Shambulinga and Others vs State of Karnataka and Others

Mohan M. Shantana Goudar, J.

The judgment and order of conviction dated 27th July 2009 passed by Sessions Court, Ramanagara, in S.C. No. 13/2007 is appealed against by the convicted accused Nos. 2 and 3.

Crl. A. No. 703/2009 is filed by the convicted accused seeking the order of acquittal.

Crl. A. No. 856/2009 is filed by the State for enhancement of sentence.

Crl. A. No. 855/2009 is filed by the State questioning the judgment and order of acquittal of the accused for the offence punishable under section 302 IPC.

The appellants in Crl. A. No. 703/2009 were accused Nos. 2 and 3 in S.C. No. 13/2007; accused No. 1 viz., Madaiah died during the course of trial, however, accused Nos. 2 and 3 were convicted for the offence punishable under Section 304, Part II r/w 34 IPC.

The case of the prosecution in brief is that accused No. 1 Madaiah, PW-2-Kempaiah and deceased Puttaswamaiah are brothers; they were residents of Vijayappanadoddi village; accused No. 2 is the son of accused No. 1 and accused No. 3 is the wife of accused No. 1; the family properties were partitioned among three brothers during the time of their father; PW-2-Kempaiah was cultivating his agricultural land, whereas, accused No. 1 was cultivating the land of deceased Puttaswamaiah also even after partition, inasmuch as, Puttaswamaiah was working as a teacher in a different village; wife of Puttaswamaiah was also a Government employee; she was an health assistant working in Government hospital in a different village; Accused No. 2 Shambulinga had submitted a declaration in form No. 7 for grant of occupancy rights in his favour claiming tenancy over the lands of deceased Puttaswamaiah; the Land Tribunal had granted occupancy rights in his favour; the order of the Land Tribunal was confirmed by the Appellate Authority and consequently, accused No. 1 was cultivating all the agricultural lands of deceased Puttaswamaiah as occupant; however, it seems deceased was pressurizing accused No. 1 to provide him a residential site for construction of the house, but such request seems to had been turned down by accused No. 1; as aforementioned, deceased was conducting tuition classes to school students in Doddagangawadi village and he was residing alone by taking a room on rent; whereas, his wife(Lingamma) was working in Volaluru village as an health assistant; on the date of the incident, i.e., on 26.6.1997, deceased came to the house of accused No. 1 and started quarrelling with all the accused pressurizing them to give back his lands as well as site; such quarrel was witnessed by PWs-2 and 3 who were residing in the nearby house; quarrel went on upto 8.00-9.30 p.m.; though PW-2 tried to intervene in the quarrel between his brothers i.e., deceased and accused No. 1, all the accused threatened PW-2 and told him not to intervene and hence PW-2 went back to his house and slept. On the next day morning, PWs-2 and 3 and the villagers of Vijayappanadoddi village found the dead-body of the deceased which was hanged to a tree. Immediately message was sent to PW-1, who in-turn came to the village with her daughter and saw the dead-body; PW-1 lodged the complaint as per Ex-P1 at 4.00 p.m. on 27.6.1997 suspecting involvement of all the three accused. First Information of PW-1 came to be registered by PW-13-Sub-Inspector of Police of Ramanagara Rural police station in Cr. No. 61/1997. PW-13 conducted part of the investigation. He handed over the investigation to subsequent office after his transfer, PW-14 another Inspector of Police took over the investigation on 22nd October 1997 and recorded further statement of PWs-1 after about six months from the date of the incident and laid the charge-sheet.

Thereafter trial began after framing charge against all the three accused. However, accused No. 1 expired. After recording of examination-in-chief of PW-1 to 3 by the trial court, PW-17-third Investigating Officer took over charge of the case and he filed application under Section 173(8) of Cr.P.C; he conducted further investigation with the permission of the Court and sought further opinion of the two doctors-PWs-10 and 18 as to the cause of death of deceased. He got the opinion of the Forensic Science laboratory experts as per Ex-P17 and P22. Thereafter, he filed additional charge-sheet before the Court. After filing of additional charge-sheet by PW-17, the cross-examination of PWs-1 to 3 was conducted.

In order to prove its case, the prosecution in all examined 18 witnesses and got marked 25 exhibits and 18 material objects. On behalf of the defence, five exhibits were got marked. As aforementioned, the trial court having held that the death of the deceased is due to twisting of the neck by the accused convicted accused Nos. 2 and 3 for the offence punishable under section 304, Part II IPC and 201 IPC.

