming to know that his brother has not returned to his house, he enquired with P.W.15 and others and thereafter, accompanied P.W.1 to the Hospital. He has also deposed about the deceased making oral dying declaration before him. He has supported the case of the prosecution.
iii. P.W.3 to P.W.23 are the circumstantial witnesses. They have turned hostile to the case of the prosecution. Their evidence is not universal for the case of the prosecution.
iv. P.W.24-Kumar Swamy is a panch witness to the spot mahazar-Exs.P.31, P.36, P.42 & Ex.P.48 and seizure mahazar-Exs.P.40 & P.56. He has turned hostile to the case of the prosecution. 32
v. P.W.25-Sanjeeth, Police Constable, was deputed to watch the dead body of the deceased and witnessed the recovery of M.O.3-underwear. He has supported the case of the prosecution.
vi. P.W.26-Madappa, Police Inspector, who investigated the case and filed charge-sheet.
vii. P.W.27-Dr. K.R. Prakash Babu, Senior Surgeon, Subdivision Hospital, Sagar, has deposed that on 18-2-2012 at 3:00 p.m. the injured was admitted in the Hospital with the history of a road traffic accident, who took first-aid at Kargal Hospital and has stated regarding issuance of Wound Certificate/treatment extract as per Ex.P.70. He has supported the case of the prosecution.
viii. P.W.28-Dr. Sachin, Nanjappa Hospital, Shivamogga, has deposed that on 18-2-2012 at 33 5:30 p.m., the injured was brought to the Hospital by P.Ws.1 and 2 from Sagar Government Hospital. He has stated that the injured died during treatment and issued the Death Summary as per Ex.P.95. He has supported the case of the prosecution.
ix. P.W.29-Dr. Vrinda J. Bhat, who conducted post-mortem examination on the dead body of the deceased and issued report as per Ex.P.69. She has supported the case of the prosecution.
x. P.W.30-Surappa, Head Constable, received the death memo of the deceased from Nanjappa Hospital. He has supported the case of the prosecution.
xi. P.W.31-Gururaj, Sub-Inspector of Police, Kargal Police Station, registered the case in Crime 34 No.20 of 2012 as per Ex.P.98. He has supported the case of the prosecution.
23. Based upon the aforesaid material on record, the learned Sessions Judge proceeded to convict the accused persons for the offences made out in the charge-memo.
24. This Court being the Appellate Court, it is relevant to consider the evidence of P.W.1-wife of the deceased, who reiterated the averments made in the complaint and deposed that after admission of the deceased to the Primary Health Centre, Kargal, the Doctor advised to take the deceased to District Hospital, Sagar and thereafter, the deceased was shifted for further treatment to Nanjappa Hospital, Shivamogga. At that time, the deceased was not conscious and he was suffering from pains. Whenever he regained conscious, he used to mutter 35 the name of accused No.1 and not to assault him. She further contended that after 7 to 8 days, i.e. on 27-2-2012 between 8:30 a.m. and 10:00 a.m., the deceased said Sandeep John, Siddu and Munna (accused Nos.1 to 3 respectively) assaulted him on his head in Omni van and again, he lost conscious. On 29-2-2012 at 2:30 p.m., the deceased was suffering from severe headache and was crying. In the cross-examination, she has stated that the deceased was admitted in the emergency ward. Thereafter, he was shifted to M.I.C.U. When he was in special ward, he regained conscious and the Doctors of Nanjappa Hospital never let anyone to visit him. Everyday, the deceased used to regain conscious and whenever, he regained conscious, he used to scream. She has further stated that at that time, no Doctors were available, but the same is brought to their notice.
