Karnataka High Court
Ningawwa Ammanna @ Shrishail ... vs The State Of Karnataka on 23 December, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100259/2020
C/W CRIMINAL APPEAL NO.100391/2019 &
CRIMINAL APPEAL NO.100138/2019
CRL.A. NO.100259/2020:
BETWEEN:
NINGAWWA AMMANNA @ SHRISHAIL SAGARAPPAGOL
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O: GADYAL, TQ: JAMKHANDI,
DIST: BAGALKOT
...APPELLANT
(BY SRI.K.S.PATIL, ADV.)
AND:
THE STATE OF KARNATAKA
REP. BY PSI, SAVALGI POLICE STATION,
TQ: JAMKHANDI, DIST: BAGALKOT,
REPRESENTED BY S.P.P., AG OFFICE,
HIGH COURT BUILDING,
DHARWAD - 580 003
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
SENTENCE DATED 06.02.2019 IN S.C. NO.86/2013 PASSED BY I
ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOT TO SIT AT
JAMAKHANDI, FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 120(B), 109 READ WITH SECTION 34 OF IPC
2
AND ACQUIT THE APPELLANT / ACCUSED NO.3, BY ALLOWING
THIS APPEAL.
CRL.A. NO.100391/2019:
BETWEEN:
SRI.KASAPPA S/O HANAMANT JANAWAD
AGE: 34 YEARS, OCC: COOLIE,
R/O. GADYAL, TALUK: JAMAKHANDI,
DISTRICT: BAGALKOT.
...APPELLANT
(BY SRI.K.S.PATIL, ADV.)
AND
THE STATE OF KARNATAKA
REP. BY PSI, SAVALGI POLICE STATION,
TALUK: JAMAKHANDI, DIST: BAGALKOT,
REP. BY SPP, AG OFFICE,
HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
SENTENCE DATED 06.02.2019 IN S.C. NO.86/2013 PASSED BY
THE I ADDL. DISTRICT & SESSIONS JUDGE, BAGALKOT TO SIT
AT JAMAKHANDI, FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302, 120-B, 109 READ WITH SECTION 34 OF IPC
AND ACQUIT THE APPELLANT/ACCUSED NO.1, BY ALLOWING
THIS APPEAL.
CRL.A. NO.100138/2019:
BETWEEN
SRI.LAXMAN @ MUDAKAPPA S/O RAMAPPA KOLEKAR
AGED ABOUT 48 YEARS, OCC: AGRICULTURE,
R/AT: GOTE, TQ: JAMKHANDI, DIST: BAGALAKOTE.
...APPELLANT
(BY SRI.K.S.PATIL, ADV.)
3
AND
THE STATE OF KARNATAKA
REP. BY ITS CIRCLE INSPECTOR OF POLICE,
JAMKHANDI, DIST: BAGALAKOTE,
REP. BY THE ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. SEEKING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE PASSED BY THE I-ADDL. DIST. &
SESSIONS JUDGE, BAGALKOTE TO SIT AT JAMKHANDI, PASSED
IN S.C. NO.86/2013 DATED 06.02.2019 CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR LIFE FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302, 120(B), 109 READ WITH
SECTION 34 OF IPC AND ACQUIT THE APPELLANT BY
ALLOWING THE PRESENT APPEAL.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.12.2021, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by their conviction and sentence for the offences punishable under Sections 302, 120B, 109 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC" for short), accused Nos.1 to 3 have filed these appeals.
