Karnataka High Court
Rama Laxman Patil, vs The State Of Karnataka, on 22 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS. JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100109/2016
BETWEEN:
1. RAMA LAXMAN PATIL,
AGE:45 YEARS, OCC:AGRICULTURE,
R/O: JUMNAL TQ,
DIST: BELAGAVI.
2. SIDRAYI RAMA PATIL,
AGE:22 YEARS, OCC:AGRICULTURE,
R/O: JUMNAL TQ,
DIST: BELAGAVI.
3. SIDDAPPA LAXMAN PATIL,
AGE:38 YEARS, OCC:AGRICULTURE,
R/O: JUMNAL TQ,
DIST: BELAGAVI.
4. NINGAPPA YALLAPPA HALANNAVAR,
AGE:68 YEARS, OCC:AGRICULTURE,
R/O: JUMNAL TQ,
DIST: BELAGAVI.
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5. YALLAPPA LAXMAN PATIL,
AGE:37 YEARS, OCC:AGRICULTURE,
R/O: JUMNAL TQ,
DIST: BELAGAVI.
6. LAGAMAVVA W/O SIDDAPPA PATIL,
AGE:38 YEARS, OCC:HOUSE WIFE,
R/O: JUMNAL TQ,
DIST: BELAGAVI
7. RATNAVVA W/O YALLAPPA PATIL,
AGE:40 YEARS, OCC:AGRICULTURE,
R/O: JUMNAL TQ,
DIST: BELAGAVI
8. LAXMAVVA W/O NINGAPPA HALANNAVAR,
AGE:52 YEARS, OCC:HOUSE WIFE,
R/O: JUMNAL TQ,
DIST: BELAGAVI
9. NINGAVVA W/O LAXMAN PATIL,
AGE:72 YEARS, OCC:AGRICULTURE,
R/O: JUMNAL TQ,
DIST: BELAGAVI
10. BALAVVA W/O RAMA PATIL,
AGE:37 YEARS, OCC:AGRICULTURE,
R/O: JUMNAL TQ,
DIST: BELAGAVI.
... APPELLANTS
(BY SRI. S B DEYANNAVAR, ADV)
AND
THE STATE OF KARNATAKA,
THROUGH: KAKATI POLICE
:3:
R/BY SPP HIGH COURT OF
KARNATAKA, BENCH, AT: DHARWAD.
... RESPONDENT
(BY SRI.V.M.BANKAR, ADDL SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C., SEEKING TO CALL FOR THE PAPERS ON THE
FILE OF IIIRD ADDL. SESSIONS JUDGE, BELAGAVI IN
S.C.NO.340/2013 AND SET ASIDE THE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE
DTD.05.04.2016 FOR THE OFFENCE PUNISHABE
UNDER SECTIONS 143, 148, 341, 323, 504, 506, 307 &
302 OF IPC AND ORDER THE ACQUITTAL OF ALL THE
APPELLANTS/ACCUSED HEREIN IN THE CHARGES
LEVELED AGAINST THEM IN THE ABOVE CASE.
RESERVED FOR JUDGMENT ON: 8/06/2020
JUDGMENT PRONOUNCED ON : 22/06/2020
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT ON THIS
DAY, M.G.UMA,J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant Nos.1 to 10 who were arrayed as accused Nos.1 to 4, 7, 9 to 13, have preferred this appeal aggrieved by the impugned judgment of conviction and order of sentence dated :4: 5/4/2016 passed in SC No.340/2013 on the file of the Special Court (POCSO) and SC/ST (Prevention of Atrocity) and III Additional District & Sessions Judge, Belgaum, (hereinafter referred to as "the trial Court"), whereunder these accused were convicted for the offences punishable under Sections 143, 148, 341, 324, 504, 506, 307, 302 r/w Section 149 of IPC.
2. It is stated that no charge sheet was filed against accused No.5 and accused No.6 is a juvenile tried before the Juvenile Justice Board and accused No.8 is already dead.
3. During the pendency of the appeal, The learned Advocate for the appellants filed a memo reporting the death of accused No.4 along with his death extract. Vide order dated 8/6/2020 the appeal preferred by accused No.4 stands abated.
