IN THE HiGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 2nd DAY OF DECEMBER 2011 PRESENT THE HON’BLE MRJUSTICE MOHAN SHANTANAGOUDAR AND THE HON’BLE MRJUSTJCE RAVI MALIMATH CRIMINAL APPEAL No. 2886/2010 BETWEEN: Mallappa, s/o Bheemappa Kitagannavar, age 37 years, 0cc: agriculture, r/o Masakatti Dist. Koppal. APPELLANT [By Sri, K.L. Patil, adv.j AND: The State of Karnataka Represented by State Public Prosecutor. This crmnai appeal is tIled under dection 3i4() ci Cr,PC. seeking to set aside the judgment and order of conviction dated 8.9 2010 by the Fast Track dud cc, Koppal in S.C. No.62 /2008 thereby convicting the appellant, for the offences P/U,’S 302, 307 and 324 of 1PC, This criminal acpeal is coming on for hearing dam MOHAN SHANTM4GOUDAR J.. delivered ..oiOWifl&i: :2: The convicted accused in Sessions case No.62/2008 by Fast Track Court-I, Koppal, has filed this appeal against the judgment and order of conviction. 2. The appellant as well as another accused by name Parappa were charged with the offences punishable under Sections 302, 307, 324 and 109 read with Section 34 of the Indian Penal Code. 3. The case of the prosecution in brief is that the appellant herein used to quarrel with his wife Shavakka very often. The deceased Doddayallappa used to conduct panchayath in the village. So Shavakka used to approach Doddayallappa seeking advice to accused No.1. The deceased Doddayallappa had advised the accused to behave properly with his wife. In this context, the appellant was suspecting that his wife Shavsklca had illicit relationship with the deceased Doddayauappa and therefore Doddayallappa is protecting Shavakka. Apart from that, there was an incident of sheep grazing in thc land of V) :3: Subbappa. The sheep were belonging to one Sharanappa. In that context, the deceased and other elderly persons in the village resolved that Sharanappa should pay certain amount of compensation to Subbappa. In that regard, Mahadevappa(brother of appellant herein) had become unhappy as he had sided Sharanappa. In this view of the matter, Mahadevappa as well as accused No.2 namely Parappa(acquitted by the trial Court) conspired with the appellant(accused No.1) to kill Doddayaflappa. On the date of the incident itself Mahadevappa(accused No.3) died by committing suicide fearing that the police are going to arrest him because of the murder of Doddayallappa. 4. It is the further case of the prosecution that on the date of the incident i.e. on 19/07/2008 at 7.00 a.m., deceased Doddayallappa had gone for answering the nature call to a land adjoining the village. PW- 11 namely Sharanappa had also gone to the adjoining land to answer the nature call. The distance between the place where the deceased Doddayallappa and Sharanappa were sitting was about 300 feet At that point of time, the appellant herein came there holding an axe(M.O.6). The appellant :4: immediately grappled with the deceased and tried to assault him with an axe whereas Doddavallappa was trvinL to snatch the axe form the hands of the appellant. Seeing the incident, immediately, PW ii Sharanappa ran away towards his house. The house of Susheelavvasister of the deceased Dodda’allappa is in front of the house of PW 1 1. PW- 1 1 informed Susheelavva about the aforementioned fact. Susheelavva went to the spot and found the dead body of her brother. However, she saw accused No. I holding an axe. She went to her house, thereafter. After hearing the news from PW6, Renavva PW4, PW6, Sannayallappa-PW-12 and other witnesses went to the spot wherein accused No, 1 was holding an axe. After seeii.g PWi2(Sannayallappa), who is the younger brother of Doddayallappa, the appellant pronounced that he has finished Doddayallappa just by then and he would finish him also. So saying, the appel.lant went near PW 12 and assaulted him with an axe, consequent upon which, pW 12 sustained certain injuries. PW6 son of deceased went to police Station and iod.ged a corn laint ax pci E.xP3. PW9 who was present fri the lice sta.tion intrcdu ed . - - idCOd(J(. xETLDIUiiti11 t::i riandi WI Lifldi o.: police constable and registered the case in Crime No,69/2008 of Hanurnasagar Police Station. The police after investigation laid the charge sheet, On the date of the incident itself, the appellant is arrested. The police recorded further statements of the complainant and other witnesses in which it has come on record that accused Nos,2 and 3 had conspired with accused No. 1 for commission of murder. 