2. For the sake of convenience the parties are referred to by their rank before the trial Court. 4
3. It is the case of the prosecution that deceased Ammanna @ Shrishail and accused No.3 Ningawwa are husband and wife. Their daughter CW.3 Gourawwa is dull- witted. She was given in marriage to accused No.1 Kasappa. After the marriage, accused No.1 and CW.7 Gourawwa stayed in the house of deceased. Taking advantage of the fact that CW.7 Gourawwa is dull-witted, accused No.1 developed illicit relationship with accused No.3 - his mother-in-law and this fact came to the knowledge of all the family members. When accused Nos.1 and 3 did not desist from the illicit relationship, deceased drove accused Nos.1, 3 and CW.7 Gourawwa out of his household. They went to Maharashtra to eke out their livelihood. After 4 months they returned to the house of deceased. However, the illicit relationship between accused Nos.1 and 3 continued. This time a panchayat was convened in the presence of village elders including CW.11 / PW.7 Sabu Siddappa Hagari, CW.13 / PW.8 Bhimappa Thammanna Dalawai and CW.15/ PW.9 Chandsab Mujawar. Since accused Nos.1 and 3 remained adamant and quarreled with the deceased, accused No.1 5 was ordered to leave the house. While leaving, accused No.1 gave threat to eliminate the deceased saying that he has not done a good thing by convening the panchayat. It is alleged that even though accused No.1 was driven out from the household of the deceased, he used to meet accused No.3 stealthily and though the family members of the deceased were aware of the sinister idea of accused Nos.1 and 3 to eliminate the deceased, they did not take it seriously, thinking that accused No.3 would not go to the extent of taking the life of deceased with whom she has led marital life so long.
4. It is further case of the prosecution that the son of deceased Siddappa was working in a Brick Kiln at Teertha. On the ill fated night of 18.02.2013, after par taking dinner, while the women folk namely accused No.3, the daughters and daughter-in-law of deceased slept inside the house, deceased slept out side the house. At about 03:00 a.m., they heard deceased desperately calling the name of Muttawwa. When all of them opened the door and rushed out and with the help of charging battery, they could see accused Nos.1 and 2 sitting on the chest of the 6 deceased. Accused No.1 was strangulating the deceased and pulling his Holy thread (PÁ²zÁgÀ). When they tried to save the deceased from accused Nos.1 and 2, they pushed them away and dragged the deceased to a distance of about 40 ft. When the women folk reached the said place, accused Nos.1 and 2 ran away and deceased was found dead. Hearing their cries when the neighbours and villagers went to the spot, they found the dead body of the deceased in front of the house. In this regard, PW.1 Smt.Muttawwa, the daughter of the deceased has lodged the complaint. After completing the investigation, charge sheet came to be filed against accused Nos.1 to 3. 5. Charge is framed against accused Nos.1 to 3 for the offences punishable under Sections 302, 120B and 109 read with Section 34 of IPC. They have pleaded not guilty and claimed trial.
6. In support of the prosecution case, 17 witnesses are examined as PWs.1 to 17, Exs.P1 to 15 and MOs.1 to 5 are marked.
7
7. During the course of their statement under Section 313 of Cr.P.C., accused have denied the incriminating evidence. They have not chosen to lead defence evidence. However, they have got marked portion of the statement of PW.6 Siddappa Ammanna @ Shrishail as Ex.D1.
8. At the first instance, vide judgment and order dated 26.11.2016, accused Nos.1 to 3 came to be convicted for the offences punishable under Section 302, 120B read with Section 34 of IPC. Accused challenged the same in Criminal Appeal No.100314/2017. The appeal came to be allowed on the ground that the accused persons were not provided with opportunity to cross- examine the prosecution witnesses. The case was remanded to the Trial Court with a direction to proceed from the stage of cross-examination, after ascertaining whether the accused persons want to engage advocate of their choice or they need legal assistance and thereafter proceed to pass the judgment.
9. After the remand, PWs.1 to 8 and 10 to 17 are recalled and cross-examined by the defence counsel. So 8 far as PW.9 Chandsab Mujawar is concerned, as per the order sheet dated 19.01.2019 a submission was made by the concerned Police that he is suffering from throat cancer and unable to speak and at least two months' time is required to tender him for cross-examination. Therefore, in her wisdom, the learned Trial Judge has ordered discarding the evidence of PW.9 and proceeded with the matter.
10. Since already statement of accused were recorded under Section 313 of Cr.P.C., and after the remand, no fresh evidence was led except cross-examining PWs.1 to 8 and 10 to 17, rightly once again statement under Section 313 of Cr.P.C., is not recorded.
11. After hearing arguments of both sides, vide impugned judgment and order dated 26.11.2016, the learned Trial Judge has convicted accused Nos.1 to 3 for the offences punishable under Sections 302, 120B, 109 read with Section 34 of IPC, and sentenced them as detailed in the impugned judgment and order.
