K.H. Shekarappa & Others vs State Of Karnataka

3. This is one such case which brings to light an incident in which two persons lost their lives and others were injured while in police custody. The facts emerging from the record of the case are as under:

4. On committal of the case, the learned Sessions Judge framed charges against the appellants Nos. 1 to 7 for commission of offences punishable under Sections 143, 148, 341 read with Section 149 IPC, Section 326 read with Section 149 IPC and Section 302 read with Section 149 IPC. Later on it was revealed that original accused Nos. 8 and 9 had also played role in the incident and, therefore, they were arrayed as accused in the case and were charged along with the appellants Nos. 1 to 7. As all the accused denied the charges and claimed to be tried, they were tried in Sessions Case No. 14 of 1988.

7. Feeling aggrieved, the appellants filed Criminal Appeal No. 455 of 1995 whereas the original accused No. 8 filed Criminal Appeal No. 456 of 1995 before the High Court of Karnataka, Bangalore. The matters were placed for hearing before the Division Bench comprising M.F. Saldanha and S.R. Bannurmath, JJ. Mr. Justice M.F. Saldanha was of the opinion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, therefore, they were entitled to acquittal. Mr. Justice Bannurmath expressed the view that conviction of the appellants recorded by the learned Additional Sessions Judge was well founded and, therefore, the appeals deserved to be dismissed. In view of the fact that the learned Judges of Court of Appeal were equally divided in their opinion, the appeals with their opinions were laid before another learned Judge of that Court. The third learned Judge of the High Court of Karnataka, after hearing the parties and considering the record of the case, delivered his opinion mentioning that the guilt of the appellants was proved, but they had not committed offences punishable under Sections 143, 148, 326, 218 and 302 read with Section 149 IPC but had committed offences punishable under Sections 304 Part II and 324 both read with Section 34 IPC for having caused death of two persons Rajakumar and Gurumurthy and causing hurt to injured Prakash respectively. The learned Judge further opined that the appellants should be sentenced to R.I. for one year each and fine of Rs.5,000/- in default R.I. for two years for commission of the offence punishable under Section 304 Part II read with Section 34 IPC. The learned Judge was of further opinion that no separate sentence was needed to be awarded for conviction of the appellants under Section 324 read with Section 34 IPC. The learned Judge was also of the opinion that on realization of the entire amount of fine from the appellants, the same should be paid to the heirs of the two deceased in equal proportion by way of compensation. The opinion rendered by the third learned Judge of the High Court was laid before the Division Bench of the High Court. The judgment delivered by the Division Bench of the High Court has followed the opinion expressed by the learned third Judge, giving rise to the instant appeal.

9. The fact that the deceased Rajakumar died a homicidal death is not disputed before this Court. Dr. O.A. Mahipal (PW-1) has stated that on January 13, 1988 at about 4.40 P.M., he had received a requisition from the concerned Police Station to conduct the Post Mortem examination on the dead body of the deceased Rajakumar. According to him he had performed autopsy on the dead body of the deceased on January 14, 1988 between 8.20 and 10.00 A.M. and found following injuries: -

29. Two burnt out areas, one transversely placed 2" x _" and another longitivenely placed 2" x +" both present over the middle of the anterior aspect of left thigh.

According to the Medical Officer, the cause of death of the deceased was shock as a result of the multiple injuries sustained by him. The Medical Officer is completely corroborated by the contents of Post Mortem report produced on the record of the case as Exh. P-9. The doctor further opined that clotting of blood found in the joints as per (a) to (e) would be due to the assault by the sticks like MOs 1 to 3 whereas the burn injuries that were found on the dead body could be caused by any heated substance like metal or rubber tyre. The Medical Officer further explained that a single fall would not cause such injuries that were sustained by the deceased. It was explained by him that individually the injuries were simple, but collectively they could cause the death of an individual. In cross- examination also the Medical Officer maintained that the cause of death was shock as a result of multiple injuries. What is important to be noticed is that it was further stated by him in cross-examination that the said injuries could not have been caused simultaneously. After mentioning that the age of the injuries sustained by the deceased Rajakumar were ranging from 24 hours to four days, the Medical Officer stated that the age of injuries were mentioned by him on the basis of colour of the injuries. The doctor further stated that the death of the deceased might have been caused about 24 hours prior to the commencement of the Post Mortem examination. According to the doctor, it was a case of rapid death due to injuries sustained by the deceased Rajakumar. On reappraisal of the evidence of the Medical Officer this Court finds that the Sessions Court and the High Court were justified in concluding that the deceased Rajakumar had died a homicidal death.