5. In order to prove its case, the prosecution in all examined 22 witnesses and got marked 16 exhibits and 10 material objects. On behalf of the defence, 4 exhibits were marked. The trial Court on evaluation of the material on record, convicted the appellant herein and acouitted accused No,2. As aforementioned, on the date of the incident itself, accused No,3 committed suicide by hanging. 6. Sri. Patil. learned counsel appearing on behalf of the aioneiiant submita that. the case of the prosecution is improved before the Court inasmuch as the origin and genesis of the matter is suppressed by the prosecution; that a typed ccmpiaint recorded. by the police much prior to j•p 3 is suppressed deliberately: that the. poi.ce had arrfvecl to r I :6: the scene of offence at 7.30 a.m. itself on the date of the incident whereas the alleged complaint Ex.P-3 came to be filed at 9.30 a.m.; though the complaint is lodged at 9.30 a.m., First Information Report reaches the Court at about 7.00 p.m. on that day; no explanation is forthcoming from the prosecution regarding delay in respect of the time taken in submitting FIR to the jurisdictional Magistrate; that the jurisdictional Magistrate Court and home office is situated about 17 kilometers from the scene of offence; the names of eyewitnesses and PW-13 are not mentioned in the first information report; that the time of death of the deceased is doubtful, as according to him, the death must have occurred somewhere in the mid night intervening between 18 and 19/07/2008; the doctor who conducted postmortem examination has failed to definitely say as to whether the injuries over the dead body were anti mortem or post mortem; the evidence of the witnesses relating to second incident of alleged assault on PW-12 is also doubtful inasmuch as PW-12 has suffered abrasion and internal paiji; that the presence of PWs. 11 and 13 is not spoken to by any of the material witnesses. On these and among other grounds, he prays for setting aside the order of conviction. 4 :7: 7. Sri. Banakar, learned Additional State Public Prosecutor argues in support of the judgment and conviction by contending that the evidence of PWs. 11 and 13 coupled with the version of PWs.4, 6 and 12 are sufficient to conclude that the appellant has committed the murder of the deceased. 8. PW-l is the daughter of the injured Sannayallappa. She goes to the spot after hearing the news wherein she saw the appellant threatening the public at large by holding an axe. Shc has deposed about the assault on Sannayallappa (PW-12). PW-2 allegedly went to the spot along with Sannayallappa on the bicycle. He has turned hostile. PW-3 is the person who is stated to have snatched the axe from the hands of the appellant. He has also turned hostile. PW-4 is the daughter of PW-12. She saw the dead. body of the Doddayallappa over the spot in question and informs the same to the villagers including PW-12. PW-5 is the daughter of the deceased. She also deposes about the second incident regarding assault on Sannayallappa. PW-6 is the son of the deceased. He also went to the spot and saw the accused threatening the people. He has laid a complaint I :8: as per Ex.P-3. He has also spoken about the motive for commission of the offence, He has also deposed about the quarrel between PW. 12 and the appellant. PW-7 is the hear say witness whose version is not of much importance. PWs.8 and 9 are the police constable and head constable respectively who have participated in the investigation. PW lOis the mahazar witness for panchanama Exs.P-5 and P-9. All the mahazars were conducted from 1.00 p.m. to 5.00 p.m. on the venj day. PW- 11 is the eyewitness to the incident. PW-12 is the injured and is the brother of the deceased. He has deposed that after hearing the news, he went to the spot on the bicycle of PW-2. He has stated about the assault on himself by the appellant. PW-13 is the sister of the deceased who was informed about the incident by PW 11, immediately after the occurrence of the incident. After hearing the news, she went to the spot and saw the dead body of her brother Doddayallappa. At that point of time, accused No.1 was at the spot holding an axe. Accused No.1 allegedly threatened PW-13 and she further deposes that the appellant came upto water tank and as she was feared, she ran towards her house. Curiously, she does not inform any