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4. The respondent State is notified. Heard the learned Advocate for the appellants Sri. S.B.Deyannavar and learned Additional SPP Sri. V.M.Banakar for the State.
5. It is the contention of the prosecution that the accused and deceased were relatives and the residents of Jumnal village were having dispute with regard to the immovable properties. There were frequent quarrel between the two fractions. On 5/7/2013 at 2.00 p.m., it is stated that accused Nos.1 to 4 plucked the jackfruit from the tree for which the informant, his father and other members in the family objected. There was verbal altercation between two fractions. Further it is stated that on the same day at 9.30p.m., all accused Nos.1 to 13 formed themselves into unlawful assembly, armed with stones, club and also chilli powder, came near :6: the house of the informant, picked up quarrel with the father of the informant who is the deceased Mallappa Shettu Patil and accused Nos.1, 3 and 6 assaulted with stones while accused Nos.4 and 8 were holding the deceased. In the meantime, accused Nos.2 and 7 assaulted with clubs and accused Nos.9 and 10 have thrown chili powder and accused Nos.11 and 13 have pushed the deceased aside and caused him fetal injuries and in the meantime, accused No.6 pushed CW-9 aside and caused injuries.
6. Due to the fetal injuries sustained by Mallappa Patil, he died on the spot, i.e. in front of his house. The incident was viewed by PW-1, the first informant, who is the son of the deceased, PW-6 another son of the deceased, who sustained injury in the incident, PW-8 the wife of the deceased and PW-7 and PW-9 who were the neighbourers. It is stated that after :7: the incident, PW-1 lodged first information as per Ex.P1 and set the criminal law into motion.
7. The Investigating Officer investigated into the mater and filed charge sheet against accused Nos.1 to 4, 7, 9 to 13 for the above said offences. The learned Magistrate took cognizance of the matter and after securing the presence of the accused and following the procedure under Section 207 of Cr.P.C., committed the case to the leaned Principal Sessions Judge for trial, which in turn was made over to the trial Court.
8. The trial Court after securing the presence of the accused, framed the charges against the accused for the above said offences. The accused have pleaded not guilty and claimed to be tried.
9. To prove its contention, the prosecution has examined PWs.1 to 14, got marked Exs.P1 to :8: 24 and identified MOs.1 to 9. The statements of the accused under Section 313 of Cr.P.C. were recorded and the accused have denied all the incriminating materials available on record, but, have not chosen to lead any evidence in support of their defence.
10. The trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of accused Nos.1 to 4, 7, 9 to 13 for the offences punishable under Sections 143, 148, 341, 324, 504, 506, 307, 302 r/w Section 149 of IPC, convicted and sentenced them under Section 143 of IPC to undergo simple imprisonment for a period of two months, convicted them for the offence punishable under Section 148 of IPC to undergo simple imprisonment for a period of one year, under Section 341 of IPC to undergo simple :9: imprisonment for a period of 15 days, under Section 323 of IPC to undergo simple imprisonment for a period of three months, under Section 504 of IPC to undergo simple imprisonment for a period of six months, under Section 506 of IPC to undergo simple imprisonment for a period of six months, under Section 307 of IPC to undergo simple imprisonment for a period of four years with fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for a period of two months and under Section 302 of IPC to undergo life imprisonment with fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for a period of six months. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, the accused have preferred this appeal on the following grounds:-
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The impugned judgment of convection and order of sentence passed by the trial Court is illegal, perverse and it is unsustainable. The trial Court committed an error in convicting these accused persons on the version of the interested testimony of witnesses. The trial Court has ignored the fact that no independent witnesses are examined to prove the offence in question and there is no corroboration in the evidence led by the prosecution. On the other hand, the material contradiction and omissions are also ignored by the trial Court. No neighbourers have been examined to corroborate the case of the prosecution. There is abnormal delay in filing the complaint which has not been explained. The deceased sustained injury as he fell in the Guttar in the darkness. But taking advantage of the situation, PW-1 has lodged a false first information. Conduct on the part of : 11 : PW-1 and other family members give rise to reasonable suspicion. The recovery of the incriminating materials from the spot is also not proved. The materials placed before the Court by the prosecution are not sufficient to hold that the prosecution is successful in proving the guilt of the accused beyond all reasonable doubt. But inspite of that, the trial Court has proceeded to convict the accused only on presumptions and assumptions which is bad under law. Therefore, the appellants prayed for setting aside the impugned judgment of conviction and order of sentence passed against them by the trial Court and to acquit them for the above said offences in the interest of justice.
