PAPANAIKA ALIAS PAPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) AN incident of considerable seriousness took place at a village by name Mallahalli in Nanjangud Taluk on 24-3-1986 at about 4 p. m. in the afternoon. It is admitted that there were two factions in the village, the accused belonging to one of them and the deceased, injured and witnesses belonging to the other one. We do not need to go into the history of the dispute which had something to do with a piece of land known as 'halepura garden'. We only refer to this in passing because the prosecution story is slightly different in so far as it is contended that on the morning of that day an altercation took place near the water tank between PW-1 Malligamma and the son of A-3 Jayaraj. In the course of that altercation, Jayaraj is alleged to have kicked PW-1 and in order to avoid a flare up some of the other ladies intervened and took her to her house. Sometime later in the day, her husband who is the deceased returned from the Court and as is to be expected, she not only narrated the incident but obviously made a big issue of it. It is clear from the reaction of the husband who immediately left the house and went in the direction of his brother's house to meet some other persons also, that he was agitated and that he was going to have it out with whoever was responsible for the insult and assault to his wife. We refer to this aspect of the matter because the prosecution not only highlighted it but has over played it; but in our considered view it is of considerable significance as we shall demonstrate lateron. According to the prosecution version, very shortly thereafter a commotion ensued and the deceased was seen running towards his residence and the accused who are supposed to have been armed finally assaulted him and the PWs allege that apart from a chopper which A-1 used, that the remaining persons used sticks and some of them even used stones in the assault. The nephew of the deceased by name Shankar tried to intervene and he also sustained some injuries though not of any consequence. PW-1 states that she naturally went to the rescue of her husband and that in order to avoid the assault she held her hand up and that she sustained some injuries. These are extremely trivial. The matter was reported to the nearest police station which is about 7 kms. away after about 2 hours and the police came to the scene after a considerable lapse of time. Their version is that the deceased and the injured Shankar as also PW-1 Malligamma were all seated there and were crying. They were finally taken to the closest hospital at Nanjangud where after initial treatment, the medical advise was that they should be taken to the K. R. Hospital at Mysore which was done. The deceased had sustained a number of injuries for which he was admitted to the hospital and his condition deteriorated as a result of which he died on the next day i. e. , 25-3-1986. The police arrested the accused and it is their contention that the chopper and the clubs were recovered pursuant to the statements made by some of the accused and on completion of the investigation as many as 17 accused were charge-sheeted. At the conclusion of the trial, A-1 to 6 were convicted on a host of charges essentially relating to unlawful assembly, rioting, causing hurt, murder and the like, whereas the other 11 accused were acquitted. That order has become final because the State has not challenged the acquittal.

(2.) LEARNED counsel representing the appellants sought to capitalise on this aspect of the matter because one of the strongest arguments canvassed by him was that whereas as many as 17 persons were directly involved and implicated by the witnesses, that a scrutiny of the evidence indicated that there was virtually no case against 11 of them and he submitted that in not having filed an appeal the State has virtually conceded the position that they were falsely implicated. Starting from this premise, learned counsel submitted before us that this ground is sufficient to totally discard the evidence because it clearly shows that because of the factional rivalry in the village, that the desire was to implicate as many persons as possible and once it is demonstrated that the witnesses have no sanctity for the truth vis-a-vis 11 accused that it is impossible to base a conviction on their evidence by holding that they are reliable enough to sustain a conviction against the remaining accused. The learned S. P. P. has strongly refuted the submission and he points out that the incident was one of seriousness in which several persons participated, and if out of a large number of persons who are originally named due to the lapse of time and a variety of other reasons, the witnesses were unable to sustain the charges vis-a-vis some of them that this does not in any way water-down the evidentiary value of the credibility of those very witnesses as against the remaining persons. Justifying the grounds on which the State has not filed an appeal against the remaining 11 accused, learned counsel pointed out to us that if in the course of the trial which has been held after the lapse of about 8 years, it emerges that the evidence against some of the accused is weak or non-existent, the State is perfectly justified in letting the matter rest having regard to this particular handicap. While we accept his argument vis-a-vis the non-filing of the appeal, we find it difficult to accept the contention as regards the credibility aspect. Mr. Chandramauli is perhaps justified when he starts by pointing out that if the very witnesses have implicated as many as 11 persons against whom ultimately the Court finds that there is no case, that one thing is clear viz. , that they are either allowing their imagination to take over, or more importantly that it is the hostility factor that has impelled them to grossly exaggerate. If the last of this is in fact representative of the true state of affairs, then again the serious issue arises as to whether one can place enough of reliance on these very witnesses for the purpose of sustaining convictions against as many as six of the others. We do find that this factor coupled with several others which we shall presently set out would make it difficult to sustain a conviction on the facts and circumstances of the present case.

(3.) MR. Chandramauli, learned counsel who represents the appellants has very carefully and meticulously taken us through the medical evidence and the two submissions he has made are summarised in so far as firstly he points out that none of the injuries on the deceased are sufficient in the ordinary course of nature to cause death. In fact, the majority of them are minor injuries. The learned S. P. P. immediately hastened to point out to the Court that there is a second category of cases wherein the injuries individually may not be sufficient in the course of nature to cause death but if there are a large number of injuries such as in the present case and if they (are) taken cumulatively they still add up to a situation where the victim looses a lot of blood and suffers intense pain shock, that combined effect of the injuries could have the same legal consequence as a serious one such as a stab through the heart. We do not dispute this proposition, but we have pointed out to the learned S. P. P. that as far as the deceased is concerned, that the medical evidence though it covers as many as 4 doctors PWs-19, 30, 35 and 36, still falls short of one essential requirement viz. , that there is no conclusive evidence from any of these doctors to establish that the injuries were sufficient to sustain a charge under S. 302, I. P. C and that the death was a direct result of these injuries. We need to take note of the fact that something like 11 or 10 hours have elapsed between the time of the incident and the time when the deceased received medical attention and the prosecution has not established the vital aspect viz. , as to what happened after the deceased was admitted to the K. R. Hospital and why was it that (sic) he died on 25-3-1986 despite the fact that there were no serious injuries on his person. Even the post-mortem evidence does not throw any satisfactory light on this.