12. Assailing the impugned judgment and order, the learned counsel representing the accused submitted 9 that the order under appeal is contrary to law, facts and material on record and it deserves to be set aside. The Trial Court has not assigned any reasons or discussed evidence to incriminate the appellants and as such, the impugned judgment and order are not sustainable in law. They would further submit that the prosecution story is too perfect to be believed. The entire evidence points towards hoisting of false case to wreck vengeance and settle score with the accused persons, more particularly against accused Nos.1 and 3, who are none other than the son-in- law and wife of the deceased.
13. The Investigating Officer has not seized the torch in whose light the prosecution witnesses saw the accused Nos.1 and 2 committing the murder. When it is alleged that accused Nos.1 and 3 were having illicit relationship, the prosecution story that they along with the wife of accused No.1 were driven out of the house cannot be accepted. The evidence on record does not disclose the role played by accused No.2 and therefore his conviction is liable to be set aside.
10
14. The learned counsel representing accused No.2 argued that according to the prosecution, identity of accused No.2 was disclosed by accused No.1. However, accused No.2 was arrested on 21.02.2013 and accused No.1 was arrested on 27.02.2013. Therefore, the evidence of prosecution witnesses regarding identity of accused No.2 is not established.
15. The learned counsel further submits that the evidence of prosecution witnesses that accused Nos.1 and 2 waited till they come out of the house and saw them and thereafter they dragged the deceased to a distance of 40 ft., and ran away cannot be believed. The medical evidence is contrary to the oral testimony regarding the time of death and prays to allow the appeals.
16. In support of his argument, the learned counsel for accused Nos.1 and 3 has relied upon the decisions1in the matter of Bhimappa Jinnappa Naganur V/s. State of Karnataka1.
1 1993 SCC (Cri.) 1053 11
17. On the other hand, the learned Additional State Public Prosecution supporting the impugned judgment and order of conviction, would submit that the evidence placed on record establish that taking undue advantage of the fact that CW.7 Gourawwa, who is no other than the daughter of accused No.3 and wife of accused No.1, is dull-witted, after the marriage, they started having illicit relationship. Unable to bear with the same, deceased sent accused Nos.1 and 3 along with CW.7 Gourawwa out of their house. For a period of 4 months, they went towards Maharashtra to eke out their livelihood, once again they returned to the house of the deceased. After returning from Maharashtra, when their illicit relationship did not end, after holding a panchayat in the presence of elders of the village, accused No.1 was driven out of the house. While leaving the panchayat, he gave a threat that he would eliminate the deceased.
18. The learned Additional State Public Prosecutor would submit that, accused No.1 continues to meet accused No.3 stealthily and at her instigation, ultimately on the night of 08.02.2013 accused No.1 with the help of 12 accused No.2 strangulated deceased while he was sleeping out side the house. Hearing desperate cries of the deceased, the daughters, daughter-in-law and accused No.3 came out of the house and saw accused Nos.1 and 2 sitting on the deceased and accused No.1 strangulating him. When the daughters and daughter-in-law of deceased tried to prevent accused Nos.1 and 2 from strangulating the deceased, accused Nos.1 and 2 pushed them away and dragged the body about 40 ft., and ran away.
19. The learned Additional State Public Prosecutor, further submits that the medical evidence proves that the death of deceased was due to Asphyxia as a result of intense pressure over the neck due to throttling. The evidence of PWs.1, 4 and 5 proves the participation of accused Nos.1 and 2 in the crime. The evidence of PWs.10 and 11 proves that they saw accused Nos.1 and 2 near the place of occurrence immediately before the incident.
20. He would further submit that immediately after the incident, accused No.1 pleaded for mercy saying that this one time she may be excused. The testimony of PWs.1 and 4 to 9 also prove the illicit relationship between 13 accused Nos.1 and 3 and a panchayat was held, wherein it was decided that accused No.1 should leave the house of the deceased. Appreciating the oral and documentary evidence, the Trial Court has come to a correct conclusion that the charges levelled against the accused Nos.1 to 3 are proved beyond reasonable doubt and there is no perversity and prays to dismiss the appeals. In support of the prosecution case, learned Additional State Public Prosecutor has relied the decision in the matter of State of Uttar Pradesh V/s. Rasid and others2.
