Karnataka High Court
Narasappa S/O Irappa Kusoji vs State Of Karnataka, on 6 February, 2017
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY 2017
PRESENT
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
AND
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL No.2947 Of 2012
c/w CRIMINAL APPEAL Nos.2545 Of 2013, 2622 OF 2013
AND 2715 OF 2013
In Criminal Appeal No.2947 of 2012
Between
1. Shri. Narsappa S/O Irappa Kusoji
Age: 25 Years, Occupation: Agriculture,
R/o Do.
2. Shri. Basappa @ Basavrak
S/o Ramchandra Kusoji
Age: 25 Years, Occupation: Agriculture,
R/o Do.
3. Shri. Ningappa S/o Shankrappa Kusoji
Age: 22 Years, Occ: Agriculture,
R/o Do.
... Appellants
(By Shri Ravi B. Naik, Senior counsel and
Shri. Shrikant T Patil, Advocate)
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And
State of Karnataka,
Represented by State Public Prosecutor.
... Respondent
(By Shri V.M. Banakar, Additional State Public Prosecutor)
This criminal appeal is filed under Section 374(1) Of the
Code of Criminal Procedure seeking to set aside the order of
conviction against accused Nos.3, 5 and 8 and sentence passed
by the Fast Track Court-III, Dharwad in S.C.No.59 of 2012
dated 06.11.2012.
In Criminal Appeal No.2545 of 2013
Between
1. Shri. Irappa S/O Narsappa Kusoji
Age: 60 Years,Occupation:Agriculture
Resident of Khanapur,
Taluk and District: Dharwad
2. Shri. Gangappa S/O Irappa Kusoji
Age: 58 Years,Occupation:Agriculture
Resident of Do.
3. Ramchandra S/O Narsappa Kusoji
Age: 55 Years,Occupation:Agriculture
Resident of Do.
4. Shri. Narayan S/O Ramchandra Kusoji
Age:30 Years, Occupation:Agriculture
Resident of Do.
5. Shri. Shankrappa S/O Narsappa Kusoji
Age:50 Years, Occupation:Agriculture
Resident of Do.
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6. Shri. Vittal S/O Shankrappa Kusoji
Age:28 Years, Occupation:Agriculture
Resident of Do.
7. Shri. Irappa S/O Basappa Udoji
Age:35 Years, Occupation:Agriculture
Resident of Do.
8. Smt. Mallavva W/O Shankrappa Kusoji
Age:45 Years,Occupation: House Hold Work,
Resident of Do.
9. Smt.Gangavva W/O Irappa Kusoji
Age:50 Years,Occupation: House Hold Work,
Resident of Do.
... Appellants
(By Shri. Ravi B. Naik, Senior counsel and
Shri Srikant T. Patil, Advocate.)
And
State Of Karnataka
Represented by State Public Prosecutor
... Respondent
(By Shri V.M. Banakar, Additional State Public Prosecutor)
This Criminal Appeal is filed under Section 374 of the
Code of Criminal Procedure seeking to set aside the order of
conviction and sentence passed by the Fast Track-III Court,
Dharwad in S.C.No.59 of 2012 dated 06.11.2012 and acquit the
accused no.1, 2, 4, 6 7, 9 to 12.
In Criminal Appeal No.2622 of 2013
Between
Rajesh S/o Bhimappa Chalogi
Age: 29 Years, Occupation: Agriculture
Resident of Khanapur,
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Taluk and District: Dharwad.
... Appellant
(By Shri. A R Patil, Advocate)
And
1. Irappa S/O Narasappa Kusoji
2. Gangappa S/O Irappa Kusoji
3. Ramachandra S/O Narasappa Kusoji
4. Narayan S/O Ramachandra Kusoji
5. Shankrappa S/O Narasappa Kusoji
6. Vittal S/O Shankarappa Kusoji
All are major, Occupation: Agriculturist
Resident of Khanapur,
Taluk and District. Dharwad.
7. Irappa S/O Basappa Ujoji
Age: Major, Occupation: Agriculture
Resident of Hosatti.
8. Mallavva W/O Shankarappa Kusoji
9. Gangavva W/O Irappa Kusoji
Age: Major, Occupation: House Wife
and agriculture, resident of Khanapur,
Taluk and District. Dharwad.
10. The State Of Karnataka
Represented by
the Additional State Public Prosecutor,
Garag Police Station.
... Respondents
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(By Shri V.M. Banakar, Additional State Public Prosecutor, for
respondent No.10.
Sri. Srikant t. Patil, Advocate for respondent NOs.1 to 9)
This Criminal Appeal is filed under Section 372 of the
Code of Criminal Procedure seeking to allow the criminal appeal
and to set aside judgment and order of acquittal of the respondents
under Section 302 read with 149 of the Indian Penal Code and
sentence dated 06.11.2012 passed by the Presiding Officer, Fast
Track Court-III, Dharwad, in S.C.No.59 of 2012 and convict the
respondents/accused Nos.1,2,4,6,7,9 To 12.
In Criminal Appeal No 2715 Of 2013
Between
Rajesh S/O Bhimappa Chalogi
Age: 29 Years, Occupation Agriculture
R/O. Khanapur, Taluk and District: Dharwad.
... Appellant
(By Shri A R Patil, Advocate)
And
1. Irappa S/O. Narasappa Kusoji
2. Gangappa S/O. Irappa Kusoji
3. Narasappa S/O.Irappa Kusoji
4. Ramachandra S/O. Narasappa Kusoji
5. Basappa @ Basavaraj S/O. Ramachandra Kusoji
6. Narayan S/O. Ramachandra Kusoji
7. Shankrappa S/O. Narasappa Kusoji
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8. Ningappa S/O. Shankarappa Kusoji
9. Vittal S/O. Shankarappa Kusoji
All are major, Occupation: agriculturist
Resident of Khanapur, Taluk and District Dharwad.
