Karnataka High Court
State Rep By The Sub Inspector Of Police vs K D Nagesh S/O Devegowda on 4 June, 2010
Author: K.L.Manjunath
Bench: K.L.Manjunath
R/O. HOSAKOPPALU. KALAVASE, SUGUDAVANI VILLAGE. JAGARA HOBLI, CHICKMAGALUR TALUK. ...RESPONDENTS " ~ _
[BY SR1. JAGADEESHA B.N., ADVOCATE] THIS CRIMINAL APPEAL Is=.A:FIL;EDfiUNDE'R- 378(1) sz (3) OF THE CODE_.O_F CRIMENAL TPs:0CEED«:URa:'--VVC? PRAYING TO GRANT LEAVE APPEAL--..,/§G15§iNS'I' 'THE "
JUDGMENT DATED 1% 22/11%/2901-V.C9_VPASSED ms ADDITIONAL sEss10Nsj'. vCH.I(3K}\/IAGALUR IN s.C.No. 108/ 1999, ACQU;f:j':Nt§' .'/.'.;Rfi;sPoNDENTs _ ACCUSED F013" Pt-JNlxStflkBLE UNDER SECTION 3o2§R/W34 .I9C[' ';jH1s__ COMING ON FOR HEARING THIS DAY. 4- J.. DELIEVERED THE FOLLOWING, - ' ..... .J"UDGMENT V9 filed by the State is directed against order dated 22.11.2001 passed by the 9 ' v..,Additi"oqAaI Sessions Judge, Chikmagalur in 108/ 1999, aequitting the respondents -- accused '1 5 the dead body in the presence of the panchas, ceased the iron rod and stone said to have been usedvVfohr'»the commission of offence from the scene of occui"renc€_j'aLr_2_.d~~. then subjected the dead body to examination. PW. 6--Dr.R.Dodda1nal].a,:p§53. "1 post mortem examination on -the spohtland nfiirnished his opinion as to the cause of to the «effectivyfthat the death was due to as a result of head ingury. During accused were arrested No.2 Pursuant to the knife was recovered in the prese.-ncey statement of the material witnessegs vvere; 'recorded by the Investigating Officer ll:Ad1,iri1?gE"Kithjefiinvestigation and after completing the AL'"investigationVllcliarge sheet came to be filed. When the accused: 'were produced before the learned Magistrate, V. ,.::thr3y_ were initially remanded to judicial custody. .' Hovvever subsequently accused No.1 was enlarged on but accused No.2 continued to remain in judicial 6 custody till the disposal of the case. The respondents - accused pleaded not guilty for the charge vp1e'\.:.I:"e'»l1ed against them and they claimed to be home the guilt of the accused, examined PWs.1 to 13 and got and M.Os.1 to 8.
4. During their exaininfatiioii of Cr.P.C. the accuseqwi,,der.iied inicrirninating circumstances the evidence of the :::§Z"hcv"iéaccused did not choos§7v.,to" __evidence. The defence of the accused one of 'total denial and that of false It 'Wa-s--their further defence that on that pf day;Vthep_'de'cea'sed who was a quarrelsome person while bus, quarreied with passengers as Well as thevdcrew of the bus, therefore he was beaten up 'lfliinside the bus and was thrown out of the bus as a hhriesult of which he sustained injuries to which he succumbed. Thus according to the accused they are not responsible for the death of the deceased.
5. The learned Sessions Judge, after sides and on appreciation of "oral; as.well"'as1 documentary evidence, by the jud.gnz.ent held that the prosecution hasr».iatterly the V guiit of the accused p'ersoris"'Vbe$io:ri:d~«reasonalole doubt and therefore, the accnsed of the charge levelled agaiinst}:j;,theri:*;, {Acco1'di1igl3r,».~: learned Sessions Judge,,vaequitted:'1t;he Being aggrieved by the ' acquittal, the State has presented this appeal. x After of notice of this appeal, the appeared through their counsel. We have Sri.B.Raja Subramanya Bhat, I-ICGP appearing for the appellant - State and ""Sri.'B.N.Jagadeesha, counsel appearing for the 'respondent -- accused.
