Karnataka High Court
Lokya Naik vs The State Of Karnataka on 3 September, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRL.A.No.1145/2005 (C)
BETWEEN:
1. Lokya Naik,
S/o Thavarenaika,
Aged about 58 years,
Owner Quarry,
Lambani by Caste.
2. L.Rajanaik,
S/o Lokya Naika,
Aged about 28 years,
Occ: Coolie,
Lambani by Caste.
Both are Residing at
Bevinahalli,
Doddathanda. ...Appellants
(By Sri A.Hanumanthappa, Advocate)
AND:
The State of Karnataka,
By Arasikere Police,
Represented by the
State Public Prosecutor,
High Court of Karnataka,
Bangalore-560 001. ...Respondent
(By Sri.K.Rajesh Rai, Government Pleader)
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This Criminal Appeal is filed under Section 374 (2)
of the Code of Criminal Procedure praying against the
judgment dated 20.5.2005 passed by the Sessions
Judge, Davanagere in S.C.No.145/2005, convicting the
appellants/accused for the offence punishable under
Section 3 of Explosive Substances Act and under
Section 304-II of IPC and sentencing them to undergo
R.I. for 5 years and to pay fine of Rs.10,000/- each in
default to undergo R.I. for 6 months for the offence
punishable under Section 3 of Explosive Substance Act
and further sentencing them to undergo R.I. for 6 years
and to pay fine of Rs.12,000/- each in default to
undergo R.I. for 6 months for the offence punishable
under Section 304-II of IPC.
This Criminal Appeal coming for hearing on this
day, the Court delivered the following: -
JUDGMENT
This appeal by the convicted accused Nos.1 and 2 in S.C.No.145/2005 on the file of the Sessions Judge, Davanagere, is directed against the judgment of conviction and order of sentence dated 20.5.2005 convicting them for the offences punishable under Section 3 of the Explosive Substance Act, 1884 (for short " the Act ") and Section 304 part II of IPC and sentencing them to undergo rigorous imprisonment for 5 years and to pay fine of Rs.10,000/- each for the offence under Section 3 of the Act and to undergo 3 rigorous imprisonment for a period of six years and to pay fine of Rs.12,000/- for the offence under Section 304 part II of IPC.
2. The case of the prosecution in brief was as under:
Accused No.2-Rajanaik is the son of accused No.1- Lokya Naik and they are residents of Bevinahalli Dodda Thanda in Davanagere District. The accused were in possession of a Stone Quarry close to the village. PW.9- Pujari Chandra Naik is the husband of deceased Jayamma @ Jaya Bai. They were coolies by profession and they were working in different Stone Quarries situated in and around the village. On 9.3.2002, accused No.1 got 25 holes drilled in the rocks of the quarry with the help of one M.Kenchavirappa arraigned as accused No.3 for the purpose of blasting the rocks on a later date. On 12.3.2002, PW.2-Jaya Bai, wife of Shekar Naika, PW.3-Devakka, PW.4-Neeli Bai, deceased Jayamma @ Jaya Bai, and others had gone to the Quarry of accused Nos.1 and 2 for work. PW.9 had 4 gone to the Quarry of one Manja Naika for work. At about 9.00 or 9.30 a.m., accused No.1 put the explosive substance in the holes which he had got drilled on 9.3.2002 and asked his son accused No.2 to blast the same. Accordingly, accused No.2 even without warning and alarming the coolies working there, pressed the trigger and blasted the rocks. Pieces of blasted stone hit on the back of the deceased as a result she died instantaneously at the spot. There was a hue and cry.
