State of Karnataka vs Naga @ Nagaraju and Others

B.V. Pinto, J.—This appeal is filed by the State challenging the judgment dated 28.9.2004 passed by the Fast Tract Court-I, Mandya, in S.C. No. 213/2002 acquitting the Respondents No. 1 to 6 of the offence u/s 143, 144, 147, 148, 324, 326 and 307 r/w Section 149 IPC.

The case of the prosecution is that on 17.8.2002 at about 8.30 p.m. in front of the shop of Ganesha situated at Majigepura road, K.R. Sagar, Mandya District, Accused No. 1 to Accused No. 6 have intentionally caused death of Pradeep by assaulting him with club, long and chopper and thereby they have committed murder of Pradeep punishable u/s 302 of IPC.

It is further alleged that on the same date, place time and place Accused No. 1 to Accused No. 6 have assaulted Umesh son of Maridasegowda with long, chopper and club with such intention and under such circumstances that if by that Act they had caused the death of said Umesh, they would have been guilty of the murder and therefore, they had committed the offence u/s 307 of IPC. It is further alleged that at the said date, time and place the accused being the members of unlawful assembly and holding weapons like club, chopper and long with a common object of committing murder of Pradeep and attempt to murder of Umesh, have committed offences u/s 144 and 148 r/w Section 149 IPC.

The prosecution in order to prove the case has examined in all 37 witnesses and got marked Exs. P. 1 to P. 53 and produced M.Os. 1 to 30. However, after hearing the prosecution and the defence, the learned Sessions Judge was pleased to acquit the Respondents holding that the prosecution has not proved the case beyond reasonable doubt. The State has filed this appeal.

The prosecution in this case is launched on the basis of the statement of the deceased Pradeep recorded by the police on 17.8.2002 between 9.55 to 10.20 p.m. in K.R. Hospital, Mandya. In the said complaint it is stated as follows:

The translation of the said Kannada version is as follows:

The statement of Pradeep son of Swamygowda, 23 years, Vakkaligaru by community, agriculturist residing at Majigepura village, Srirangapatna Taluk. Today at about 8.30 p.m. night, I was sitting in front of shaving shop by the side of shop of Javaregowda on K.R.S. - Majigepura Road along with Vyramudi, Prakash and Umesh. At that time Naga, S/o. Ammayamma, Jagga S/o. Sentu Kumar''s sister, Gunda, Gidda, S/o. Fishari Manjaiah, Swamy, Manju and Hotte Ashoka and others who were having old enmity assaulted me by means of chopper, long on my hand, head, neck and on other parts of the body with an intention to kill me and they have assaulted Umesh who was with me. Vyramudi said do not kill us and went away. Prakash ran away. Please take action against those who have attempted to kill me.

LTM of Pradeep

The above statement of the deceased Pradeep has become dying declaration in view of his death. The same is the basis for the FIR Ex. P.5. PW30 - Rajashekar, HC-201 has recorded the above statement, which has been registered as Cr. No. 62/2002 by the PSI at about 11 p.m. on 17.8.2002.

Out of the 37 witnesses examined in this case, except PW1, PW12, PW25, PW26, PW28 to PW32, PW35 and PW-36 all other witnesses have turned hostile to the case of the prosecution. PW1 - Dr. Latha has examined the deceased as well as the injured Umesha at about 9.30 p.m. on 17.8.2002. PW12 - Chaluvaraju is the signatory to Ex. P. 14-inquest Panchanama. PW25 - Balakrishna was the Asst. Professor of Surgery at K.R. Hospital. He has stated that on 17.08.2002 at 9.40 p.m. P.S.I. - Kodandaram gave a memo and stated that one patient by name Pradeep was admitted in the hospital and requested him to verify as to whether the patient is in a position to give statement. He has examined the patient and informed the police that Pradeep is in a position to give statement. Accordingly, his statement was recorded before him. Ex. P22 is the said statement. Ex. P22(a) is his signature. The police have recorded the statement of Pradeep in the presence of PW25 on 17.08.2002. He has further stated that the police have taken the LTM of Pradeep. The statement was recorded by Head Constable. He has identified Ex. P23 being the requisition given to him.

PW26 - Basavanna is the Junior Engineer who has stated that there was supply of electricity on 17.08.2002 in the area between 8.00 - 9.00 p.m. as per Ex. P24. PW28 - Dr. M.P. Kumar has conducted the Post Mortem examination on the dead body of Pradeep. He has found seven external injuries on the dead body and sutured internal injuries and has opined that the death was due to shock and haemorrhage as a result of multiple injuries sustained to the head and right upper limb consequent upon blows from a heavy cutting weapon and blunt weapon as per Ex. P.26.