Sri. G. Suresh, learned counsel appearing on behalf of the appellants taking us through the judgment of the Court below submits that the prosecution has not come before the Court with clean hands; it has tried to improve its case from time to time depending on the evidence of the prosecution witnesses before the Court; after recording examination-in-chief of PWs-1 to 3 only, further investigation came to be conducted by Inspector-PW-17; he got the opinion of the experts to suit the case of the prosecution and to defeat the versions of PWs-1 to 3 which were already recorded; the subsequent statements of PWs-2 and 3 containing the vital material against the accused were recorded only after six months; absolutely no valid reasons are forthcoming from the Investigating Officer as to why he did not record such statements earlier; so also absolutely no valid reasons are forthcoming from PW-2 and PW-3 as to why they did not disclose about such vital facts when their statements were recorded immediately after the incident; he further submits that all the three experts'' opinion regarding cause of death are contradictory to each other; the opinion of the Doctor (PW-12) who conducted the post-mortem examination has got more weightage in the matter on hand, inasmuch as, he had the benefit of seeing the dead-body and conducting post mortem; whereas, the other two experts viz., PWs-10 and 18 have given the opinion, after about more than two years after the incident in question merely based on the photographs of the dead-body and copy of the post-mortem report sent to them; he further submits that since three contradictory versions are on record, the opinion in favour of the accused needs to be preferred; more particularly when such opinion is rendered by the Doctor who conducted the post-mortem examination and who had got the benefit of looking to the dead-body while furnishing the opinion. According to him, the reasons assigned to arrive at a conclusion by the trial court are improper and incorrect.

Sri. Keshava Murthy, learned Addl. SPP submits that the trial court is not justified in convicting the accused for the offence punishable under Section 304, Part II IPC; since the trial court was of the clear opinion that the deceased was done to death by accused by twisting his face forcibly, the accused are liable to be convicted for the offence punishable under Section 302 IPC. He further submits that the evidence on record is sufficient to bring home guilt against the accused Nos. 2 and 3.

The learned Amicus Curiae Sri. Anil Kumar N.S. also assisted Sri. G. Suresh, the defence counsel as well as the Court.

PW-1 is the wife of the deceased. She lodged the first information as per Ex-P1 at 4.00 p.m. on 27.6.1997; on getting information about the death of the deceased, she came to Vijayappannadoddi village and saw the dead-body; after seeing the dead-body, she lodged the first information as per Ex-P1 based on which crime came to be registered by PW-13-Sub-Inspector of Police working at Ramanagara rural police station. She had suspected accused Nos. 1 to 3 in the death of the deceased. She has deposed about the quarrels between the accused and the deceased with regard to property of the family. She has also deposed about Ex-P5-a letter written by the deceased which was found in the pant pocket of the deceased.

PW-2 is the brother of accused No. 1 and the deceased. He saw the accused and the deceased quarrelling in the house during evening of 26.6.1997; on being threatened by accused that he should not interfere in the matter, he went back to his house and slept in his house. In his further statement, he has stated that he saw the accused carrying the dead-body at 11.00 p.m. from the house of accused No. 1 to a different place.

PW-3 is another witness who has seen the quarrel between the accused and the deceased; she has in her further statement recorded on 2.1.1998 stated that she has seen the accused carrying the dead-body and hanging the dead-body to a tree.

PW-4 is the brother of PW-1 and son-in-law of PW-1 and the deceased.

PW-5 is the relative of the accused and the deceased. Both of them have deposed about the motive for commission of offence.

PWs-6 and 7 were suppose to depose about quarrel which ensued in the evening of 26.6.1997. Both of them have turned hostile. Among them, PW-7 is also witness for scene of panchanama Ex-P4. He is husband of PW-3.

PW-8 is another witness for scene of panchanama Ex-P4. He has turned hostile.

PW-9 is witness for inquest panchanama Ex-P6. He has deposed that he saw the dead-body. The dead-body was hanging by using a plastic rope, on the other hand, what is seized in the case is a wire rope.

PW-10 is the Forensic Science expert. He has given opinion as per Ex-P17 based on the post-mortem report and the photographs sent to him by the Investigating Officer. The opinion given by PW-10 is virtually a second opinion, inasmuch as, first information was already furnished by the Doctor, who conducted the post-mortem examination. It is relevant to note here itself that the opinion of PW-10 is sought only after recording of examination-in-chief of PWs-1 to 3.