21. We have heard elaborate arguments of both sides and perused the records.
22. It is not in dispute that CW.7 Gourawwa is dull-witted, she was given in marriage to accused No.1, even after the marriage, accused No.1 and CW.7 Gourawwa stayed with the family of deceased. Accused No.3 is the wife of deceased. In other words, she is the mother-in-law of accused No.1. The allegations against accused No.1 is that taking undue advantage of the dull- wittedness of his wife i.e., CW.7 Gourawwa, accused No.1 2 (2003) 9 SCC 449 14 developed the illicit relationship with accused No.3 and it came to be known to everyone in the family.
23. PW.1 Muttawwa Hugar is the complainant. She, PW.5 Sayawwa are the daughters, PW.6 Siddappa Sagareppagol is the son and PW.4 Muttawwa Sagareppagol is the daughter-in-law of the deceased and accused No.3. PW.7 Sabusiddappa Hagari is no other than the brother of accused No.3. He is also the father of PW.4 Muttawwa Sagareppagol who was given in marriage to PW.6 Siddappa Sagareppagol. All these witnesses have deposed regarding the illicit relationship between accused Nos.1 and 3. They have stated that when they and deceased advised accused Nos.1 and 3 to desist from their illicit relationship, they did not heed to their advise and on the other hand accused No.3 argued with the deceased. Therefore without any alternative deceased directed them to leave the house.
24. Their evidence further proves the fact that accordingly, accused No.1, his wife CW.7 Gourawwa and accused No.3 left the house and went to Maharashtra for eking out their livelihood. The evidence of these witnesses 15 further establishes the fact that after 4 months they returned to the house of deceased. As the illicit liaison between accused Nos.1 and 3 did not stop, a panchayat was held in the presence of PW.7 Sabu Siddappa Hagari, PW.8 Bhimappa Dalawai and PW.9 Chandsab Mujawar and since accused Nos.1 and 3 did not respect the decision of the panchas, accused No.1 was ordered to leave the house of the deceased. Being enraged by the same while leaving the house accused No.1 gave threat to eliminate deceased.
25. PWs.1, 4 and 5 have clearly stated that inspite of accused No.1 being driven out of the house, stealthily he used to meet accused No.3 and in fact though they were apprehensive, they did not think that accused No.3 having led a family life with deceased for such a long period would think of eliminating him with the help of accused No.1.
26. As evident from the testimony of PW.1 and 4 to 6, at the first instance deceased drove out accused Nos.1, 3 and CW.7 Gourawwa from his house, but after lapse of 4 months they came back and started living in his house and as the illicit relationship between accused Nos.1 16 and 3 did not stop and they were not heeding to his advise, a panchayat was held in the presence of PWs.7 to 9 and ultimately accused No.1 was removed from the house hold of the deceased.
27. It is pertinent to note that in the complainant it is stated as though at the first instance itself panchayat was held. On this aspect in her further statement PW.1 complainant has clarified and stated that the panchayat was held after accused Nos.1, 3 and CW.7 Gourawwa return to the house hold of the deceased after 4 months. Whether the panchayat was held at the first instance or on the second occasion, this fact is not disputed by the defence by cross-examining the PW.1 with reference to the said averment in the complaint.
28. PWs.1, 4 and 5 who are the eye witnesses to the actual incident dated 18.02.2013, have spoken about the same. According to the prosecution at the relevant point of time PW.6 Siddappa Sagareppagol was working in a Brick Kiln at Teertha and as such he was not available in the house when the incident took place. Consequently, he is not cited as an eye witness to the 17 incident. Time and again the defence has argued and infact made suggestions to PWs.1, 4 to 6 that PW.6 Siddappa Sagareppagol was very much available in the house when the alleged incident took place. If he were to be present in the house and had witnessed the incident, certainly he would have been cited as an eye witness and his evidence would have supported the prosecution case. The prosecution has nothing to gain by showing him as not present, if he were to be present in the house when the incident took place.
