Karnataka High Court
State Of Karnataka vs Imamsab Husensab Honyal Pailwan on 24 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 Criminal Appeal No.100246/2018
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.100246 OF 2018
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE POLICE SUB-INSPECTOR,
SAMREEN BELAGAVI RURAL POLICE STATION, BELAGAVI,
AYUB THROUGH THE ADDL.
DESHNUR STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
Digitally signed
by SAMREEN HIGH COURT OF KARNATAKA, DHARWAD BENCH.
AYUB
DESHNUR ...APPELLANT
Date: (BY SRI. M.B. GUNDWADE, ADDL. SPP)
2023.12.08
13:03:32 +0530
AND:
1. IMAMSAB HUSENSAB HONYAL PAILWAN,
AGE: 45 YEARS, OCC: AGENT/CAR DRIVER,
R/O: BEHIND TALUKA OFFICE,
SAVADATTI, DISTRICT: BELAGAVI.
2. SHAUKATALI S/O. GULABSAB,
AGE: 28 YEARS, OCC: NOT KNOW,
R/O: KNAKANWADI VILLAGE,
DISTRICT: BELAGAVI.
3. KABIRSAB HASANSAB NADAF,
AGE: 48 YEARS, OCC: NOT KNOW,
R/O: BENDWADI, TALUK: GOKAK,
DISTRICT: BELAGAVI.
RESPONDENT NO.3 IS REPORTED TO BE DEAD
AND APPEAL AGAINST RESPONDENT NO.3 IS ABATED
AS PER ORDER DATED: 22.10.2019.
2 Criminal Appeal No.100246/2018
4. VIJAY S/O. SADASHIV RODKAR,
AGE: 45 YEARS, OCC: JAILER,
R/O: TERDAL, TALUK: JAMAKHANDI,
DISTRICT: BAGALKOT.
5. GAJANAN S/O. SHIVAJI RAJGOLKAR,
AGE: 53 YEARS, OCC: CHIEF WARDER,
R/O: CENTRAL PRISON BELAGAVI.
6. BALANGOUDA KESARPENTI
S/O. HANUMANTGOUDA PENTI,
AGE: 53 YEARS, OCC: CHIEF WARDER,
CENTRAL PRISON, BENGALURU,
R/O: NEER BUDIHAL,
TQ: BADAMI, DIST: BAGALKOT.
7. DURGAPPA S/O. BASAPPA KADLI,
AGE: 59 YEARS,
OCC: CHIEF SUPERINTENDENT,
R/O: VALKANMATTI,
TQ: DEVDURG, DIST: RAICHUR.
...RESPONDENTS
(BY SRI. SHARAD V. MAGADUM FOR R1;
SRI. JAGADISH PATIL, ADVOCATE FOR R2;
SRI. SANTOSH B. MALAGOUDAR, ADVOCATE FOR R4 TO R7)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER ACQUITTAL
DATED 16.03.2017 PASSED BY THE PRINCIPAL SESSIONS JUDGE, BELAGAVI
AT BELAGAVI IN SESSIONS CASE NO.127/2010 AND CONVICT THE
RESPONDENTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION
302, 120-B, 201 R/W. SECTION 34 OF IPC, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS CRIMINAL APPEAL BEING HEARD AND RESERVED ON
03.11.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
3 Criminal Appeal No.100246/2018
JUDGMENT
This appeal is preferred by the State against acquittal of
judgment passed by the Principal Sessions Judge, Belagavi (for short
"Trial Court") in Sessions Case No.127/2010 dated 03.11.2023. The
respondents 1 to 7 faced the trial for the offences punishable under
Sections 302, 303, 201, 120B read with section 34 of IPC.
2. It is reported to the Court on 22.10.2019 that accused
No.3-respondent No.3 has died. Therefore, this Court has passed order
regarding abatement of case against respondent No.3. As he is
reported to be dead, the criminal case against him stood abated as per
the orders dated 22.10.2019.
3. The facts of the prosecution's case in brief are as under:
That, Sarvottam T Pai, DSP (H&B) Wing, CID, Bengaluru
submitted a complaint on behalf of the State to the Belgaum Rural
Police Station on 19.12.2009 at 6.25 p.m. with a request to register
criminal case with regard to the death of one Sri.Bhimappa Alagonda
Kamate, a convict housed at Hindalga jail, Belagavi with Convict
No.19803 for the offences punishable under Section 302 and 201 of
IPC.
4 Criminal Appeal No.100246/2018
It is stated in the complaint, that on 02.01.2006 at about 1.00
p.m., the Chief Superintendent of Central Jail, Belagavi by name
Sri.D.B.Kadli, submitted complaint by appearing before Belagavi Rural
Police Station stating that, deceased-Bhimappa Alagonda Kamate
(hereinafter referred to as "deceased") with Convict No.19803 aged
about 49 years, r/o. Bendwad village, Raibag Taluk, Belagavi District
was convicted by the Fast Track Court in SC No.207/2004 in Crime
No.80/2004 for the offence punishable under Section 307 of IPC. He
was convicted and sentenced to undergo imprisonment for a period of
5 years and to pay fine of Rs.1,000/- and in default to pay the fine
amount, he has to further undergo simple imprisonment for six
months. Accordingly, the deceased was sent to Central Jail Belagavi on
26.09.2005 to serve sentence. It is reported that the said convict on
27.12.2005 fell down from the staircase and sustained head injuries on
his person. It is further reported that, as per the advise of the medical
officer housed at Central Jail, he was admitted to District Hospital,
Belagavi. Thereafter, for further treatment, he was admitted at KLE
hospital Belagavi. But unfortunately, the said Bheemappa succumbed
to the injuries on 01.01.2006 at 9.45 p.m. at KLE hospital, Belagavi.
Based upon the said report/complaint, the Belagavi Rural Police
Station registered case in UDR No.1/2006 under Section 174 Cr.P.C.
5 Criminal Appeal No.100246/2018
One S.B.Mathapati, the then PSI registered the said crime. As per the
request of PSI, Belagavi Rural Police Station, the Assistant
Commissioner/Sub-Divisional Magistrate Belagavi conducted inquest
panchanama on the dead body on 02.01.2006 at KLE Hospital,
Belagavi. The said Sub-Divisional Magistrate requested the District
Hospital, Belagavi to conduct post-mortem on the dead body.
Accordingly, Dr.G.K.Arun and Smt. Dr.P.S.Patil conducted post-
mortem on the dead body of the deceased. They opined that
"Bheemappa Alagonda Kamate aged about 49 years has died
on account of Coma, as a result of severe head injuries
sustained".
4. It is further stated that the Sub-Divisional Magistrate
Dr.Vijayakumar N Toragal submitted report to the National Human
Rights Commission, Delhi with regard to custodial death of deceased
along with post-mortem report as deceased was in coma because of
head injuries and he was unable to speak and therefore, his statement
was not recorded.
5. It is alleged that Dr.Sharma, the Additional Professor,
Department of Forensic Medicines, Indian Institute of Medical
Sciences, Delhi based upon the medical records has opined as under:
6 Criminal Appeal No.100246/2018
"As per the information given by the expert of Panel of
NHRC, the injury sustained by the deceased are not
possible by fall and can be caused due to fall from
height of at least 1-2 storied. Thus, the death appears
to be suspicious"
6. Based upon the said opinion, the NHRC directed the
Government of Karnataka to conduct investigation through CID Police
by addressing letter No.O.E.114 CID 209 dated 25.09.2009. As per the
said direction issued to the Government of Karnataka, the
Superintendent of Police (H&B) Wing entrusted the complainant
Sarvottam Pai to visit Hindalga Jail, Belagavi and conduct
investigation. Accordingly, this complainant visited the Central Jail,
Belagavi along with panchas, conducted inspection and investigation at
the said Central Jail. The said incident has taken place in a room where
Iron Smithy work was undertaken in Central Jail. He noticed about
sprinkling of blood on inside walls of the said iron smithy room. It was
also revealed from the statements of witnesses present there that,
blood was fallen on floor. Therefore, the complainant requested the
FSL, Belagavi to collect the blood, which was sprinkled on walls. He
also requested to provide report to that effect. It is alleged in the
complaint that, as per the medical report from Dr.R.K.Sharma, it was
revealed that it was not possible for the deceased to sustain such
7 Criminal Appeal No.100246/2018
injuries on account of fall on staircase but it was possible only if he
had fallen from 2-3 storied building. It was also revealed that, there
was destruction of evidence with regard to falling of blood on the stairs
as well as the material object being used for commission of the
offence. It was revealed that, it was not an accidental death but it was
a murder.
7. With these allegations, complaint came to be filed before
the Belagavi Rural Police Station, it was registered in Crime
No.278/2009 for the offence punishable under section 302 and 201 of
IPC and criminal law was set in motion. The registration of FIR in the
aforesaid crime was followed by investigation which led to charge
sheeting all the respondents.
8. Before the Trial Court, to substantiate the case of the
prosecution, it examined in all 57 witnesses as PW1 to PW57 and got
marked documents as per Ex.P-1 to Ex.P-107 with respective
signatures thereon. M.O.1-metal cutter was also marked. During the
course of cross-examination, portions of evidence of PW10 and PW11
were marked as Ex.D1 and Ex.D2.
9. The Trial Court on evaluation of evidence and on hearing
the arguments found that, the evidence placed by the prosecution
8 Criminal Appeal No.100246/2018
would not lead to convict the accused persons and hence, acquitted all
of them of all the offences by the judgment impugned in this appeal.
10. The main grounds recorded by the Trail Court for
acquitting the accused are as under:
i) The report submitted by PW51-Dr.R.K.Sharma being the
consultant doctor to NHRC, Delhi wherein the said expert
has not agreed with the history of deceased sustaining
injury falling on steps and such head injury is possible on
account of fall from height of at least 1 to 2 storied.
Therefore, to prove the same the prosecution has
examined many witnesses alleging that it was accused
No.1, who murdered the deceased. But the said
witnesses have not supported the case of prosecution.
ii) PW3-Arun Ganeshrao Katekar has stated in his evidence
about submitting report as per Ex.P9. The doctor has
opined that death was due to coma as a result of severe
head injury sustained by the deceased. Ex.P10-final
opinion and the cause of death was not clearly shown
about deceased sustaining head injury, who died when he
was in coma. The opinion as per Ex.P12 though says
about using of said metal cutter the said murder has
taken place, but according to the Trial Court, there exist
contradictions in the evidence of the witnesses.
iii) It is also opinion of the Trial Court that Dr.Prabhavati
Patil, who conducted post-mortem on the dead body was
9 Criminal Appeal No.100246/2018
not examined. PW3-Arun Ganeshrao Katekar has given
two reports. One in the year 2007 and another in the year
2010. He gave an opinion stating that injury No.2 was due
to hard hit by blunt weapon, but in the year 2010, he has
stated that injury No.2 might have been caused by the
article examined.
iv) PW37-complainant/Dr.Sarvottam Pai took up the
investigation and sent the bloodstains found on the wall of
ironsmithy room. The said incident has taken place in the
year 2005. The bloodstains were sent in the year 2009.
The NHRC referred the post-mortem examination report,
which was examined by PW51-R.K.Sharma and the matter
was referred for CID investigation. Based upon such a
conclusion, according to the Trial Court, such evidence
cannot be accepted.
v) PW1-Dr.G.B.Dodawad, who medically examined the
deceased, who was admitted in Government Hopsital with
a history of fall due to fits and he noticed bleeding injuries
on the person of the deceased and has opined that the
said injury shown in Ex.P3 might have been caused by the
use of said metal cutter. He has also opined that the
injuries in the accident register and injury No.2 in the
post-mortem report may be the same. This doctor
examined the deceased in the year 2005. The
investigating officer requested this doctor in the year
2010 to give opinion and he has given opinion as per
10 Criminal Appeal No.100246/2018
Ex.P3. Thus, the contents of Ex.P3 were not accepted by
the Trial Court.
vi) The other witnesses so examined by the prosecution have
not supported the case of the prosecution. But as per the
evidence of PW5-Biliya, he saw the clothes of accused
No.1, which were bloodstained. There was bleeding from
nose and mouth of Bheemappa. At that time, the
deceased was seated near the stairs of said ironsmithy
room. It is his evidence that accused No.1 dragged
Bhimappa outside and he was found wiping the blood in
the said ironsmithy room. There are contradictions. To
corroborate the said evidence, PW11 was examined. But
his evidence was not accepted by the Trial Court. It is
opined by the Trial Court that the entire case was based
on circumstantial evidence but the prosecution has made
futile attempt to claim that there were eyewitnesses to
the incident and examined many inmates of the prison,
but none of them were found to be eyewitnesses to the
said incident. Therefore, the Trial Court was of the opinion
that the evidence placed on record does not inspire
confidence.
vii) Trial Court opines that the death of Bheemappa is not in
dispute but it opined that he died because of head injury
sustained by him as per medical records. Even inmates of
the jail have stated that the said injuries were sustained
by the deceased because of fall on the steps. There is no
concrete evidence that accused No.3 gave supari through
11 Criminal Appeal No.100246/2018
accused No.2 to kill Bheemappa. There is no destruction
of evidence by accused No.4 to 7. According to the Trial
Court, the case of the prosecution suffers from many
pitfalls. Therefore, with this opinion, the Trial Court came
to the conclusion that no case is made out for conviction
of the accused and seizure is also not proved.
viii) In the complaint, there is no allegation against the
accused persons that it was accused persons, who
hatched plan to commit the murder of the deceased.
There is no evidence against accused No.4 to 7 that they
destroyed all the evidence of committing murder by
accused No.1. The prosecution has utterly failed to
connect the accused persons to the murder of
Bheemappa. Therefore, with this opinion, the Trial Court
came to the conclusion that, no case is made out for
conviction of the accused.
11. Challenging the findings of the Trial Court, Sri.
M.B.Gundawade, learned Additional SPP argued on behalf of the State.