PW.9, who was in the Quarry of Manja Naika, on hearing the hues, came running and learnt about the incident. Thereafter at about 9.00 p.m. on the same day, PW.9 lodged a report as per Ex.P.7 and based on the said report, PW.17-Sudhakar, SHO Arasikere Police Station registered the case in Crime No.24/2004 for the offences punishable under Sections 304-A and 337 of IPC and Sections 3 and 5 of the Act and took up investigation. PW.18-Thirtharaju, Police Sub-Inspector, Arasikere who took up further investigation, proceeded to the Hospital where the dead body had been kept and held inquest over the same and filed report as per 5 Ex.P.6. Thereafter the dead body was subjected to post- mortem examination. PW.15-Dr.Suresh who conducted post-mortem examination, noticed lacerated wound on the middle of the scapular region and left thumb finger, a large scratch mark in the upper part of abdomen as well as right knee joint. On dissection of the dead body, he noticed rupture of spleen and spleen containing 250 ml of blood and he also noticed presence of blood in the Pericardium cavity. He was of the opinion that the death was due to Intra peritoneal bleeding as a result of rupture of spleen. During investigation, PW.18 recorded the statements of witnesses, collected necessary documents, apprehended accused and after completing investigation, laid the charge sheet for the offences punishable under Section 304-A of IPC and Section 3 read with 6 of the Act.
3. After committal of the case to the Court of Sessions and upon appearance of the accused persons, the learned Sessions Judge however framed the charges for the offence punishable under Section 3 read with 6 Section 6 of the Act against accused No.3, for the offences under Section 3 of the Act and Section 304 part II of IPC as against accused Nos.1 and 2. The accused persons pleaded not guilty for the charges and claimed to be tried. The prosecution in order to bring home the guilt of the accused for the charges levelled against them, examined PWs.1 to 18, marked Exs.P.1 to P.17 and M.Os.1 to 7. During their examination under Section 313 Cr.P.C., the accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. However, the accused did not lead any defence evidence. The defence of the accused persons was one of total denial and that of false implication.
4. After hearing the parties and on assessment of the oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal held that the prosecution has proved that accused Nos.1 and 2 were unauthorisedly running a Stone Quarry close to the village and on 12.3.2002, both the accused, without 7 taking proper precautions and without alarming the coolies working thereon, blasted the rocks by using explosive substance and thereby caused the death of Jayamma @ Jaya Bai wife of PW.9. Therefore, the learned Sessions Judge held accused Nos.1 and 2 guilty of the offence punishable under Section 304 part II of IPC and under Section 3 of the Act. However, the learned Sessions Judge did not find any evidence against accused No.3. Therefore, the learned Sessions Judge acquitted accused No.3 and convicted accused Nos.1 and 2 for the aforesaid offences. Aggrieved by the said judgment of conviction and order of sentence, the appellants / accused Nos.1 and 2 are in appeal before this Court.
5. I have heard the learned counsel appearing for the appellants and the learned Government Pleader appearing for the respondent - State.
6. Learned counsel for the appellants contended as under:
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That the judgment under appeal is perverse and illegal inasmuch as the judgment is purely based on surmises and conjunctures and the finding of guilt recorded by the learned Sessions Judge, is not supported by any legal and acceptable evidence; that the learned Sessions Judge has failed to notice that the essential ingredients to constitute offence under Section 3 of the Act were not established beyond reasonable doubt since the prosecution has not placed any acceptable evidence to show that there was an explosion in the Quarry of accused Nos.1 and 2 by using explosive substance, therefore, the conviction recorded for the offence under Section 3 of the Act cannot be sustained;
that the learned Sessions Judge has failed to notice that the prosecution has not satisfactorily explained that the death of the deceased was due to hit by stones erupted from the blasted rock and that was responsible for rupture of spleen; that the prosecution has not explained as to how the body of the deceased was found near the fence close to the house of PW.9 and as to how the dead body was shifted to the Mortuary of the 9 Hospital even before the inquest could be held; that the learned Sessions Judge has failed to notice that the prosecution has failed to prove lying of the dead body at the Quarry to connect that the death of the deceased was due to hit by a stone from the blast; that there has been unexplained delay in lodging the FIR and this delay has been utilised for falsely implicating the accused.
In the light of the above submissions, he sought for setting aside the judgment of conviction and for acquittal of the appellants / accused Nos.1 and 2.
