CHIKKAHOTTAPPA ALIAS VARADEGOWDA Vs. STATE

JUDGEMENT

(1.) THE eight appellants before us were the original accused in sessions case No. 7 of 1993 before the learned principal sessions judge, tumkur. it was alleged that in an incident that took place at bandihalli at about 7 p. m. on 13-7-1992, that the eight accused who are members of an unlawful assembly had assaulted the deceased rajanna with machus, sticks and a wooden reeper and that as a result of the injuries sustained by him, he died shortly thereafter. The accused are all inter-related and the prosecution alleges that there was some rivalry between the two groups which is of a long standing nature and that this was the real reason for the incident. The mother of the deceased P. W. 1-ningamma states that the accused persons had come to her house shortly before the incident and that some of them were armed with machus and that the remaining persons had clubs and a wooden\ reeper with them. They asked her as to where her son rajanna was. She informed the persons who had come there that rajanna had gone out and she bolted the door because she states that they were in an aggressive mood. According to her, they threw stones on the house and that they once again enquired about rajanna and since she told them that he was not in the house, that they left the place stating that they would finish him. According to her shortly after this, she went in the direction in which these persons has proceeded and she saw rajanna approaching from the opposite side. on seeing the accused persons, he tried to escape from them but the accused caught hold of him and severely assaulted him. She states that rajanna had fallen on the ground with several injuries starting from his head to different parts of the body and the lower limbs and that he was bleeding. The accused are supposed to have left the place with the weapons stating that rajanna was finished after which, some attempt was made to take the injured person to the hospital at huliyurdurga in a car. rajanna died on the way and ultimately, the body was taken to the police station and from there to the hospital. The complainant who is ningamma lodged the complaint at 9. 30 p. m. and this complaint which has been treated as the f. i. r. was ultimately sent to the j. m. f. c. , kunigal, which reached him at 7. 30 a. m. the next morning. We need to also mention that there is one other aspect of the case which is of some consequence namely the fact that it has emerged from the medical evidence that accused 4-lokesh had also sustained two injuries of considerable seriousness on his left thigh and right leg respectively and that he came to be admitted to the hospital at huliyurdurga on the same evening at about 7. 30 p. m. a-4 has lodged a complaint with the police to the effect that deceased rajanna and two other persons had assaulted him near his house at about 5. 30 p. m. on 13-7-1992 and that he had sustained the injuries in the course of that incident. Ultimately, the police have filed a 'b' report in respect of this complaint. We refer to this while narrating the facts because we shall have occasion to deal with this aspect of the case which is of some importance. As far as the complaint lodged by ningamma is concerned, the police registered an offence being crime No. 92 of 1992 under Section 302 of the IPC read with Section 149 of the IPC and after completion of the investigation, put up eight accused for trial. The learned trial judge has found the eight accused persons guilty of the offences punishable under sections 302 read with Section 149 of the IPC and has convicted all of them and sentenced them to suffer r. i. for life under the main charge along with a fine of rs. 5,000-00 in default, to undergo further r. i. for a period of one year. The accused have also been convicted of the offence under Section 148 of the IPC and have been fined Rs. 500-00 in default, to undergo s. i. for three months. The present appeal assails the correctness of these convictions and sentences.

(2.) AT the hearing of the appeal, we have heard the appellants' learned counsel and we have also heard the learned additional public prosecutor for the state. The record of this case is relatively heavy and we have done a total review and reappreciation of the evidence that forms part of the record. We have also perused the judgment of the lower court carefully and have heard the respective learned counsel both on facts as also in law. The first contention that was raised before us on behalf of the accused is with regard to the lodging of the complaint exhibit p. 1. As far as this is concerned, the evidence indicates that ningamma has lodged the complaint at the police station at 9. 30 p. m. this was an oral complaint which was reduced to writing and the record indicates that this process took approximately one hour. Some argument was advanced with regard to whether the complaint has been lodged without any delay and what was contended basically was that if the sequence of events is verified, the incident is alleged to have taken place at 7 p. m. and, it was an incident of relatively short duration. Rajanna was seriously injured and an immediate attempt was made to rush him to the hospital at huliyurdurga which is about 8 k. ms. Away and since he died on the way, the P. W. 1 and the others went to the police station. what was pointed out to us was that all this process could not have taken more than a short time and that there is really no explanation as to why the complaint was lodged only at 9. 30 p. m. and the usual submission that was put forward was that having regard to the bitter hostility between the two groups, that careful planning and decision making had taken place in order to implicate as many persons as possible and that this is the reason for the delay. We do not see much substance in this particular grievance because there has not been any detailed cross-examination particularly as far as P. W. 1 is concerned on this particular point and therefore, one may reasonably assume that there was no unreasonable delay as far as the lodging of the complaint is concerned.

(3.) THE real argument that was forcefully put forward as far as the aspect of delay goes emanated from the second aspect namely that if the process relating to the taking down of the complaint was completed by 10. 30 p. m. as to what is the explanation of the prosecution for the fact that the f. i. r. which had been sent through a police constable to the j. m. f. c. at kunigal reached the court only at 7. 30 a. m. learned counsel pointed out to us that the distance is 28 k. ms. , that there is plenty of transport available not only to the police but also as far as the other persons are concerned, that the police are conscious of the fact that in a serious case such as the present one that any undue delay would be damaging to the prosecution and that despite this, the prosecution has not examined the police constable who carried the f. i. r. nor has it put forward any explanation for this long delay of nine hours. The learned additional state public prosecutor drew our attention to the evidence of P. W. 18 who is the police officer concerned and to the fact that he has stated that the f. i. r. was transmitted to the court and he submits that not a single question was put to the police officer in cross-examination questioning him as to what the reasons for the time lag were. His submission is that if the defence has not availed of the opportunity which arose when the officer was examined and if the defence has not specifically brought it out in evidence that there has been either abnormal or unexplained delay, that it is not fair to advance an argument in a situ ation where no grievance has been made. We see some justification in this submission because even though the basic duty is that of the prosecution to explain even the aspect of the time factor, if it has not been disputed at all during the trial, it would be a little difficult for us to sustain a complaint at this stage. The added reason for it is because we are satisfied from the record that the complaint was lodged in the police station between 9. 30 and 10. 30 p. m. on the previous night. Cases in which courts have upheld the second aspect namely the delay in transmission to the court are invariably ones in which there is a serious doubt with regard to the point of time when the original complaint was lodged and it reasonably appears that the fact that the complaint reached the court at a later point of time creates the possible impression in the court's mind that the original complaint itself was lodged much later than what the authorities make it out to be. This is not such a case and in the absence of anything having come on record that will raise suspicion with regard to any undue delay, we see no ground on which this grievance can assist the defence.