Sri. Sharad V Magadum, advocate argued on behalf of respondent
No.1. Sri.Jagadish Patil, advocate, argued on behalf of accused No.2
and Sri.Santosh Malagoudar, advocate, argued on behalf of accused
No.4 to 7.
12. Sri. M. B. Gundawade, learned Additional SPP began his
argument with a comment that the Trial Court has utterly failed in
12 Criminal Appeal No.100246/2018
appreciating and analyzing the evidence placed before it by applying
the yardstick on probabilities to the intrinsic value in evidence and the
animus of the witnesses. It is his submission that there was no
attempt by the Trial Court to separate grain from chaff and it has
resulted in miscarriage of justice. Elaborating his submission, he
submitted that though most of the witnesses appeared to have not
supported the case of the prosecution, in reality it is not so. There
must be proper appreciation of evidence, which would lead to a
conclusion that they have spoken to the extent they knew about the
incident and of course, some of the witnesses have fully turned hostile
and it must be borne in mind that all of them were either inmates of
Central jail, who were friendly with accused No.1 or were under the
control of accused No.4 to 7. The Trial Court has failed to notice the
reason for those witnesses, who have turned hostile. It is his further
submission that, accused No.2 is a mediator and he brought accused
No.3 on the previous day of the incident of murder of deceased-
Bheemappa and had a talk with accused No.1 in the visitors' room.
This fact is being witnessed by the convict, who was in-charge of the
said visitors' room. So also, the visitors' register also shows about visit
of accused No.2 and 3 on that day. Thus, inference can be drawn from
13 Criminal Appeal No.100246/2018
this evidence that there was some conspiracy to commit the murder of
Bheemappa through accused No.1.
13. He further submits that, merely because some of the
witnesses have been treated hostile, their evidence in totality could
not have been discredited by the Trial Court. According to his
submission, the totality of circumstances indicates that accused No.1
being the inmate of the Central Jail, Belagavi, based upon request of
accused No.2 and 3 hatched a plan to commit murder of Bheemappa.
On that ill-fated day, he brought Bheemappa to the said ironsmithy
division, where accused was working, made him to sit and when
deceased was sitting, he made use of the said situation and assaulted
the deceased with M.O.1-metal cutter on his head and other parts of
the body as noticed by the doctor. Accused No.1 dragged the dead
body towards stairs/steps and pretended that the deceased fell down
on the stair (steps) and sustained injuries. Because of the hue and cry
made by the accused No.1, the inmates of the jail gathered. With the
help of jail authorities, deceased was shifted to hospital. The injuries
were so serious that deceased was unconscious and he went in coma.
He was treated in Civil Hospital, Belagavi and thereafter for further
treatment he was shifted to KLE hospital but he succumbed to the
14 Criminal Appeal No.100246/2018
injuries. Thus there was supari killing of deceased by accused No.1 to
3.
14. So far as conspiracy is concerned, according to his
submission, there is ample evidence. Accused No.1 was housed in the
prison and accused No.2 was inside the jail and was undergoing
imprisonment. Both had good friendship. Taking advantage of
friendship, he brought accused No.3 against whom deceased-
Bheemappa had to give evidence before the JMFC Court Raibag on the
next day of the incident. Therefore, they hatched a plan and conspired
to commit murder of Bheemappa.
15. It is his further submission that, there are no lapses in the
investigation. Merely for the reason that charge sheet was filed after
five years of the incident, it is not possible to state that the
investigation is not properly done by the investigating officers. As per
the provisions of Code of Criminal Procedure, the investigation was
done after getting report from the senior most doctor who was on the
panel of NHRC, Delhi who opined that such injuries could not have
been possible on account of fall on staircase and could be possible only
if a person falls from distance of 2-3 storied building. According to him,
the Trial Court has committed erros in giving findings in relation to
evidence placed on record. It is settled principles of law that conviction
15 Criminal Appeal No.100246/2018
can be recorded based on the evidence given by the official witnesses
also. Even based on the ocular evidence of the witnesses, the
conviction can be passed. It is wrong to disbelieve the testimonies of
vital witnesses if they speak truth before the Court and their conduct is
impartial.
16. In this case, none of the police personnel has been
discredited in the cross-examination. The defence has utterly failed to
demonstrate that the investigating officers were hostile from inception.
Their evidence is very much believable and the Trial Court could have
recorded conviction based on their evidence. Therefore, it is submitted
that the judgment impugned in this appeal cannot be sustained at all.
It is his submission that, the said judgment has to be reversed and
accused No.1 to 7 are liable for conviction. It is his further submission
that accused No.4 to 7 are liable for destruction of evidence.
Therefore, they are liable for conviction for destruction of evidence.
17. Sri. Sharad V Magadum, learned counsel for accusd No.1
submits that, there is no error in the judgment of the Trial Court.
Though the prosecution has examined in all 57 witnesses, most of the
witnesses have been turned hostile except police officers and other
witnesses. So, totally all the witnesses have not supported the case of
the prosecution. The circumstances so brought on record played
16 Criminal Appeal No.100246/2018
important role with regard to very commission of alleged offences by
the accused persons. The motive assumes importance when
circumstances are considered. According to his submission, the motive
is an enmity i.e. accused No.3 was facing trial before the JMFC Court,
Raibag wherein deceased-Bheemappa had to give evidence before the
said Court on the next day of the incident. So, there was apprehension
that if deceased give evidence in the said criminal case pending on the
file of JMFC Court, Raibag, the said accused in the said criminal case
would be convicted and there would be no male member in the family
of the accused persons to take care of female members. Therefore,
they thought of eliminating the deceased with the help of accused
No.1. This motive is not proved in accordance with law.
18. So far as recovery of M.O.1 is concerned, the said recovery
was done after five years of the alleged incident. It is the case of the
prosecution that the said M.O.1 was kept in storage and other
incriminating articles were burnt with the help of the jail authorities.
Thus, there is no evidence placed on record that, it was accused No.1
and other accused were involved in the commission of the crime. The
Trial Court has rightly concluded that the prosecution has not proved
its case. There was no conspiracy at all in between accused No.1 on
the one hand and accused No.2 and 3 on the other hand. He further
17 Criminal Appeal No.100246/2018
argued that, the police witnesses are always interested witnesses. To
see that the case investigated by them should end in conviction of the
accused persons. This being the settled principles, the evidence by the
police witnesses is not safe to be relied upon. His submission is that
since this is an appeal against acquittal judgment, the presumption of
innocence of the accused is double strengthened and it is not proper to
reverse the acquittal judgment unless the findings given by the Trial
Court appear to be perverse. The impugned judgment does not
disclose perversity in appreciation of evidence and hence, appeal
deserves to be dismissed.
19. Learned counsel Sri.Jagadish Patil, for accused No.2-
respondent No.2 argued that, there is no evidence indicating that
there was conspiracy in between accused No.1 and 2 and he brought
accused No.3 who made accused No.1 to have conspiracy to commit
murder of deceased. Except bald say of the inmates of jail and also
visitors' register being maintained by the authorities, there is no
evidence placed on record. This accused No.2 has been falsely
implicated in this case. He is neither the member of conspiracy nor
involved in the crime in the manner alleged by the prosecution. There
is major lapse in the investigation with regard to incriminating
evidence against accused No.2, which cannot be ignored. He also
18 Criminal Appeal No.100246/2018
pointed out that certain amount of money was paid to accused No.1 as
per the case of the prosecution, but whether accused No.2 was
responsible or accused No.3 was responsible is not properly stated or
brought on record. Therefore, the very evidence against accused No.2
is doubtful and it cannot be accepted.
20. Sri.Santosh B Malagoudar, learned counsel for respondents
4 to 7 vehemently submits that these accused persons are the officials
of the prison department. When accused No.7 came to know about the
fall of deceased on the staircase, he rushed to the spot and made
arrangement for shifting the injured to the hospital. To that effect,
accused No.4 to 6 assisted him. They have discharged their duties.
There is no role being played by these accused No.4 to 7 in the
commission of crime and suppression or destruction of evidence with
regard to murder of the deceased by accused No.1. Therefore, it is
submitted that, as these accused No.4 to 7 are not responsible in the
manner stated, it is prayed for dismissal of the appeal.
21. We have given our anxious consideration to the arguments
of both the sides.
22. This is an appeal against the acquittal judgment. We are
conscious of the fact that the acquittal judgment cannot be so easily
19 Criminal Appeal No.100246/2018
reversed unless it appears that the Trial Court has grossly erred in
appreciating the evidence. The approach of the Trial Court must
appear to be very casual. In the case of Chandrappa and others v.
State of Karnataka1 The Hon'ble Apex Court has laid down following
general principles regarding powers of the Appellate Court while
dealing with appeal against an order of acquittal.
"Allowing the appeal, the Supreme Court
Held:
The following general principles regarding powers of the
appellate court while dealing with an appeal against an order of
acquittal emerge:
(1) An appellate Court has full power to review, reappreciate
and reconsider the evidence upon which the order of acquittal
is founded.
(2) The Code of Criminal Procedure, 1973 puts to limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling
reasons", "good and sufficient grounds", "very strong
circumstances", "distorted conclusions", "glaring mistakes", etc.
are not intended to curtail extensive powers of an appellate
court in an appeal against acquittal. Such phraseologies are
more in the nature of "flourishes of language" to emphasise the
reluctance of an appellate court to interfere with acquittal than
to curtail the power of the court to review the evidence and to
come to its own conclusion.
(2007) 4 SCC 415
20 Criminal Appeal No.100246/2018
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable views are possible on the basis of
evidence on record and one favourable to the accused has been
taken by the trial court, it ought not to be disturbed by the
appellate court."
23. In view of the law laid down by the Hon'ble Apex Court, it
is necessary that the entire evidence needs to be re-appreciated.
Therefore, we briefly refer to what each of the witness has deposed
before the Trial Court. Before referring to the evidence of each
witness, the factors relating to which the witness have spoken is
tabulated as under:
-Witness who gave first aid
Dr. Guruputra Veerappa Dodwad treatment to deceased
PW.1
Bhimappa.
-Pancha witness for Ex.P.5
Panchanama & witness to
PW.2 Basavaraj Sadeppa Parasannavar
criminal conspiracy-Hostile
-Witness who conduced post
PW.3 Dr. Arun Ganeshrao Katekar mortem examination of
deceased Bhimappa and
21 Criminal Appeal No.100246/2018
gave opinion regarding metal
cutter.
Witness who prepared sketch
PW.4 Shivanand Pandappa Hugar of the spot as per Ex.P.14.
-Witness who saw accused
No.1 washing smithy; so also
PW.5 Biliya S/o Narayangouda
circumstantial witness.
-Witness who saw accused
No.1washing smithy;so also
PW.6 Manjunatha Siddappa Irani circumstantial witness.-
Hostile.
-Circumstantial Witness-
Guruputra Shivabasappa
PW.7 Hostile.
Doddagoudar
-Son of deceased and
PW.8 Mahadev Bhimappa Kamate Hearsay witness
Circumstantial
PW.9 Beerappa Kadappa Jiddimani Witness-Hostile.
Circumstantial Witness
PW.10 Vinay Ganapati Hegde
-Witness who saw A.1
dragging deceased from
PW.11 Shrikant Pandappa Hadapad inside smithy up to stairs-
Hostile.
- Circumstantial
PW.12 Maruti Shivappa Hulikatti Witness-Hostile.
- Circumstantial
PW.13 Parameshappa Basappa Harijan
Witness-Hostile.
-Witness who admitted
deceased Bhimappa to
PW.14 Mahantesh Basappa Bhangi Hospital & circumstantial
witness witness-Hostile.
-Witness who admitted
deceased Bhimappa to
PW.15 Mahesh Krishna Mirajkar Hospital & circumstantial
witness-Hostile.
22 Criminal Appeal No.100246/2018
- Circumstantial
PW.16 Shankar Adiveppa Munavalli Witness-Hostile.
- Circumstantial
PW.17 Chandrappa Irappa Gangamath Witness-Hostile.
-Witness who washed blood
stains at the spot and blood
PW.18 Ashok Hanamantappa Onikeri
stained clothes-Hostile.
-Witness to criminal
PW.19 Gopal Yallappa Badakannavar. conspiracy-Hostile-.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.20 Tulajappa Basappa Karabani
incident from prisoners-
Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.21 Gajanan Anant Govekar
incident from prisoners-
Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.22 Hanamant Yallappa Yalkar
incident from prisoners-
Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.23 Siddappa Rayappa Kamble. incident from prinsoners-
Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.24 Mallayya Irayya Irannavar.
incident from prisoners-
Hostile.
-Witness who informed Police
PW.25 Vishwanath Dattatreya Warad
about prisoners suspecting
23 Criminal Appeal No.100246/2018
death of Bhimappa to be a
murder.
-Witness who washed blood
stains at the spot and blood
PW.26 Muttappa Prabhulappa Khot
stained clothes-Hostile.
-Witness for keeping A.1 in
solitary confinement and
came to know about the
PW.27 Timmanna Bhimappa Bhajantri
incident from prisoners-
Hostile.
-Witness who shifted
deceased Bhimappa Dist.
Hospital and then to KLE
PW.28 Giriyappa Ramu Kamble.
Hospital & Circumstantial
witness.
Medical Officer who treated
deceased bhimappa and
Dr. Ajit Gurudev Wandre, CMO, KLE
PW.29 issued MLC intimation and
Hospital.
death intimation memo.
-Witness who shifted
deceased Bhimappa
Dist.Hospital and then to KLE
PW.30 Maktumsab Mohammedhanif Mulla
Hopital & Circumstantial
witness.-Hostile.
Pancha witness for Prisoners'
Visiting Room panchanama
PW.31 Raju Narayan Gudake
Ex.P.5-Hostile
Inquest Pancha-Hostile.
PW.32 Sadashiv Sidappa Shivadhare.
Inquest Pancha-Hostile.
PW.33 Mallappa Pradhani Hanji.
PW.34 Nandkumar Yugandhar Kakatkar Spot Pancha-Hostile.
