Karnataka High Court
State Of Karnataka vs Imamsab Husensab Honyal Pailwan on 24 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 Criminal Appeal No.100246/2018
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.100246 OF 2018
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE POLICE SUB-INSPECTOR,
SAMREEN BELAGAVI RURAL POLICE STATION, BELAGAVI,
AYUB THROUGH THE ADDL.
DESHNUR STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
Digitally signed
by SAMREEN HIGH COURT OF KARNATAKA, DHARWAD BENCH.
AYUB
DESHNUR ...APPELLANT
Date: (BY SRI. M.B. GUNDWADE, ADDL. SPP)
2023.12.08
13:03:32 +0530
AND:
1. IMAMSAB HUSENSAB HONYAL PAILWAN,
AGE: 45 YEARS, OCC: AGENT/CAR DRIVER,
R/O: BEHIND TALUKA OFFICE,
SAVADATTI, DISTRICT: BELAGAVI.
2. SHAUKATALI S/O. GULABSAB,
AGE: 28 YEARS, OCC: NOT KNOW,
R/O: KNAKANWADI VILLAGE,
DISTRICT: BELAGAVI.
3. KABIRSAB HASANSAB NADAF,
AGE: 48 YEARS, OCC: NOT KNOW,
R/O: BENDWADI, TALUK: GOKAK,
DISTRICT: BELAGAVI.
RESPONDENT NO.3 IS REPORTED TO BE DEAD
AND APPEAL AGAINST RESPONDENT NO.3 IS ABATED
AS PER ORDER DATED: 22.10.2019.
2 Criminal Appeal No.100246/2018
4. VIJAY S/O. SADASHIV RODKAR,
AGE: 45 YEARS, OCC: JAILER,
R/O: TERDAL, TALUK: JAMAKHANDI,
DISTRICT: BAGALKOT.
5. GAJANAN S/O. SHIVAJI RAJGOLKAR,
AGE: 53 YEARS, OCC: CHIEF WARDER,
R/O: CENTRAL PRISON BELAGAVI.
6. BALANGOUDA KESARPENTI
S/O. HANUMANTGOUDA PENTI,
AGE: 53 YEARS, OCC: CHIEF WARDER,
CENTRAL PRISON, BENGALURU,
R/O: NEER BUDIHAL,
TQ: BADAMI, DIST: BAGALKOT.
7. DURGAPPA S/O. BASAPPA KADLI,
AGE: 59 YEARS,
OCC: CHIEF SUPERINTENDENT,
R/O: VALKANMATTI,
TQ: DEVDURG, DIST: RAICHUR.
...RESPONDENTS
(BY SRI. SHARAD V. MAGADUM FOR R1;
SRI. JAGADISH PATIL, ADVOCATE FOR R2;
SRI. SANTOSH B. MALAGOUDAR, ADVOCATE FOR R4 TO R7)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER ACQUITTAL
DATED 16.03.2017 PASSED BY THE PRINCIPAL SESSIONS JUDGE, BELAGAVI
AT BELAGAVI IN SESSIONS CASE NO.127/2010 AND CONVICT THE
RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION
302, 120-B, 201 R/W. SECTION 34 OF IPC, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS CRIMINAL APPEAL BEING HEARD AND RESERVED ON
03.11.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
3 Criminal Appeal No.100246/2018
JUDGMENT
This appeal is preferred by the State against acquittal of judgment passed by the Principal Sessions Judge, Belagavi (for short "Trial Court") in Sessions Case No.127/2010 dated 03.11.2023. The respondents 1 to 7 faced the trial for the offences punishable under Sections 302, 303, 201, 120B read with section 34 of IPC.
2. It is reported to the Court on 22.10.2019 that accused No.3-respondent No.3 has died. Therefore, this Court has passed order regarding abatement of case against respondent No.3. As he is reported to be dead, the criminal case against him stood abated as per the orders dated 22.10.2019.
3. The facts of the prosecution's case in brief are as under:
That, Sarvottam T Pai, DSP (H&B) Wing, CID, Bengaluru submitted a complaint on behalf of the State to the Belgaum Rural Police Station on 19.12.2009 at 6.25 p.m. with a request to register criminal case with regard to the death of one Sri.Bhimappa Alagonda Kamate, a convict housed at Hindalga jail, Belagavi with Convict No.19803 for the offences punishable under Section 302 and 201 of IPC.
4 Criminal Appeal No.100246/2018 It is stated in the complaint, that on 02.01.2006 at about 1.00 p.m., the Chief Superintendent of Central Jail, Belagavi by name Sri.D.B.Kadli, submitted complaint by appearing before Belagavi Rural Police Station stating that, deceased-Bhimappa Alagonda Kamate (hereinafter referred to as "deceased") with Convict No.19803 aged about 49 years, r/o. Bendwad village, Raibag Taluk, Belagavi District was convicted by the Fast Track Court in SC No.207/2004 in Crime No.80/2004 for the offence punishable under Section 307 of IPC. He was convicted and sentenced to undergo imprisonment for a period of 5 years and to pay fine of Rs.1,000/- and in default to pay the fine amount, he has to further undergo simple imprisonment for six months. Accordingly, the deceased was sent to Central Jail Belagavi on 26.09.2005 to serve sentence. It is reported that the said convict on 27.12.2005 fell down from the staircase and sustained head injuries on his person. It is further reported that, as per the advise of the medical officer housed at Central Jail, he was admitted to District Hospital, Belagavi. Thereafter, for further treatment, he was admitted at KLE hospital Belagavi. But unfortunately, the said Bheemappa succumbed to the injuries on 01.01.2006 at 9.45 p.m. at KLE hospital, Belagavi.
Based upon the said report/complaint, the Belagavi Rural Police Station registered case in UDR No.1/2006 under Section 174 Cr.P.C.
5 Criminal Appeal No.100246/2018 One S.B.Mathapati, the then PSI registered the said crime. As per the request of PSI, Belagavi Rural Police Station, the Assistant Commissioner/Sub-Divisional Magistrate Belagavi conducted inquest panchanama on the dead body on 02.01.2006 at KLE Hospital, Belagavi. The said Sub-Divisional Magistrate requested the District Hospital, Belagavi to conduct post-mortem on the dead body. Accordingly, Dr.G.K.Arun and Smt. Dr.P.S.Patil conducted post- mortem on the dead body of the deceased. They opined that "Bheemappa Alagonda Kamate aged about 49 years has died on account of Coma, as a result of severe head injuries sustained".
4. It is further stated that the Sub-Divisional Magistrate Dr.Vijayakumar N Toragal submitted report to the National Human Rights Commission, Delhi with regard to custodial death of deceased along with post-mortem report as deceased was in coma because of head injuries and he was unable to speak and therefore, his statement was not recorded.
5. It is alleged that Dr.Sharma, the Additional Professor, Department of Forensic Medicines, Indian Institute of Medical Sciences, Delhi based upon the medical records has opined as under:
6 Criminal Appeal No.100246/2018 "As per the information given by the expert of Panel of NHRC, the injury sustained by the deceased are not possible by fall and can be caused due to fall from height of at least 1-2 storied. Thus, the death appears to be suspicious"
6. Based upon the said opinion, the NHRC directed the Government of Karnataka to conduct investigation through CID Police by addressing letter No.O.E.114 CID 209 dated 25.09.2009. As per the said direction issued to the Government of Karnataka, the Superintendent of Police (H&B) Wing entrusted the complainant Sarvottam Pai to visit Hindalga Jail, Belagavi and conduct investigation. Accordingly, this complainant visited the Central Jail, Belagavi along with panchas, conducted inspection and investigation at the said Central Jail. The said incident has taken place in a room where Iron Smithy work was undertaken in Central Jail. He noticed about sprinkling of blood on inside walls of the said iron smithy room. It was also revealed from the statements of witnesses present there that, blood was fallen on floor. Therefore, the complainant requested the FSL, Belagavi to collect the blood, which was sprinkled on walls. He also requested to provide report to that effect. It is alleged in the complaint that, as per the medical report from Dr.R.K.Sharma, it was revealed that it was not possible for the deceased to sustain such 7 Criminal Appeal No.100246/2018 injuries on account of fall on staircase but it was possible only if he had fallen from 2-3 storied building. It was also revealed that, there was destruction of evidence with regard to falling of blood on the stairs as well as the material object being used for commission of the offence. It was revealed that, it was not an accidental death but it was a murder.
7. With these allegations, complaint came to be filed before the Belagavi Rural Police Station, it was registered in Crime No.278/2009 for the offence punishable under section 302 and 201 of IPC and criminal law was set in motion. The registration of FIR in the aforesaid crime was followed by investigation which led to charge sheeting all the respondents.
8. Before the Trial Court, to substantiate the case of the prosecution, it examined in all 57 witnesses as PW1 to PW57 and got marked documents as per Ex.P-1 to Ex.P-107 with respective signatures thereon. M.O.1-metal cutter was also marked. During the course of cross-examination, portions of evidence of PW10 and PW11 were marked as Ex.D1 and Ex.D2.
9. The Trial Court on evaluation of evidence and on hearing the arguments found that, the evidence placed by the prosecution 8 Criminal Appeal No.100246/2018 would not lead to convict the accused persons and hence, acquitted all of them of all the offences by the judgment impugned in this appeal.
10. The main grounds recorded by the Trail Court for acquitting the accused are as under:
i) The report submitted by PW51-Dr.R.K.Sharma being the consultant doctor to NHRC, Delhi wherein the said expert has not agreed with the history of deceased sustaining injury falling on steps and such head injury is possible on account of fall from height of at least 1 to 2 storied.
Therefore, to prove the same the prosecution has examined many witnesses alleging that it was accused No.1, who murdered the deceased. But the said witnesses have not supported the case of prosecution.
ii) PW3-Arun Ganeshrao Katekar has stated in his evidence about submitting report as per Ex.P9. The doctor has opined that death was due to coma as a result of severe head injury sustained by the deceased. Ex.P10-final opinion and the cause of death was not clearly shown about deceased sustaining head injury, who died when he was in coma. The opinion as per Ex.P12 though says about using of said metal cutter the said murder has taken place, but according to the Trial Court, there exist contradictions in the evidence of the witnesses.
iii) It is also opinion of the Trial Court that Dr.Prabhavati Patil, who conducted post-mortem on the dead body was 9 Criminal Appeal No.100246/2018 not examined. PW3-Arun Ganeshrao Katekar has given two reports. One in the year 2007 and another in the year 2010. He gave an opinion stating that injury No.2 was due to hard hit by blunt weapon, but in the year 2010, he has stated that injury No.2 might have been caused by the article examined.
iv) PW37-complainant/Dr.Sarvottam Pai took up the investigation and sent the bloodstains found on the wall of ironsmithy room. The said incident has taken place in the year 2005. The bloodstains were sent in the year 2009. The NHRC referred the post-mortem examination report, which was examined by PW51-R.K.Sharma and the matter was referred for CID investigation. Based upon such a conclusion, according to the Trial Court, such evidence cannot be accepted.
v) PW1-Dr.G.B.Dodawad, who medically examined the deceased, who was admitted in Government Hopsital with a history of fall due to fits and he noticed bleeding injuries on the person of the deceased and has opined that the said injury shown in Ex.P3 might have been caused by the use of said metal cutter. He has also opined that the injuries in the accident register and injury No.2 in the post-mortem report may be the same. This doctor examined the deceased in the year 2005. The investigating officer requested this doctor in the year 2010 to give opinion and he has given opinion as per 10 Criminal Appeal No.100246/2018 Ex.P3. Thus, the contents of Ex.P3 were not accepted by the Trial Court.
vi) The other witnesses so examined by the prosecution have not supported the case of the prosecution. But as per the evidence of PW5-Biliya, he saw the clothes of accused No.1, which were bloodstained. There was bleeding from nose and mouth of Bheemappa. At that time, the deceased was seated near the stairs of said ironsmithy room. It is his evidence that accused No.1 dragged Bhimappa outside and he was found wiping the blood in the said ironsmithy room. There are contradictions. To corroborate the said evidence, PW11 was examined. But his evidence was not accepted by the Trial Court. It is opined by the Trial Court that the entire case was based on circumstantial evidence but the prosecution has made futile attempt to claim that there were eyewitnesses to the incident and examined many inmates of the prison, but none of them were found to be eyewitnesses to the said incident. Therefore, the Trial Court was of the opinion that the evidence placed on record does not inspire confidence.
vii) Trial Court opines that the death of Bheemappa is not in dispute but it opined that he died because of head injury sustained by him as per medical records. Even inmates of the jail have stated that the said injuries were sustained by the deceased because of fall on the steps. There is no concrete evidence that accused No.3 gave supari through 11 Criminal Appeal No.100246/2018 accused No.2 to kill Bheemappa. There is no destruction of evidence by accused No.4 to 7. According to the Trial Court, the case of the prosecution suffers from many pitfalls. Therefore, with this opinion, the Trial Court came to the conclusion that no case is made out for conviction of the accused and seizure is also not proved.
viii) In the complaint, there is no allegation against the accused persons that it was accused persons, who hatched plan to commit the murder of the deceased. There is no evidence against accused No.4 to 7 that they destroyed all the evidence of committing murder by accused No.1. The prosecution has utterly failed to connect the accused persons to the murder of Bheemappa. Therefore, with this opinion, the Trial Court came to the conclusion that, no case is made out for conviction of the accused.
