Bhimappa vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.

The facts of the case are that the complainant Yamanappa Basappa Muttagi who had in his complaint before the Hungund Police Station dated 26.4.2010 at about 12.15 p.m. had stated that he was a resident of Wargodadinni village along with his wife, children and mother and he was carrying on agricultural operations. One Shivappa Saidappa Mankani was an agricultural labourer who was residing in his house and his children were residing in the house of his father-in-law and mother-in-law at Balakaldinni village, since his wife was no more. On 25.4.2010, it transpires that Shivappa who has in the complainant''s land harvesting groundnut and onion, had come home at about 6.00 a.m., on 26.4.2010 and after completing his morning chores at the house of the complainant had again gone back to the fields of the complainant.

On the same day, the complainant is said to have gone to Ganjihal village on private work and at about 10-15 a.m. he is said to have received a telephone call from his son, to the effect that Shivappa had been killed on their land. The complainant immediately is said to have rushed back to his land and found that Shivappa was lying on his face, that he had been attacked with some weapon and he had suffered injuries on the backside of his neck, head, left forearm, and his back. His left hand fingers were cut off. On enquiry the son told him that he was informed of the death of Shivappa by Yallavva Madar and her son Yallappa Madar who were said to have been returning from the land of the complainant and that they had seen the dead body of Shivappa lying there.

On the basis of the complaint, a case was registered in Crime No. 56/2010 and after further investigation it was found that the motive for the murder was that Bhimanna Nandikeshwar a resident of Khajgal village suspected that the deceased was having an affair with his wife and this had been intimated to PW.12 Tippanna Koppad, of Bhimanna warning the deceased that if he continued to have any affair with his wife, he would be killed. Similarly PW.9, Shivaputrappa, had heard the accused Bhimanna say that the deceased was having an affair with his wife and he would be killed if he continued to have the relationship with his wife. On the basis of this circumstance having been discovered and on further investigation, the accused was arrested and produced before the Judicial Magistrate First Class, who had taken cognizance and on finding that the allegations involved were exclusively triable by the Court of Sessions, the case had been committed to the Court of Sessions. Thereafter on further proceedings charges were framed against the accused for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ''IPC for brevity), the accused had pleaded not guilty and claimed to be tried. The prosecution had then examined 18 witnesses and marked several exhibits and material objects. The accused was examined and his statement under Section 313 of the Code of Criminal Procedure, 1973 was recorded and the accused had denied the incriminating evidence said to be appearing against him.

The Court below had then framed the points for consideration and held the same in the affirmative and convicted the accused and sentenced him to life imprisonment and to pay a fine of Rs. 2,000/- and in default to pay fine, to further undergo Simple Imprisonment for a period of three months. It is that judgment which is under challenge in the present appeal.

The learned counsel for the appellant contends that of the 18 prosecution witnesses, PW.2 is the only alleged eye witness to the incident and his evidence is not trustworthy, since his evidence is full of contradictions and omissions and therefore is not consistent with the case of the prosecution. It is further pointed out that during the course of investigation, PW.2 himself was a suspect and he was arrested and interrogated by the Investigating Officer. This was in fact admitted by PW.2 in the course of his evidence and therefore at the instigation of certain persons, PW.2 has been foisted as an eye witness only to implicate and frame the accused/appellant and therefore there has been a serious miscarriage of justice.

It is pointed out, that according to PW.2 he was grazing sheep in the land of one Basappa Muttagi which is close to the place of the incident and there was a bund between the land in which incident is said to have occurred and the land in which he was grazing his sheep which is clearly admitted by PW.2 in his cross examination. This has been glossed over by the Court below. Further the evidence of PW.2 would indicate that the incident had occurred at about 8.30 p.m. on 26.4.2010 but he has disclosed it at about 1.00 p.m. before the police. There is no indication as to why he did not disclose the same before the police or anybody else, which are aspects which the Court below has completely overlooked. The evidence of the said witness was not trustworthy and further it is pointed out that PW.2 in his examination-in-chief has stated as regards the weapon used by the accused was similar to the material object No. 8 i.e., a chopper and he has hence not identified whether it was the same weapon which was used by the appellant in the commission of the alleged offence.

The learned counsel would also point out that PW.3 and the other witnesses who are examined to support the circumstances that it was the appellant who had committed the murder were tendering such evidence at the instance of PW.1. Their evidence could not have been accepted by the trial Court. This has also resulted in a miscarriage of justice. In this way the learned counsel for the appellant would seek to canvas other grounds raised. However, the above are the primary grounds on which the learned counsel would seek to rest his case.

