Karnataka High Court
State By Sub-Inspector Of Police, ... vs Tulasidaran on 2 February, 2000
Equivalent citations: 2000CRILJ3115, ILR2000KAR2967, 2000(4)KARLJ25
Author: B.S. Sreenivasa Rao
Bench: B.S. Sreenivasa Rao
JUDGMENT
1. The respondent to this appeal, the original accused Tulasidaran was charged with having committed offences punishable under Sections 448 and 307 of the IPC. The allegation was that at about 6.45 p.m. on 3-7-1991 he is supposed to have been taken to the house of his mother-in-law Ponnamma on the pretext of some panchayat being held. The record indicates that the family seems to have been involved in some violent incidents earlier, pursuant to which the father of the accused was at the relevant time injured in the Hospital. The accused is alleged to have attacked his mother-in-law Ponnamma with a knife as a result of which she sustained injuries of some seriousness. He also stabbed the sister Smt. Anitha who sustained a stab injury on the back and the brother Bijukumar sustained a serious injury on the abdomen as a result of which the intestines were protruding from the injuries. All the three injured persons were taken to the Kadaba Government Hospital from where they were moved to the Wenlock Hospital at Mangalore. The prosecution case is that a few days prior to the incident Ponnamma's husband and her son Bijukumar had attempted to kill the elder brother of the accused and that it was for this reason that the accused had trespassed into the house and attacked the inmates. The matter was reported to the police who arrested the accused and on completion of the investigation, he was put up for trial. The evidence in this case essentially consists of the depositions of the three injured persons and other supportive evidence. The learned Trial Judge expressed certain doubts with regard to the credibility of the witnesses principally because the sister of the accused Anitha gave an entirely different version in her evidence which was roughly to the effect that it was the accused who had been attacked and that he had acted in self-defence. Also, the Trial Court took note of the fact that the accused had sustained injuries of some seriousness and was also admitted to the Hospital and treated as an in-patient for several days. The prosecution had not explained the injuries on the accused and this was the main ground on which the Trial Court refused to convict on the basis of the prosecution evidence. The State of Karnataka has assailed the correctness of the acquittal order through the present appeal.
2. I have heard Sri Koti, learned Additional State Public Prosecutor on behalf of the appellant-State and the learned Counsel R.B. Deshpande on behalf of the accused respondent. Mr. Koti has seriously assailed the order of acquittal because he has demonstrated that even though the entire incident is virtually a family affair that the evidence of the mother-in-law Ponnamma and of the other injured person who is her son Bjjukumar very clearly establishes that it was the accused who rushed into their house and inflicted the injuries with an axe and knife. He has submitted that the accused was none other than the son-in-law, that there is no difficulty with regard to the identification as the incident has happened within the house and furthermore that even as far as the motive is concerned, that this had also been established by the prosecution. It is his submission that the evidence of the daughter Anitha who is P.W. 3 ought to have been totally discarded by the Trial Court as she has been treated as a hostile witness and he submits that evidence of such a witness which is tainted evidence cannot either contradict or dilute the evidence of the other witnesses which is almost faultless. Secondly, it is his submission that it was not for the prosecution to explain the injuries on the accused because he himself has mentioned in his statement under Section 313 of the Cr. P.C. that he had been attacked by Bijukumar with an axe and that he had virtually hit out in self-defence in the course of which the assailants had sustained some injuries. Mr. Koti contended that where the accused has himself fully explained the injuries that there is virtually no duty cast on the prosecution to explain them and that the principle which normally applies in criminal cases viz., that if the injuries are not explained it is a factor against the prosecution which leads to the conclusion that the witnesses are holding back material evidence, would not hold good. His submission is that consequently the order of acquittal should be set aside and the accused be acquitted under both the charges. He has pointed out that a deadly weapon was used, that the injuries are serious and are on vital parts of the body and that therefore, Section 307 of the IPC would squarely apply. Also, he points out that even though the accused was a family member that in a situation where a son storms into the family home with a deadly weapon with the intention of causing death or grievous injury that the entry cannot be construed as being lawful but, that it would constitute a case of trespass and that therefore, the charge under Section 448 of the IPC is also established.
3. Mr. Deshpande, the learned Counsel who represents the accused points out and perhaps with considerable justification that as far as the last submission is concerned, that the evidence is virtually silent with regard to how and under what circumstances the accused went to Ponnamma's house. There are references to the effect that some panchayat was to be held for purposes of exploring a settlement pursuant to the earlier assault and the accused himself has contended that he was virtually taken there by Ponnamma who is the mother-in-law of his elder brother. In any event, what is submitted is that unless it is demonstrated that the entry into the premises was against the sanction and wishes of the mother or the rightful owners that there can be no question of an offence under Section 448 of the IPC being committed. We do see considerable justification in this submission because there is no clinching evidence to indicate that the entry of the accused into the family house was unlawful. He is a member of the extended family and again, there is nothing to indicate that at the time when he entered the premises that he was doing so for an unlawful purposes. Whichever way one views the evidence it would be impossible to sustain the charge under Section 448 of the IPC.