8
7. During the course of the arguments, Sri.Bhat submitted as under:
The judgment of learned Sessions.ll_:'J'utl'ge__? _ perverse, illegal and contrary to the evid.ence::on"'record. '* Though little delay in lodging the explained satisfactorily, the tile-azrned ' idfuvdgewi has i' made much of this delay Viewed "L?iepc§ffe.e of the prosecution with or reasons for llthellprlosecution with suspicion in lodging the complaint _as'l'lt_heV_ delaylhnas been satisfactorily explained and and circumstances of the case} " the delay' lwas also understandable. Delay in lodvginfigililthiecomplaint by itself cannot be a ground to S_us_pec't«"V"_the.l.::"'c.ase of the prosecution unless it is V . establishedlll that the delay has been utilised for K prcj_ectVii1g a coloured version by falsely implicating the innocent person. The learned Sessions Judge has it "rejected the evidence of PWs.1, 2 and 4 for improper {"1 reasons though their evidence with regard t_o__ the incident and the overt acts of the accused is consistent and cogent. Rejection of evidence of PWs.1 ground that they are brothers of ' deceased are interested witnesses is Vcontraryito the= principles of law while jhizheilrrelated'll witnesses. The lea1ne'd.._A_Sesis'ions'jdudge has" committed error in holding that thedgzleifence to how the deceased died'is.gVghigh1y this regard the learned to see that except mere i3uggestiicrn...V_p'L1,t "to""the.witnesses during the cross- examination, tlier"el'is.'3rJ,o' other circumstance brought outéggfon record. the accused to probabalise the said itherefore, the learned Sessions Judge ought not "reliance on the said defence theory. The lear"ned:p.Se'ssions Judge has committed error in not ., ace-epting the case of the prosecution that the deceased a position to speak when PWs.1 and 4 reached wthe scene of occurrence and on being questioned by /l I0 PWS. 1 and 4, the deceased made a statement that he was assaulted by the accused and since the ~-,_said statement made by the accused related to the his death it had par taken the characteristicilof declaration falling under Section°"32'('1)p_ of Act therefore the said piece of eviderilce ton been considered by the learfivedsessions' it the accused persons';'~.Ti'he«'cottrt. below has "failed to appreciate that the consistent and cogent and ;_hisjp;:g.cevidenCe'"§2vo'uld:--"'cl.ear1y establish the complicity persons in the commission of the offence gets corroboration from the medicaievideiiceylland also the dying declaration made .Ab3r__,thed'deceased as such the learned Sessions Judge is riot. "rejecting the evidence of PW.2. Therefore, the learned Government pleader submitted that the judgment of the learned Sessions V.d,Jt1dfge is perverse, illegal and contrary to the evidence record and it is based on surmises and conjectures, .1'! 11 therefore, it is liable to be set aside. In that View of the matter, he urged that this Court is required". 'torre- appreciate the entire evidence and record _ against the respondents ~ accused and to"pu:11i:sh: W accordingly.
8. Per contra, S1i.Jagadisl1, counsel appearing for the re'spondentg,_,'j4---:"acCused"d sought to justify the reasonings ad-opted} Sessions Judge and siibiiiitted gas V. Thait--.:t'he Sessioris Judge on proper apprec'i~atio_n'of documentary evidence has come to concl-usi_on~~-'that the prosecution has failed ""=._to the. of the accused and since the A.:of;,evidence by the learned Sessions Judge acveoridance with the well settled principles of law.
there" no perversity in the judgment as such this sitting in appeal against the judgment of .,,_8§cquitta1, cannot interfere with such reasoned judgment of the learned Sessions Judge. There was inadequate YE 1.2 delay in lodging the complaint about the aiieged incident and the explanation offered by the witnesses with regard to delay has accepted by the learned Sessions there illegality or irregularity co_1nmitted=- by 1 leaifnedlf Sessions Judge in holding thlatijthere in lodging the comp1aint':i. is lvjlustified in viewing the case of The answers the cross-fexarhination by the materiagiw indicate that the deceased in .a position to speak at the time when the scene of occurrence therefore, thelease ofthe prosecution that the deceased liiadrmade a dying declaration before PWs.1 and rejected by the learned Sessions Judge. evidence of PW.2 is full of inconsistencies V' oinissions on material aspects of the matter therefore it amounts to contradiction as such the lmlllearried Sessions Judge is right in holding that it is f'\ '$2:-. /' 13 highly unsafe to place reliance on the evidence of PWs.2 as the presence of PW.2 at the alleged sce'n_e§_Vof occurrence at that hour is highly _ doubtful and therefore his evidence 'w rejected by the learraed Sessions andl' absence of evidence of PWSZ therelis 'no otheruevidence placed by the prosecution of the respondents -- accusledflfor the deceased. The prosecution" has ifaile-d:to" homicidal death of lhseegere to defence theory} the. Judge has rightly held that the hornicidlal' 'd.eath..4':of:uthe deceased is also highly doul;)tful..
it according to the learned counsel, the it"judgment"_v»of'V~.le'aI'z1ed Sessions Judge does not call for
--V interferiencell by this Court.