7. Per contra, learned Government Pleader sought to justify the judgment under appeal contending that the judgment under appeal does not suffer from any perversity or illegality since the learned Sessions Judge on proper appreciation of the oral as well as documentary evidence, has recorded findings which are sound and reasonable regard being had to the evidence on record, therefore, it does not call for interference by this court; that the evidence on record clearly 10 establishes that the appellants were running the Quarry in question and the deceased along with others had come to the Quarry on that day for coolie work; that the evidence on record clearly establishes that the death of the deceased was due to hit by a piece of stone coming out of the blasted rock in the Quarry and therefore the prosecution has established beyond reasonable doubt that the accused persons without taking proper precautions and alarming the coolie workers there, knowing fully well that such a blast may endanger the life of the persons working there, caused the blast resulting in the death of the deceased on account of a piece of stone hitting her on the back.
Therefore, the learned Government Pleader contended that the learned Sessions Judge is justified in holding the appellants guilty for the aforesaid offences as such there are no merits in this appeal. Therefore, he sought dismissal of the appeal. 11
8. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for consideration are:
(1) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?
and (2) Whether the learned Sessions Judge is justified in convicting the accused persons for the offences punishable under Section 304 part II of IPC and Section 3 of the Act?
9. I have bestowed my anxious consideration to the submissions made on both sides. Perused the records secured from the trial Court.
10. The fact that accused Nos.1 and 2 being father and son were running Stone Quarry close to Bevinahalli village is not seriously disputed by the appellants. During the trial of the case, PWs.2 to 7 and 9, in their evidence, have consistently stated that accused Nos.1 and 2 were running a Stone Quarry near Bevinahalli 12 village. There is absolutely no cross-examination to any of these witnesses in this regard. Of course, PWs.2 to 4 have been treated hostile and have been cross-examined by the learned Public Prosecutor. Nevertheless, their evidence with regard to the appellants running a Stone Quarry is not found to be inconsistent to their previous statement. The accused during their examination under Section 313 Cr.P.C. have not disputed the said fact except denying the evidence of the prosecution witnesses in this regard. Therefore, having regard to the oral evidence on record, I find no error in the finding recorded by the learned Sessions Judge that accused Nos.1 and 2 were running a Stone Quarry near Bevinahalli Village. We are not very much concerned as to whether they had a valid license to run the quarry or not. The said question is not germane to find out as to whether the appellants were guilty of the offences alleged.
11. According to the oral evidence on record on 12.3.2002, Jayamma @ Jaya Bai died at the Quarry run 13 by the appellants. According to the case of the prosecution, on that day, the deceased had gone to Quarry of the appellants for coolie work. This part of the case of the prosecution is also not seriously challenged. However, the oral evidence of the material witnesses do not satisfactorily indicate as to whether she died on account of pieces of stone erupting from the blasted rock hitting her.
12. PW.2 is one Jaya Bai. According to the prosecution, she was also working at the Quarry on that day. However, during her evidence before the court, she did not support the case of the prosecution, as according to her, on that day she had been to the work in some other Quarry and not in the Quarry run by accused Nos. 1 and 2, and she came to know that Jayamma @ Jaya Bai had died in the Quarry of the appellants and that she does not know as to how said Jayamma was hit by a stone. She has not stated as to whether after hearing about the incident she came to the Quarry and saw Jayamma @ Jaya Bai lying dead at 14 the Quarry. In the cross-examination by the Public Prosecutor on being treated hostile, she has denied all the suggestions put to her. She has also denied the suggestion that she had made a statement before the police as per Ex.P.2 as having witnessed the incident. Thus the evidence of PW.2 is of no assistance to the prosecution in establishing the alleged incident of stone hitting the deceased at the Quarry and as a result she dying there.
13. PW.3 is one Devakka. According to her, on that day she along with the deceased went to the Quarry of the appellants - accused for coolie work and while they were working, accused No.2 blasted rocks with the help of some explosive substance and a piece of stone hit deceased Jayamma @ Jaya Bai as a result she died at the spot. However, in the next sentence she has stated that she had gone out of the Quarry with crushed jelly and by the time she returned to the place, Jayamma was found dead. This witness was also treated hostile and in the cross-examination by the 15 Public Prosecutor, she denied the suggestion that she has made a statement before the police about she having seen a stone hitting said Jayamma. In the cross- examination by the learned counsel for the accused, she has stated that she was not present in the Quarry at the time of the incident.