10. Irappa S/O. Basappa Ujoji
Age: Major, Occupation: Agriculture
resident of Hosatti.
11. Mallavva W/O. Shankarappa Kusoji
12. Gangavva W/O. Irappa Kusoji
Both are majors. Occupation: house wife and
Agriculture resident of Khanapur, Taluk and
District Dharwad.
13. The State Of Karnataka
Represented by the
Additional State Public Prosecutor
Garag Police Station
... Respondents
(By Shri Shrikant T Patil For R1-R12
Shri V. M. Banakar, Additional
State Public Prosecutor for respondent NO.13
This Criminal Appeal is filed under Section 372 Of the
Code of Criminal Procedure seeking To Allow The Criminal
Appeal And To Set Aside The Judgment And Order Of
Acquittal Of The Respondents under Section 148 R/W 149 Of
IPC Sentence Dated 06.11.2012 Passed by The Presiding
Officer, Fast Track Court-III, Dharwad, In S.C.No.59/2012 And
Convict The Respondent/Accused No.3, 4 & 8 For The
Offences Punishable under Section 143, 147, 323 R/W 149 Of
IPC.
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These Criminal Appeals coming on for final hearing this
day, Anand Byrareddy J., delivered the following:
JUDGMENT
These appeals are heard and disposed of by this common judgment.
2. Criminal Appeal No.2947 of 2012 is preferred by accused Nos.3, 5 and 8 against their conviction and sentence of life imprisonment and other punishment.
3. Criminal Appeal No.2545 of 2013 is filed by accused Nos.1, 2, 4, 6, 7 and 9 to 12 against their conviction and sentence of simple imprisonment for a period ranging from 15 days to 5 months and fine amounts for offences under the various provisions of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC' for brevity).
4. Criminal Appeal No.2622 of 2013 is preferred by the de facto complainant against the acquittal of accused Nos.1, 2, 4, 6, 7 and 9 to 12 for an offence punishable under Section 302 read with Section 149 of IPC.
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5. Criminal Appeal No.2715 of 2013 is preferred by the de facto complainant against accused Nos.1,2,4,6,7, 9 to 12 for offences punishable under Sections 143, 147 and 323 read with Section 149 of IPC.
It is noticed that the appeal is filed after a delay of 192 days. Since the appeal is considered along with other appeals, the learned Additional State Public Prosecutor was directed to take notice and in spite of his request that he may be permitted to file objections to the application for condonation of delay, we are satisfied with the reasons assigned for the condonation of delay and accordingly allow the application. The appeal has been admitted to file and heard finally.
6. The facts leading up to these appeals are as follows:
According to the complainant - PW-1 Rajesh, son of Bhimappa Chaloji that he and his family and the family of the accused, namely, accused No.4 - Ramchandra, son of Narasappa Kusoji, had a running dispute about the vacant land between other two properties and this has lead to series of civil :9: and criminal cases which were pending and according to him, his deceased brother Yallappa Chaloji, son of Bhimappa Chaloji, it transpires, was actively opposing accused No.4 and his other family members, namely, accused Nos.1 to 3 and 5 to 12 in respect of the dispute over the said land and that they were all carrying grudge not only against Narasappa Kusoji, but even against the complainant and other family members. That on 27.11.2011, when PW-1 was standing along with PWs.5 and 6 at Khanapur bus stop, Khudampur Cross, Khanapur taluk, Dharwad district, the deceased Yallappa Chaloji is said to have come from Dharwad in a tempo trax and alighted from it.
As the complainant was conversing with the aforesaid person and as Yallappa Chaloji was coming towards them, they saw the accused, 12 in number, descend upon Yallappa Chaloji and abused him in foul language and accused Nos.3, 5 and 8 were armed with clubs and others were thrashing at him with hands and seeing the number of accused charging at him, he had tried to run away and was chased by all the accused and it then transpires that accused Nos.3, 5 and 8 had started hitting him : 10 : with clubs on his head and on account of the force with which he was struck, he fell to the ground and other accused kicked and punched him and in the meanwhile, accused Nos.3, 5 and 8 continued to hit him with a club. As a result of which, he was shouting for help and on seeing that he fell unconscious, the accused had run away from the place after accused Nos.3, 5 and 8 threw down the clubs with which they continued to assault the deceased. It is thereafter, according to PW.1-the complainant, he along with PW.4 and others carried the unconscious body of Yallappa Chaloji in a vehicle and on the way to the hospital, had informed the police about the incident and then continued to carry Yallappa Chaloji for immediate treatment to the Government Hospital, Dharwad. PW-11, who was present at the Government Hospital immediately noticed that Yallappa Chaloji had suffered a head injury and there was no facility to provide treatment for him at the Government hospital, and therefore had recommended that he be rushed to KIMS Hospital, Hubli, and he had only provided first aid and for further treatment, it transpires, Yallappa Chaloji was then : 11 : carried unconscious to KIMS Hospital, Hubli where PW-13 - Dr. Sharanamma C. Pattanshetty had provided treatment and thereafter had opined that he required the attention of a specialist. But, however, the family of the complainant was not satisfied with the treatment provided and had chosen to shift the deceased Yallappa Chaloji to Vivekananda Hospital, Hubli where he was treated by PW-14- Manjunath Dandin, who had admitted the patient and was under the care and attention of PW-19 - Dr. Krantikiran. However, two days after treatment, it transpires, that he underwent surgery under PW-19 - Dr. KantiKiran, but he died on 01.12.2011 at about 3.00 a.m. and thereafter the case which had been registered in the first instance for offences punishable under Sections 143, 147, 148, 307 and 504 read with Section 149 IPC against the 12 accused, was later converted to include Section 302 IPC on the death of the deceased. It is, thereafter, that all the accused had been arrested by the Garag police on 2.12.2011 and on further proceedings, charges were framed against accused Nos.1 to 12 for offences punishable under Sections 143, 147, 148, 302 and : 12 : 504 read with Section 149 of IPC. The accused having pleaded not guilty and claimed to be tried, the prosecution had fielded 20 witnesses examined as PW.1 to PW-20 and got marked several exhibits, namely, Ex.P-1 to P-48 and material objects MOs.1 to 6 whereas the accused had got marked Exhibits D-1 to D-4 on their behalf.