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25. P.W.2-brother of the deceased has stated that on 18-2-2012, when he was in the house, he received a phone call from Alferd stating that his brother has not come to the house previous night and his sister-in-law (P.W.1) was worried about it. He further stated that on 18-2-2012, the deceased was admitted to the Hospital. After two days of the commencement of the treatment, the deceased regained conscious, but he was not able to speak. After 2 to 3 days, he started speaking and used to lose conscious again and again. In the cross- examination, he has stated that when the deceased was admitted in Shivamogga Hospital, large number of friends and relatives, including Advocates, visited the Hospital to enquire about his brother, at that time, the deceased was not conscious. He further stated that whenever the deceased regained 37 conscious, he said Sandeep John, Siddu and Munna (accused Nos.1 to 3 respectively) assaulted him. At that time, Nurses were also present, but he denied the suggestion that there were no Doctors and Nurses, at the time of regaining conscious. P.W.10- Mangala Gowri, Nurse, Kargal Hospital, has turned hostile.
26. Admittedly, it is not the evidence of P.Ws.1 and 2 either in the examination-in-chief or in the cross-examination that whenever the deceased regained conscious, he was in a fit state of mind to make statement. For thirteen days, the deceased was in the Hospital and regained conscious again and again as stated by P.Ws.1 and 2, but what prevented them to inform the same to jurisdictional Police or to the Doctors and request them to record the statement of the deceased is not forthcoming. 38 The complaint is lodged on 1-3-2012, after the death of the deceased and the delay of thirteen days in lodging the complaint is not explained by the prosecution. It is also not in dispute that the statement made by P.Ws.1 and 2 that the deceased regained conscious and stated about the assault made by accused Nos.1 to 3 in the Hospital is not certified by any of the Doctors. Further, in the evidence of P.Ws.27, 28 and 29, they have not whispered anything about the deceased regaining conscious and absolutely, there is no material produced or medical evidence including the case- sheet of the Hospital to show that the deceased ever got conscious and was in a fit state of mind to make such statement. In the absence of oral evidence by the Doctors and medical evidence produced in the present case, P.Ws.1 and 2, being the wife and brother of the deceased, are interested witnesses and 39 the alleged oral dying declaration made before them is without any corroboration and cannot be accepted.
27. P.W.27-Dr. K.R. Prakash Babu, Sagar Hospital, stated that when the injured was brought to the Hospital on 18-2-2012 at about 3:00 p.m., he was semiconscious and issued Ex.P.70-treatment extract. In the cross-examination, he has admitted that there is possibility of the injuries sustained by the injured in a 'road traffic accident'.
28. P.W.28-Dr. Sachin, Nanjappa Hospital, stated that the injured was brought by P.Ws.1 and 2 on 18-2-2012 at 5:30 p.m. alleging 'road traffic accident and the accident might have occurred at Kargal'. After obtaining C.T. Scan (head), he noticed bleeding in the brain. He further stated in the cross- examination that there is every possibility of the 40 injuries sustained by the deceased in a 'road traffic accident' and issued Ex.P.95-Death Summary stating that "history and presenting complaints: Alleged RTA at around 4.00 am on 18-2-2012, near Kargal exact details not known. Pt. relatives have observed patient at G.H. Sagar from 10.00 am on 18-2-2012. No H/o loss of consciousness, Vomiting, Seizures? Weakness Rt half body. Received primary aid at G.H. Sagar brought here for further management."
29. P.W.29-Vrinda J. Bhat opined that the injuries sustained by the deceased may be 'due to fall on blunt object'. In the cross-examination, she has admitted that there is every possibility of the injuries sustained by the deceased in a 'road traffic accident', if he falls on the blunt object. She issued Ex.P.69-post-mortem examination report and opined the cause of death of the deceased is "due to injuries 41 sustained as a result of blunt force trauma, consistent with history provided." Therefore, the alleged oral dying declaration made by the deceased before P.Ws.1 and 2 cannot be considered as true statement for the case of the prosecution.
