ANJINAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE appellants before us face two charges: Firstly, that on the night of 22-1-1990 in the house of P. W. 11 (Obalamma) they are alleged to have committed the murder of Ramanna by squeezing his testicles and secondly in furtherance of their common intention that they took the dead body to a tree nearby and made a pretence as though Ramanna had committed suicide, by tying a rope around his neck and fastening it to the tree and hanging the body and thereby they committed offences punishable under Sections 302 and 201 read with Section 34 of the indian Penal Code. Barring the evidence of Obalamma in whose residence the murder is alleged to have taken place and her statement recorded under Section 164 of the Criminal Procedure Code by the learned Magistrate who is P. W. 15, there is no other connective evidence in this case helpful to the prosecution. However, placing strong reliance on the aspect of motive which is deposed to by the father of Ramanna, who is P. W. 1 and by P. Ws. 2 and 4 wherein it is alleged that Ramanna had been carrying on an illicit affair with a married women by name sannahanumakka, who is the daughter-in-law of the brother of accused 1 and also with another woman, Obalamma, who is also a relative of accused 1 and therefore, accused 1 is supposed to have assaulted ramanna some time earlier and there was a case pending relating to that incident. The prosecution therefore contended that accused 1 had a very strong motive to do away with Ramanna. Reliance was placed also on the evidence of P. Ws. 4 and 12 to show that the accused are alleged to have made extrajudicial confessions and P. W. 12 has even stated that on the night of the day of the incident he saw the accused carrying something from Obalamma's house; that he remained on the road to know what was happening and that in the course of the subsequent conversation accused 1 and 3 disclosed to him that they had killed Ramanna. The learned Trial Judge has accepted the prosecution evidence and held that the circumstances conclusively established both the offences and the four accused were accordingly convicted and awarded sentences under both heads of charges. The present appeal is against that conviction and sentence.

(2.) AT the hearing the appeal, Sri Venkata Reddy, learned Counsel who represents the appellants, contended that first of all, adverting to the law with regard to circumstantial evidence, in a case of the present type, the conviction is unsustainable unless the chain or web of circumstances is completely established; that each circumstance has to be individually proved and that all the circumstances taken together point to only one conclusion that the accused are guilty of the offences. In keeping with this principle, he submitted that even the first necessary ingredient, viz. , the aspect that the deceased Ramanna met with a homicidal death, has not been established. He drew our attention to the Post-mortem Report, Exhibit P. 5, which indicates that the right testicle of the deceased was slightly crushed. There was no other injury on the deceased and the Doctor has opined that the death was due to shock as a result of crushing of the testicle. Mr. Reddy points out that the Postmortem Report has not been proved by examining the Doctor and it was his case that, even if the concerned Doctor is alleged to have died, any other medical practitioner from the Hospital ought to have been examined by the prosecution. Failure to do so on the part of the prosecution has deprived the accused of the right of defence by calling into question the contents of the Post-mortem Report. There is one more defect in the way of prosecution, viz. , that the Post-mortem Report was virtually smuggled into the record, because it was tendered by P. W. 10, the P. S. I. , in the course of his formal evidence. Even if the report was tendered, the learned Trial Judge ought to have been careful, because the Post-mortem Report in a murder trial is a document of extreme importance and the law postulates that even assuming that an error is committed by the person representing the State, the learned Trial Judge ought not to have permitted it in evidence by-passing the well-defined procedure for tendering and proving such a document. It is true that the defence had omitted to raise an objection; but, in our considered view, having regard to the seriousness of the situation and the far-reaching prejudice caused to the defence, the irregularity with regard to the manner in which exhibit P. 5 was taken on record will have to go against the prosecution. There is also good ground for barring such a procedure, because it is demonstrated that the Post-mortem Report indicates that there was no other injury on the body. The deceased was a young man aged about 25 years and on record there are statements of his family members that he is alleged to have been suffering from a chronic stomach ailment and, if the Doctor who conducted the Post-mortem appeared as a witness, the defence would have had an opportunity of ascertaining from him as to whether he carried out a proper investigation to find out as to whether the deceased had any other serious physical complications. As regards the injury to the testicle, there is only a passing reference that it was slightly crushed. The experts as far as medical jurisprudence is concerned have indicated that, undoubtedly, an injury to testicle is very painful and does cause shock. It is only in an extreme cases that it would result in death and, if the injury is minimal as in this case, it would have been necessary for the Doctor to substantiate in the witness-box as to whether the injury of that magnitude, in his opinion, would have caused death. Secondly, the evidence indicates that the body of the deceased was found hanging by a rope tied around his neck and certain questions would have been addressed to the Doctor with regard to the other possibility of death including suicide. All these are because of the breach of procedure and even if the defence had not objected, in our considered view, the prosecution cannot be allowed to get away with this state of affairs because it would create a very dangerous precedent. As regards this circumstance therefore, even though the learned Additional state Public Prosecutor vehemently submitted that the Post-mortem report within the provisions of the Evidence Act has been validly tendered by P. W. 10, we need to hold that the non-examination of the doctor in this case is virtually fatal to the prosecution.

(3.) THE strongest evidence of the prosecution to decide the issue is the evidence of P. W. 11, Obalamma, in whose house the accused are alleged to have taken the deceased into a room and killed him. Precaution was taken to record Oblamma's statement under Section 164 of the Cr. P. C. , but she has resiled from the statement and has gone to the extent of saying that the statement was recorded by the learned Magistrate by pressurising her and threat and coercion have been used on her and that she does not stand by the statement. She has been totally hostile to the prosecution and the evidence of P. W. 11 therefore does not carry the prosecution case forward at all.