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1. : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH R DATED THIS THE14H DAY OF MARCH, 2017 PRESENT THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY AND THE HONOURABLE MR.JUSTICE K.SOMASHEKAR CRIMINAL APPEAL No.100010/2014 Between:
1.
2. 3.
4. 5.
6.
7. Shri Laxman son of Rangappa Kankani, Age:
45. years, Occupation : Agriculture Shri Bhimappa son of Rangappa Kankani, Age:
38. years, Occupation : Agriculture, Shri Ramappa son of Rangappa Kankani, Age:
48. years, Occupation : Agriculture, Shri Venkappa son of Laxman Kankani, Age:
22. years, Occupation : Agriculture, Shri Sadappa son of Laxman Baragi, Age: major , Occupation : Agriculture, Smt.Hemavva wife of Laxman Kankani, Age:43 years, Occupation : Household work, Smt.Kashibai wife of Bhimappa Kankani, Age:31 years, Occupation : Household work, :
2. :
8. Shri Rangappa son of Ramappa Kankani, Age:
26. years, Occupation : Agriculture, All are residents of Linganur Village, Taluk : Jamakhandi, District : Bagalkot. … Appellants (By Shri.S.S.Koti, for Shri Srinand A.Pachhapure, Advocate) And: The State of Karnataka, Through Bilagi Police Station, Now represented by State Public Prosecutor, High Court of Karnataka, Dharwad. … Respondent (By Shri.V.M.Banakar, Additional State Public Prosecutor) This criminal appeal is filed under Section 374 (2) of Code of Criminal Procedure seeking to set aside the judgment of conviction and order of sentence dated 23.12.2013 passed by the District and Sessions Judge, Bagalkot, in S.C.No.52/2011 for the offences punishable under Sections 144, 148, 302, 504 & 109 read with Section 149 of the Indian Penal Code and acquit the appellants. This appeal coming on for hearing, this day, Anand Byrareddy J., delivered the following:
JUDGMENTHeard Sri S.S.Koti, appearing for the counsel for the appellants and the learned State Public Prosecutor.
2. The present appeal is preferred against the conviction and sentence of life imprisonment imposed on the accused apart from :
3. : other punishments for the offences punishable under Sections 144, 148, 302, 504 and 109 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity) and award of compensation of Rs.50,000/- to PW-6.
3. The accused are nine in number. Accused Nos.1 to 4 are brothers and sons of Shri Rangappa Kankani. Accused No.5 is the son of accused No.1. Accused No.6 is the brother-in-law of accused 1 and 4 and a resident of a nearby village, in which the other accused lived. Accused No.7 is the wife of accused No.1 and accused No.8 is the wife of accused No.2 and accused No.9 is the son of accused No.4.
4. It was the case of the prosecution that on 22.09.2010 at about 6.30 a.m. at Hanchinal village, Bilagi taluk, Bagalkot district, the accused had constituted themselves as an unlawful assembly and accused No.1 with a common intention to commit the murder of the husband of PW-6, Siddalingappa, had assaulted him with an axe over his head and accused Nos.2, 3, 5 and 6 had assaulted him with clubs and a sickle and had also kicked him and accused Nos.6 to 9 had instigated the other accused to kill the deceased and it was thus :
4. : alleged that the accused had committed the offences punishable as aforesaid. It is in this background that charges had been framed against the accused who stood trial and the trial Court having convicted the accused on the basis of the evidence, the present appeal is filed.
5. The prosecution has alleged that the motive for the commission of the crime was that the grandfather of the complainant, namely the brother of the deceased, PW-1 had sold land bearing survey number 81/2 (incorrectly shown as 83/2 in the record) measuring 7 acres 3 guntas to accused No.1 without the consent of PW-7, who was the daughter of the deceased. PW-7 is said to have objected to the same and in this regard there was a civil suit filed in a Civil Court at Bilagi. The suit had been dismissed. Though an order of status-quo had continued during the pendency of the suit and also in an appeal preferred against the said judgment and decree, had ultimately attained finality in a Regular First Appeal before this Court in its appellate jurisdiction having been dismissed by this Court as on 13.09.2011. Therefore, the accused were nurturing ill-will against the deceased and his family members and :
5. : had thus chosen to attack him at 6 a.m. on the said day when he was on his land in survey number 83/2 of Chikka Hanchinal village. That when he was defecating in the open, as was his habit, with a pot of water in his hand and it is stated that within about 10 minutes of his leaving the farm house in which they lived about 400 metres away from the spot where the incident is said to have taken place. PWs-1, 6 and 7 are said to have heard a commotion and when they had gone there to investigate and when they were 10 metres away from the spot, they had seen the accused assaulting the deceased.
6. In that, according to PW-1, the complainant saw accused No.1 assaulting the deceased Siddalingappa on his head with an axe, accused No.2 was seen assaulting him on his right wrist with a stick and accused No.5 assaulting with a sickle on the left ear portion of the deceased. Accused No.4 assaulting him with a stick on the right leg and accused No.3 also assaulting him with a stick on the right leg and accused No.6 was seen kicking deceased on his right ribcage and accused Nos.7, 8 and 9 were exhorting the accused to continue assaulting the deceased till he died and they were also shouting that he was responsible for the land dispute on behalf of his mother-in- :
6. : law Smt.Kamalavva. It was the case of the complainant that, by the time he and the wife of the deceased and the daughter of the deceased, PW-6 and PW-7, respectively, could intervene, the accused had assaulted and run away from the scene of offence carrying the weapons with them.
7. It is thereafter that the complainant and others had tried to save the deceased who was profusely bleeding from the injuries and had taken him on a motorcycle of one Adiveppa Modi. Adiveppa Modi was the rider of the motorcycle and it transpires that Bassayya Hiremath was riding pillion and the injured was made to sit between them and he was carried to the hospital in that fashion to the Government Hospital at Galagali. There the medical doctor available had advised shifting the injured to a hospital at Jamkhandi and accordingly, he was shifted to Jamkhandi in a jeep and in the Government Hospital at Jamkhandi, the Medical Practitioner after examining Siddalingappa, had declared him dead.
