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