7. On analysis of the said evidence, the Court below having convicted accused Nos.1,2, 4, 6, 9 to 12 for offences punishable under Sections 143, 147, 323 read with Section 149 as also under Section 504 read with Section 34 of IPC for a period ranging from 15 days to 5 months and having imposed sentence of fine as well and having convicted and sentenced accused Nos.3, 5 and 8 for life imprisonment for an offence punishable under Section 302 read with Section 34 of IPC and to pay fine of Rs.10,000/- each, as well as for an offence punishable under Section 504 read with Section 34 IPC having been sentenced to simple imprisonment for a period of 5 months, the present appeals are filed not only by the accused but also by the de facto complainant.
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8. The learned Senior Advocate Sri Ravi B. Naik would contend as follows:
The sequence of events as narrated in the complaint and as sought to be established by the prosecution through the evidence of the aforesaid eyewitnesses as well as the other witnesses for the prosecution, would indicate that there are inconsistencies and contradictions which could not have been reconciled by the Court below and secondly, the very narration of the sequence of events by the so called eyewitnesses could not have been accepted on the face of it. There are other irregularities which the trial Court itself has noticed, but has sought to overlook the same by assigning reasons which are not tenable. In this regard, the learned Senior Advocate would firstly point out that in the first information report, there is mention of the presence of PWs.5 and 6 alone. At the time of the commission of the incident, there is no mention of the presence of PWs.7 and 8. But at the trial, the prosecution has fielded PWs.1, 5, 6, 7 and 8 as the eyewitnesses who are direct witnesses to the sequence of events. The infirmity as regards : 14 : the occurrence of the incident and the time at which it is said to have occurred is again thrown into serious doubt. According to FIR, PW-1, who is the complainant had stated that the incident had taken place at 5.00 p.m. on 27.11.2011. However, the first recorded document, namely, Ex.P-8, which is the wound certificate has categorically indicated that the incident, as stated by PW-4, who was a friend of the deceased and a drink-mate had stated that the incident had occurred at 3.30 p.m. on the same day, which is reflected also in Ex.P-19, which is a report submitted by PW-13 Dr.Sharanamma Pattanashetti, who was the doctor who had admitted him to KIMS hospital and has also recorded the time of the incident as stated by PW-1 on reference by the District Government Hospital to KIMS hospital. She has also indicated that the incident had taken place at 3.30 p.m. This is endorsed by several doctors, who have been examined, all of whom have indicated that the incident, as stated, had occurred at 3.30 p.m. and that the patient was admitted in the first instance at the Government Hospital, Dharwad at 5.25 p.m. on the same day, as to the date on which : 15 : the incident is said to have occurred. It is pointed out that if the incident, as stated by the witnesses, had taken place at 5.00p.m., when the deceased alighted from the vehicle in which he had come to the bus stand at Khudampur Cross and if the incident took place over a period of 10 to 15 minutes, it would not be possible for them to carry the unconscious body of Yallappa Chaloji to the hospital, which is about 18 kms from the place of the incident, while also having stopped at the police station to inform the police about the incident and then get him admitted to the hospital at about 5.25p.m. This is a serious discrepancy which is not reconciled. However, the trial Court has gone on to afford its own explanation that the witnesses were villagers and it is quite possible that they were confused about the time and the discrepancy was not of such a serious nature.
9. Nextly, it is pointed out by the learned Senior Advocate that in the cross-examination of PW-1, it is elicited that though he had spoken about all the 3 accused, namely, accused Nos.3, 5 and 8 having together assaulted the deceased with clubs, he has candidly admitted that insofar as the other : 16 : nine accused are concerned, he is not in a position to say which accused had committed what overt act by kicking or punching the deceased, except stressing that it was PWs.3, 5 and 8 who have repeatedly struck the deceased with clubs leading to bleeding injuries and ultimately his death. PW-1 has also endorsed the presence of PW-4 which is also significant. In that, the statements of PWs.1 and 4 are inconsistent as to the time or the presence of other eyewitnesses, as this would become evident from other contentions of the learned Senior Advocate.
10. PW-18, Police Sub Inspector is said to have received information about the incident at 9.00 p.m. whereas PW-1 has stated that on the way to the hospital, while carrying the unconscious body in a vehicle, had informed the police about the incident and according to PW-18, Police Sub- Inspector, after recording the statement of PW-1 at KIMS hospital, he had returned to the police station at 10.45 p.m. and had registered a complaint as aforesaid. This again is confounded by the evidence of PW-18, who has stated in his : 17 : evidence that the incident has taken place at the bus stand and not at Khudampur Cross as stated by other witnesses. This again is an infirmity which the trial court has noticed, but has gone on to hold that the blame has to be placed on the investigating officer for having committed such a blunder in indicating the place of incident, namely, as the bus stand when it had actually taken place at Khudampur Cross and the trial court has opined that, that will not defeat the case of the prosecution merely because the investigating officer has committed a blunder.
