Siddappa and Others vs The State of Karnataka

H. Billappa, J—This appeal by the appellants/accused Nos. 1 and 2 is directed against the judgment and order dated 08.07.2010 passed by the District and Sessions Judge, Yadgin, in S.C. No. 42/2010.

By the impugned judgment and order, the learned Sessions Judge, Yadgiri has convicted the appellant-accused No. 1 for the offence punishable under Section 302 of IPC and has sentenced him to undergo imprisonment for life and to pay fine of Rs. 50,000/-. Appellant No. 2 and accused No. 3 have been convicted for the offence punishable under Section 114 R/W Section 302 of IPC and they have been sentenced to undergo imprisonment for life and to pay fine of Rs. 25,000/- each.

Aggrieved by that, the appellants i.e., accused Nos. 1 and 2 have filed this appeal.

The accused No. 3 had filed Crl. A. No. 3740/2010 and he died in the course of proceedings. Therefore, the appeal stands abated.

Briefly stated, the case of the prosecution is as follows:

"That PW.1 Smt. Holemma is the mother of the deceased Ningappa. She is the complainant. Ex. P1 is her statement. It is stated, the land of accused No. 1 Siddappa is situated adjacent to the land of the complainant. There used to be frequent quarrel. About one and half months prior to the alleged incident, it is alleged that the accused persons had put poison to the water used for drinking in a small pond. In this connection, the case is going on. About 15 days prior to the alleged incident, the deceased Ningappa had put fence to his land. In this connection, the accused persons had quarreled with Ningappa. About two days prior to the alleged incident, PW.1 had gone to Kaamanatagi village to see one Holeppa who was not well. Along with PW.1, PW.17 also had gone there. It is stated, on 02.10.2008, at about 4.00 a.m., PW.1 received a call from PW.12 Hulugeppa stating that the accused persons have killed the deceased Ningappa by throwing a stone on his head at abut 1.00 a.m. on 02.10.2008. Immediately, PWs.1 and 17 went to the spot and saw that the deceased had sustained injuries on his head and he was bleeding. Based on the statement of PW.1, a case in Crime No. 64/2008 of Narayanpur Police Station has been registered against the accused persons for the offence punishable under Section 302 R/W Section 34 of IPC."

After investigation, charge sheet has been filed against the accused persons for the offence punishable under Sections 302, 114 R/W section 34 of IPC.

At the trial, the prosecution has examined in all 23 witnesses i.e., PWs.1 to 23 and Exhibits P1 to P9 and M.Os. 1 to 7 have been marked.

On behalf of the defence, no evidence has been adduced.

The Trial Court on appreciation of the evidence on record has held that the appellant No. 1 is guilty of the offence punishable under Section 302 of IPC and has sentenced him to undergo imprisonment for life and to pay fine of Rs. 50,000/-. Appellant No. 2 has been convicted for the offence punishable under Section 114 R/W section 302 of IPC and she has been sentenced to undergo imprisonment for life and to pay fine of Rs. 25,000/-. Aggrieved by that, the appellants/accused Nos. 1 and 2 have filed this appeal.

The learned counsel for the appellants contended that the impugned judgment and order cannot be sustained in law. She also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further she submitted that the eyewitnesses PWs.5 and 11 are concocted witnesses. The first information - Ex. P1 does not contain the names of the eyewitnesses. The evidence of PWs.1, 5, 11 and 12 show that all of them went to the police station at about 7 a.m. Inspite of that, the name of the eyewitnesses does not find place in Ex. P1. Further, the statements of the eyewitnesses have not been recorded immediately. Further she submitted that the eyewitnesses PWs.5 and 11 have deposed that they saw the incident in the lantern light. There is no mention of the lantern in Ex. P2 spot mahazar. Apart from this, neither the lantern nor the battery said to have been carried by PW.3 have been seized. Further she submitted that the inquest report Ex. P4 shows that the deceased was seen alive by PWs.5 and 11 at about 9.00 p.m. and thereafter at about 1.00 a.m. when he was dead. The statement of PW.11 said to have been recorded during inquest is not part of inquest. She also submitted that the inquest report - Ex. P4 was not sent to the jurisdictional Magistrate as required under Sections 167 and 174(2) of Cr.P.C. Further, she submitted that PW.1 does not say that she was informed that accused persons caused the death or the incident was witnessed by PWs.5 and 11. Further, she submitted that the conduct of PWs.5 and 11 creates a serious doubt and they are not eye witnesses. They have neither resisted nor shouted for help. It clearly shows that PWs.5 and 11 are not the eyewitnesses. The prosecution has suppressed the genesis of the offence and has filed false case against the accused. Therefore, the impugned judgment and order cannot be sustained in law and the appellants may be acquitted.