11. Challenging the findings of the Trial Court, Sri. M.B.Gundawade, learned Additional SPP argued on behalf of the State. Sri. Sharad V Magadum, advocate argued on behalf of respondent No.1. Sri.Jagadish Patil, advocate, argued on behalf of accused No.2 and Sri.Santosh Malagoudar, advocate, argued on behalf of accused No.4 to 7.
12. Sri. M. B. Gundawade, learned Additional SPP began his argument with a comment that the Trial Court has utterly failed in 12 Criminal Appeal No.100246/2018 appreciating and analyzing the evidence placed before it by applying the yardstick on probabilities to the intrinsic value in evidence and the animus of the witnesses. It is his submission that there was no attempt by the Trial Court to separate grain from chaff and it has resulted in miscarriage of justice. Elaborating his submission, he submitted that though most of the witnesses appeared to have not supported the case of the prosecution, in reality it is not so. There must be proper appreciation of evidence, which would lead to a conclusion that they have spoken to the extent they knew about the incident and of course, some of the witnesses have fully turned hostile and it must be borne in mind that all of them were either inmates of Central jail, who were friendly with accused No.1 or were under the control of accused No.4 to 7. The Trial Court has failed to notice the reason for those witnesses, who have turned hostile. It is his further submission that, accused No.2 is a mediator and he brought accused No.3 on the previous day of the incident of murder of deceased- Bheemappa and had a talk with accused No.1 in the visitors' room. This fact is being witnessed by the convict, who was in-charge of the said visitors' room. So also, the visitors' register also shows about visit of accused No.2 and 3 on that day. Thus, inference can be drawn from 13 Criminal Appeal No.100246/2018 this evidence that there was some conspiracy to commit the murder of Bheemappa through accused No.1.
13. He further submits that, merely because some of the witnesses have been treated hostile, their evidence in totality could not have been discredited by the Trial Court. According to his submission, the totality of circumstances indicates that accused No.1 being the inmate of the Central Jail, Belagavi, based upon request of accused No.2 and 3 hatched a plan to commit murder of Bheemappa. On that ill-fated day, he brought Bheemappa to the said ironsmithy division, where accused was working, made him to sit and when deceased was sitting, he made use of the said situation and assaulted the deceased with M.O.1-metal cutter on his head and other parts of the body as noticed by the doctor. Accused No.1 dragged the dead body towards stairs/steps and pretended that the deceased fell down on the stair (steps) and sustained injuries. Because of the hue and cry made by the accused No.1, the inmates of the jail gathered. With the help of jail authorities, deceased was shifted to hospital. The injuries were so serious that deceased was unconscious and he went in coma. He was treated in Civil Hospital, Belagavi and thereafter for further treatment he was shifted to KLE hospital but he succumbed to the 14 Criminal Appeal No.100246/2018 injuries. Thus there was supari killing of deceased by accused No.1 to
3.
14. So far as conspiracy is concerned, according to his submission, there is ample evidence. Accused No.1 was housed in the prison and accused No.2 was inside the jail and was undergoing imprisonment. Both had good friendship. Taking advantage of friendship, he brought accused No.3 against whom deceased- Bheemappa had to give evidence before the JMFC Court Raibag on the next day of the incident. Therefore, they hatched a plan and conspired to commit murder of Bheemappa.
15. It is his further submission that, there are no lapses in the investigation. Merely for the reason that charge sheet was filed after five years of the incident, it is not possible to state that the investigation is not properly done by the investigating officers. As per the provisions of Code of Criminal Procedure, the investigation was done after getting report from the senior most doctor who was on the panel of NHRC, Delhi who opined that such injuries could not have been possible on account of fall on staircase and could be possible only if a person falls from distance of 2-3 storied building. According to him, the Trial Court has committed erros in giving findings in relation to evidence placed on record. It is settled principles of law that conviction 15 Criminal Appeal No.100246/2018 can be recorded based on the evidence given by the official witnesses also. Even based on the ocular evidence of the witnesses, the conviction can be passed. It is wrong to disbelieve the testimonies of vital witnesses if they speak truth before the Court and their conduct is impartial.
16. In this case, none of the police personnel has been discredited in the cross-examination. The defence has utterly failed to demonstrate that the investigating officers were hostile from inception. Their evidence is very much believable and the Trial Court could have recorded conviction based on their evidence. Therefore, it is submitted that the judgment impugned in this appeal cannot be sustained at all. It is his submission that, the said judgment has to be reversed and accused No.1 to 7 are liable for conviction. It is his further submission that accused No.4 to 7 are liable for destruction of evidence. Therefore, they are liable for conviction for destruction of evidence.
17. Sri. Sharad V Magadum, learned counsel for accusd No.1 submits that, there is no error in the judgment of the Trial Court. Though the prosecution has examined in all 57 witnesses, most of the witnesses have been turned hostile except police officers and other witnesses. So, totally all the witnesses have not supported the case of the prosecution. The circumstances so brought on record played 16 Criminal Appeal No.100246/2018 important role with regard to very commission of alleged offences by the accused persons. The motive assumes importance when circumstances are considered. According to his submission, the motive is an enmity i.e. accused No.3 was facing trial before the JMFC Court, Raibag wherein deceased-Bheemappa had to give evidence before the said Court on the next day of the incident. So, there was apprehension that if deceased give evidence in the said criminal case pending on the file of JMFC Court, Raibag, the said accused in the said criminal case would be convicted and there would be no male member in the family of the accused persons to take care of female members. Therefore, they thought of eliminating the deceased with the help of accused No.1. This motive is not proved in accordance with law.
18. So far as recovery of M.O.1 is concerned, the said recovery was done after five years of the alleged incident. It is the case of the prosecution that the said M.O.1 was kept in storage and other incriminating articles were burnt with the help of the jail authorities. Thus, there is no evidence placed on record that, it was accused No.1 and other accused were involved in the commission of the crime. The Trial Court has rightly concluded that the prosecution has not proved its case. There was no conspiracy at all in between accused No.1 on the one hand and accused No.2 and 3 on the other hand. He further 17 Criminal Appeal No.100246/2018 argued that, the police witnesses are always interested witnesses. To see that the case investigated by them should end in conviction of the accused persons. This being the settled principles, the evidence by the police witnesses is not safe to be relied upon. His submission is that since this is an appeal against acquittal judgment, the presumption of innocence of the accused is double strengthened and it is not proper to reverse the acquittal judgment unless the findings given by the Trial Court appear to be perverse. The impugned judgment does not disclose perversity in appreciation of evidence and hence, appeal deserves to be dismissed.
19. Learned counsel Sri.Jagadish Patil, for accused No.2- respondent No.2 argued that, there is no evidence indicating that there was conspiracy in between accused No.1 and 2 and he brought accused No.3 who made accused No.1 to have conspiracy to commit murder of deceased. Except bald say of the inmates of jail and also visitors' register being maintained by the authorities, there is no evidence placed on record. This accused No.2 has been falsely implicated in this case. He is neither the member of conspiracy nor involved in the crime in the manner alleged by the prosecution. There is major lapse in the investigation with regard to incriminating evidence against accused No.2, which cannot be ignored. He also 18 Criminal Appeal No.100246/2018 pointed out that certain amount of money was paid to accused No.1 as per the case of the prosecution, but whether accused No.2 was responsible or accused No.3 was responsible is not properly stated or brought on record. Therefore, the very evidence against accused No.2 is doubtful and it cannot be accepted.
20. Sri.Santosh B Malagoudar, learned counsel for respondents 4 to 7 vehemently submits that these accused persons are the officials of the prison department. When accused No.7 came to know about the fall of deceased on the staircase, he rushed to the spot and made arrangement for shifting the injured to the hospital. To that effect, accused No.4 to 6 assisted him. They have discharged their duties. There is no role being played by these accused No.4 to 7 in the commission of crime and suppression or destruction of evidence with regard to murder of the deceased by accused No.1. Therefore, it is submitted that, as these accused No.4 to 7 are not responsible in the manner stated, it is prayed for dismissal of the appeal.
21. We have given our anxious consideration to the arguments of both the sides.
22. This is an appeal against the acquittal judgment. We are conscious of the fact that the acquittal judgment cannot be so easily 19 Criminal Appeal No.100246/2018 reversed unless it appears that the Trial Court has grossly erred in appreciating the evidence. The approach of the Trial Court must appear to be very casual. In the case of Chandrappa and others v. State of Karnataka1 The Hon'ble Apex Court has laid down following general principles regarding powers of the Appellate Court while dealing with appeal against an order of acquittal.
"Allowing the appeal, the Supreme Court Held:
The following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts to limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.1
(2007) 4 SCC 415
20 Criminal Appeal No.100246/2018 (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court."
23. In view of the law laid down by the Hon'ble Apex Court, it is necessary that the entire evidence needs to be re-appreciated. Therefore, we briefly refer to what each of the witness has deposed before the Trial Court. Before referring to the evidence of each witness, the factors relating to which the witness have spoken is tabulated as under:
-Witness who gave first aid Dr. Guruputra Veerappa Dodwad treatment to deceased PW.1 Bhimappa.
-Pancha witness for Ex.P.5
Panchanama & witness to
PW.2 Basavaraj Sadeppa Parasannavar
criminal conspiracy-Hostile
-Witness who conduced post
PW.3 Dr. Arun Ganeshrao Katekar mortem examination of
deceased Bhimappa and
21 Criminal Appeal No.100246/2018
gave opinion regarding metal
cutter.
Witness who prepared sketch
PW.4 Shivanand Pandappa Hugar of the spot as per Ex.P.14.
-Witness who saw accused
No.1 washing smithy; so also
PW.5 Biliya S/o Narayangouda
circumstantial witness.
-Witness who saw accused
No.1washing smithy;so also
PW.6 Manjunatha Siddappa Irani circumstantial witness.-
Hostile.
-Circumstantial Witness-
Guruputra Shivabasappa
PW.7 Hostile.
Doddagoudar
-Son of deceased and
PW.8 Mahadev Bhimappa Kamate Hearsay witness
Circumstantial
PW.9 Beerappa Kadappa Jiddimani Witness-Hostile.
Circumstantial Witness
PW.10 Vinay Ganapati Hegde
-Witness who saw A.1
dragging deceased from
PW.11 Shrikant Pandappa Hadapad inside smithy up to stairs-
Hostile.
- Circumstantial
PW.12 Maruti Shivappa Hulikatti Witness-Hostile.
- Circumstantial
PW.13 Parameshappa Basappa Harijan
Witness-Hostile.
-Witness who admitted
deceased Bhimappa to
PW.14 Mahantesh Basappa Bhangi Hospital & circumstantial
witness witness-Hostile.
-Witness who admitted
deceased Bhimappa to
PW.15 Mahesh Krishna Mirajkar Hospital & circumstantial
witness-Hostile.
22 Criminal Appeal No.100246/2018
- Circumstantial
PW.16 Shankar Adiveppa Munavalli Witness-Hostile.
- Circumstantial
PW.17 Chandrappa Irappa Gangamath Witness-Hostile.
-Witness who washed blood
stains at the spot and blood
PW.18 Ashok Hanamantappa Onikeri
stained clothes-Hostile.
-Witness to criminal
PW.19 Gopal Yallappa Badakannavar. conspiracy-Hostile-.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.20 Tulajappa Basappa Karabani
incident from prisoners-
Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.21 Gajanan Anant Govekar
incident from prisoners-
Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.22 Hanamant Yallappa Yalkar
incident from prisoners-
Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.23 Siddappa Rayappa Kamble. incident from prinsoners-
Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.24 Mallayya Irayya Irannavar.
incident from prisoners-
Hostile.
-Witness who informed Police
PW.25 Vishwanath Dattatreya Warad
about prisoners suspecting
23 Criminal Appeal No.100246/2018
death of Bhimappa to be a
murder.
-Witness who washed blood
stains at the spot and blood
PW.26 Muttappa Prabhulappa Khot
stained clothes-Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.27 Timmanna Bhimappa Bhajantri
incident from prisoners-
Hostile.
-Witness who shifted
deceased Bhimappa Dist.
Hospital and then to KLE
PW.28 Giriyappa Ramu Kamble.
Hospital & Circumstantial
witness.
Medical Officer who treated
deceased bhimappa and
Dr. Ajit Gurudev Wandre, CMO, KLE
PW.29 issued MLC intimation and
Hospital.
death intimation memo.
-Witness who shifted
deceased Bhimappa
Dist.Hospital and then to KLE
PW.30 Maktumsab Mohammedhanif Mulla
Hopital & Circumstantial
witness.-Hostile.
Pancha witness for Prisoners'
Visiting Room panchanama
PW.31 Raju Narayan Gudake
Ex.P.5-Hostile
Inquest Pancha-Hostile.
PW.32 Sadashiv Sidappa Shivadhare.