30. P.W.31-Gururaj, Sub-Inspector of Police, stated that he received Ex.P.97-H.M.R. of Nanjappa Hospital dated 1-3-2012 addressing to S.I., Jayanagar Police Station, Shivamogga, that one patient Mr. Madesh was admitted to the Hospital in M.I.C.U on 18-2-2012 at 5:00 p.m. with the history of 'road traffic accident'. The patient expired on 1-3-2012 at 5:45 a.m. because of cardio respiratory arrest. It is also not in dispute that the deceased was admitted to the Primary Health Centre on 18-2-2012 and on the same day, he was shifted to Sagar Hospital and Nanjappa Hospital as per the 42 evidence of P.Ws.1 and 2 with the history of 'road traffic accident' and the complaint is lodged on 1-3-2012. Though the alleged dying declaration is made by the deceased in the Hospital on 27-2-2012 between 8:30 a.m. and 10:30 a.m., but the complaint is lodged after three days and there is no explanation for the delay in filing the complaint. P.W.31 stated that he received information that the deceased sustained injuries on 18-2-2012 itself, why the prosecution has not registered the case of suo moto is not forthcoming and why P.Ws.1 and 2 delayed in lodging the complaint to the Police, even though the deceased was in the Hospital for more than thirteen days as he was regaining conscious again and again. Evidence of P.Ws.1 and 2 clearly depict that during thirteen days of the Hospital by the deceased, there were large number of friends and relatives visiting to the Hospital and the complaint is 43 lodged only on 1-3-2012 and the same is with due deliberation only to implicate the accused persons. Absolutely, there is no material placed to show that the accused persons are involved in the alleged offences. The said aspect has not been considered by the learned Sessions Judge, but proceeded to convict the accused persons on the evidence of P.Ws.1 and 2 and only on assumptions and presumptions, which cannot be sustained.
31. It is also noted that the prosecution has not proved the homicidal death on account of injuries sustained by the deceased in lieu of abundant medical record. The evidence of the Doctors, i.e. P.Ws.27, 28 and 29 and Ex.P.69-post- mortem examination report, Ex.P.70-treatment extract of Government Hospital, Sagar, and Ex.P.73- Letter issued by GVK EMRI - 108 Services with 44 alleged history of 'road traffic accident', Ex.P.95- Death Summary and Ex.P.97-H.M.R. of Nanjappa Hospital, which clearly prove that the 'death is not homicidal and it is due to road traffic accident'.
32. P.W.1-wife of the deceased and P.W.2- brother of the deceased have stated about the motive against the accused persons, but admittedly, except the evidence of P.Ws.1 and 2, all other witnesses, i.e. P.W.3 to P.W.24 have turned hostile. Absolutely, there is no material produced to prove before the Court about the motive of the accused persons to assault the deceased. In the absence of both oral and documentary evidence on record, the prosecution cannot believe the motive. The said aspect has not been considered by the learned Sessions Judge.
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33. The learned Sessions Judge relied upon the call details, though not marked or examined the author, who issued the call records and not put the question to the accused persons in that regard under Section 313 of the Cr.P.C. Therefore, the same cannot be relied upon. Admittedly, one Prakash, Advocate, whose name is mentioned in the complaint, accompanied P.Ws.1 and 2 to the Hospital has not been examined, and the alleged Omni van, said to have been used for the offence by the accused persons for assaulting the deceased, is not seized by the Investigating Officer for the best reasons known to him. The learned Sessions Judge proceeded to convict the accused persons on the basis of the statement of the hostile witness recorded under Section 161 of the Cr.P.C., which is impermissible in law.
46
34. P.Ws.1 and 2 have stated that the deceased regained conscious in the Hospital, after two days and stated the names of accused Nos.1 to 3 assaulted him. P.Ws.1 and 2 have not stated that when the deceased made the statement, he was in a 'fit state of mind' to make such statement. In the absence of medical evidence, it is not possible to believe the evidence of P.Ws.1 and 2 as they are highly interested witnesses. In the present case, none of the prosecution witnesses have whispered a word that the deceased was in a 'fit state of mind' to make a statement. The case of the prosecution cannot be believed in view of inconsistent evidence of P.Ws.1 and 2 that the deceased made the oral statement. The evidence of P.Ws.27, 28 and 29- Doctors clearly depict that the injured was unconscious for a period of thirteen days and there is no medical record to prove that he was conscious 47 and was in a fit state of mind to make such statement. Therefore, the contention of the learned Additional State Public Prosecutor that the deceased was in a fit state of mind to make statement cannot be acceptable.
