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High Court of Karnataka (Circuit Bench At Dharwad)
SUBHASH B. ADI & N. ANANDA, JJ.
State of Karnataka through P.S. Athani
Versus
Kallappa Somanna Kamble & Others
Criminal Appeal No. 1523 of 2004
Decided On : 08-03-2011
CODE OF CRIMINAL PROCEDURE, 1973 - Section 378(1) & (3): [Subhash B. Adi & N. Ananda, JJ] Appeal against acquittal - Offences under Section 302, 307 and 504 r/w Section 34 IPC - Accused alleged to have assaulted the deceased and his son PW-1 with knife and sticks - Statement of deceased, PW-1 and others were recorded by Magistrate at the Hospital -Trial Court acquitted the accused holding motive alleged was not proved, no evidence enough to hold that prosecution has proved the guilt of accused beyond reasonable doubt - Held, From the order sheet, it reveals that, the prosecution has treated the material witness viz., the injured-complainant-PW-6 as hostile even before she was examined. It has given up the Doctors, who treated the deceased. It is in the evidence that the deceased died on 07.02.1998, while he was under treatment. When the Investigating Officer along with the charge sheet has produced a list of witnesses required to be examined to prove the prosecution case and has also produced the material documents, the Prosecutor and the Fast Track Court in a very casual way have given up the material witnesses as unnecessary and have also not sought to get the relevant material documents produced before the Court, such as, wound certificate issued by the Medical Officer. When a case is tried for an offence punishable under Section 302 of IPC, the prosecution is required to prove that the deceased died due to the injuries he suffered in an assault by the accused. If there are more than one accused and have used different arms and assaulted at differed parts of the body. It is necessary to know as to which of the injury was fatal and who caused it. To appreciate the same, the evidence of the doctor who issued wound certificate, and who conducted the post-mortem is very important to the case. In a criminal trial particularly in case of murder or causing injury to a person, the evidence of the doctor is vital. Doctor evidence supports to know as to which injury was fatal and caused the death. It also helps the Court to know which injury was grievous and which was simple. It also helps to know which weapon could have caused such injuries. The duty of the Court is not just record the evidence who have been examined, but also to see that the evidence of witnesses who are important in ascertaining the truth, Even if the prosecution fails to examine the material witness, the Court is not precluded from getting the witness summoned. Looking at the order sheet and the observation made by the learned trial Judge for acquittal, we find that the trial Court has totally misdirected itself from conducting the criminal trial in accordance with the procedure in law. Hence, we find that the examination of the Doctor and marking of wound certificate, post mortem report is necessary and the opinion of the medical officer is necessary to know the nature of injury, and cause of death etc. For this limited purpose, we find it necessary to remit the matter to the trial Court for reconsideration. Appeal was allowed. Order of acquittal set aside and matter remitted to trial Court to proceed with trial. By examining the Doctors and getting their opinion explained and also summon such of the documents, which are necessary for just and proper trial in the case.
1. This appeal is by State against the judgment of acquittal in Sessions Case No. 109/1998 dated 16th July 2004 on the file of Additional Sessions Judge, Belgaum.
2. Accused No.1 – Kallappa Somanna Kamble accused No.2 – Sanjeev Kallappa Kamble and accused No.3- Babasab @ Baban Kallappa Kamble were tried for an offence punishable under Sections 302,307,504 read with Section 34 of the Indian Penal Code.
3. Deceased Shankar is the father of PWs-1, 2, 6 and 8 and husband of PW-7. PWs-1, 2, 6, 7 and the deceased had gone to their land on 18.12.1997 to form a road for the transportation of the sugar cane from their land. At about 9 a.m., accused came to the spot, picked up a quarrel by abusing the deceased as well as his children. Accused No.1 assaulted the deceased with a knife on his stomach, accused No.2 assaulted with stick on his head and accused N0.3 assaulted with stick on the forehead. When PW-6 went to the rescue of her father, accused No.2 assaulted her with a stick on the left side of her head. Accused No.1 assaulted PW-1 with knife on his right shoulder, accused No.3 also assaulted with a stick on his right forearm, accused No.2 assaulted with a stick on his head and right hand. PWs-1, 2 and 6 and PW-4-Gyanaba came to the rescue and took the injured Shankar to Athani Government Hospital where deceased was given initial treatment. PW-6’s statement was recorded by the Police with the help of the writer. On the basis of her complaint, PW-5 registered a case in Crime No.252/1997 against the accused for an offence punishable under Sections 326, 324, 504 read with Section 34 of IPC and despatched the FIR-Ex.P8 to the learned Magistrate, Athani. He visited the Government Hospital, Athani, recorded the statements of Shankar – deceased, PW-1 – Annasaheb, PW-2- Ravi and others. He visited the scene of occurrence and prepared the spot panchanama – Ex.P3, seized the knife and two sticks M.Os.1 to 3 under panchanama, arrested accused Nos.1 to 3 and interrogated them. He also recorded the statement of PW-8-Sunil and further statement of CW-1 and requested the learned Magistrate for adding the offence punishable under Section 307 of IPC by his letter dated 23.12.1997. On 9.2.1998 he received the case papers from Miraj Police Station having held inquest on the dead body of Shankar, who died on 7.2.1998 for the injuries sustained by him. On the basis of the inquest report, a letter was sent to the learned Magistrate for adding the offence punishable under Section 302 of IPC. Thereafter he handed over the further investigation to CPI Sr.Agadi, who recorded the further statement of PWs-6, 7 and 4 on 11.3.1998, received the would certificates Exs.P4 and P5 of PW-6 and PW-1. On completion of the investigation, he filed the charge sheet.
4. The trial court framed the charge against the accused for an offence punishable under Section 302, 307, 504 read with Section 34 of IPC. The charge as framed by the trail court reads as under:
“CHARGE”
I, Shri. S.P.Hanaminahal, M.A., LL.B., Presiding Officer, Fast Track Court & Additional Sessions Judge, Belgaum, hereby charge you
A.1. Kallappa Somanna kamble
A.2. Sanjeev Kallappa Kamble
A.3. Babasab @ Baban Kallappa Kamble
All R/o Bevanur as follows:
That you accused No. 1 to 3 on or about 18th December 1997 at about 9 a.m. in furtherance of your common intention in Jivanur village, within Atahni P.S. limits committed the murder of Shankareppa by intentionally or knowingly causing his death by assaulting him with sticks on his head and shoulder and thereby committed an offence punishable under Section 302 read with Section 34 of IPC and within the cognizance of the court of Sessions.
That you accused Nos. 1 to 3 on the aforesaid date, time and place, within Athani P.S. limits in furtherance of your common intention with such an intention or knowledge, and under such circumstances you accused 1 to 3 caused injuries to complainant, CWs-6, 7 and 8 namely Annasaheb, Ravishankar and Sushila Shankar
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