11. The learned Advocate for the appellants while addressing his arguments contented that there is serious discrepancy : 12 : about the time when the incident had taken place. Some of the prosecution witnesses stated that the incident had taken place at 9:00 a.m., whereas some have stated it at 9:30 a.m. others have stated that it was at 10:30 p.m. According to the case made by the prosecution, the incident had taken place in the dark pitch night and there was no chance for the eye- witnesses to identify the accused. The say of some of the prosecution witnesses regarding the light near the scene of offence is an after thought. He further submitted that the injuries noted on the dead body of the deceased as per the post mortem report and the injuries sustained by PW6 as per the wound certificate do not correspond with the contention raised by them. He also contended that admittedly there were several houses nearby the scene of offence. But none of the inmates were examined by the : 13 : prosecution for the reasons best known to it. MOs.1 to 3 being the stones cannot be used as a weapon to cause injuries found on the head of the deceased. PW3 is the doctor who conducted the postmortem examination on the body of the deceased specifically stated that the injuries sustained by the deceased could be caused due to a fall on the rough surface. He contended that there was no strong motive made out by the prosecution to commit any offence. All the documents and material objects were cooked up for the purpose of falsely implicating the accused. In fact, there are no eye-witnesses to the incident as per the case made out. In spite of that, the trial Court proceeded to convict the accused without any basis. Hence, he prays for setting aside the impugned judgment of conviction and order of sentence passed by the : 14 : trial Court and acquit the accused for the above said offences.
12. Per contra, the learned Additional SPP contended that, there is absolutely no discrepancy in the time at which the incident had taken place. All the eye-witnesses have categorically stated that incident had taken place at 9:30 p.m. in front of the house of PW1 and the deceased. Further, there is no delay in lodging the first information as per Ex.P1. The incident had taken place at 9:30 p.m. on 5/7/2013. The FIR was registered at 3:00 a.m. on 6/7/2013, on the basis of the first information lodged by PW-1, who is none other than the son of the deceased. He further contended that PWs.1, 7 to 9 are the eye- witnesses to the incident, whereas PW6 is the injured eye-witness. The injuries sustained by the deceased and the injured correspondent with : 15 : the overt act alleged against all the accused. The accused have formed themselves into unlawful assembly with common object of committing the offence and therefore, all the accused are equally liable for the death of the deceased and causing injury to PW6. All the eye-witnesses i.e PW.1, 6 to 9 have fully corroborated with each other in the matter of commission of the offence and overt act committed by each of the accused. There is absolutely no reason to disbelieve their version. The material objects including the weapons i.e. stones and clubs were recovered from the scene of offence at the time of drawing of spot Mahazar. The opinion of the doctor who conducted post-mortem examination clinchingly proves the use of all the material objects i.e., MOs.1 to 5, in commission the offence by the accused. He further stated that no ill-will or : 16 : motive is suggested against the investigating officer to concoct any documents. The eye- witnesses including the injured eye-witness, identified all the accused. Therefore, there is no lapse on the part of the Investigation officer who laid the charge sheet after conducting the investigation. The trial Court after taking into consideration all the materials on record, rightly formed an opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. There is absolutely no reason to interfere with the same. Under such circumstances, he prays for dismissal of the appeal and to confirm the impugned judgment of conviction and order of sentence passed by the trial Court.
13. We have carefully perused the materials on record including the TCR. : 17 :
14. The points that would arise for our consideration are as under:-
i) Whether the prosecution is successful in proving the guilt of accused for the offences punishable under Sections 143, 148, 341, 324, 504, 506, 307, 302 r/w Section 149 of IPC beyond reasonable doubt?
ii) Whether the impugned judgement of conviction and order of sentence is liable to be interfered with?
iii) What order?
15. It is the contention of the prosecution that accused who are the relatives of the deceased and PW-1, were having ill-will in the matter of partition of the immovable properties.