35. The Hon'ble Supreme Court while considering the provisions of Section 32 of the Indian Evidence Act, 1872, in the case of PURAN CHAND v. STATE OF HARYANA reported in (2010) 6 SCC 566, at paragraph Nos.15 and 16 has held as under;
"15. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous.48
The court has to examine a dying declaration scrupulously with a
microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.
16. Number of times, a young girl or a wife who makes the dying declaration could be under the impression that she would lead a peaceful, congenial, happy and blissful married life only with her husband and, therefore, has tendency to implicate the inconvenient parents-in-law or other relatives. Number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined 49 and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests."
36. The Hon'ble Supreme Court in the case of MURALIDHAR ALIAS GIDDA AND ANOTHER v. STATE OF KARNATAKA reported in (2014) 5 SCC 730 at paragraph Nos.15 to 18 has held as under; 50 "15. Of the 37 witnesses examined by the prosecution, PW 4, PW 5 and PW 15 are the eyewitnesses but they have turned hostile to the case of the prosecution. The first medical examination of the deceased Pradeep and so also the injured Umesha was done by PW 1 (Dr Latha) at about 9.30 p.m. on 17-8-2002. She has not certified that Pradeep was in a fit state to make any statement. PW 25 (Dr Balakrishna) at the relevant time was Assistant Professor of Surgery at K.R. Hospital where deceased Pradeep was taken immediately after the incident. At about 9.40 p.m. on 17-8-2002, PW 36 (Kodandaram, PSI) gave a memo to PW 25 stating that one patient (Pradeep) was admitted in the hospital and requested him to verify as to whether the patient was in a position to give statement. In his cross-examination, PW 25 has stated that at 9.35 p.m., he saw the patient (Pradeep) when he was kept in operation theatre of casualty for emergency treatment. He has 51 also deposed that a group of doctors was providing treatment to him. His deposition does not establish that Pradeep was under his treatment. The recording of Pradeep's statement by a constable (PW
30) as dictated by PW 36 (PSI) in this situation raises many questions. The trial court found this absurd. It is the prosecution version that PW 30 has recorded Ext. P-22 as dictated by PW 36 (PSI). Thus, Ext. P-22 is not in actual words of the maker. The trial court in this background carefully considered the evidence of PW 25, PW 30 and PW 36 along with Ext. P-22. The trial court has noted that PW 25 failed to confirm in his testimony that he was treating deceased Pradeep when he was brought to the hospital. Moreover, PW 25 admitted overwriting with regard to the time written on Ext. P-22. The trial court also observed that though there was lot of bleeding injuries found on the person of Pradeep, 52 PW 25 did not say anything about the quantity of loss of blood.
16. Dealing with the testimony of PW 30, the trial court has observed that in his cross-examination, he has admitted that he did not record the statement in the words of the maker (Pradeep) but wrote the statement as dictated by PW 36.
Moreover, PW 30 in his cross-examination had admitted that at the time Pradeep was attended to by the doctors, he was not inside. Then, in respect of Ext. P-22, the trial court observed that the names of accused Gunda (A-3) and Swamy (A-5) appear to have been inserted in different ink later on.
17. On a very elaborate consideration of the entire evidence, the trial court was of the view that Ext. P-22 did not inspire confidence and the credibility of Ext. P-22 has not been established to the satisfaction of the court. Accordingly, the 53 trial court held that conviction of the accused persons cannot be based on Ext. P-22 and the deposition of PW 36, PW 25 and PW 30.