29. The evidence placed on record establishes that though PW.1 Muttawwa Hugar was given in marriage and she was living at her matrimonial home at Kokatanuru, at the relevant point of time she had come to her parents house for delivery. Infact she had delivered a child about 8 days prior to the date of incident. The evidence of PWs.1, 4 and 5 prove that on 17.02.2013, after finishing the dinner, PWs.1, 4, 5, CW.7 Gourawwa and accused No.3 slept inside the house, while deceased slept out side the house. At about 3:00 a.m. of 18.02.2013, they heard deceased desperately shouting "Muttamma.. Muttamma.." 18 Hearing the same, all of them came out of the house with a charging battery and in the light of it, they saw accused Nos.1 and 2 sitting on the chest of deceased. Accused No.1 was strangulating the deceased and pulling his kashidara. They have in unequivocal terms deposed that they tried to rescue the deceased from the clutches of accused Nos.1 and 2, but accused Nos.1 and 2 pushed them away and dragged the deceased to a distance of about 40 ft., and by the time they could reach the spot, accused Nos.1 and 2 ran away and they found that deceased dead.
30. The learned counsel representing accused No.2 argued that accused No.2 was not known to the prosecution witnesses and in the absence of test identification parade, these witnesses identifying accused No.2 before the Court is not reliable. It is pertinent to note that at the scene of occurrence these witnesses i.e., PWs.1, 4 and 5 have seen accused Nos.1 and 2 in the torch light. When they went to the rescue of the deceased, accused Nos.1 and 2 pushed them away and at this stage also they had the opportunity to see them. After the arrest of accused No.2, they have seen him at the Police Station 19 and identified him. So also before the Court, they have identified accused No.2. In the circumstances, the evidence of PWs.1, 4 and 5 regarding identity of accused No.2 as one of the perpetrators of the crime is reliable and admissible.
31. The learned counsel representing the accused argued that PWs.1, 4 and 5 are not at all eye witnesses to the incident and if really they were present when the incident took place, they would have tried to rescue the deceased. They also argued that for the reasons best known, though PW.6 Siddappa Sagareppagol was present in the house, the Investigating Officer has not cited him as eye witness. As already discussed the prosecution has established that PW.6 was not present when the incident took place. Infact out of the women folk CW.7 Gourawwa being a dull-witted person and accused No.3 being an abettor of the crime could not be expected to fight with the accused persons. Though PW.1 had given birth about 1 week prior to the date of incident and PW.5 who was aged about 12 years, along with PW.4 have tried their level best to prevent the accused Nos.1 and 2 from assaulting the 20 deceased, but they were pushed away and accused Nos.1 and 2 dragged deceased away from them about 40 ft., and thereafter ran away. All this has happened in quick succession. Therefore, merely because PWs.1, 4 and 5 were not able to save the deceased would not render their presence at the scene of occurrence doubtful.
32. The learned counsel representing accused No.2 argued that according to the prosecution, the identity of accused No.2 was disclosed by accused No.1. However accused No.2 was arrested on 21.02.2013, whereas accused No.1 was arrested on 27.02.2013 and therefore, question of coming to know about the identity of accused No.2 through accused No.1 would not arise. As evident from the testimony of PW.16 Venkatesh Yadahalli, accused Nos.1 to 3 were arrested on 21.02.2013. While they were being taken to be produced before the Investigating Officer, accused No.1 escaped and in this regard he has given a complaint before the Savalagi Police Station and case is registered in Crime No.24/2013. This piece of evidence of PWs.16 and 17 is not disputed by accused No.1. As deposed by PW.16, subsequently on 27.02.2013 21 he has arrested accused No.1 and produced before the Investigating Officer with report at Ex.P11. Infact a suggestion is made to PW.17 that accused No.1 was in custody from 21.02.2013 itself. Of course PW.17 has denied the said suggestion. Therefore, it is not open to accused No.1 to say that he was arrested on 27.02.2013 and as such on 21.02.2013 the Investigating Officer and witnesses had no occasion to come to know about the identity of accused No.2. On 21.02.2013, when PW.16 arrested accused Nos.1 to 3 he had come to know about the identity of accused No.2 through accused No.1, all though accused No.1 manage to escape.
33. It is pertinent to note that at the time of her evidence, PW.5 Sayawwa Sagareppagol was aged 15 years. At the time of incident, she was aged about 12 years old. She has clearly deposed with regard to all the aspects of the prosecution case including the illicit relationship between accused Nos.1 and 3, the fact of they being driven out of the house alongwith CW.7 Gourawwa at the first instance and after holding of panchayat accused 22 No.1 being driven out. She has also deposed regarding the actual incident dated 18.02.2013.
