Dasara Jayanna and Others vs The State of Karnataka

Anand Byrareddy, J—Heard the learned counsel for the appellants who are the accused before the trial Court and were accused of offences punishable under Section 302 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC'' for brevity) along with other offences punishable under Sections 143, 147, 148, 120-B read with Section 149 of the IPC.

It was the case of the prosecution that the complainant Kumari. Annapurna, daughter of Sahukara Somanna and a resident of K. Dibbadahalli, Kudligi taluk had lodged a complaint before the Police Sub-Inspector, Gudekote Police Station to the effect that she was the daughter of Sahukara Somanna. One Jayanna-accused No. 1 and his wife Lakshmakka-accused No. 2, were employed by Sahukara Somanna about four years prior to the incident and it transpires that they were agricultural labourers and were also cultivating the land belonging to Sahukara Somanna on crop sharing basis but thereafter they had discontinued their relationship.

It transpires that the complainant, her mother and her uncle, heard rumours in the village of an illicit relationship between Sahukara Somanna and Lakshmakka. It further transpires that PW-2 - Rudramma and PW-3 - Girisha had accosted him in that regard but Sahukara Somanna had denied any such relationship. However, about ten months prior to the incident while Sahukara Somanna was passing in front of the house of accused No. 1, it transpires that accused No. 1 and his brother had picked up a quarrel and had assaulted him and had questioned as to why he was loitering around their house. Sahukara Somanna had lodged a complaint in the Gudekote police station in that regard.

It is in this background that it transpires that on 04.09.2010 at about 4 a.m. when the complainant and her mother were sleeping, she heard her father moving out of the house and he had then informed her that he was going out into the open to defecate, as was his practice. But, since the complainant noticed that he did not return for quite a while and therefore, the complainant was apprehensive and woke up her mother and PW-3 and they had gone in search of Sahukara Somanna and it was claimed that Sahukara Somanna was found tied to a coconut tree in front of the house of accused No. 1 and accused No. 1 was seen to be assaulting Sahukara Somanna with a boulder and accused No. 3 was also assaulting her father on his chest with a stone and accused No. 4 was wielding a club and was striking her father over his face and fore head and accused Nos. 5 to 7, namely, Thimmanna, Lokesh and Kallesh, respectively, were assaulting her father with stones. They continued to view the continuous assault by all the accused, till her father lost conscious and had fallen to the ground, on which the complainant and her mother are said to have raised a hue and cry and called upon the accused to desist from doing any further harm to Somanna. CW-19 Harijana Channanna and CW-12 one Maranna both of whom were not examined and CW-10 Shantamma, PW-10 Parvathamma and CW-11 Ginnanna Channakka who were present at the spot and had directly witnessed the attack on Sahukara Somanna, however, were not examined at the trial except for PW-10 who also was treated as a hostile witness in the course of the evidence. It transpires that after attack on Sahukara Somanna, the accused are said to have fled from the spot noticing that he may be dead. It is after ascertaining that Sahukara Somanna was in fact dead on account of the several severe injuries that he had suffered, the complainant had rushed to the police station seeking that action be taken against accused Nos. 1 to 7 in having caused the death of her father by assaulting him with stones and on the allegation that he was having an illicit affair with accused No. 2.

On the basis of the complaint, the Police Sub-Inspector, who was examined as PW-19, had registered a case in Cr. No. 47/2010 for the offences punishable under several provisions referred to hereinabove and had dispatched the FIR to the competent court and his higher authorities. The further investigation was handed over to PW-22, one S.D. Biradar, Police Circle Inspector, on 04.09.2010. Immediately on receiving the message of the murder of Sahukara Somanna he had, in turn, visited the spot and verified the FIR and obtained photographs of the deceased as well as the scene of crime and had prepared a rough sketch. Thereafter, an inquest was conducted in the presence of panch witnesses. The dead body was sent for post mortem examination and a spot mahazar was drawn up and several material objects were seized. The statements of several witnesses were recorded.

