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Judgment
Mohan M. Shantana Goudar, J.—The judgment and order dated 27.08.2011 passed by the Fast Track Court-I, Koppal, in S.C. No. 6 of 2011 is the subject matter of these two appeals.
Criminal Appeal No. 2792 of 2011 is filed by the convicted accused Nos. 1 and 3 whereas Criminal Appeal No. 2567 of 2012 is filed by the State against the judgment and order of acquittal passed by the trial court acquitting the accused for the offences punishable under Sections 323, 324, 302, 307, 504 and 506 read with Section 34 IPC.
The four accused were tried for the offences punishable under Sections 323, 324, 302, 307, 504 and 506 read with Section 34 IPC. The trial court convicted accused Nos. 1 and 3 for the offence punishable under Section 304 Part II IPC and sentenced them to undergo rigorous imprisonment for six years and to pay fine of Rs. 3,000/- each. By the very judgment, accused Nos. 2 and 4 are acquitted.
It is relevant to note that Criminal Appeal No. 2792 of 2011 is filed by both the convicted accused i.e., accused Nos. 1 and 3 and Criminal Appeal No. 2567 of 2012 is filed by the State against all the accused i.e., accused Nos. 1 to 4. During the pendency of these appeals, the convicted accuse No. 1, namely Bhagappa, has expired. Hence, Criminal Appeal No. 2792 of 2011 abates insofar as it relates to Bhagappa is concerned, so also, Criminal Appeal No. 2567 of 2012 filed by the State abates as against Bhagappa. Despite the same, both the appeals survive for consideration in respect of other accused.
The case of prosecution in brief is as follows:
Accused No. 1 and deceased Purasomappa are genitive bothers; deceased was a drunkard; he used to quarrel with the accused on one pretext or the other after consuming liquor; despite warnings, the deceased did not mend his conduct. When the facts stood thus, at 9.30 p.m. on 19.10.2010, all the accused came to the spot at Adapur village with an intention to pick up quarrel with Ramesh, Laxman, Yankamma and Purasomappa (i.e., PWs-1, 4, 5 and the deceased respectively) and abused them in filthy language; the accused threatened them with dire consequences; amongst them, accused No. 1 had held club and assaulted the deceased, whereas accused No. 3 was holding axe and he wielded it against the deceased, consequent upon which, the deceased sustained major injury on his head and fell down. The injured was allegedly taken to local hospital and thereafter, to VIMS Hospital, Bellary, wherein he succumbed to the injuries on 22.10.2010, while he was undergoing treatment.
In order to prove its case, the prosecution in all examined 24 witnesses and got marked 29 exhibits and 10 material objects. No evidence is let-in on behalf of the defence.
The trial court, on evaluation of the material on record, as aforementioned, acquitted accused Nos. 2 and 4 and convicted accused Nos. 1 and 3 for the offence punishable under Section 304 Part II IPC.
Sri Neelendra D. Gunde, learned advocate for the accused in Criminal Appeal No. 2792 of 2011, taking us through the material on record, submitted that all the three eye-witnesses i.e., PWs-1, 4 and 5 are wife and sons of the deceased; the prosecution has not come out with the real facts; it has suppressed the real story; evidence on record clearly reveals that the deceased was in a position to talk even on the next day and that he went to police station at the time of Seizure Panchanama; the suggestion put to PW-4 by the Prosecutor itself clearly reveals that the deceased was healthy even on the next day of incident. There is no intention on the part of accused No. 3 to commit the murder of anybody much less, the deceased; it was accused No. 1 who had some motive as against the deceased and not accused No. 3. According to him,'' the appreciation of evidence on record by the trial court is not just and proper and this has lead to miscarriage of justice.
Sri M.B. Gundawade, learned advocate appearing for the accused in Criminal Appeal No. 2567 of 2012 also supported the arguments of Sri Neelendra D. Gunde.