11. It is next pointed out that it was very much essential to establish that the material objects, namely, MOs.1 to 3 which were the alleged clubs said to have been used in the commission of the murder of the deceased were fielded by accused Nos.3, 5 and 8 and that the injuries caused were of such a nature which were capable of being caused by such weapons required to be established by an expert, who could certify by the weight, length and girth of the weapons that it was capable of causing such injuries which would have lead to the death of the : 18 : deceased. This was not so certified. However, these alleged weapons were produced for inspection by PW-19 at the time of his evidence and it is only the statement of the said witness of not to the effect that those material objects were capable of causing the injuries which might have lead to the death of the deceased as relied upon by the trial court which is a serious matter as it could go to the root of the matter and therefore could not have been the basis for concluding that it is these weapons, which were capable of causing the injury and ultimate death of the deceased.
12. Nextly, it is pointed out that PW-5 has categorically indicated that there were number of persons at the time of the incident and that the incident unfolded over a period of 10 to 15 minutes. But it is not clear he was unable to say as to which of the accused caused what blow or overt act or committed what overt act in order to cause any particular injury to the deceased. PW-9 also repeats the same in the tenor while stating that on being struck by accused Nos.3, 5 and 8 Yallappa Chaloji had fallen to the ground and accused Nos.3, 5 and 8 : 19 : continued to beat him as if separating saff flower seeds from the rest of the flower as is done in agricultural practice in the Kannada language. As a result of which, there was a heavy bleeding. But there were no blood stains found on the clothes of the deceased nor at the spot of the incident. And further it is the statement of PW-6 that at the time of attack and the incident, PW-1-complaiant was not present and further PW-7 while also reiterating the same incident in the same tenor as narrated by PW-6 who only speaks about the presence of PWs.5 and 6 and PW-8, in turn, has also stated that PWs.5 and 6 were present along with him at the time of the incident but he inexplicably includes the presence of PW-1 and volunteered that he did not chose to intervene because of the large number of accused persons and the manner in which they were attacking the deceased. The learned Senior Advocate would, therefore, point out that the sheet anchor of the case of the prosecution is that there are 5 direct witnesses who have consistently spoken about the manner in which the incident has taken place and about the involvement of each of the accused : 20 : and the manner in which the murder has been committed. However, on closer examination of the evidence, it is clear that the evidence of these witnesses is not consistent and on the other hand, the evidence of PWs.5, 6, 7 and 8 would indicate that it is only PWs.5, 6 and 7 who were present and that others came there later. This is sought to be overlooked by the court below in holding that since all the witnesses have spoken about accused Nos.3, 5 and 8 being armed with clubs and they have continuously attacked the deceased and he having fell unconscious or fell to the ground and that the other accused had attacked him indiscriminately with their bare hands and feet, as a result of which he had ultimately succumbed to the injuries. Not capable of being readily accepted, if attack was of such a nature and if the deceased had been attacked for over a period of 15 minutes continuously by all the accused including accused 3, 5 and 8 who had repeatedly attacked him with clubs, he would not have been found merely with a fracture to skull and bruised injury on his back apart from the injuries all over his body and therefore the court below having readily accepted : 21 : the evidence in spite of the inconsistency and impossibility of the manner in which the incident is said to have taken place, has resulted in a gross miscarriage of justice. One other apparent lacuna which is sought to be pointed out by the learned Senior Advocate is that the wound certificate is recorded at the Government Hospital, Dharwad and the subsequent examination by other medical practitioners at KIMS as well as in Vivekananda hospital, have not indicated the presence of other injuries apart from the head injury whereas in the postmortem report, this statement surfaces that there were 9 other injuries some of which were minor, but others were of some significance, which has gone unnoticed in spite of several documents produced for having treated the deceased. These inconsistencies are again noticed by the trial Court, but are over looked on the ground that since head injury was a serious injury, other injuries going unnoticed was not unusual and not unnatural. Thus, the learned counsel would submit that this would go against the expected medical practice and is not : 22 : sought to be explained by the prosecution in an acceptable fashion.
13. In view of all these infirmities, the learned Senior Advocate has contended that the court below was not justified in either convicting accused Nos.3, 5 and 8 and sentencing them to life imprisonment nor convicting and sentencing the other accused for lesser offences when the very occurrence of the incident is not established beyond all reasonable doubt and seeks acquittal of all the accused.
14. While the learned State Public Prosecutor would seek to justify the judgment of the trial Court and though no appeal is filed by the State as against the acquittal of other accused for the very serious offence punishable under Section 302 of IPC, he would still urge that the said accused also ought to be punished and would seek to support the appellant in the connected appeals, namely, the de facto complainant, who has chosen to question the acquittal of other accused and would submit that the explanation offered by the trial court insofar as : 23 : irregularity and other inconsistency are concerned are certainly capable of being accepted and would seek that the appeals filed by the accused be dismissed and the appeals filed by the de facto complainant be allowed and the accused be punished accordingly.