After further investigation accused No. 3 to 7 were arrested on 08.11.2010, and their voluntary statements were recorded. They were produced before the Magistrate and after completion of the investigation they were charge-sheeted for the offences punishable under Sections 143, 147, 148, 120B, 342 and 302 read with Section 149 of the I.P.C. on 25.11.2010. They were produced before the Magistrate and remanded to judicial custody from time to time. After filing of the charge sheet, the Magistrate on taking cognizance, had registered a Criminal Case in C.C. No. 976/2010 against all the accused. Thereafter the case was committed to the Court of Sessions and accused No. 5 to 7 were released on bail on 22.01.2011. The Principal District and Sessions Judge after receipt of the records had registered a case in S.C. No. 40/2011 and had made over the same to the Fast Track Court for disposal. The Fast Track Court on production of the accused had released accused No. 5 to 7 on bail and this Court had released accused No. 3 and 4 on bail on 25.04.2011. Thereafter the Court below had framed charges for the aforesaid offences. The accused having denied the incriminating evidence tendered before them and having claimed to be tried, the prosecution had examined 22 witnesses as P.Ws. 1 to 22 and had got marked several exhibits, namely, Exs.P-1 to 17 and material objects at M.O. No. 1 to 12. The accused did not choose to tender any evidence. The Court below had framed the following points for consideration:

Whether the prosecution proves that deceased K. Sahukara Somanna met with homicidal death as on 04.09.2010?

Whether the prosecution proves beyond all reasonable doubt that the accused No. 1 to 7 on 04.09.2010 early in the morning at 5.00 a.m., in front of the house of accused No. 1 at K. Dibbadahalli village, were the members of an unlawful assembly, the common object of which was to murder Sahukar Somanna due to his illicit affair with accused No. 2 and thereby committed an offence punishable under Section 143 read with Section 149 of I.P.C.?

Whether the prosecution further proves beyond all reasonable doubt that the accused herein on the aforesaid date, time and place, being members of an unlawful assembly, in prosecution of common object of their unlawful assembly used force or violence against Sahukara Somanna and thereby committed an offence punishable under Section 147 read with Section 149 of I.P.C.?

Whether the prosecution further proves beyond all reasonable doubt that the accused herein on the aforesaid date, time and place, being members of an unlawful assembly, in prosecution of common object of their unlawful assembly armed with deadly weapon like stones and sticks likely to cause death thereby committed an offence punishable under Section 148 read with Section 149 of I.P.C?

Whether the prosecution further proves beyond all reasonable doubt that the accused herein on the aforesaid date, time and place, agreed to murder Sahukara Somanna, due to his illicit affair with accused No. 2 an illegal act and in pursuance to such agreement tied the said Somanna with rope to the coconut tree and caused his death by assaulting with stones, and sticks thereby committed an offence punishable under Section 120B read with Section 149 of I.P.C.?

Whether the prosecution further proves beyond all reasonable doubt that the accused herein on the aforesaid date, time and place, being members of an unlawful assembly, in prosecution of common object of their unlawful assembly did commit murder by intentionally causing death of Sahukara Somanna and thereby committed an offence punishable under Section 302 read with Section 149 of I.P.C.?

What Order?

The court below had answered all the points in the affirmative and ultimately convicted and sentenced the accused for the offences punishable under Sections 143, 147, 148, 120B and 302 read with Section 149 of the I.P.C. to suffer imprisonment for life and also to pay fine of Rs. 2,000/-, and accused No. 1 to 7 were sentenced to suffer imprisonment for life and also to pay a fine of Rs. 1,000/- each for the offence punishable under Section 120B read with Section 149 of I.P.C., and also simple imprisonment for six months for the offence punishable under Section 143 read with Section 149 of I.P.C., and simple imprisonment for two years for the offence punishable under Section 147 read with Section 149 of I.P.C., and simple imprisonment for three years for the offence punishable under Section 148 read with Section 149 of I.P.C. The sentence of imprisonment was to run concurrently. Apart from other incidental observations, as to the period of detention spent by the accused in judicial custody to be taken into consideration, etc. It is that which is under challenge in the present appeal.