18. The sanctity is attached to a dying declaration because it comes from the mouth of a dying person. If the dying declaration is recorded not directly from the actual words of the maker but as dictated by somebody else, in our opinion, this by itself creates a lot of suspicion about credibility of such statement and the prosecution has to clear the same to the satisfaction of the court. The trial court on overall consideration of the evidence of PW 25, PW 30 and PW 36 coupled with the fact that there was overwriting about the time at which the statement was recorded and also insertion of two names by different ink did not consider it safe to rely upon the dying declaration and acquitted the accused for want of any other evidence. In the circumstances, in 54 our view, it cannot be said that the view taken by the trial court on the basis of evidence on record was not a possible view. The accused were entitled to the benefit of doubt which was rightly given to them by the trial court."
37. The Hon'ble Supreme Court in the case of WAIKHOM YAIMA SINGH v. STATE OF MANIPUR reported in (2011) 13 SCC 125 at paragraph No.20 has held as under;
"20. There can be no dispute that the dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, 55 particularly because of the failure of memory of the witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, Dr. Ningombam Shyamjai Singh (PW 12) was also not cross-examined by the Public Prosecutor in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement."
38. The Hon'ble Supreme Court in the case of BALAJI v. STATE OF MAHARASHTRA reported in (2019) 15 SCC 575 at paragraph Nos.12 and 13 has held as under;
"12. Though such detailed statement was allegedly made by the deceased immediately on admission before PW 12 56 in the presence of PW 11 and although such dying declaration was treated as first information based on which crime was registered, the same was not sent to the Jurisdictional Magistrate inasmuch as there is no endorsement of the Magistrate on the original of the dying declaration. Since there is no endorsement of the Magistrate on the dying declaration, learned counsel for the defence is justified in arguing that the so- called dying declaration was not at all recorded and was subsequently created by the investigating officer only to suit the purpose of the prosecution. Moreover, since the patient was semi-conscious having such severe injuries mentioned supra, she could not have made such detailed statement.
13. Hence, in our considered opinion, it would be unsafe to rely upon this dying declaration of the victim to base the conviction. We find that the dying 57 declaration bristles with a number of suspicious circumstances mentions supra."
39. This Court in the case of K.N. KIRAN KUMAR v. STATE BY MANDYA RURAL POLICE reported in ILR 2017 KAR 1605 had an occasion to deal with Sections 161 and 162 of the Cr.P.C. and has observed at paragraph Nos.33 to 36 as follows;
"33. On perusal of the above said rulings of the Hon'ble Apex Court, it is clear that the purpose of contradicting a witness is only to contradict and attack the veracity of a witness. The duty of the Court is to find out if a witness, who had made a contradictory statement earlier is telling the truth before the Court or whether he is a trustworthy witness. However, it should be borne in mind that it is not the duty of the Court to find out whether the previous statement made by the witness 58 was true or not. Where the previous statement and the evidence before the Court are so inconsistent and irreconcilable with each other that both of them cannot co-exist, therefore, it can be said that the previous statement contradicts the witness with the evidence given by him before the Court.
34. Section 145 of the Indian Evidence Act makes it further abundantly clear as to how the said statement can be used by the courts. If the previous statement and the evidence of the witnesses are intended to contradict the witness, it can only be used for the purpose of contradicting him and not for any other purpose. This in fact clearly indicates that, such previous statement though marked as an exhibit cannot be used as a substantive piece of evidence in view of the bar under proviso to Section 162 of Cr.P.C. Though the duly proved statement is admissible in evidence that can only be 59 used for contradicting, discrediting or testing the veracity or for impeaching the witness, but should not be used as substantive piece of evidence. Therefore, it is clear that the proved statement only shows before the Court that the witness has stated or made such statement before the police, if he admits the same.
Then it becomes the duty of the prosecutor to drill the witness to elicit the truth by cross examining the witnesses. The prosecution has to prove which version of the witness is a true version. If the contradicted statement is denied, that portion itself will not become the substantive piece of evidence before the Court but it only clarifies that this witness has stated before police as per such contradicted portion, but at any stretch of imagination, such portion cannot be taken as the evidence of the witnesses before the Court, but, it remains as a statement made before police. Therefore, it is wisely said that it 60 can only be used for contradicting, discrediting or for testing the veracity and for impeaching the said witness and that said portion cannot be used as substantive evidence.