There was dispute between the two parties regarding one jackfruit tree standing in between : 18 : the lands belonging to the deceased and the accused. On the date of incident, at about 2.00p.m., first incident had taken place where the accused have plucked the jackfruit from the tree. It was questioned by the deceased and his family members. There was oral altercation between the two fractions. Again on the same date, at about 9.30p.m. when the deceased came out of his house after having his lunch along with PW-1, all the accused have formed themselves into unlawful assembly, armed with stones and clubs and by questioning the deceased as to how he can interfere in enjoying the fruits of the jackfruit tree and proclaiming that he will be done to death, accused Nos.1 to 3 and 6 have assaulted the deceased with stones and accused Nos.4 and 6 were holding the deceased tightly and in the meantime, accused Nos.2 and 7 assaulted with clubs. Accused : 19 : Nos.11 and 13 have pushed him aside, while accused Nos.9 and 10 were throwing the chilli powder, and have caused the death. It is the further contention by the prosecution that accused No.6 pushed CW-9 aside and caused simple injury.
16. In order to prove its contention, the prosecution examined PW-1-Vittal Mallappa Patil, the son of the deceased who lodged the first information as per Ex.P1 with Kakati police. Ex.P1 explains in detail regarding the motive for the accused to commit the offence. It also refers to the incident that had taken place at 2.00 p.m., on 5/7/2013 and again at 9.30 p.m. infront of the house of the deceased. Specific overt act by each of the accused is also explained and it is stated that the deceased had sustained fetal injury due to the assault by the : 20 : accused and died at the spot. It is also stated that there is electric light pole infront of the house of the informant and there was sufficient light at the time of incident.
17. PW-1 has fully corroborated the first information and case made out by the prosecution by identifying the weapons produced before the Court as per MOs.1 to 5 and by identifying the accused. He also spoke about drawing of the spot panchanama and recovery of the weapons used in the commission of the offence. This witness was cross examined at length by the learned Advocate for the accused. It was suggested to this witness in the cross examination that there was long standing ill-will and frequent quarrel between the two families and the said suggestion was admitted by the witness. The witness denied the suggestion that : 21 : his father deceased Mallappa was in the habit of consuming alcohol. He also denied the suggestion that his father had fallen in a Guttar as he was intoxicated, and had sustained injuries. The witness stated that Kakati police station is situated about 6 to 7 kms. away from the scene of offence and admitted the suggestion that there were two other cases registered by the accused, wherein he is also one of the accused.
18. PW-2 is the Inquest and spot mahazar witness. Inquest mahazar is as per Ex.P3 and spot mahazar is as per Ex.P4. MOs.1 to 3 stones, MOs.4 and 5 clubs were seized under the spot mahazar and this witness fully supported the case of the prosecution. It is suggested to this witness that there were no blood stains on MOs.1 to 5. But it was categorically denied by the witness. It was also suggested that he is : 22 : closely related to PW-1 which was also denied by the witness.
19. PW-7 is the Doctor who conducted post-mortem examination on the body of the deceased. He refers to various injuries found on the dead body of the deceased and issued P.M report as per Ex.P10. He has also given his final opinion as per Ex.P11. PW-4 is seizure mahazar witness to Ex.P12 whereunder the materials found on the dead body of the deceased were seized which are as per MOs.6 to 9. This witness is also fully supported the case of the prosecution.
20. PW-5 is the Doctor who examined the injured-PW-6 and issued wound certificate as per Ex.P17. As per this document, PW-6 had sustained simple injuries and he had given history of the injury as assault at 10.30 p.m. at : 23 : Jumnal village on 5/7/2013. PW6 is the injured eye-witness who is the son of the deceased. This witness also gave the account of the incident in detail, specifically referring to the overt act of each of the accused. He was also subjected to the cross examination. But, nothing has been elicited to disbelieve the version of the prosecution.