" < 4_ 9."'We have bestowed our serious considerations to
-- the submissions made on both sides and we have also " "carefully scrutinised the material available on record. kl.
14
10. Having regard to facts and circumstances of the case and submissions made on both sides, th_e=.p'oint that arises for our consideration in this appea§1Ware',';~ _ "1. VVhether the iearried :'Se*ss:i~on's Judge is justified in respondent -- accused for charge 1*~'.'3.V§lie'd'V it against them? it it
2. Whether the ju_dugrne11tv undenappeal calis for interfere.n'c--e_
11. Acc:or(3';§I5§g the"."casve:.'o:f"theféprosecution, the incident p.m. on 27.77.1999 at the Viilage in Chikrnagaiur District. According Atoithe prosecution, on that day, the alightedfrom Padrna Bus and after aiighting _f1"oI,_n' ,.t:'hea'ibusV,"'.when he was proceeding towards his house, thef,a'ccused persons assaulted him with iron 9"-rod, stone and stabbed him with knife. According to the V' pi"-Vcasefof the prosecution, this incident was sequel to the _,Va__iieged incident of deceased teasing the sister of the accused at about 3.00 p.m. on 26. 7. i999 while she was A 15 alone in the house and that was the motive attributed to the accused persoris. But unfortunately; prosecution has not placed any evidence this motive. However during th:e"tria.l.p_ the, med to put forth some other trlvi-ai;--~ was suggested that the deceased arid. his were V constructing a temple raifid pers'o11s',V: did not participate in the ll along with other during the trial that the deceased" to give their sister in did not agree for the same. no satisfactory evidence placed --. by theilaprosecutiori with regard to the motive . V. "'attr1huted tothe accused persons either at the Initial the trial. Therefore, the prosecution has it failed to' ' prove the motive. Of course when the 'prosecution relies on direct evidence, the motive becomes insignificant. Therefore, merely because the it -prosecution has failed to prove the motive attributed, 16 the case of the prosecution cannot be vieWed'"*-with suspicion.
12. According to the case" of tl_-ie"'prosecu_tior:£,V uh' complaint was lodged at about 99;
in respect of an incident occurred at; 8.15 " 9' p.m. on 27.7.1999 in the the complaint lodged beflo'rel't--he- that some explanation itself for the delay. on the date of the mcviden_t';".thei"ei; in the village to the extent {of on account of this, there was obstru.r_;tio,n 'on7the.._'-~i'oad because of trees having .....Afal1e»ni,on' the ro'ad..__therefore they could not reach the police was also stated in the complaint that because 'off heavy rain telephone lines were not '.vfunctionin_glas such they could not Contact the police lv~:ovxerl"phone. This explanation has been reiterated by and 4 during their oral evidence before the Court. fl'wThe learned Sessions Judge in the course of the 1 17 judgment has considered these aspects in great detail. Unfortunately, the learned Sessions Judge he1d:.:"'that there is no explanation offered by PWs.l delayed presentation of the complaint, 2. the learned Sessions Judge there Wjereivotherl a1te7rr1.ati*;e roads for them to reach the«policle-..sta_tion:,'_:3thVey.:':i» have not done, therefore, cannot be accepted. The other".--zreason?.:.g by the learned Sessions Judgeis that made use of wireless fa tlfilefforestlwlcheck post or they couldihayell --the._othermpolice station which were nearby) on :_4"'it':':h'e""learned Sessions Judge also noticedregthat the portion regarding the reasons appears to have been subsequently inserted in " '13. Having perused the entire evidence on record, ~we'4'g"g_are of the considered opinion that the learned ____Sessions Judge is not justified in holding that the reasons assigned by the complainant for the delay in 18 lodging the complaint cannot be accepted, is perverse and cannot be sustained. No doubt, perusal indicates that last 3 lines are typed in 'A . while the rest of the portions aretyped in it 2 But on that basis it cannot be s'ajd-ritriat have been subsequently "the isri pertinent to note that this 'having been received by the policehat."lG...0e03 foLn,28.7.1999 has reached the _ that about 11.30 a.m. on 2S'.'7'._l.99'9i;.__ 'notddforthcorning in the cross~ exa1ni:,_nation'el.o_.f to .