Inquest Pancha-Hostile.
PW.33 Mallappa Pradhani Hanji.
PW.34 Nandkumar Yugandhar Kakatkar Spot Pancha-Hostile.
Pancha witness for
Panchanamas Ex.P.51 and
PW.35 Vittal Laxman Bachikar.
Ex.P.52.-Hostile
Pancha witness for Prisoners'
PW.36 Ravikumar Kallappa Kokitkar. Visiting Room Panchanama-
Hostile
24 Criminal Appeal No.100246/2018
Complainant
Sarovttam Pai T., D.Y.S.P., H&B
PW.37
Squad, CID.
-Witness who arrested A.2
and 3 & carried seized
PW.38 Narasappa S/o Veerappa, DAR P.C.
weapon to RFSL, Belagavi.
-Witness who visited KLE
Hospital and obtained
Abdulrahaman Abdulgous Warimani, endorsement as to treatment PW.39 HC, BRPS. of injured (Deceased) Bhimappa.
-Witness who prepared
Paramashivayya S/o Shivarudrayya,
PW.40 Ex.P.51 and Ex.P.52.
CHC, CID.
-Witness who registered the
Dheeraj Baburao Shinde, P.S.I., case based on the complaint
PW.41
BRPS. by PW.37.
-Witness who registered UDR
No.1/2006 and submitted
Shrishail Basayya Mathpati, P.S.I., requisition for post mortem PW.42 BRPS. examination of deceased Bhimappa.
-Witness who carried FIR to
Sunil Paramaeshwar Pattar,
PW.43 the Court.
PC,B.R.P.S.
-Witness who assisted CID
Krishnakumar S/o Timmarayyappa, IO and attested the records. PW.44 Dy.Superintendent, Central Prison, Belagavi
-Son of deceased who was present during inquest panchanama and given PW.45 Vittal Bhimappa Kamate statement before the Police.
-Relative of deceased who was present during inquest PW.46 Muttappa Peerappa Shivanagol panchanama and given statement before the Police.
25 Criminal Appeal No.100246/2018
-Pancha witness for Ex.P.50
Veeranagouda Ayyanagouda spot Panchanama so also
PW.47
Veerangoudar. circumstantial witness
-Witness who prepared
Ex.P.50 spot Panchanama
and assisted PW.37
PW.48 D.V. Nagaraj, HC, H& B Squad, CID.
complainant in the
preliminary enquiry.
-Witness who prepared
N. Venkatesh, Inspector, H & B Ex.P.5 Mahazar at Prisoners'
PW.49
Squad, CID. Visiting Room.
-Witness who went to
smithy, found Bhimappa
Vijaykumar Shashidhar
PW.50 injured and saw blood stains
Appayyanavarmath
in the spot.-Hostile.
Dr. R.K. Sharma, Addl.Professor, -Forensic Expert who gave PW.51 Department of Forensic Medicine, opinion as per Ex.P.85.
AIIMS, Delhi.
-Conducted inquest
Panchanama Ex.P.45,
Dr. Vijaykumar Neelappa Torgal, referred the dead body for
PW.52
A.C., Belagavi. PM Examination and
submitted report to NHRC.
-Taken photographs in the
Vilas Pandurang Nimbalkar, PC spot at Cental Prison,
PW.53
(Photographer) Hindalaga.
Smt. Radha S., Scientific Officer, -Witness who has given RFSL
PW.54 Report as per Ex.P.94.
RFSL, Belagavi.
Ranganath Gandhi Neelammanavar, -Witness who arrested PW.55 accused No.1.
PSI, Saundatti P.S. Chandrashekhar Basanna Hosakeri, -Witness who recorded PW.56 statement of PW.51.
Dy.S.P. CID Cell.
M. Ramakrishna, Dy.S.P. CID,
PW.57 -Investing Officer.
Bengaluru.
26 Criminal Appeal No.100246/2018
24. Before adverting to the other aspects of the case, let us analyze that whether the prosecution is able to establish the homicidal death of deceased-Bheemappa. To that effect, the prosecution relies upon the evidence of PW1-Dr.Guruputra Veerappa Dodawad, who gave first aid to the deceased-Bheemappa immediately when he was shifted to the hospital on 26.12.2005. PW3-Dr.Arun Ganeshrao Katikar conducted post-mortem on the dead body of the deceased. Initially there was Unnatural Death Report as per Ex.P76. The wound certificate is at Ex.P38 and Post-mortem report is at Ex.P85(f) and inquest panchanama is at Ex.P45. On cumulative reading of all these documents, especially post-mortem report, it shows that the deceased had sustained following injuries on his person. Ex.P85(f) reads as under:
i) Abrasion (contusion) behind the right ear of 2 cm in length D.red.
ii) Structured wound in front of the right ear measuring 4cm in length
iii) Contusion over the vertex of skull (1.5cm diameter) D.rad.
iv) Abrasions (2) over the both reticular region each measures 1.5 cm D.red.
v) Skin lesion present over the scrotum.
27 Criminal Appeal No.100246/2018
25. Thus, the contents of inquest panchanam and the post-
mortem report and the wound certificate do demonstrate that deceased had sustained fatal injuries on his person i.e. on the vital port of his body. Immediately after sustaining injuries he lost his consciousness and went in coma. He died subsequently at KLE hospital, Belagavi. The opinion of the doctor also says because of assault by using M.O.1, the injuries so noticed in wound certificate and in post-mortem were possible. This fact is not denied. The evidence of the doctor as well as other witnesses coupled with aforesaid documents do demonstrate about the homicidal death of deceased- Bheemappa. Thus, it can be stated that, deceased had suffered homicidal death. The Trial Court has also opined that, death of Bheemappa was homicidal. This fact of homicidal death is not denied by the defence.
26. Merely because it is proved by the prosecution that, the deceased-Bheemappa sustained homicidal death, it will not absolve the prosecution in proving the guilt of the accused. Heavy burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt. Therefore, to ascertain that whether the Trial Court has committed any illegality or factual error in appreciating the evidence and whether the prosecution is able to bring home the guilt 28 Criminal Appeal No.100246/2018 of the accused persons, we have to read oral and documentary evidence.
27. It is a fact admitted by both the side that on 27.12.2005 one G.R.Kamble and Dr.Katekar, the medical officers attached to the Central prison in Hindalga, Belagavi, brought the injured Bheemappa i.e. deceased, who was housed in Central prison, with a history of fall due to fits. He had sustained injuries on his head. It is the fact not disputed that the deceased when he was admitted to the District Hospital, Belagavi, he was unconscious and was not responding to the verbal or painful stimulus. There was a bleeding from his right ear and the doctors noticed blood clot in the nostrils. The doctor has noticed injuries as narrated in the evidence of PW1 stated supra. To that effect, doctor has noted the same in the original accident register and copy of which is produced before the Trial Court as per Ex.P1(a) being the relevant entry. At that time, the doctor has not given any opinion.
28. The investigation with regard to the said incident commenced when PW1 received a requisition from CID Bengaluru to give his opinion by sending the weapon in a sealed packet after its examination. The said requisition was addressed to Dr.G.K.Arun, the Senior Specialist and Dr.P.S.Patil and himself. The said requisition is at Ex.P2. As per the requisition, they were asked to clarify whether the 29 Criminal Appeal No.100246/2018 two injuries mentioned in the register and the injury No.2 recorded in post-mortem report are one and the same. It is the further case of the prosecution that, this PW1 opened the sealed packed and found a metal cutter. He has drawn diagram of the said metal cutter having a blade length measuring 5 inches and width measuring 1 inch. The length of the metal cutter was 9½ inches weighing 1.2 k.g. After examining the said metal cutter marked as M.O.1, it was clarified that injuries 1 and 2 mentioned in the accident register and injury No.2 mentioned in post-mortem report may be the same. To that effect, he gave his opinion as per Ex.P3 on 20.01.2010 itself.
29. This PW1 was directed with severe cross-examination by the defence. But whatever the suggestions directed to him have been denied by him. It is suggested that whether he has referred the inquest report at the time of giving opinion as per Ex.P3. He has deposed that he has not referred. Even to the suggestion with regard to the nature of M.O.1, the PW1 has not agreed. It is stated by him that, if M.O.1 is used as a weapon for inflicting injury, the injuries mentioned in the accident register, the edges of the said weapon would not create any impression on the body. Further he has not gone through the opinion of R.K.Sharma of Indian Institute of Medical 30 Criminal Appeal No.100246/2018 Sciences, Delhi. Thus, through out the cross-examination he has maintained that the contents of his opinion at Ex.P3 are correct.
30. PW2-Basavaraj Sadeppa Parasannavar is branded as eyewitness by the prosecution, who happens to be the in-charge of visitors' room in the year 2005. He has been turned hostile. Though the prosecution directed severe cross-examination, but he has denied all the suggestions directed to him. Therefore, his evidence would not help the case of the prosecution.
31. PW3-Arun Ganeshrao Katekar was working as Senior specialist at Belgaum District Hopsital. It is upon the requisition of Assistant Commissioner, Belagavi i.e. Sub-divisional Magistrate, he conducted post-mortem examination on the dead body of the deceased and issued post-mortem report. He conducted the post- mortem along with Dr.Prabhavati Patil arrayed as CW17 in the charge sheet. He noticed the following injuries on the deceased.
i) Abrasion (contusion) behind the right ear of 2 cm D.rad.
ii) Structured wound in front of the right ear measuring 4cm length
iii) Contusion over the vertex of shull 1.5cm diameter D.rad.
iv) Abrassions (2) over the both reticular region each measures 1.5 cm D.rad.
31 Criminal Appeal No.100246/2018
v) Skin lesion present over the scrotum.
32. The aforesaid injuries were ante mortem. He was of the opinion that after the receipt of hysto-pathological report, the doctors gave final opinion stating that "death was due to coma as a result of severe head injury sustained". The said opinion is found at Ex.P10. Further, it is evidenced that on 20.01.2010 as per the requisition of Dy.S.P. CID, Bengaluru, weapon i.e. M.O.1-Metal cutter was examined. Opinion was given after examination of the said weapon on 20.01.2010 itself as per Ex.P12. This PW3 was directed with cross-examination. Throughout the cross-examination, this PW3 has maintained that by using M.O.1-metal cutter, the injuries found in the post-mortem report may be possible. Even he has not found struggling injuries on the person of the deceased during post-mortem examination. Thus the death of deceased is not disputed and also the injuries sustained by the deceased which were ante mortem are not disputed by the defence.
33. PW4-Shivanand Pandappa Hugar, Assistant Engineer, prepared the sketch as per Ex.P14 and Ex.P16 as per the requisition of the investigating officer. To disbelieve the version with regard to the contents of Ex.P14 and Ex.P16, nothing is elicited in the cross- examination. That means, at the request of the investigating officer, 32 Criminal Appeal No.100246/2018 this PW4 has prepared the sketch as per Ex.P14 and Ex.P16 respectively.
34. PW5-Biliya S/o. Narayanagouda was an inmate of the jail. He is an important witness relied on by the prosecution. With regard to his housing at Central Jail, Belagavi, there is no denial. According to him, from 2003 to March-2011 he was housed as convict in the Central Jail, Belagavi. He was in-charge of kitchen in the Central Jail. He deposed that on 27.12.2005, when he was doing kitchen work, he had seen deceased-Bheemappa in the Central Jail itself. According to him, the deceased used to work in kitchen and grind wheat floor. Even he identified accused No.1 as inmate of the said Central Jail at the relevant time. He identified accused No.4 to 7 being the officers of the Central Jail. He has stated that deceased died in the year 2005. According to his evidence, in the Central Jail at about 6.00 a.m. in the morning, breakfast was being provided, in between 10.00 a.m. and 12.00 noon, lunch was being provided and in between 4.00 p.m. and 6.00 p.m. dinner was being provided. Deceased used to grind wheat flour from 9.00 p.m. everyday. This witness used to monitor the other inmates of the jail, who were preparing chapaties. The said preparation of chapaties used to take place between 12.00 in the midnight till 4.00 p.m. in the morning. It is his evidence that all the 33 Criminal Appeal No.100246/2018 inmates of the said jail were provided a room for rest, which is situated by the side of the hospital.