Pancha witness for
Panchanamas Ex.P.51 and
PW.35 Vittal Laxman Bachikar.
Ex.P.52.-Hostile
Pancha witness for Prisoners'
PW.36 Ravikumar Kallappa Kokitkar. Visiting Room Panchanama-
Hostile
24 Criminal Appeal No.100246/2018
Complainant
Sarovttam Pai T., D.Y.S.P., H&B
PW.37
Squad, CID.
-Witness who arrested A.2
and 3 & carried seized
PW.38 Narasappa S/o Veerappa, DAR P.C.
weapon to RFSL, Belagavi.
-Witness who visited KLE
Hospital and obtained
Abdulrahaman Abdulgous Warimani, endorsement as to treatment
PW.39
HC, BRPS. of injured (Deceased)
Bhimappa.
-Witness who prepared
Paramashivayya S/o Shivarudrayya,
PW.40 Ex.P.51 and Ex.P.52.
CHC, CID.
-Witness who registered the
Dheeraj Baburao Shinde, P.S.I., case based on the complaint
PW.41
BRPS. by PW.37.
-Witness who registered UDR
No.1/2006 and submitted
Shrishail Basayya Mathpati, P.S.I., requisition for post mortem
PW.42
BRPS. examination of deceased
Bhimappa.
-Witness who carried FIR to
Sunil Paramaeshwar Pattar,
PW.43 the Court.
PC,B.R.P.S.
-Witness who assisted CID
Krishnakumar S/o Timmarayyappa, IO and attested the records.
PW.44 Dy.Superintendent, Central Prison,
Belagavi
-Son of deceased who was
present during inquest
panchanama and given
PW.45 Vittal Bhimappa Kamate
statement before the Police.
-Relative of deceased who
was present during inquest
PW.46 Muttappa Peerappa Shivanagol panchanama and given
statement before the Police.
25 Criminal Appeal No.100246/2018
-Pancha witness for Ex.P.50
Veeranagouda Ayyanagouda spot Panchanama so also
PW.47
Veerangoudar. circumstantial witness
-Witness who prepared
Ex.P.50 spot Panchanama
and assisted PW.37
PW.48 D.V. Nagaraj, HC, H& B Squad, CID.
complainant in the
preliminary enquiry.
-Witness who prepared
N. Venkatesh, Inspector, H & B Ex.P.5 Mahazar at Prisoners'
PW.49
Squad, CID. Visiting Room.
-Witness who went to
smithy, found Bhimappa
Vijaykumar Shashidhar
PW.50 injured and saw blood stains
Appayyanavarmath
in the spot.-Hostile.
Dr. R.K. Sharma, Addl.Professor, -Forensic Expert who gave
PW.51 Department of Forensic Medicine, opinion as per Ex.P.85.
AIIMS, Delhi.
-Conducted inquest
Panchanama Ex.P.45,
Dr. Vijaykumar Neelappa Torgal, referred the dead body for
PW.52
A.C., Belagavi. PM Examination and
submitted report to NHRC.
-Taken photographs in the
Vilas Pandurang Nimbalkar, PC spot at Cental Prison,
PW.53
(Photographer) Hindalaga.
Smt. Radha S., Scientific Officer, -Witness who has given RFSL
PW.54 Report as per Ex.P.94.
RFSL, Belagavi.
Ranganath Gandhi Neelammanavar, -Witness who arrested
PW.55 accused No.1.
PSI, Saundatti P.S.
Chandrashekhar Basanna Hosakeri, -Witness who recorded
PW.56 statement of PW.51.
Dy.S.P. CID Cell.
M. Ramakrishna, Dy.S.P. CID,
PW.57 -Investing Officer.
Bengaluru.
26 Criminal Appeal No.100246/2018
24. Before adverting to the other aspects of the case, let us
analyze that whether the prosecution is able to establish the homicidal
death of deceased-Bheemappa. To that effect, the prosecution relies
upon the evidence of PW1-Dr.Guruputra Veerappa Dodawad, who gave
first aid to the deceased-Bheemappa immediately when he was shifted
to the hospital on 26.12.2005. PW3-Dr.Arun Ganeshrao Katikar
conducted post-mortem on the dead body of the deceased. Initially
there was Unnatural Death Report as per Ex.P76. The wound
certificate is at Ex.P38 and Post-mortem report is at Ex.P85(f) and
inquest panchanama is at Ex.P45. On cumulative reading of all these
documents, especially post-mortem report, it shows that the deceased
had sustained following injuries on his person. Ex.P85(f) reads as
under:
i) Abrasion (contusion) behind the right ear of 2 cm in
length D.red.
ii) Structured wound in front of the right ear measuring
4cm in length
iii) Contusion over the vertex of skull (1.5cm diameter)
D.rad.
iv) Abrasions (2) over the both reticular region each
measures 1.5 cm D.red.
v) Skin lesion present over the scrotum.
27 Criminal Appeal No.100246/2018
25. Thus, the contents of inquest panchanam and the post-
mortem report and the wound certificate do demonstrate that
deceased had sustained fatal injuries on his person i.e. on the vital
port of his body. Immediately after sustaining injuries he lost his
consciousness and went in coma. He died subsequently at KLE
hospital, Belagavi. The opinion of the doctor also says because of
assault by using M.O.1, the injuries so noticed in wound certificate and
in post-mortem were possible. This fact is not denied. The evidence of
the doctor as well as other witnesses coupled with aforesaid
documents do demonstrate about the homicidal death of deceased-
Bheemappa. Thus, it can be stated that, deceased had suffered
homicidal death. The Trial Court has also opined that, death of
Bheemappa was homicidal. This fact of homicidal death is not denied
by the defence.
26. Merely because it is proved by the prosecution that, the
deceased-Bheemappa sustained homicidal death, it will not absolve
the prosecution in proving the guilt of the accused. Heavy burden lies
on the prosecution to prove the guilt of the accused beyond all
reasonable doubt. Therefore, to ascertain that whether the Trial Court
has committed any illegality or factual error in appreciating the
evidence and whether the prosecution is able to bring home the guilt
28 Criminal Appeal No.100246/2018
of the accused persons, we have to read oral and documentary
evidence.
27. It is a fact admitted by both the side that on 27.12.2005
one G.R.Kamble and Dr.Katekar, the medical officers attached to the
Central prison in Hindalga, Belagavi, brought the injured Bheemappa
i.e. deceased, who was housed in Central prison, with a history of fall
due to fits. He had sustained injuries on his head. It is the fact not
disputed that the deceased when he was admitted to the District
Hospital, Belagavi, he was unconscious and was not responding to the
verbal or painful stimulus. There was a bleeding from his right ear and
the doctors noticed blood clot in the nostrils. The doctor has noticed
injuries as narrated in the evidence of PW1 stated supra. To that
effect, doctor has noted the same in the original accident register and
copy of which is produced before the Trial Court as per Ex.P1(a) being
the relevant entry. At that time, the doctor has not given any opinion.
28. The investigation with regard to the said incident
commenced when PW1 received a requisition from CID Bengaluru to
give his opinion by sending the weapon in a sealed packet after its
examination. The said requisition was addressed to Dr.G.K.Arun, the
Senior Specialist and Dr.P.S.Patil and himself. The said requisition is at
Ex.P2. As per the requisition, they were asked to clarify whether the
29 Criminal Appeal No.100246/2018
two injuries mentioned in the register and the injury No.2 recorded in
post-mortem report are one and the same. It is the further case of the
prosecution that, this PW1 opened the sealed packed and found a
metal cutter. He has drawn diagram of the said metal cutter having a
blade length measuring 5 inches and width measuring 1 inch. The
length of the metal cutter was 9½ inches weighing 1.2 k.g. After
examining the said metal cutter marked as M.O.1, it was clarified that
injuries 1 and 2 mentioned in the accident register and injury No.2
mentioned in post-mortem report may be the same. To that effect, he
gave his opinion as per Ex.P3 on 20.01.2010 itself.
29. This PW1 was directed with severe cross-examination by
the defence. But whatever the suggestions directed to him have been
denied by him. It is suggested that whether he has referred the
inquest report at the time of giving opinion as per Ex.P3. He has
deposed that he has not referred. Even to the suggestion with regard
to the nature of M.O.1, the PW1 has not agreed. It is stated by him
that, if M.O.1 is used as a weapon for inflicting injury, the injuries
mentioned in the accident register, the edges of the said weapon
would not create any impression on the body. Further he has not gone
through the opinion of R.K.Sharma of Indian Institute of Medical
30 Criminal Appeal No.100246/2018
Sciences, Delhi. Thus, through out the cross-examination he has
maintained that the contents of his opinion at Ex.P3 are correct.
30. PW2-Basavaraj Sadeppa Parasannavar is branded as
eyewitness by the prosecution, who happens to be the in-charge of
visitors' room in the year 2005. He has been turned hostile. Though
the prosecution directed severe cross-examination, but he has denied
all the suggestions directed to him. Therefore, his evidence would not
help the case of the prosecution.
31. PW3-Arun Ganeshrao Katekar was working as Senior
specialist at Belgaum District Hopsital. It is upon the requisition of
Assistant Commissioner, Belagavi i.e. Sub-divisional Magistrate, he
conducted post-mortem examination on the dead body of the
deceased and issued post-mortem report. He conducted the post-
mortem along with Dr.Prabhavati Patil arrayed as CW17 in the charge
sheet. He noticed the following injuries on the deceased.
i) Abrasion (contusion) behind the right ear of 2 cm
D.rad.
ii) Structured wound in front of the right ear measuring
4cm length
iii) Contusion over the vertex of shull 1.5cm diameter
D.rad.
iv) Abrassions (2) over the both reticular region each
measures 1.5 cm D.rad.
31 Criminal Appeal No.100246/2018
v) Skin lesion present over the scrotum.
32. The aforesaid injuries were ante mortem. He was of the
opinion that after the receipt of hysto-pathological report, the doctors
gave final opinion stating that "death was due to coma as a result
of severe head injury sustained". The said opinion is found at
Ex.P10. Further, it is evidenced that on 20.01.2010 as per the
requisition of Dy.S.P. CID, Bengaluru, weapon i.e. M.O.1-Metal cutter
was examined. Opinion was given after examination of the said
weapon on 20.01.2010 itself as per Ex.P12. This PW3 was directed
with cross-examination. Throughout the cross-examination, this PW3
has maintained that by using M.O.1-metal cutter, the injuries found in
the post-mortem report may be possible. Even he has not found
struggling injuries on the person of the deceased during post-mortem
examination. Thus the death of deceased is not disputed and also the
injuries sustained by the deceased which were ante mortem are not
disputed by the defence.
33. PW4-Shivanand Pandappa Hugar, Assistant Engineer,
prepared the sketch as per Ex.P14 and Ex.P16 as per the requisition of
the investigating officer. To disbelieve the version with regard to the
contents of Ex.P14 and Ex.P16, nothing is elicited in the cross-
examination. That means, at the request of the investigating officer,
32 Criminal Appeal No.100246/2018
this PW4 has prepared the sketch as per Ex.P14 and Ex.P16
respectively.
34. PW5-Biliya S/o. Narayanagouda was an inmate of the jail.
He is an important witness relied on by the prosecution. With regard to
his housing at Central Jail, Belagavi, there is no denial. According to
him, from 2003 to March-2011 he was housed as convict in the Central
Jail, Belagavi. He was in-charge of kitchen in the Central Jail. He
deposed that on 27.12.2005, when he was doing kitchen work, he had
seen deceased-Bheemappa in the Central Jail itself. According to him,
the deceased used to work in kitchen and grind wheat floor. Even he
identified accused No.1 as inmate of the said Central Jail at the
relevant time. He identified accused No.4 to 7 being the officers of the
Central Jail. He has stated that deceased died in the year 2005.
According to his evidence, in the Central Jail at about 6.00 a.m. in the
morning, breakfast was being provided, in between 10.00 a.m. and
12.00 noon, lunch was being provided and in between 4.00 p.m. and
6.00 p.m. dinner was being provided. Deceased used to grind wheat
flour from 9.00 p.m. everyday. This witness used to monitor the other
inmates of the jail, who were preparing chapaties. The said
preparation of chapaties used to take place between 12.00 in the
midnight till 4.00 p.m. in the morning. It is his evidence that all the
33 Criminal Appeal No.100246/2018
inmates of the said jail were provided a room for rest, which is
situated by the side of the hospital.
35. It is his further evidence that, on 27.12.2005 at about
11.30 a.m. in the morning, the deceased went to Andheri cell and
supplied lunch to the inmates of the said cell. Thereafter, deceased
took his lunch and went towards rest room situated by the side of the
hospital for the purpose of taking his lunch. At about 1.30 p.m., this
witness went towards said rest room and there he noticed absence of
deceased. About 20 convicts were taking rest in the said rest room. He
enquired about the whereabouts of the deceased. At that time, it was
conveyed to him that Imam i.e. Accused No.1 has taken him. He
identified accused No.1, who was present before the Court during the
course of examination-in-chief. Thereafter, this witness returned to
kitchen. By that time, this witness heard that accused No.1-Imam had
assaulted the deceased. The said news was spread throughout the
Central Jail. Immediately this witness rushed to the ironsmithy room,
where he noticed the presence of Manju-CW29 and others. He also
noticed the bloodstains on the clothes worn by accused No.1. Further,
it is his evidence that, deceased had sustained injuries on his nose and
blood was oozing from his mouth. It is further stated that the
deceased was made to sit on the stairs of the said room. He enquired
34 Criminal Appeal No.100246/2018
with one Shrikant-CW26 and it was told to him that accused has
brought the said deceased outside the said ironsmithy room by
dragging him and made him to sit there. This witness asked accused
No.1 that, why he assaulted the deceased. At that time, accused No.1
told him that he has not assaulted the deceased. When he was
enquiring with accused No.1, accused No.1 was wiping the blood fallen
in the said ironsmithy room. He told not to wipe off the blood, so also
Manju also forced the accused No.1 not to wipe off the blood as
panchanama was to be conducted. Thereafter, ambulance was brought
and deceased was shifted to hospital. By that time, one Gajanan i.e.
accused No.5-Chief Warden also came there. He forced all the persons
gathered there to go away from that place. It is his further evidence
that about 8-10 convicts went on strike against accused No.1 with
request to take action against him. It was told by accused No.7 that
they will take action against accused No.1. This accused No.1 was
shifted to Andheri cell. Thereafter this PW5 came to know that
deceased succumbed to the injuries. He identified accused No.7 as the
jail superintendent at he relevant time.