PW-11 is the photographer who took photographs of the dead-body, developed and enlarged the same. The photographs are at Ex-P18. Developed photographs are at Ex-P19(1- 7). However, in the cross examination, he has deposed before the Court that he has not developed the photographs based on Ex-P18. His statement is also recorded after examination-in-chief of PWs-1 to 3.

PW-12 is the Doctor, who conducted the postmortem examination. The post-mortem report is at Ex-P20. He has given opinion that the death of deceased is due to hanging. This is the first information in the case rendered by an expert about the cause of death. Such first opinion of the doctor -PW-12 is not challenged or contested by the prosecution. On the contrary, the prosecution accepts such opinion also.

PW-13 is the Sub-Inspector of Police, who registered the complaint based on Ex-P1 lodged by PW-1. The same was registered in Cr. No. 61/1997 of Ramanagara rural police station. He conducted part of the investigation.

PW-14 is the subsequent Investigating Officer. He took charge of the case on 20th October 1997. Subsequently, he recorded further statement of PWs-1 to 3 after about six months of the incident in question. Thereafter, he filed the charge-sheet.

PW-15 is the police constable, who participated in the investigation of the crime.

PW-16 is the Probationary Sub-Inspector of police. According to him, he went alongwith PSI for taking the photographs of the deceased.

PW-17 is the third Investigating Officer. He filed application under Section 173(8) of Cr.P.C. (15.11.1999) before the Court seeking permission to investigate the case further. As aforementioned, by that time, the evidence of PWs-1 to 3 in examination-in-chief was already recorded after getting permission of the Court. PW-17 sought opinion of Forensic Science experts- PWs-10 and 18 about the cause of the death. PWs-10 and 18 gave reports as per Ex-P17 and Ex-P22. Based on that, PW-17 laid the additional charge-sheet before the Court.

PW-18 is the Forensic Science expert. He has given report as per Ex-P22. The opinion furnished by PW-18 is the third opinion regarding cause of death.

From the aforementioned narration, it is clear that the evidence of PWs-1 to 3 and the evidence of the Doctors-PW10, 12 and 18 are very much relevant apart from other evidence on record.

PWs-1, 4 and 5 have deposed about the motive for commission of offence. All these three witnesses have deposed that accused No. 1 was cultivating the land of the deceased taking disadvantage of the absence of the deceased from the village; the deceased was taking tuition classes in a different village situated at a far off distance; wife of the deceased(PW-1) was working as health assistant in yet another village; the deceased alone was residing in a room at Doddagangawadi village; once in 15 days, he used to visit Vijayappannadoddi village i.e., his native place to stay in the house of either accused No. 1 or PW-2. PW-1 has further deposed that since the property was not given to the deceased, he used to quarrel with the accused frequently; that the Land Tribunal had granted occupancy rights in favour of the accused in respect of the lands of the deceased also. Such order of the Land Tribunal was confirmed by the Appellate Authority. Thus the evidence of PW-1 makes it clear that the accused were cultivating the lands of the deceased in accordance with law, however, still quarrels continued between accused and the deceased, inasmuch as, deceased was pressurizing the accused to give back his properties in order to eke out his livelihood in the old age. Deceased was about 60 years at the time of accident. Even in the evening of the date of the incident i.e., on 26.6.1997 also, deceased had quarreled with the accused in front of the house of accused No. 1. Such quarrel was witnessed by PWs-2 and 3. The evidence of PWs-2 and 3 in respect of quarrel between the accused and the deceased has practically remained unshaken. Immediately after seeing the dead-body, PW-2 has informed about the same to PW-1, who in-turn came to the Vijayappanadoddi village and saw the dead-body and lodged the complaint. In the complaint itself, PW-1 has mentioned about the quarrel between the deceased and accused on the previous day i.e., on 26.6.1997 as informed by PW-2. Thus the evidence of PWs-1, 2 and 3 makes it amply clear that quarrel ensued between accused and the deceased between 8.00- 8.30 p.m. on 26.6.1997 in the house of accused No. 1. It is also clear that PWs-2 and 3 were eye-witnesses for such quarrel. The evidence of PWs-2 and 3 in respect of quarrel that took place in the evening of 26.6.1997 is unblemished and the same is reliable. Thus, in our considered opinion, circumstance of motive is proved.

