Karnataka High Court
The State By Circle Inspector Of Police vs Kallahalli Thimma Reddy on 20 August, 2008
Author: Manjula Chellur
Bench: Manjula Chellur
N THE HEGH comm" OF KARNATAKA
czacm EENCH AT BHARWAD V % .
DATED was THE 20*" my OF AUGUST ztzesi j 5
THE HONBLE MRS.JUSTlCE
PRESENT & .
MAN'JU%A-4CHELi§'UF§l_V'*5'
THE HOMBLE MR.JUS'{iCE KN.KE'3EEAVA%\:.:§F§.§g'?A§§;VA_i'; A
CR¥¥V£lNAL APP£AL§Jc.2144i2ao2J %
BETWEEN:
"She Estate by Circle inspect
of Poiice, Sarsdur. .
(By
ANS - w ~ 2
1.
or L
" ...APPE§..LANT
Ka:séha:;: Th§rf£f%:i§'-5§£éd§i§* _:'* '
Slo.Po'mpanna,._ ' '
Aged:353r.ears. '
Agrmulturisi, _ '-
§?.£%;.Naga¥;3ur.' " A _
; uBasavar}a. Gouda
_ S:'c.Hanum'ana'f$ouda.
" ._ ';#+.gsed':"5S~.yeafs;'
A AgrEcuitu'rE$t,
R;'o.Bahnihafli viilage.
. !5%anLi'ména Gouda,
V SEa,Basavanna Gouda,
' Aged: 25 years,
A' " E Agricuiturist,
Fzfofiannihatti
Neeiakarzta,
Slasubbanagouda,
Aged:26 years,
Employees,
Rfo.Bannihatti.
5. Nagappa,
Sic}-ianumanthappa
Aged: 35 years,
Agricuiturist,
Rio.Naga§pu¥.
6. Smt.8hivagangamma,
WIe.Thimma Raddy,
Agec¥:22 years,
Agriculturist, _
Rlo.Nagalpur.
.'.'.RESPONE>E-ZNTS
(By SrifiaaavarajKaredcfififidv.)
This Criminai Apnea! Es' fi¥ed"under..:~3.e¢t5cn 378(1) & (3)
Cr.P.C by the SPP._fer the..$tai*e.=. praying?) gr'.-.:r2t' leave to fiie an
appeal against _ the -j_udg;_r'nent "datg'd..f"%6.9.2%02 passed by the
Prl.S.J.BellaIy, i in }1f3;.C.N¢,16j1'996' acqiiirté-n'g the respondents-
accused for the éffemeg pug-§§h--a_b|a'unvder_ 'Sections.143, 14?', '£48,
-302 riw Sec.'§4§'$.i-:!.F"§3'e. ' ' V A C:§§§2Vi_na¥E:'§.Ap;fi:éa!_ on for hearing, this day MANJULA CHELLt3R,J,% <ie'iit;er:~ad' the foilowing:
V M E N T State; "a*§pe_a__[éis directed against the judgment and order pf asqui1f§a!.%::=..viVé'--case that came to be registered for the offences %Mmééshaiasaé".:.:::c:;§r'Sections 143, 147, 148, 3&2 read with Section V L' 1-¢9'"E'PC.v'--. ' % V * s 4_ 2% brief the facts of the case are as under; ' One Smt. Gangamma wife of Thimappa had gone to take "'$:é§:*e of the bereweil in their iarad in View of her husband Thimappa was not able to Seek after the same during night due to his iilrtess.' The famiiy had to protect the barewefi as they were apprehending
4. Quring the course of investigation, oiead body was sent for Post Mortem. The personal betongings of the deceasek;{t:"erere seized under the mahazar so atso incriminating articies~~carne_ to seized i.e. sized stones at the spot of the instdent, of _ several witnesses regarding the raotive i'or"ti'ie_ inc%dent_"in_qLiestion« were recorded. The Committai Court h'a_di:toA.comrhit the the Sessions Court as it was a ciaseiiexctusiiiety tritabie Court it of Sessions. During the,~'§zI'OCeQdi'|"'tQ.$:hérflffi theS'ess§'ons Court. Beiiary, as the respor:dents4ia_.:;~ctise.?:JVipleaeieoilnet guitty to any of the charges, aftertrecordiréfiiittzei p.le'ai;--theVV- was posted for evidence. jiluttrigiiilfthe ce'ii:se..of eviéieneeiwthe prosecution in ail examined 15 24 exhibits apart from materiat objects'! 'tor-7:. -
.t-fitter: reco?d%ng----«3'13 statement, atguments were heard and 'uiti'mateiy_ttie'teamed Sessions Judge. acquitted the accused of eti the'chargesiftnisinty on the question of delay in iodgtng the comoieintasithe Trial Court was convinced that it was impossible iigfor 'ii3\(V.2V"tc witness the incident in question and the prosecution
--' hasiiriot expiained the deéay satisfactortty. in other words, the T "accused were acquitted as the charges were not estabiisheé beyond reasonabte doubt. Aggrieved by the said iucigement and order of aoqisittat, the State has come up in this eppeat. /'
6. Accotding to the teamed Addi.SPi-"' Smt."i".M.Gayethri, the very fact that the victim was a lady who was required to keep a watch over the bereweii in her iand woutd necessitate otherfitaie members to give her company in her task of p:'otectin_r_.:?_:t1?ie _ in their land. Therefore, the presence of»Ai?W.2 nee:*'b§:the'~oiaee incident is naturai. Hence, the evidefiee of.FfW:2».eto'ne4woeieiivhe.' sufficient to establish the quiit of theeeccueeoiiérespondeetetv. 3 'Ir'. We have gone thiough ttteH_i:enti_re..t1'tater"te--!oh reebrd.
