BAJJAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE appellant before us was charged with having committed the murder of one Venkataswamy with a pickaxe at about 2. 15 p. m. on 7-1-1993 at Hippaneralekeri village. It is alleged that the deceased Venkataswamy who owned the adjoining field to that of the accused was accompanied by PW-1 on that afternoon and that the electricity which fed the water pump tripped. Venkataswamy suspected that the accused was responsible for this and therefore, went to his field near the pump house of the accused ostensibly to investigate into the matter. The version of PW-1 is that he heard a cry from Venkataswamy and therefore, rushed there when he saw the accused inflicting a blow with the pickaxe on the head of the deceased. The accused is supposed to have immediately thrown the weapon there, got on to his TVS moped and left the place. PW-1 states that the deceased struggled for a brief period of time and died on the spot. PW-2 states that he was passing by that side and that the cry of PW-1 attracted his attention and on going to the spot, he saw the accused leaving on his TVS moped. According to the prosecution, the brother of the deceased Rajappa who was cited as CW-4 was also present there, but the prosecution has not examined this witness. The matter was reported to the Police Station and the time recorded in the FIR indicates that it was after about two hours that the complaint was lodged. The P. S. I. states that he came to the spot at about 5. 45 p. m. and it is his contention that since it was getting dark, he kept a Constable there for the night and that it was early the next morning that the inquest Panchanama was drawn up. The weapon which was lying close to the body was seized and it is M. O. 5 and the Investigating Officer states that it was blood stained. The intimation was sent to the Doctor and the Post Mortem was done which revealed three injuries on the body, two of them on the head and one on the shoulder. We are basically concerned with injury No. 3 because this is the one which has not only fractured the skull but it has also damaged the brain and was the cause of death. The Doctor has opined that such an injury could have been caused by M. O. 5. The accused is supposed to have been arrested on 19-1-1993. On completion of the investigation, the accused was charge-sheeted for having committed an offence punishable under Section 302 IPC. The learned trial Judge held the accused guilty of the offence of murder and awarded a life sentence to him. This appeal is directed against that sentence.

(2.) AT the hearing of the appeal, Mr. Nanaiah, learned counsel who represents the appellant has advanced two broad lines of submissions. In the first instance he contended that the prosecution evidence is weak and inconclusive and secondly, his contention was that the investigation had not only been extremely perfunctory but more importantly that the credibility or the manner in which the case has been investigated is seriously suspect. We shall carefully deal with both heads of arguments apart from his third contention namely that the eight defence witnesses who have been examined cumulatively established that the accused has wrongly been implicated because he was not present at that spot on the day in question. Dealing with the first submission, learned counsel pointed out that PW-1 being the brother is closely related to the deceased and that he has stated about the animus which the deceased has against the accused as there were constant problems and quarrels over the electric supply. Learned counsel has pointed out to us that the electric line first went to the field of the accused and then to that of the deceased and that whenever the power was interrupted that the deceased and his family suspected that the accused had tripped the line. He submits that it is very clear that this was the cause for friction because even on the date of the incident immediately on the power tripping, the deceased went to the power house of the accused. The next point made by the learned counsel was that PW-1 himself is silent with regard to what exactly happened at that place and that it is his own case that he went there on hearing the distress cry of his brother. Learned counsel points out to us that it is, therefore, self-evident that PW-1 could not have witnessed the actual assault because even if it took him a little time to get there that he started moving only after hearing the cry and making allowance for the time that it would take him to reach the point, that the incident would have been over by then. With regard to his evidence that he saw the accused leaving the spot, the submission is that having seen his brother in a fatally injured condition that the immediate suspicion fell on the accused and that this is why the accused has been implicated. The last submission and (is) one of again some seriousness which covers both PWs-1 and 2 is that according to the learned counsel if it was the accused who had attacked the deceased, PWs-1 and 2 would certainly have gone after him, tried to intercept him and raised an alarm in order to prevent his escape and according to the learned counsel, the Court must take notice of the fact that PW-2 is an ex-member of the Police Force and he submits that the non-action on the part of these two witnesses very clearly indicates that even if they arrived at the scene that incident was over, the assailant had also disappeared and that this is the reason why no attempts were made to stop the assailant. We need to mention here that PW-2 has admitted that he did not see the assault but he has stated very clearly that he saw the accused leaving the spot on his TVS moped. Neither of the witnesses mention the presence of any other person at that spot other than CW-4 Rajappa who has not been examined. We need to observe here that if the witnesses desire to falsely implicate the accused that there is no reason why they would have truthfully admitted that they came to the spot at the late point of time as claimed by them. Furthermore, having regard to the medical evidence, it is clear to us that three injuries were inflicted on the deceased, one of them is on the shoulder and two of them on the head. All the three injuries are on the left side as recorded by the Doctor. Even though the witnesses are