PWs-2 and 3 have further deposed that at about 11.00 p.m. on 26.6.1997, they came out of the house for different reasons and saw the accused carrying the dead-body of the deceased from their house. However, being feared, they came back to their houses without informing anybody and slept. This portion of the evidence appears to be a make-believe story created by the prosecution. In their statements recorded immediately after the incident, PWs-2 and 3 did not whisper about the dead-body being carried by the accused; admittedly, PW-2 met PW-1 complainant in the morning of 27.6.1997 and informed about the quarrel etc., however, neither PW-2 nor PW-3 did venture to disclose about accused carrying the dead body during the night at about 11.00 p.m. on 26.6.1997. PW-2 is none other than the brother of deceased. PW-3 is the resident of a neighbouring village. She did not venture to inform even to her husband(PW-7). They kept quiet without informing about such vital aspect before anybody. Further more, PW-3 has informed about the accused carrying the dead body after one month to PW-1. PW-1 also admits that PW-3 informed her so after about one month. Despite the same, neither PW-1 nor PW-3 did try to disclose it to anybody, much less, to the police who were conducting the investigation with all seriousness. PWs-2 and 3 opened their eyes only after the police approached them after about six months. Further statements of PWs-2 and 3 were recorded on 2.1.1998, though the offence has taken place on 26.6.1997. Their statements at the first instance were recorded immediately after the incident. The only reason assigned by PWs-2 and 3 for not disclosing aspect of seeing the accused carrying the dead body in the first statements is that they had fear in their mind about the accused. Such vague explanation cannot be accepted. As aforementioned, PW-2 is the brother of the deceased and PW-3 is the neighbour of the deceased residing in the village. PW-7 is the husband of PW-3. PW-3 had not even informed about such fact even to her husband. So also, PW-2 has also not ventured to inform such facts even to his family members. Since they had given statements against the accused with regard to quarrels and with regard to motive for commission of offence, there was no reason for PWs-2 and 3 to fear for the accused. Thus the explanation offered by PWs-2 and 3 in not disclosing such important factual aspect immediately at the time of recording their statements for the first time is unacceptable. The delay of six months in recording subsequent statements appears to be only to create additional circumstance against the accused and not for any other reason. Therefore, we are of the clear opinion that subsequent versions of PWs-2 and 3 that they saw the dead body being carried by accused at 11.00 p.m. on 26.6.1997 is not reliable.

The case of the prosecution is that the accused assaulted the deceased and committed the murder of the deceased in their house and thereafter carried the dead-body to the spot wherein it was hanging and thereafter hanged the dead-body to a tree. Thus according to the prosecution, it is a case of homicidal hanging and not suicidal hanging. In order to prove its case, the prosecution has adduced the evidence of PWs-10, 12 and 18 -experts in the field.

PW-12 is the Doctor, who conducted the postmortem examination. Ex-P20 is the post-mortem report. The post-mortem report discloses that death is due to ''asphyxia'' as a result of hanging by rope. The Doctor PW-12 has clarified in his evidence before the Court that it is case of suicidal hanging. He has also assigned reasons for concluding so. He had the benefit of seeing the dead-body while furnishing the opinion as mentioned supra. He has clarified in his examination-in-chief itself that all other injuries found on the dead-body such as abrasions were post-mortem injuries and not anti-mortem injuries. It is further admitted by the Doctor PW-12 in his cross-examination that dislocation of Atlanto Axial and Atlanto Occipital joints is possible if one ties rope to his neck and jumps from a tree. At the time of laying the charge-sheet by Investigating Officer(PW-14), only this opinion of the Doctor (PW-20) was found in the charge-sheet.

Based on such charge-sheet, examination-in-chief of PWs-1 to 3 was recorded on 1.10.1999. Thereafter PW-14 came to be transferred, another Inspector (PW-17) took over the charge of the case. He filed application before the Court under Section 173(8) of Cr.P.C. praying for further investigation. After getting permission, he sought the opinion of PWs-10 and 18-two other experts in the field about the cause of death of the deceased. PWs-10 and 18 have furnished their opinion as per Exs-P17 and P22.

The opinion of PW-10 coupled with report Ex-P17 makes it clear that it is case of homicidal hanging and not suicidal hanging. Doctor PW-10 has assigned certain reasons for coming to such conclusion. Further another expert in the field PW-18 gave report as per Ex-P22 and has opined that it is neither suicidal death nor homicidal death, but it is case of murder because of twisting of neck. According to PW-18, dislocation of Atlanto Axial and Atlanto Occipital joints is possible only because of twisting of neck and not for the reason of hanging.