8. It transpires that by the time they reached the Galagali hospital, it was 9 a.m. and the police were present at the hospital by about 9.45 a.m. and that a complaint was lodged at 11 a.m. at the :
7. : hospital itself and it is the said complaint that is identified as Ex.P.1 with the signature of the complainant on the same and he admits that there was some delay in lodging the complaint on account of the shock that he had suffered and he has also identified the weapons used which were produced as material objects at the trial. It is this evidence of the complainant which is said to have been corroborated by PWs-6 and 7 who have consistently stated as to which of the accused had assaulted the deceased on which part of his body and with what weapon. It is this, which has prompted the Court below to hold that notwithstanding any minor inconsistencies in the manner in the narration as to the manner in which the incident has taken place, the prosecution has proved its case beyond all reasonable doubt and on account of this consistent testimony of the witnesses, the trial Court has glossed over any infirmities which were sought to be canvassed at the trial.
9. The learned counsel Shri S.S. Koti would submit that the infirmities and the inconsistencies apart from the blatant illegalities that are apparent in the case has been completely over looked by the trial Court and in this regard he would submit that the existence of :
8. : the farm house or the shed in which the deceased was said to be living along with PWs-1, 6 and 7, is itself in doubt and the fact of those accused living in that premises is also not established with any degree of certainty. It is pointed out that apart from giving an incorrect identity of the land on which the incident had taken place, the evidence of the existence of the farm house is spoken to by PWs-8 to 12. All of these witnesses had turned hostile and therefore, to rely on the evidence of those witnesses as to the existence of the farm house is difficult to accept.
10. Secondly, it is pointed out that the complaint is said to have been filed and the registration of the crime and the investigation that is conducted and the proceedings that are recorded are even before registration of the complaint, which is a glaring illegality and not merely an irregularity. The illegality is of such a degree that it would go to the root of the matter. In this direction, he would point out that the incident has taken place between 6.00 and 6.30 a.m. on 22.09.2010. It is pointed out that the Medical Practitioner at Jamkhandi has declared that the deceased was brought dead. Therefore, it is not evident as to when exactly the deceased had died. :
9. : Going by the testimony of some of the witnesses, he was already dead when he was being moved from Galagali hospital to Jamkhandi hospital.
11. Apart from this fact, it is pointed out that according to PW-1, the police were already present at the hospital by 9.45 a.m. It is candidly admitted by PW-1 that he chose to file a complaint at about 11 a.m. The same has been registered only at 3 p.m. The reason given for the inordinate delay is that the Jamkhandi and the Bilagi police station, where the crime was actually registered, are 50 kilometres apart. The inordinate delay in registering the complaint when the police were present right from inception is indeed a mystery and would therefore not justify the further actions of the police when the case is actually registered. This circumstance is even more curious when it is noticed that an inquest has been conducted on the dead body at about 1.15 p.m. and even though it is admitted on record that a case in Crime No.217/2010 was registered only at 3 p.m., the inquest panchanama curiously contained the very crime number. It is inexplicable that a crime number is mentioned in the inquest pachanama which was conducted at 1.15 p.m. when the case :
10. : itself has been registered at 3 p.m. It is pointed out that the specious explanation offered in this regard by PW-18, the Investigating Officer who has sought to save the day by mentioning that though the case was registered only at 3 p.m., he had taken the initiative of calling the police station at Bilagi and ascertained as to what the next crime number would be and it is on receiving the information that the next crime to be registered in the Bilagi police station would be 217/2010, he had assigned such a number in the inquest panchanama, well in advance and therefore, there was no irregularity. However, it is pointed out that PW-16 in his evidence has candidly stated that he had never contacted the police station and there was no occasion to provide any instructions. This would straight away indicate that there is a cover up by the prosecution for reasons best known, as to the time of death of the deceased, the time of the complaint having been lodged, the time when it was actually registered and the manner in which such a number was available even at 1.15 p.m. though it is claimed to have been registered at 3 p.m. To compound this confused circumstance, the investigation had been largely completed even before the case was registered. This is evidenced from the testimony of evidence of PWs-15 to 19. :
11. : All of them have spoken about the sequence of events in conducting the investigation, gathering the so-called incriminating materials and also regarding the statement of several witnesses. This, the learned counsel would submit is clearly hit by Section 162 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.’ for brevity) as laid down by a Constitution Bench of the Supreme Court in the case of LALITHA KUMARI VS. GOVERNMENT OF UTTAR PRADESH (2014 (2) SCC) wherein it has been held that without the registration of a complaint, the investigation having been carried out would be illegal and is impermissible for it gives room for developing a case against the accused to suit the prosecution and is in contravention of basic principles of law and it would give rise to a presumption that the prosecution has tailored its case to implicate and frame the accused and has not followed the mandatory procedure in the manner of registering the complaint and carrying out investigation in the case.
12. It is also pointed out that the sequence of events which are sought to be established by the prosecution was by examination of several witnesses. Apart from PWs-1, 6 and 7 who are said to be the :
12. : eye witnesses, there were other witnesses namely PWs-8, 9, 10, 11 and 12 who were also said to be the eye witnesses. But, none of those witnesses namely PWs-8 to 12 have supported the case of the prosecution and have been treated as hostile witnesses. Therefore, what remains on record is only the testimony of PWs-1, 6 and 7 to claim that the prosecution had established its case as to the overt acts committed by each of the accused in the commission of the murder of the deceased and therefore, a case had been established.