-- vvhen these portions are allegedito have ii_r1s:er':ed. In any case, it could not havebeen after the complaint had reached the Magistrate. Therefore the reasoning learned Sessions Judge cannot be accepted. » <;'i'he incident took place in a remote village, which is surrounded by forest. The evidence on record ¢1ea;41y indicates that there was heavy rain on that day it "right from 4.30 pm. till about 11.00 pm. It is in the 19 evidence on record that on account of this heavy rain, road side trees had fallen and thereby the roadsV._:were blocked. It is in evidence that on account _ rain the telephone lines were not function.ingl§'=,PWs.r_i '* V and 4 have stated in chorus'-,th:;'1t..:aflter deceased lying in pool of blood" they» tried police overtelephone. telephones in -the Village but they coulddilot the telephone lines were disbelieve the evidence of If really the telephone ?Ws.1 and 4 on seeing their would not have kept quite Witiiont. either .._rernoying the injured to the hospital or contacting the police. The fact that they the injured to the hospital irnrnediately, wotilditselt indicate that there were some obstructions for--- to go from the village. Therefore, in our 'considered opinion, PW.1 has Come out with it satisfactory reasons for the delayed presentation of the 20 complaint and his inability to go to the police station immediately at the dead hour of the night to lodegeltthe complaint. It is also to be borne in mind . clelay by itself cannot be fatalgto "' prosecution unless it is shown thatjjthe utilised to project a col'ou1=ed version. --'also=.l' necessary to note that PWsA.p_1__xand beingthefiyounger and elder brothers of"s:h--e after having seen their brother lyiiig in pool have been in a ' state of ;tir_r1e"ni_usVt' have been taken by them to shock and then to think of lodging A lconiplaientl:ilfllaving regard to facts and circ1%irristances"oefVVthe: case, the topography of the scene of occurrence. and other obstacles caused on account of heavy theeveelittle delay in lodging the complaint has been properly explained and the learned Sessions Judge » ought have accepted them as satisfactory reasons for ' lodging the complaint belatedly. § 21
14. With regard to alleged incident, the prosecution places reliance on the evidence of 2 and 4. As noticed earlier, according to the PW.3~Shivanna, CW.3--Ganesh, '* the eye witnessses. Unfortunately} support the case of the pr0'sec-ntioni L' hostile and was ;cross~exa;i11ined public prosecutor. There is of PW.3 to indicate that has falsehood before the the incident.
It is the prosecution that PW.3 was running a hotel 'by! the sideof of occurrence. However the prosecu.tion not: placed any evidence to show that he a hotel. In fact, .spot mahazar Ex.P.8 do existence of a hotel run by PW.3- Shivannalnear the scene of occurrence. On the other V. 'according to Ex.P.8 at a distance of 100 ft. to the '.;3outh of scene of occurrence, residential house of 'HShtvanna is located. Therefore, the case of the
-a ' //' 22 prosecution that PW.3 while sitting in the hotel by him saw the incident, cannot be accepted. in...ah;3r the evidence of PW.3 is of no assistance_'the:.Afcase "of K the prosecution in establishing' accused persons.
15. pw.2 is the other i *i*i1e»..1gi§i he has supported the case "oi; the ~ iearned Sessions Juclgeigjhas Agastirnony on the ground of contradictions, omissi.ons We have closely scrutinised V.-oi PW.2 and find that the learned Siess_i'ons,-. is justified in not placing V' .,reiia'f1cet..oI1-- the evidence of PW.2. to PW.2 he also aiighted from the
--V buska the deceased and after alighting he stood shop of one Jagadish under whom he was ' ixfofliing and at that time, he heard accused abusing it 'deceased Umesh in fiithy language and picking up 23 quarrel with him. On hearing the same, he went near the place and at that time the accused assaulted and Went away from the place. However, .;t;o'@ PW.2 apprehending that he may also be he '» did not go to the rescue of the deceased. not his say that iminediatelyahe infor1r1ediv'thej kin of the deceased [imesh In the cross-examination Omissions have been suggesteclu them. These omissions the Investigating Officer in t_h'efcrqsvsaerzamination. Several material facts have not.__been in his statement before the 'police. ;I'herefore'V,' there is lot of improvement in the o_f*§_W.2. The omissions suggested are all in A"relationito,,n_r2rat<éria1 aspects of alleged incident and they amoa1nt' to contradiction.