Per contra, Sri V.M. Banakar, learned Addl. SPP, submitted that the trial court is not justified in convicting accused No. 3 for the offence punishable under Section 304(II) IPC. It ought to have convicted him for the offence punishable under Section 302 IPC. He further submits that the weapons used, the place of assault chosen by the accused and the force with which the weapons are used would clearly reveal the intention on the part of accused No. 3 to commit the murder of deceased. Thus, according to him, the trial court should have convicted accused No. 3 for the offence punishable under Section 302 IPC.
PW-1 is the complainant. He lodged information as per Ex. P-1. He is an injured eyewitness. Though he has suffered simple injury, it is incise in nature. Ex. P. 16 is his Wound Certificate. PW-2 is the witness for the scene of panchanama, Ex. P. 2 under which M.O. 9 and M.O. 10 i.e., axe and club were seized PW-3 is the witness for panchanamas Exs. P. 3, 4 and 5. Ex. P. 3 is the photograph of the scene of offence, Ex. P. 4 is the inquest panchanama and Ex. P. 5 are the photographs of the dead body. PW-4 and PW-5 are the injured eyewitnesses. PW-4 is the son of the deceased and his wound certificate is at Ex. P. 17. PW-5 is the wife of the deceased and she is also injured. Ex. P. 18 is her injury certificate. PWs-6, 7, 8, 9, 10 and 12 though are eyewitnesses have turned hostile. Their evidence is of no use either to the case of the prosecution or to the defence. PW-11 is the Panchayat Development Officer who has issued the house extract of the deceased in front of which the incident has taken place and Ex. P. 14 is the extract. PW-13 is the doctor who examined and treated all the injured as well as the deceased. He has deposed about the injury sustained by the three injured i.e., PWs-1, 4 and 5 as well as the deceased. PW-14 is the Police Constable who has taken the First Information Report to the jurisdictional Magistrate. PW-15 is the witness for Seizure Panchanama Ex. P. 22 under which the clothes of the deceased and PW-1 were seized. M.Os. 1 to 4 are the clothes of PW-1 and M.Os. 5 to 8 are the clothes of the deceased. PW-16 is the Police Constable who has taken the articles to Forensic Science Laboratory. PW-17 is the Police Constable who searches for accused No. 2. His report is at Ex. P. 25. PW-18 is the Assistant Sub-Inspector of Police who prepared the inquest panchanama as per Ex. P. 4. He received the death report as per Ex. P. 20. PW-19 is another Assistant Sub-Inspector of Police who registered the First Information Report as per Ex. P. 1 in Cr. No. 125/2010 of Kanakagiri Police Station. He sent the FIR as per Ex. P. 19 to the jurisdictional Magistrate. PW-20 is the Police Constable who searched accused No. 2. PW-21 is the constable who arrested accused Nos. 1, 3 and 4 on the next day i.e., on 20.10.2010. PW-22 is the witness who deposed about seizure of clothes under Ex. P. 22 but he has turned hostile. P.W.-23 is the doctor who gives the opinion after examining the weapon/axe as per Ex. P. 27. PW-24 is the Investigating Officer who completed the investigation and filed the chargesheet.
It is relevant to note that the doctor who conducted the Post Mortem examination is not examined in this case. However, the Post Mortem report is marked as Ex. P. 21 in the evidence of the Investigating Officer. So also, the Forensic Science Laboratory''s report is marked as Ex. P. 29 in the evidence of PW-24.
We find that not even a single effort is made by the prosecution to send summons to the doctor who conducted the Post Mortem examination over the dead body. There was no reason as to why, not even an attempt is made to secure the presence of the doctor. The charge is for the offence punishable under Section 302 of IPC. The prosecution should have conducted its case in all seriousness. If the doctor is no more, if the doctor is working somewhere outside India or in a different State etc., a memo to that effect should have been submitted by the Prosecution before the Court. At least, the Court should have suo-motto issued summons to the doctor. In the matter on hand, unfortunately, no attempt whatsoever is made either by the Court below or by the Prosecutor to secure the presence of the doctor.