As against this, the learned Additional SPP supported the impugned judgment and order. He submitted that all the witnesses have supported the prosecution case and their evidence is consistent and cogent and therefore, the impugned judgment and order does not call for interference. He also submitted that the evidence of PWs.5 and 11 clearly shows that the accused persons were responsible for the death of deceased Ningappa. The evidence of PW.3 corroborates the evidence of PWs.5 and 11. The material on record clearly establishes the guilt of the accused persons. The Trial Court on proper consideration of the material on record has rightly convicted the appellants-accused for the offence alleged. Therefore, the impugned order judgment and order does not call for interference.

We have carefully considered the submissions made by the learned counsel for the parties.

The point that arise for our consideration is;

"Whether the impugned judgment and order passed by the District and Sessions Judge, Yadgiri in S.C. No. 42/2010 calls for interference?"

The case is based on direct evidence. The material witnesses arePWs.1,2,3,4, 5, 11, 12 and 17.

PW.23 Dr. Virupaksha has conducted the post mortem. He has deposed that on 02.10.2008 between 11.30 to 12.30 hours, he conducted the post mortem of deceased Ningappa. He noticed injury on the head of the deceased. The cause of death was due to the fracture of left parietal bone. Ex. P9 is the postmortem report and his signature is at Ex. P9(b).

In his cross-examination, PW.23 has stated that if a stone like M.O.1 is thrown on a person who is sleeping, then the entire face would be crushed. Further, he has stated that the injuries noticed in the post mortem report could be caused by assaulting a person with the club or small stone.

Ex. P9 is the postmortem report. It shows that the deceased had sustained fracture of left parietal region measuring 8 cm X 4 cm and other injuries. The doctor has opined that the cause of death was due to fracture of left parietal bone of the skull due to hypovolumic shock.

Ex. P4 is the inquest report. It shows that the cause of death was by throwing a stone on the head of the deceased. PW.2 has deposed regarding Ex. P4. He has stated that inquest was held and he has signed Ex. P4. His signature is at Ex. P4(a).

From the evidence of PW.23, PW.2 and contents of Ex. P9 post mortem report and Ex. P4 inquest report, it is clear, that the death was homicidal.

PW.1 Holemma has deposed that prior to the alleged incident, she had gone to Kaamanatagi village to see one Holeppa, who was not well. At about 4.00 a.m. on the date of alleged incident, PW.12 Hulugeppa informed PW.1 through phone that her son Ningappa has been killed. Thereafter, at 6.00 p.m., PW.1 returned to Kotegudda along with her relatives. They went to their land and saw that the deceased Ningappa was killed by throwing a stone. The deceased had sustained head injury and there was bleeding. PW.1 has identified M.O.1 stone. Thereafter, PW.1 lodged the complaint with Narayanpur Police Station as per Ex. P1. She has identified her thumb impression in Ex. P1. She has stated that the accused persons have killed her son. Further, she has sated that the accused had put poison to the water in the pond and PW.12 Hulugeppa and his wife Devamma fell ill by drinking that water. They were treated at Narayanapur Government Hospital.

In her cross-examination, PW.1 has stated that PW.5 Jummawa is the daughter of PW.12 Hulugeppa. She normally used to stay in the house of Hulugeppa. All of them have put their huts in their respective lands. PW.3 had his sheep pen in the land of PW.1. He used to sleep there. The house of the accused persons is very near to their hut. PW.3 usually sleeps in the sheep pen. Further, she has stated that on the date of alleged incident, when she received phone call, herself, Dandamma, Basappa and one Durgawa were in the house. She talked to Hulugeppa in the phone. PW.12 Hulugeppa told that Ningappa has been killed and asked PW.1 to go there. They came in a jeep. Thereafter, she lodged the complaint. At that time, PW.1, PW.5, PW.11 and PW.12 went to the police station at about 7.00 a.m. She gave her statement. Police did not take the statement of PW.11 Nagamma and PW.5 Jummawwa after taking her statement.

PW.2 Kashappa is the witness to Exs. P2 to P4. He has deposed that spot inspection was conducted, inquest was held and the cloths of the deceased were seized and mahazars were drawn as per Exs. P2, P3 and P4. His signatures are at Exs. P2(a), P3(a) and P4(a). He has also identified M.Os.2 to 6.