15. The learned counsel appearing for the appellants in third and fourth of these appeals, would vehemently canvass several points. Primarily, he would submit that one cannot lose sight of the fact that there is homicidal death which is not in dispute. The fact also remains that the accused had sufficient motive to commit the murder. Admittedly there were civil and criminal case pending against each other between the two families, namely, the family of the deceased as well as the family of the accused were on logger heads over the years and they had enough motive to commit the murder. This fact having been established is not capable of being disputed. The next question would be whether the incident has taken place in the manner as put forth by the prosecution when there are direct eyewitnesses, namely, PWs.1, 5, 6, 7 and 8, who have : 24 : consistently stated as to the manner in which the incident has taken place. The minor discrepancies which are sought to be pointed out, namely, as to the presence of one or the other witnesses at the time of the incident as seen from the FIR or as elicited in the cross-examination of the witnesses, would only be a minor infirmity which would not dilute their primary evidence as to the manner in which the incident has taken place. The further contention that they were all related and interested witnesses and had chosen to adduce evidence against the accused only to ensure that they are falsely implicated, framed and punished for the offences as alleged, is a contention which cannot be readily accepted, as there is no law which dictates that the person related to the deceased should not tender evidence in support of the case of the prosecution as to an offence being committed against the victim, it would certainly depend upon the facts and circumstances of the case. In this regard, he has relied upon a large number of judgments of the Apex Court to demonstrate that the mere fact that some of the eyewitnesses being related to the deceased would not by itself : 25 : dilute the case of the prosecution. It is further contended that the emphasis laid on the circumstances that the eyewitnesses have generally spoken about all the accused attacking the deceased at the same time and having caused the injuries, would also not dilute the case of the prosecution for it remains the fact that the deceased had been struck repeatedly on his skull resulting in a fracture and a serious injury apart from other injuries to his body, which has ultimately resulted in the death of the deceased as spoken to by several doctors who have been examined as PWs.11, 13, 14, 17 and 19. It is also pointed out that the wound certificate and the further certificates recording the presence of the head injury alone and the other injuries not having been noticed except in the postmortem report, is also not a infirmity which could be of serious nature vitiating the proceedings. For, it is not in dispute that the head injury was the most serious injury which would have possibly caused the instant death of the deceased but for urgent treatment, which he was provided, had resulted in the deceased surviving for several days before his ultimate death. Therefore, the minor injuries : 26 : including the bruise which was noticed on his back having gone unnoticed is immaterial as the head injury was the most serious injury which itself was sufficient to cause the death of the deceased.
16. As regards the time of the incident as stated by PW-1 and as recorded in the wound certificate as well as the report submitted by PW-13 as to the incident having taken place at 3.30 p.m. while PW-1 had stated that the incident had taken place at around 5.00 p.m. is also not an infirmity which would take away the case of the prosecution particularly when there is no dispute that there is a homicidal death of the deceased. The learned counsel would emphasize that the case of the prosecution was to establish that the death of Yallappa Chaloji had been caused by the assault of all the accused in the manner as stated and any other infirmities or irregularities either procedural or otherwise would not dilute that circumstances and it is in this vein that the Court below has addressed the sequence of events and acting upon the case law, it cannot be said that the trial Court has committed any grave : 27 : error in finding that accused Nos.3, 5 and 8 have committed the murder of the deceased and therefore has awarded them the punishment. Insofar as the other accused are concerned, even if their participation was to the extent of causing minor injuries it remains a fact that all the eyewitnesses have spoken about the overt acts of all the accused together in having punched, kicked and having pushed him to the ground to enable accused Nos.3, 5 and 8 to assault him further and thereby leading to his death, would require that the act of accused Nos.3, 5 and 8 in causing grave injury which has resulted in the death of the victim, as including the acts of other accused which should also be visited with the same punishment by virtue of Section 149 of IPC. In this regard, he would submit that the very section would indicate that the guilt of the other accused by virtue of their participation along with accused Nos.3, 5 and 8 who have been squarely held by the trial Court to be guilty of the murder and therefore, they are equally guilty and ought to be punished for the graver offence but have been punished to a lesser and minimum punishment of simple imprisonment of 5 months : 28 : which has resulted in grave miscarriage of justice. Insofar as the injuries not having been noticed by the doctors who have treated the victim and the injuries having been noticed only at the time of postmortem is also a circumstance which has come into consideration by the Supreme Court and in this regard he would place reliance on the judgment of the Supreme Court to hold that it shall not dilute or render the proceedings as bad in law nor it would vitiate the proceedings in any manner. It is further stated that insofar as medical practitioner not having furnished a certificate in the first instance before offering his opinion at the trial as to M.Os.1 to 3 being the weapons of a nature which could possibly cause injuries which were noticed on the deceased leading to his death, is an opinion offered by an expert and the mere fact that there is no certificate issued in the first instance need not lead to a situation where the opinion ought to be trashed. The Medical practitioner was an expert in the field and his opinion that the said material objects are capable of causing the death of a person should be given due credence notwithstanding that the said objects were not : 29 : subjected to critical examination followed by a certificate. This is wholly unnecessary and the medical practitioner's opinion could be treated as an expert opinion given at the trial in the open court and can be readily accepted. Further, it is pointed out that insofar as the so called discrepancy as to the time of the incident as stated by PW-1 and as recorded in Exs.P-8 and 9 and with reference to the evidence of PW-4 also cannot be highlighted or relied upon for the reason that PW-4 has not been examined as witnesses to narrate the case following the incident but he is only being examined as panch witness who has identified the clothes belonging to the deceased as well as M.O.2-the club used in the commission of the offence at the spot. In this vein, the learned counsel would seek to contend that the Court below has been generous insofar as accused Nos.1,2, 4, 6, 7, 9, 10, 11 and 12 are concerned and that they should be visited with greater punishment for the offence of which they are acquitted.
17. In the light of these rival contentions and from the close examination of the record, firstly to be accepted in order : 30 : to consider the 3rd and 4th of these appeals as to whether the said accused other than accused Nos.3, 5 and 8 should be visited with greater punishment as they have been acquitted of the said offences as alleged by the prosecution.
