RAJU SHETTY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The appellant has been convicted for an offence punishable Under Section 302 of the I, P. C. and has been sentenced to imprisonment for life by the Sessions Judge of South Kanara, in Sessions Case No. 1 of 1957 on the file of his Court. The prosecution case was that at about 2 P.M, on 29-11-1956, at Sooda village of Karkal Taluk, the accused caused the death of one Mutliayya Shetty by hitting him with a wooden seat (Mane) which has been marked as M. O. 1 in the case. The eye-witness to the actual occurrence, was P.W. 1 Shamba, a girl of the age of about ten years. Muthayya Shetty appears to have been an old man of the age of about 70 years. P.W. 1 has given evidence in respect of the following facts: On the afternoon of the occurrence Muthayya Shetty came to the house of P.W. 1 and enquired where her father was; at that time P.W. 1 was alone in the house and she informed Muthayya Shetty that her father had gone to his land. Just at that time the accused came out from his house towards the courtyard of the house of P.W. 1; Muthayya Shetty went towards the accused. Thereupon, the accused picked up the wooden piece M. O. 1 which was lying nearby and threw it at Muthayya Shetty; M. O. 1 hit Muthayya Shetty on his head and Muthayya Shetty fell down. The accused again took M. O. 1 and gave one blow on the head of Muthayya Shetty. P.W. 1 shouted and the accused chased her. P.W. 1 ran to the place where her father was and informed him of the incident; Koraga Shetty and Achu Shetty who are brothers of the accused were also with the father of P.W. 1 at that time. That P.W. 1 ran to the field and informed her father and Koraga Shetty and Achu Shetty, is confirmed by the evidence of P.W. 2 Babu Shetty the father of P.W. 1 and the evidence of P.W. 3 Koraga Shetty. The evidence of P.Ws. 2 and 3 shows that, on being informed of the occurrence by P.W. 1, they and Achu Shetty ran to the house of P.W. 2 and found that Muthayya Shetty was lying, dead there and that M .O. 1 was lying near him. They also saw tile accused lying in a Suggi field nearby; on seeing them, the accused got up and ran away. P.W. 3 and Achu Shetty pursvied the accused; but, the accused took a bill-hook and came towards P.W. 3 to cut him. P. VV. 3 and Achu Shetty caught hold of the accused and wrested the bill-hook from his hand and tied him up. Thereafter, P.W. 2 got the further details of the incident and then went and made a report of the incident to the Kitel P.W. From the evidence of P.Ws. 2 and 7 it appears that this report was made by P.W. 2 to P.W. 7, at about 4 or 4-30 P. M. the same day; P.W. 7 sent Ex. P-l together with his own report as per Ex. P-4 to Karkal Police Station and he also sent copies of the same to the First Class Magistrate at Karkal; he-then proceeded to the spot where the dead body was lying and kept a man to keep a watch over it, till the Police arrived. The Circle Inspector of Police of Karkal Circle who has been examined as P.W. 11, is the Investigating Officer in the case. He received the first information report at Karkal, at about 10-20 A. M. on 30-11-1956. Then he proceeded at once to Sooda Village which was about 14 miles away from Karkal, On reaching the scene of the occurrence, he found the dead body in the courtyard of P.W. 2's house and he held the inquest over it. He seized M. O. 1 which was lying near the dead body and he sent the dead body to the hospital for post-mortem examination. On going to the house of the accused, he found that die accused had been confined in a room, his. hand and foot tied with coir rope. He examined a number of witnesses on the same day. In Ex. P-l which is the report of P.W. 2, it is stated that the-accused had been suffering from epileptic fits since-some years and that the said disease had become aggravated on the date of the occurrence. From the-evidence of P.Ws. 1 to 3 also, it appeared that the accused had been suffering from epileptic fits and that the illness became worse during full moon and new moon days; their evidence showed that during these fits, the accused used to grind his teeth, faro in the mouth and behave like a mad man. P.W. 3 Koraga Shetty stated in the course on his evidence that it was because of the illness that the accused had fallen down in the Suggi field and that the struggling by the accused was also due to the sickness. P.W. 4 who is the mother of the accused, has stated that the accused was getting % epileptic fits since about five years previously. She has also stated that since about two days prior to the occurrence the accused was having fits and had been lying down. She has stated that the accused behaves like a mad man during fits. P.W. 1 has stated in the course of her evidence that at the time when the accused came to their yard, just immediately prior to the occurrence, he had been shouting ancf bawling out like a maciman. Kumari Evalina and Srimati Biijitha who have been examined as Court witnesses have also-stated that the accused used to be getting fits and that on such occasions he used to be bawling out; they have stated that on the day of the occurrence, they saw the accused running bawling out. P.W. 5 who was the Assistant Surgeon in the Government Hospital at Karkal had conducted the post-mortem examination in respect of the dead body of Muthayya Shetty; he had also noticed certain simple injuries on the person of the accused, which had been caused by his having been tied with the coir rope. The accused had been treated for those injuries and he had been admitted into the hospital for about a week. P.W. 5 has stated that during that period, the behaviour of the accused was quite normal and that he did not show any signs of insanity. On being questioned in the course of his cross-examination in regard to certain symptoms of epileptic insanity, P.W. 5 has stated that they did not apply to the accused as he was quite sane. P.W. 6 who was the Jailor of the Special Sub-Jail at Man-galore has stated that the accused was admitted to the Sub-Jail on 8-1-1957. P.W. 6 has