PW.3 Mahadevappa has deposed that on the date of alleged incident, at about 1.00 a.m., he was sleeping in his sheep pen . At that time, PW.5 Jummawa and PW.11 Nagamma went to him and told him that the accused persons have thrown stone on the deceased and they went towards a canal. Thereafter, he went near the hut of the deceased and in the battery (torch) light, he saw the accused persons going towards the canal. Thereafter, himself, PW.5 and PW.11 went to PW.12 and brought him near the hut. At that time, PW.4 was weeping. At about 4.00 a.m., Hulugeppa informed PW.1 through phone about the murder of deceased Nmgappa. At abut 6.00 a.m., PW.1, PW.17 and PW.14 came there. Thereafter, PWs.1, 12, 11 and 5 went to the Narayanpur police station and lodged the compliant. He has sated that about three months prior to the alleged incident, the accused persons had put poison to the water and PW.12 and his wife had suffered on account of that. He has also stated that the accused persons had quarreled with the deceased in connection with the putting of fence in between the land of the accused and the deceased. He has identified M.O.1 stone.

In his cross-examination, PW.3 has stated that his sheep pen is at distance of 10 feet from the hut of the deceased. He used to sleep in his sheep pen. He has not seen the accused persons throwing stone on the deceased Ningappa. He has denied the suggestion that a false case has been foisted against the accused persons.

PW.4 Smt. Huligemma has deposed that on the date of alleged incident, herself, PW.5 Jummawwa, PW.11 Nagamma and Ningappa were in the hut. As it was cold, she was sleeping inside the hut. PWs.5 and 11 were sleeping on the Katta in front of the house. The deceased was sleeping on the floor in front of the hut. At about 1.00 a.m., PW.5 Jummawwa and PW.11 Nagamma were screaming. On hearing it, she came out. She was informed that the accused persons threw stone on the deceased. She did not see the accused throwing stone on the deceased. She has also stated that the accused had put poison to the water and on account of that, PW.12 Hulugeppa and his wife Devamma had suffered and that there was quarrel between the deceased and the accused persons in connection with the putting of fence in between the lands of the accused and the deceased. She has identified M.Os.1 to 5.

In her cross-examination, PW.4 has stated that it is only after PWs.5 and 11 informed her, she came to know about the incident. She has denied the suggestion that somebody has killed the deceased and false case has been foisted against the accused persons.

PW.5Jummawwa is the eyewitness. She has deposed that on the date of alleged incident, herself, PW.11 Nagamma, PW.4 Huligemma, deceased Ningappa and PW.3 Mahadevappa were in the hut. PW.3 is having a sheep pen near the hut of deceased Ningappa. On the date of alleged incident, she was sleeping in the hut of PW.4 Huligemma. Herself and PW.11 Nagamma were sleeping in front of the hut. The deceased was sleeping on the floor near a Katta. There was a lantern which was burning. At about 1.00 a.m., herself and PW.11 Nagamma got up to attend the call of the nature. Thereafter, the dogs started barking. At that time, the accused No. 1 Siddappa was holding a stone in his hand. The accused Nos. 2 and 3 instigated the accused No. 1 to finish the deceased. Then, accused No. 1 threw stone on the head of the deceased Ningappa. The deceased sustained injury to his head and he screamed. Thereafter, PW.5 and PW.11 went to PW.3 and brought him. PW.3 in the battery light, noticed that the deceased was dead. It is stated, they saw the incident in the lantern light. After throwing stone, the accused ran away towards the canal. Herself, PW.11 and PW.3 went to PW.12 and informed him. Thereafter, they came near the dead body. PW.4 was weeping. Thereafter, at about 4.00 a.m., PW.12 informed PW.1 through phone regarding the incident. At about 6.00 a.m., PW.1, PW.17 and PW.14 came near the place of occurrence. Thereafter, at about 7.00 a.m., herself, i.e., PW.5, her father Huligeppa, PW.11 and Holewa went to Narayanpur police station and lodged the complaint. She has also stated that the accused had put poison to the water and as a result of that, her mother and father had suffered. She has identified M.O.1 stone.

In her cross-examination, PW.5 has stated that she used to stay with her parents and on that day, she had gone near the house of the deceased. The huts of the accused persons are situated at a distance of 100 mtrs. from the hut of the deceased. She has stated that PW.3 -Mahadevappa is having his sheep pen in the land of deceased Ningappa. She has further stated that they did not question the accused persons as they threatened them saying that they would throw stone on them also. At the time of incident, neither PW.3 nor PW.4 came there. The police did not enquire her about the incident. She has denied the suggestion that she has been tutored by her father to depose before the Court and she is deposing falsehood.