PW29 - Ramaraje Urs is Head Constable and has seized certain materials from the person of the deceased Pradeep. PW30 - Rajshekhar is another Head Constable. He has recorded the statement of Pradeep in the hospital as per Ex. P.22. He has identified Ex. P.22 as the statement given by the deceased and Ex. P.22(a) is his signature. PW31 - Indramma - Women Head Constable has handed over the death memo to K.R.S. Police Station. PW32 - Mahadevappa - ASI has drawn the mahazar regarding the scene of occurrence and seized of blood stained and un-stained tar from the scene of offence. PW35 - Puttalingaiah is the Inspector of Police, Srirangapatna. He has conducted the investigation in this case, arrested the accused and recovered the weapons as per the voluntary statement given by them and has filed the charge sheet against the accused persons.

PW36 - Kodandaram - PSI has reached the spot on receipt of information from unknown person and shifted the injured Pradeep and Umesh to K.R. Hospital and has conducted part of the investigation in this case.

It is from the evidence of these witnesses that the learned Sessions Judge has found that the evidence tendered by the prosecution is not sufficient to convict the accused and has acquitted them. The State has filed this appeal.

Heard Sri G. Bhavani Singh, learned SPP on behalf of the State and Sri Shivaprasad, learned Counsel on behalf of the accused.

Learned SPP submits that in this case in spite of the fact that the eyewitnesses PW4, PW5 and PW15 have turned hostile to the case of the prosecution, the case rests on the dying declaration of the deceased recorded by PW30 in the presence of PW25 - Dr. Balakrishna. He further submits that the evidence of PW25 is clear and cogent in so far as the ability of the deceased to give statement regarding the cause of his death and he has certified in Ex. P22 itself that the said statement was recorded before him by Head Constable - Rajshekhar. It is further submitted by learned SPP that Ex. P.22 is the dying declaration which clearly establishes the cause for the death of the person giving declaration viz., the deceased Pradeep and it establishes that it is Accused No. 1 to Accused No. 6 who have caused injuries on him on the date of incident by means of weapons. He therefore submits that the dying declaration can be based for convicting the accused persons whose names are found in the dying declaration and their overt acts are clearly mentioned in the dying declaration. He has cited the following decisions in support of his contentions.

(i) State of Rajasthan v. Parthu reported in (2009) 3 SCC 507

Evidence Act, 1872-Section 32-Dying declaration-Absence of certificate of doctor on fitness of deceased of make the statement-Effect where statement recorded in presence of doctor and he also attested thumb impression of deceased on the statement-Conviction based solely on such dying declaration-Sustainability-Respondent 1 alleged to have poured kerosene on the deceased and set her on fire, pursuant to quarrel-High Court, in appeal by Respondent-accused against conviction, acquitting him, opining that as the doctor had not certified that the deceased was in a fit state of mind to make a statement before the investigating officer, and had not treated her, no reliance can be placed thereon-PW 10 (doctor) present when dying declaration was recorded and after it was done attesting deceased''s thumb impression as also her statement before the investigating officer-Held, technically though there could be no attestation of such statement but what the doctor meant by issuing such a certificate in the dying declaration was that the statement of the deceased was made by her before the investigating officer in his presence and the same had been recorded correctly - Moreover, the doctor was a medical jurist and the deceased had revealed the entire incident to him.

(ii) Satish Ambanna Bansode v. State of Maharashtra reported in (2009) 3 SCC 1306:

Penal Code, 1860 - Section 302-murder trial-Dying declaration-Conviction on the basis of-Sustainability-Accused husband alleged to have poured kerosene on deceased wife and set her on fire-Post-mortem report showing that death was due to "septicaemia" shock due to 95% superficial to deep burns-Dying declaration recorded by Head Constable after obtaining opinion of doctor as regards fitness of victim to make a statement-Submission by Appellant that evidence of the doctor clearly indicated that the victim was not in a condition to give dying declaration and that the statement was the result of tutoring-Held, so far as the statement of the doctor is concerned, a hypothetical answer was given to a question regarding the effect of the patient who suffered burns of a very high percentage - However, in the instant case doctor had categorically stated that the patient who gave dying declaration was in a position to do so-Plea that there was accidental burn due to fall of small lantern, held, rightly rejected by courts below-Hence held, conviction of Appellant u/s 302, relying on the dying declaration calls for no interference.