body. PW- 14 daughter of the deceased speaks about the conspiracy between accused No, I and accused No 2 PW I is the hear say witness whose eidenee is of no use to the prosecution PW- 16 is a witness u ho wis exp cte I to speik about the motive, has turned hostile PWl7 is the head constable who participated in the Investigation PW 18 is the doctor who conducted postmortem examination on the spot. PW 19 is the engineer who drew the sketch of the scene of offence as per ExJ’- 13. PW 20 is the PSI iho registered the complaint based on the complaint ‘if PW 6 PW 21 is the Investigating officer, who laid the charge sheet after completion of the investigation PW2 1 has partly investigated the crime PW-22 is the doctor t ho treated the injured PW 12 and issued wound certificate as per Ex P 15 9 From the abot e t s lear that the c of tI e prosecution maml3 N sts on h e den P ‘icr-i spc he ‘is n at nr Grit C Iciec r ,c 1 rdij C a r C 2 10: was. PW- 11 saw the appellant grappling with the deceased holding an axe in his hand and the deceased was trying to rescue himself by snatching the axe. PW- 11 thereafter ran towards his house and on his way, he informed PW-13 Susheelavva-sister of the deceased and PW-13 came to the spot and found the dead body of Doddayallappa. She also found accused No.1 holding an axe. She was threatened by accused No.1. As she was feared, she also ran towards her house. Curiously neither PW-1 1 nor PW-13 did not meet any body on the way to their houses, though the time was about 7.00 a.m. to 7.30 a.m. 10. PW-13 being the sister of the deceased did not even inform the family members of the deceased about the death of Doddayallappa. The natural human conduct of the sister of the deceased would be to raise hue and cry on the spot itself or to inform about the incident to the relatives or friends, moreso the family members of the deceased. It is most unnatural conduct on the part of PW-13 in keeping quite till her statement is recorded by the police. She does not even inform her husband or her children in the house. PW- 11 in his cross-examination admits that his statement .11: was recorded on the next date of the incident However, the investigating officer has deposed before the Court that the statement of PW ii ‘s recorded on the vers date of thc incident. Since PW- 11 himself has admitted betore the Court that his statement is recorded on the next date of the incident, the same has to be gwen credence It really his statement is recorded on the teiy date of the incident, he ‘sould not have failed to depose so before the Court. There is no reason as to why the police did not record his statement on the date of the incident though he was very much prcsent m the village. 11. PWs. 1. 4. 5 and I’ have deposed that they caine to the. spot after hearing the ne’s s ccording ti thctn. al cd them vere nfoimed )v PW 4 Ru an j(dauhter A dec eased) ‘%othmg has come tn record o show hat Rcnavva v at iii )rri v i ly ad its by PVv a 1 d 3 tIn.e’cr. t’ 1. efl(,fl .,ffl’ •: . r 4 s tna’ flC tfl t .fl ••i 41 cvii ad ‘t’aa a’° . a aid ‘1 Dodda s’lia,.. ira ?:1L .%..‘lsta Ii.iCitI.s. ?fl ‘1’’ a ‘1 ( t • tr, a: ‘u• :4r a• t ••Ts .- •: .‘A ‘. 12: hearing the news from PW-4, other family members proceeded to the spot. All of them saw the dead body and also the accused holding an axe and the second incident of quarreling with PW-12-Sannayalappa. They also saw the assault on Sannayallappa by the appellant. None of these witnesses have seen the incident of assault on Doddayauappa-deceased. All these witnesses are eyewitnesses to the second incident i.e. assault by the accused on PW-12. Thus, their evidence is of not much use on the point that the accused had caused the death of Doddayallappa. However, it has come on record that the appellant threatened these witnesses by telling them that he has just by then killed Doddayallappa and that he would kill any body who comes in his way. None of the aforementioned witnesses including the villagers were dare enough to go near the appellant. However, PW-3 went near the appellant and snatched the axe. The said PW-3 has turned hostile. 