Basappa Irappa Akki vs State of Karnataka

G.B. Pattanaik and Doraiswamy Raju, JJ.—The Appellant, who was charged and tried for having committed an offence u/s 302/149, I.P.C. had been acquitted by the learned Sessions Judge. Said order of acquittal having been assailed by the State Government by preferring an appeal, the High Court by the impugned judgment set aside the order of acquittal and convicted the Appellant u/s 304, Part 1, and sentenced to rigorous imprisonment for 2 years and fine of Rs. 10,000. It is this conviction and sentence passed by the High Court, which is the subject-matter of challenge in the present appeal. The prosecution case in nutshell, is that there was some land dispute between the complainant and the accused persons, and on 15th of March, 1990 at 10 a.m. when P.W.7, the son of the deceased was taking his bullock towards his land, the accused Appellant and his son, who being a juvenile accused, were coming on bullock cart from the opposite direction, and the accused threatened P.W.7 by means of an axe. P.W. 7 returned home and informed about the incident to his father. At 11 a.m. while the accused and his son were passing by the house of the deceased, the deceased asked as to why he was brandishing his axe, and on this score, the son of the accused became wild, and jumped from the bullock cart and grappled the deceased. The accused, who was also there, immediately got down with an axe in his hand and dealt a blow on the neck of the deceased. P.W.1, the wife of the deceased rushed to rescue her husband, but she was prevented. P.W.1, however, escaped and kept herself, behind the accused. The accused after assaulting the deceased left the scene of occurrence. P.W.1 then lodged a report at the Police Station at 1.30 p.m., and on the basis of the said report, the police started investigation, and ultimately, submitted the charge-sheet. On being committed, the accused stood his trial. The prosecution has examined 8 eye-witnesses in the occurrence, namely, P. Ws.1 to 6, 8 and 12, P. Ws. 2 to 5 and 12, however, did not support the prosecution case during the trial. The learned Sessions Judge considered the reliability of the rest of the 3 eye-witnesses, P. Ws. 1, 6 and 8. After discussing the evidence of P. Ws. 1, 6 and 8, the Sessions Judge came to the conclusion that P. Ws. 6 and 8 cannot be relied upon. So far as P.W.1''s evidence, the learned Sessions Judge, no doubt, held that she has given a consistent version, but taking into consideration several other circumstances appearing in the case, the Sessions Judge, ultimately, came to the conclusion that it would be unsafe to base a conviction relying upon the said testimony of P.W.1, and therefore, it must be held that the prosecution has failed to establish its case beyond reasonable doubt. With this conclusion, the learned Sessions Judge acquitted the accused Appellant. On appeal, the High Court, instead of discussing the evidence of P. Ws.1, 6 and 8, and without coming to the conclusion as to whether they would be reliable or not, jumped to the conclusion that there is no dispute of the fact that the accused was involved in the incident. Having given aforesaid finding for which there is no basis, High Court then further considered the matter, and came to the conclusion that the conviction should be one u/s 304, Part I, and accordingly, convicted the Appellant u/s 304, Part I, and sentenced him to rigorous imprisonment for 2 years and to pay fine of Rs. 10,000.

The learned Counsel for the Appellant contended that the High Court, while exercising its power against an order of acquittal, is duty bound to examine the reasons advanced by the learned Sessions Judge in acquitting the accused, and the same not having been done, the impugned judgment cannot be sustained. He, further, contended that in any view of the matter, the High Court not having considered the reliability of evidence of P. Ws. 1, 6 and 8, was not entitled to interfere with an order of acquittal, and in coming to the conclusion that the incident as narrated by the prosecution witness can be said to have been established, we find sufficient force in the aforesaid contention. On scrutiny of the impugned judgment of the High Court, we find that the High Court has not considered the evidence of P. Ws.1, 6 and 8 nor has it considered the reasons advanced by the Sessions Judge in disbelieving P. Ws. 6 and 8 as well as the other circumstances on which the Sessions Judge thought it not safe to rely upon the testimony of P.W. 1. In that view of the matter, the conclusion of the High Court in the impugned judgment cannot be sustained. We, accordingly, set aside the impugned judgment of the High Court, and uphold the order of acquittal recorded by the Sessions Judge. The appeal is allowed. The accused Appellant be set at liberty forthwith.