35. Section 155 of the Indian Evidence Act also as quoted above clears the doubt that the contradicted portion in the statement and evidence can also be used either by the prosecution or by the defence for the purpose of impeaching the credit of witness. The words "impeaching the credit", themselves disclose that such witness cannot be relied if he is not corroborated by other material evidence on record. This legal ground norm also goes without saying that the contradicted portion, even cannot be used for the purpose of corroborating the other evidence on record.
36. From the above discussion, it can be further simplified that, apart from the 61 contradicted portion, if the other portion of the evidence given by the witness is corroborated and trustworthy for acceptance, then the Court has to examine whether such portion which is not contradicted can be relied upon by the Court and that portion can be used for the purpose of corroborating the other materials on record."
40. As already stated supra, there are no eyewitnesses to the incident and the entire case of the prosecution rests upon circumstantial evidence. The circumstantial witnesses, i.e. P.W.3 to P.W.24 have turned hostile and have not supported the case of the prosecution. The medical record clearly depicts that it was 'road traffic accident'. Even in the complaint-Ex.P.1, it is mentioned as 'accidental death'. The evidence of P.Ws.1 and 2 is contrary to the material on record and there is improvement in 62 their versions. 'Two views are possible in the present case, i.e. accidental death in view of the abundant oral and documentary evidence on record and another is homicidal death in view of the evidence of P.Ws.1 and 2 and the same is not proved by any corroborative evidence'.
41. It is well settled principles that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden thread which runs through the web of administration of justice in criminal cases is that, if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused persons and the other to their innocence, the view which is favourable to the accused persons should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is 63 prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from conviction of innocent. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case LAXMAN v. STATE OF MAHARASHTRA reported in AIR 2002 SC 2973 and the same is reconsidered by the Hon'ble Supreme Court in its latest judgment in the case of PURUSHOTTAM CHOPRA AND ANOTHER v. STATE (GOVT. OF NCT, DELHI) reported in AIR 2020 SC 476.
42. In view of the above, the point raised in the present appeals is answered in the affirmative holding that accused Nos.1, 2, 3, 5 and 6 have made out sufficient grounds to interfere with the impugned judgment of conviction and order on sentence passed by the learned Sessions Judge for the offences under Sections 143, 120B, 302 and 201 64 read with Section 149 of the IPC and the same is liable to be set aside.
43. For the reasons stated above, we pass the following:
ORDER
i) a. Criminal Appeal No.616 of 2015 filed by accused No.1, b. Criminal Appeal No.603 of 2015 filed by accused No.2, c. Criminal Appeal No.743 of 2015 filed by accused Nos.3 and 5, and d. Criminal Appeal No.772 of 2015 filed by accused No.6 are hereby allowed;
ii) The impugned judgment of conviction
and order on sentence dated
20-4-2015 made in Sessions Case
No.142 of 2012 by the V Additional
65
District and Sessions Judge,
Shivamogga, Sitting at Sagar,
convicting accused Nos.1, 2, 3, 5 and 6
for the offences under Sections 143, 120B, 302 and 201 read with Section 149 of the IPC is hereby set aside;
vi) Accused Nos.1, 2, 3, 5 and 6 are
hereby acquitted for the offences
punishable under Sections 143, 120B, 302 and 201 read with Section 149 of the IPC;
vii) Accused No.1 is set at liberty forthwith, if he is not required in any other case;
viii) Bail and surety bonds executed by accused Nos.2, 3, 5 and 6 are hereby cancelled;
66
ix) If accused Nos.1, 2, 3, 5 and 6 have deposited any fine amount, the same is ordered to be refunded to them on proper identification and acknowledgment; and
x) The Registry is hereby directed to communicate this order to the concerned Jail Authorities for release of accused No.1 forthwith, if he is not required in any other case, after following the Standard Operating Procedure and in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE kvk