13. In this regard, the learned counsel Shri Koti would point out that apart from the fact that PWs-1, 6 and 7 are the blood relatives and the wife of the deceased, their evidence is not supported by any independent evidence, nor is it corroborated. The consistent testimony of these witnesses all of them reiterating the manner in which the incident has taken place, the accuracy with which each of the witnesses has stated as to which of the accused caused which injury and on which part of the body of the deceased, as if the entire sequence had been videographed, is difficult to accept. It is pointed out that the very presence of these accused at the scene of crime is also difficult to accept. :
13. :
14. It is the case of the prosecution that the deceased had left his house at about 6 a.m. as was his usual practice to defecate in the open or answer the ‘second call of nature’ as it is generally referred to in these parts, and it was at that time that he was attacked by the entire family of the accused. The evidence tendered is to the effect that 10 minutes after the deceased left the house that PWs-1, 6 and 7 had heard a commotion and had gone there to investigate, the spot was said to be 1200 feet or 400 metres away from the house. If they had heard the commotion while inside the house from a distance of 1200 feet and as the land was not a barren plain land but was said to be irrigated land with a standing sugar cane crop which had grown to a height of 5 feet, it was difficult to fathom as to how the said witnesses could readily identify the accused in the area from which the commotion was heard and how quickly they could have reached the spot. That, if the commotion had started by the time they left the house and one is to imagine the manner in which the injuries have been caused as stated by them, the attack would have commenced probably much before the witnesses could reach the spot and therefore, the manner in which the accused were said to be :
14. : attacking the deceased as stated by the witnesses cannot be readily accepted. For one other reason, namely that a single individual can be effectively attacked by about 4 people at a given point of time and for six people at least, to have attacked the deceased, simultaneously, was a physical impossibility that is not clarified by the witnesses as to whether the deceased had been chased or not before he was attacked. It is also not clarified whether he was caught by the accused in the act while he was defecating, and had been attacked or whether he had completed that exercise even before he had been attacked. It is also not the case of the prosecution that the pot of water carried along with him and the footwear that he was wearing had been recovered from the spot. There is no such evidence tendered.
15. Therefore, the testimony of PWs-1, 6 and 7 who have stated with unerring accuracy of the overt acts committed by each of the accused which are reproduced hereunder in tabular form, is an amazing account by each of the witnesses, as if it was videographed by each of them. Accused As complaint per A1 A2 A3 A4 A5 A6 A7 A8 A9 Axe-head Stick-right hand Assaulted sickle-right hand Assaulted Assaulted No allegation No allegation Assaulted :
15. : PW-1 Same Stick- right hand wrist portion Stick-right leg stick-right leg sickle-left ear Kicked right rib provoked provoked provoked As per evidence PW-6 Same Same PW-1 as as as as Same PW-1 Same PW-1 Axe on left ear Same PW-1 same PW-1 same PW-1 same PW-1 as as as PW-7 Same Same PW-1 Right and rib Same PW-1 Same PW-1 Same PW-1 Same PW-1 Same PW-1 Same PW-1 as leg as as as as as as 16. This is a physical and mental impossibility which would itself indicate that the witnesses had been tutored to narrate the incident in the manner as stated. The very similarity as to the overt acts of the accused is difficult to accept as being natural and true to the fact. Therefore, the parroted testimony ought to have been discarded by the Court. :
16. :
17. This is further compounded by the fact that by the time the matter reached the trial stage, the case has been improved from time to time and the evidence tendered before the Court is a complete departure from the initial complaint and has been an exercise of building on a foundation which was not laid and hence, the trial Court has failed to separate the grain from the chaff and has mechanically accepted the evidence sought to be tendered as being true and acceptable.
18. The learned counsel would further point out that the time of death of the deceased is also in grave doubt. This is for more than one reason. It is pointed out that at the post mortem it was found that there was semi digested food in the stomach of the deceased. According to the authorities on Medical Jurisprudence and Toxicology, it is known as a scientific fact that the digestion of food depends on various factors, which is admitted by PW-5, that complete digestion of food would require a minimum of 4 to 5 hours. He has stated that the deceased might have consumed food, 2 to 3 hours prior to his death which was partially digested. In the instant case, semi digested food having been found in the stomach :
17. : of the deceased coupled with the fact that according to PW-6 the deceased had consumed his dinner at 9 p.m. on the previous night of the incident would not explain as to how there was semi digested food in the stomach of the deceased.
19. The post mortem had been conducted at 6.30 p.m. on 22.09.2010. It is stated in the post mortem report that rigor mortis was found in the upper limbs of the deceased. It is a known scientific fact that digestion of food would again depend on the region and the climatic condition and if rigor mortis had fully developed at the time of post mortem examination, the death would have occurred at least 20 hours before the post mortem examination but not within 12 hours. He also points out that the ascendancy and descendancy not being mentioned in the post mortem report, the time of death of the deceased is also suspicious. Since the post mortem examination was conducted within 12 hours from the time of death, the presence of rigor mortis is therefore mysterious, if the time of death is to be reconciled with the presence of rigor mortis.
20. Nextly, it is pointed out that the post mortem report does not indicate whether several injuries found on the dead body of the :
18. : deceased were ante mortem or post mortem. This is a crucial aspect which is absent from the examination and this has been completely overlooked by the trial Court. The author of the report has candidly stated that he had not stated as to whether the injuries were ante mortem or post mortem in his report. Further, it is pointed out that in the complaint, there was no reference to a sickle having been used by accused No.4. But, strangely in the course of evidence, it is made out by not one, but three witnesses that the accused No.4 was armed with a sickle. This is a glaring improvement sought to be made by reference to material which is said to have been discovered at the instance of the prosecution. Reliance is placed heavily on the so- called voluntary statement on the basis of which recoveries are made. It is also urged that even if the voluntary statements are relied upon for the purposes of claiming that recoveries were made, such voluntary statements cannot be used as proof of the alleged overt acts of the accused but the trial Court has proceeded on the basis that it could be so acted upon which is again an illegality which cannot sustain the judgment impugned. :
19. :
21. It is also pointed out that the so-called weapons used are commonly available with any agriculturist and to characterise the same as the weapons used in the commission of the offence, ought to have been established by reference to such incriminating evidence if at all, namely that the weapons were all blood stained and the blood belonged to the deceased and that the weapons had been actually used by any of the accused. For otherwise, common articles such as an axe and clubs being used in the commission of the offence and the same having been wielded by the accused or the death having been caused by the weapons, becomes difficult of demonstration, which the trial Court has mechanically accepted. There is no evidence forthcoming as to the so-called blood stains being of the blood belonging to the deceased. In the absence of this clinching evidence, the trial Court having proceeded to hold that the prosecution had established its case beyond all reasonable doubt is not sustainable.