From the aforementioned, it is clear that we have got three opinions of the Doctors and all the three opinions are contradictory to each other. The first opinion is of the Doctor PW-12. He had the benefit of seeing the dead-body personally. He has conducted the post-mortem examination. He gave report as per Ex-P20 to the effect that it is clear case of asphyxia as a result of hanging.

On the other hand, Doctors PWs-10 and 18 did not have the benefit of seeing the dead-body. They were furnished with only the post-mortem report and the photographs of the dead-body by the Investigation Officer for giving the opinion. Based on the postmortem report and the photographs of the dead-body; both these doctors have furnished reports as per Ex-P17 and Ex-P22, which are once again contradictory not only to each other but also contradictory to the opinion rendered by Doctor -PW-12.

In this context, the arguments of Sri. Suresh, learned defence Advocate that further opinion of the Doctors was sought for only to overcome the evidence of PWs-1 to 3 recorded in their examination-in-chief assumes importance. According to him, Investigation Officers have tried to improve the case from time to time for the reasons best known to them. Be that as it may, the fact remains that three opinions rendered by three different experts in the field are contradictory to each other. Two experts PW-10 and 18, whose services were employed by third Investigating Officer PW-17 did have the benefit of seeing the dead-body. They have given their reports based on the post-mortem report and photographs supplied to them. Their reports are almost after about two years of the incident. On the other hand, PW-12, who conducted the post-mortem examination had the benefit of seeing the dead-body. Only after examining all the features of the dead-body, he has given the report. Thus the opinion of PW-12 needs to be preferred. Moreover, if three contradictory opinions are recorded, the opinion which is favorable to the accused needs to be preferred. Hence, we are of the opinion that the death of deceased may be due to suicidal hanging, particularly, in the absence of any other reliable material against the accused.

One more evidence to show that it is case of suicide is the letter Ex-P5 written by the deceased. Ex-P5 was found in the pant pocket of the deceased. The same was seized at the time of inquest. Ex-P5 is in Kannada language. PW-1 admits that Ex-P5 is in the handwriting of her husband-deceased. Reading of Ex-P5 makes it clear that deceased had got grievance against the accused, inasmuch as, accused did not give him share in the property and that they were cultivating the agricultural lands of deceased also. Deceased has also mentioned in the said letter he was assaulted by accused No. 2 Shambu and accused No. 3 Kempamma. He has further mentioned that nobody should give trouble to his wife and children as well as his brother PW-2; his dead-body should be cremated only after all his relatives arrive; his properties shall be given to his daughters-Lalithamma and Anuradha. This letter is a death note written by the deceased prior to commission of the suicide. He would not have written such note if he had not thought of committing the suicide. Had it been the homicidal death, he would not have visualized that he would be done to death; only after leaving the note Ex-P5, deceased has committed suicide. The note Ex-P5 was prepared by the deceased only to ventilate the grievance against the accused prior to commission of the suicide.

At this stage, it has to be made it clear that deceased alone was residing in a room situated at Doddagangawadi village and he was taking tuitions to the primary school students. He used to go to native place once in 15 days and visit the house of accused and PW-2; His wife (PW-1) was a Government servant who was residing in yet another village i.e., Volaluru village. Therefore, it seems, that all was not well between husband and wife. Even in Ex-P5, deceased had stated that his entire property shall be given to his daughters and that they should not be harmed by anybody.

Be that as it may, Ex-P5 gives additional clue that the deceased has committed suicide.

On re-appreciating the entire material on record, we are of the opinion that the trial court is not justified in convicting the accused for the offence punishable under Section 304, Part-II IPC. It is not a case of homicidal death. The aforementioned discussion of us would lead to the conclusion that deceased must have committed suicide, more particularly, when he did not have any injury on his body. Even spectacles were found intact on the person/dead-body. If really, the deceased was assaulted by anybody, atleast spectacles would have fallen or would have broken. As aforementioned, he has not suffered any injury also. Therefore, benefit of doubt shall be given to the accused.

In view of the aforementioned reasons, the following order is made:--

"a. Crl. A. No. 703/2009 filed by the convicted accused is allowed, consequently, appeals filed by the State viz., Crl. A. No. 856/2009 and Crl. A. No. 855/2009 stand dismissed."

We place on record the services rendered by learned Amicus Curiae Sri. Anil Kumar N.S., who appeared on behalf of appellants/accused and assisted the Court. His Honorarium is fixed at Rs. 5,000/- to be paid by the Registry.