No.2 received injuries to his hand and same is also
substantiated with the wound certificate Exhibit P34. The
prosecution has not explained anything in this regard. Even
the material witnesses complainant PW1 and witnesses PW5, 6,
14 and 15 have also not deposed anything as to the injuries
caused to accused No.2-Imamsab. Even the investigating
officers have not explained in their examination-in-chief as to
the injuries caused to accused No.2, and also as the contents of
Exhibit P34 wound certificate.
41. Accused No.2-Imamsab has submitted his written
statement in which it is stated that on 12th September 2017 at
4.00 am, he went to Police Station to inform the death of the
deceased Basavaraj as Muttu Badiger, Praveen Kumar and two-
three others and friends of Badiger quarrelled with Basavaraj
and assaulted him with knife. After noticing the fact, he had
come to police station to lodge complaint against Muttu Badiger
and others, the said Muttu Badiger threatened him and villagers
assaulted him, and accordingly, he got hurt on his left finger.
This explanation given by accused No.2 cannot be accepted as
there is no evidence to show that PW5 and others have
assaulted him. Accused No.2 might have inflicted injury on his
own or at the time while accused No.1-Junglisab was trying to
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assault the deceased with knife and for that reason accused
No.2-Imamsab has not lodged any complaint against accused
No.1. However, there is no consistent and corroborative
evidence to prove that accused 2 to 4 were actively participated
in the murder of deceased-Basavaraj having common object to
kill the deceased.
42. Even Exhibit P1 does not reveal that accused No.3-
Rajesab held the hands of deceased. For the first time before
the Court, PWs.5, 6, 14 and 15 have deposed that accused
No.3-Rajesab caught hold of the hands of the deceased.
Accused 2 to 4 have no motive or intention to kill the deceased
at the relevant point of time. It is the case of the prosecution
that accused 2 to 4 have assaulted deceased with their hands
and legs. But the evidence of material witnesses is not
consistent to the contents of Exhibit P1 complaint. Admittedly,
accused 2 to 4 have not used any weapon for the commission
of murder of the deceased. Even in the chargesheet, the
investigating officer has dropped the penal provision of Section
324 Indian Penal Code against these accused. The non-
explanation of the injury caused to accused No.2-Imamsab will
create doubt as to the overt act of accused 2 to 4 as alleged by
the prosecution. It is a specific case of prosecution that
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accused No.1-Junglisab has assaulted and stabbed deceased
Basavaraj with knife on the face and chest. We have already
held that the prosecution has proved that accused No.1-
Junglisab has committed murder of deceased by stabbing with
knife on his face and chest, and there is no cogent,
corroborative, consistent and believable evidence as to the
involvement of accused 2 to 4. Since accused No.2-Imamsab is
the uncle of accused No.1-Junglisab and accused 3 & 4 are sons
of accused No.2-Imamsab, the complainant would have filed
complaint against accused 2 to 4 alleging that accused 2 to 4
have also participated in the alleged crime. In the case on
hand, the prosecution has failed to establish that there was a
common intention, in the sense, pre-arranged plan, between
the accused 2 to 4 and accused No.1 to commit the murder.
43. Learned Counsel for the appellants vehemently
submitted that Exhibit P1-complaint does not reveal as to the
borrowing of amount of Rs.20,000/- from the deceased. PW1
and other eyewitnesses, for the first time before this Court,
have stated as to the loan transaction. A perusal of Exhibit P1-
complaint makes it clear that there is no reference as to
borrowing of loan by accused No.1-Junglisab from the deceased
Basavaraj. However, in the complaint it is stated that there is a
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previous enmity between accused No.1-Junglisab and deceased
Basavaraj for the past one year, but the reason of old enmity is
not disclosed in the complaint. However, accused have set up
a defence that there was an ill-will between the accused
number one and deceased Basavaraju regarding an affair with
one Saira Banu. The defence set up by the accused had not
been proved by accused. But the defence set up by accused
No.1-Junglisab reveals that there was a previous enmity
between him and the deceased. Non-mentioning of the loan
transaction in the complainant, will not be a ground for
acquittal of accused No.1 since there is direct evidence of
accuse No.1 assaulting with knife on face and chest of
deceased-Basavaraju, we cannot accept argument advance on
behalf of the accused No.1-Junglisab.