14. Thus the evidence of PW.3 is not consistent. She has contradicted her own statement. At one stage she has stated that while she along with the deceased was working in the Quarry, accused No.2 blasted the rock and a stone hit the deceased. However in the next sentence, she has stated that at that time she had gone out with crushed jelly and by the time she came back, the deceased was found lying dead. This shows that she has not seen as to how Jayamma @ Jaya Bai died. In the cross-examination by the defence, she has given a complete go by to her evidence by stating that at the time of the incident she was not at the Quarry. Thus the evidence of PW.3 is highly inconsistent and 16 discrepant. Therefore, it is highly unsafe to place reliance on the evidence of such witness.
15. PW.4-Leela Bai, though according to the prosecution is also an eye-witness, in her evidence before court, did not support the case of the prosecution. In her evidence she has stated that on that day she had not gone for the work in the Quarry of the appellants - accused and later she learnt about the incident in which Jayamma died. Thus the evidence of PW.4 is also of no assistance to the prosecution.
15. PW.5-Krishna Naika, who according to the prosecution is also an eye-witness, did not support the case of the prosecution. According to him, on that day he had not gone to the work in the Quarry of appellants / accused and after hearing the galata when he came there, he learnt that Jayamma was hit by a stone and she had died. He was also treated hostile and nothing was elicited from him in his cross-examination. Thus the evidence of PW.5 also does not help the prosecution in proving that the deceased was hit by the stone. 17
16. PW.6-Revanasiddappa is the son of PW.3- Devakka. According to him, at the time of the alleged incident, he was in his house and some one informed him about the incident and thereafter he went near the Quarry. Thus his evidence is of no help to the prosecution. PW.7-Shekara Naika is a witness to the spot mahazar and seizure of two stones as well as 20 meter wire and an iron handle said to have been seized from the scene of occurrence. PW.8-Manja Naika is a witness to the inquest.
17. PW.9-Pujari Chandra Naika is the husband of deceased. According to him, he was working in the Quarry of one Manja Naika and after hearing about the incident through some one, he came to the Quarry of the appellants and learnt about the incident. According to him, when he went to the place of the incident, PWs.1 to 3 were present there and he learnt that accused Nos.1 and 2 have taken the dead body of his wife on a motor cycle to a temple in Hiremegalagere. According to him, thereafter he went to the Police Station and lodged 18 a report. In the cross-examination, it is elicited from him that Bevinahalli is at a distance of 13 kms from Arasikere and there are bus facilities between the two villages apart from several other vehicles. It is further elicited from him that the Quarry of Manja Naika was at a distance of 1½ km from the Quarry of the appellants. According to him, by the time he came to the Quarry of the appellants / accused, the dead body of his wife was not found there and the same was found by the side of the fence near his house and from there the dead body was shifted to the Hospital at Arasikere by the police at about 9.00 p.m. Thus PW.9 was not an eye-witness to the alleged incident. He was stated to be working in another Quarry at a distance of 1½ from the Quarry of accused Nos.1 and 2. By the time he came to the Quarry of the accused, the dead body of his wife was not found there and later the dead body was found by the side of the fence near his house. The prosecution has not explained as to how the dead body was shifted from the Quarry to the fence near the house of the accused. Though PW.9 in his examination-in-chief has 19 stated that he learnt about accused Nos.1 and 2 taking the dead body on a motor cycle to Hiremegalagere Temple, no other witness has spoken about this factor. It is pertinent to note that in the report lodged by PW.9 at about 9 p.m. on 12.3.2012, there is no mention about PW.9 coming to know about accused Nos.1 and 2 taking the dead body on the motor cycle to Hiremegalagere temple nor there is any mention about the dead body lying by the side of the fence near his house. It is only during the evidence before the court he has come out with these factors. None of the witnesses have stated about accused Nos. 1 and 2 taking the dead body from the Quarry. There is absolutely no evidence collected by the Investigating Officer as to how the dead body came to be removed from the alleged scene of occurrence to the fence close to the house of PW.9.