8. We are aware ofiithe' 'set-t.!ect' la§§ti'thotV"'ie__ appeals against the order of ao.quitte.i, though Court of first appeal;.:muet'_Abeivjs;!e§yT'§n'% intjeffeftng with the erder of acquittal as the Trial CetJtt__whiMch' h:ect:--i:,t%te_"a;}::>'ottunity of obeervtng the demeanor and cenductko-i .the.\%:2tnetssée would have based the judgment in V' -.q'ue:sti:on'..,'beirsQAsatiet'tet:t"§~?ith the innocence of the accused persons. ..»_.\f§*"eT_éie ef the fact that unless the reasoning of the Triai Ciozgifth is the Appellate Court should not interfere with the "v.,judgmeettef acquittai. We are aieo aware of the iaw that if two A V~:if"'%.'te$§e«_.are pessibte, the view, which is beneficiat to the accused. ' rtfigust always be extended to the accused. With these perticuiars 5 u H m our mine. we have gone through the entire evidence and the 'V i ' i = K judgment of the Triet Ceurt.
6
9. So far as the unnaturai death of the victim Gangamma we have the evidence of F-'W.1 the Sector who conducted autepey on 20.3.1995 between 4.45 to 6.00 PM. internal and V:'e.£t:e:fhai examination during the course of autopsy revealed a.o:o'ord.i.nig'toithit; "
autopsy doctor that the death was duete interneiVhen1onhegej'&and it it shock as a resuit of ingury on the head:"evith:'_'a etonie. time of death is 24-48 hours prior_Vte...the 'e'xatninat¥en'.A'{_j'During the . L' cross-examination of these witr_1_e§ees;w._»_the "re!eyant3 evidence brought on tecord was the-tiitihe 'i_njLg_ries"ho-th'"internal and external found on the deceased pets-en.¢ou'idAoocL£f'eyfénifh a person faits on hard surface or when _heA.eenies"'into contact with hard objeot.V'?.._There. cmss-examination with regard to the weaeoniyaithv referred to at E.x.P.1 eeuid be caused'; The tbocterwwithi certainty has given a definite answer that to the deceased could occur due to hit with A"':~'.i_ etonAe"'ti:Re,,»V_ The entire croeeexamination of the Doctor wotjid not inditiate that the death was due to any accidental fait and "':3nVothe..otiter hand the very presence of blood smined stone near
--the..eeot of incident woutd indicate that there was emphatic impact the head with a hard object iike stone. The triai Judge was jusstified in holding that the death was a homicidal erie. there was constant vigit ever the boreweii. PW2 was aged about 32 years when he gave evidence in 2002 and he was 24'"to 25 years when the incident in question happened. AcconiinQ- prosecution, the deceased Gangamma ieft the house"
her son PW2 and CW] Basamma hermether.-"_4' V1i~'-':\r."'J;"_.2.'a vh'iajor.A it male member of the farniiy was avaiiebie irigii: _ boreweii. we do not understand n'hQ'{emaie"membeesflot;t'h~e»»fami|y, " it especiaiiy CW] Basamme aged_.uiei3out_.j 'ifihiyeers jriith week eyesight was accompanying V:PTW.'2_and; déeeesed Gangamma. it is not the case of the prosecution 't%1at,__thereé:"'inas no other male member of thei.:faneii'y'.§._either the of"the deceased er her husband, who ewe in the task of keeping vigii on the wane M-b¢isiieii;st it V_1_v2. "fine v"aui;o'psy=_ over the dead body was conducted to on 20.33995. The incident said to A'i'i'c'lV"t1:'£-L"' ooei,r_ri*evdi.bTetsveen 7.30 to 8.00 PM on the previous night i.e. on .1'$3§3.1V9§5';_in?'the land of the deceased. According to the Post Morten"; the eeath has taken piece between 24 to 48 years by V' .._orior-to atitopsy. Therefore any time between 18.3.1995 440 PM
-- ."Z'3'Qti.1995, the death must have occurred. in other words, the * "'minia'zum time was 24 hours and the maximum time was 48 hours. Though the evidence of an expert regarding the time aspect, it is oniy to ascertain probable time of the death of the victim. it would 9 assist prosecution to connect this circumstance with other circumstance available on record. However, it is not a cone-igisive proof.