22. It is further pointed out that no doubt it is well settled that the evidence of witnesses cannot be rejected merely on the ground that it is the evidence is of so-called interested witnesses when witnesses :
20. : are either related to the deceased or otherwise keen to frame the accused in a given case, but, then it is pointed out that such testimony can be safely relied upon when it is corroborated by other independent witnesses which is not present in the case on hand.
23. On the other hand, the endeavour of the prosecution to support such testimony of PWs-1, 6 and 7 by the testimony of PWs- 8 to 12 has miserably failed as none of these witnesses have supported the case of the prosecution and have been cross-examined at length by the prosecution and there are omissions and contradictions in each of their testimony which again cannot be relied upon. Though, it is the settled legal position that the evidence of hostile witnesses cannot be automatically discarded but still be relied upon by the prosecution to the extent that it may support the case of the prosecution.
24. Therefore, reliance placed on the evidence of PWs-1, 6 and 7 which has already been demonstrated to be tutored, as is evident from the circumstances and the sequence of events, the prosecution could not be said to have established its case beyond all reasonable doubt. :
21. :
25. The evidence of the investigating authorities namely the Police Officers, PWs-15, 16 and 17 is again inconsistent and does not safely explain the sequence of events particularly of the manner in which the complaint appears to have been registered. The investigation having been carried out even before the complaint was registered and the curious mention of a crime number in the inquest panchanama even before a case was registered and the even more curious explanation offered by PW-18 that he had obtained such a crime number in advance and that it was no irregularity in having mentioned the same even before a case was registered. Further, it is also on record that the Investigation Officer was apparently not present at the scene immediately after the incident as is evident from the testimony of PW-16 who has stated that the Investigation Officer, PW-18 was camping at Jamkhandi on the date of the incident and had not visited the spot at all. This would further create doubt as to the testimony of PW-18 to the contrary. PW-16 has also candidly stated that there was no phone call made by the Investigation Officer to ascertain the crime number that would be assigned to the next case in the police station, which is the :
22. : explanation offered by PW-18 in assigning such a number in advance.
26. It is also pointed out that the medical evidence tendered through PWs-5 and 6 is also not consistent. The evidence of PW-5 would straight away establish that PW-6 having stated that the deceased had his dinner at 9 p.m. on the previous night by the fact that semi digested food was found in the stomach of the deceased and therefore, the opinion of PW-5 was that the deceased apparently had died three hours after he had consumed food as was evidenced by semi digested food in his stomach and accordingly, there is a serious doubt created about the time of death.
27. It is pointed out that the voluntary statements, namely of PWs-22 and 23, on the basis of which recoveries are said to have been made of incriminating weapons used in the commission of the offence also cannot be relied upon for the reason that the statements do not pertain to the accused alone but are the statements made involving other persons which is impermissible to be treated as a voluntary statement. The question of such a statement implicating others being relied upon to implicate those others is impermissible :
23. : and unknown to law. The reference to certain articles which are marked as incriminating materials can only be proved by recovery of the said object but it cannot be used as the statement to prove the commission of the offence itself as a fact and this not having been considered by the trial Court in addressing the testimony of PWs-22 and 23 results in a travesty of justice, to the grave prejudice of the accused.
28. It is pointed out that accused No.5 is a young man of 19 who was implicated merely because he is the son of accused No.1 and he has been languishing in prison for the past 7 years and on the basis of the tardy evidence in the present case on hand. That grave injustice has been caused in this regard is glaring and therefore, the entire case sought to be made out on the basis of such scanty material without any proof. And assertions that are without any basis, being the sole criteria on which the trial Court has found the guilt of the accused, has resulted in grave injustice to the accused.
29. One other glaring feature which directly impacts on the existence of the farm house or the shed in which the deceased was living along with his family is the fact that the spot mahazar and the :
24. : sketch prepared at Ex.P.5 and Ex.P.21, respectively, do not disclose the existence of the said farm house or the disputed land which was the motive for the ill-will and the alleged commission of murder. This, the learned counsel would submit, is yet another grave irregularity that has been over looked by the Court below in finding the guilt of the accused. In this regard reliance is placed on several authorities on various aspects.
30. In the case of PULUKURI KOTTAYYA AND OTHERS VS. THE KING EMPEROR (Privy Council 60 LW258, in a classic statement the Privy Council has laid down as follows: “Section 27 of the Evidence Act is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly it can be safely allowed to be given in evidence. But the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the Section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornament, said to be connected with the crime of which the :
25. : informant is accused. But, it is fallacious to treat the “fact discovered” within the Section as equivalent to the object produced and to treat the information in the accused’s statement relating to the object as admissible under that Section. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. If the accused stated “I will produce a knife concealed in the roof of my house with which I stabbed the deceased”. The words “I will produce a knife concealed in the roof of my house” would be admissible under Section 27 as leading to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and, if the knife is proved to have been used in the commission of the offence by other evidence, the fact discovered would be very relevant. But the words “with which I stabbed the deceased” are inadmissible since they do not relate to the discovery of the knife in the house of the informant. The difficulty of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into Section 27 something which is not there, and admitting in evidence the confession barred by Section 26. Except in cases in which the possession, or concealment of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution :
26. : case. It is only one link in the chain of proof and the other links must be forged in the manner allowed by law. I.L.R.1937 Mad. 695 (F.B.): Overruled. 10 Lab. 283 and 56 Bom.172 : Approved.” And hence, it is pointed out that the reliance placed on the voluntary statements in proof of the alleged commission of murder was impermissible and the trial Court could not have acted upon it.
