State of Karnataka vs Henry

Mohan M. Shantana Goudar, J—The judgment and order of acquittal dated 7.1.2012 passed by the Principal Sessions Court, Kolar in Sessions Case No. 21/2011, is called in question in this appeal by the State.

By the impugned judgment the trial Court has acquitted the accused of the offence punishable under Section 302 of IPC.

Case of the prosecution in brief is that the deceased and the accused were in inimical terms; the accused was asking beedi from one Jaffer (P.W.5) who was running a petty shop; since money was not paid to Jaffer, he refused to give beedi to the accused; in that context, deceased Parthasarathi who was standing in front of shop of Jaffer told the accused that he should not ask money from others; being enraged by such utterances of the deceased, the accused pushed the deceased to the ground and threw a size stone M.O. No. 1 on his head, consequent upon which, the deceased sustained bleeding injury on his head. The houses of P.Ws.1 and 2 is situated just near the shop of Jaffer; on hearing the cries of the deceased, P.Ws.1 and 2 rushed to the spot and saw the accused throwing stone on the head of the deceased at 7.30 p.m. on 2.11.2010; immediately thereafter, the accused went away from the scene; P.Ws.1 and 2 along with others shifted the injured to Adarsha hospital in a Tata Sumo vehicle; the Doctors of Adarsha hospital in turn instructed P.Ws.1 and 2 and others to shift the deceased to General Hospital at K.G.F. Accordingly, the victim was shifted to General Hospital, K.G.F., wherein he succumbed to the injuries at about 8.30 p.m.

Complaint came to be lodged by P.W.1 as per Ex.P1, which came to be written by P.W.15, the Sub-Inspector of Police attached to Robertson police station, based on which, Crime No. 14/2010 came to be registered by P.W.15. P.W.13, the Investigation Officer, completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 16 witnesses and got marked 23 exhibits and 9 material objects; on behalf of defence, 2 witnesses are examined and on behalf of the Court, 2 witnesses are examined and got marked Ex.C1, C1(a) to (e).

The learned advocates on both sides argued in support of their respective cases.

P.Ws.1, 2, 4, 5 and 6 are the eyewitnesses to the incident in question. Among them, P.Ws.4, 5 and 6 have turned hostile to the case of the prosecution. P.Ws.5 and 6 could have been very important witnesses in as much as, P.W.5 is none other than Jaffer and P.W.6 is Vela who were allegedly very much on the spot and from whom the accused had demanded beedi. Both of them have turned hostile to the case of the prosecution. However, P.Ws.1 and 2 have supported the case of the prosecution.

P.W.3 is the witness for inquest mahazar Ex.P2.

P.W.7 is a Doctor. He conducted autopsy over the dead body. His report is at Ex.P7.

The evidence of P.W.8 is of no consequence in as much as, he has merely seen the dead body in the mortuary of the hospital.

P.W.9 is the witness for scene of offence panchanama Ex.P5.

P.W.10 is the witness for seizure panchanama Ex.P9 under which, M.O. Nos. 8 and 9 i.e., the clothes of the accused were seized.

P.W.11 is the witness for seizure of clothes of the deceased (M.O. Nos. 2 to 4). Unfortunately, the panchanama drawn for seizure of M.Os.2 to 4 is not marked through this witness.

P.W.12 is the police constable. He guarded the dead body.

P.W.13 is the investigation officer. He completed the investigation and laid the charge sheet.

P.W.14 is the Engineer who drew the sketch of scene of offence and his opinion is as per Ex.P13.

P.W.15 is the Sub-Inspector of Police, who registered the crime.

P.W.16 is another Sub-Inspector of Police. He apprehended the accused on 3.11.2010 i.e., on the next date of the incident.

We have clarified supra that except P.Ws.1 and 2, all other eyewitnesses have turned hostile to the case of the prosecution. The complaint lodged by P.W.1 is at Ex.P1. P.W.1 is none other than the wife of the deceased. Ex.P1-the complaint reveals that the accused keeping in mind the old rivalry lifted the size stone and threw the same on the head of the deceased and thereafter, he ran away from the scene. Thus, it is amply clear from the complaint that the accused threw the stone only once on the head, whereas in their evidence, P.Ws.1 and 2 have deposed that they rushed to the scene of offence after hearing the cries of the deceased and even when they arrived at the scene of offence, the accused was still throwing the stone on the head of the deceased 4-6 times; P.W.2 has gone a step ahead to depose that when she went to the scene of offence, the accused was standing on the chest of the deceased and threw the stone for 4-5 times. Hence, the prosecution eyewitnesses P.Ws.1 and 2 have improved their version before the Court, to the effect that the incident continued even when they rushed to the scene of offence from their house, after hearing the cries. The aforementioned improvement of P.Ws.1 and 2 was made by these witnesses and by the prosecution only to create and make us believe that the incident has continued even when P.Ws.1 and 2 came to the spot. Therefore, the improvement as mentioned supra, made by the prosecution, through the versions of P.Ws.1 and 2, is purposeful and the same is made only to create P.Ws.1 and 2 as eyewitnesses to the incident. On the other hand, the first information lodged by P.W.1 clearly reveals that the assault was a single act of the accused. If it is a single act of the accused, P.Ws.1 and 2 would not have arrived at the scene, in as much as, only after assault on the victim, he must have cried. As mentioned supra, unfortunately, P.W.5 Mr. Jaffer, P.W.6 Mr. Vela and other eyewitnesses who were running the shop just near the incident have turned hostile to the case of the prosecution and none of them have supported the prosecution.