unable to give us the sequence, there can be no dispute about the fact that the injury No. 3 which is the one that has virtually slattered the skull must have been the last in the order of assault. Having regard to the seriousness of this injury there could be no question of the deceased being able to shout when this injury was inflicted nor for that matter when the other injury which also landed on the head and which must have stunned him on the spot. It is therefore clear to us that when injury No. 1 which was a blow on the shoulder was inflicted that he would have naturally cried cut either in pain or for help that this has immediately brought the PW-1 to that spot. The distance is very close and we see no reason to disbelieve PW-1 when he states that he saw the last blow being inflicted on the deceased. PW-2 is an independent witness in so far as he is not a relative nor has anything been brought on record as to why he would falsely implicate the accused in a murder case. Conversely, nothing has been brought on record by the defence to suggest that PW-2 is so closely connected that he would identify himself with PW-1 in falsely implicating the accused. We have also taken note of the fact that the field of the accused is adjoining to that of the deceased and it is perfectly possible for the accused to have been found there. Under these circumstances and particularly having regard to the fact that the essential credibility of these two witnesses has hardly been shaken even in cross-examination, we must accept the findings of the learned trial Judge that these two persons did see the incident but to the extent that PW-1 arrived when the last blow was being inflicted and PW-2 came there immediately thereafter. The incident has happened at 2. 15 p. m. on a bright afternoon and there is no ground on which one can disbelieve the evidence of the witnesses who state that they saw the accused at close quarters and they left from there. It is true that neither of them tried to intercept or stop the accused or to raise an alarm but this could possibly be explained by the fact that they would have been more concerned with what had happened to Venkataswamy who was in a grievously injured condition than in running after the accused and leaving Venkataswamy there. This fact cannot really be regarded as unnatural to the extent of discrediting the witnesses.

(3.) AS far as the non-examination of CW-4 Rajappa who is the brother is concerned, the appellant's learned counsel submitted that this is fatal to the prosecution case. He relied heavily on the decision of the Supreme Court reported in AIR 1976 SC 2423 : (1976 Cri LJ 1883) wherein the Supreme Court set aside a conviction principally on the ground that the material witness had not been examined by the prosecution. Mr. Nanaiah submitted that this is virtually a one witness case in so far as the prosecution seeks to base the conviction essentially on the evidence of PW-1 and that it was therefore absolutely essential to have examined CW-4 Rajappa who is the brother and he submits that in not examining CW-4, an adverse inference under Section 114 of the Evidence Act must follow. He has drawn our attention to the record of the case and he points out that there is nothing to indicate that Rajappa was not available as there is a bald statement in the order sheet that the Public Prosecutor has dropped the CW-4. There is nothing to indicate as to how and why this has happened and Mr. Nanaiah submits that this creates serious doubts to the extent of establishing that had Rajappa been examined, his evidence would not have corroborated the version of PW-1. Mr. Nanaiah also submits that if for whatever reason Rajappa was not likely to support the prosecution case that he should have been examined and treated as hostile and in the absence of even this situation, that the non-examination of Rajappa would be destructive to the prosecution. The learned Additional SPP has tried to defend the situation by pointing out that since the record is silent as to why Rajappa was not examined that one can only assume that the learned Prosecutor in the trial Court was of the view that his evidence would only be repetitive and that therefore examining him was superfluous. We are not willing to accept these excuses and explanations and the grievance made by Mr. Nanaiah is more than fully justified. This is not a case in which there is a string of witnesses reciting the same version and if that were to be the position, then perhaps the last of them could have been rendered redundant but where the prosecution heavily depends on PW-1 and where it is contended that Rajappa was an eye witness, his non-examination was most certainly wrong. The only question is as to whether this factor can be treated as being absolutely fatal to the prosecution. In the case before the Supreme Court the non-examination of the material witness left a gap and a void in the prosecution case and because of this lacuna, the Court set aside the conviction. In the present case, the position is different in so far as the prosecution has examined PWs-1 and 2 and Rajappa would have at the highest lent support to that evidence, there is nothing on record for us to conclude that Rajappa's evidence would have been unfavourable to the prosecution and in this background all we can say is that while we deprecate in the strongest terms, this practice each on the part of the Prosecutor as also in some instances, unfortunately, the Presiding Officers, to short-circuit the prosecution by pruning the number of witnesses that it is very wrong and impermissible. We have come across instances where this sort of unhealthy procedure is taking place in the trial Courts and we would like to point out in no uncertain terms that the consequences are extremely damaging; invariably the accused getting the benefit of doubt. In this case had the evidence of PWs-1 and 2 been unsatisfactory or had it been weak, it would have required heavy support from the evidence of Rajappa and in the absence thereof the prosecution could have failed. However, since we find that the evidence of PWs-1 and 2 is good enough, all that we can hold is that the non-examination of Rajappa who could have strengthened the prosecution case, but that this factor is not sufficient to either undo or destroy the evidence of PWs-1 and 2.