31. In the case of STATE OF ANDHRA PRADESH VS. PUNATI RAMULU AND OTHERS (AIR1993SC2644, it has been found that once it is found that the Investigating Officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation; as one would not know where the police officer would have stooped to fabricate evidence and create false clues and this, the learned counsel would submit would :
27. : squarely apply to the sequence of events in the present case on hand giving a grave doubt that are thrown as to the timing and sequence of events that are brought on record.
32. This has been followed by a division bench judgment of this Court in H.C.KARIGOWDA @ SRINIVASA VS. STATE OF KARNATAKA (2013(3) KCCR2014. In so far as the testimony of interested witnesses is concerned, it is again pointed out with reference to the decision of the Supreme Court in the case of STATE OF PUNJAB VS. JIT SINGH (1995 SUPREME COURT CASES (CRL)
156) that when interested witnesses are examined, it is well settled that evidence has to be tested in the light of the probability and the previous statement and the surrounding circumstances and that the evidence should inspire confidence in the Court.
33. In the present case on hand, it is pointed out that since the testimony of these interested witnesses namely PWs- 1, 5 and 6 is not corroborated by any other independent witnesses, their evidence :
28. : ought to have been viewed with circumspection and with due regard to the possible tutoring of the witnesses to frame the accused.
34. In so far as recovery of the weapons is concerned, reliance is placed on BHIMAPPA JINNAPPA NAGANUR VS. STATE OF KARNATAKA (1993 SUPREME COURT CASES (CRL.) 1053), to state that in the absence of a disclosure statement, the recovery of an axe itself becomes meaningless. The trial Court could not have relied upon such extra judicial confession in arriving at a conclusion that the factual aspect of the overt acts alleged against the accused have also been established merely by the recovery of any weapon.
35. Placing reliance on the decision in STATE OF PUNJAB VS. DALJIT SINGH AND ANOTHER (2004 SUPREME COURT CASES (CRL.) 1776), it is contended that the delay in lodging a First Information Report and the explanation offered in sending the First Information Report to the Court, would be fatal to a case as is laid down in the said decision and the same would apply on all fours to the present case on hand, having regard to the :
29. : inordinate delay and the unexplained manner in which the lop sided investigation and registration of complaint has taken place.
36. Similar, is the position as laid down in MEHARAJ SINGH VS. STATE OF UTTAR PRADESH (1995 CRI.L.J.457) wherein the Supreme Court has reiterated the view as to the failure of the prosecution to prove the guilt beyond reasonable doubt when there was no clarity as to when exactly the complaint was registered and when exactly the First Information Report was sent to the Magistrate and therefore, the learned counsel Shri Koti, with deep pain anguish would plead that the accused, who are nine in number, are all of the same family being implicated in the manner that is evident from the record and the accused having suffered incarceration over the years in the absence of cogent evidence or acceptable evidence, has resulted in grave injustice and that it is only this Court which could come to the aid of the accused who have been falsely implicated and have continuously suffered punishment for no fault of theirs and when the prosecution has miserably failed to bring home the charges against the accused. :
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37. In so far as the infirmities as regards the registration of the First Information Report and the investigation having been commenced even prior to the registration of the First Information Report being illegal and fatal to the case of the prosecution as laid down by a Constitution Bench of the Honourable Supreme Court in Lalitha Kumari’s case supra, to the effect that the registration of an First Information Report is mandatory under Section 154 of the Code of Criminal Procedure is primary in such a situation. This is a general rule and must be strictly complied with, for otherwise the entire exercise becomes illegal and tainted which would render the proceedings void and illegal. It is in this manner that the learned counsel seeks that the judgment impugned be set aside and the accused be acquitted.
38. The learned Special Public Prosecutor, on the other hand, would seek to justify the judgment of the court below and seeks to meet the contentions raised on behalf of the appellants. Firstly, as regards the doubt created of the very existence of a shed or a farm house of the deceased not being supported by any evidence it is contended is incorrect. Apart from PWs.1,6 and 7, who have stated :
31. : the factum of the deceased and they living in the said shed as on the date of the incident, an independent witness PW.8 has categorically corroborated the said fact. Though he was treated as a hostile witness and was cross-examined by the prosecution, he has categorically stated that he knew the deceased and that he along with PWs.1,6 and 7 were indeed living in a shed, as stated by them, as on the date of the incident. Though the said witness has been further cross-examined by the defence counsel as well, this assertion as to the deceased and the above witnesses residing at the farm house has not been controverted nor challenged. Therefore, it cannot be said that the existence of a farm house or a shed has not been established beyond all reasonable doubt. Exhibits P.5 and P.21 namely, the sketch and the spot mahazar not disclosing the existence of the farm house is not an infirmity, which would dislodge the evidence tendered as regards the existence of the shed in the farm house.
39. Further, insofar as the complaint being hit by Section 162 of the CrPC, is concerned, as it is alleged that the investigation has been carried on even without the complaint of a cognizable offence having brought to the attention of the Police being fatal is sought to :
32. : be refuted by pointing out that even according to PW.1, he had thought it fit to report the incident only at about 11am and immediately thereafter, the same has been despatched through PW.15 from Jamakhandi to Bilagi Police Station, which are about 50 kilometres apart, and the time taken to reach the station and thereafter to register the complaint, even after some delay, it would only point to the inefficiency on the part of the Police and that by itself would not enable the accused to plead that they be absolved of the crime. This would amount to placing a premium on the inefficiency of inept police officers in having failed to discharge their duties with diligence. And the so-called delay would not by itself render the proceedings illegal or irregular. The allegation that there is a lopsided procedure in the investigation having been carried out even before the registration of a complaint is therefore not established at all. The registration of the complaint having been set in motion, the prosecution being expected to await registration of the same in order to take further steps may result in many a crime going without properly being investigated. It was sufficient that the process of registration of the complaint was set in motion at 11 am, and therefore, the ultimate registration of the complaint at 3 pm :
33. : would not vitiate the proceedings. Nor would render the investigation illegal. In any event, it is only if the accused are in a position to demonstrate that by recourse to such a procedure, injustice has been caused to the accused, they would not be in a position to plead the alleged infirmity as being illegal or vitiating the proceedings.