In this context the evidence of P.W.7 Dr. Bharath Bhushan is very relevant. He conducted the post mortem examination over the dead body of Parthasarathy. On examination he found a depressed and lacerated injury on the left side of the case and skull which included left frontal, parietal and temporal area with fracture with left eye involvement. That is the only injury which he noticed on the body of the deceased. He categorically admits in the cross-examination that the death of the deceased was on account of a single injury sustained by him. The Doctor re-affirms in the cross-examination that there was only external injury on the dead body of the deceased. He has further deposed that the injury found on the deceased can be caused by single dropping or throwing of the stone on the face. It means, the injuries found on deceased Parthasarathy were on account of dropping of stone on his face, as a result of single act and not multiple acts.

We have already mentioned supra that P.Ws.1 and 2 have strangely deposed before the Court that the accused has indulged in multiple acts of throwing the stone in as much as, he has lifted the stone up to the chest level and threw on the face of the deceased repeatedly for about 4-6 times. For the said purpose the defence has taken pains to cross-examine the Doctor P.W.7 on that aspect of the matter also. In his cross-examination, the Doctor has admitted that if the victim was lying and the assailant was sitting over him hits on the face of the victim with M.O.1 stone with force by raising it over his chest and head, there will be multiple fractures. If in the said position the victim was hit 2-3 times, the face of the deceased would have been crushed beyond recognition. He has further deposed that if the victim is assaulted 5-6 times, then the impact would be still more. He has clearly admitted that he did not notice any depressed or crushed fractures on the face of Parthasarathy. Thus the evidence of Doctor P.W.7 clearly rules out the possibility of deceased Parthasarathy having been assaulted by M.O.1 size stone 5-6 times. In this context, the learned sessions Judge is justified in arguing that contradiction is found between the ocular and medical evidence. This factor assumes importance in view of the evidence of P.Ws.1 and 2 that there was old ill-will between the accused on one side and deceased and prosecution witnesses on the other.

While P.W.7, the Doctor, who conducted autopsy over the dead body was in the witness box, a suggestion is made by confronting Ex.D2 (copy of the MLC register maintained by the General Hospital, KGF) that the victim must have sustained injuries in an accident. The Doctor has virtually admitted that there is every possibility of deceased sustaining injury in the accident having regard to the nature of injury sustained.

Though it is the case of the prosecution that P.Ws.1 and 2 and others have shifted the victim in a vehicle to Adarsha hospital at the first instance and thereafter to General Hospital, KGF and though it is the version of P.Ws.1 and 2 that their clothes were also blood stained because of shifting of the victim to the hospital, their blood stained clothes were not seized by the prosecution. In this context, the defence counsel is justified in arguing that P.Ws.1 and 2 have not at all shifted the victim to the hospital, in as much as, they have not arrived at the scene immediately after the incident. He further argues that the deceased was shifted to the hospital by Mr. Harikrishna, son of the deceased (C.W.12). The statement of Mr. Harikrishna is recorded during the course of inquest panchanama. Curiously, in this matter said Harikrishna is not examined by the prosecution before the Court. His evidence would have been very important in the matter on hand, in as much as, the records clearly reveal that he was the person who shifted the victim to the hospital.