10. Similarly, the testimony of Dr. Dodda Gowda (PW-2) shows that on January 13, 1988 he had received a requisition from the Sub-Divisional Magistrate, Shimoga to conduct the Post Mortem on the dead body of deceased Gurumurthy and that on the same day he himself with Dr. Srinivasa had conducted Post Mortem on the said dead body between 4.15 P.M. and 5.45 P.M. According to the doctor the Post Mortem examination had revealed following injuries: -

The testimony of the Medical Officer Dr. O.A. Mahipal, examined as PW-1, further shows that at 4.45 P.M. on January 13, 1988 he had examined one Nallakumar, who was referred to him for treatment. According to the Medical Officer the injured had mentioned history of assault by the police with rubber, rod and lottis on December 31, 1987 at 1.00 P.M. at Gopi Circle, Shimoga and that he had recorded the same on the medical papers. The doctor has further mentioned that on examination he had found following injuries on the body of Nallakumar: -

The Medical Officer has further stated that the injured was advised X-ray but the X-ray revealed no fracture. The witness mentioned that injured Nallakumar was treated as an indoor patient till January 21, 1988. It was further mentioned by the doctor that injuries Nos. 1 to 4 were simple in nature caused due to external violence with hard and blunt objects and that the injuries might have been caused by the sticks like MOs 1 to 3. The doctor explained that the age of injuries Nos. 1 and 4 was about one week whereas injury No. 2 was two days old and injury No. 3 might have been caused within 24 hours.

The doctor has further mentioned that the injured was advised to go for X- ray examination and the report of the said examination did not reveal any fracture, but another X-ray was taken on January 16, 1988, report of which showed incomplete fracture of the head of left fibula. The Medical Officer explained that injury No. 1 was simple in nature whereas injury No. 2 was grievous. According to the doctor, the fracture found in injury No. 2 was separately marked as injury No. 3 in wound certificate and it was grievous.

12. It is to be noted that the appellants were charged for causing custodial death of the two deceased and injuring the three injured. The evidence in this case can be divided into two parts - (1) direct evidence relating to the incident and (2) circumstantial evidence. To begin with, this Court proposes to consider the evidence relating to topography of the premises where Doddapet Police Station is located. In this regard the prosecution had examined D. Dharmappa Shetty (PW-3). His evidence discloses that on January 16, 1988 Assistant Executive Engineer had issued instructions to him to prepare a sketch of the place of occurrence, i.e., the verandah in front of the lock-up room of Doddapet Police Station. According to him on January 2, 1988 he had visited the spot shown to him by P.S.I. Varadaraj and prepared the sketch, which was produced by him at Exh. P-17. The witness explained that the sketch was prepared as a rough sketch showing the existing pillars, the verandah, etc. The witness mentioned that there was a verandah in the Police Station and it had a door which opened into a space situated in front of the two toilets. The witness mentioned that the stone pillars were supporting the room and the pillars on the south of the verandah were high and separated from each other by 3.20 meters. According to him he had seen the pillars from within the lock-up room of the Police Station and it was possible for one to see only one central pillar from the lock-up room, but from the eastern door of the Sub Inspector's room all the four pillars were visible. In the cross- examination he admitted that on one extreme side of the verandah there was a room of the Sub Inspector and to the north of the entire premises there was a Taluk office. According to him the width of the verandah was 1.20 meters and from the door, the central pillar was almost at a distance of about 2 meters or 6 feet. In cross-examination the witness clearly mentioned that from the lock-up room one pillar was visible. From the testimony of this witness it becomes at once evident that the door was fixed on the dividing wall of the verandah and the lock-up room and therefore, there could have been difficulty for a person to see the stone pillar between the central pillar and the pillar next to it supporting the room on the eastern side.

15. Similarly, the prosecution had examined injured Purushotham to prove its case against the appellants. However, this witness did not support the prosecution case.

18. On the facts and in the circumstances of the case this Court is of the opinion that the appellants have not been even remotely able to probablise their defence and, therefore, the well recorded conviction of the appellants as well as sentences imposed upon them for commission of those offences will have to be upheld.

19. For the foregoing reasons the appeal fails and is dismissed.