Karnataka High Court
State Of Karnataka vs Mahadeva, S/O Machiganna And Others on 13 March, 1995
Equivalent citations: 1995(2)ALT(CRI)182, 1995CRILJ2741, ILR1995KAR1291, 1995(2)KARLJ100
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
JUDGMENT Mirdhe, J.
1. This Criminal Appeal is preferred by the State against the judgment dated 30-6-1992 passed by the learned Additional Sessions Judge, Bangalore Rural District, Bangalore in S.C. 8/91 acquitting the accused of the offences punishable under Secs. 143, 147, 148 and 302 r/w. 49 IPC.
2. We have heard learned Govt. Advocate Sri. Rajagopal and learned counsel for the accused Shri. Hasmath Pasha and perused the records of the case.
3. The case of the prosecution is that on 29-7-1990 at about 10 p.m. there was an altercation between P.W. 1 and deceased Puttaswamy as Puttaswamy was not allowing P.W. 1 to go to her mother's place and he was abusing her and at that time all the accused went inside the house of P.W. 1 dragged the deceased Puttaswamy out of the house, surrounded him and started assaulting him. A-1 and A-2 assaulted with clubs, A-3 with Kavagolu, A-4 with kudlu and A-8 with stone and A-5 and A-7 along with one Putti pushed her when she went to the rescue of her husband and that while leving the scene of occurrence the accused kicked the deceased Puttaswamy. The motive for murder is that A-2's son was residing separately after his marriage with the daughter of uncle of P.W. 1 and as such their relationship with P.W. 1 and deceased had become strained.
4. On the point of motive the prosecution relied on the evidence of P.W. 1 who deposed that on that day at 10 p.m. there was an altercation between her husband and A-2, and this led to the assault on the deceased. But the prosecution has sought to project a totally different motive for the murder. According to the prosecution A-2's son was residing separately after his marriage with the daughter of uncle of P.W. 1. This motive is not mentioned in Ex. P1. P.W. 1's reply in the cross-examination is to the effect that there was never any occasion for any quarrel or fight between her husband and his brother P.W. 5 on the one hand and A-2, his wife and their children on the other and that there was no ill-will between A-3 and other accused against her or her husband and that the accused had no intention to assault her husband. In view of these replies of P.W. 1 in the cross-examination, the trial court was justified in coming to the conclusion that the prosecution has failed to prove that there was any motive on the part of any of the accused to commit the murder of Puttaswamy.
5. P.Ws. 1 to 3 have been examined as eye-witnesses. P.W. 9 is the Doctor who conducted the post-mortem examination over the dead body of Puttaswamy and he noted some ante-mortem injuries on the dead body of Puttaswamy which he has described in Ex. P4. His evidence is to the effect that the injury Nos. 8, 9, 10, 11, 12, 13, 17 and 32 being abrasions could not be caused by means of M.Os. 1, 3, 5 and 6. If the weapons like M.Os. 1, 3, 5 and 6 are used in assault they would cause lacerated wounds and there was no lacerated wound on the body of the deceased. He has also stated that even M.O. 5 would cause lacerated wound. He has not been able to say whether M.O. 5 could cause injury Nos. 1 to 32 and whether M.O. 6 could cause injury Nos. 1 to 32. He has admitted that M.Os. 5 and 6 could not cause contusions noted in Ex. P4, the post-mortem report. He has, further, reiterated that except injury Nos. 5 and 6 none of the other contusions caused any corresponding internal injury and except the contusions recorded at injury Nos. 4, 5 and 6 rest of the contusions were superficial and simple in nature. P.W. 9 also did not find any corresponding injury to injury Nos. 5 and 6 which are simple in nature. His further evidence is that injury No. 4 was grievous but injury Nos. 1 to 3 were simple. His evidence is that the external injuries noted by him were sufficient to cause the death of the deceased. He has stated that M.O. 3 being a sharp weapon cannot cause any of the contusions noted in Ex. P4. Further his evidence is that M.O. 3 could cause only incised wound but no incised wounds were found on the body of the deceased. He has stated that if M.O. 1 is used in assault there will be two simultaneous injuries. But there was no such injury on the deceased. He was also not in a position to definitely say that M.Os. 5 and 6 had caused the depressed fracture of temporal bone which is corresponding to injury No. 4. On the other hand it is the evidence of P.Ws. 1 to 3 that A-1 add A-2 were assaulting the deceased with clubs, A-3 with Kavagolu and A-8 with a stone and the other accused with bare hands. If the evidence of these eye-witnesses regarding the assault is read in juxta-position with the medical evidence of P.W. 9 it becomes apparent that there is contradiction between the occular evidence of P.W.s 1 to 3 and the medical evidence of P.W. 1.