44. Further, the learned Counsel has for the accused has
also submitted that after the death of the Basavaraj, the people
of village were telling that there was a news flashing in the
television that because of a lady from Dubai murder has
happened in the village. In this regard, there is no material
placed before the Court. Hence, this argument also cannot be
accepted.
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45. The learned Counsel has also argued that Medical
officer to be held responsible because he has given unnatural
and irresponsible and contradictory evidence in the cross-
examination, which clearly demonstrates that he has conducted
post-mortem examination and the same has been done in
collusion with the police only to help them. Further, the learned
counsel for the appellants submitted that PW19 was working as
only Medical Officer at Primary Health Centre, Kottur,
conducted the post-mortem examination on 12th September
2017 at 11:25 am and issued postmortem report Exhibit P23
on 13th September, 2019. He has given his opinion as to cause
of death as per Exhibit P28 and also issued Exhibit P29
regarding opinion of MO11. In the cross-examination he admits
that on 12th September, 2017, he was the only doctor working
at Primary Health Centre, Kottur, which is about 17 km away
from Kottur village. When he received the requisition letter he
was at Primary Health Center Kotur Village. He further said
when he conducted PM report no flesh has come out from injury
no. 1 and 2. But in his cross-examination, he admits that, in
the Inquest report form no.146(II) it is mentioned that about
1" length and ½" width portion of flesh was hanging out of the
chest injury of the deceased.
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46. He further said at para-14 of his evidence that at
about 11:25 AM he received requisition for conducting Post
Mortem.
47. The medical officer, during his deposition, stated
that he received oral instructions from the Investigating Officer
to conduct the postmortem examination of the deceased. He
deposed that, acting on such oral instructions, he proceeded to
the mortuary of the District Hospital at Dharwad, where he
collected the requisition. He further clarified that, on the day of
the incident, between about 8:30 a.m. and 9:00 a.m., the
Investigating Officer contacted him telephonically and
requested him to undertake the postmortem examination. In
paragraph 15 of his deposition, the doctor added that a police
staff member from Garag Police Station, identified as one Mr.
Soratoor, had also orally conveyed the same instructions to
him. The doctor candidly admitted that he was the in-charge
medical officer of the PHC at Kottur, which operated between
09:00 a.m. and 04:30 p.m. On that day, despite his official
responsibility to remain at the PHC to attend to patients, he
instructed the staff nurse to attend to the patients in his
absence and proceeded to Dharwad for the postmortem.
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48. In his cross-examination, particularly between
paragraphs 17 and 20, the doctor admitted that even though
he was responsible for the functioning of the PHC at Kottur, he
did not deem it necessary to obtain a written requisition or
formal permission prior to leaving for Dharwad to conduct the
postmortem. He reiterated that his actions were based solely
on oral instructions received from the police. Notably, he did
not advise the police to consult other available medical officers
at the District Hospital, Dharwad, for the purpose of conducting
the postmortem examination. He admitted that there is no
statutory requirement or formal protocol indicating that the
postmortem examination must be conducted only by a doctor
from the jurisdictional village where the deceased resided. He
also stated that upon reaching the mortuary at the District
Hospital, Dharwad, he did not submit any written requisition or
obtain any formal permission from the District Surgeon or any
Senior Medical Officer to conduct the postmortem. He
concluded his examination by stating that he completed the
postmortem at around 3:00 p.m. and returned to Kottur by
approximately 4:30 p.m. Thereafter, he handed over the
postmortem report to the police personnel who collected the
same from his residence.
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49. It is pertinent to note that the factum of death of the
deceased Basavaraj is not in dispute, nor is there any challenge
raised by the accused in respect of the postmortem or the
report of the Forensic Science Laboratory. Furthermore, the
fact of homicidal death is also not contested by the defence.