21. PWs.7 and 9 are said to be the eye- witnesses to the incident. Their version also fully supported the case of the prosecution. These witnesses were also cross examined at length. But nothing has been elicited from her their mouth to disbelieve their version. PW-8 is the wife of the deceased who is also one of the eye-witnesses. Since she is also a family member and since the incident had taken place infront of her house, her presence at the time of incident cannot be denied. Further, even during : 24 : cross examination, nothing has been elicited from her to discard her version. Even though she was subjected to lengthy cross examination, she has successfully withstood such cross examination inspite of the fact that she is a village rustic. PW-10 is the police constable who shifted the dead body for post mortem examination, PW-11 is the Investigation Officer who conducted part of the investigation. PW-12 is the carrier of the FIR to the jurisdictional Magistrate and PWs-13 and 14 are the Investigation Officers who conducted part of the investigation.
22. The contention of the prosecution that all accused Nos.1 to 13 with a common object have formed unlawful assembly and came near the house of the deceased, armed with stones and clubs and accused Nos.1, 3 and 6 have assaulted the deceased with stones which are as : 25 : per MOs.1 to 3 while accused Nos.4, 8 were caught hold of the deceased and accused Nos.2 and 7 assaulted him with clubs, which are as per MOs.4 and 5 and accused Nos.9 and 10 have thrown the chilli powder and accused Nos.11 and 13 have pushed the deceased away and caused fetal injury to the deceased. In the meantime, accused No.6 pushed PW-5 away and caused simple injury.
23. In the light of oral and documentary evidence and also the material placed before the Court, it is clear that PW-1 the first informant and the eye-witness was very consistent in supporting the contention of the prosecution and corroborated the first information Ex.P1. PW-6 is the injured eye-witness also corroborated the evidence of PW-1. The evidence of the injured eye-witness PW-6 stands on a : 26 : higher footing unless it is shaken during cross examination. The only discrepancy pointed out by the learned Advocate for the appellants is that in the wound certificate Ex.P17, the history of the injury is stated by the injured as the assault at 10.30 p.m at Jumnal village on 5/7/2013, whereas it is the contention of the prosecution that the incident has taken place at about 9.30 p.m. PW-6 while deposing before the Court specifically stated that his father was murdered in front of his house on 5/7/2013 at 9.30p.m., and in the said incident, accused No.6 had pushed him away, as a result of which, he sustained simple injury. Nothing has been elicited from him during the cross examination to disbelieve his version or to contradict him. Ex.P.17 was not confronted to this witness and his attention was not specifically drawn to the discrepancy with regard to the time shown in the : 27 : wound certificate. Other eye-witnesses PWs.-7, 8 and 9 have also consistently corroborated the say of this witness. The contention of the informant and the injured eye-witness supported the case of the prosecution. All these material witnesses were subjected to lengthy cross examination. But in spite of that their version could not be shaken. Under such circumstances, the evidence of these material witnesses cannot be discarded or disbelieved.
24. The learned Advocate for the appellants drawn our attention to minor discrepancy found in the evidence of these witnesses which are stray sentence and they do not go to the root of matter. The incident admittedly is of the year 2013 and the witnesses were examined during 2015. Under such circumstances, some discrepancy in the say of various witnesses is quite natural. If the : 28 : witnesses were to give stereo type evidence, then definitely a doubt would have arisen about their credibility. Therefore, we are of the opinion that the evidence of these material witnesses do not suffer from any material infirmity which go to the root of the matter and therefore, their version has to be believed.
25. The learned Advocate for the appellant contended that since there is a long standing ill-will and motive, the prosecution witnesses have falsely implicated the accused, in collusion with the police. The motive is a double edged weapon, which was also relied upon by the prosecution to contend that the accused have committed the offence and caused murder of the deceased with such motive. But to falsely implicate the accused in the present case, there should have been a strong circumstance. Admittedly, the deceased Mallappa died : 29 : homicidal death. The injuries found on his body suggests that he sustained multiple injuries and the Doctor who conducted post mortem examination opinioned that the weapon seized in the matter could cause such injuries. PWs-1 and 6 being the sons of the deceased, PW-8 being the wife could not have left the real culprits who caused the death of the deceased and think of falsely implicating the present accused, even though there was long standing ill-will. Other independent eyewitness definitely would not have supported the case of the prosecution if there was false implication. Moreover, the official witnesses including the police, definitely cannot have any motive for false implication of the accused. No such motive was suggested to any of these witnesses to substantiate the said defence.
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26. Under such circumstance, we do not find any reason to disbelieve the version of the prosecution witness. It is fully corroborated and inspire the confidence in the mind of the Court.