35. It is his further evidence that, on 27.12.2005 at about 11.30 a.m. in the morning, the deceased went to Andheri cell and supplied lunch to the inmates of the said cell. Thereafter, deceased took his lunch and went towards rest room situated by the side of the hospital for the purpose of taking his lunch. At about 1.30 p.m., this witness went towards said rest room and there he noticed absence of deceased. About 20 convicts were taking rest in the said rest room. He enquired about the whereabouts of the deceased. At that time, it was conveyed to him that Imam i.e. Accused No.1 has taken him. He identified accused No.1, who was present before the Court during the course of examination-in-chief. Thereafter, this witness returned to kitchen. By that time, this witness heard that accused No.1-Imam had assaulted the deceased. The said news was spread throughout the Central Jail. Immediately this witness rushed to the ironsmithy room, where he noticed the presence of Manju-CW29 and others. He also noticed the bloodstains on the clothes worn by accused No.1. Further, it is his evidence that, deceased had sustained injuries on his nose and blood was oozing from his mouth. It is further stated that the deceased was made to sit on the stairs of the said room. He enquired 34 Criminal Appeal No.100246/2018 with one Shrikant-CW26 and it was told to him that accused has brought the said deceased outside the said ironsmithy room by dragging him and made him to sit there. This witness asked accused No.1 that, why he assaulted the deceased. At that time, accused No.1 told him that he has not assaulted the deceased. When he was enquiring with accused No.1, accused No.1 was wiping the blood fallen in the said ironsmithy room. He told not to wipe off the blood, so also Manju also forced the accused No.1 not to wipe off the blood as panchanama was to be conducted. Thereafter, ambulance was brought and deceased was shifted to hospital. By that time, one Gajanan i.e. accused No.5-Chief Warden also came there. He forced all the persons gathered there to go away from that place. It is his further evidence that about 8-10 convicts went on strike against accused No.1 with request to take action against him. It was told by accused No.7 that they will take action against accused No.1. This accused No.1 was shifted to Andheri cell. Thereafter this PW5 came to know that deceased succumbed to the injuries. He identified accused No.7 as the jail superintendent at he relevant time.
36. This PW5 was subjected to intensive cross-examination by the defence. So far as he being inmate of the said Central Jail at the relevant time is not disputed throughout the cross-examination. It is 35 Criminal Appeal No.100246/2018 his evidence that the convicts in the jail were permitted to move freely in the Central Jail itself. Even the fact that, this witness entrusted with the duty of monitoring the kitchen is not disputed in the cross- examination. He deposed that he has stated before the police about he forcing accused No.1 not to wipe off the blood. According to his evidence, in the said ironsmithy, accused No.1 used to work. He has denied all the suggestions directed to him. It is brought on record that in the said Central Jail, as the convicts are more in number, they all usually were meeting near bathroom, kitchen and hospital. Even under-trial persons used to meet the convicts. It is his evidence that, in the aforesaid three places, the convicts used to move freely. Accused No.1 was the convict used to reside at first circle. He admits that deceased was his good friend in the jail. He admits that after completion of kitchen duty, the convicts who work in kitchen house, used to take rest in the rest room.
37. On reading of evidence of this PW5, it is very much clear that on the day of the incident, accused No.1 was working in the ironsmithy room wherein deceased was brought by him and thereafter this witness has noticed the injuries on the person of the deceased, who was made to sit on the stairs by accused No.1 by dragging him 36 Criminal Appeal No.100246/2018 from the ironsmithy room. Except denial in the cross-examination, nothing worth is elicited from the mouth of this witness.
38. PW6-Manjunath, whose name being stated by PW5 has deposed that he saw accused No.1 in the Central Jail but has not seen the deceased. He has been turned hostile and nothing worth has been elicited from his mouth. So, the evidence of PW6 would not help the case of the prosecution.
39. PW7-Guruputra deposed that he has not seen accused No.1 in the Central Jail. He identifies accused No.4 to 7. He was entrusted with the duty of night watchman by the jail authorities. He too has been turned hostile, but nothing worth is elicited.
40. PW8-Mahadev, son of the deceased, speaks with regard to nature and conduct of the deceased. It is his evidence that there was quarrel between accused No.3 and his father. In a complaint filed by accused No.3, deceased was convicted. Even his father had also lodged a complaint against the family of accused No.3. He deposed about his coming to know about the death of his father. Thus, from the evidence of PW8, it is very much clear that there was some enmity in between accused No.3 and the deceased.
37 Criminal Appeal No.100246/2018
41. PW9-Beerappa Kadappa Jiddimani was the inmate of the said jail but he too has been turned hostile. Therefore his evidence would not help the case of the prosecution.
42. PW10-Vinay Ganapathi Hegde is important witness as per the prosecution. At the relevant time, this PW10 was inmate of the Central jail, Belagavi. He has deposed that he has seen both accused No.1 and deceased-Bheemappa in Hindalga Jail itself. So also, he saw accused No.4 to 7 being police staff of Hindalga jail. It is his evidence that deceased on the date of the incident met him in the morning at 11.00 a.m. and requested him to give a Beedi. Deceased was with him for 15 minutes. When deceased was with him, accused No.1-Imamsab came there in search of the deceased and accused No.1 took the deceased with him. In between 3.00 p.m. and 3.30 p.m., the inmates of the Central jail were talking with each other that Bheemappa was assaulted and murdered by accused No.1-Imamsab. When PW10 rushed to see the deceased, he found the deceased injured was shifted to the hospital.
43. He states that, on the said day, about 25-30 inmates of the Central Jail forced the jail authorities to conduct investigation regarding the murder of the deceased, but the jail authorities showed their deaf ear to the request of the inmates of Central jail. Even 38 Criminal Appeal No.100246/2018 inmates went on strike. But to the said strike, the jail authorities did not bend.
44. This PW10 was cross-examined at length by the defence. He is consistent in his evidence that, on the date of the incident, the deceased came to him at about 11.00 a.m., and requested him to give Beedi and at that time, accused No.1 came there and took the deceased along with him. Though searching cross-examination is directed to him, but nothing worthy is elicited so as to disbelieve his version spoken in the examination-in-chief.
45. PW11-Shrikant Pandappa Hadapad was also the convict undergoing imprisonment in Central jail Hindalga at the relevant time. He is a barber by profession. He identified accused No.1 and 4 to 7. According to his evidence, he had seen deceased in Central jail itself. Further, he has stated that, accused and the deceased were working at ironsmithy room. He has heard that, the said deceased was murdered in the said ironsmithy room by accused No.1. According to his evidence, on the day of the incident, he noticed dragging of deceased by accused No.1 from the said ironsmithy room. By dragging so, the accused No.1 brought the deceased outside the ironsmithy room and made him to sit on stairs (steps). At that time, the blood was oozing from the head of the deceased. Even the shirt worn by accused No.1 39 Criminal Appeal No.100246/2018 was bloodstained. He did not question the accused. It is his further evidence that, in the said ironsmithy room accused No.1 has domesticated 'Doves'. As he was fond of Doves, to see the Doves, he often used to go to ironsmithy room everyday at about 1.30 p.m. According to his evidence, he has witnessed that, it was accused No.1 who brought the deceased towards the stair of the said ironsmithy room. On seeing this, he ran away towards his circle near his cell. Thereafter, the deceased was shifted to hospital with the help of accused No.4 to 7. He also corroborates the evidence of other witnesses about forcing the jail authorities to conduct investigation and take action against accused No.1. Even he speaks with regard to the conducting of strike by some of the inmates of the jail.
46. PW11 is consistent to his evidence that, it was accused No.1, who dragged the deceased outside the said ironsmithy room and made him to sit on the stairs (steps). He has been partly treated as hostile by the prosecution. According to his evidence, he had seen M.O.1-metal cutter in the said ironsmithy room. He was directed with severe cross-examination by the defence but he is consistent about he visiting the said ironsmithy room everyday at 1.30 p.m. Though he has been cross-examined at length but nothing worth is elicited. He further speaks that, as the blood was oozing from the head of the deceased, 40 Criminal Appeal No.100246/2018 he thought that, the accused might have caused injury on the head of the deceased. He has denied all other suggestions directed to him. Thus, from the evidence of PW11, it is very much clear that, he had seen accused No.1 dragging the deceased from inside the ironsmithy room and made him to sit/sleep on the stairs of the said ironsmithy room. There is no further denial of this fact by the defence.
47. PW12-Maruti Shivappa Hulikatti and PW13-Parameshappa Basappa Harijan were also inmates of the central jail. But they have been turned hostile and nothing worth is elicited by the prosecution. Therefore, their evidence would not help the case of the prosecution.
48. PW14-Mahantesh Basappa Bhangi was also convict and inmate of the Central jail. He speaks about he rushing to the said ironsmithy room at about 1.50 p.m on the date of the incident. There, he noticed the deceased fallen on the Katta outside the said ironsmithy room. When he went there, accused No.1 and other staff of the jail were present. This fact is not denied by the defence. He was partly treated as hostile witness. He is consistent in his evidence about his rushing to the said place.
49. PW15-Mahesh Krishna Mirajkar, PW16-Shankar Adiveppa Munavalli, PW17- Chandrappa Irappa Gangamath, PW18-Ashok 41 Criminal Appeal No.100246/2018 Hanamanthappa Onikeri, PW19-Gopal Yallappa Badakannavar, PW20- Tulajappa Basappa Karabani, PW21-Gajanan Anant Bovekar, PW22- Hanamanth Yallappa Yalkar have been wholly treated as hostile. However, PW23-Siddappa Rayappa Kamble has been partly turned hostile. According to his evidence, he was working as a jailer at the relevant time. He speaks about he seeing accused No.1 in central jail at the relevant time. He has stated with regard to visitors register. He identified Ex.P23-visitors' register. To that effect, he has spoken in his evidence. Insofar as other aspects are concerned, he has been turned hostile. Merely because the visitors' register is being identified by him, that does not mean that, he has seen all the visitors who visited on that particular day. To the extent of identifying Ex.P33, we can believe his evidence. He too has been cross-examined but nothing worth is elicited so as to disbelieve his version of identifying Ex.P33.
50. PW24-Mallayya Irayya Irannavar was the Assistant Superintendent of Central jail at the relevant time. According to his evidence, he used to grant permission to the visitors to visit the inmates of the jail. He speaks with regard to maintaining of register as per Ex.P33 and his signature on the same. He further speaks about the death of the deceased because of injury being sustained on 27.12.2005. He has been partly treated as hostile witness by the 42 Criminal Appeal No.100246/2018 prosecution. Throughout the cross-examination by the prosecution as well as defence, he has spoken about his role as Assistant Superintendent of jail in Central jail, Hindalga at the relevant time. He also speaks with regard to conducting of inquest panchanama by the Sub-divisional Magistrate on the dead body of the deceased. He says furnishing information of death of deceased to his relatives. Accordingly, relatives of the deceased came and took the dead body of the deceased. He also speaks that one Iranagouda, the former police inspector, was also undergoing imprisonment in the said jail at the relevant time. To the extent of his role as Assistant Superintendent of jail, his evidence has to be accepted. He identified accused No.1 as inmate and also identified the deceased as inmate of the said jail at the relevant time.
51. PW25-Vishwanath Dattatraya Warad was First Division Assistant at Central jail at Central jail at the relevant time. He speaks with regard to he writing letter as per the directions of accused No.7 and sending the same to the authorities concerned. According to his evidence, letter was sent as per the directions of accused No.7 but he has no knowledge except sending of the said letter. He has played his role as FDA at the relevant time. Much importance cannot be attached to the evidence of this PW25.
43 Criminal Appeal No.100246/2018
52. PW26-Muttappa Prabhulappa Khot and PW27-Timmanna Bhimappa Bhajantri were also the inmates of the jail. They have been turned hostile and cross-examined by the prosecution but nothing worth is elicited from their mouth and therefore, their evidence would not help the case of the prosecution.
53. PW28-Giriyappa Ramu Kamble was the warden at the relevant time in Hindalga jail, Belagavi. He noticed shifting the deceased-Bheemappa to the hospital for the purpose of treatment. To that extent, his evidence has to be accepted. There is no cross- examination directed to him.
54. PW29-Dr.Ajit Gurudev Wandre was working as CMO at KLE hospital, Belagavi. He speaks in his evidence that, on 27.12.2005 at about 6.00 p.m. he medically examined the deceased, who was brought by the Chief Superintendent of Central Prison, Belagavi with the history of fall on stairs at about 2.00 p.m. on 27.05.2005. The injured was unconscious. He noticed the injuries on the person of the deceased as under:
1) Patient unconscious since 2.30 p.m. Right ear bleeding + convulsions.
2) Right ear on examination found have active bleeding.
3) Scattered wound at the preauricular region measuring 03 cms.
44 Criminal Appeal No.100246/2018
55. According to his evidence, the deceased was admitted in hospital as an inpatient, X-ray of the chest was taken and there was no evidence of fracture of ribs etc., He speaks about the injuries noted in his report as per Ex.P38. It is his evidence that, on 26.11.2009 as per the letter issued by the CID Bengaluru, he brought summary sheet pertaining to the deceased and produced before the Court as per Ex.P39. He also produced the medical records so marked in this case as per Ex.P43. He has been cross-examined by the defence at length but he is consistent about the injuries sustained by the deceased. He is a doctor who treated the deceased at KLE Hospital, but inspite of best efforts, they could not save the life of the deceased. He has given reason that, there was haemorrhage in the brain and the cause of death is also spoken to by this witness.
56. PW30-Maktumsab Mohammedhanif Mulla was the driver at Hindalga jail. He speaks about shifting the deceased to the hospital when the deceased was injured. Accordingly he brought the said injured in the vehicle to the hospital. So far as other aspects, he has been turned hostile. However there is no denial with regard to shifting of the deceased to the hospital by this PW30 in his vehicle.