36. This PW5 was subjected to intensive cross-examination by
the defence. So far as he being inmate of the said Central Jail at the
relevant time is not disputed throughout the cross-examination. It is
35 Criminal Appeal No.100246/2018
his evidence that the convicts in the jail were permitted to move freely
in the Central Jail itself. Even the fact that, this witness entrusted with
the duty of monitoring the kitchen is not disputed in the cross-
examination. He deposed that he has stated before the police about he
forcing accused No.1 not to wipe off the blood. According to his
evidence, in the said ironsmithy, accused No.1 used to work. He has
denied all the suggestions directed to him. It is brought on record that
in the said Central Jail, as the convicts are more in number, they all
usually were meeting near bathroom, kitchen and hospital. Even
under-trial persons used to meet the convicts. It is his evidence that,
in the aforesaid three places, the convicts used to move freely.
Accused No.1 was the convict used to reside at first circle. He admits
that deceased was his good friend in the jail. He admits that after
completion of kitchen duty, the convicts who work in kitchen house,
used to take rest in the rest room.
37. On reading of evidence of this PW5, it is very much clear
that on the day of the incident, accused No.1 was working in the
ironsmithy room wherein deceased was brought by him and thereafter
this witness has noticed the injuries on the person of the deceased,
who was made to sit on the stairs by accused No.1 by dragging him
36 Criminal Appeal No.100246/2018
from the ironsmithy room. Except denial in the cross-examination,
nothing worth is elicited from the mouth of this witness.
38. PW6-Manjunath, whose name being stated by PW5 has
deposed that he saw accused No.1 in the Central Jail but has not seen
the deceased. He has been turned hostile and nothing worth has been
elicited from his mouth. So, the evidence of PW6 would not help the
case of the prosecution.
39. PW7-Guruputra deposed that he has not seen accused
No.1 in the Central Jail. He identifies accused No.4 to 7. He was
entrusted with the duty of night watchman by the jail authorities. He
too has been turned hostile, but nothing worth is elicited.
40. PW8-Mahadev, son of the deceased, speaks with regard to
nature and conduct of the deceased. It is his evidence that there was
quarrel between accused No.3 and his father. In a complaint filed by
accused No.3, deceased was convicted. Even his father had also
lodged a complaint against the family of accused No.3. He deposed
about his coming to know about the death of his father. Thus, from the
evidence of PW8, it is very much clear that there was some enmity in
between accused No.3 and the deceased.
37 Criminal Appeal No.100246/2018
41. PW9-Beerappa Kadappa Jiddimani was the inmate of the
said jail but he too has been turned hostile. Therefore his evidence
would not help the case of the prosecution.
42. PW10-Vinay Ganapathi Hegde is important witness as per
the prosecution. At the relevant time, this PW10 was inmate of the
Central jail, Belagavi. He has deposed that he has seen both accused
No.1 and deceased-Bheemappa in Hindalga Jail itself. So also, he saw
accused No.4 to 7 being police staff of Hindalga jail. It is his evidence
that deceased on the date of the incident met him in the morning at
11.00 a.m. and requested him to give a Beedi. Deceased was with him
for 15 minutes. When deceased was with him, accused No.1-Imamsab
came there in search of the deceased and accused No.1 took the
deceased with him. In between 3.00 p.m. and 3.30 p.m., the inmates
of the Central jail were talking with each other that Bheemappa was
assaulted and murdered by accused No.1-Imamsab. When PW10
rushed to see the deceased, he found the deceased injured was shifted
to the hospital.
43. He states that, on the said day, about 25-30 inmates of
the Central Jail forced the jail authorities to conduct investigation
regarding the murder of the deceased, but the jail authorities showed
their deaf ear to the request of the inmates of Central jail. Even
38 Criminal Appeal No.100246/2018
inmates went on strike. But to the said strike, the jail authorities did
not bend.
44. This PW10 was cross-examined at length by the defence.
He is consistent in his evidence that, on the date of the incident, the
deceased came to him at about 11.00 a.m., and requested him to give
Beedi and at that time, accused No.1 came there and took the
deceased along with him. Though searching cross-examination is
directed to him, but nothing worthy is elicited so as to disbelieve his
version spoken in the examination-in-chief.
45. PW11-Shrikant Pandappa Hadapad was also the convict
undergoing imprisonment in Central jail Hindalga at the relevant time.
He is a barber by profession. He identified accused No.1 and 4 to 7.
According to his evidence, he had seen deceased in Central jail itself.
Further, he has stated that, accused and the deceased were working at
ironsmithy room. He has heard that, the said deceased was murdered
in the said ironsmithy room by accused No.1. According to his
evidence, on the day of the incident, he noticed dragging of deceased
by accused No.1 from the said ironsmithy room. By dragging so, the
accused No.1 brought the deceased outside the ironsmithy room and
made him to sit on stairs (steps). At that time, the blood was oozing
from the head of the deceased. Even the shirt worn by accused No.1
39 Criminal Appeal No.100246/2018
was bloodstained. He did not question the accused. It is his further
evidence that, in the said ironsmithy room accused No.1 has
domesticated 'Doves'. As he was fond of Doves, to see the Doves, he
often used to go to ironsmithy room everyday at about 1.30 p.m.
According to his evidence, he has witnessed that, it was accused No.1
who brought the deceased towards the stair of the said ironsmithy
room. On seeing this, he ran away towards his circle near his cell.
Thereafter, the deceased was shifted to hospital with the help of
accused No.4 to 7. He also corroborates the evidence of other
witnesses about forcing the jail authorities to conduct investigation
and take action against accused No.1. Even he speaks with regard to
the conducting of strike by some of the inmates of the jail.
46. PW11 is consistent to his evidence that, it was accused
No.1, who dragged the deceased outside the said ironsmithy room and
made him to sit on the stairs (steps). He has been partly treated as
hostile by the prosecution. According to his evidence, he had seen
M.O.1-metal cutter in the said ironsmithy room. He was directed with
severe cross-examination by the defence but he is consistent about he
visiting the said ironsmithy room everyday at 1.30 p.m. Though he has
been cross-examined at length but nothing worth is elicited. He further
speaks that, as the blood was oozing from the head of the deceased,
40 Criminal Appeal No.100246/2018
he thought that, the accused might have caused injury on the head of
the deceased. He has denied all other suggestions directed to him.
Thus, from the evidence of PW11, it is very much clear that, he had
seen accused No.1 dragging the deceased from inside the ironsmithy
room and made him to sit/sleep on the stairs of the said ironsmithy
room. There is no further denial of this fact by the defence.
47. PW12-Maruti Shivappa Hulikatti and PW13-Parameshappa
Basappa Harijan were also inmates of the central jail. But they have
been turned hostile and nothing worth is elicited by the prosecution.
Therefore, their evidence would not help the case of the prosecution.
48. PW14-Mahantesh Basappa Bhangi was also convict and
inmate of the Central jail. He speaks about he rushing to the said
ironsmithy room at about 1.50 p.m on the date of the incident. There,
he noticed the deceased fallen on the Katta outside the said ironsmithy
room. When he went there, accused No.1 and other staff of the jail
were present. This fact is not denied by the defence. He was partly
treated as hostile witness. He is consistent in his evidence about his
rushing to the said place.
49. PW15-Mahesh Krishna Mirajkar, PW16-Shankar Adiveppa
Munavalli, PW17- Chandrappa Irappa Gangamath, PW18-Ashok
41 Criminal Appeal No.100246/2018
Hanamanthappa Onikeri, PW19-Gopal Yallappa Badakannavar, PW20-
Tulajappa Basappa Karabani, PW21-Gajanan Anant Bovekar, PW22-
Hanamanth Yallappa Yalkar have been wholly treated as hostile.
However, PW23-Siddappa Rayappa Kamble has been partly turned
hostile. According to his evidence, he was working as a jailer at the
relevant time. He speaks about he seeing accused No.1 in central jail
at the relevant time. He has stated with regard to visitors register. He
identified Ex.P23-visitors' register. To that effect, he has spoken in his
evidence. Insofar as other aspects are concerned, he has been turned
hostile. Merely because the visitors' register is being identified by him,
that does not mean that, he has seen all the visitors who visited on
that particular day. To the extent of identifying Ex.P33, we can believe
his evidence. He too has been cross-examined but nothing worth is
elicited so as to disbelieve his version of identifying Ex.P33.
50. PW24-Mallayya Irayya Irannavar was the Assistant
Superintendent of Central jail at the relevant time. According to his
evidence, he used to grant permission to the visitors to visit the
inmates of the jail. He speaks with regard to maintaining of register as
per Ex.P33 and his signature on the same. He further speaks about the
death of the deceased because of injury being sustained on
27.12.2005. He has been partly treated as hostile witness by the
42 Criminal Appeal No.100246/2018
prosecution. Throughout the cross-examination by the prosecution as
well as defence, he has spoken about his role as Assistant
Superintendent of jail in Central jail, Hindalga at the relevant time. He
also speaks with regard to conducting of inquest panchanama by the
Sub-divisional Magistrate on the dead body of the deceased. He says
furnishing information of death of deceased to his relatives.
Accordingly, relatives of the deceased came and took the dead body of
the deceased. He also speaks that one Iranagouda, the former police
inspector, was also undergoing imprisonment in the said jail at the
relevant time. To the extent of his role as Assistant Superintendent of
jail, his evidence has to be accepted. He identified accused No.1 as
inmate and also identified the deceased as inmate of the said jail at
the relevant time.
51. PW25-Vishwanath Dattatraya Warad was First Division
Assistant at Central jail at Central jail at the relevant time. He speaks
with regard to he writing letter as per the directions of accused No.7
and sending the same to the authorities concerned. According to his
evidence, letter was sent as per the directions of accused No.7 but he
has no knowledge except sending of the said letter. He has played his
role as FDA at the relevant time. Much importance cannot be attached
to the evidence of this PW25.
43 Criminal Appeal No.100246/2018
52. PW26-Muttappa Prabhulappa Khot and PW27-Timmanna
Bhimappa Bhajantri were also the inmates of the jail. They have been
turned hostile and cross-examined by the prosecution but nothing
worth is elicited from their mouth and therefore, their evidence would
not help the case of the prosecution.
53. PW28-Giriyappa Ramu Kamble was the warden at the
relevant time in Hindalga jail, Belagavi. He noticed shifting the
deceased-Bheemappa to the hospital for the purpose of treatment. To
that extent, his evidence has to be accepted. There is no cross-
examination directed to him.
54. PW29-Dr.Ajit Gurudev Wandre was working as CMO at KLE
hospital, Belagavi. He speaks in his evidence that, on 27.12.2005 at
about 6.00 p.m. he medically examined the deceased, who was
brought by the Chief Superintendent of Central Prison, Belagavi with
the history of fall on stairs at about 2.00 p.m. on 27.05.2005. The
injured was unconscious. He noticed the injuries on the person of the
deceased as under:
1) Patient unconscious since 2.30 p.m. Right ear bleeding +
convulsions.
2) Right ear on examination found have active bleeding.
3) Scattered wound at the preauricular region measuring 03
cms.
44 Criminal Appeal No.100246/2018
55. According to his evidence, the deceased was admitted in
hospital as an inpatient, X-ray of the chest was taken and there was
no evidence of fracture of ribs etc., He speaks about the injuries noted
in his report as per Ex.P38. It is his evidence that, on 26.11.2009 as
per the letter issued by the CID Bengaluru, he brought summary sheet
pertaining to the deceased and produced before the Court as per
Ex.P39. He also produced the medical records so marked in this case
as per Ex.P43. He has been cross-examined by the defence at length
but he is consistent about the injuries sustained by the deceased. He
is a doctor who treated the deceased at KLE Hospital, but inspite of
best efforts, they could not save the life of the deceased. He has given
reason that, there was haemorrhage in the brain and the cause of
death is also spoken to by this witness.
56. PW30-Maktumsab Mohammedhanif Mulla was the driver at
Hindalga jail. He speaks about shifting the deceased to the hospital
when the deceased was injured. Accordingly he brought the said
injured in the vehicle to the hospital. So far as other aspects, he has
been turned hostile. However there is no denial with regard to shifting
of the deceased to the hospital by this PW30 in his vehicle.
57. PW31-Raju Narayan Ghodke was pancha to Ex.P5.
According to the prosecution, he has not seen accused No.1-Imamsab
45 Criminal Appeal No.100246/2018
in the Central jail. As he has been turned hostile, nothing worth is
elicited from his mouth by the prosecution.
58. PW32-Sadashiv Siddappa Shivadhare and PW33 Mallappa
Hanji are the resident of Bendwad village where the deceased was
residing. They came to know about the death of deceased through
phone and went to the mortuary of KLE Hospital and noticed the dead
body of the deceased. To the extent of they visiting mortuary room of
KLE Hostipal and noticing the injuries on the person of the deceased,
their evidence has to be accepted.
59. PW34-Nandkumar Yugandhar Kakatkar, and PW35-Vittal
Laxman Bachikar and PW36-Ravikumar Kallappa Kokitkar have wholly
turned hostile to the case of the prosecution.