18. According to the evidence of PW.18-the Investigating Officer, inquest was held in PHC Arasikere, between 9.10 a.m. to 11.00 a.m. on 13.3.2002. PW.18 has not stated in his evidence as to 20 who shifted the dead body to the Hospital. PW.17 is the police Officer who only registered the case on the basis of the complaint lodged by PW.9 and handed over the investigation to PW.18. He has done nothing as part of the investigation. Thus it is not forthcoming as to who shifted the dead body to the Hospital.
19. Section 174 of Cr.P.C. provides for police to inquire and report on suicide etc. The object of conducting inquest as provided by Section 174 Cr.P.C. is to find out the apparent cause of death and such investigation should be held at the place where the dead body is lying. Sub-section (1) of Section 174 Cr.P.C. directs that when the Officer in charge of a police station or some other police officer specially empowered by the State Government receives information that a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately proceed to 21 the place where the body of the deceased person is and there in the presence of two or more respectable inhabitants of the neighbourhood shall make an investigation, draw up a report of the apparent cause of death describing such wounds and other marks of injury having been found on the body stating in what manner or by what weapon or instrument such marks have been inflicted.
20. Thus the very object for which conducting of inquest is made mandatory, appears to have been thrown to winds in this case. Though it was alleged that Jayamma died at the Quarry of accused Nos.1 and 2 as a result of hit by a piece of stone erupted from the blasted rock at about 9.00 or 9.30 a.m. on 12.3.2002, the inquest was shown to have been held in PHC Arasikere on the next day i.e., after 24 hours after the death. The inquest was not conducted at the spot nor in the report said to have been lodged by PW.9 there was any indication about shifting of the dead body from the alleged place of occurrence. Thus the important 22 evidence that would have been found at the alleged scene of occurrence has been lost. This also creates great amount of doubt as to whether the deceased was working at all at the Quarry and died there as alleged by the prosecution.
21. PW.10-Bhanubai is another witness to the inquest while PW.11-Krishna Naika is also another witness for the spot mahazar as well as seizure of certain articles. PW.12-Yashodhara is only a circumstantial witness who said to have come to know about the incident. PW.13-Chandrappa and PW.14- Rajappa are witnesses in whose presence certain articles were said to have been recovered from the house of accused No.1 under mahazar Ex.P.9. They did not support the case of the prosecution, therefore, they were declared hostile. PW.15-Dr.Suresh is the Doctor who conducted post-mortem examination. PW.16-Parasappa is the Police Constable who carried the FIR to the jurisdictional Magistrate. PWs.17 and 18 are the two police officers.
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22. Thus the oral evidence on record does not satisfactorily establish that there was a blast at the Quarry and that the deceased was hit by stones as a result of which she died at the Quarry. Of course from the evidence of PW.15-Dr.Suresh, it is clearly established that the deceased had suffered rupture of spleen and her death was due to the rupture of spleen. The Doctor had also noticed a large scratch mark on the abdomen, which would probabilise that there was some blunt force on the stomach, which appears to have caused rupture of spleen. Merely because the medical evidence establishes that there was some blunt force on the abdomen of the deceased resulting in the rupture of spleen leading to her death, it cannot be presumed that such blunt force was on account of a stone hitting her at the Quarry.
23. As noticed supra, there is no acceptable evidence to show that the deceased was found lying dead at the Quarry. On the other hand, the evidence of PW.9 who is none other than the husband of the 24 deceased indicates that by the time he could reach the Quarry of accused Nos.1 and 2, the dead body was not found there. He has not stated as to at what time he noticed the dead body of his wife by the side of the fence near his house. It is not explained as to who brought the dead body from the Quarry near the house of PW.9. The only evidence as to the alleged incident was that of PW.3. However, as noticed supra, her evidence is highly discrepant and it creates a doubt as to whether she was present at all near the Quarry on that day. Though the other witnesses have stated that they heard about the incident, they have not stated definitely that they went near the Quarry and saw the dead body lying there. Therefore, the oral evidence is not satisfactory to prove that the deceased was hit by the stone at the Quarry.