57. PW31-Raju Narayan Ghodke was pancha to Ex.P5. According to the prosecution, he has not seen accused No.1-Imamsab 45 Criminal Appeal No.100246/2018 in the Central jail. As he has been turned hostile, nothing worth is elicited from his mouth by the prosecution.
58. PW32-Sadashiv Siddappa Shivadhare and PW33 Mallappa Hanji are the resident of Bendwad village where the deceased was residing. They came to know about the death of deceased through phone and went to the mortuary of KLE Hospital and noticed the dead body of the deceased. To the extent of they visiting mortuary room of KLE Hostipal and noticing the injuries on the person of the deceased, their evidence has to be accepted.
59. PW34-Nandkumar Yugandhar Kakatkar, and PW35-Vittal Laxman Bachikar and PW36-Ravikumar Kallappa Kokitkar have wholly turned hostile to the case of the prosecution.
60. PW37-Sarvottam Pai T., was the complainant in this case. As per his evidence, as per the directions given by his higher officers by issuing a memo, after conducting investigation and ascertaining the murder of the deceased, he lodged the complaint. He speaks about the pending investigation conducted by him and also filing of the complaint. Throughout his evidence, he has maintained that during his investigation he came to know that the death of the deceased was not natural and it was a murder. To that effect, he lodged complaint 46 Criminal Appeal No.100246/2018 against unknown persons. Thereafter, during investigation accused were arrayed as culprits of committing crime against the deceased. He has been thoroughly cross-examined by the defence. But he is consistent throughout his evidence about his role of investigation officer right from the date he visiting the Central jail and filing complaint and subsequent events. To disbelieve his evidence, nothing worth is elicited from his mouth in his cross-examination. The fact of he filing complaint against unknown persons initially is not denied by the defence, so also his active role in ascertaining the murder of the deceased in central jail is also not specifically denied throughout the cross-examination. Therefore, the evidence of PW37 can be accepted to the extent that, he visited the central jail, conducted investigation, recorded the statements of the witnesses, so also he lodged complaint based upon the report so prepared by him.
61. PW38-Narasappa S/o. Veerappa was police constable, who identified the accused No.2 and 3. According to his evidence, on 31.12.2009, as per the directions of the investigation officer in this case, at about 7.00 a.m. on that day, both accused No.2 and 3 were arrested near Hukkeri bus stand and were produced before the Investigating Officer. Thereafter, on 12.01.2010, he was directed to take sealed packet to the Forensic Laboratory Belagavi. Accordingly, 47 Criminal Appeal No.100246/2018 he carried the same. Except denial in the cross-examination, nothing worth is elicited.
62. PW39-Abdulrahaman Warimani, at the relevant time, was constable. As per the medico-legal intimation sent by KLE hospital as per Ex.P42, he informed the said fact to Belagavi Rural Police Station. He also visited the hospital to know the health condition of Bheemappa and there he noticed that he was unconscious. In turn, he informed the same to his superiors. There is no cross-examination directed to him by the defence.
63. PW40-Paramashivayyan S/o. Shivarudrayya was head constable at the relevant time. He speaks that, he wrote panchanama as per Ex.P51 on 28.12.2009 in between 5.30 p.m. to 6.30 p.m. at Hindalga jail ironsmithy room in the presence of panchas. Except denial nothing is elicited from the mouth of this witness by the defence.
64. PW41-Dheeraj Baburao Shinde was PSI at the relevant time and according to him, PW37 came to the police station on 19.12.2009 at about 6.25 p.m. and lodged a typed complaint. It was registered by him in crime No.278/2009 for the offence punishable under section 302 of IPC. Thereafter, he prepared FIR as per Ex.P21 48 Criminal Appeal No.100246/2018 and sent the same to the Court. There is no effective cross- examination directed to him by the defence.
65. PW42-Srishail Bassayya Mathapathi was the Sub-Inspector in Rural Police Station, Belagavi at the relevant time and according to his evidence, he received medico-legal intimation by the KLE hospital and he sent Abdul Rahaman Warimani, Constable, to the hospital to know the health condition of the deceased. Thereafter he also received message with regard to the death of deceased and he gave a requisition to the Sub-Divisional Magistrate/Assistant commissioner to take further action in the matter. Though he has been cross-examined, he is consistent in his evidence about his examination-in-chief. He has denied all the suggestions directed to him.
66. PW43-Sunil Parameshwar Pattar was the constable at the relevant time and he carried the FIR to the jurisdictional Magistrate. Except denial in the cross-examination, nothing is elicited from the mouth of this witness.
67. PW44-Krishnakumar S/o.Thimmarayappa was the Assistant Superintendent of jail at the relevant time at Belagavi Central Jail. According to his evidence, he took the charge as a Chief Jail Superintendent of Central Jail, Hindalga, Belagavi on 10.06.2010 49 Criminal Appeal No.100246/2018 since the former Chief Superintendent of the jail i.e. accused No.7 was suspended. He speaks with regard to his visit to CID Officers as well as conducting of investigation in the said Central jail by the investigating officers where Veeranagouda has shown the bloodstains sprinkled on the walls of the said ironsmithy room and conducting of panchanama by the investigating officer. According to him, he was very much present when the investigation was being conducted by the CID police. He too has been cross-examined at length but, he is consistent about his presence when the metal cutter was seized by the investigating officer. Except denial nothing is elicited.
68. PW45-Vittal Bheemappa Kamate is the son of the deceased. He has stated that, there was a criminal case filed by accused No.3 against his father wherein his father was convicted. He also stated that, even the deceased had also filed complaint against accused No.3. He says deceased had to attend the court to give his evidence in the criminal case filed against accused No.3. With regard to pendency of the criminal case before JMFC, Raibag, against accused No.3, there is no denial of this fact by the defence.
69. PW46-Muttappa Peerappa Shivanagol, was the resident of Bendwad village. He speaks of filing a complaint by the deceased against accused No.3. He also visited KLE hospital and seen the dead 50 Criminal Appeal No.100246/2018 body of the deceased. He came to know about the injuries on the person of the deceased by accused No.1. Though he has been cross- examined, but he is consistent about he visiting KLE hospital.
70. PW47-Veeranagouda Ayyanagouda Veeranagoudar is also important witness examined by the prosecution so as to prove that,he also has seen the activities of accused No.1 with the deceased. It is his evidence that, he was convicted by Ranebennur Court and was undergoing imprisonment as per the judgment passed by the High Court. According to his evidence, on 27.12.2005 he came to know that one inmate of the jail sustained head injury and fallen near ironsmithy room. He came to know about the said fact at about 1.30 p.m. When he went there, he noticed that deceased-Bheemappa Kamate was found fallen on staircase of the said room and he had sustained head injury as well as injury on his face. He enquired with 5 -6 inmates of the jail. At that time, he was told that accused No.1-Imamsab assaulted the deceased. When he went inside the ironsmithy room, there he noticed bloodstained bed sheets, bloodstained pillow, so also the walls of the said room were bloodstained. At that time, accused No.1 was in the said room and his clothes were also bloodstained. When jail warden-Rajagolkar asked him what has happened, accused No.1 replied that because of fits the deceased fell down and sustained 51 Criminal Appeal No.100246/2018 injuries. The accused No.1 has falsely stated before the said jail warden. A question was raised by the Court that what he did at that time? But the said witness stated that he kept mum. He has stated that, the injured was shifted to the hospital.
71. According to his evidence, on 27.12.2005 at about 5.00 or 5.30 p.m. three inmates of the jail came to him and told that said accused No.1-Imamsab and Muttappa have burnt the bloodstained bed sheet and pillow. Even it was told to him that, the blood sprinkled on the walls of ironsmithy room and stairs was also washed by accused No.1. According to him, as per the directions and orders of accused No.4 to 7, they washed the bloodstained walls. Further he has stated that, in the month of May, he was released from the jail. Thereafter, in 2009 he was asked to meet the complainant-PW37 and accordingly he met. He accompanied PW37 to the Central jail and there PW37 conducted investigation and prepared report.
72. This PW47 has been thoroughly cross-examined by the defence. Throughout cross-examination, he is consistent about what he has stated in his examination in chief. That means according to him, it was accused No.1 who has committed the said offence. Though certain contradictions are brought on record in the cross-examination, but throughout the cross-examination he is consistent of his evidence.
52 Criminal Appeal No.100246/2018
73. PW48-D.V.Nagaraj was Assistant Sub-Inspector at the relevant time. He has stated that he accompanied with PW37 to the Central jail, Hindalga. It was PW47 showed the scene of offence to PW37. Except this, nothing is stated by him. No effective cross- examination is directed to him so as to disbelieve his version given in his examination in chief.
74. PW49-N.Venkatesh was the inspector at CID (H&B) at the relevant time, who accompanied the investigating officer Dy.S.P. Ramkrishna from Bengaluru to Belagavi. It was accused No.1 showed the visitors room and at that time he prepared panchanama as per Ex.P5. Except denial nothing is elicited from his mouth in the cross- examination.
75. PW50-Vijaykumar Shashidhar Appayyanavar was inmate in Central jail, but he has been turned hostile. Nothing worth is elicited from his mouth.
76. One more important witness examined by the prosecution is PW51-Dr.R.K.Sharma. According to his evidence, he was working as additional professor in the Department of Forensic Medicines at All India Institute of Medical Sciences, Delhi during 2008. He was also consultant for National Human Rights Commission, New-Delhi for the 53 Criminal Appeal No.100246/2018 last ten years prior to giving of his evidence. His evidence is that, on 25.11.2008 he was asked to give an opinion by the NHRC based upon the Post-Mortem report of the deceased.
77. On examination of the said post-mortem report, he noticed four external injuries which were noted in the Post-Mortem report. There was one internal severe head injury noted in the said post- mortem report. In the said internal head injury, there were multiple fractures at the base of skull and intracranial haemorrhage was found. The post-mortem report which he examined is identified as per Ex.P85 by him.
78. According to his evidence, based on the medical records referred by the NHRC to him, he gave his opinion on 25.11.2008 stating that "the multiple fractures and severe head injuries found on the deceased cannot be caused by fall from the steps and such head injury can be caused by fall from the height of 1 to 2 storied building". Based upon this report only, the CID conducted investigation. After completion of investigation, charge sheet was filed against the accused persons. So the evidence of PW51 plays an important role that, whether such an injury could be caused only by falling from staircase so situated outside the said ironsmithy room, which is having a small height. Is it possible for an injured to 54 Criminal Appeal No.100246/2018 sustain such an injury is a question put to this witness and he answered that such injury so noted in the post-mortem report at Ex.P85 could not be possible falling from the steps being situated in the said ironsmithy room. They can be caused if a person falls from a height of 1 to 2 storied building. That means, suspicion has been expressed by him regarding injuries being sustained by the deceased. As per the say of the jail authorities, he was informed that the deceased sustained the injuries because of fall from the stairs but this PW51 has not agreed with the said say of the jail authorities.
79. According to him, as a Forensic Expert, he has given opinion in number of cases regarding cause of death. He admits in the cross-examination that, bone becomes weak if a person is attached with other vices. Throughout his cross-examination he is consistent that the said injury so stated in the post-mortem could be possible only if a person falls from a height of 1 to 2 storied. But it is not the defence of the accused. The age of the deceased at the relevant time was 48 years. Photographs were also confronted to him. The evidence of this witness plays an important role to ascertain the cause of death. In the post-mortem the fracture of a base of a skull had been noted and it was opined that, such injury cannot be caused by a simple fall from steps as seen in the photograph Ex.P56. So the only inference 55 Criminal Appeal No.100246/2018 that can be gathered is that, the injuries could be possible only if a person falls from a height of 1 to 2 storied building. All the suggestions directed to this witness in the cross-examination were denied by him. So, the evidence of this witness plays an important role in deciding the nature of injuries.
80. Coupled with that, we have the evidence of PW52- Dr.Vijaykumar Toragal, who has conducted the inquest panchanama on the deceased as per the request of Belagavi Rural police station on 02.01.2006 and noticed external injuries found on the dead body of the deceased. So far as conducting of inquest by this PW52 is not denied, so also noticing the injuries as noted in the inquest report as per Ex.P45. Though he has been cross-examined by the defence at length, but nothing worth is elicited.
81. PW53-Vilas Pandurang Nimbalkar was the photographer, who snapped photographs at the relevant time when the investigation was in progress. He has taken photographs marked at Ex.P55 to Ex.P66. The contents of the said photographs are not denied by the defence.
82. PW54-Smt. Radha S., was the scientific officer RFSL, Belagavi at the relevant time. She has examined the samples sent to 56 Criminal Appeal No.100246/2018 her. She also examined the interior portion of the wall and floor of bloodstains and some snaps were taken from the wall and floor and subjected to presumptive test for the presence of blood. It is shown as negative.
83. When the incident has taken five years back and sample was taken after five years of the incident, one cannot expect that positive result would be possible. Though an attempt was made by the investigating officer to get report with regard to bloodstains on the walls but there is no such positive report to corroborate the evidence of investigating officer. This PW54 was cross-examined at length. She has stated that even on examination of the metal cutter, it was not having any bloodstains. As it was washed, we cannot expect such bloodstains on the same as the iron materials get rusted and in this case M.O.1 was examined after five years of the incident.