The limited defence sought to be projected by the accused is
that prosecution witnesses PWs.5 and 6 were allegedly
responsible for the murder of Basavaraj. In this context,
procedural irregularities or administrative lapses, if any, in the
manner in which the postmortem was conducted, would be
inconsequential and immaterial to the core issue. Such
irregularities, assuming they exist, do not detract from or
impair the case of the prosecution. Therefore, the contention
advanced by learned counsel for the accused that procedural
irregularities in conducting the postmortem create a doubt
about the prosecution's case stands rejected as being without
merit.
50. The learned counsel for the accused has further
contended that there are omissions, contradictions, and an
alleged delay in the submission of the FIR to the jurisdictional
court. However, on close scrutiny of the records, it is evident
that there is no delay in the registration of the complaint. The
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prosecution has placed on record the consistent and
corroborative testimonies of the eye-witnesses, namely PWs.5,
6, 14 and 15, all of whom have unequivocally deposed that
accused No.1 - Junglisab, inflicted multiple stab injuries on the
face and chest of the deceased with a knife, identified as MO11.
The minor discrepancies and omissions pointed out during the
course of trial are neither material nor sufficient to discredit the
core version of the prosecution. Such inconsistencies, which are
normal in witness testimonies, do not go to the root of the
matter and do not cast any reasonable doubt on the culpability
of accused No.1. Hence, the said arguments on omissions and
contradictions are rejected.
51. On a comprehensive and meticulous re-appreciation,
re-examination, and re-evaluation of the entire oral and
documentary evidence available on record, this Court finds no
error, infirmity or illegality in the findings of the Trial Court
insofar as the conviction of accused No.1-Junglisab is
concerned. The prosecution has succeeded in proving beyond
reasonable doubt that accused No.1 committed the murder of
the deceased and is guilty of offences punishable under
Sections 302 and 504 of the Indian Penal Code. However,
insofar as the conviction of accused Nos.2 to 4 for the offence
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punishable under Sections 302 and 504 read with Section 34 of
the Indian Penal Code is concerned, we find that the
prosecution has failed to produce cogent, corroborative,
convincing, and clinching evidence to establish the specific
overt acts attributed to accused Nos.2 to 4. In criminal
jurisprudence, unless the prosecution is able to establish the
collective intention and the specific role played by each accused
beyond reasonable doubt, benefit of doubt must enure to the
accused. Consequently, accused Nos.2 to 4 are entitled to be
extended the benefit of doubt. Accordingly, Point No.1 is
answered partly in the affirmative.
Regarding Point No.2:
52. For the aforestated reasons and discussions, we
proceeded to pass the following:
ORDER
1. Appeal is allowed in part;
2. The Judgment of conviction and order on
sentence dated 26th February 2020 passed in SC
No.19 of 2018 by the Principal District and
Sessions Judge, Dharwad against accused No.1-
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Junglisab, @ Jangalu Sab Mullannavar, is
confirmed;
3. Accused No.1-Junglisab @ Jangalu Sab
Mullannavar, who is on bail, shall surrender
himself before the trial Court within thirty days
from this day. If the accused No.1-Junglisab
does not appear before the trial Court within
thirty days from today, trial Court is directed to
take necessary legal steps to secure accused
No.1-Junglisab to serve the sentence passed by
the trial Court;
4. The Judgment of conviction and order on
sentence dated 26th February 2020 passed in SC
No.19 of 2018 by the Principal District and
Sessions Judge, Dharwad against accused 2 to
4, is set aside;
5. Accused 2 to 4 are acquitted of the offences
punishable under Sections 302 and 504 read
with Section 34 of Indian Penal Code. Fine
amount, if any, deposited by accused 2 to 4
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shall be refunded to them in accordance with
relevant Act and Rules;
6. Registry to transmit copy of this Judgment,
along with trial Court records to the trial Court,
forthwith;
7. Registry is also directed to furnish forthwith a
copy of the Judgment to appellant/accused
No.1-Junglisab, free of cost.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
lnn
CT:VH