40. Insofar as the assignment of a crime number which is referred to in the inquest panchanama conducted at 1.15pm, though registered at 3.15pm, is aptly explained by PW.18, who has indicated that he had telephoned the police station to ascertain as to would be the number that would be assigned to the next complaint registered and after obtaining the information has assigned the number in the inquest panchanama, which cannot be said to be illegal at all as the actual number assigned was indeed the number shown in the inquest panchanama. The fact that PW.16 has in his evidence stated that there was no such phone call made by PW.18 to the police station to ascertain the crime number is immaterial and can be safely ignored as the assertion of the Investigation Officer in this regard cannot also be disbelieved. In any event, the said entry in the inquest :
34. : panchanama as regards the crime number has not resulted in any miscarriage of justice and therefore is a minor infirmity that does not go to the root of the matter or in any way dislodge the case of the prosecution.
41. It is pointed out that the assertion as to the voluntary statements at Exhibits P.22 and P.23 being the basis for the court to have found the overt acts of the accused as having been established is an incorrect proposition. Even according to the learned Counsel for the appellants, the recovery of the incriminating material on the basis of voluntary statements would certainly be proved by recourse to the voluntary statements and the endeavour of the prosecution in this case was only to this extent and not also to establish the overt acts of the accused which are otherwise established by recourse to the evidence of PWs.1, 6 and 7, who are the direct eye witnesses to the incident. The contention that the PWs.1,6 and 7 are the interested witnesses and that their testimony ought to be trashed is also not a statement that has any legal basis. There are a line of cases decided by the apex court as well as other courts of the land, laying down that there can be no hard and fast rule as regards the :
35. : acceptance or otherwise of the so-called interested witnesses. If they are the only witnesses to the incident, to discard their evidence would result in the accused going scot-free merely because the only evidence available is that of the so-called interested witnesses. It is always a question of the evidence of such witnesses being acceptable to the court and not more. It is not necessary that the case should be proved only by independent disinterested witnesses. Hence, the allegation that the witnesses were keen on framing the accused on the basis of the tutored evidence is an unfair allegation and is not borne out by any witnesses being tested in cross-examination. All the three witnesses namely, PWs.1,6 and 7 have withstood the lengthy cross-examination thereby establishing their credence and veracity of their testimony which has been to the satisfaction of the trial court and there is no infirmity or doubt raised on account of their testimony. The pointed allegation that all the three witnesses have consistently stated with unfailing accuracy and in great detail as to the manner in which the injuries have been caused to the deceased and the manner in which each of the accused having inflicted a particular injury with a particular weapon, being unnatural, is again an unfair attribution to the witnesses. The fact :
36. : that they have consistently narrated the incident ought to be appreciated, which would certainly bring home the charges against the accused. The same being dubbed as tutored testimony of the witnesses merely to frame the accused when they were speaking the truth and the accurate manner in which the incident had unfolded cannot be countenanced. The learned State Public Prosecutor therefore would submit that the evidence of those witnesses has squarely implicated the accused and has established the charges against them beyond reasonable doubt.
42. Insofar as the evidence of the Medical Practitioners disclosing that the time of death, as stated in the complaint and as sought to be established by evidence, being inconsistent, only on the basis of the Post-Mortem Report, which had indicated that there was undigested food in the stomach of the deceased, by itself would not cast suspicion on the time of death or the testimony of PW.6, who had stated that the deceased had his dinner at 9pm on the previous night and that therefore there was no possibility of the partially digested food remaining in the stomach of the deceased even after almost 12 hours from the time he consumed the food. The learned Counsel :
37. : would point out, as laid down by the Supreme Court, the medical opinion of an expert is not the final word and that even according to an authority on Medical Jurisprudence and Toxicology, Dr.Modi, the presence or otherwise of the digested or undigested food may vary on account of several factors and there can be no hard and fast rule as to the manner in which the food gets digested and to fix the time of death or the time within which the death may have occurred after the deceased had consumed his food, is no more an accurate manner of ascertaining the time of death. Hence, not much turns on the so-called inconsistency between the evidence of PW.5 and PW.6. Therefore, it is contended that the defence has sought to make mountain of molehill insofar as the alleged infirmities are concerned and the trial court has assigned cogent reasons in arriving at its conclusions with reference to the material objects and evidence which has been established beyond all reasonable doubt.
43. Further, the contention that insofar as the official witnesses namely, PW.15, PW.16, W.17 and PW.18 being inconsistent and not supporting the case of the prosecution is only with reference to the minor variations, which would not dilute the case of the prosecution :
38. : and therefore, there is no substance in the same and hence seeks that the appeal be dismissed.
44. Further, the learned State Public Prosecutor would submit that the aspect of rigor mortis having been found in the upper limbs of the deceased would also not establish the suspicion sought to be cast on the accuracy of the time of death and therefore, the correlation to the incident having taken place for the reason that the rigor mortis is again a circumstance which can vary with the climatic conditions and the region in which a death takes place. Therefore, mere presence of the rigor mortis and whether it was in the stage of ascendancy or descendancy not being stated in the post mortem report would not advance the case of the appellants.
45. By way of reply, Shri Koti would point out that the learned State Public Prosecutor has not denied that there was a investigation carried out even before the case was registered. The contention that the registration of the case has been set in motion the moment the complaint was despatched to the police station for registration and therefore, there was no impediment for the investigation being carried on cannot be readily accepted. The :
39. : inordinate delay ought to be explained. There is no explanation for the delay. When it is seen that after the registration of the complaint, it has taken exactly 40 minutes for the witnesses to return to the hospital, would indicate that it could not have taken more than 4 hours for the complaint to have reached the police station. This unexplained circumstance certainly vitiates the entire proceedings, as laid down by the constitution bench judgment in Lalita Kumari’s case, supra. Hence, the first infirmity which is a patent illegality is not convincingly explained and the appeal would have to be allowed on that count alone.