6. In Annappa v. State of Karnataka, Kar. LJ 1978 (1), 30 : (1978 Cri LJ 462) this Court had occasion to deal with this aspect and having dealt with it this Court laid down as follows :
"Where the medical evidence belies the direct testimony of the witnesses, it would be difficult to convict the accused on the basis of such evidence."
In Amar Singh v. State of Punjab, this principle came to be reiterated again by the Apex court. In that case the eye-witnesses deposed that several injuries were caused on the ribs and abdomen with sharp weapon but the medical evidence disclosed that not even a single incised wound was found on the body of the deceased. Supreme Court laid down that in such a contingency the evidence of the said eye-witnesses cannot be acted upon. In this case also we find that there are no incised wound which could have been caused by some of the weapons which are alleged to have been used by the assailants. The evidence of Doctor, P.W. 9 is clear on the point that the weapons alleged to have been used by the assailants could not have caused many of the injuries found on the body of the deceased.
7. We find a ruling of a different hue on this aspect of law (Punjab Singh v. State of Haryana) wherein Supreme Court held that the medical evidence cannot override the direct evidence of the eye-witnesses when the direct evidence is satisfactory and reliable. We have given our careful consideration to all these rulings and we do not find that the law laid down in this case is in any way different from the law laid down in the earlier rulings of Supreme Court. Secondly, in that case, the medical evidence was found not to be inconsistent but it only provided two alternative possibilities. In the light of the peculiar circumstances that existed in the said case their Lordships were of the view that medical evidence cannot over-ride the direct evidence of the witnesses who had actually witnessed the incident and whose evidence was satisfactory and reliable. In Maniram v. State of U.P. 1994 Supreme Court Cases (Cril) 1242 : (1994 Cri LJ 3848) Supreme Court reiterated the position in law as follows (at page 3851 of Cri LJ) :
"It is well settled that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and, therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence this is a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained it is sufficient not only to discredit the evidence but the entire case."
In this case also there is no explanation forthcoming from the prosecution side explaining the discrepancy in the evidence of the eye-witnesses and the medical evidence regarding the nature of injuries suffered by the deceased and the weapons used by the accused to inflict those injuries. Therefore, on this ground itself the case of the prosecution is liable to be rejected and the trial court was justified in doing so.
8. The next serious infirmity in the prosecution case is the delay in filing the complaint. According to the prosecution the incident occurred on 29-7-1990 at 10-30 p.m. but the complaint Ex. P1 came to be lodged by P.W. 1 on 30-7-1990 at 10-15 a.m. nearly 12 hours after the incident. P.W. 1 has stated that as there was no bus facility to go to the police station she did not lodge her complaint on the same night. But the police Constable P.W. 14 has deposed that he was posted to watch the dead body of the deceased on 29-7-1990 itself at 8 p.m. and that he was watching the dead body throughout the night and that P.Ws. 5 and 6 were also there near the body throughout the night. P.Ws. 5 and 6 have deposed that P.W. 6 came near the scene of occurrence at 4 a.m. on 30-7-1990 whereas P.W. 1 says that her brother-in-law P.W. 5 and P.W. 6 came near the scene of occurrence half an hour after the incident was over. If as stated by these witnesses the complaint was lodged only at 10-15 a.m. on 30-7-1990 how the Police Constable could have been deputed to guard the body of the deceased on 29-7-1990 at 8 p.m. itself is not explained by the prosecution and it remains an unexplained mystery. There is also material contradiction in the evidence of P.W. 1 on the one hand and the evidence of P.Ws. 5 and 6 on the other as to when P.Ws. 5 and 6 arrived at the scene of occurrence. The evidence of P.W. 14 assumes much importance in the case. It goes to show that the police had knowledge of the incident even before the coming into existence of Ex. P1. The evidence of P.W. 14 cuts at the root of the prosecution case. If P.W. 14 had already come to the village by 8 p.m. on 29-7-1990 it is improbable that Puttaswamy could have been murdered at 10 or 10.30 p.m. on 29-7-1990. Therefore the evidence of P.Ws. 5 and 6 also becomes suspicious in view of the evidence of P.W. 14 that they were present on the scene of occurrence throughout the night. Therefore, there is not only inordinate delay in the filing of the complaint Ex. P1 but the prosecution has failed to explain the delay. Moreover P.W. 14's evidence discloses that P.S.I was in the know of the matter on 29-7-1990 at 7-30 p.m. itself. Therefore, there is not only inordinate delay in filing the complaint but the evidence also discloses that the murder did not take place at 10-30 p.m. on 29-7-1990 as putforth by the prosecution.