27. The learned Advocate for the appellants contended that the incident had taken place in the dark night and there is no reference to any electric light in the first information Ex.P1. It is the well settled preposition of law that the first information is not the encyclopedia of all the facts and circumstances of the case. Simply because there is no mention regarding the sufficient light at the scene of offence in the first information, the version of the prosecution witnesses that there was an electric pole and sufficient light on the spot cannot be disbelieved. Moreover even the spot Mahazar Ex-P4 refers to the existence of an electric pole near the scene of offence. : 31 : Moreover all the accused were not strangers to the eye-witnesses. Accused and the prosecution witnesses were familiar with each other and under such circumstances, it cannot be said that there was mistaken identity as the incident had taken place during night hours.
28. The other contentions raised by the learned advocate for the accused is that there is inordinate delay in lodging the first information. As per the case made out by the prosecution, the incident had taken place at 9:30 p.m. on 5/7/2013. PW-1 the first informant who lost his father in the incident lodged the first information at 3:00 a.m. on 6/7/2013, that is just 5:30 hours after the incident. According to Ex.P1-FIR, the Police Station is situated at about 8 kilo meters away from the scene of offence. When PW1 had lost his father in the incident, his brother PW6 had sustained injury, : 32 : naturally there will be shock and normal human being may require some time to decide the future course of action and it cannot be said that in the next moment, the informant should have been present in the police station to lodge the first information. The time gap of about 5:30 hours cannot be said to be inordinate delay under the given facts and circumstances of the case. Moreover, it is not suggested to any of the witnesses that PW1 had gained time to embezzle the facts of the case.
29. The learned Advocate for the appellants had drawn our attention to the cross examination of PW-14-the investigating officer who registered the FIR. During cross examination witness stated that the information regarding incident was received in the station at about 10:30 p.m. as some unknown person had informed about the same over the phone. After : 33 : receiving such information, he had been to the scene of offence at 11:30 in the night and till about 1:30 a.m. on 6/7/2013 he was at the scene of offence and hundreds of persons have gathered there. Witness specifically stated that none of the persons who have gathered there came forward to lodge a complaint and even PW1 stated that he will come to the police station and lodge the first information. Therefore, he came back to the police station and at about 3.00 a.m. PW1 came and lodged the first information.
30. In this regard, the learned advocate for the accused placed his reliance on the decision in the case of State of Andhra Pradesh Vs. Punati Ramulu and others1, wherein the Hon'ble Supreme Court has held as follows:- 1
1993 CRI.L.J.3684 : 34 : "The police constable at the police station refused to record the complaint presented by PW 1 on the ground that the said police station had no territorial jurisdiction over the place of crime. It was certainly a dereliction of duty on the part of the constable because any lack of territorial jurisdiction could not have prevented the constable from recording information about the cognizable offence and forwarding the same to the police station having jurisdiction over the area in which the crime was said to have been committed."
31. The Hon'ble Supreme Court has further held that:
"Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching : 35 : the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stooped to fabricate evidence and create false clues."
32. A cryptic information was received by the investigating officer PW14 and he proceeded to the scene of offence and PW1, thereafter, came to the police station and lodged the first information as per Ex.P1. Nothing has been elicited from this witness to contend that the information was deliberately not registered before proceeding to scene of offence or that the investigating officer along with PW1 held discussion and consultation before drawing the first information and with some motive FIR was registered subsequently at 3.00 o'clock. When : 36 : no such evidence is elicited by any of the witnesses in particular from PW 14, the decision relied on by the learned advocate in the case is of no help.
33. In the present case there is no such allegation against the investigating officer either that he had refused to register the FIR at the initial stage or having deliberation, consultation and discussion for the purpose of fabricating the evidence or falsely implicate the accused. The investigating officer has stated in his evidence that since he had received an information regarding commission of offence in village, by an unknown person at 10:30 p.m., he visited the village at 1:30 a.m., but nobody came forward to the lodge complaint and at the same time, the informant PW1 stated that he will come to the police station and lodge the first information. : 37 : Accordingly, he came to the police station at 3:00 a.m. and lodged the first information. Under such circumstances, it cannot be inferred that the investigating officer with any malafide intention gone to the village and deliberately not registered the FIR or refused to register the FIR with such motive. When the facts and circumstances of the case are not one and the same, the learned advocate for the appellant cannot rely upon this decision in his support.