60. PW37-Sarvottam Pai T., was the complainant in this case.
As per his evidence, as per the directions given by his higher officers
by issuing a memo, after conducting investigation and ascertaining the
murder of the deceased, he lodged the complaint. He speaks about the
pending investigation conducted by him and also filing of the
complaint. Throughout his evidence, he has maintained that during his
investigation he came to know that the death of the deceased was not
natural and it was a murder. To that effect, he lodged complaint
46 Criminal Appeal No.100246/2018
against unknown persons. Thereafter, during investigation accused
were arrayed as culprits of committing crime against the deceased. He
has been thoroughly cross-examined by the defence. But he is
consistent throughout his evidence about his role of investigation
officer right from the date he visiting the Central jail and filing
complaint and subsequent events. To disbelieve his evidence, nothing
worth is elicited from his mouth in his cross-examination. The fact of
he filing complaint against unknown persons initially is not denied by
the defence, so also his active role in ascertaining the murder of the
deceased in central jail is also not specifically denied throughout the
cross-examination. Therefore, the evidence of PW37 can be accepted
to the extent that, he visited the central jail, conducted investigation,
recorded the statements of the witnesses, so also he lodged complaint
based upon the report so prepared by him.
61. PW38-Narasappa S/o. Veerappa was police constable, who
identified the accused No.2 and 3. According to his evidence, on
31.12.2009, as per the directions of the investigation officer in this
case, at about 7.00 a.m. on that day, both accused No.2 and 3 were
arrested near Hukkeri bus stand and were produced before the
Investigating Officer. Thereafter, on 12.01.2010, he was directed to
take sealed packet to the Forensic Laboratory Belagavi. Accordingly,
47 Criminal Appeal No.100246/2018
he carried the same. Except denial in the cross-examination, nothing
worth is elicited.
62. PW39-Abdulrahaman Warimani, at the relevant time, was
constable. As per the medico-legal intimation sent by KLE hospital as
per Ex.P42, he informed the said fact to Belagavi Rural Police Station.
He also visited the hospital to know the health condition of Bheemappa
and there he noticed that he was unconscious. In turn, he informed
the same to his superiors. There is no cross-examination directed to
him by the defence.
63. PW40-Paramashivayyan S/o. Shivarudrayya was head
constable at the relevant time. He speaks that, he wrote panchanama
as per Ex.P51 on 28.12.2009 in between 5.30 p.m. to 6.30 p.m. at
Hindalga jail ironsmithy room in the presence of panchas. Except
denial nothing is elicited from the mouth of this witness by the
defence.
64. PW41-Dheeraj Baburao Shinde was PSI at the relevant
time and according to him, PW37 came to the police station on
19.12.2009 at about 6.25 p.m. and lodged a typed complaint. It was
registered by him in crime No.278/2009 for the offence punishable
under section 302 of IPC. Thereafter, he prepared FIR as per Ex.P21
48 Criminal Appeal No.100246/2018
and sent the same to the Court. There is no effective cross-
examination directed to him by the defence.
65. PW42-Srishail Bassayya Mathapathi was the Sub-Inspector
in Rural Police Station, Belagavi at the relevant time and according to
his evidence, he received medico-legal intimation by the KLE hospital
and he sent Abdul Rahaman Warimani, Constable, to the hospital to
know the health condition of the deceased. Thereafter he also received
message with regard to the death of deceased and he gave a
requisition to the Sub-Divisional Magistrate/Assistant commissioner to
take further action in the matter. Though he has been cross-examined,
he is consistent in his evidence about his examination-in-chief. He has
denied all the suggestions directed to him.
66. PW43-Sunil Parameshwar Pattar was the constable at the
relevant time and he carried the FIR to the jurisdictional Magistrate.
Except denial in the cross-examination, nothing is elicited from the
mouth of this witness.
67. PW44-Krishnakumar S/o.Thimmarayappa was the
Assistant Superintendent of jail at the relevant time at Belagavi
Central Jail. According to his evidence, he took the charge as a Chief
Jail Superintendent of Central Jail, Hindalga, Belagavi on 10.06.2010
49 Criminal Appeal No.100246/2018
since the former Chief Superintendent of the jail i.e. accused No.7 was
suspended. He speaks with regard to his visit to CID Officers as well as
conducting of investigation in the said Central jail by the investigating
officers where Veeranagouda has shown the bloodstains sprinkled on
the walls of the said ironsmithy room and conducting of panchanama
by the investigating officer. According to him, he was very much
present when the investigation was being conducted by the CID police.
He too has been cross-examined at length but, he is consistent about
his presence when the metal cutter was seized by the investigating
officer. Except denial nothing is elicited.
68. PW45-Vittal Bheemappa Kamate is the son of the
deceased. He has stated that, there was a criminal case filed by
accused No.3 against his father wherein his father was convicted. He
also stated that, even the deceased had also filed complaint against
accused No.3. He says deceased had to attend the court to give his
evidence in the criminal case filed against accused No.3. With regard
to pendency of the criminal case before JMFC, Raibag, against accused
No.3, there is no denial of this fact by the defence.
69. PW46-Muttappa Peerappa Shivanagol, was the resident of
Bendwad village. He speaks of filing a complaint by the deceased
against accused No.3. He also visited KLE hospital and seen the dead
50 Criminal Appeal No.100246/2018
body of the deceased. He came to know about the injuries on the
person of the deceased by accused No.1. Though he has been cross-
examined, but he is consistent about he visiting KLE hospital.
70. PW47-Veeranagouda Ayyanagouda Veeranagoudar is also
important witness examined by the prosecution so as to prove that,he
also has seen the activities of accused No.1 with the deceased. It is his
evidence that, he was convicted by Ranebennur Court and was
undergoing imprisonment as per the judgment passed by the High
Court. According to his evidence, on 27.12.2005 he came to know that
one inmate of the jail sustained head injury and fallen near ironsmithy
room. He came to know about the said fact at about 1.30 p.m. When
he went there, he noticed that deceased-Bheemappa Kamate was
found fallen on staircase of the said room and he had sustained head
injury as well as injury on his face. He enquired with 5 -6 inmates of
the jail. At that time, he was told that accused No.1-Imamsab
assaulted the deceased. When he went inside the ironsmithy room,
there he noticed bloodstained bed sheets, bloodstained pillow, so also
the walls of the said room were bloodstained. At that time, accused
No.1 was in the said room and his clothes were also bloodstained.
When jail warden-Rajagolkar asked him what has happened, accused
No.1 replied that because of fits the deceased fell down and sustained
51 Criminal Appeal No.100246/2018
injuries. The accused No.1 has falsely stated before the said jail
warden. A question was raised by the Court that what he did at that
time? But the said witness stated that he kept mum. He has stated
that, the injured was shifted to the hospital.
71. According to his evidence, on 27.12.2005 at about 5.00 or
5.30 p.m. three inmates of the jail came to him and told that said
accused No.1-Imamsab and Muttappa have burnt the bloodstained bed
sheet and pillow. Even it was told to him that, the blood sprinkled on
the walls of ironsmithy room and stairs was also washed by accused
No.1. According to him, as per the directions and orders of accused
No.4 to 7, they washed the bloodstained walls. Further he has stated
that, in the month of May, he was released from the jail. Thereafter, in
2009 he was asked to meet the complainant-PW37 and accordingly he
met. He accompanied PW37 to the Central jail and there PW37
conducted investigation and prepared report.
72. This PW47 has been thoroughly cross-examined by the
defence. Throughout cross-examination, he is consistent about what
he has stated in his examination in chief. That means according to
him, it was accused No.1 who has committed the said offence. Though
certain contradictions are brought on record in the cross-examination,
but throughout the cross-examination he is consistent of his evidence.
52 Criminal Appeal No.100246/2018
73. PW48-D.V.Nagaraj was Assistant Sub-Inspector at the
relevant time. He has stated that he accompanied with PW37 to the
Central jail, Hindalga. It was PW47 showed the scene of offence to
PW37. Except this, nothing is stated by him. No effective cross-
examination is directed to him so as to disbelieve his version given in
his examination in chief.
74. PW49-N.Venkatesh was the inspector at CID (H&B) at the
relevant time, who accompanied the investigating officer Dy.S.P.
Ramkrishna from Bengaluru to Belagavi. It was accused No.1 showed
the visitors room and at that time he prepared panchanama as per
Ex.P5. Except denial nothing is elicited from his mouth in the cross-
examination.
75. PW50-Vijaykumar Shashidhar Appayyanavar was inmate in
Central jail, but he has been turned hostile. Nothing worth is elicited
from his mouth.
76. One more important witness examined by the prosecution
is PW51-Dr.R.K.Sharma. According to his evidence, he was working as
additional professor in the Department of Forensic Medicines at All
India Institute of Medical Sciences, Delhi during 2008. He was also
consultant for National Human Rights Commission, New-Delhi for the
53 Criminal Appeal No.100246/2018
last ten years prior to giving of his evidence. His evidence is that, on
25.11.2008 he was asked to give an opinion by the NHRC based upon
the Post-Mortem report of the deceased.
77. On examination of the said post-mortem report, he noticed
four external injuries which were noted in the Post-Mortem report.
There was one internal severe head injury noted in the said post-
mortem report. In the said internal head injury, there were multiple
fractures at the base of skull and intracranial haemorrhage was found.
The post-mortem report which he examined is identified as per Ex.P85
by him.
78. According to his evidence, based on the medical records
referred by the NHRC to him, he gave his opinion on 25.11.2008
stating that "the multiple fractures and severe head injuries
found on the deceased cannot be caused by fall from the steps
and such head injury can be caused by fall from the height of 1
to 2 storied building". Based upon this report only, the CID
conducted investigation. After completion of investigation, charge
sheet was filed against the accused persons. So the evidence of PW51
plays an important role that, whether such an injury could be caused
only by falling from staircase so situated outside the said ironsmithy
room, which is having a small height. Is it possible for an injured to
54 Criminal Appeal No.100246/2018
sustain such an injury is a question put to this witness and he
answered that such injury so noted in the post-mortem report at
Ex.P85 could not be possible falling from the steps being situated in
the said ironsmithy room. They can be caused if a person falls from a
height of 1 to 2 storied building. That means, suspicion has been
expressed by him regarding injuries being sustained by the deceased.
As per the say of the jail authorities, he was informed that the
deceased sustained the injuries because of fall from the stairs but this
PW51 has not agreed with the said say of the jail authorities.
79. According to him, as a Forensic Expert, he has given
opinion in number of cases regarding cause of death. He admits in the
cross-examination that, bone becomes weak if a person is attached
with other vices. Throughout his cross-examination he is consistent
that the said injury so stated in the post-mortem could be possible
only if a person falls from a height of 1 to 2 storied. But it is not the
defence of the accused. The age of the deceased at the relevant time
was 48 years. Photographs were also confronted to him. The evidence
of this witness plays an important role to ascertain the cause of death.
In the post-mortem the fracture of a base of a skull had been noted
and it was opined that, such injury cannot be caused by a simple fall
from steps as seen in the photograph Ex.P56. So the only inference
55 Criminal Appeal No.100246/2018
that can be gathered is that, the injuries could be possible only if a
person falls from a height of 1 to 2 storied building. All the suggestions
directed to this witness in the cross-examination were denied by him.
So, the evidence of this witness plays an important role in deciding the
nature of injuries.
80. Coupled with that, we have the evidence of PW52-
Dr.Vijaykumar Toragal, who has conducted the inquest panchanama
on the deceased as per the request of Belagavi Rural police station on
02.01.2006 and noticed external injuries found on the dead body of
the deceased. So far as conducting of inquest by this PW52 is not
denied, so also noticing the injuries as noted in the inquest report as
per Ex.P45. Though he has been cross-examined by the defence at
length, but nothing worth is elicited.
81. PW53-Vilas Pandurang Nimbalkar was the photographer,
who snapped photographs at the relevant time when the investigation
was in progress. He has taken photographs marked at Ex.P55 to
Ex.P66. The contents of the said photographs are not denied by the
defence.
82. PW54-Smt. Radha S., was the scientific officer RFSL,
Belagavi at the relevant time. She has examined the samples sent to
56 Criminal Appeal No.100246/2018
her. She also examined the interior portion of the wall and floor of
bloodstains and some snaps were taken from the wall and floor and
subjected to presumptive test for the presence of blood. It is shown as
negative.
83. When the incident has taken five years back and sample
was taken after five years of the incident, one cannot expect that
positive result would be possible. Though an attempt was made by the
investigating officer to get report with regard to bloodstains on the
walls but there is no such positive report to corroborate the evidence
of investigating officer. This PW54 was cross-examined at length. She
has stated that even on examination of the metal cutter, it was not
having any bloodstains. As it was washed, we cannot expect such
bloodstains on the same as the iron materials get rusted and in this
case M.O.1 was examined after five years of the incident.
84. PW55-Ranganath Neelammanavar was working as PSI at
the relevant time. He speaks that he arrested accused No.1 and
produced accused No.1 along with report before the investigating
officer as per Ex.P103. The arrest of accused No.1 is not denied by the
defence in material particulars.
57 Criminal Appeal No.100246/2018
85. PW56-Chandrashekhar Hosakeri was Dy.S.P in CID Cell,
Bangalore at relevant time. He has assisted the investigating officer
and he carried Post-Mortem report to the NHRC.
86. PW57-M.Ramakrishna was the investigating officer at the
relevant time. He speaks that as per the directions of the superior
officer, he conducted investigation by taking charge from PW37. He
visited the scene of offence i.e. Central jail and collected so many
documents and filed the charge sheet. Throughout the cross-
examination, he has maintained the nature of investigation done by
him. Though he has been cross-examined at length by putting so
many suggestions, questions etc., but he is consistent of his evidence
with regard to investigation done by him.
87. As per the case of prosecution, the evidence so collected
by him shows that, it was accused No.1 at the instance of accused
No.2 and 3 committed the murder of deceased-Bheemappa and after
commission of the murder, it was accused No.4 to 7 helped him to
destroy the evidence. Therefore, he has arraigned all these accused
persons alleging aforesaid offences.