The case of the prosecution fully rests on the ocular testimony of PWs-1, 4 and 5. PWs-1 and 4 are the sons of the deceased and PW-5 is the wife of the deceased. All the three, according to the prosecution are the injured eye witnesses. PW-1 has deposed that Accused No. 3 assaulted the deceased on his head by using axe. He has also deposed about the overt acts of accused Nos. 1, 2 and 4 on the other injured. As aforementioned, accused No. 1 was holding the club and he also'' assaulted the deceased on his ribs. Since accused No. 1 is no more, no useful purpose will be served in explaining the case against him. But the fact remains that the evidence of PW-1 clearly reveals the overt act: on the part of accused No. 3. His evidence fully supports the case of the prosecution that accused No. 3 came to the spot with axe and assaulted the deceased on his head. Despite, cross-examination by the defence, nothing is elicited by the defence for discarding/disbelieving the evidence of PW-1. Even in the cross-examination, PW-1 has reiterated the overt act of accused No. 3 by specifically deposing that he assaulted the deceased on his head. Evidence of PW-1 is fully supported by the evidence of PW-5. Both these witnesses have also consistently and cogently deposed that it was accused No. 3 who was holding the axe and who assaulted the deceased on his head with the axe. It is no doubt true that they have deposed about the overt acts of other accused also. But, we find consistency in the evidence of these witnesses regarding the assault by accused Nos. 1 and 3.
PWs-1, 4 and 5 have consistently deposed about the overt acts of accused No. 3 to the effect that he assaulted the deceased on his head with the axe. We find that the evidence of these witnesses is believable and Consistent. Their evidence fully supports the case of the prosecution to the effect that accused No. 3 assaulted the deceased on his head with the axe. It is relevant to note that the defence has not disputed that the deceased and other injured had sustained injuries. However, the defence of the accused is that the deceased as well as the injured had sustained injuries in a different incident. For such a defence taken by the accused, there is not even a solitary supporting material on record. The suggestion made to the accused in that regard is denied by the prosecution witnesses.
The evidence of PWs-1, 4 and 5 is supported by the Post Mortem report Ex. P. 21. The Post Mortem report specifies that the death is due to coma as a result of head injury sustained. The Post Mortem report also mentions that the right side of the skull underneath the external injury measuring an area of 13 cms X 9 cms is removed surgically. The external injury as described in the Post Mortem report mentions that the deceased had sustained ''U'' shaped wound which is sutured on right frontoperieto temporal region of head and the same measures 21 cms in length. It is relevant to note that the contents of Post Mortem report are not disputed by the defence.
It is no doubt true that the doctor who conducted the Post Mortem examination is not examined before the Court in support of the Post Mortem report. In this context, Sri Gunde, learned advocate for the accused insisted that the Post Mortem report cannot be relied upon at all inasmuch as, the same is not supported by the evidence of the doctor. Unfortunately, as aforementioned, in the matter on hand, the Post Mortem report is produced and marked through the Investigating Officer and not through the concerned doctor. However, the contents of the Post Mortem report are not disputed by the defence. In that context, it is relevant to note the dictum laid down by the Full Bench of this Court in Boraiah alias Shekar Vs. State, wherein this Court ruled that the Post Mortem report filed by the prosecution under sub-section (1) of Section 294 of the Cr.P.C., whose genuineness is not disputed by the accused may be read as substantive evidence under sub-section (3) of Section 294 of Cr.P.C. In the matter on hand also, since the genuineness of the Post Mortem report is not disputed, the trial Court is justified in relying upon the Post Mortem report for coming to the conclusion.
PW-23 the doctor has opined that the weapon/axe M.O. 9 can cause the injury sustained on the head of the deceased.