1 la. As aforementioned, the case of the prosecution is that the complaint is lodged by PW-6 as per Ex.P-3 at about 9.30 a.m. and the investigation proceeded thereafter. But the police were present on the spot at 7.30 a.m. itself as ‘7> d 13: is clear from the evidence of PW-6. PW-6 himself is the complainant who allegedly laid the complaint at 9.30 a.m. but the police were already at spot at 7.30 a.m. i.e, two hours prior to the lodging of the complaint. From what source the police got the information about the incident is not disclosed by the prosecution. According to PW-6, the oral complaint lodged by him was reduced in writing by the police constable and as a matter of fact Ex.P-3 is hand written. But the same cannot be treated as an first information in view of the fact that the police(PW-9) had recorded the complaint by typing the same in the computer installed in the police station. Head constable attached to Hanumasagar Police Station(PW-9) has deposed that the complainant alone had come to the police station and the complaint was got typed in the computer installed in the police station. The complainant has signed such complaint which was typed so also the PSI had signed the type written complaint. PW-9 further has deposed that he is unable to identify the complaint at the time of giving his evidence. He has further deposed in the cross-examination that the FIR and the complaint were handed over to him by the PSI and he in turn handed over the same to the police constable by J) ‘C I 14: name Basavaraj (PW8) for taking it to the jurisdictional Magistrate. It is specifically deposed that he does not know as to whether the said complaint which has been sent w Magistrate was handwritten or tiped. That the prosecution has suppressed such typed complaint. The case is based on the handwritten complaint ExP-3 received in the police station at about 9.30 am. The prosecution has not explained as to what happened to the typed complaint and what was the material found in it, Had such typed complaint which was earlier prepared brought on record, the Court would have been in a better position to appreciate the real facts. The aforementioned facts clearly reveal that the prosecution has suppressed the origin and genesis of the case of the prosecution. The suppression of the first information which was typed assumes importanc:e in the light of the fact that the police had arrived at the scene of offence at 7.30 am, itself, which means that the police after getting the complamt lodged by PW-6 which came to be typed in t.he police station at 7.30 a.m. came to th.e spot immedjatelv. Hence, are deihnce counsel is lustided in arguing that the typed infor.mation was received by the police station prior to 7.30 a.m. itself and after receiving such 15: information police came to the spot. He is also justified in arguing that the averments made in the said complaint would be helpful and therefore, the said information is deliberately suppressed. 12. The aforementioned facts again will have to be looked into in the light of the fact that FIR reaches the jurisdiction Magistrate at 7.00 p.m. on the date of the incident. The distance between the police station and the jurisdictional Magistrate Court is about 17 kilometers. There is no reason as to why FIR reached the jurisdictional Magistrate after 10 hours of registration of the complaint By the time, the complaint reached the Magistrate, almost entire investigation was over. Accused was arrested at about 11.30 a.m. Panchanamas were drawn before 5.00 p.m. The statements of the witnesses were recorded. Investigation was done substantially prior to FIR reaching the Magistrate. Only, after investigation, the police went to JMFC and handed over the FIR to him. Complaint-Ex.P-3 and the first information report Ex.P-4 does not contain the names of the eyewitnesses. It does not even contain the name of PW- 13- sister of the deceased who allegedly went to the spot D 16: immediately after hearing the news from PW- ii and saw the dead body and the prcserue ol accused No. 1 near the scene of offence holding blood stained axe, According to PWi3, she was threatened by the accused but curiously her name also does not find place in the complaint lodged by PW6 who is the family member of PW- 13. 13. It is also curious to note the presence of PWs. 11 and 13 is not spoken to by any of the witnesses. Number of villagers including the relatives, who are witnesses in the matter, had arrived at the scene of offence and allegedly saw accused No. 1 holding an axe and threatening the public including PW12. All of them have allegedly saw the appellant assaulting the injured PW12. As aforementioned PW 13 though is the sister of the deceased did not inform even her husband including the family members of the deceased. 