88. So far as documentary evidence is concerned, the first
document relied upon by the prosecution is Ex.P1. It is MLC register
58 Criminal Appeal No.100246/2018
maintained by the District Hospital, Belagavi. As per this document, on
27.12.2005 at 2.45 p.m., deceased was taken to the District Hospital,
Belagavi by warden by name G.R.Ramappa and Dr. Arun Katekar with
history of head injuries sustained by the deceased. It is noted by the
doctors on medical examination of the deceased about the nature of
injuries noticed by them. They read as under:
"Patient is sent by I/O Hindalga complaining fall due to fits
sustaining injury to head. Observation: Patient is unconscious,
not responding to verbal and painful stimulus. Pupils were equal
and not reactive. There was bleeding from right ear. There were
clots in the nostrils. On examination of the injured, I found
following injuries:
i) A lacerated wound over tragus of right pinna ½ inch long
bleeding present.
ii) A lacerated wound ½ inch anterior to injury No.1, and half
inch in length with bleeding present."
89. On commencement of the investigation by CID, the CID
Bengaluru addressed a letter to Dr.G.K.Arun, Dr.P.S.Patil and
Dr.G.V.Dodawad as per Ex.P2 calling upon these doctors to give their
opinion with regard to the weapon being seized to kill the deceased,
which is alleged to have been used by accused No.1. As per the
request made by the investigating officer, M.Ramakrishna in this
Ex.P2, PW1 examined the said metal cutter sent in a sealed cover and
59 Criminal Appeal No.100246/2018
prepared a report as per Ex.P3. This contains diagram of the said
weapon. It is opined by the doctor PW1 that, these injuries No.1 and 2
stated in the accident register tallies with injury No.2 as reported in
the post-mortem report. PW1 has testified the contents of this Ex.P3.
To that effect, he sent a report along with Ex.P4. While marking these
documents, no little finger was raised by the defence. Except denial
directed to PW1, no other evidence is brought on record in the cross-
examination.
90. Ex.P5 is the panchanama. To substantiate the contents of
said panchanama, the witnesses are examined and even the in charge
chief superintendent of Central prison was a signatory to this Ex.P5,
who was examined in this case. Thus, the contents of this Ex.P5 are
not denied with regard to the typographical features of the scene of
occurrence. Certain portion of the statement of PW2 has been marked
as Ex.P6, which will not go to the root of the case. Ex.P8 is the request
for conducting the post-mortem addressed by the sub-divisional
magistrate Belagavi along with that a report is also annexed by the
sub-divisional Magistrate. As per request of the Assistant
Commissioner, post-mortem was conducted on the dead body of the
deceased. As narrated in the foregoing paragraphs, the doctor at the
time of conducting post-mortem has noticed the injuries on the dead
60 Criminal Appeal No.100246/2018
body of the deceased which were antemortem. Opinion was withheld
for want of report from hysto-pathelogical Department. Based upon
the report being received from the competent experts, Ex.P10 came to
be issued by the doctors stating that deceased died because of coma
as a result of severe injury sustained. Ex.P11 is the report from the
department of Pathology of J.N.Medical college wherein the doctor has
issued report on examination of the report being submitted by the
doctor. Ex.P12 is on par with Ex.P2. Likewise we find correspondences
with the PWD authorities to prepare sketch of the scene of offence as
per correspondence marked at Ex.P3 addressed to the Assistant
Executive Engineer PWD, Bengaluru by the CID Police Bengaluru.
Based upon that, PWD Engineer has prepared sketch as per Ex.P14.
The contents and particulars so mentioned by the engineer in this
Ex.P14 are not denied by the defence.
91. Ex.P18 to 32, 34 to 37 happens to be the statements of
various witnesses so marked in this case. Ex.P33 is an important
document as per the case of the prosecution. It is a register being
maintained in the Central Jail with regard to mentioning of the
particulars of visitors who have met the inmates of the said jail. On
perusal of these documents, Accused No.1 with convict No.17872 had
met accused No.2 on 05.12.2005. That means accused No.2 met
61 Criminal Appeal No.100246/2018
accused No.1 in the jail stating that, he is a friend of accused No.1.
Likewise, he also met accused No.3 on the said day itself. The contents
of this register are not seriously disputed by the defence.
92. It is the case of the prosecution that, on 05.12.2005 when
accused No.2 and 3 met accused No.1, they gave supari to accused
No.1 to kill the deceased as he is going to give evidence against
accused No.3. But to substantiate the said fact, except the Ex.P33 for
having met each other and bald allegations against accused No.2 and
3, there is no other evidence placed before the Court by the
prosecution. Ex.P38 is the wound certificate of the deceased issued by
KLE hospital on medically examining the deceased.
93. Likewise, we have medical records being produced as per
Ex.P39 by the prosecution. What was the treatment being
administered to the deceased are narrated in this medical record. Even
X-rays were taken and based upon that, treatment was administered
on the deceased. Ex.P44 is the statement of Maktumsab wherein he
has denied the contents of his own statement. Ex.P45 is the inquest
panchanama. It is accompanied with the photographs marked in this
case as per Ex.P46 to 49. Thus in the hospital, inquest panchanama
was conducted and thereafter post-mortem was conducted by the
doctor. These document are not disputed by the defence. Ex.P50 is
62 Criminal Appeal No.100246/2018
another panchanama prepared by investigating officer with regard to
scene of offence where the blood was sprinkled on the walls of said
ironsmithy room. It is upon confession statement of accused No.1, the
Investigating officer recovered metal cutter under Panchanama
Ex.P51. Though certain witnesses have been turned hostile but the
investigating officer is consistent about the seizure of the said metal
cutter seized under Ex.P51-panchanama.
94. Ex.P52 is another panchanama drawn at the place where
bed sheet, pillow and shirt worn by the accused No.1 at the time of
incident were burnt. This Panchanama was conducted at the place
shown by accused No.1 as per his confession statement. Ex.P53 is the
statement of one Vittal, who has been turned hostile. Certain
photographs of the said scene of offence where offence of murder has
taken place are produced as per Ex.P55 to 66. These photographs are
snapped by the photographer as per the direction of the investigating
officer to show the location of the ironsmithy room as well as
sprinkling of blood on walls of the said room. These particles being
recovered at the said place were subjected to chemical analysis by
Forensic Laboratory, but it was opined that, the said particles are not
sufficient to give an opinion. But the blood marks or sings are seen on
the walls of the said room. Ex.P67 is the complaint lodged by PW37
63 Criminal Appeal No.100246/2018
after collecting incriminating materials with regard to murder of the
deceased. Likewise, we have so many documents produced by the
prosecution to show the involvement of the accused as per the case of
the prosecution in the commission of crime. In order to show that,
these accused No.4 to 7 were present on the date of the incident,
attendance register is also produced as per Ex.P81, which is not
disputed by the accused persons.
95. As per Ex.P51, whatever examination being done with
regard to seizure of metal cutter, it was opined that, it was not
bloodstained. When the incident has taken place five years back prior
to filing of complaint, it is quite natural to expect that such seized
article would not have contained bloodstains. Even we cannot expect
that still the said material object has contained bloodstains.
96. To prove the motive, prosecution relies upon the
confession statement of the accused No.1. According to his directions
and the place shown by him, M.O.1 was seized. He has shown the
place where he has burnt the clothes i.e. bed sheet, pillow and his own
shirt, which were bloodstained. To that effect, Investigating officers
have stated in their evidence.
64 Criminal Appeal No.100246/2018
97. To show that this accused No.1 was convicted by the
Principal District and Sessions Judge, Belagavi, the judgment in
S.C.No.230/2013 dated 26.09.2002 is also produced. The fact of
accused No.1 being convicted and being inmate in the said jail in the
aforesaid case, is not disputed by the defence.
98. To show that there was some enmity or grudge in between
accused No.3 and the deceased, a copy of the FIR is produced by the
prosecution as per Ex.P.109 wherein crime was registered against
accused No.3 on the basis of complaint filed by the deceased alleging
the offences punishable under sections 143, 147, 148, 504, 506, 323,
326 read with 149 of IPC. In the said criminal case, there were five
accused persons. Amongst them, accused No.3 was also accused in
the said criminal case. A copy of the complaint is also produced as per
Ex.P110 stating that, incident in between deceased and accused No.3
took place on 06.01.2005. The said complaint was lodged before the
PSI Ghataprabha and after investigation, charge sheet was filed
against the present accused No.3 and other accused mentioned in the
charge sheet. A copy of the same is produced at Ex.P111. Ex.P112 is
the first information report registered by the Ghataprabha Police.
Certified copy of the order sheet in the said criminal case registered as
CC No.297/2005 on the file of JMFC Raibag shows that on the next
65 Criminal Appeal No.100246/2018
date of alleged incident, the learned JMFC has fixed the date for
evidence of deceased and issued body warrant against deceased to
produce him before the Court for the purpose of giving evidence. The
said order was passed by the JMFC on 02.12.2005. Even body warrant
was re-issued against the deceased by the said Court. On 13.01.2006
it was reported to the Court that CW1-Bheemappa is reported to be
dead. This CW1 so stated in C.C.No.292/2005 is none else than the
deceased.
99. It is argued by the counsel for the State that, there was
enmity in between deceased and accused No.3. Therefore, on an
apprehension that, in the said criminal case, if deceased, being
complainant, deposes before the Court against accused No.3, there is
likelihood of convicting accused No.3 and that he has to undergo
sentence. In such an event, there will not be any male person to take
care of his family. Even a copy of the charge being framed by the JMFC
Raibag is produced before this Court as per Ex.P114. Other documents
are also produced by the prosecution to buttress the said factum of
enmity.
100. Ex.P117 is intimation from the National Human Rights
Commission addressed to the Chief Secretary, Government of
Karnataka, wherein based on the report of senior consultant doctor, it
66 Criminal Appeal No.100246/2018
was directed to the Government of Karnataka to conduct investigation
and take necessary action and on the basis of the same, investigation
was commenced. Thereafter, Government of Karnataka took action by
passing proceedings dated 01.01.2006 with regard to the death of
deceased-Bheemappa. As per expert panel report sent by NHRC, the
injuries sustained by the deceased are not possible by fall on stairs
and such injury can be caused on account of fall from at least 1 or 2
storied building and the death appears to be suspicious.
101. On reading the entire documentary evidence produced by
the prosecution, it do suggest that, there was some enmity in between
accused No.3 and the deceased. According to the case of the
prosecution accused No.3 took the help of accused No.2 and came to
the Central jail Hindalga, contacted accused No.1 and there was
request by accused No.2 and 3 to accused No.1 to commit murder of
the deceased.
102. In this case, as stated supra, most of the evidence is
against accused No.1 and so far as evidence against other accused
persons, there is no proper linking evidence.
103. On reading oral and documentary evidence adduced by the
prosecution, the present case is purely based on circumstantial
67 Criminal Appeal No.100246/2018
evidence. Based on the said evidence, so discussed hereinbefore, the
circumstances connecting accused No.1 may be summarised as under:
i) The deceased was an inmate of Central Jail, Hindalga
as a convict in Sessions case at the relevant time.
ii) Accused No.1 was also inmate of the said jail as convict
in criminal case and was undergoing sentence.
iii) Accused No.2 was also convict undergone sentence in
the same jail and after completion of his period of
sentence he was released.
iv) Accused No.2 and 3 were known to each other and
their name is mentioned in the visitors register.
v) Accused No.1 was working as in charge of ironsmithy
room where the iron articles were being stored.
vi) On the ill-fate day, accused No.1 brought the deceased
by pampering him to the said ironsmithy room, made
him to sit on bed sheet and kept a pillow.
vii) On that day, accused No.1 was found dragging the
injured from inside of ironsmithy room and made him
to sit on stairs.
viii) PW5-Biliya Narayan Gouda, PW10-Vinay Ganapathi
Hegade, PW11-Shrikant Pandappa Hadapad, PW23-
68 Criminal Appeal No.100246/2018
Siddappa Rayappa Kamble have noticed the injured
and also saw blood oozing from his head and nose.
ix) The inmates of the central jail including PW47-
Veeranagouda noticed shifting of the injured to the
hospital in the vehicle.
x) Injured was unconscious and was unable to speak.
xi) The deceased died as a result of extensive injury on his
head while he was in central jail.
xii) The jail officials helped to shift the injured to the
hospital.
xiii) With a view to screen offence, accused No.1 created a
false story that deceased fell on stair steps and
sustained head injury.
xiv) Accused No.1 dragged the injured and made him to sit
on the stair steps.
xv) The bed sheet was used by accused No.1 to create
impression that he tried to treat the injured.
xvi) The said pillow and bed sheets were bloodstained so
also the shirt worn by accused No.1 was bloodstained.
69 Criminal Appeal No.100246/2018
xvii) Accused No.1 wiped off the bloodstains sprinkled on the
wall and cleaned the floor of ironsmithy room where
the blood was fallen.
xviii) At the instance of accused No.1, the said M.O.1-metal
cutter was recovered by the investigating officer.
xix) At the instance of the accused, panchanama was
conducted where the bloodstained clothes like bed
sheet, pillow and shirt worn by the accused No.1 were
burnt.
xx) Last but not least the confession statement given by
accused No.1 leading to discovery.
104. In a case of present nature, as the case is based upon
circumstantial evidence, the Court must be very diligent in dealing
with such cases. The reason is that, rarely in such cases when there is
a death in Central jail, direct ocular evidence of the complexity of the
inmate of the jail or the jail authorities would be available. Generally
speaking, it would be the inmates of the jail as well as the officials of
the jail authority alone who can only explain the circumstances in
which a person in their custody had died. As the inmates of the jail
because of their housing in jail and also the jail authorities, are bound
as they are by the ties of brotherhood, it is not unknown that the jail
70 Criminal Appeal No.100246/2018
authorities preferred to remain silent, so also inmates of the jail. As in
this case most of the inmates of the jail have been turned hostile and
more often than not even pervert the truth to save their colleagues.
The present case is an apt illustration as to how the inmates of the jail
as well as jail officials feigned ignorance about the whole matter.