18. For that, we are firstly required to address whether the punishment imposed as against accused Nos.3, 5 and 8 can be sustained in the light of the submissions made by the learned senior advocate and from the material on record for the trial court having convicted accused Nos.3 and 8 for the serious offence punishable under Section 302 of IPC and the punishment imposed on them. There is no dispute that the family of the deceased and the families of the accused were involved in several civil and criminal cases preceding this incident and it was an on going series of dispute. It also cannot be denied that on the date of the incident, the deceased had been dealt with serious injuries which ultimately resulted in his death. In seeking to project the case of the prosecution as to the manner in which the incident had occurred resulting in the death of the deceased as seen from the material on record and : 31 : the reasoning of the trial court, it is PWs.1, 5, 6, 7 and 8 who are said to be the direct eyewitnesses to the incident. There is no dispute, again, that they belong to the same caste and village as the families of the accused and the deceased. But PWs.5 and 8, the so called independent witnesses, on examination of their evidence as to the manner in which the incident has occurred, it is not evident that the accused were of lying in wait at the bus stand or at the cross where the incident is said to have occurred, for the deceased to come to the stop. It is also not established from the record that he had a said routine where he would be expected to arrive at the spot on that particular point of time. He had come in a tempo trax which was apparently a private ferrying vehicle or passenger carrying vehicle not expected to maintain any particular time. Therefore, his arrival at the place and time was not a predictable event and therefore it cannot be said that the accused were all lying in wait to attack him at the particular place. Though it is stated that they were all residing in a house close to the place of incident it would be a hard coincidence for all of them to : 32 : converge at the spot at the same time and unitedly attack when he alighted from the bus and was proceeding towards PWs.5 and 6 who were standing at the Khudampur Cross. Secondly, it is noticed that two of the accused were women and it is seen from the charge sheet that accused 11 and 12 were aged between 45 to 50. If all the 12 accused had come in an unlawful assembly, as it is called together, and of which accused Nos.3, 5 and 8 were armed with clubs and started to attack the deceased, if one sees the scene in the mind's eye it would be seeing a picture that not more than 4 people at a time could attack deceased effectively without harming each other. Therefore, to say that all the accused attacked the deceased at the same time is a physical impossibility. Assuming that the armed men amongst them namely accused Nos.3, 5 and 8 had used clubs to attack the deceased and had rendered him unconscious while others kicked and punched him and thereafter accused Nos.3, 5 an d8 continued to pound him with the club all over his body as stated by the witnesses, it becomes difficult to reconcile the kind of injuries that he had received : 33 : while if incident had truly taken place in the manner as stated he would have suffered far graver injuries on other parts of the body which is not forthcoming. It is also stated by Pw-1 that the deceased was profusely bleeding at the spot. This is not evident from any blood stains on the cloth of the deceased nor the recovery as stated by other prosecution evidence as being present at the spot. The further circumstance that these witnesses have stated that the incident unfolded over a period of 15 minutes is also not readily reconcilable with the number or the nature of injuries that were seen on the body of the deceased. In other words if a continuos assault had taken place by 12 people, 3 of whom were armed with clubs and if that all continuously struck and kicked the deceased for over the period of 10-15 minutes that he would suffer a far grave injuries. This is also not forthcoming. The further infirmity as to the time of incident and the admission of the deceased to hospital at 5.25 p.m. on the same day is not readily acceptable. PW-4 who was said to have come there immediately after the incident and having found the deceased unconscious and lying near the : 34 : Khudampur Cross and he along with PW-1 having carried the unconscious body of Yallappa Chaloji to hospital and on the way to hospital having stopped at the police station to inform the police, is also not corroborated by the evidence of PSI-PW- 18 who has stated that the first information was received at 9.00 p.m. on 27.11.2011 and not between 5.00 and 5.25 p.m. time of which the incident had taken place and the deceased was admitted in hospital. Secondly, the time of the incident as recorded in the first recorded statement namely Ex.P-5 as stated by PW-4 and the presence of PW-4 is not denied by PW-1. Therefore, the prosecution has failed to explain the discrepancy in pointing the time of which the incident is said to have taken place. The first information report does not indicate the presence of PWs.7 and 8 at all. PW-1 who is categorical in his evidence of the presence of PWs.7 and 8 could not have excluded their presence in the First Information Report though it is the settled law that FIR is not expected to be an encyclopedia in the matter like this it would take on its own significance to establish since the evidence of these witnesses is : 35 : not consistent as pointed out by the learned senior advocate Sri. Naik. The Court below having proceeded on the footing that the evidence of these witnesses is consistent and cogent, which is not rightly so, for there is no corroboration by the witnesses as to the presence of others as pointed in detail earlier and in the face of which, the presence of PWs-7 and 8 being significantly not mentioned in the FIR would have to be given its due importance in either expecting or rejecting the evidence of the prosecution. Further, it is not in dispute that there were a large number of people which is inconsistently stated as 30 to 40 and over a hundred, by one and other witnesses being present at the scene and at the time of the incident, but it is curious that only PWs.5 and 8 are the independent witnesses who are said to have examined to support the case of the prosecution and none other. They do belong to the same caste of the accused and the complainant, it cannot be ruled out that they wanted to support the case of the prosecution at the instance of the other family members of the deceased. Therefore, notwithstanding that it is well settled that the testimony of the interested witnesses being : 36 : related or otherwise interested and that the accused are being framed at the instance of the complainant being only witness and though no such witness having tendered would not only result in the case of the prosecution being trashed, it would certainly depend on the facts and circumstances of the case. In the light of the infirmities which are highlighted on behalf of the accused, it cannot be said that the evidence of these witnesses, who are certainly interested witnesses could be accepted mechanically and it would have to be decided again on other circumstances and particularly in having to reconcile the inconsistencies and the irregularities which are emphasized by the counsel for the accused.