14. PSIPVv2U whc registerect the complaint has deposed that the complaint i.s given by PW6 and the same was scribe.d i.-y Kulkarni police constai..le. But. the said i.miice constable Kuikar.ni is riot examined. He is mmt even cited as a witn.ess in the charge sheet.. Moreover t.he . ./ • 17 evidern e of P’W 20 in n sped of writing the complaint bj police constable runs contia to the eiictcnce of the head constable(PW 9) of the police sttion wh. ;a tr in d present at the time of lodging the complaint. According U PW-9, the complaint was typed 15 In our opinion, the defence counsel is justified in arguing that the time of death of the decease d is doubtful According to the case f the prosecution the death has occurred at about 700 or 7.30 am on 19/07/2008 Postmortem as conducted about 3.21.) p.m. on the spot The doctot who conducted postmortem is PW 18 the cvidence on record c’lernl> reveals that the doctor ias summoned to the spot and postmortem tias conclu ted ciii die spy 1 ‘lIw i’efl fact t ha’ the postmoricm c’ &- co 1 duc tel ‘st the apot ni€ns that the LY%l1 ;tiLS, laflt. t c’—Il r ‘c np. e Ilic if ‘n a n n. te his ri .. ‘Lis : 1.’ ir,ttriztk fit’evdc-ic..it 1 ncI’ h deathi iii t,prjjg)o ti Ct - ciii I ‘0 tiC Li’ il I - i’i c ri ( 1$ 1’. 1 ‘C t I • 1 4 18: based on setting up of rigour mortis. He has admitted that rigour mortis has set in all over body. 16. Admittedly, the postmortem was conducted at 3.30 p.m.. The deposition of the doctor takes the time of death of the deceased to the previous date of conducting the postmortem i.e. 1½ days prior to conducting postmortem examination. Even otherwise, it is admitted by the doctor that it may take 12 hours for rigorous mortis to set in all over the body. In the matter on hand, the rigorous mortis had developed fully all over the body which means at least the death must have occurred 12 hours prior to the conducting of postmortem examination. These facts clearly reveal that the death must not have occurred at 7.00 or 7.30 a.m. on 19/07/2008. Since the death must have occurred much earlier, the body must have been decomposed. In this view of the matter, the doctor must have thought it fit to conduct postmortem examination on the spot. 17. If the evidence of the doctor PW-18 is perused meticulously, it is clear that the body had received only one injury on the neck. The doctor had admitted that the said 19: wound may occur if assault is by curved weapon from inside like sickle H has further admitted that wound is caused by a single blow by a weipon ft is not ‘n dispite that th ax M 0 6 is having both the edges bent backwards and not inside which means that the edges of M06 are bent outside and not inside. He has also clearly admitted that he has not mentioned in the postmortem report that the death was due to haemorrhagrc shock, He also cannot say that the injury on the neck of Doddayallappa(deccased) wa not caused when he was alive He has admitted that the causing of injury after death cannot be ruled out. From the above it is clear that the doctor himself is not sure whether the injur is antimortem or postmortem 18 It is admitted that a c us d No 3 Mahadtdpf ommuted sui td on he t er day The postmortt m xam nati ci I e Ic d , t se o t a bt C mA rancçi oe i Mahdei app c’ommitt d si cid c u e he 1 ad eaten tnat I rsec Is I flt a I 20 and not the appellant herein and because of fear of nrrest. Mahadevappa tommitted suicide 19. 11w motive alleged by the prosecution also goes iii respect ot Mahadeiappa inaoinut.h as he is aggrieved by the action of the deceased in imposing certain amount of penalty to Sharanappa who was belonging to Mahadevapp&s group 20. PWs. 1. 2. 4 to b ha%e merck deposed that thei saw the appellant assaulting PW 12. PW 12 has also deposed about the assault on himself. All thesc witnesses ban deposed that PW 12 has sustained bleeding injuric s and blood stained clothes of the mjurcd ere seized But n the matter n hand the police 1tnc, not a’ind tilt blew ( stnncd lothes ‘Ihe ci cUr vho trea ed PW i 1 1% 2. Etc wcurd cc’ iii it f P’W 12 s It t.cP Ii cuni c’t’iat s 1st dccc 13 c- ‘ PW 1 3 uI c oW • 1 io a Iat IW1 it. ‘ ,l c tin is r c ‘t,’cri 1th1 i U fr 1, t ,i ‘r e tc , . yt I t I • 4 4 . 4 :21: with the axe, at the most the appellant would be committing the offence under Section 324 of the Indian Penal Code for which the appellant