PW.11 Nagamma is an eyewitness to the occurrence. She has deposed that on the date of alleged incident, PW.5 Jumawwa and herself were sleeping on a Katta in front of their house. Her husband deceased Ningappa was sleeping on the floor in front of their house by keeping a lantern. PW.4 Huligemma was sleeping inside the hut. PW.3 Mahadevappa was sleeping in his sheep pen In the midnight, herself and PW.5 Jummawwa got up to attend the call of the nature. At that time, the dogs started barking. They noticed that the accused persons were standing near the deceased Ningappa. The accused No. 1 Siddappa was holding stone in his hand. Accused Nos. 2 and 3 were instigating the accused No. 1 to kill the deceased. At that time, accused No. 1 threw stone on the head of the deceased. Thereafter, the accused ran away from the place. They saw the incident in the lantern light. They noticed bleeding injury on the head of the deceased. Thereafter, they informed PW.3 Mahadevappa and PW.12 Hulugeppa. When they came back, PW.4 Huligemma was weeping. PW.12 Hulugeppa informed PW.1 Holemma through phone about the incident. Next day morning at about 6.00 a.m., PW.1 Holemma and PW.17 Dandamma returned from Kaamanatagi village. Thereafter, PW.11, PW.5 Jummawwa, PW.12 Hulugeppa and PW.1 Holemma went to Narayanpur police station and lodged the complaint. She has also stated that there was quarrel in connection with the putting of the fence in between the lands of the accused and the deceased. She has identified M.O.1 stone.

In her cross-examination, PW.11 has stated that at the time of incident, it was fully dark She noticed the accused persons from a distance of about 10 feet. The accused came from the Western side. She has denied the suggestion that the accused were not responsible for the death of the deceased.

PW.12 Hulugeppa has deposed that the accused had put poison to the water. Himself and his wife had suffered on account of that. They have lodged complaint in Narayanpur police station. Due to enmity, the accused persons have killed the deceased. On the date of alleged incident, his daughter PW.5 Jummawwa was sleeping in the hut of the deceased Ningappa. When he was in his land, at about 1.20 a.m., PW.5 Jummawwa, PW.11 Nagamma and PW.3 Mahadevappa went to him and told him that the accused Nos. 2 and 3 instigated the accused No. 1 to kill the deceased and accused No. 1 threw stone on the deceased. Thereafter, the deceased died. He came there and noticed injury on the head of the deceased. He informed PW. 14 Basanna through phone. He has stated that there was land dispute between them and the accused persons and therefore, the accused have killed the deceased.

In his cross-examination, PW.12 has stated that at the time of incident, it was very cold. Normally during cold season, people sleep inside the house. He has stated that on that day, the deceased was sleeping outside the house.

PW.13 is the wife of PW.12. She has deposed that on the date of alleged incident at about 1.30 a.m., she heard a noise from the side of Ningappp''s land and on hearing it, herself and her son went near the hut of the deceased with a battery. There, people were crying. When they asked PW.11 Nagamma told that the accused persons came and threw stone on the deceased. She noticed injury on the head of the deceased.

In her cross-examination, PW.13 has stated that she did not see the incident and through Nagamma, she came to know about the incident. Further, she has stated that her daughter Jummawwa used to sleep with them everyday. She has denied the suggestion that PW.5 did not go near the house of Ningappa on the date of alleged incident.

PW.14-Basanna has deposed that at about 4.00 a.m. on the date of the alleged incident PW.12 Hulugeppa through phone informed him that Ningappa has been killed by the accused persons and requested to call PW.1-Holemma. Thereafter, at about 6.00 a.m. himself, his sister-Holemma, his wife Durgamma and his mother-in-law Dhandamma came to Kotigudda and they noticed that the deceased-Ningappa had died and he had sustained serious head injury. A stone was lying by the side of the deceased-Nimgappa.

In his cross-examination, PW.14 has stated that he does not know the phone number of Hulugeppa or his mobile number. He has denied the suggestion that he is deposing falsehood before the Court.

PW.15 is the Police Sub-Inspector. He has deposed that on 02.10.2008 at about 7.00 a.m., PW.1-Holemma gave her statement and he wrote it and he took the thumb impression of PW.1. It is Ex. P1. The thumb impression of Holemma is Ex. P1(a) and his signature at Ex. P1(b).

In his cross-examination, PW.15 has stated that on that day, PW.1 alone had gone to the police station to lodge the complaint. He came to know about the incident only after PW.1 lodged the compliant.