46. Insofar as the contention that the evidence of PWs.1, 6 and 7 along with that of PW.8 has established the existence of a farm house, is not substantiated by the official records namely, Ex.P.5 and P.21, which are the sketch and the spot mahazar which significantly do not refer to the existence of any house, which was crucial in establishing that there was a commotion created that the deceased was attacked by the accused could be heard in the house by PWs.1, 6 and 7 which was very material in establishing the sequence of events. In the absence of any material proof as regards the :
40. : existence of the house, relying on the oral testimony of PW.1, 6 , 7 and 8, would lead to a miscarriage of justice. Therefore, the learned counsel for the accused would contend that this aspect of the matter is also left without being properly established and would enure to the benefit of the accused.
47. Further, as regards the recovery of axe and the clubs being established would not establish the commission of the crime. As the State Public Prosecutor does not seek to place reliance on the said voluntary statements as proof of the commission of the acts, but only for the recovery of weapons. The voluntary statements said to have been recorded could not advance the case of the prosecution and the socalled weapons that are seized are common articles such as an axe and clubs. A sickle, which is thrown in as an after thought, there is no basis laid in the complaint for the possession of a sickle by accused no.4 as was later sought to be improved upon. These were common objects which could be found in any agriculturist’s home. The mere recovery of such material by itself would not establish the commission of the crime in the absence of other incriminating evidence, such as blood stains and the demonstration :
41. : that any such blood stains were of the accused and that the accused indeed having employed material objects in committing the crime. In the absence of such categorical evidence, the mere recovery of such common material could not be held to be incriminating material that brought home charges against the accused.
48. Insofar as the medical evidence is concerned, the direct inconsistent aspects with reference to the time at which the deceased had consumed food and the presence of any digested food in his stomach at the time of post-mortem cannot be dismissed as being a circumstance which would not establish the time of death. The reference to the judgment of the Supreme Court in the case of Shivappa and others vs. State of Karnataka, (2008)11 SCC337 wherein the Supreme Court has opined that the variation between the medical evidence and the testimony of the eye witnesses is not such as would lead to a conclusion that the prosecution was not correct and the view expressed in Modi’s Medical Jurisprudence, wherein it is noted that insofar as the food contents are concerned, they remain for long hours, the duration thereof depends on various factors. It is pointed out that the Supreme Court has not referred to :
42. : the duration of time and the general observation as to long hours would indicate that they were not measuring the period during which the food could have remained in his stomach. In the present case on hand, the time at which the food had been consumed is available. The time at which the post-mortem was conducted is also apparent and therefore, the opinion of the Medical Practitioner as to the time of death being within 3 hours from the time he had consumed food, would certainly be a major lacuna in the case of the prosecution which has not been explained.
49. The further contention that the evidence of PWs.1, 6 and 7 ought not to be viewed with suspicion for they are interested witnesses, would be a proposition that could be accepted in the light of the law laid down, provided the same evokes the confidence of the court and was corroborated by other independent evidence. In the present case on hand, there is no such corroboration. Given the unnatural manner in which the witnesses have spoken about every single act with great detail, when such an incident would take place in quick succession where the attack by the accused would be almost simultaneous and would be over within seconds, if not a little longer :
43. : and the circumstance that the witnesses PWs.1, 6 and 7 had heard a commotion and the cries of the deceased and had come running for almost four hundred metres before they witnessed the scene, is difficult to accept. Especially when the evidence of these witnesses appears apparently contrived and tutored to suit the case of the prosecution.
50. Further, insofar as the evidence of PWs. 15,16 and 17 are concerned, along with the evidence of PW.18, it is indeed pathetic on the part of the prosecution to assume that there is consistency which can be reconciled. On the other hand, the glaring contradictions, particularly of PW.18 seeking to explain the advance assignment of a crime number even before the case was registered, having recourse to a telephone call, whereby he had ascertained the case number that would be assigned of the crime registered at the police station and had proceeded to furnish such detail even before the case has been registered is unknown to procedure and such an exercise being permitted may result in grave injustice and an illegality, which cannot be countenanced. It is indeed amazing that an explanation can be given by a responsible police officer in :
44. : claiming that a crime number had been assigned in advance even before the case was registered . This situation is unheard of and it is indeed strange that the trial court has not taken exception to such an explanation offered by a responsible police officer and therefore, such a contention ought to be negated outright and a serious note is to be taken of such a discrepancy which goes unexplained. For the explanation offered by the officer is no explanation as no court of law can accept such an explanation. Therefore, the learned Counsel would submit that the prosecution seeking to dismiss the serious infirmities and illegalities as being minor discrepancies is not tenable and hence seeks that the appeal be allowed and the judgment of the trial court be set aside and the accused be acquitted.
51. In the light of the rival contentions and on a close examination of the record as regards the complaint having been registered at 3pm, though the Police were aware of the incident at 9.45am itself and had continuously remained with PW.1 and the deceased and had followed through only from 11am when PW.1, the complainant is said to have lodged a complaint at the Jamakhandi hospital, which is claimed to have been registered at :
45. :
3. m and marked at the trial as Exhibit P.1, are not one and the same. In other words, PW.1 is said to have lodged the complaint at 11am, which is not Exhibit P.1. It is significant that the prosecution has not chosen to produce the original complaint lodged by PW.1 in this case in the first instance. This is an infirmity which is of serious concern and the trial court having glossed over the same is unacceptable. Secondly, the complaint admittedly having been registered only at 3pm, the record would indicate that the investigation has been carried on, such as collection of material, recording of the statements and the proceedings having gone on as if the case was already registered. The Supreme Court in Lalitha Kumari’s case has frowned upon such procedure being followed and it has made exceptions only in cases involving corruption, where there is possibility of a preliminary inquiry being conducted only for the purpose of ascertaining that a cognizable offence has been committed and not further. It is not permissible for the investigation being carried any further apart from ascertaining that a cognizable offence has been committed and without registration of the case, no investigation can be carried on. If this is kept in view, in the present case on hand, the procedure followed by the :
46. : prosecution is certainly hit by Section 162 of the Code of Criminal Procedure, 1973 and would completely vitiate the proceedings.