34. During her cross-examination, PW-5 Sayawwa Sagareppagol has clearly stated that in their house, they were not having any servants and they were doing all the household and agricultural work. Inspite of this witness being cross-examined at length, she has withstood the test of cross-examination. Inspite of being a child witness, her evidence is cogent, consistent and reliable and we find no reason to disbelieve the same.
35. PW.10 Siddappa Mali and PW.11 Laxman Pote are the neighbours of the deceased. During the course of their evidence, they have deposed that at the time of incident, it was harvesting time of Wheat and Jowar and at about 02:00 a.m., they woke up to answer nature's call. After attending the nature's call, they sat by the side of the road and were chit chatting and at that time they saw the accused Nos.1 and 2 in the light of the street lamp. In the morning they came to know about the murder of deceased Ammanna. Even though, these two witnesses have been cross-examined at length, nothing could be elicited which 23 would dislodge their testimony. Having regard to the fact that they are the neighbours of the deceased, their presence though at the odd hours on the road is natural. We find no reason to disbelieve their testimony.
36. PW.6 Siddappa Sagareppagol is the son of the deceased. As already discussed, when the incident took place, he was not present in the house. After coming to know about the incident, he returned from Teertha. In addition to speaking with regard to the illicit relationship between accused Nos.1 and 3, the fact of they along with CW.3 Gourawwa been sent out of the house at the first instance and after holding of panchayat, driving out accused No.1 from the household of the deceased, PW.6 has deposed that after coming to know about the incident, he returned home. He has also deposed about PWs.1, 4 and 5 expressing apprehension of the threat given by accused No.1 to eliminate the deceased and also accused Nos.1 and 3 secretly meeting, he told them that accused No.1 may not go to that extent.
37. During his cross-examination, suggestions were made to PW.6 that when the incident took place, he 24 was very much present in the house. Of course he has denied the same. The defence has chosen to make this suggestion on a hypothesis that if such an incident has taken place, certainly PW.6 being young and energetic would have resisted the assailants and therefore even though he was present in the house, the prosecution has chosen to project as though he was not present. In fact, the defence has gone to the extent of suggesting that the death of the deceased is natural and only to implicate accused Nos.1 to 3, a false complaint is filed. This suggestion is contrary to the medical evidence regarding the cause of death of the deceased.
38. Now coming to the medical evidence. PW.12 Dr.Gyabu Sab Galagali is the Medical Officer who has conducted the postmortem examination of the deceased. He has found the following injuries:
"1. Dark reddish intence pressure abrasions present over the left side of neck. Irregular measuring about 1 c.m. X ½ c.m.
2. Beside and above the injury (1) a nail scratch abrasions present. Measuring about 1 c.m. X ¼ c.m. It is darkish red.25
3. Abrasions below and lateral side of left side of neck, an irregular darkish red pressure abrasions present. Measuring about ½ X ½ c.m.
4. Medial to injury (3) two darkish red nail scratch marks present.
5. Medial part of (Rt) side of neck i.e., over the thyroid cartilage, another pressure abrasions present. It is darkish red, irregular. Measuring about 1 X ½ c.m.
6. Just below and (Rt) side of chin, a darkish red coloured abrasion present. Measuring about ½ c.m x ½ c.m.
7. A nail scratch mark present over the (Rt) side of neck, just below the ear labule area. Measuring about 1 c.m. x ¼ c.m. reddish in colour..
8. A pressure abrasion about 1½ x 1 c.m.
darkish red present over the (Lt) cheek, medial of (Lt) middle part of ear about 1"
distance.
9. A pressure abrasion present just beside the (Lt) eye about 1" distance. Measuring about 1½ x ½ c.m. Darkish red and irregular.
10. A reddish abrasion over the back of (Lt) shoulder area, i.e., upper part.
Measuring about 2 c.m. x 1 c.m.
Irregular.
11. Two pressure abrasions and two nail scratch marks present over the (Lt) knee joint, reddish, irregular. Measuring about ½ x ½ c.m."
26
39. Ex.P6 is the post mortem report. Under the column pertaining to Larynx and Trachea (zsÀé¤ ¥ÉnÖUÉ ªÀÄvÀÄÛ ±Áé¸À£Á¼À), it is stated that there is extravasated blood in neck area, ruptured small Venules seen, rupture of Cricoid Cartilage and rupture of Thyroid Muscle seen.