105. In a case of this nature, the exaggerated adherence and
insistence upon the establishment of a proof beyond every reasonable
doubt by the prosecution, ignoring the ground realities, the fact
situations and the peculiar circumstances of the case, as in the present
case, often results in miscarriage of justice and makes justice delivery
system suspect. In the ultimate analysis, the society suffers and the
criminal gets encouraged.
106. When a death has taken place in a Central Jail, which is off
late or on the increase now, receive encouragement by this type of an
unrealistic approach of the Courts because it re-enforces the belief in
the mind of the jail authorities or the police, as the case may be, in
case of custodial death that no harm would come to them if an odd
prisoner dies in jail or lockup because there would hardly be any
evidence available to the prosecution to directly implicate them.
Therefore, it is settled proposition of law laid down by the Supreme
Court in various judgments that, the Courts must not lose sight of the
71 Criminal Appeal No.100246/2018
fact that, death in jail or in police custody is perhaps one of the worst
kind of crimes in a civilized society, governed by the rule of law and
poses a serious threat to an orderly civilized society. Such a death of
inmate of central jail flouts the basic rights of the citizen recognized by
the Indian Constitution and is an affront to human dignity.
107. Though under the provisions of the Indian Penal Code
certain offences are made as punishable those persons who cause hurt
for the purpose of extorting the confession etc., in case of police
custody by making the offence punishable with sentence up to 10
years of imprisonment but when such an offence takes place within the
premises of central jail or often left without any ocular or other direct
evidence to prove who the offenders are. Therefore, the Law
Commission in its 113th report recommended amendment of Indian
Evidence Act so as to provide certain solace to the victims. If there is
evidence that injury was caused during the custody when the person
was in the Central Jail, the Court may presume that, the injury must
have been caused by any of the inmate of the jail. The onus to prove
the contrary must be discharged by the jail authorities concerned.
Keeping in view the dehumanizing aspect of the crime, it is the
flagrant violation of the fundamental rights of the victims of the crime
and growing rise in the crimes of this type where only a few comes to
72 Criminal Appeal No.100246/2018
light and others do not, therefore, the government and the legislature
must give serious thought to the recommendations of the Law
Commission and bring about proper changes in the law not only to
curb the custodial crimes in police stations but also in the jails. Such
custodial crimes of death in jail does not go unpunished. Even the
Courts are also required to have a change in their outlook and
attitude, particularly, in the cases involving such type of crimes as of
present case and they should exhibit more sensitivity and adopt a
realistic rather than a narrow technical approach while dealing with the
cases of such a crime, so that as far as possible, within their powers,
the guilty should not escape, so that the victim of the crime has a
satisfaction that ultimately the majesty of law has prevailed.
108. If these principles are applied to the present facts of the
case with regard to crime being committed in a jail, the circumstances
so stated above do establish that, it was accused No.1, who prompted
deceased to come along with him on that ill-fate day. He took the
deceased to the ironsmithy room and had a talk with him so as to
make it believe that he has become a good friend of the deceased and
when he was so talking, used the metal cutter to commit assault on
the deceased. Because of the severe injury being sustained by the
deceased, he fell unconscious. Thereafter, accused No.1 dragged him
73 Criminal Appeal No.100246/2018
upto the steps and made him to sit there, did hue and cry pretending
that deceased due to fits had fallen down from the stairs and sustained
injuries. The jail authorities believed it and shifted the injured to the
hospital. Even the jail authorities, as per the case of the prosecution,
have kept the accused No.1 in 'Andheri cell' from the date of the
incident. Even the witnesses, stated supra, i.e. PW5, PW10, PW11,
PW23 have noticed the activities of accused No.1 in dragging the
deceased from inside the ironsmithy room and making him to sit on
stairs and even he fell down unconscious etc., Though some of the
witnesses questioned accused No.1, he did not answer, he went on
cleaning the ironsmithy room, he washed the room as well as the walls
where the blood was sprinkled. This conduct of accused No.1 do
establish his involvement in the commission of crime.
109. Section 106 of the Indian Evidence Act, 1872 if applied, to
the facts of this case, it specifically says that, it is the accused No.1
who knew the cause of death of the deceased, has to furnish all the
requisite information. If he fails to discharge the burden, then adverse
inference has to be drawn against him. Here in this case the burden of
proof which was cast on the prosecution is discharged. The
circumstances narrated herein above point finger at the accused that,
he is the real culprit. Therefore, if all the factual evidence is read
74 Criminal Appeal No.100246/2018
together, it can be stated that, it is the accused No.1 alone was
responsible for the murder of the deceased.
110. Even the provisions of Section 8 of the Indian Evidence
Act, can be made applicable to the present case on hand. It is the
accused No.1, who has shown the place to the investigation officer
and panchas, where he burnt the bloodstained bed sheet,
bloodstained pillow as well as bloodstained shirt worn by him at the
relevant time. At his instance No.1 only M.O.1-metal cutter was seized
under Ex.P51-seizure panchanama. The police conducted the
panchanama at the place shown by the accused No.1. Further, the
witnesses stated supra, have specifically stated about the conduct of
the accused No.1 immediately after the incident. This evidence spoken
to by the witnesses has not been properly denied by the accused
No.1. Such conduct of the accused No.1 would be admissible as
conduct irrespective whether the statement made by the accused falls
within the purview of Section 27 or not of the Evidence Act.
111. In the judgment of Hon'ble Supreme Court of India in
between A. N. Venkatesh Vs. State of karnataka[1] decided on
08.08.2005 it is held in para 9 of the judgment as under:
75 Criminal Appeal No.100246/2018
"9. By virtue of Section 8 of the Evidence Act, the conduct
of the accused person is relevant, if such conduct influences or
is influenced by any fact in issue or relevant fact. The evidence
of the circumstances, simplicitor, that the accused pointed out
to the police officer, napped boy was found and on their
pointing out the body was exhumed, would be admissible as
conduct under Section 8 irrespective of the fact whether the
statement made by the accused contemporaneously with or
antecedent to such conduct falls within the purview of Section
27 or not as held by this Court in Prakash Chand Vs. State (AIR
1979 SC 400). Even if we hold that the disclosure statement
made by the accused appellants (Ex.P.14 and P.15) is not
admissible under Section 27 of the Evidence Act, still it is
relevant under Section 8. The evidence of the investigating
officer and PWs.1, 2, 7 and PW.4 the spot mahazar witness that
the accused had taken them to the spot and pointed out the
place where the dead body was buried, is an admissible piece of
evidence under Section 8 as the conduct of the accused.
Presence of A-1 and A-2 at a place where ransom demand was
to be fulfilled and their action of fleeing on spotting the police
party is a relevant circumstance and are admissible under
Section 8 of the Evidence Act."
112. If the aforesaid principle is applied to the facts on hand,
as per confession statement of accused No.1, he led the Investigation
officer and panchas where he burnt the bloodstained shirt worn by
him, bloodstained bed sheet and bloodstained pillow at the relevant
time. Witnesses so examined have stated about his conduct
immediately after the incident and his participation of cleaning blood
76 Criminal Appeal No.100246/2018
fell in the ironsmithy room, walls and stairs (steps). Thus, this
conduct of accuse No.1 definitely points finger at him as the person
who has caused the murder of Bheemappa.
113. As stated supra, hardly we find direct evidence in such
cases and the Courts are not expected to get the exaggerated
adherence and insistences upon the establishment of proof beyond all
reasonable doubt by the prosecution. The Court is not supposed to
ignore the ground realities. The fact situations and the peculiar
circumstances of the given case on hand, often if such steps are not
taken by the Court, it would result in miscarriage of justice and make
justice delivery system suspect. Therefore, the ultimate analysis of
evidence do suggest that, it was accused No.1, who was responsible to
commit the offence of a murder of deceased-Bheemappa in the
manner proved by the prosecution through the evidence of the
aforesaid witnesses. Though most of the witnesses have been turned
hostile but the circumstances brought on record by the prosecution
herein stated above, do establish about the involvement of the
accused No.1 in the commission of the crime. As stated supra, hardly
in such cases evidence available to the prosecution do directly
implicate the accused No.1.
77 Criminal Appeal No.100246/2018
114. The Trial Court has not taken into consideration about the
evidence spoken to by PW5, PW10, PW11, PW23 and PW47 and other
material records. When these witnesses have stated that the dead
body of deceased-Bheemappa Kamate was taken out from the
ironsmithy room, deceased was seriously injured and when accused
No.1 was questioned as to what he was doing, there was no answer
from. Therefore, necessary inference which follows is that, the
deceased-Bheemappa Kamate died when he was with accused No.1 in
ironsmithy room in Hindalga Jail. The deceased-Bheemappa remained
with accused No.1 in the said ironsmithy room from 11.00 a.m.
onwards. Thereafter, he was dragged from the ironsmithy room upto
stairs.
115. The case set up by the defence on the basis of specific
denial is that the deceased died because of fall from the stairs (steps).
But admittedly, the company of accused No.1 with deceased is not
denied by any of the witnesses in this case at the time when deceased
suffered injuries. The order sheet of the JMFC Court, Raibag do
establish about the enmity.
116. As discussed hereinabove, the evidence of PW5, PW10,
PW11 and PW47 plays an important role in this case so as to connect
78 Criminal Appeal No.100246/2018
accused No.1 in the commission of crime. Therefore, it is necessary to
cull out the important evidence spoken to by them.
117. PW5-Biliya Narayanagouda was the inmate of the central
jail as discussed above at the relevant time. As per his evidence, at
the relevant time, on 27.12.2005, he was working in kitchen of the
said Central Jail. At that time, deceased-Bheemappa was in charge of
grinding wheat flour for the purpose of preparing chapaties. He has
seen accused No.1, so also other accused persons. He specifically
states in his evidence that, on 27.12.2005 at about 11.30 a.m.
deceased carried the lunch to the inmates of Andheri cell. Thereafter,
he went to the rest room for taking rest at 1.30 p.m. This PW5 went to
the rest room and noticed the absence of deceased there. At about 20
inmates were found sleeping there. It was told to him that, the
deceased-Bheemappa was taken away by accused No.1 when he was
taking rest. Thereafter, PW5 came back towards kitchen. There he was
informed that, accused No.1 assaulted the deceased. He speaks with
regard to other events that have taken place after the assault on the
person of the deceased. The evidence so spoken to by PW5 stated
supra has not been properly denied by the defence. Intensive cross-
examined is directed to him but he has withstood to the test of cross-
examination.
79 Criminal Appeal No.100246/2018
118. PW10-Vinay Ganapathi Hegade is also a vital witness in
this case, who has spoken before the Court on oath about he noticing
assault on the person of deceased-Bheemappa. He has specifically
stated that, the said Bheemappa on the date of the incident came to
him at about 11.00 a.m. demanding beedi from him. The deceased
was with him for about 15 minutes. He had a talk with him. There
accused No.1-Imamsab came in search of deceased-Bheemappa.
Accused No.1 took Bheemappa with him. Thereafter, he came to know
that it was accused No.1 alone who assaulted deceased-Bheemappa.
The inmates of the jail were talking that the deceased was killed by
accused No.1. Though he too has been cross-examined at length, he
also withstood the test of cross-examination.
119. PW11-Shrikant Pandappa Hadapad corroborates the
evidence of PW5 and PW10 in material particulars. As per his evidence,
he was in visiting terms to the said ironsmithy room where accused
No.1 was working. Everyday this witness used to visit the said room.
He speaks that on the date of the incident, when he went to the said
ironsmithy room, he noticed that accused No.1 brought the deceased-
Bheemappa towards stair steps and made him to sit t here and this
witness saw him. At that time, the blood was oozing from the head
injury sustained by the deceased. Even the shirt worn by accused No.1
80 Criminal Appeal No.100246/2018
was also bloodstained. He did not question accused No.1. That means,
a connecting link has been stated by him that it was accused No.1
alone who was very much present along with the deceased when the
alleged incident has taken place.
120. The evidence of PW47-eyewitness also plays an important
role in connecting the accused No.1 in the commission of the crime.
PW47 has given connecting evidence to show that it was accused No.1
who was last seen with the deceased, when the deceased was found
injured. There was galata by the inmates of the jail but the jail
authorities did not heed to the request of the inmates and showed
their deaf ears. Thus, on overall reading of the evidence of all the
aforesaid witnesses, it do demonstrate that, it was accused No.1
alone, who has committed the murder of the deceased.
121. Thus, it is proved by the prosecution that deceased-
Bheemappa died when he was inmate of Hindalga Central Jail,
Belagavi as a result of extensive injuries being sustained by him
because of assault on him. This fact is supported by the evidence of
PW57-Dr.R.K.Sharma that, on examination of the post-mortem report
he has given report stating that the injuries so sustained by the
deceased as per post-mortem report would not be possible if a person
falls from stairs and the said injury is only possible if a person falls
81 Criminal Appeal No.100246/2018
from the height of 1 to 2 storied building. If that so, it is for the
accused No.1 to explain that how the deceased sustained such a
severe injuries.
122. Section 106 of the Indian Evidence Act comes into
operation. As per this section, when facts pre-eminently or
exceptionally within the knowledge of the accused, it is for him to
explain. Throughout the evidence and at the time of recording Section
313 Cr.P.C. statement, this accused No.1 has not explained anything
about how and what was the exact reason for the said injuries. This
section is designed to meet certain exceptions in the case in which it
would be impossible or at any rate disproportionately difficult for the
prosecution to establish the facts which are "especially within the
knowledge of the accused and which, he can prove without difficulty or
inconvenience". This principle has been laid down by the Hon'ble Apex
Court in the judgment in between Balvir Singh v. State of
Uttarakhand in Criminal appeal No. 2430/2014 decided on
06.10.2023. It is laid down by the Hon'ble Apex Court.
"Evidence- It cannot be said that Section 106 Evidence Act has
no application to criminal cases - Ordinary rule which applies to
criminal trials that the onus lies on the prosecution to prove the
guilt of the accused is not in any way modified by the provisions
contained in Section 106.