84. PW55-Ranganath Neelammanavar was working as PSI at the relevant time. He speaks that he arrested accused No.1 and produced accused No.1 along with report before the investigating officer as per Ex.P103. The arrest of accused No.1 is not denied by the defence in material particulars.
57 Criminal Appeal No.100246/2018
85. PW56-Chandrashekhar Hosakeri was Dy.S.P in CID Cell, Bangalore at relevant time. He has assisted the investigating officer and he carried Post-Mortem report to the NHRC.
86. PW57-M.Ramakrishna was the investigating officer at the relevant time. He speaks that as per the directions of the superior officer, he conducted investigation by taking charge from PW37. He visited the scene of offence i.e. Central jail and collected so many documents and filed the charge sheet. Throughout the cross- examination, he has maintained the nature of investigation done by him. Though he has been cross-examined at length by putting so many suggestions, questions etc., but he is consistent of his evidence with regard to investigation done by him.
87. As per the case of prosecution, the evidence so collected by him shows that, it was accused No.1 at the instance of accused No.2 and 3 committed the murder of deceased-Bheemappa and after commission of the murder, it was accused No.4 to 7 helped him to destroy the evidence. Therefore, he has arraigned all these accused persons alleging aforesaid offences.
88. So far as documentary evidence is concerned, the first document relied upon by the prosecution is Ex.P1. It is MLC register 58 Criminal Appeal No.100246/2018 maintained by the District Hospital, Belagavi. As per this document, on 27.12.2005 at 2.45 p.m., deceased was taken to the District Hospital, Belagavi by warden by name G.R.Ramappa and Dr. Arun Katekar with history of head injuries sustained by the deceased. It is noted by the doctors on medical examination of the deceased about the nature of injuries noticed by them. They read as under:
"Patient is sent by I/O Hindalga complaining fall due to fits sustaining injury to head. Observation: Patient is unconscious, not responding to verbal and painful stimulus. Pupils were equal and not reactive. There was bleeding from right ear. There were clots in the nostrils. On examination of the injured, I found following injuries:
i) A lacerated wound over tragus of right pinna ½ inch long bleeding present.
ii) A lacerated wound ½ inch anterior to injury No.1, and half inch in length with bleeding present."
89. On commencement of the investigation by CID, the CID Bengaluru addressed a letter to Dr.G.K.Arun, Dr.P.S.Patil and Dr.G.V.Dodawad as per Ex.P2 calling upon these doctors to give their opinion with regard to the weapon being seized to kill the deceased, which is alleged to have been used by accused No.1. As per the request made by the investigating officer, M.Ramakrishna in this Ex.P2, PW1 examined the said metal cutter sent in a sealed cover and 59 Criminal Appeal No.100246/2018 prepared a report as per Ex.P3. This contains diagram of the said weapon. It is opined by the doctor PW1 that, these injuries No.1 and 2 stated in the accident register tallies with injury No.2 as reported in the post-mortem report. PW1 has testified the contents of this Ex.P3. To that effect, he sent a report along with Ex.P4. While marking these documents, no little finger was raised by the defence. Except denial directed to PW1, no other evidence is brought on record in the cross- examination.
90. Ex.P5 is the panchanama. To substantiate the contents of said panchanama, the witnesses are examined and even the in charge chief superintendent of Central prison was a signatory to this Ex.P5, who was examined in this case. Thus, the contents of this Ex.P5 are not denied with regard to the typographical features of the scene of occurrence. Certain portion of the statement of PW2 has been marked as Ex.P6, which will not go to the root of the case. Ex.P8 is the request for conducting the post-mortem addressed by the sub-divisional magistrate Belagavi along with that a report is also annexed by the sub-divisional Magistrate. As per request of the Assistant Commissioner, post-mortem was conducted on the dead body of the deceased. As narrated in the foregoing paragraphs, the doctor at the time of conducting post-mortem has noticed the injuries on the dead 60 Criminal Appeal No.100246/2018 body of the deceased which were antemortem. Opinion was withheld for want of report from hysto-pathelogical Department. Based upon the report being received from the competent experts, Ex.P10 came to be issued by the doctors stating that deceased died because of coma as a result of severe injury sustained. Ex.P11 is the report from the department of Pathology of J.N.Medical college wherein the doctor has issued report on examination of the report being submitted by the doctor. Ex.P12 is on par with Ex.P2. Likewise we find correspondences with the PWD authorities to prepare sketch of the scene of offence as per correspondence marked at Ex.P3 addressed to the Assistant Executive Engineer PWD, Bengaluru by the CID Police Bengaluru. Based upon that, PWD Engineer has prepared sketch as per Ex.P14. The contents and particulars so mentioned by the engineer in this Ex.P14 are not denied by the defence.
91. Ex.P18 to 32, 34 to 37 happens to be the statements of various witnesses so marked in this case. Ex.P33 is an important document as per the case of the prosecution. It is a register being maintained in the Central Jail with regard to mentioning of the particulars of visitors who have met the inmates of the said jail. On perusal of these documents, Accused No.1 with convict No.17872 had met accused No.2 on 05.12.2005. That means accused No.2 met 61 Criminal Appeal No.100246/2018 accused No.1 in the jail stating that, he is a friend of accused No.1. Likewise, he also met accused No.3 on the said day itself. The contents of this register are not seriously disputed by the defence.
92. It is the case of the prosecution that, on 05.12.2005 when accused No.2 and 3 met accused No.1, they gave supari to accused No.1 to kill the deceased as he is going to give evidence against accused No.3. But to substantiate the said fact, except the Ex.P33 for having met each other and bald allegations against accused No.2 and 3, there is no other evidence placed before the Court by the prosecution. Ex.P38 is the wound certificate of the deceased issued by KLE hospital on medically examining the deceased.
93. Likewise, we have medical records being produced as per Ex.P39 by the prosecution. What was the treatment being administered to the deceased are narrated in this medical record. Even X-rays were taken and based upon that, treatment was administered on the deceased. Ex.P44 is the statement of Maktumsab wherein he has denied the contents of his own statement. Ex.P45 is the inquest panchanama. It is accompanied with the photographs marked in this case as per Ex.P46 to 49. Thus in the hospital, inquest panchanama was conducted and thereafter post-mortem was conducted by the doctor. These document are not disputed by the defence. Ex.P50 is 62 Criminal Appeal No.100246/2018 another panchanama prepared by investigating officer with regard to scene of offence where the blood was sprinkled on the walls of said ironsmithy room. It is upon confession statement of accused No.1, the Investigating officer recovered metal cutter under Panchanama Ex.P51. Though certain witnesses have been turned hostile but the investigating officer is consistent about the seizure of the said metal cutter seized under Ex.P51-panchanama.
94. Ex.P52 is another panchanama drawn at the place where bed sheet, pillow and shirt worn by the accused No.1 at the time of incident were burnt. This Panchanama was conducted at the place shown by accused No.1 as per his confession statement. Ex.P53 is the statement of one Vittal, who has been turned hostile. Certain photographs of the said scene of offence where offence of murder has taken place are produced as per Ex.P55 to 66. These photographs are snapped by the photographer as per the direction of the investigating officer to show the location of the ironsmithy room as well as sprinkling of blood on walls of the said room. These particles being recovered at the said place were subjected to chemical analysis by Forensic Laboratory, but it was opined that, the said particles are not sufficient to give an opinion. But the blood marks or sings are seen on the walls of the said room. Ex.P67 is the complaint lodged by PW37 63 Criminal Appeal No.100246/2018 after collecting incriminating materials with regard to murder of the deceased. Likewise, we have so many documents produced by the prosecution to show the involvement of the accused as per the case of the prosecution in the commission of crime. In order to show that, these accused No.4 to 7 were present on the date of the incident, attendance register is also produced as per Ex.P81, which is not disputed by the accused persons.
95. As per Ex.P51, whatever examination being done with regard to seizure of metal cutter, it was opined that, it was not bloodstained. When the incident has taken place five years back prior to filing of complaint, it is quite natural to expect that such seized article would not have contained bloodstains. Even we cannot expect that still the said material object has contained bloodstains.
96. To prove the motive, prosecution relies upon the confession statement of the accused No.1. According to his directions and the place shown by him, M.O.1 was seized. He has shown the place where he has burnt the clothes i.e. bed sheet, pillow and his own shirt, which were bloodstained. To that effect, Investigating officers have stated in their evidence.
64 Criminal Appeal No.100246/2018
97. To show that this accused No.1 was convicted by the Principal District and Sessions Judge, Belagavi, the judgment in S.C.No.230/2013 dated 26.09.2002 is also produced. The fact of accused No.1 being convicted and being inmate in the said jail in the aforesaid case, is not disputed by the defence.
98. To show that there was some enmity or grudge in between accused No.3 and the deceased, a copy of the FIR is produced by the prosecution as per Ex.P.109 wherein crime was registered against accused No.3 on the basis of complaint filed by the deceased alleging the offences punishable under sections 143, 147, 148, 504, 506, 323, 326 read with 149 of IPC. In the said criminal case, there were five accused persons. Amongst them, accused No.3 was also accused in the said criminal case. A copy of the complaint is also produced as per Ex.P110 stating that, incident in between deceased and accused No.3 took place on 06.01.2005. The said complaint was lodged before the PSI Ghataprabha and after investigation, charge sheet was filed against the present accused No.3 and other accused mentioned in the charge sheet. A copy of the same is produced at Ex.P111. Ex.P112 is the first information report registered by the Ghataprabha Police. Certified copy of the order sheet in the said criminal case registered as CC No.297/2005 on the file of JMFC Raibag shows that on the next 65 Criminal Appeal No.100246/2018 date of alleged incident, the learned JMFC has fixed the date for evidence of deceased and issued body warrant against deceased to produce him before the Court for the purpose of giving evidence. The said order was passed by the JMFC on 02.12.2005. Even body warrant was re-issued against the deceased by the said Court. On 13.01.2006 it was reported to the Court that CW1-Bheemappa is reported to be dead. This CW1 so stated in C.C.No.292/2005 is none else than the deceased.
99. It is argued by the counsel for the State that, there was enmity in between deceased and accused No.3. Therefore, on an apprehension that, in the said criminal case, if deceased, being complainant, deposes before the Court against accused No.3, there is likelihood of convicting accused No.3 and that he has to undergo sentence. In such an event, there will not be any male person to take care of his family. Even a copy of the charge being framed by the JMFC Raibag is produced before this Court as per Ex.P114. Other documents are also produced by the prosecution to buttress the said factum of enmity.
100. Ex.P117 is intimation from the National Human Rights Commission addressed to the Chief Secretary, Government of Karnataka, wherein based on the report of senior consultant doctor, it 66 Criminal Appeal No.100246/2018 was directed to the Government of Karnataka to conduct investigation and take necessary action and on the basis of the same, investigation was commenced. Thereafter, Government of Karnataka took action by passing proceedings dated 01.01.2006 with regard to the death of deceased-Bheemappa. As per expert panel report sent by NHRC, the injuries sustained by the deceased are not possible by fall on stairs and such injury can be caused on account of fall from at least 1 or 2 storied building and the death appears to be suspicious.
101. On reading the entire documentary evidence produced by the prosecution, it do suggest that, there was some enmity in between accused No.3 and the deceased. According to the case of the prosecution accused No.3 took the help of accused No.2 and came to the Central jail Hindalga, contacted accused No.1 and there was request by accused No.2 and 3 to accused No.1 to commit murder of the deceased.
102. In this case, as stated supra, most of the evidence is against accused No.1 and so far as evidence against other accused persons, there is no proper linking evidence.
103. On reading oral and documentary evidence adduced by the prosecution, the present case is purely based on circumstantial 67 Criminal Appeal No.100246/2018 evidence. Based on the said evidence, so discussed hereinbefore, the circumstances connecting accused No.1 may be summarised as under:
i) The deceased was an inmate of Central Jail, Hindalga as a convict in Sessions case at the relevant time.
ii) Accused No.1 was also inmate of the said jail as convict in criminal case and was undergoing sentence.
iii) Accused No.2 was also convict undergone sentence in the same jail and after completion of his period of sentence he was released.
iv) Accused No.2 and 3 were known to each other and their name is mentioned in the visitors register.
v) Accused No.1 was working as in charge of ironsmithy room where the iron articles were being stored.
vi) On the ill-fate day, accused No.1 brought the deceased by pampering him to the said ironsmithy room, made him to sit on bed sheet and kept a pillow.
vii) On that day, accused No.1 was found dragging the injured from inside of ironsmithy room and made him to sit on stairs.
viii) PW5-Biliya Narayan Gouda, PW10-Vinay Ganapathi Hegade, PW11-Shrikant Pandappa Hadapad, PW23-
68 Criminal Appeal No.100246/2018 Siddappa Rayappa Kamble have noticed the injured and also saw blood oozing from his head and nose.
ix) The inmates of the central jail including PW47- Veeranagouda noticed shifting of the injured to the hospital in the vehicle.
x) Injured was unconscious and was unable to speak.
xi) The deceased died as a result of extensive injury on his head while he was in central jail.
xii) The jail officials helped to shift the injured to the hospital.
xiii) With a view to screen offence, accused No.1 created a false story that deceased fell on stair steps and sustained head injury.
xiv) Accused No.1 dragged the injured and made him to sit on the stair steps.
xv) The bed sheet was used by accused No.1 to create impression that he tried to treat the injured.
xvi) The said pillow and bed sheets were bloodstained so also the shirt worn by accused No.1 was bloodstained.