40. Similarly, under the column pertaining to Mouth, Pharynx, Oesophagus (¨Á¬Ä, UÀAl®gÀĺÀgÀ ªÀÄvÀÄÛ C£ÀߣÁ¼À), it is stated that there is ruptured Venules and tear of Muscle seen in lower part of tongue i.e., at the base of the tongue.
41. PW.12 has deposed that "inward compression fracture of Hyoid bone at both ends" seen. He is of the opinion that all the injuries are ante mortem in nature and time since death is 4 to 8 hours prior to the postmortem examination and the cause of death could be due to Asphyxia as a result of intense pressure over the neck due to throttling of the neck. During his cross-examination, he has admitted that while describing the external injuries, he has not referred to the fracture of Hyoid bone and explained that it is not an external injury. He has also 27 admitted that there was no ligature mark. Admittedly, no ligature material is used to leave ligature mark.
42. PW-12 has also conceded that it is not possible for two persons to strangle one person at the same time. It is not the case of the prosecution that both accused Nos.1 and 2 strangled the deceased at the same time. It is the definite case of the prosecution that accused No.1 sat on the deceased and strangled him, while accused No.2 sat on deceased behind accused No.1 so as to prevent the deceased from resisting. PW.12 has clearly stated that the injury sustained by the deceased on his neck is not possible to be caused while a person work in the land using a sickle. On this aspect, he has clarified that the deceased has sustained number of injuries and they were fresh and were caused due to intense pressure and scratches. He has deposed that he has not noted presence of Petechiae on the face of deceased. So far as causing of Petechiae on the face, PW.12 has stated that in case of throttling, Petechiae i.e., red dots on the face appear if the pressure on the neck is partial and they will not be present if the pressure is complete. Similarly, if the pressure on 28 the neck is partial, there would be bleeding from the nose and ears. It would not be there if the pressure is complete.
43. PW-12 has denied that deceased has not suffered any injuries and at the instance of Police he has given false report. The testimony of PW.12 coupled with Ex.P6 proves that the death of the deceased was homicidal due to throttling. Even though suggestions were made to PWs.1, 4 to 6 that deceased died a natural death, but no such suggestion is made to PW.12, the Medical Officer who has conducted the postmortem examination and who is competent to speak on the same.
44. During the course of his evidence, PW.12 has deposed that the stomach of the deceased contained semi digested food and therefore he is of the opinion that deceased had consumed food 3 hours prior to his death. The learned counsel representing the accused submitted that this falsifies the case of the prosecution that the incident took place at 3:00 a.m. In Bhimappa's case referred to supra, relied upon by the defence, referring to the Postmortem Report especially the contents of the stomach, the Courts disbelieve the testimony of eye 29 witnesses and giving benefit of doubt acquitted the accused. However in the present case, the testimony of all the prosecution witnesses, including the eye witnesses namely PWs.1, 4 and 5 is cogent consistent and reliable. In the light of their testimony the opinion of the Medical Officer regarding the contents of the stomach does not assume importance, since it is only an opinion evidence.
45. On this aspect the decision of the Hon'ble Supreme Court reported in (2003) 9 SCC 449 in the matter of Rasid's case, referred to supra relied upon by the prosecution is relevant, wherein it was held that calculation of time of incident on the basis of probabilities of the case is not permissible in the presence of acceptable oral evidence. The Hon'ble Apex Court further observed that where there was acceptable evidence of eye witnesses regarding the time of incident, the High Court should not have entered into exercise of calculating the time of incident on the basis of probabilities having no foundation in evidence. The Hon'ble Apex Court further observed that presence of semi digested food in the stomach of the deceased is not an absolute proof of the fact that deceased 30 must have died before day break. It was further held that, though that can be a factor to be taken into consideration, it cannot be such a prime factor as to over rule the acceptable oral evidence available on record regarding the time of incident.
46. It is pertinent to note that PW.9 Chandsab Mujawar, in addition to being a pancha in the panchayat held at the house of the deceased, is also the scribe of the complaint i.e., Ex.P1. He has given evidence regarding both. As already discussed at the first instance the accused persons did not chose to cross-examine the prosecution witnesses and consequently the learned Sessions Judge took their cross-examination as nil and proceeded to dispose off the case by convicting the accused persons vide judgment and order dated 26.11.2016. However in Crl.A No.100314/2017 dated 08.06.2018 the said judgment and order of conviction came to be set aside and the case was remanded for fresh disposal after providing opportunity to the accused persons to cross-examine the witnesses.
