NINGAPPA ALIAS NINGARADDI Vs. STATE

JUDGEMENT

(1.) THE two appellants before us have preferred this appeal which is directed against their conviction and sentence imposed on them by the iii Additional Sessions Judge, Dharwad in S. C. No. 106 of 1997. It was alleged that on 23-1-1996, the two accused persons are alleged to have been involved in the kidnap of a six year old boy by name Jagadish and that they had enticed Jagadish who was supposed to have gone to watch a Kabaddi match in the open area near the Panchayat Office of Chikkahandigol Village and that they have thereby committed the offence punishable under Section 364 read with Section 34 of the IPC. The more serious charge was that between 23-1-1996 and 25-1-1996, the accused are alleged to have committed the murder of the minor boy Jagadish in the jowar land of one Ramangouda Patil by strangulating Jagadish and that they have thereby committed the offence punishable under Section 302 read with Section 34 of the IPC. The accused persons are distantly related to the father of Jagadish, who is P. W. 10, Yenkaraddy and it is alleged that there was some background of a property dispute between the parties and that this is the reason why the accused persons kidnapped and murdered the minor boy Jagadish. The accused were put up for trial and the evidence is rather restricted insofar as it is confined to the evidence of P. W. 10, Yenkaraddy, who is the father, P. Ws. 12 and 13, ranganagouda and Ramesh, who are the students who found the body, p. W. 14, Chandregouda, who alleges that he saw the two accused persons enticing the minor boy and P. W. 17, Smt. Venkamma, who is the mother of the minor boy Jagadish. In addition, the learned Trial Judge has relied on the evidence of P. W. 15, Devappa who has stated that he saw the two persons proceeding towards the land of Ramannagouda where the body was ultimately found. On the basis of this evidence, the learned Trial Judge recorded the finding that both the charges were established and convicted both the accused persons. They were sentenced to rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- each, in default to undergo simple imprisonment for one year for the offence under Section 364 of the IPC and to rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 302 of the IPC. The present appeal is directed against the conviction and sentence of the two appellants.

(2.) WE need to make a special mention of the fact that this appeal was admitted on 4-10-1999. The appellants' learned Advocate had also moved an application for suspension of sentence and praying for bail and inter alia, he had put forward a two fold submission, the first being that this is a case in which a highly decomposed body had been sent for post mortem and that there is no conclusive evidence with regard to the cause of death or for that matter, there is no evidence to establish a homicidal death and secondly, that there is no direct evidence to implicate the two accused persons and the submission was that this is a fit case in which bail should be granted. In order to satisfy ourselves about the correctness of the submissions, we have called for the records and since the Paper Books were also received, we have heard the appeal on merits.

(3.) WITH regard to the first submission canvassed by the appellants' learned Advocate, we need to point out that the deceased Jagadish was a six year old boy who is the son of P. Ws. 10 and 17. It is alleged that he disappeared on the afternoon of 23-1-1996 and that his body was found on 25-1-1996, after which the law was set in motion and the body was thereafter sent to P. W. 11, Dr. Rudregouda for post-mortem. According to his evidence, he conducted the post-mortem on the morning of 26-1-1996. His evidence indicates that the body was discoloured, that it was swollen, that he did not find any external injuries on the body and in sum and substance, he states that he was unable to record any conclusion regarding the cause of death because of the fact that the body was highly decomposed and the brain and other organs were in no condition to be analysed. He collected the Viscera and sent the same for examination, but no adverse report has been received. The doctor is very clear about the fact that not only did he find that there were no external injuries but that he also did not find any internal injuries. He does not also speak of any ligature marks. We refer to this last aspect of the matter because the prosecution has put forward the contention that the accused had strangulated the deceased Jagadish and therefore, it would have been very necessary that the existence of external and internal injuries could have substantiated the theory of strangulation. The condition of the body being what it was or for whatever other reason, the doctor is totally inconclusive with regard to the cause of death. It is a basic ingredient of criminal law, particularly where a charge of murder is put forward by the prosecution, that in the first instance the prosecution has to establish the homicidal death. The appellants' learned Advocate is right when he points out to us that in the absence of medical evidence establishing the homicidal death, that it is not permissible for a Court to record a conviction under section 302 of the IPC. We need to record here that there is a suggestion put forward by P. Ws. 12 and 13 that there appeared to have been some blackish marks around the neck and that the face was also discoloured, but they do not find place in the inquest report. More importantly, it is the medical evidence and not the observation of witness or the view of the police when an inquest report is drawn up that is the predominent consideration and if the medical evidence is absolutely silent with regard to any such injuries or any such marks of violence, then a mere suggestion from witnesses who had seen the body would not avail the prosecution. We need to deal with a very interesting submission put forward by the learned State Public Prosecutor. He submitted that the deceased was a six year old healthy boy when he was enticed away on the evening of 23-1-1996 and that from the condition of the body when it was found two days later in a decomposed condition, it is very clear that jagadish must have met with his death very shortly after he was enticed away on the evening of 23-1-1996. His submission is that the facts in this case are very unusual because the body was decomposed and therefore, the doctor P. W. 11 had difficulty in recording the injuries or the cause of death, but his contention is that if the prosecution witnesses have spoken about the apparent injuries on the neck and the fact that the face was swollen which are secondary indications of strangulation, that the Court should accept this evidence as being good enough to hold that Jagadish had died a homicidal death. We need to record very clearly that this submission is totally and completely unacceptable for the reason that the cause of death is something that has to be certified by the competent authorities viz. , the doctors and if this is not done or cannot be done, it is out of the question for the prosecution to expect that it is at all permissible for the prosecution to ask the Court to record a finding regarding the homicidal death. The cause of death is something within the province of medical jurisprudence and the factual position regarding the cause of death or for that matter, the existence of injuries etc. , is something which has to be certified by the doctors and it may be that a Court will examine the documents and the factual position as emerges from the various reports and in a given instance, the court will certainly look into the question as to whether the opinion given by the doctor is wholly acceptable or not, but this does not mean that the prosecution can ever expect a Court to evaluate the data and give its finding with regard to the cause of death. This is a totally unheard of procedure and the prosecution is certainly in error in putting forward such a submission.