4. As regards the main head of charge, Mr. Deshpande's submission is that the evidence of the daughter Anitha can hardly be placed on parallel with that of a hostile witness. He points out to the Court that the hostile witness is one who feigns ignorance when asked to depose or one who denies the correctness of the police statement and gives a go-by to it. In this case, Anitha has done neither of the two, she has given evidence but her evidence does not support the prosecution version with regard to the genesis of the incident because she states that it was the accused who was first attacked and that the injuries were sustained when he acted in self-defence. Mr. Deshpande virtually capitalises on the fact that there were injuries of some seriousness on the accused which the prosecution witnesses have not explained or admitted and it is his contention therefore that the Trial Court has very rightly relied on Anitha's evidence for purposes of testing as to whether the version of Ponnamma and her son Bijukumar can be accepted.
5. We need to record here that even in the case of a hostile witness the correct legal position is that if some part of the evidence can be sifted out and if that part of the evidence appears to be good and reliable, that a Court can certainly take it into consideration but there may be a small category of cases in which the witness who is giving evidence on oath deposes along lines that do not fully support the prosecution case and in such a situation if the general credibility of the witness appears to be good a Court is duty-bound to take that evidence into consideration. That precisely is what the learned Trial Judge has done and the result was that there was an inherent deadlock as we shall presently explain.
6. As regards Ponnamma and Bijukumar are concerned, Mr. Deshpande's submission is that they are totally silent with regard to how and under what circumstances the accused sustained injuries, if according to them there he was the aggressor and they were the victims. His submission is that the injuries unequivocally indicate that it was a two-way attack and if this is the position that it is evident that on very material aspects such as the question of the injuries that the witnesses are holding back something from the Court. He submits that if the evidence suffers from this infirmity that it is too dangerous to base a conviction on this material. These submissions are well-founded but, what we need to record is something further insofar as on the one hand we have the evidence of two prosecution witnesses which squarely implicates the accused but, cannot explain how he sustained injuries, whereas on the other hand we have a more complete and reliable version from the sister Anitha which is fully corroborated by the wound certificates and the injuries and the result is that the position is deadlocked. The Court is faced with two contradictory versions and inevitably, the benefit of doubt would have to go to the accused.
7. There is one other important point raised by Sri Deshpande, learned Counsel who represents the accused when he points out that all the injured persons were originally admitted to the Government Hospital at Kadaba, the wound certificates have been issued by that Hospital and have been tendered in evidence but, nobody from that Hospital has come forward to give evidence in relation to the injuries. Though the learned State Public Prosecutor submitted that these certificates are admissible in their own right which position is true, Mr. Deshpande points out that it is a requirement of law particularly in serious criminal cases of the present type that the doctor must be examined as a witness and he submits that the reason for it is principally because there are many clarifications with regard to the nature of the injuries and the opinion with regard to how those injuries could have been sustained which can materially alter the outcome of the case and in the absence of the doctor being summoned as a witness that the Court must regard this as a fatal procedural lapse. The learned Counsel is right in his submission which is not only academic but is one of considerable seriousness, the reason for it being that the opinion of the doctor with regard to the nature and gravity of the injury and several subsidiary questions such as the condition of the patient, the course of treatment, the statements recorded in the Medico-Legal Register and more importantly the finer aspects of how exactly the injury occurred and the various other possibilities are all aspects that are very crucial to the defence. The non-examination of the doctor under these circumstances not only handicaps but virtually paralyses the defence and if this be the fall-out of a procedural lapse then it will have to be held to be fatal to the prosecution. In the present case, as indicated by us, the doctor from the Hospital where the certificates were issued i.e., Kadaba Government Hospital has not been examined nor have the medical records from that Hospital been produced and consequently, the defence objections will have to be upheld.
8. In a futile attempt to get over this impossible situation Sri Koti pointed out to us that Dr. Kamath, P.W. 9 from the Wenlock Hospital, Mangalore has been examined and that he has produced certain records. We note with a degree of concern that Dr. Kamath has only given cavelier evidence that he has said nothing with regard to the injuries or the treatment nor has he produced any certificates and in this background, his evidence is of no use whatsoever to the prosecution. It is true that if this doctor had issued the requisite certificates and had given proper evidence that the situation could have been salvaged but on the facts of the present case Mr. Deshpande is right when he points out that all the injured persons were initially admitted to the Government Hospital at Kadaba and that therefore, the medical evidence in relation to what transpired at the earliest point of time was not only crucial but, irreplaceable.
9. The aforesaid are undoubtedly some of the finer points of the law which were not raised before the Trial Court but, which undoubtedly arise for consideration. Once these are upheld it would be impossible to sustain a conviction and consequently, the order of acquittal passed in favour of the accused will have to be confirmed.
10. The appeal accordingly fails and stands dismissed. The bail bond of the accused to stand cancelled.