69 Criminal Appeal No.100246/2018 xvii) Accused No.1 wiped off the bloodstains sprinkled on the wall and cleaned the floor of ironsmithy room where the blood was fallen.
xviii) At the instance of accused No.1, the said M.O.1-metal cutter was recovered by the investigating officer. xix) At the instance of the accused, panchanama was conducted where the bloodstained clothes like bed sheet, pillow and shirt worn by the accused No.1 were burnt.
xx) Last but not least the confession statement given by accused No.1 leading to discovery.
104. In a case of present nature, as the case is based upon circumstantial evidence, the Court must be very diligent in dealing with such cases. The reason is that, rarely in such cases when there is a death in Central jail, direct ocular evidence of the complexity of the inmate of the jail or the jail authorities would be available. Generally speaking, it would be the inmates of the jail as well as the officials of the jail authority alone who can only explain the circumstances in which a person in their custody had died. As the inmates of the jail because of their housing in jail and also the jail authorities, are bound as they are by the ties of brotherhood, it is not unknown that the jail 70 Criminal Appeal No.100246/2018 authorities preferred to remain silent, so also inmates of the jail. As in this case most of the inmates of the jail have been turned hostile and more often than not even pervert the truth to save their colleagues. The present case is an apt illustration as to how the inmates of the jail as well as jail officials feigned ignorance about the whole matter.
105. In a case of this nature, the exaggerated adherence and insistence upon the establishment of a proof beyond every reasonable doubt by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of the case, as in the present case, often results in miscarriage of justice and makes justice delivery system suspect. In the ultimate analysis, the society suffers and the criminal gets encouraged.
106. When a death has taken place in a Central Jail, which is off late or on the increase now, receive encouragement by this type of an unrealistic approach of the Courts because it re-enforces the belief in the mind of the jail authorities or the police, as the case may be, in case of custodial death that no harm would come to them if an odd prisoner dies in jail or lockup because there would hardly be any evidence available to the prosecution to directly implicate them. Therefore, it is settled proposition of law laid down by the Supreme Court in various judgments that, the Courts must not lose sight of the 71 Criminal Appeal No.100246/2018 fact that, death in jail or in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Such a death of inmate of central jail flouts the basic rights of the citizen recognized by the Indian Constitution and is an affront to human dignity.
107. Though under the provisions of the Indian Penal Code certain offences are made as punishable those persons who cause hurt for the purpose of extorting the confession etc., in case of police custody by making the offence punishable with sentence up to 10 years of imprisonment but when such an offence takes place within the premises of central jail or often left without any ocular or other direct evidence to prove who the offenders are. Therefore, the Law Commission in its 113th report recommended amendment of Indian Evidence Act so as to provide certain solace to the victims. If there is evidence that injury was caused during the custody when the person was in the Central Jail, the Court may presume that, the injury must have been caused by any of the inmate of the jail. The onus to prove the contrary must be discharged by the jail authorities concerned. Keeping in view the dehumanizing aspect of the crime, it is the flagrant violation of the fundamental rights of the victims of the crime and growing rise in the crimes of this type where only a few comes to 72 Criminal Appeal No.100246/2018 light and others do not, therefore, the government and the legislature must give serious thought to the recommendations of the Law Commission and bring about proper changes in the law not only to curb the custodial crimes in police stations but also in the jails. Such custodial crimes of death in jail does not go unpunished. Even the Courts are also required to have a change in their outlook and attitude, particularly, in the cases involving such type of crimes as of present case and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach while dealing with the cases of such a crime, so that as far as possible, within their powers, the guilty should not escape, so that the victim of the crime has a satisfaction that ultimately the majesty of law has prevailed.
108. If these principles are applied to the present facts of the case with regard to crime being committed in a jail, the circumstances so stated above do establish that, it was accused No.1, who prompted deceased to come along with him on that ill-fate day. He took the deceased to the ironsmithy room and had a talk with him so as to make it believe that he has become a good friend of the deceased and when he was so talking, used the metal cutter to commit assault on the deceased. Because of the severe injury being sustained by the deceased, he fell unconscious. Thereafter, accused No.1 dragged him 73 Criminal Appeal No.100246/2018 upto the steps and made him to sit there, did hue and cry pretending that deceased due to fits had fallen down from the stairs and sustained injuries. The jail authorities believed it and shifted the injured to the hospital. Even the jail authorities, as per the case of the prosecution, have kept the accused No.1 in 'Andheri cell' from the date of the incident. Even the witnesses, stated supra, i.e. PW5, PW10, PW11, PW23 have noticed the activities of accused No.1 in dragging the deceased from inside the ironsmithy room and making him to sit on stairs and even he fell down unconscious etc., Though some of the witnesses questioned accused No.1, he did not answer, he went on cleaning the ironsmithy room, he washed the room as well as the walls where the blood was sprinkled. This conduct of accused No.1 do establish his involvement in the commission of crime.
109. Section 106 of the Indian Evidence Act, 1872 if applied, to the facts of this case, it specifically says that, it is the accused No.1 who knew the cause of death of the deceased, has to furnish all the requisite information. If he fails to discharge the burden, then adverse inference has to be drawn against him. Here in this case the burden of proof which was cast on the prosecution is discharged. The circumstances narrated herein above point finger at the accused that, he is the real culprit. Therefore, if all the factual evidence is read 74 Criminal Appeal No.100246/2018 together, it can be stated that, it is the accused No.1 alone was responsible for the murder of the deceased.
110. Even the provisions of Section 8 of the Indian Evidence Act, can be made applicable to the present case on hand. It is the accused No.1, who has shown the place to the investigation officer and panchas, where he burnt the bloodstained bed sheet, bloodstained pillow as well as bloodstained shirt worn by him at the relevant time. At his instance No.1 only M.O.1-metal cutter was seized under Ex.P51-seizure panchanama. The police conducted the panchanama at the place shown by the accused No.1. Further, the witnesses stated supra, have specifically stated about the conduct of the accused No.1 immediately after the incident. This evidence spoken to by the witnesses has not been properly denied by the accused No.1. Such conduct of the accused No.1 would be admissible as conduct irrespective whether the statement made by the accused falls within the purview of Section 27 or not of the Evidence Act.
111. In the judgment of Hon'ble Supreme Court of India in between A. N. Venkatesh Vs. State of karnataka[1] decided on 08.08.2005 it is held in para 9 of the judgment as under:
75 Criminal Appeal No.100246/2018
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstances, simplicitor, that the accused pointed out to the police officer, napped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand Vs. State (AIR 1979 SC 400). Even if we hold that the disclosure statement made by the accused appellants (Ex.P.14 and P.15) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs.1, 2, 7 and PW.4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act."
112. If the aforesaid principle is applied to the facts on hand, as per confession statement of accused No.1, he led the Investigation officer and panchas where he burnt the bloodstained shirt worn by him, bloodstained bed sheet and bloodstained pillow at the relevant time. Witnesses so examined have stated about his conduct immediately after the incident and his participation of cleaning blood 76 Criminal Appeal No.100246/2018 fell in the ironsmithy room, walls and stairs (steps). Thus, this conduct of accuse No.1 definitely points finger at him as the person who has caused the murder of Bheemappa.
113. As stated supra, hardly we find direct evidence in such cases and the Courts are not expected to get the exaggerated adherence and insistences upon the establishment of proof beyond all reasonable doubt by the prosecution. The Court is not supposed to ignore the ground realities. The fact situations and the peculiar circumstances of the given case on hand, often if such steps are not taken by the Court, it would result in miscarriage of justice and make justice delivery system suspect. Therefore, the ultimate analysis of evidence do suggest that, it was accused No.1, who was responsible to commit the offence of a murder of deceased-Bheemappa in the manner proved by the prosecution through the evidence of the aforesaid witnesses. Though most of the witnesses have been turned hostile but the circumstances brought on record by the prosecution herein stated above, do establish about the involvement of the accused No.1 in the commission of the crime. As stated supra, hardly in such cases evidence available to the prosecution do directly implicate the accused No.1.
77 Criminal Appeal No.100246/2018
114. The Trial Court has not taken into consideration about the evidence spoken to by PW5, PW10, PW11, PW23 and PW47 and other material records. When these witnesses have stated that the dead body of deceased-Bheemappa Kamate was taken out from the ironsmithy room, deceased was seriously injured and when accused No.1 was questioned as to what he was doing, there was no answer from. Therefore, necessary inference which follows is that, the deceased-Bheemappa Kamate died when he was with accused No.1 in ironsmithy room in Hindalga Jail. The deceased-Bheemappa remained with accused No.1 in the said ironsmithy room from 11.00 a.m. onwards. Thereafter, he was dragged from the ironsmithy room upto stairs.
115. The case set up by the defence on the basis of specific denial is that the deceased died because of fall from the stairs (steps). But admittedly, the company of accused No.1 with deceased is not denied by any of the witnesses in this case at the time when deceased suffered injuries. The order sheet of the JMFC Court, Raibag do establish about the enmity.
116. As discussed hereinabove, the evidence of PW5, PW10, PW11 and PW47 plays an important role in this case so as to connect 78 Criminal Appeal No.100246/2018 accused No.1 in the commission of crime. Therefore, it is necessary to cull out the important evidence spoken to by them.
117. PW5-Biliya Narayanagouda was the inmate of the central jail as discussed above at the relevant time. As per his evidence, at the relevant time, on 27.12.2005, he was working in kitchen of the said Central Jail. At that time, deceased-Bheemappa was in charge of grinding wheat flour for the purpose of preparing chapaties. He has seen accused No.1, so also other accused persons. He specifically states in his evidence that, on 27.12.2005 at about 11.30 a.m. deceased carried the lunch to the inmates of Andheri cell. Thereafter, he went to the rest room for taking rest at 1.30 p.m. This PW5 went to the rest room and noticed the absence of deceased there. At about 20 inmates were found sleeping there. It was told to him that, the deceased-Bheemappa was taken away by accused No.1 when he was taking rest. Thereafter, PW5 came back towards kitchen. There he was informed that, accused No.1 assaulted the deceased. He speaks with regard to other events that have taken place after the assault on the person of the deceased. The evidence so spoken to by PW5 stated supra has not been properly denied by the defence. Intensive cross- examined is directed to him but he has withstood to the test of cross- examination.
79 Criminal Appeal No.100246/2018
118. PW10-Vinay Ganapathi Hegade is also a vital witness in this case, who has spoken before the Court on oath about he noticing assault on the person of deceased-Bheemappa. He has specifically stated that, the said Bheemappa on the date of the incident came to him at about 11.00 a.m. demanding beedi from him. The deceased was with him for about 15 minutes. He had a talk with him. There accused No.1-Imamsab came in search of deceased-Bheemappa. Accused No.1 took Bheemappa with him. Thereafter, he came to know that it was accused No.1 alone who assaulted deceased-Bheemappa. The inmates of the jail were talking that the deceased was killed by accused No.1. Though he too has been cross-examined at length, he also withstood the test of cross-examination.
119. PW11-Shrikant Pandappa Hadapad corroborates the evidence of PW5 and PW10 in material particulars. As per his evidence, he was in visiting terms to the said ironsmithy room where accused No.1 was working. Everyday this witness used to visit the said room. He speaks that on the date of the incident, when he went to the said ironsmithy room, he noticed that accused No.1 brought the deceased- Bheemappa towards stair steps and made him to sit t here and this witness saw him. At that time, the blood was oozing from the head injury sustained by the deceased. Even the shirt worn by accused No.1 80 Criminal Appeal No.100246/2018 was also bloodstained. He did not question accused No.1. That means, a connecting link has been stated by him that it was accused No.1 alone who was very much present along with the deceased when the alleged incident has taken place.
120. The evidence of PW47-eyewitness also plays an important role in connecting the accused No.1 in the commission of the crime. PW47 has given connecting evidence to show that it was accused No.1 who was last seen with the deceased, when the deceased was found injured. There was galata by the inmates of the jail but the jail authorities did not heed to the request of the inmates and showed their deaf ears. Thus, on overall reading of the evidence of all the aforesaid witnesses, it do demonstrate that, it was accused No.1 alone, who has committed the murder of the deceased.
121. Thus, it is proved by the prosecution that deceased- Bheemappa died when he was inmate of Hindalga Central Jail, Belagavi as a result of extensive injuries being sustained by him because of assault on him. This fact is supported by the evidence of PW57-Dr.R.K.Sharma that, on examination of the post-mortem report he has given report stating that the injuries so sustained by the deceased as per post-mortem report would not be possible if a person falls from stairs and the said injury is only possible if a person falls 81 Criminal Appeal No.100246/2018 from the height of 1 to 2 storied building. If that so, it is for the accused No.1 to explain that how the deceased sustained such a severe injuries.