It is the specific case of the prosecution that the injured/deceased went into coma immediately after the incident at 9.30 p.m. on 19.10.2010 and that he did not come out of coma till his death. So also, it is further case of the prosecution that immediately after the incident he was taker: to the ''hospital at Kanakagiri and thereafter to VIMS Hospital, Bellary, wherein the deceased succumbed to the injuries. Curiously, the doctor who examined the deceased at the first instance at 9.30 p.m. on 19.10.2010 has deposed before the Court that the injury sustained by the deceased on the head was having 18 cms length, 12 cms depth and 2 cms breadth. He sutured the said wound at 9.30 p.m. on 19.10.2010 itself and instructed the injured to go to Gangavathi hospital for further treatment. We are at loss to understand as to how this doctor can come to the conclusion that the injury was having 12 cms depth. The doctor who could measure the depth of the injury is the doctor who conducted the Post Mortem examination. Unfortunately, the said doctor is not examined. Even the Post Mortem report does not disclose the depth of the injury as 12 cms. It merely mentions the length of the injury as 21 cms. In this view of the matter, the evidence of PW-13 appears to be highly exaggerated. He is not the doctor who conducted the Post Mortem examination. There was no occasion for him to measure the depth of the injury. The depth is not of small dimension but it is a huge depth of 12 cms i.e., almost about 8 inches or 9 inches. The said doctor also has not deposed that the victim was in coma. Another doctor who is examined before the Court is PW-23. In his examination-in-chief, she has deposed that she examined the injured/deceased at 9.30 p.m. on 20/10/2010 and he had sustained the bleeding injury. She has also deposed that the injury was ''U'' shaped and it was having 20 to 22 cms length and that she referred the patient to VIMS Hospital, Bellary. If the examination-in-chief of PW-23 is to be believed, then the victim did not take treatment at VIMS Hospital on 20.10.2010 but he had taken treatment at Kanakagiri hospital. However, in the cross-examination, she has taken ''U'' turn in cross examination by deposing that the injury was not sutured as it was an open injury. Curiously, she has further deposed that the deceased was not brought to her for examination on 20.10.2010 and that she has deposed in a confused state of mind.
Be that as it may. The overall evidence of PW-23 would reveal that the injured must have been taken to Kanakagiri hospital and from that place, he was shifted to VIMS Hospital. Therefore, the defence is justified in arguing that even on 20.10.2010, the victim was not in coma and the injury was not stitched till 20.10.2010.
A suggestion is made by the prosecutor to PW-22 to the effect that PW-1 and deceased had come to police station on 20.10.2010 wherein the clothes of the deceased were seized under the Panchanama Ex. P. 22 which clearly means that the deceased was not in coma on 20.10.2010 i.e., on the next date of the incident also. In addition to the same, another witness PW-15 who has deposed about the Seizure Panchanama Ex. P. 22 relating to clothes of the deceased has deposed that the deceased was present in the hospital on 20.10.2010 and that the deceased was conscious and was talking; the deceased himself took out his clothes and handed over at the time of panchanama.
The aforementioned facts reveal that the deceased was not in coma immediately after the incident. But he was conscious at least on the next day and he himself went to police station and produced his clothes.
Though the evidence of PWs-1, 4 and 5 is consistent and reliable and reveal that it was accused No. 3 who caused the death of the deceased, the trial Court, in our considered opinion is justified in concluding that accused No. 3 has committed the offence punishable under Section 304(II) of IPC. It is no doubt true that he has used the axe and has chosen the vital part. But, the aforementioned circumstances and the evidence of PWs-15 and 22 as well as the confusing answers given by the doctors who treated the victim would lead to suspicion in the mind of the Court as to whether it is a case of murder or not.
The deceased was a drunkard and he used to pick up quarrel with the accused every now and then. On the date of the incident also, there was altercation between the accused and the deceased and immediately the accused started assaulting the deceased. Though the evidence of the prosecution at the first look leads to the conclusion that accused No. 3 has committed the offence of murder, but, on meticulous examination of the entire material on record, we find that the conclusion reached by the trial Court is just and proper. There is no reliable material on record to show that the injury sustained by the victim would cause death despite taking immediate treatment, looking to the totality of the facts and circumstances, we are of the opinion that no interference is called for in the conclusion reached by the trial Court.
Though Sri Neelendra Gunde, learned'' advocate for the appellant in Crl. A. No. 2792/2011 argued for reduction of sentence, such submissions cannot be accepted. The trial court, as a matter of fact, has taken a lenient view while imposing the sentence. There is no scope for this Court to reduce the sentence further having regard to the facts and circumstances of the case.
Hence, the following order is made:
Both the appeals fail and the same are dismissed.