stated that he had been seeing the accused every day and that the accused did not have any fits. He has stated that the accused was a perfectly normal man and did not show any signs of insanity. The accused had pleaded not guilty. In the course of his statement before the Committing Magistrate, he had stated that on that day he took food at about 9 A. M. and slept and that after that he was not in his senses; he had stated that he did not know what had happened and that when he got consciousness in the evening, he found that he had been tied up and locked in a room. In the course of his examination Under Section 342 of the Cr.PC. by the learned Sessions Judge, the accused when questioned with reference to the evidence of P.W. 5, while admitting that he was in the hospital stated that he did not know how he was then, When he was questioned with reference to the evidence of P.W. 6, about his having been normal sinee the time he was in the Sub-Jail, he admitted that it was true. The learned Sessions Judge was satisfied from the evidence that it was the accused that caused the death of Muthayya Shetty by hitting on his head with M. O. 1. As regards the defence of insanity, the learned Sessions Judge took the view . that the accused getting fits now and then, was not sufficient to bring the case Under Section 84 of the Indian Penal Code; consequently, he found the accused guilty of an offence punishable Under Section 302 of the IPC

(2.) In this appeal Sri M. Ramachandra Rao, on behalf of die Legal Aid Society, has appeared for the appellant. His first contention was that there is no mention in Ex. P-l about P.W. 1 having actually witnessed the incident and that, therefore, it was doubtful as to whether P.W. 1 was really an eye-witness to the occurrence. I do not think that there is any force in this contention. Though it is not expressly stated in Ex. P-l that P.W. 1 had actually witnessed the incident, it is seen that there is a reference to P.W. 1, in Ex. P-l. It is stated therein that at the time of the occurrence only P.W. 1 was in the house. It is also clear from Ex. P-l that it was from the shouts of P.W. 1 that the attention of P.Ws. 2, 3 and Achu Shetty was attracted and that they thereupon ran towards the house of P.W. 2. Under these circumstances, there is no reason as to why the presence of P.W. 1, at the scene of the occurrence, should be doubted. It was then contended by Sri Ramachandra Rao that P.W. 1 is a child witness and that the actual questions put to her by the learned Sessions Judge for the purpose of finding out whether she had sufficient understanding and was competent to give " evidence, have not been recorded by the Sessions Judge. The learned Advocate also cited decisions of some of the High Courts in support of his contention that the actual questions put to the child witness should be recorded by the Judge. It does not appear to be necessary to refer to those decisions in view of the fact that the matter is one which has been covered by a decision of the Supreme Court reported in Rameshwar v. State of Rajasthan., AIR1952 SC 54 , 1952 CriLJ547 , [1952 ]1 SCR377 . In, that case the witness was a child of the age of 7 or 8-years and the Assistant Sessions Judge had not certified that the child understood the duty of 6peaking the truth. The Supreme Court did not accept the contention against the admissibility of the evidence ol the child witness, and held that while it was desirable that Judges and Magistrates should always record their opinion that the child under stands the duty of speaking the truth, such an opinion of the Magistrate or Judge could also be gathered from the circumstances even when there is no such formal certificate. In the present case, though the actual questions put by the learned Sessions Judge have not been recorded, it is clear from the note made by him before examining this witness, that he bad questioned her for the purpose of ascertaining whether she knew the nature of the oath; the child witness appears to have stated before the Judge that she ha J come to speak about what she saw and that if she should tell a lie, God would punish her. The learned Judge had taken her evidence after solemn affirmation. Having regard to these circumstances and also from the way she has given evidence I am satisfied that she was a competent witness and that there is no valid ground against the admissibility oil her evidence.

(3.) P.W. 1 has given evidence in a very convincing way and there cannot be the slightest doubt that she was an eye-witness to the occurrence. Without any unnecessary delay, a report has been made to the Patel. P. W 3 is no other than the-brother of the accused himself and his evidence-shows that almost immediately after the occurrence, the accused was pursued and in spite of his struggles he was tied hand and foot with a coir rope. It was argued by Sri Ramachandra Rao that Achu Shettey also should have been examined. But, from the mere non-examination of Achu Shetty, we do not find any reason to doubt the evidence of P.Ws. 1 to 3. Even P.W. 4 who is no other than the mother of the accused, states that when the accused came running, he was caught and tied by P.Ws. 2, 3 and' Achu Shetty, Under these circumstances, there cannot be any doubt that the accused caused tine death of Muthayya Shetty in the manner stated by P.W. 1 and that thereafter he was pursued and caught hold of and tied up by P.Ws. 2, 3 and Achu Shetty in spite of 6ome resistance offered by him. I am satisfied1 from the evidence that the learned Sessions Judge was right in taking the view that it was the accused that had caused the death of Muthayya Shetty by hitting Muthayya Shetty on the head with M. O. 1. The evidence of the doctor P.W. 5 shows that the injuries found on the head of Muthayya Shetty could' have been caused by M. O. 1. The head of Muthayya Shetty must have been hit with considerable violence: because, it is seen from the evidence of P.W. 5 that the frontal bono had been fractured and there were also multiple irregular fractures extending to the base of the skull.