82 Criminal Appeal No.100246/2018
A. Evidence Act, 1872, Section 106 - Scope - Facts pre-
eminently or exceptionally within the knowledge of the accused -
Onus to prove - Section 106 of the Evidence Act is an exception
to Section 101 - Section is designed to meet certain exceptional
cases in which it would be impossible or at any rate
disproportionately difficult for the prosecution to establish the
facts which are, "especially within the knowledge of the accused
and which, he can prove without difficulty or inconvenience".
[Para 34]
B. Evidence Act, 1872, Section 106 - Scope - Court should apply
Section 106 in criminal cases with care and caution - It cannot
be said that it has no application to criminal cases - Ordinary rule
which applies to criminal trials in this country that the onus lies
on the prosecution to prove the guilt of the accused is not in any
way modified by the provisions contained in Section 106.
(Para 41)"
123. In this case also the deceased was found injured in
ironsmithy room where accused was in-charge. Thus, except accused
No.1, there was no any other inmate of the jail used to work in the
said ironsmithy room.
124. It is also laid down by the Hon'ble Apex Court in (2009) 9
SCC 626 in between State of Uttar Pradesh v. Santoshkumar and
others with regard to appreciation of evidence in criminal case which
reads as under:
83 Criminal Appeal No.100246/2018
"B.Criminal Trial - Appreciation of evidence - Minor
contradictions or inconsistencies immaterial - Duty of court while
recording statements - Held, in any criminal case where
statements are recorded after a considerable lapse of time, some
inconsistencies are bound to occur - But it is the duty of court to
ensure that truth prevails - If on material particulars, statements
of prosecution witnesses are consistent, then they cannot be
discarded only because of minor inconsistencies. (Para 24)"
125. The Hon'ble Apex Court has laid down that where there are
minor contradictions or inconsistencies, they are immaterial. It is the
duty of the Court while recording statements that, in any criminal case
where statements are recorded after a considerable lapse of time,
some inconsistencies are bound to occur. But it is the duty of the Court
to ensure that truth prevails. If on material particulars, statements of
prosecution witnesses are consistent, then they cannot bee discarded
only because of minor inconsistencies. Here also, the said incident has
taken place in the year 2005. The investigation was commenced in the
year 2010 i.e. after lapse of five years. The evidence of the witnesses
conducted after substantial lapse of time. Therefore, though there are
some minor contradictions, omissions and discrepancies brought on
record in the cross-examination of PW5, PW10, PW11, PW23 and
PW47 they will not go to the root of the case of the prosecution.
84 Criminal Appeal No.100246/2018
126. As regards remaining accused No.2 to 7, they are
respondents in this case. On scrupulous reading of entire evidence, no
evidence whatsoever has been adduced by the prosecution in cogent
manner to show that they were the persons responsible for causing
the injuries to the deceased.
127. So far as accused No.2 and 3 is concerned, it is alleged
that they together came to Central Jail and gave supari to accused
No.1 to kill deceased-Bheemappa. Except the visitors register, Ex.P33,
and some evidence of the investigating officer, there is no evidence
placed on record. It is stated in the visitors' register that accused No.2
being the brother of accused No.1 came to the Central jail to meet. He
noticed accused No.3 also. Except this evidence, there is no other
evidence. Even the facts as to what time the deceased was permitted
to enter the ironsmithy room is not stated by any of the witnesses
against accused No.4 to 7. Consequently, in the absence of evidence
against accused No.2 and 4 to 7, as their presence or participation at
the time injuries caused to the deceased, it is not possible to find the
said accused guilty of committing offence. The conspiracy is not
proved in accordance with law. Involvement of accused No.4 to 7 is
also not proved in accordance with law. Therefore, against these
accused No.2 to 7, there is no definite evidence to show that these
85 Criminal Appeal No.100246/2018
accused are really involved in the commission of the crime. The only
evidence against accused No.2 and 3 is that they visited the Central
jail on previous day of the incident. Thereafter, accused No.4 to 7 have
suppressed or destroyed the evidence of commission of crime by
accused No.1. Except this, there is no further evidence placed on
record. That means there is lack of evidence against these accused
persons.
128. On scrupulous reading of the evidence placed on record
discussed supra, there are incriminating material appearing in the
prosecution evidence against accused No.1-respondent No.1, who
caused injuries on the person of the deceased. We are in full
agreement with the Trial Court since incriminating evidence appearing
in the prosecution evidence against accused No.2 to 7, who were
charged for the offence under Section 302 and 201 of IPC only was not
to put them in their statements recorded under Section 313 of Cr.P.C.,
and no opportunity was afforded to them to explain those
circumstances etc., no conviction therefore, could be recorded against
them as there is no evidence against them. Their acquittal in the
peculiar facts of the case therefore, does not call for any interference
by us and we uphold their acquittal and dismiss the appeal against
them.
86 Criminal Appeal No.100246/2018
129. However, we are not impressed with the approach of the
Trial Court in dealing with the case against accused No.1. It was
accused No.1, who was the main accused who committed the murder
of deceased-Bheemappa.
130. Having recorded a clear and conclusive finding and on
proper appreciation of evidence, the deceased-Bheemappa went along
with accused No.1 to the ironsmithy room in Central Jail and thereafter
his body was dragged by accused No.1 when he was severely injured
and because of extensive injuries sustained by him he was removed
from Central jail and shifted to the hospital and thereafter he died.
Thus, even the jail authorities also have not taken proper steps. The
presence of these jail authorities is not properly established, but
however the accused No.1 is the main cause for the murder of the
deceased. The material on record establishes not only the presence of
accused No.1 with deceased at the said ironsmithy room on the ill-fate
day and they had a talk with each other for considerable time. At that
time, there was assault by accused No.1 on the deceased. Thereafter,
to screen the said offence the accused No.1 has washed the floor
where the blood was fallen and also the wall where the blood was
sprinkled. Even his clothes as well as bed sheet and pillow were
bloodstained and subsequently he burnt them. Thus, the inmates of
87 Criminal Appeal No.100246/2018
the jail stated supra, have stated about their noticing of deceased
being severely injured, who were subjected to searching and lengthy
cross-examination and they remained un-shattered and their evidence
is established the guilt of the accused No.1 beyond reasonable doubt
that the dead body of the injured was dragged out from the ironsmithy
room and thereafter shifted to the hospital. The evidence of these
witnesses particularly, PW5, PW10, PW11, PW23 has impressed us.
Their evidence is consistent, cogent and these witnesses had no
reason to falsely depose accused No.1. These witnesses truthfully
disclosed what they saw.
131. Indeed, there is no evidence to show that these accused
No.2 and 3 on the one hand have participated in the conspiracy to
commit the murder of the deceased by accused No.1 and in that
regard they visited the Central jail etc., Further, there was no definite
evidence to show the complexity of accused No.4 to 7 in the
commission of crime under Section 201 of IPC, but whereas the
presence of accused No.1 and his participation in the commission of
crime is truly proved in accordance with law, but whereas participation
of accused No.2 to 7 is doubtful which is not borne out from the
evidence on record and appear to be unrealistic simplification of tell
tail circumstances established by the prosecution. That means there
88 Criminal Appeal No.100246/2018
is no direct evidence about the complexity of accused No.2 to 7 in the
commission of crime. Generally, as stated supra, it is the inmates of
the jail who have explained the circumstances.
132. From our independent analysis of material on record, we
are satisfied that accused No.1 was present in the said ironsmithy
room on the date of the incident and he was directly involved in the
crime of committing murder of the deceased and because of severe
and extensive injury head injury, Bheemappa died in KLE Hospital.
Thus, from the evidence available on record, both documentary and
oral, it is proved that the prosecution has proved that accused No.1 is
the real culprit who committed the murder of deceased-Bheemappa,
whereas there is doubt with regard to participation of accused No.2 to
7 in the commission of crime though there are lapses on the part of
accused No.4 to 7. Therefore, the benefit of doubt has to be extended
to accused No.2 to 7. Since accused No.1 is responsible for
commission of crime and prosecution is able to prove the guilt of
accused No.1 beyond all reasonable doubt, he is liable for conviction.
Therefore, accused No.1 is held guilty of committing offence under
Section 302 and 201 of IPC. Accordingly, we answer the above point
for consideration partly in affirmative. Resultantly, we pass the
following:
89 Criminal Appeal No.100246/2018
ORDER
i) Appeal is allowed in part.
ii) Accused No.1 is held guilty of committing offence
under section 302 and 201 of IPC.
iii) Insofar the judgment of acquittal passed by the Trial
Court in favour of Accused No.2 and 4 to 7 is
concerned, the same is confirmed.
iv) As accused No.1 is held guilty of committing the
offence under Section 302 and 201 of IPC, he has to
be heard on the question of sentence. Therefore, list
this matter for hearing the accused No.1 on the
question of sentence on 27.11.2023.
v) Counsel for appellant is directed to keep present the
accused No.1 before the Court.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
90 Criminal Appeal No.100246/2018
HPSJ & RDHJ:
08.12.2023
(VIDEO CONFERENCING / PHYSICAL HEARING)
ORDER ON SENTENCE
Accused No.1, being Under Trial Prisoner in Crime No.278/2009
of Belagavi Rural Police Station, is produced under Body Warrant from
the Central Prison, Belagavi.
2. This case is listed today for the purpose of hearing the
accused No.1 on the question of sentence.
3. Enquiry is made with accused No.1. On enquiry, he
submits that, his wife died two months back and he lost his children
also during COVID period. He submits that, he has got age old mother
who is suffering from age old ailments. He submits that, he is having
landed property and he is wrestler by profession.
4. Learned counsel for accused No.1 submits that, in view of
present position of accused No.1, who is aged about 68 years, some
leniency may be shown in imposing sentence. He submits that, as
accused No.1 has undergone custody period for more than seven years
during the trial in this case and also now he is facing trial in the
aforesaid crime, some leniency may be shown.
91 Criminal Appeal No.100246/2018
5. As against this submission, learned Additional SPP submits
that, the accused No.1 has committed heinous offence of murder,
which is duly proved in accordance with law. He submits that, accused
No.1 being inmate of the jail, at the instance of accused No.2 and 3,
as the deceased had to give evidence before the JMFC, Raibag, to
avoid conviction in the said case, accused No.2 and 3 prompted this
accused No.1 to commit the murder of deceased-Bheemappa. He
submits that, it is a gruesome murder in the jail. Though murder has
taken place in the year 2005, the COD filed charge sheet thereafter
and the trial was conducted. There was a suppression of material facts
by the jail authorities also. He submits that, as it is a heinous offence,
maximum punishment may be imposed on accused No.1.
6. On perusal of facts of this case and also on appreciation of
evidence, this Court has already come to the conclusion that, it was
accused No.1, who committed the heinous offence of murder of
deceased Bheemappa in jail by taking him to ironsmithy room and
made him to sit and by using metal cutter, he assaulted the deceased
on his head. Thereafter, the accused No.1 pretended to be an innocent
by stating that the deceased fell on the stairs and sustained injuries.
In view of the report from the Doctor of Delhi nominated by National
Human Rights Commission, the said falling of deceased on stairs was
92 Criminal Appeal No.100246/2018
ruled out. On appreciation of evidence, it was found that accused No.1
is guilty of the heinous offence of murder. But however, in view of the
facts and circumstances of this case, though it is submitted by the
learned Additional SPP that, maximum punishment be imposed on the
accused No.1, but this case do not fit in the parameters of rarest rare
cases.
7. The punishment so prescribed for the offence under
Section 302 of IPC reads as under:
302. Punishment for murder: Whoever commits murder
shall be punished with death or imprisonment for life, and shall
also be liable to fine.
8. Accused No.1 is also held guilty of committing offence
under Section 201 of IPC. Section 201 of IPC reads as under:
201. Causing disappearance of evidence of offence, or
giving false information to screen offender.- Whoever, knowing or
having reason to believe that an offence has been committed,
causes any evidence of the commission of that offence to
disappear, with the intention of screening the offender from legal
punishment, or with that intention gives any information
respecting the offence which he knows or believes to be false;
If a capital offence -- shall, if the offence which he knows
or believes to have been committed is punishable with death, be
punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine;
93 Criminal Appeal No.100246/2018
If punishable with imprisonment for life -- and if the
offence is punishable with imprisonment for life, or with
imprisonment which may extend to ten years, shall be punished
with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine;
If punishable with less than ten years imprisonment -- and
if the offence is punishable with imprisonment for any term not
extending to ten years, shall be punished with imprisonment of
the description provided for the offence, for a term which may
extend to one-fourth part of the longest term of the imprisonment
provided for the offence, or with fine, or with both.
9. The minimum punishment prescribed for offence under
Section 302 of IPC is imprisonment for life with fine. Therefore, in view
of the facts of this case, as well as on hearing the arguments of both
the sides, we feel it proper to impose sentence of imprisonment for life
with fine of Rs.10,000/- for the offence under section 302 of IPC. In
default to pay the fine amount, the accused No.1 shall also undergo
simple imprisonment of six months.
10. For commission of offence under Section 201 of IPC, the
accused No.1 is sentenced to undergo simple imprisonment for a
period of two years with fine of Rs.5,000/-. In default to pay the fine
amount, he shall undergo further period of simple imprisonment of two
months.
94 Criminal Appeal No.100246/2018
11. The above said sentence shall run concurrently.
12. Out of the fine amount, 75% of the amount shall be given
as compensation to the legal representatives of the deceased.
13. The District Legal Services Authority is directed to take
appropriate steps for reckoning the compensation under section 357-A
of Cr.P.C.
14. Registry is directed to supply a free copy of this judgment
to the accused No.1.
15. Issue conviction warrant against the accused No.1 and
intimate the concerned Superintendent of Jail as well as Principal
District and Sessions Judge, Belagavi.
16. Registry to send a copy of this judgment to the District
Legal Services Authority, Belagavi also.
Sd/-
JUDGE
Sd/-
JUDGE