From the judgment of the Court below and the material on record available to us, it is seen that of the witnesses examined, it is PW.2 alone who is the sole eye witness to the incident of the appellant having committed the murder of the deceased. Insofar as the motive for commission of the offence of murder is concerned, PW.12 and PW.9 have indicated that though the deceased was a resident of Wargodadinni village, he was not residing there out of fear of the accused because he had repeatedly warned the deceased that if he continues to have an illicit relationship with his wife, he would ensure that he would be killed and it was for this reason that he was not residing at Wargodadinni village though his children were residing with his father-in-law and mother-in-law at the said village. Further, the circumstance that PW.2 had witnessed the incident cannot be disbelieved. The said witness had known the complainant, the accused and the deceased. He was a shepherd by avocation and he had known all these persons for over 40 years. Therefore, it was not demonstrated that he had any ill-will against the accused. He had a flock of 40 sheep and he was regularly grazing them in lands in the village after seeking the permission of the land owners. As on the date of the incident his flock was on the land of Basappa which is situated near the land of Yamanappa Muttagi and according to PW.2. On that day the deceased was sowing onion seeds on the land of the complainant and according to the witness he had seen Bhimappa come there and assault Shivappa with a chopper on the backside of his neck and also attacked him on the other parts of his body and that the accused had even noticed P.W.2 at the scene of the offence and he had warned him that he should not reveal this to anyone and it is out of fear of retaliation by the accused, that he had not disclosed the incident either to the complainant or to anyone else.

He had further indicated that the accused had come from the direction of the land of Hosamani and assaulted Shivappa and he went back the same way and when he was attacking the deceased, the clothes of the accused got blood stained. It is only later that he had mustered the courage to inform the complainant and the police. He had also identified the chopper MO.8, the blood stained clothes of the accused as MO.9 and MO.10. Though there was inconsistency as regards the time of incident as indicated by him, the trial Court had expressed that he was a shepherd and he was not known to be carrying a wrist watch. Therefore, inconsistency as regards the time of incident was not material. He had also admitted that in the course of investigation he was taken to the police station as a suspect of having committed the murder. But, however, it was elicited that he was an eye witness and not the person who had committed the offence.

On a close examination of the evidence of PW.2 the trial Court has rightly held that he was an independent person, who knew the accused as well as the deceased and the complainant for over 40 years and his evidence was natural and straight forward and that he withstood the cross examination at length and coupled with the material evidence to indicate that the accused was suspecting of the deceased having an affair with his wife and had been constantly threatening him of murder is also established and the fact that the recoveries were made from the accused of the blood stained clothes and the weapon with which the murder had been committed and the injuries found on the deceased was also capable of being caused by the said instrument, having been spoken to by the Medical Practitioner, who was examined as PW.17. The Court below having held that the prosecution had established its case beyond all reasonable doubt, cannot be faulted.

Insofar as the contentions raised by the learned counsel that of all the 18 witnesses, it is only PW.2 who had supported the case of the prosecution, cannot be denied. However, the veracity of the evidence of PW.2 as being a natural and true eye witness to the incident cannot be doubted. The circumstance that the Investigating Officer had not mentioned the statement made by PW.2 in the course of investigation in the remand application where the gist of the investigation up to the making of the remand application was required to be made, would reflect the incompetence of the Investigating Officer. It would not, however, dilute the case of the prosecution when it is supported by the independent evidence of PW.2 as well as other witnesses in support of the motive that is alleged. Hence, it cannot be said that it was fatal to the case of the prosecution, of the Investigating Officer not having indicated the statement of PW.2 having been recorded.

The other contentions as regards the inconsistency sought to be pointed out, of the time mentioned by PW.2 being inaccurate and inconsistent, as rightly pointed by the trial Court, PW.2 was a man of humble origins and he was a shepherd and any inconsistency as regards the time of the day as to the incident is not very material and the further doubt expressed as regards the nature of the weapon that is used and whether it was such as M.O.8 is also not a material contention, that would go to the root of the matter. It is unfair on the part of the learned counsel to characterise the reasoning of the learned Sessions Judge as being mechanical in analysing the evidence on record. There is no fault to be found in the reconstruction of the sequence of events, the motive for the murder and the actual commission of the offence as evidenced by the testimony of PW.2, which is certainly acceptable and trustworthy. Hence, there is no substance in this appeal. The appeal is dismissed.