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47. Infact, after the remand, all the witnesses are cross-examined except PW.9 Chandsab Mujawar. On 19.01.2019, in the order sheet it is noted that the non bailable warrant issued against PW.9 is not executed on the ground that the witness is suffering from throat cancer and as such is not able to speak and 2 months time was sought for tendering him before the Court for his evidence. However, the learned Sessions Judge has discarded his evidence and proceeded with the matter.
48. PW.9 is literate as evident from the fact that he is the scribe of complaint at Ex.P1. His examination-in- chief was already over. Only he was to be cross-examined. If at all he was unable to speak, there was no impediment to extract his answers by way of written reply. More over in the cross-examination he was required to answer the suggestions which may be by way of denials which could have been done even through signs. Without resorting to this exercise the trial Court has wrongly proceeded to discard his evidence.
49. Section 33 of the Evidence Act, 1872 deals with relevancy of certain evidence for proving, in 32 subsequent proceedings, the truth of facts therein stated. It reads as follows;
"Section 33 : Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated- Evidence given by a witness in a judicial proceeding, or before any person
authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.
Provided -
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
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that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."
50. In the present case, at the first instance the accused had the opportunity to cross-examine PW.9. Having not done so, they cannot take advantage of their own fault by getting his evidence discarded. His testimony supports the case of the prosecution. Infact his evidence is supported by the testimony of PW.1 and also PW.8 in his cross-examination wherein he speaks about the presence of PW.9 Chandsab Mujawar along with other panchayatdars.
51. In the present case even where it is held that the PW.9 has become incapable of giving evidence, then also his earliest statement i.e., examination-in-chief is admissible. Instead of discarding the evidence of PW.9, the trial Court should have kept the said question open and decided whether to rely upon his testimony or not. 34 Therefore, we hold that the trial Court has erred in discarding the evidence of PW.9. Even where it is held that his evidence is discarded, we hold that in the absence of his testimony also the prosecution has established the charges levelled against the accused persons.
52. It is argued that the testimony of the prosecution witnesses, that accused Nos.1 and 2 waited till they came out of the house and saw them and thereafter dragged the deceased to a distance of 40 ft., and ran away cannot be believed. The evidence placed on record establish the fact that hearing the distress call of the deceased, PWs.1, 4 and 5 along with CW.7 Gourawwa and accused No.3 came out of the house with a charging battery and saw accused Nos.1 and 2 sitting on the deceased and accused No.1 strangulating him. Simultaneously, they have rushed towards the deceased to save him, at which stage accused Nos.1 and 2 pushed them and after dragging deceased to a distance of 40 ft., they ran away. All this has taken place in quick succession and it cannot be said that there was large time gap 35 between each of these, so as to disbelieve the evidence of PWs.1, 4 and 5.
53. The inquest mahazar at Ex.P2 which was conducted at the earliest point of time, at question No.4 refers to place where the deceased was seen alive prior to his death which is out side his house. Question No.11 also refers to the fact that after strangulating the deceased, accused Nos.1 and 2 dragged him about 40 ft towards the land and left the place. This also supports the testimony of PWs.1, 4 and 5 that, at the first instance accused persons strangulated the deceased at the place where he was sleeping. When PWs.1, 4 and 5 and others rushed towards accused Nos.1 and 2, they pushed them and dragged the deceased to a distance of 40 ft., and thereafter ran away. The evidence of PWs.1, 4 and 5 on this aspect is natural and reliable and we find no reason to disbelieve their testimony.
54. Thus from the above discussion, we hold that through the oral and documentary evidence the prosecution has proved the allegations against the accused beyond reasonable doubt. Taking into consideration the 36 same, the learned Sessions Judge has come to a correct conclusion and convicted and sentenced the accused persons accordingly. We find no perversity in the conclusions arrived at by the trial Court. In the result, the appeal filed by the accused persons are liable to be dismissed. Accordingly the appeals are dismissed.
Sd/-
JUDGE Sd/-
JUDGE Rsh / PJ