Ex.D2 produced by the defence is a copy of the MLC register maintained by the General Hospital, KGF. The very document is marked through Court as a Court document Ex.C1. Ex.D2 reveals that the victim was admitted to hospital by Mr. Harikrishna with the history of road traffic accident near Jaffer shop at 8.00 p.m. on 2.11.2010. The MLC register does not disclose the presence of either P.W.1 or P.W.2, but it shows only the presence of Mr. Harikrishna (C.W.12). The signature of Mr. Harikrishna, in English, is found on the MLC register. Said Mr. Harikrishna appears to be an educated person. Since he was the person who came to the spot immediately after the incident and who shifted the victim to the hospital, the prosecution in all fairness ought to have examined Mr. Harikrishna before the Court, particularly, when Mr. Harikrishna has stated before the police that the deceased sustained injuries in the road traffic accident. In order to verify the correctness of the entries made in the MLC register Ex.D2/Ex.C1, the Court suo moto issued notices to the two doctors namely Dr. Venkatesh and Dr. Miraj Fathima C.Ws.1 and 2 respectively. P.W.7 the Doctor who conducted post mortem examination, on seeing Ex.D2 confronted to him has deposed before the Court that the endorsement made in the MLC register is attested by Dr. S. Venkatesh. In that regard summons was issued to Dr. S. Venkatesh who is examined as C.W.1. Dr. Venkatesh has admitted that he has attested Ex.D2, extract of MLC register. The original of the MLC register was brought before the trial Court and it is marked as C1. The relevant entries in respect of deceased are at page No. 382 of Ex.C1. Said page is marked as Ex.C1(a). He has deposed that the entries in Ex.C1(a) are in the handwriting of Dr. Miraj Fathima. Hence, Dr. Miraj Fathima is also examined before the Court as a Court witness i.e., C.W.2.

Dr. Miraj Fathima-C.W.2 has deposed that at about 8.00 p.m. she was a casualty medical officer of General Hospital, KGF on 2.11.2010. On that day injured Parthasarathy was brought to the hospital by his son Mr. Harikrishna C.W.12. She admits that she has made entries in the MLC register and the same are in her own handwriting. She further admits that Mr. Harikrishna gave history that his father met with road traffic accident near the shop of Jaffer-P.W.5 at 8.00 p.m. on 2.11.2010 and that she had taken signature of Mr. Harikrishna in MLC register. The signature of Mr. Harikrishna is as per C1(e).

Hence, it is clear from the evidence of Dr. Venkatesh and Dr. Miraj Fathima (C.Ws.1 and 2 respectively) that injured was taken by Mr. Harikrishna (son of the injured) and he gave the history of road traffic accident. Mr. Harikrishna has signed the MLC register evidencing the fact that he had given the history as mentioned supra. There is nothing on record to show that the two Doctors are either against the case of the prosecution or in favour of the accused. They are independent respectable officers of the State. There is no reason as to why they should depose falsely before the Court and that they should record false statement in the MLC register. The aforementioned facts coupled with the evidence of P.W.7 Dr. Bharath Bhushan does not rule out the possibility of deceased Parthasarathy having sustained head injury in the road traffic accident. In all fairness, the investigation officer ought to have examined Mr. Harikrishna as well as the aforementioned two Doctors. Which means that the prosecution has not come out with clean hands before the Court and has tried to suppress the real facts before the Court.

P.W.13, the investigation officer has adamantly answered before the Court that he did not feel it necessary to examine the two doctors mentioned supra. Since the victim was alive when he was admitted to hospital, the investigation officer, in all fairness, ought to have examined the aforementioned two doctors during the course of investigation and ought to have sent the concerned medical records including Ex.D2/Ex.C1. In view of the same, the trial Court is justified in not relying upon the evidence of P.Ws.1 and 2 in as much as, their presence on the spot appears to have been created by the investigation officer.

In addition to the same, the trial Court while acquitting the accused has relied upon one more circumstance in favour of the accused. The Sub-Inspector of Police-P.W.16 has deposed that when he was assigned the duty to apprehend the accused, he got the news that the accused was admitted to hospital on the previous day i.e., on 2.11.2010. It is clearly admitted by the said Inspector that the night beet staff informed him that a person (the accused) is admitted to general hospital and he was lying on the road in Gandhinagar due to weakness. Hence, he proceeded to General Hospital, KGF at 8.00 a.m. and at that time the accused was being discharged from the hospital. Since the accused was admitted to hospital in the evening of 2.11.2010, the trial Court felt that he would not have caused the head injury on the deceased at about 8.00 p.m. on 2.11.2010. Though there are no medical records to show as to when exactly the accused was admitted to hospital in the evening of 2.11.2010, the fact remains that the accused was admitted to hospital by some persons in as much as, he was lying on the road due to weakness in the evening of 2.11.2010. Be that as it may. Even ignoring the aforementioned factum of accused being admitted to the hospital in the evening of 2.11.2010, all other materials discussed supra, leads us to the conclusion that the verdict rendered by the trial Court, under the facts and circumstances of the case, is just and proper.

Since the view taken by the trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case, no interference is called for. Appeal fails and the same stands dismissed.