52. Insofar as the recovery of the incriminating material such as an axe said to have been used in the commission of the offence, as also a sickle and clubs on the basis of the voluntary statement of the accused nos.1 and 2 cannot lead to a presumption that they are indeed weapons that were used in the commission of the offence. The said material are common objects which would be found with any farmer and to claim that they were actual weapons used would require further evidence of incriminating material, such as blood stains or finger prints of the accused on the said weapons along with the blood stains and the fact that the blood contained therein was that of the deceased, so on and so forth . Mere recovery of a sickle and clubs by itself would not establish that the accused had indeed committed the crime. This is the law as laid down by the Privy Council as early as in the year 1947 which continues to be the law of the land and hence there can be no further mileage to be drawn from the said voluntary statement or recovery of the material. :
47. :
53. The narration of the sequence of events also throws doubt on the actual incident having taken place. The deceased was said to have left the house and walked into the sugarcane field for a distance of 400 metres or more, where his usual practice was to defecate in the open and therefore had carried a pot of water along with him. It is 10 minutes after he left home that PWs.1, 6 and 7 claimed to have heard some commotion and had gone out to investigate. It is their case that after leaving the spot, which was about 400 metres away from the house they came upon the scene of the accused together, assaulting the deceased. As stated by them, to imagine that the three witnesses could sprint to the spot where they noticed the incident taking place on hearing the commotion and would yet be in time to see as if in slow motion the attack taking place by each of the accused attacking the deceased in a particular manner, with a particular weapon, striking various parts of his body, is difficult to accept. It is as if the entire scene was frozen till such time the witnesses have been able to go from their house to the spot. This is difficult to digest. The narration by the witnesses as if each one had videographed the scene and was replaying the same in court, is unnatural and cannot be readily :
48. : accepted. It is almost impossible for two people to narrate the incident with such accuracy and in an identical fashion unless they were tutored and tutored over and over again to repeat the same with such accuracy. This itself is contrived and certainly does not evoke the confidence of this court for the reason that any such attack by such a large number of people and in the fashion that it has taken place, would happen normally without giving enough time for an on-looker to record, which of the accused did which act to recount it with such accuracy. Therefore, it does not evoke the confidence of this court to believe that the incident has taken place in the manner that PWs.1, 6 and 7 have stated and the trial court having mechanically accepted this evidence was not tenable. It ought to have been viewed with greater circumspection and there was need for corroboration of this testimony. For otherwise, it is evident that the witnesses were keen on implicating the entire family, including two of the women folk and a young man, who was implicated merely because he was the son of accused no.1. The further circumstance that all of them had descended on a place where the deceased had gone out to defecate is also not established, as to whether the man had completed his chore and that he was :
49. : attacked thereafter and whether he was attacked even when he was about it is not apparent. It is not also evident that he was chased around before he was set upon by the accused. The details are sketchy and vague. It is made to appear that the witnesses have instantly transported themselves to the spot immediately on hearing the commotion and were able to record the sequence of events with such accuracy. It is difficult for this court to accept this. Therefore, the very incident having taken place again becomes doubtful. As rightly pointed out by the learned counsel for the appellant, the mere recovery of the clubs, a sickle and an axe on the basis of the voluntary statement of the accused nos. 1 and 2 by itself will not establish the commission of any crime. At best, the recovery of those materials could be traced back to the voluntary statement and nothing turns on the recovery of such material, in the absence of the incriminating material which would have to be established by recourse to independent evidence and not merely on the voluntary statements.
54. Therefore, the law as laid down as regards the testimony of the interested witnesses also being acceptable is to be read with the :
50. : further rider that such testimony of the so-called interested witnesses would have to be gauged from case to case and it is only when such testimony is free from suspicion or other doubt, as to its veracity, that it be could accepted. Further, it is always better if such testimony is supported by independent evidence which corroborates the same. In the absence of which, when doubts are created about the correctness or veracity of the same, it ought not to be readily accepted. We agree with this contention. Therefore, the testimony of PWs.1, 6 and 7 by itself did not bring home the charges against the accused in the face of other infirmities, as have been vehemently contended by the learned Counsel for the appellants.
55. Insofar as the time of death and the possibility that the deceased had died much earlier and the entire case has been made up after due deliberations and to suit the case of the prosecution at a pace at which it is developed is concerned, going by the sequence of events and the lack of explanation in respect of the time lag from the time the complaint was lodged till it was registered before the court, being one aspect of the matter and the fact that the medical evidence revealed the presence of semi digested food, which would indicate :
51. : that the death has occurred within three hours, at least 3 to 4 hours from the time of consumption of the food, which the deceased is said to have had at 9pm the previous night, would clearly throw a doubt as to the time of death as claimed.
56. The inconsistency in the evidence of the Police officials is glaring and the same is highlighted by specific reference to the statements of the witnesses. As pointed out by the learned counsel for the appellants and coupled with the shoddy manner in which the procedure has been followed, the said inconsistent testimony of the Police Officers would clearly dilute the case further and would certainly not establish the case beyond all reasonable doubt. In the light of these serious infirmities and illegalities, which are apparent from the record, the appeal deserves to be allowed. The appeal is allowed. The judgment of the court below is set aside. Accused No.3 is said to be no more. The appeal would abate insofar as he is concerned. Insofar as the other accused are concerned, except accused nos.1 and 5, others are on bail. The bail bonds furnished by them stand cancelled. :
52. : Accused nos.1 and 5 shall be set at liberty forthwith. The fine amount, if any, paid shall be refunded to accused nos.1 to 5. The operative portion of the judgment to be communicated to the jail authorities, forthwith, for compliance. Sd/- JUDGE Sd/- JUDGE Jm/nv