19. It is also to be noticed that according to PW.1, the unconscious body of Yallappa Chaloji was carried towards the hospital a.nd on the way, they had stopped at the police station to inform the police about the incident and this was between 5.00 p.m. and 5.25 p.m. namely, from the time of the incident up to the time that the deceased was brought to the hospital. However, from the evidence of PW.18 - Police Sub-Inspector, : 37 : the first information was only received at 9.00 p.m. on that day, which is not reconciled by the prosecution. Secondly, PW.18 in his evidence has stated that the incident had occurred at the bus stand near Khanapur cross and not at Khudampur road. This is again a contradiction and infirmity which is not reconciled or explained by the prosecution. The trial court while noticing this aspect of the matter as regards the inconsistency between the evidence of the prosecution witnesses and the Investigating Officer has brushed it aside and has held that a blunder committed by the Investigating Officer cannot be cited to dilute the case of the prosecution. This is inexplicable. The Investigating Officer of a serious case, such as this, is expected to remain on top of the facts of the case and assimilate and make out a water-tight case for the prosecution. When his testimony itself contradicts with all the prosecution witnesses, it is difficult to explain how the court below could hold that the contradiction by the Investigating Officer is of little consequence. This is unfortunate. Therefore, this incongruity is also a serious lacuna in the case of the prosecution. : 38 :
20. Insofar as the medical evidence is concerned, it is noticed that PW.11, who was the medical practitioner, who had first received the unconscious body of Yallappa Chalojji at the Government Hospital, has not treated him. A cursory examination has found that he had suffered a serious head injury which could not be addressed or treated at the Government Hospital and he had directed that the patient be rushed to a better hospital, namely, KIMS Hospital, Hubli. Therefore, the evidence of the said medical practitioner could only be in respect of the time the patient was brought to the hospital, which was at 5.25 p.m. on 27.11.2011. According to the information provided by PW.4, the time of the incident is 3.30 p.m. and injury having caused on account of the neighbours having attacked him. This is a crucial statement for the first time recorded as to the incident in an independent official record. The patient having been referred to KIMS Hospital, PW.13, who has admitted the patient, has opined that he would require the attention of a specialist, namely, PW.14. PW.14 in turn, having treated the patient for a day, it was found : 39 : that the family of the deceased was not satisfied with the treatment that was being provided and had thought it fit to shift the patient against the medical advice to Vivekananda Hospital, where he was said to have treated by PW.14.
21. PW.13 having admitted that the patient had called upon a specialist of KIMS Hospital, Hubli, to examine and provide treatment to the patient. However, the family of the deceased not being satisfied with such treatment had thought it fit to shift the patient to Vivekananda Hospital against the medical advice and at Vivekananda Hospital, PW.14 is said to have admitted him and PW.19 is said to have provided treatment to the patient. However, in spite of such treatment to the patient, the victim had succumbed to injuries at 3.00 a.m. on 1.12.2011.
22. It is thereafter that a case which was originally registered for an offence punishable under Section 307 of the IPC and other provisions was converted into a case including Section 302 of the IPC.
: 40 :
23. The medical evidence tendered by the medical practitioners is again curious, for none of the medical practitioners who had examined the deceased had thought it fit to examine other parts of his body, except the head injury and therefore it is for the first time that in the post mortem report, it was discovered that he had suffered nine other injuries apart from the head injury. This itself is odd, for any medical examination of a seriously injured patient who is said to have been attacked by several persons would have routinely involved examination of his entire body. This is indeed, unfortunate. But the court below has not thought it unusual that the medical practitioners owed an explanation to the court and no such effort has been made either by the prosecution or by the defence to elicit any such information. Therefore, it remains unclear as to how the patient was treated for four days without other injuries being noticed except that they come to light after his death in post- mortem. This curious aspect of the matter is not addressed by the court below. The injuries caused again would not be consistent with the kind of attack that was carried out on : 41 : the deceased, as narrated by the prosecution witnesses. The continuos attack spread over a period of 15 minutes, with three of the accused wielding clubs, which according to PW.19, were capable of causing injuries which were found on the body of the deceased, which has lead to his death. On the other hand, if we are to go by the evidence of the witnesses, the injuries caused would have been of much more severe in nature. In that, if the assault by three material objects namely, MOs.1 to 3, had caused the fracture of the skull of the deceased, which may be the hardest part of the body, the other bones of the body remaining in tact is indeed curious and unusual. This itself would indicate the manner in which the incident has occurred, which has not been truly and correctly stated by the prosecution witnesses. This when juxtaposed with the further circumstance that there is inconsistent evidence of the witnesses, as emphasized by the learned Counsel for the accused, it would indeed fall into place that the medical evidence also did not support the case of the prosecution. Therefore, to proceed on the basis that the unnatural death or homicidal death of the : 42 : deceased being a fact and that there were five eye witnesses to the incident, itself would not be sufficient to hold that the charges have been proved by the prosecution beyond all reasonable doubt. Unless the inconsistencies and infirmities that are referred to herein above, are capable of being reconciled or having been properly explained by the prosecution in the course of trial and the trial court having noticed the irregularities and infirmities and having thought it fit to offer its own justification for overlooking the same is not permissible. For the burden is heavy on the prosecution especially in a case which invites stringent punishment of life imprisonment for the offences alleged, which would require the prosecution to establish its case beyond all reasonable doubt.
24. Therefore, in our opinion, the trial court was in serious error in holding that the prosecution had established its case beyond all reasonable doubt. The other infirmities and irregularities need not be addressed in particular, for there are glaring infirmities, which certainly go to the root of the matter and cannot be dismissed as being minor infirmities that can be : 43 : overlooked. The entire sequence of events as narrated by the witnesses for prosecution is on a selective examination of witnesses, who are related or otherwise with an affinity towards the family of deceased and in the absence of several scores of the witnesses, who were available at the scene, even according to the witnesses for the prosecution, the non- examination of any such witnesses was a serious lacuna, which would certainly raise a grave suspicion about the endeavour of the prosecution to frame the accused by whatever means as is apparent from the circumstances narrated above. Therefore, notwithstanding the fact that a man is dead and that witnesses have spoken about the presence of the accused, it cannot be believed that all of them were present especially, accused nos.11 and 12, who were middle aged women incapable of chasing the deceased around the bus stand and thereafter being able to assault him along with other accused, some of whom as already stated, were armed with deadly weapons. This has been glossed over by the trial court. In other words, it is difficult to believe that 12 of the accused, including 2 women, : 44 : accused No.11 and 12, were involved in chasing the deceased around the bus stand in the presence of large number of people, including the eye witnesses and thereafter had continued to assault him for 15 minutes without any person, not even the Police, who could have come on the scene. This is certainly difficult to accept.