Sri Y.S. Shivaprasad, learned Counsel for the accused submits that the eyewitnesses PW4, PW5 and PW15 have given a clear go bye to the case of the prosecution. Therefore, the prosecution has utterly failed in bringing home the guilt of the accused. He further submits that Ex. P3 accident register pertaining to Pradeep, name of Pradeep has been over written to that of Vyaramudi. Hence, there is doubt regarding the veracity of the dying declaration. Therefore, he submits that the order of acquittal may not be interfered with by the Appellate Court.

Having heard both sides and carefully gone through the evidence of the witnesses and on reappreciation of the evidence we find that Ex. P22 which is the dying declaration of the deceased has been recorded naturally and truthfully. PW25 - Doctor has categorically stated that the injured was in a position to speak and give statement and further he has signed Ex. P.22. Under these circumstances, it could be gathered that PW25 - the Medical Officer was not only a person present when Ex. P.22 was recorded, but also asserted that the patient was in a position to give such statement. However, on a careful scrutiny of Ex. P.22, it is seen that the name of Swamy - Accused No. 5 has been added subsequently and there is no initial of any officer by the side of the name of Swamy and the colour of the ink differs from the other handwriting. In view of the foregoing discussions we hold that the dying declaration of deceased Pradeep - Ex. P.22 is genuine and has been recorded by PW30 - Rajshekhar in the presence of PW25 - Dr. Balakrishan when the deceased was in fit condition to give statement and hence, a conviction can be based on the said dying declaration.

So far as the capacity of the deceased to narrate the incident regarding the cause of his injuries is concerned, on perusal of Ex. P.3 the accident register it Is clear that Ex. P.3 was brought into existence at 9.30 p.m. and in Ex. P3 it is mentioned that the assault was by six persons and the names of all the six persons are mentioned therein without any over writing. The over writing pertains only to the presence of Vyramudi and it is the contention of the learned Counsel for the accused that over the name of Vyramudi name of Pradeep is written. In Ex. P.23 - requisition letter it is seen that signature of Vyramudi is separately taken by the doctor as brought by him and therefore, the presence of either Vyramudi or Pradeep in the hospital at the time when the deceased was brought to the hospital cannot be disputed at all.

The accident register - Ex. P.3 is pertaining to the deceased and extract pertaining to Umesh also does not contain name of Swamy. Therefore, we are of the considered opinion that Swamy i.e., Accused No. 5 is entitled for benefit of doubt. However, the names of other five accused is consistently found in Exs. P.22, P3 and P4 - extract of accident pertaining to Umesh, which has been recorded by PW1 - Dr. Latha. On perusal of the cross-examination of PW1, no where it is brought out that accident register - Ex. P.3 has been tampered regarding the name of the person who gave the statement. Further, it is evident that both Vyramudi and Umesh were positively present in the hospital when Pradeep was taken to the hospital, which is evidenced by their signature in the accident register. Under the circumstances, we have no hesitation to believe the version as per Ex. P.3 accident register wherein the names of five persons namely Naga, Jagga, Gidda, Manju and Gunda are clearly mentioned with out any over writing or correction. In view of the discussions made above, we hold that the prosecution has proved the guilt of Accused No. 1 to Accused No. 4 and Accused No. 6 for the offence u/s 302 IPC and they are liable for conviction for the said offence. However, in view of PW4, PW5 and PW15 not supporting the case of the prosecution the offences u/s 307 of IPC and 326 of IPC are not proved beyond reasonable doubt against the accused persons. Therefore, the acquittal for the said offences by the trial Court does not call for interference. In the result, the following

ORDER

The appeal is allowed in part.

The order of acquittal passed against Accused No. 1 to Accused No. 4 and Accused No. 6 for the offences Under Sections 148 and 302 r/w. Section 149 of IPC is hereby set aside and they are convicted for the said offences. We hold that this is not a rarest of rare case and therefore, they are sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/- each in default to suffer R.I. for one year.

The Accused No. 1 to Accused No. 4 and Accused No. 6 are further sentenced to suffer R.I. for a period of one year for the offence u/s 148 of IPC.

Both The sentences shall run concurrently.

The order of acquittal passed against the Accused No. 5 - Swamy is hereby confirmed.

The bail bonds of Accused No. 1 to Accused No. 4 and Accused No. 6 shall stands cancelled and the Accused No. 1 to Accused No. 4 and Accused No. 6 are directed to surrender before the trial Court to undergo the sentence herein above imposed failing which the trial Court is directed to execute the sentence.