9. There is also shifting of the scene of offence in this case. The evidence of P.Ws. 1 to 3 is to the effect that the incident took place in front of the house of P.W. 1. But P.W. 1 has further stated that P.Ws. 5 and 6 have removed the dead body and placed it on the pial of the house of A-2. P.W. 3 also admits that the dead body was removed by P.Ws. 5 and 6 and was placed on the pial of the house of A-2. P.W. 6 denied the suggestion that it was be, P.W. 5 and Ramegowda who removed the dead body from the scene of offence and put it on the pial of the house of A-2 but he admitted that when he went to the house of P.W. 1 he saw the dead body lying on the pial of the house of A-2. It is the case of the prosecution that the deceased died on the spot after the assault by the accused. So, there is no question of shifting the dead body so as to give him any first-aid or treatment. In the light of the evidence of P.W. 14 it becomes clear that the incident had occurred not on 29-7-1990 at 10-15 p.m. but much earlier to that. P.W. 9 has stated that the deceased must have survived for 2 or 3 hours after receiving the head injury as formation of haemotoma would not be immediate. It takes 3 or 4 hours for its formation on the brain substance. Further according to P.W. 9 the contusions found on the body of the deceased could have been caused 6 to 12 hours prior to his death and the deceased might have taken his food 3 to 5 hours prior to his death. Therefore all these pieces of evidence clearly throw a shadow of doubt on the prosecution case that Puttaswamy died on 29-7-1990 at about 10 or 15-a.m.
10. The prosecution witnesses P.Ws. 1 to 3 have deposed that they have witnessed the incident of assault by the accused on the deceased in the light of the electric lamp which was burning near the scene, of offence. Even this appears to be an improvement as the presence of light is not mentioned in Ex. P1 which is the complaint alleged to have been recorded by P.S.I-P.W. 17 on the spot. If he were to record the complaint on the spot itself, it looks rather unnatural that he should not have mentioned about the electric light post in the complaint. P.Ws. 1 to 3 have been examined as eye-witnesses to the incident. P.Ws. 2 and 3 are chance witnesses. P.W. 2 has stated that he was in his house when he heard the ghalata in the house of Puttaswamy. He further stated that he heard the ghalata when he was going with P.W. 3. P.W. 2 also admits that the incident to occurred without any noise. P.W. 3 also admits that he could not hear any ghalata near Mariguddi. It looks rather strange that when the incident occurred without there being any noise, how P.Ws. 2 and 3 could have heard the ghalata coming from the direction of the house of the deceased. P.W. 2 had admitted that he left his house situate at Karagada Mane beedi which is at a distance of 1 1/2 furlongs from Marigudi where the house of P.W. 1 is situate to go to his father-in-law's house and that P.W. 3 had accompanied him. P.W. 3 also speaks to the same effect. The house of father-in-law of P.W. 2 is at a distance of 1 1/2 k.m. from Mariguddi and it is not clear why and how they could have found themselves near the house of P.W. 1 at the time of incident when they (P.Ws. 2 and 3) were proceeding to the house of P.W. 2's father-in-law which is situate 1 1/2 k.ms from the house of P.W. 1. Therefore the trial court was right in holding that these two witnesses had no reason to be present at the scene of offence at that odd hour. The prosecution has chosen to examine these two witnesses whereas it has given up other witnesses whose name figure in the complaint Ex. P1. P.W. 1's evidence is also unnatural, improbable and full of inconsistencies. There are also contradictions and omissions in the evidence of P.W. 1 which has been noted by the trial court in detail in para 32 of its judgment. In view of all these infirmities in the case of the prosecution, the trial court was justified in acquitting the accused persons.
11. Coming to the alleged recoveries M.O. 6 is alleged to have been recovered in pursuance of the voluntary statement of A-1, M.O. 5 at the instance of A-2 in pursuance of voluntary statement, Ex. P 11, M.O. 3 at the instance of A-4 in pursuance of his voluntary statement and M.O. 3 in pursuance of the voluntary statement of A-3 as per Ex. P. 13. These recoveries were made from inside the that ched shed situate in the garden land of A-2. It is not disputed that the said place is accessible to all. M.O. 1 is an instrument which is used for domestic purposes and would be found in every household in the village. The recoveries alleged will not be safe to be relied upon by the Court and could not be relied upon for the purposes of convicting the accused in view of the infirmities in the prosecution case noted above. The trial court has given proper reasons to reject this aspect of the prosecution case also. In Narsinbhai v. Chhatrasinh, AIR 1977 SC 1753 : (1977 Cri LJ 1144) it has been held that when the eye-witnesses are disbelieved the Court cannot rely merely on the evidence of recovery to convict the accused. Therefore, we do not find any ground to differ from the view taken by the trial court. Hence we proceed to pass the following :
ORDER The Appeal is dismissed.
12. Appeal dismissed.