24. In order to prove the charges for the offence punishable under Section 3 of the Act, the prosecution should prove that, (1) accused caused an explosion, 25 (2) explosion was caused by using explosive substance;
(3) explosion was caused unlawfully and maliciously;
(4) the explosion was of the nature or
to cause serious injury to the
property.
In the case on hand, the evidence does not satisfactorily establish that there was an explosion at the Quarry of accused Nos.1 and 2 by using explosive substance. Of course, according to prosecution, after the apprehension of accused No.1, he made voluntary statement and pursuant to the said statement, he led the Investigating Officer and the panchas to his house and produced 5 unused detonators and the same were seized under mahazar Ex.P.9. Even according to the prosecution those detonators were unused. When according to the prosecution accused No.1 was running a Quarry, it is quite natural that he would possesses such detonators. Merely because he was found 26 possessing unused detonators it cannot be presumed that he has exploded them in the Quarry unlawfully or maliciously nor it can be presumed that accused No.1 has used those detonators in the Quarry to blast the rock and thereby caused the death of the deceased. Though according to PW.18, during investigation he visited the scene of occurrence and conducted spot mahazar and at that time he seized a 20 mt. wire, an iron handle and two blood stained stones, there is no indication in spot mahazar Ex.P.5 that there was any burnt detonators or remnants of any detonators alleged to have been used for blasting. The spot mahazar also does not indicate as to whether there was any indications of blast. Thus the essential ingredients to constitute the offence under Section 3 of the Act have not been established by the prosecution.
25. The offence under Section 3 of the Act provides for a severe punishment. The section provides for a minimum imprisonment for life or rigorous imprisonment, which shall not be less than 10 years 27 and also fine. Having regard to the deterrent punishment prescribed in the Section, before finding a person guilty of such offences, the court must satisfy that the essential ingredients to constitute such offence have been established. In the case on hand, in my opinion, the evidence on record does not satisfactorily establish that there was an explosion in the Quarry of the appellants and such explosion was by using explosive substance. The learned Sessions Judge in the course of the judgment has jumped to the conclusion that since the witnesses have stated that the deceased was hit by a stone at the quarry on her back and as a result she died, the death was solely due to the blast. It is on account of such assumptions the learned Sessions Judge has proceeded to hold the appellants guilty of the aforesaid offences. Having regard to the nature of the evidence available on record, in my opinion, the learned Sessions Judge is not justified in jumping into such kind of conclusion.
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26. The accused is presumed to be innocent till his guilt is proved beyond reasonable doubt is well settled philosophy and the jurisprudence under the criminal law. A person cannot be found guilty on the basis of presumption and assumptions. The evidence must satisfactorily prove the guilt of the accused persons. The evidence of the witnesses as noticed supra, in my opinion, cannot be a basis to hold that the deceased died on account of hit by a stone erupted from the blast of the rock. Therefore, the findings recorded by the learned Sessions Judge suffer from glaring infirmities as such the judgment is highly perverse and cannot be sustained. The prosecution, in my opinion, has utterly failed to prove the guilt of the accused for the charges levelled against them. Therefore, they are entitled for an order of acquittal.
27. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence dated 20.5.2005 passed by the Sessions Judge, Davanagere in S.C.No.145/2005 convicting the appellants / accused 29 Nos.1 and 2 for the offence punishable under Section 304 part II of IPC and Section 3 of the Explosive Substances Act, 1908 is hereby set aside. The appellant / accused Nos.1 and 2 are acquitted of the said charges. The bail and surety bonds of the accused are ordered to be discharged. Fine amount, if any, deposited by the accused are ordered to be refunded to them.
SD/-
JUDGE RS/*