13. The contents of Ex.P.1 disclose 'of:
stomach were intact, stomach was full gre'e'n..vcio_icuired.: focd:,"dhsi"'« and rice. it means undigested foeci wee. Afiound i:1sj..'t';*to'rnxa'i7:.ii~~ the deceased. The minimum time»e4f.or.digeetion_ to 6 V hours depending upon thei"naturer~~of"fcaC_'r consumed Vandthe health of that persen. This fact e'niiy%mii<esV"u:s fact that death must have taken piacewititin 2 thetirne of test meal. it couid beieitherriieangierisicn:sici.e.3.1eeSor the iunch on 20.3.1995. Dating the set:-iden'ce' brother of deceased Gangamrsa, categsoricailyistatee .th--et7whe'nV deceased left home on the sight ef towardsifiiev land, she did net consume dinner.
jjrrgsecuticn is not in a position to expiain this c.¥isci?'?e*i;3anc§r'."e: Z _ j term contents of Ex,P.t2 FIR wouzd reveai that the FIR H 'A .r,.:was..desVp'atched at 2.30 RM from Gadiganure Potice Station to the 'Magistrate at Beliery. The Magistrate received the FER at about _,..1"i.45 PM on 2e.3.zee5. As per Exs,P.1 and M2, the compiaint V came to be lodged at 12.00 PM on 20.3.3995. The incident is said to have taken place according to prosecution between 'F30 to 11 hour or so as well as involvement of accused through Egon if we presume that some time must have been spent to"co:ne-._o_ot:..ot« _ the shock and misery to lodge the complaint .sam_'e --. night, clefihiteiy oh the next morningziithe::coeti,olgaine'nt:
family members ought to have intimated 'ttie"nearest'vF?3.oiice"eve?the -' phone about the incident or to sencieemeone"teinfotm Vtheieeme to the concerned Poiice. A;§ee_rentiytmcso'eh. hotet all made either by PW2 or any other tijeiggfemily. Nothing stopped or preyenteti or any other mete member of the from the village to get the attentionofotheri5'oiice,w~.thettiret the morning of 20.3.1995. Thougl-:i1..1;§1e--ciistence:-V-gtromivéétitehiece of incident and nearest Police Station wee on the next day afternoon no one tried.jtobrihg to Vtneohioticge of the Pottce about the incident. This v:Aeon.§uct_:"'ei. nearest kith and kin of the deceased definiteiy Aiteei.-fee the mind of the Court whether f-"'W.2 actually sawthe iheieeiht in question as aiieged by him on 193.1995 itseif. it 'i {lie the other hand, the contents of the stomach as smtee ' and the fact of lodging the complaint only at 2.00 PM on w20.3.1995 woule petsuade us to accept the reasoning of the learned triai Judge that there were deiiberetions and diecuesion before lodging the compieintr the e matter of fact, during the croee-examination. F'W.2 admits the suggestion that he was 12 outside the garden when his mother died. He further says, there was no Eight, but he could howeve: see the incident in the___rneon light. The learned trial Judge, as matter of fact foun.d'~.ee§{etei embellishments, contradictions and improvements in.--ine "e*.¥i'f§i--enee_T' _ of r-=w_2 because neither in the compiaint nor an'.iuiiizerieieieeient; ' ~ this witness has come outwith a staternent :ti*i3it3irtii3e ~niVoen"%igifit was able to witness the incidentin..euestie.nf Thewgprevergients ; being on very teievant or materiaVii'i'ee;pe§t, definiteiyi the delay in lodging the eompiaint gci_:ite.i*oo"i.Aof the ease of the prosecution. On' the other_nend.t,"_the es;i<te'n¥:e..iereught on record by the kith and ;_kin'*9fthe iieceee:ed"it:e'??F.>i.*!e_.é,' 6, 10 and 11 wouid indicate1.v_thet*there.'§ntJet_'h'e§e~-- been discussion eerore the famiiy eecidee te'e-iiedgve the" regarding the contents of the con'ig_iei'rit.. AS'aV_tnetter. of 'fact, one Neeiakantappa examined as n'eeber:d_ of Pw.io, hed dicmted the contents of Ex.P.'i 1. if 1 t§ie.--:"aLiti'Io:' of the ceritents of the eonipiaint, the evie'e__nce__vof based on the contents of oompieint Witt not assist preeeeution to convince the Court. "fhe conduct of the kith intend of the deceeeee in keeping quiet tiii 2.00 PM though the R L' ._irit:ioierit occurred en the previous night at 7.30 or am PM would naturaiiy indicate that after due deiiberetions in View of the previous enmity between the complainant famiiy and the accueed-
respondents. all the accused persons are impiicated in the Z3 compiaint. if reaiiy the incident in question has occurfé<% ib_§re was no particular reason existed for PWs.9 to $3 M The trial Judge was justified in coming is a ihé, prosecution has faiied to estabiish the;"g&:§:%or reasonabie doubt. »' A. . . V' K Accordingly, we confirm ;£beL:'?:.§$:*der $1' 'a¢£_qu.i%té:I Vdifimissl the appeai.
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