order of the Trial Court acquitting the appellants set aside, and the
appellants convicted and sentenced to undergo rigorous imprisonment for a
period of seven years under Section 304 Part II read with Section 34 IPC. A
fine of Rs.5,000/- each and a default sentence of imprisonment for a period
one year has also been awarded to the appellant.
about 7.30 p.m. the appellants are alleged to have caught hold of
Lingappa’s son Basavaraj-deceased while he was returning home, tied his
hands behind his back splashed chilly powder on his face and assaulted him
with a club of stones causing injuries on his head and other parts of body
leading to his death. The incident is alleged to have been witnessed by
Hanumantha (PW-1), brother of the deceased, and Mannamma (PW-4), mother of
the deceased. In connection with the incident Crime No.168 of 2006 was
registered at Hutti Police Station for an offence punishable under Section
302 read with Section 34 IPC against the appellants herein.
The Trial Court on an appraisal of the prosecution
evidence came to the conclusion that the prosecution had failed to bring
home the guilt of the accused for the offences allegedly committed by them.
Aggrieved by the order of acquittal the State preferred an appeal before
the High Court of Karnataka which was heard and allowed by a Division Bench
of that Court holding the appellants guilty of the offence punishable under
Section 304 Part II read with Section 34 of the IPC and sentencing them to
undergo imprisonment for a period of seven years with fine and default
sentence mentioned above. The present appeal assails the correctness of the
said order.
The prosecution case primarily rests on the depositions of Haumantha
(PW-1), brother of the deceased, who was also the first informant and
Mannamma (PW-4), mother of the deceased both of whom claimed to be eye
witnesses to the occurrence.
When he stepped forward to rescue
Basavaraj, his mother-PW4 dissuaded him from doing so.
The accused persons
then left the spot whereafter the witness and his mother went near the
injured but returned home.
Sometime later they again went to the field with
PW3-Lingappa who too saw his son Basvaraj in an injured condition. PW-3 is
then said to have gone to Gurgunta police post to inform the police about
the incident and returned at about 6.00 p.m.
It was only at about 10.00
p.m. that a Sub Inspector from Hutti police station came to the spot in a
Jeep. PW-1 Hanumantha presented to him a written complaint about the
incident.
He also narrated the incident to the police Sub Inspector which
was reduced to writing by him and treated as the first information report
marked as Ex.P-1 at the trial.
The witness further states that it was the
ASI of police who directed him to untie the ropes from the hands of
deceased-Basavaraj which he accordingly did.
Deceased-Basavaraj was then
shifted in an injured condition to Government Hospital at Lingasugur. PWs.
1 and 3 also accompanied the injured, but the injured Basavaraj breathed
his last on the way.
The deposition of PW-4 mother of the deceased-
Basavaraj is also on the same lines.
In the first place, the Trial Court
found the conduct of PWs 1 and 4 who are closely related to the deceased
unnatural.
The Trial Court held that if their version that they were
witnesses to the occurrence was correct, there was no reason why they would
not intervene to rescue the deceased from the clutches of the assailants.
More importantly, the Trial Court held that PW1, brother and PW4, mother of
the deceased, instead of untying the deceased who was in a seriously
injured condition, returned home even after the assailants had fled away
from the spot.
What is worse is that even after returning home PWs. 1 and 4
accompanied by PW-3 who is none other than the father of the deceased had
gone back to the place of occurrence where they found the deceased in an
injured condition with his hands tied behind his back, his leg
broken/fractured and eyes burning with chilly powder, but made no effort to
untie his hands or rush him to the hospital for treatment.
Instead PW-3
father of the deceased went to lodge a report with the police leaving the
injured in a hapless condition on the spot where he was lying only to wait
till 10.00 p.m. at night for the police to arrive.
If the prosecution
version is correct, it is only after instructions were given by the Sub-
Inspector to PW-1 to untie the hands of Basavaraj that he does so. The
injured Basavaraj was then put in the police Jeep for being taken to the
hospital where he reached only after he had died.
The Trial Court found
the story, the sequence of events and the conduct of the prosecution
witnesses who claim to be eye witnesses to the incident to be wholly
unnatural and unreliable.
The Trial Court was, in our opinion perfectly
justified in taking that view.
The conduct of the prosecution witnesses
does not inspire confidence not only because they did not intervene when
Basavaraj was being assaulted but also because post the event, the
witnesses did practically nothing to help the unfortunate soul, who was
left to die with his hands tied for over 4 hours without any succor coming
from any quarter.
The High Court has made light of these aspects and
thereby fallen in an error.
What makes the entire story unacceptable
is that the mother PW-4 and the son PW-1 wait till 10.00 p.m. when the
police arrive to untie the hands of the deceased.
That is not all.
After
the police arrived, PW-1 presents a written complaint about the incident.
His statement (fardbeyan) is recorded by the Sub-Inspector in which
Basavaraj is said to have died, meaning thereby that Basavaraj was not
alive when the police reached the spot.
What is amazing is the admission
made by PW-19 that the report received by him about the incident was
destroyed by him after the fardbeyan of PW-1 was recorded on the spot.
This
implies that the first version regarding the incident was totally
obliterated by the Investigating Officer and Exb. P-1 recorded in its
place. It is difficult to appreciate how PW-19 could have destroyed the
original complaint given to him by Hanumantha PW-1.
This implies that the
earliest version about the incident was destroyed by PW-19 and a new story
stated in the fardbeyan was tailored to suit the prosecution version. This
has the effect of completely demolishing the prosecution case and rendering
its version wholly unacceptable.
The only inference which can, in the
circumstances, be drawn is that Basavaraj was done to death and his dead
body left at the spot from where it was picked-up by the police after they
arrived around 10.00 p.m.
The complaint presented to Sub-Inspector perhaps
did not say what the police intended to present as its case.
The same was,
therefore, destroyed and a new version brought in, according to which
Basavaraj was shown to be alive when the police reached the spot. The fact
of the matter, however, appears to be that Basavaraj was dead when his
brother, mother and father discovered the body, for otherwise there was no
question of the parents of the deceased and his brother leaving him alone
in the condition, which they are alleged to have done.
The conclusion drawn
by the Trial Court that the prosecution had not proved the charges against
the appellants beyond reasonable doubt, was, in our opinion, correct, no
matter the judgment and order is not as happily worded as it ought to be,
especially coming from a senior judicial officer of the level of Additional
Sessions Judge.
Inasmuch as the High Court has overlooked all these
aspects, we are constrained to set aside the order passed by it and acquit
the appellants of the charges framed against them.
We, accordingly, allow
this appeal, set aside the judgment and order passed by the High Court and
acquit the appellants of the charges framed against them. The appellants
shall be released from custody forthwith if not required in connection with
any other case.-2015 S.C.MSKLAWREPORTS