122. Section 106 of the Indian Evidence Act comes into operation. As per this section, when facts pre-eminently or exceptionally within the knowledge of the accused, it is for him to explain. Throughout the evidence and at the time of recording Section 313 Cr.P.C. statement, this accused No.1 has not explained anything about how and what was the exact reason for the said injuries. This section is designed to meet certain exceptions in the case in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience". This principle has been laid down by the Hon'ble Apex Court in the judgment in between Balvir Singh v. State of Uttarakhand in Criminal appeal No. 2430/2014 decided on 06.10.2023. It is laid down by the Hon'ble Apex Court.
"Evidence- It cannot be said that Section 106 Evidence Act has no application to criminal cases - Ordinary rule which applies to criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106.
82 Criminal Appeal No.100246/2018 A. Evidence Act, 1872, Section 106 - Scope - Facts pre- eminently or exceptionally within the knowledge of the accused - Onus to prove - Section 106 of the Evidence Act is an exception to Section 101 - Section is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience".
[Para 34] B. Evidence Act, 1872, Section 106 - Scope - Court should apply Section 106 in criminal cases with care and caution - It cannot be said that it has no application to criminal cases - Ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106.
(Para 41)"
123. In this case also the deceased was found injured in ironsmithy room where accused was in-charge. Thus, except accused No.1, there was no any other inmate of the jail used to work in the said ironsmithy room.
124. It is also laid down by the Hon'ble Apex Court in (2009) 9 SCC 626 in between State of Uttar Pradesh v. Santoshkumar and others with regard to appreciation of evidence in criminal case which reads as under:
83 Criminal Appeal No.100246/2018 "B.Criminal Trial - Appreciation of evidence - Minor contradictions or inconsistencies immaterial - Duty of court while recording statements - Held, in any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are bound to occur - But it is the duty of court to ensure that truth prevails - If on material particulars, statements of prosecution witnesses are consistent, then they cannot be discarded only because of minor inconsistencies. (Para 24)"
125. The Hon'ble Apex Court has laid down that where there are minor contradictions or inconsistencies, they are immaterial. It is the duty of the Court while recording statements that, in any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are bound to occur. But it is the duty of the Court to ensure that truth prevails. If on material particulars, statements of prosecution witnesses are consistent, then they cannot bee discarded only because of minor inconsistencies. Here also, the said incident has taken place in the year 2005. The investigation was commenced in the year 2010 i.e. after lapse of five years. The evidence of the witnesses conducted after substantial lapse of time. Therefore, though there are some minor contradictions, omissions and discrepancies brought on record in the cross-examination of PW5, PW10, PW11, PW23 and PW47 they will not go to the root of the case of the prosecution.
84 Criminal Appeal No.100246/2018
126. As regards remaining accused No.2 to 7, they are respondents in this case. On scrupulous reading of entire evidence, no evidence whatsoever has been adduced by the prosecution in cogent manner to show that they were the persons responsible for causing the injuries to the deceased.
127. So far as accused No.2 and 3 is concerned, it is alleged that they together came to Central Jail and gave supari to accused No.1 to kill deceased-Bheemappa. Except the visitors register, Ex.P33, and some evidence of the investigating officer, there is no evidence placed on record. It is stated in the visitors' register that accused No.2 being the brother of accused No.1 came to the Central jail to meet. He noticed accused No.3 also. Except this evidence, there is no other evidence. Even the facts as to what time the deceased was permitted to enter the ironsmithy room is not stated by any of the witnesses against accused No.4 to 7. Consequently, in the absence of evidence against accused No.2 and 4 to 7, as their presence or participation at the time injuries caused to the deceased, it is not possible to find the said accused guilty of committing offence. The conspiracy is not proved in accordance with law. Involvement of accused No.4 to 7 is also not proved in accordance with law. Therefore, against these accused No.2 to 7, there is no definite evidence to show that these 85 Criminal Appeal No.100246/2018 accused are really involved in the commission of the crime. The only evidence against accused No.2 and 3 is that they visited the Central jail on previous day of the incident. Thereafter, accused No.4 to 7 have suppressed or destroyed the evidence of commission of crime by accused No.1. Except this, there is no further evidence placed on record. That means there is lack of evidence against these accused persons.
128. On scrupulous reading of the evidence placed on record discussed supra, there are incriminating material appearing in the prosecution evidence against accused No.1-respondent No.1, who caused injuries on the person of the deceased. We are in full agreement with the Trial Court since incriminating evidence appearing in the prosecution evidence against accused No.2 to 7, who were charged for the offence under Section 302 and 201 of IPC only was not to put them in their statements recorded under Section 313 of Cr.P.C., and no opportunity was afforded to them to explain those circumstances etc., no conviction therefore, could be recorded against them as there is no evidence against them. Their acquittal in the peculiar facts of the case therefore, does not call for any interference by us and we uphold their acquittal and dismiss the appeal against them.
86 Criminal Appeal No.100246/2018
129. However, we are not impressed with the approach of the Trial Court in dealing with the case against accused No.1. It was accused No.1, who was the main accused who committed the murder of deceased-Bheemappa.
130. Having recorded a clear and conclusive finding and on proper appreciation of evidence, the deceased-Bheemappa went along with accused No.1 to the ironsmithy room in Central Jail and thereafter his body was dragged by accused No.1 when he was severely injured and because of extensive injuries sustained by him he was removed from Central jail and shifted to the hospital and thereafter he died. Thus, even the jail authorities also have not taken proper steps. The presence of these jail authorities is not properly established, but however the accused No.1 is the main cause for the murder of the deceased. The material on record establishes not only the presence of accused No.1 with deceased at the said ironsmithy room on the ill-fate day and they had a talk with each other for considerable time. At that time, there was assault by accused No.1 on the deceased. Thereafter, to screen the said offence the accused No.1 has washed the floor where the blood was fallen and also the wall where the blood was sprinkled. Even his clothes as well as bed sheet and pillow were bloodstained and subsequently he burnt them. Thus, the inmates of 87 Criminal Appeal No.100246/2018 the jail stated supra, have stated about their noticing of deceased being severely injured, who were subjected to searching and lengthy cross-examination and they remained un-shattered and their evidence is established the guilt of the accused No.1 beyond reasonable doubt that the dead body of the injured was dragged out from the ironsmithy room and thereafter shifted to the hospital. The evidence of these witnesses particularly, PW5, PW10, PW11, PW23 has impressed us. Their evidence is consistent, cogent and these witnesses had no reason to falsely depose accused No.1. These witnesses truthfully disclosed what they saw.
131. Indeed, there is no evidence to show that these accused No.2 and 3 on the one hand have participated in the conspiracy to commit the murder of the deceased by accused No.1 and in that regard they visited the Central jail etc., Further, there was no definite evidence to show the complexity of accused No.4 to 7 in the commission of crime under Section 201 of IPC, but whereas the presence of accused No.1 and his participation in the commission of crime is truly proved in accordance with law, but whereas participation of accused No.2 to 7 is doubtful which is not borne out from the evidence on record and appear to be unrealistic simplification of tell tail circumstances established by the prosecution. That means there 88 Criminal Appeal No.100246/2018 is no direct evidence about the complexity of accused No.2 to 7 in the commission of crime. Generally, as stated supra, it is the inmates of the jail who have explained the circumstances.
132. From our independent analysis of material on record, we are satisfied that accused No.1 was present in the said ironsmithy room on the date of the incident and he was directly involved in the crime of committing murder of the deceased and because of severe and extensive injury head injury, Bheemappa died in KLE Hospital. Thus, from the evidence available on record, both documentary and oral, it is proved that the prosecution has proved that accused No.1 is the real culprit who committed the murder of deceased-Bheemappa, whereas there is doubt with regard to participation of accused No.2 to 7 in the commission of crime though there are lapses on the part of accused No.4 to 7. Therefore, the benefit of doubt has to be extended to accused No.2 to 7. Since accused No.1 is responsible for commission of crime and prosecution is able to prove the guilt of accused No.1 beyond all reasonable doubt, he is liable for conviction. Therefore, accused No.1 is held guilty of committing offence under Section 302 and 201 of IPC. Accordingly, we answer the above point for consideration partly in affirmative. Resultantly, we pass the following:
89 Criminal Appeal No.100246/2018 ORDER
i) Appeal is allowed in part.
ii) Accused No.1 is held guilty of committing offence under section 302 and 201 of IPC.
iii) Insofar the judgment of acquittal passed by the Trial Court in favour of Accused No.2 and 4 to 7 is concerned, the same is confirmed.
iv) As accused No.1 is held guilty of committing the offence under Section 302 and 201 of IPC, he has to be heard on the question of sentence. Therefore, list this matter for hearing the accused No.1 on the question of sentence on 27.11.2023.
v) Counsel for appellant is directed to keep present the accused No.1 before the Court.
Sd/-
JUDGE Sd/-
JUDGE YAN 90 Criminal Appeal No.100246/2018 HPSJ & RDHJ:
08.12.2023 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON SENTENCE Accused No.1, being Under Trial Prisoner in Crime No.278/2009 of Belagavi Rural Police Station, is produced under Body Warrant from the Central Prison, Belagavi.
2. This case is listed today for the purpose of hearing the accused No.1 on the question of sentence.
3. Enquiry is made with accused No.1. On enquiry, he submits that, his wife died two months back and he lost his children also during COVID period. He submits that, he has got age old mother who is suffering from age old ailments. He submits that, he is having landed property and he is wrestler by profession.
4. Learned counsel for accused No.1 submits that, in view of present position of accused No.1, who is aged about 68 years, some leniency may be shown in imposing sentence. He submits that, as accused No.1 has undergone custody period for more than seven years during the trial in this case and also now he is facing trial in the aforesaid crime, some leniency may be shown.
91 Criminal Appeal No.100246/2018
5. As against this submission, learned Additional SPP submits that, the accused No.1 has committed heinous offence of murder, which is duly proved in accordance with law. He submits that, accused No.1 being inmate of the jail, at the instance of accused No.2 and 3, as the deceased had to give evidence before the JMFC, Raibag, to avoid conviction in the said case, accused No.2 and 3 prompted this accused No.1 to commit the murder of deceased-Bheemappa. He submits that, it is a gruesome murder in the jail. Though murder has taken place in the year 2005, the COD filed charge sheet thereafter and the trial was conducted. There was a suppression of material facts by the jail authorities also. He submits that, as it is a heinous offence, maximum punishment may be imposed on accused No.1.
6. On perusal of facts of this case and also on appreciation of evidence, this Court has already come to the conclusion that, it was accused No.1, who committed the heinous offence of murder of deceased Bheemappa in jail by taking him to ironsmithy room and made him to sit and by using metal cutter, he assaulted the deceased on his head. Thereafter, the accused No.1 pretended to be an innocent by stating that the deceased fell on the stairs and sustained injuries. In view of the report from the Doctor of Delhi nominated by National Human Rights Commission, the said falling of deceased on stairs was 92 Criminal Appeal No.100246/2018 ruled out. On appreciation of evidence, it was found that accused No.1 is guilty of the heinous offence of murder. But however, in view of the facts and circumstances of this case, though it is submitted by the learned Additional SPP that, maximum punishment be imposed on the accused No.1, but this case do not fit in the parameters of rarest rare cases.
7. The punishment so prescribed for the offence under Section 302 of IPC reads as under:
302. Punishment for murder: Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.
8. Accused No.1 is also held guilty of committing offence under Section 201 of IPC. Section 201 of IPC reads as under:
201. Causing disappearance of evidence of offence, or giving false information to screen offender.- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
If a capital offence -- shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
93 Criminal Appeal No.100246/2018 If punishable with imprisonment for life -- and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
If punishable with less than ten years imprisonment -- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
9. The minimum punishment prescribed for offence under Section 302 of IPC is imprisonment for life with fine. Therefore, in view of the facts of this case, as well as on hearing the arguments of both the sides, we feel it proper to impose sentence of imprisonment for life with fine of Rs.10,000/- for the offence under section 302 of IPC. In default to pay the fine amount, the accused No.1 shall also undergo simple imprisonment of six months.
10. For commission of offence under Section 201 of IPC, the accused No.1 is sentenced to undergo simple imprisonment for a period of two years with fine of Rs.5,000/-. In default to pay the fine amount, he shall undergo further period of simple imprisonment of two months.
94 Criminal Appeal No.100246/2018
11. The above said sentence shall run concurrently.
12. Out of the fine amount, 75% of the amount shall be given as compensation to the legal representatives of the deceased.
13. The District Legal Services Authority is directed to take appropriate steps for reckoning the compensation under section 357-A of Cr.P.C.
14. Registry is directed to supply a free copy of this judgment to the accused No.1.
15. Issue conviction warrant against the accused No.1 and intimate the concerned Superintendent of Jail as well as Principal District and Sessions Judge, Belagavi.
16. Registry to send a copy of this judgment to the District Legal Services Authority, Belagavi also.
Sd/-
JUDGE Sd/-
JUDGE YAN, List No.: 1 Sl No.: 1