.17. According to I"-'W.2, the incident took place at about 8.15 pm. It is in evidence on record that there was heavy rain from 4.00 p.m. till about 11.00 p.m. it /\ 24 is also on record that on account of heavy rain there was complete darkness in the village. Accordin.g~..to PW.2, he saw the incident with the help T. and the light emanating from themhgead K" V and also the torch which he was hojiding.»._l moon light on the said dayis"-~highly- -vhatring regard to fact that there was_.hleaVy"..rain from 4:00 pm. to 11.00 p.m. ThereioreAl_-PW .:not.vhave seen the incident with the _help""o'f: Similarly, if the bus had T it is highly improb_:ab1_e_' lAtii'af...Vh3ead« light. would have been switched on. Neve'rt_helessi,.liI'i.p'th4i's-regard there is omission in his statement hefore police. The Investigating Officer 'that':'cross-eiiarnination has categorically stated statement has not disclosed that he _ saW"'the.':inc:icient with the help of moon light and the of the bus. Therefore it is highly difficult to that PW.2 saw the accused assaulting the T "deceased, The conduct on the part of PW.2 in not 25 disclosing the same to the kith and kin of the deceased would also improbablise his presence at the..__sce1';:éVg. of occurrence. Having .regard to above ""~factf_s- in and' circumstances of the case, the {carried Sessi-ons.uJVudge"~ in our considered opinion.,_ hash'-rightly rejected":
testimony of PW.2. There is'V"1=3.:(:.)V'»i1legaiity:'orV' irregularity committed by the learned in regard.
18. The "caseyof the deceased had made a and 4 has also t'he..lea1ned Sessions Judge havinglvvregardvtlo the incident took place at about 8. and 4 reached the scene of ._Vocc,ui«Tenceup.at nearly about 1.45 hours after inc1dent{a11.d the deceased was profusely bleeding head injury. PW.6 who conducted the 'gpost mortem examination has stated in the cross-
' '*:lfexarnination that as and when there would be hemorrhage of blood patient would go on reaching semi conscious stage and ultimately he goes to unconscious v I. 26 stage. Having regard to medical evidence on record the nature of the injuries sustained by the is highly probable that he was not in a position' it when PWs.i and 4 reached the';sceri€._ Of OCcur_rei'1c'e.1."'. Therefore, the learned Sessions Judge is '1t1Astvified=-- in g, I A D 7.1.-. A ' holding that the deceased wasiiot in a statement when scene of occurrence as such said to have been be relied upon.
We find no learned Sessions Judge tine
19.'Though' to the prosecution CWs.3 were eye witnesses, they have not been examined before Cit)-11_rt. The perusal of the records of the Judge indicates that CW8. 3 and 4 'VVappe'ar.edyVb'et"ore the Court pursuant to the summons "..fissue.d te them. They were present on 27.11.2000 on day the case was set down for trial. On that day CWs. I and 5 were examined. However examination of 27 other witnesses were not taken up probably for want of time. Therefore they were ordered to be bound directed to appear on the next day i.e., on ' As could be seen from the-' ""o1"~d.er Vda_ted'~..p 3' 28.11.2000, on that day also before the Court. However, it"is:V"noted in th.e''_orVder''sheet 3' that the learned pub1ic'~prosecutor. that CWs.
3, 4 and 6 are won they are not supporting the therefore he gives up evidence of CWs. 3 and notflvforthcoming as to how the prosecutor' came that CWs. 3 and 4 have been won" 'over by the accused. There is no circurnstance to indicate that those witnesses have been the accused. Nevertheless the Court is dep'rive'd. the evidence of CWs. 3 and 4» as to the 'al1e_ged'" incident. Thus the material witnesses having lnotllllbeen examined before the court, and once the "evidence of PWs.2 is eschewed from consideration as 28 unreliable, there is no other evidence placed on record to establish the complicity of the accused. evidence of PW's. 6 indicates that the was on account of shock and heI,norr_hage'«_as'a._result'of head injury, the evidence onetrecord do not satisviactorily and convincingly indicate sustained head injury on aeCo'uri't. by the accused. Therefore, the also do not satisfactorily of the deceased was the learned Sessions Judge . cleience theory is highly probable; the discussion made above, _ we are" of the that the judgment of learned Sessions :.Judge do not suffer from any perversity or Sessions Judge has properly
--V appreciated' the evidence on record and has come to the "_jeorre.ct conclusion that the prosecution has failed to the guilt of the accused. We have no reason to " "differ from said opinion formed by the learned Sessions 3*-
29 Judge. In this view of the matter the appeal has no merit.
20. Accordingly, the appeal is dismise'ed;AAe:VV: V' judgment of acquitted passed by 2 Chikmagalur, dated 22.1 1.2001 ini'~SA;C.Nb5v_i08;V9§\"fieR hereby confirmed. pp xii a i'a3U-DGE RS/*