PW.17-Dhandamma has deposed that she had gone to see Holiyappa as he was not well and regarding the incident PW.12-Hulugeppa informed Basappa who intern gave phone to PW.1-Holemma and they came to know about the incident. Thereafter, at about 6.00 a.m., herself, Basappa, Holemma and her daughter-Durgamma and her sister-in-law-Paramawa came to Kotigudda. They noticed injury on the head of the deceased-Ningappa. She has stated that there was dispute between the accused and the deceased. Therefore, they have killed the deceased.

From the evidence on record, it is clear that PW.5 and PW.11 are the eyewitnesses. They have deposed regarding the incident. They have stated that on the date of the alleged incident they were sleeping on a katta in front of the hut. The deceased was sleeping on the floor in front of the hut by keeping a lantern. In the midnight PWs.5 and 11 got up to attend the call of nature. At that time, they noticed accused No. 1 was holding the stone and accused Nos. 2 and 3 instigated the accused No. 1 and accused No. 1 threw stone on the head of the deceased. As a result of that the deceased died. Thereafter, they informed PW.3 Mahadevappa and PW.12 Hulugeppa. Hulugeppa inturn called on the mobile of PW.14-Basanna and informed PW.1 about the incident. PW.5 and PW.11 have stated that they saw the incident in the lantern light. In Ex. P2-Spot Mahazar there is no mention of lantern at the place of occurrence. PW.2-Kashappa who is a witness to the spot panchanama has not stated anything about the lantern at the place of occurrence. PW.5 and PW.11 have stated that after the incident they went and informed PW.3-Mahadevappa. He came to the spot holding a battery (torch) and in the battery light they saw the dead body. The battery (torch) is also not seized. Neither the battery nor the lantern which are the sources of light have been seized in the course of investigation. The evidence shows that on the date of alleged incident it was fully dark Therefore, it is doubtful whether PWs.5 and 11 have witnessed the incident at all. The conduct of PWs.5 and 11 is also relevant. It is stated, they got up in the midnight to attend the call of nature and suddenly they found accused Nos. 1 to 3 at the place of occurrence. They have neither shouted for help nor resisted the incident. PW.3 has stated he saw the accused going toward the canal in the battery light. It is also doubtful and difficult to believe. Apart from this, it is relevant to note, in the first information Ex. P1 there is no mention of eyewitnesses. All the material witnesses namely, PW.1, PW.5, PW.11 and PW.12 have stated that they went to the police station at 7.00 a.m. and lodged the complaint. It is clear, the eyewitnesses PW.5 and PW. 11 were present in the police station along with PW. 1. If that is so, it is not clear, why the name of the eye witnesses is not mentioned in the Ex. P1. It creates serious doubt about the genesis of the offence. Further, PW.1 in her evidence has stated that at about 4.00 a.m. Hulugeppa informed through phone that Ningappa is killed. There is no mention of the eyewitnesses. PW.9 has stated that on 2.10.2008 as per the direction of Police Sub-Inspector they went to guard the dead body of Ningappa along with PW.7. In his cross-examination, PW.9 has stated that at about 6''o clock they left the police station to Kotigudda. It is clear, before the first information was lodged, the police were already knowing about the incident. The source of information is not forthcoming. Therefore, in the circumstances, it is difficult to believe the evidence of PWs.5 and 11. No doubt, the material on record indicates homicidal death of deceased-Ningappa. But, the evidence on record is not sufficient to hold that the accused persons were responsible for the death of the deceased Ningappa. In the absence of acceptable evidence, the accused cannot be held guilty of the offences alleged. The Trial Court has failed to consider the evidence on record in proper perspective. Therefore, impugned judgment and order cannot be sustained in-law.

Accordingly, we allow the appeal. Consequently, the conviction and sentence passed by the District and Sessions Judge, Yadgiri, in Sessions Case No. 42/2010 convicting the appellants/accused Nos. 1 and 2 for the offences punishable under Sections 302, 114 r/w Section 34 of IPC is hereby set aside. The appellants/accused Nos. 1 and 2 are acquitted of the charges levelled against them.

If the fine amount is deposited, it shall be refunded to the accused.

The concerned Jail Authority is directed to release the appellant No. 1/accused No. 1 forthwith, if he is not required in any other case. Appellant No. 2/accused No. 2 is on bail granted by this Court vide order dated 17.10.2014. Her bail bond and surety bond stand cancelled.

Office is directed to communicate the operative portion of the order to the concerned Jail Authority immediately for necessary action.