25. Insofar as the case law that was cited at the bar by the learned Counsel for the de facto complainant in the third and fourth of these appeals is concerned, in State of Uttar Pradesh vs. Jagdeo and others, AIR 2003 SC 660, the Supreme Court has laid down that the evidence of the persons who are styled as interested witnesses could not be discarded only on account of the fact that they were related to the deceased victim and had deposed against the accused. There is no argument to this proposition. As already stated, if such witnesses were the only witnesses and their evidence was capable of acceptance and did not defy logic or boggle one's mind, the evidence could certainly be accepted notwithstanding that they were : 45 : related to the deceased and were interested in bringing home the charges against the accused.
26. The decision is Jai Karan vs. State of UP, AIR 2004 SC 1148 is again relied upon in support of the proposition that infirmities in the evidence of the eye witnesses could not dilute the case of the prosecution. For otherwise, it is found that the same is perverse or illegal, only because there is some inconsistency between the testimony of the said witnesses, ought not to prompt the court to trash their evidence. This again is a proposition that is not in doubt nor can be disputed, but the crux of the matter would be whether the facts and circumstances of the present case are the same as the case dealt with by the Supreme Court.
27. On a plain comparison of the facts of that case and the facts of the present case, it cannot be said that the testimony of the witnesses which is not consistent could be readily accepted inspite of inconsistencies. On the other hand, we hold : 46 : that such inconsistencies go to the root of the matter and are not merely minor variations.
28. The learned Counsel has also relied upon a decision in Amerika Roy vs. State of Bihar, (2011)2 SCC 677, for the proposition that when some of the accused are found to have committed an offence, the other accused who may or may not have actively participated, but were part of the unlawful assembly would be equally guilty of having committed the offence. This is again a proposition which would apply under certain circumstances, where it is established that the particular accused were involved in particular overt acts. While others had either instigated or provided moral courage to other accused to commit offences. It is to be noticed that in the above referred case, the overt acts of each of the accused as well as the presence of other accused is noticed and notwithstanding that there were no such overt acts of a serious nature attributed to some of the accused, the Supreme Court having held that in terms of Section 149 of the IPC, the members of an unlawful assembly would have to suffer the : 47 : consequence of their actions of some of them, even if all of them had not committed similar overt acts, was on the basis of the evidence that was expressly tendered against particular accused. However, in the present case on hand, it is evident that none of the witnesses have spoken about any particular accused causing any particular overt act. Insofar as accused Nos.3,5 and 8 are concerned, there is certainly evidence to state that it is those three accused who were wielding clubs and who had repeatedly attacked the deceased. There is no indication by any witness that particular accused had inflicted particular number of blows to particular parts of the body of the accused etc. In the absence of such specific evidence against each of the accused, it would be dangerous and unfair to convict all the three accused let alone holding that the other accused who were part of the unlawful assembly would be equally guilty of the said offence. It is on this reasoning that we have held that in the absence of categorical evidence as to which accused had committed what overt act, it would be difficult to pin the guilt on any one of the accused including the limited aspect of : 48 : accused nos.3,5 and 8 having used deadly weapons and had been instrumental in causing serious injuries to the accused. In other words, in the absence of categorical evidence as to which of the three accused had dealt how many blows and to which part of the body of the deceased, it would not be justified in holding that they are, in any case, guilty of having committed the murder of the deceased. This would be opposed to the settled principles of Criminal Jurisprudence. Therefore, no sustenance can be drawn from the said judgment.
29. In State of Haryana vs. Surat Singh, the Supreme Court was dealing with a case admittedly on the facts of that case and therefore to place reliance on the same would not advance the case of the learned counsel.
30. The next decision relied upon is in the case of Sukhpal Ramrup Lalal Rai vs. State of Madhya Pradesh, which is also a case which turned on the facts of that particular case and would not advance the case of the complainant. : 49 :
31. In the decision relied upon in the case of Bhag Singh Gurmukh Singh vs. State of Punjab, the Supreme Court has expounded as to the handicap attached to all witnesses when they fail to speak with precision and their evidence being assailed as vague and evasive and if on the contrary, they speak to all events very well and their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic an fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case, an eye witness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequences in which it has occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually, but a very exceptional one so far as he is concerned. If he reproduces it in the same : 50 : sequences as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone.
32. The Supreme Court having expressed its mind as to the manner in which the evidence of an eye witness is to be appreciated, we have also examined the testimony of the eye witnesses in the present case on hand and it does not meet the requirement as expressed by the Supreme and therefore, we have rejected their testimony. Hence, the decisions cited at the bar do not advance of the case of the complainant.
33. For the reasons afforded hereinabove, we have no hesitation in holding that the prosecution had failed to prove the case beyond all reasonable doubt not only against accused nos.3,5 and 8, but also insofar as other accused are concerned.
Accordingly, the appeals in Crl.A.2947/2012 and Crl.A.2545/2013 are allowed. The judgment of the court below is set aside. The accused are acquitted. The fine amount, if any, shall be refunded to the appellants. The bail bonds stand cancelled.
: 51 :
The appeals in Crl.A.2622/2013 and Crl.A.2715/2013 are dismissed.
The appellants in Crl.A.2947/2012 and Crl.A.2545/2013 shall be set at liberty forthwith.
The operative portion of the judgment shall be communicated to the Jail authorities of Central Jail, Dharwad, for compliance.
Sd/-
JUDGE Sd/-
JUDGE kmv/nv