34. It is the well settled preposition of law that if a cryptic information was received by the investigating officer regarding commission of the cognizable offence, he is entitled to make preliminary enquiries regarding commission of such offence and after satisfying himself about the commission of such offence he can proceed to register the complaint. In the present case, we do not know about the details of the : 38 : information that was received by the investing officer-PW14 before proceeding to the scene of offence. It is not the contention of the appellant-accused that the detailed version of the offence was received by the investigating officer but still he refused to register the FIR with some motive. Under such circumstances, the conduct of the investigating officer do not seems to be tainted. On the other hand, his version can be relied on in support of the case of the prosecution. Therefore, the decision relied by the learned advocate for the appellant is of no help to the appellant.
35. The other contention taken by the learned advocate for the accused is that no local witnesses are examined even though there are houses near by the scene of offence. It is admitted by the prosecution witnesses that there were few houses and there were inmates in the : 39 : house. But, it is not the case of the prosecution that many persons have gathered at the scene of offence, at the time of incident. Even if the neighbourers were to be present and have witnessed the incident, normally they will not come forward to depose against the accused, since the accused and the deceased hail from the same village. During the course of cross examination, it is not elicited from any of the witnesses including the investigating officer, that deliberately the local witnesses were not cited. Under such circumstances, the contention of the learned advocate for the accused cannot be accepted.
36. The contention of the learned advocate for the accused that the injuries found in the post-mortem report Ex.P10 do not correspond with the weapon said to have been used by the accused, also cannot be accepted, in view of the : 40 : clear evidence of PW3-Doctor, who conducted post mortem examination and issued the report as per Ex.P10 and his opinion as per Ex.P11. As per these documents and the evidence of the witness, there were multiple injuries found on the dead body of the deceased which correspond with the weapon seized in the matter. It is suggested to the prosecution witnesses by the learned advocate for the accused before the trial Court that the deceased Mallappa had consumed alcohol and he was intoxicated. Except the bare suggestion which was denied by the witnesses, no other materials are placed before the Court to accept the same. Moreover, even PW3 stated in his evidence that he could not find anything to form an opinion that the deceased had consumed alcohol.
37. The other suggestion put by the learned advocate for the accused before the trial : 41 : Court is that the deceased had fallen in the Guttar and sustained injuries. Of course all the witnesses have denied such suggestion. During cross examination of PW-3, it is elicited from the witness that individual injury found on the dead body of the deceased could be caused if a person falls on rough surface from the height. But, glaringly there is no admission by PW-3 that all the injuries found on the dead body of the deceased could be caused if the deceased falls into a Guttar, in the state of intoxication. Therefore, such defense if at all taken by the accused is more improbable and cannot be accepted.
38. On close scrutiny of the materials placed before us and for the reasons discussed above, we are of the opinion that there is absolutely no reason to disbelieve the version of the prosecution. On the other hand, the : 42 : prosecution is successful in proving the guilt of accused Nos.1 to 3, 7 and 9 to 13 beyond reasonable doubt. The accused are not successful in taking any specific defence and probabalising the same to have the benefit of doubt. The trial Court has taken into consideration all these materials on record and formed an opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and proceeded to convict the accused for the above said offences. We do not find any reasons to interfere with the same. Hence, we answer point No.1 in the affirmative and No.2 in the negative.
39. Accordingly, we proceed to pass the following:-
ORDER The appeal is dismissed as devoid of merits. : 43 : The judgment of conviction and the order of sentence dated 5.04.2016 passed by the learned Special Court (POCSO) and SC/ST Prevention of Atrocities and III Additional District & Sessions Judge, Belgaum, in S.C. No.340/2013 is confirmed.
The bail bonds of accused No.6 to 10 and surety bonds stand cancelled. Send back the TCR to the trial Court with a direction to secure the presence of accused Nos.6 to 10 and issue conviction warrant against accused Nos.1 to 3, 5 to 10 to serve the sentence.
SD/-
JUDGE SD/-
JUDGE Vmb