ABDUL RAZAK & ORS Vs. THE STATE OF KARNATAKA R/BY SHO,HUTTI PS

Supreme Court of India (Full Bench (FB)- Three Judge)

0000 of 2015, Judgment Date: May 15, 2015

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2015
(Arising out of SLP (Crl.) No.9321 of 2013)

Abdul Razak & Ors. …Appellants

Vs.

The State of Karnataka Rep. By
SHO, Hutti PS …Respondent

WITH
CRIMINAL APPEAL NO. OF 2015
(Arising out of SLP (Crl.) No.9420 of 2013)
Muktumsab …Appellant

Vs.

State of Karnataka & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. These appeals by special leave call in question a judgment and order
dated 19th November, 2012 passed by the High Court of Karnataka at Gulbarga
whereby Criminal Appeal No.1926 of 2007 has been allowed, judgment and
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.

3. The prosecution case in brief is that three years before the date of
incident CW-11 Md. Shafi sold two acres of land to CW-2 Lingappa. The
accused-appellants herein were upset by the said sale transaction and are
alleged to be picking up quarrels with CW-2 besides causing obstruction in
the free flow of water to the fields owned by the complainant from a
distributory at Narayanapur. The appellants are alleged to be insisting
that they will let water for irrigation flow only if the land purchased by
the complainant was transferred in their favour. Lingappa was on that count
coerced to sell the said two acres of land purchased from Mohd. Sahfi to
accused-Abdul Razak. Despite this, however, the obstruction in the flow of
water continued as the appellants started demanding money for letting the
water flow. It was in the above background that on 19th September, 2006 at
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.
4. A charge-sheet, after completion of investigation, was filed against
the appellants before the jurisdictional Court for their committal. The
appellants pleaded not guilty before the Additional Sessions Judge, Fast
Track Court-II, Raichur, to whom the case was made over for trial. At the
trial the prosecution examined as many as 22 witnesses besides placing
reliance upon several documents produced on its behalf.

5. In their statements under Section 313 Cr.P.C., the appellants denied
the incriminating circumstances appearing against them, but led no evidence
in their defence. 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.

6. We have heard learned counsel for the parties who have taken us
through the orders passed by the courts below.

7. 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.
8. In his deposition before the Trial Court PW-1 refers to the purchase
of land and resultant enmity between the appellants and the complainant
party. He also refers to the dispute regarding the irrigation channel and
the civil litigation between the two sides before the Sindhanaur Court.
According to the witness, on the fateful day the deceased-Basavaraj had
gone to a restaurant (dhaba) owned by PW-6 Basappa. At about 6.00 p.m. he
heard Basavaraj shouting for help whereupon he and his mother PW-4 rushed
towards the land of one Swami from where they saw Pathe Sab (A-3) throwing
chilly powder towards Basavaraj whose hands had been tied behind his back.
He also saw A-3 assaulting deceased-Basavaraj on the head and A-2 and A-4
also doing so with a stick and stone. 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.

9. The Trial Court appraised the version given by the two witnesses but
came to the conclusion that the same was unreliable. The Trial Court gave
more than one reason for its view. 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.
10. Although the accused have alleged that Hanumantha PW-1 who had a
dispute over money and land with the deceased was actually responsible for
causing the injuries sustained by him, yet even assuming that there was no
such bad blood between the two brothers, both PW-1 and his mother PW-4
would have in the ordinary course rushed to intervene to save the deceased
from being belaboured. No such attempt was made by any one of them nor
even by PW-5 who happens to be chance witness. So much so, they do not
make any attempt to help the injured after the alleged assailants had fled
from the spot. It is most unnatural for PW-4 mother and PW-1 brother of
the deceased to return home leaving the injured in a hapless condition with
his hands tied behind his back. Equally unnatural is the conduct of the
father of the deceased who along with PW-1 and PW-4 came to the spot where
the deceased was lying injured but did nothing to help him. Instead, PW-4
the father of the deceased leaves the deceased in a critical condition to
report the matter to the police. 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.
………………………………….…..…J.
(T.S. THAKUR)

………………………………….…..…J.
(R.K. AGRAWAL)

…………………………..………...J.
(ADARSH KUMAR GOEL)
New Delhi
May 15, 2015

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