The learned counsel for appellants would point out that there are five eye-witnesses whose evidence has been tendered in support of the charges by the prosecution. The complainant and her mother as well as the complainant''s uncle were examined as P.Ws. 1, 2 and 3 respectively, and two other witnesses, who are said to be independent witnesses were P.Ws. 4 and 14. Though P.W.5 had also claimed to have heard about the accused assaulting the deceased, the other witnesses, namely, P.Ws. 8 to 11, were recorded as eye-witnesses were however, treated as hostile witnesses. Therefore, the learned counsel would point out that it is only the evidence of the five witnesses, namely, P.Ws. 1 to 3, 4 and 14, whose evidence is sought to be relied upon in seeking to bring home the charges against the accused. It is pointed out that there are various inconsistencies in the evidence of these witnesses, which could not have been reconciled by the court below. Further there are circumstances, which are apparently inconsistent and are not explained by these witnesses thereby leading to a serious doubt as to whether the case set up by the prosecution could be accepted at all. Let alone the case of the prosecution being established beyond all reasonable doubt.

It is firstly demonstrated that according to P.W.1, the complainant, her father, left home at 4.00 a.m. and that she had grown anxious on her father not having returned even after half an hour, as was his usual practice. Therefore, she had woken up her mother and her uncle, and all three of them had rushed to find out that her father was being assaulted. The time as stated by the very witness was around 4.30 a.m., when all of them found that the deceased Somanna was tied to a coconut tree and the pole of an animal shelter and that he was being assaulted brutally by all the accused with stones and sticks on all parts of his body and that he was profusely bleeding on account of injuries caused. Thereafter the accused are said to have left him unconscious and for dead and fled from the place. There is no indication of the complainant, her mother or the complainant''s uncle having intervened and trying to stop the continued assault by the accused. It was further claimed by the complainant that people had gathered by then and there were 10-15 people, who all stood by and watched the brutal assault. This is stated as if it was broad day light and that she could witness the actual commission of the crime and she could notice the identity of not only the accused, and also her father but also other people, who were present. This becomes unbelievable as it is not consistent with the statements of other witnesses, namely, her mother. In that, the evidence of P.W.2 was further exaggerated in claiming that there were a 100 people, who had gathered around the scene. It was at dawn that the incident had occurred, where hardly any person would be around unless by virtue of commotion, the people could reach there. It was not an assault which took place for a long time for people to gather and witness the assault. Even if such people had witnessed the assault, none of their statements had been recorded except for some witnesses, who were not examined before the court. The others, namely, P.W.8 to 11 had turned hostile.

Therefore, the learned counsel would submit that P.W.2, who was the wife of deceased Somanna had stated in her evidence that the assault took place for more than half an hour and she never took any step to intervene or to seek the assistance of others in preventing such assault.

It is contended that P.W.3, in turn, who was the younger brother of the deceased had also stated in his evidence that the assault took place atleast for 10 minutes and he never sought to intervene, nor did he seek the assistance of other villagers in preventing further assault. This was indeed uncommon behaviour on the part of P.Ws. 1 to 3, who were the daughter, widow and brother of the deceased.

Insofar as P.W.14 is concerned, in her evidence she had stated that she was as usual going to an open area to defecate carrying a vessel of water and when she came upon the scene of offence she found that the accused had tied Somanna to a tree and accused No. 1 to 7 were assaulting him and she had stood by and watched them for some time and then moved on. She had not stated about the several people being present at the scene of offence apart from deceased and she has not mentioned of any persons being present there, apart from the accused and deceased, and not even P.Ws. 1 to 3 or the several dozens of people, who were claimed to have been standing at the scene of the crime, even as it was taking place, as stated by P.W.13. She had further stated that after finishing her work she had come back to see that Somanna was dead and there were people milling around and many people had gathered. Beyond this she had not stated any further details.

The learned counsel would submit that, it is curious that the said witness was able to identify all the accused, who were said to be assaulting the deceased, and at that point of time when there was no sufficient light where she would recognise all the accused even if she could have vaguely recognised one or two persons, it is impossible for her to remember all the seven accused persons and to have named them.

Yet another circumstance which the learned counsel seeks to highlight is the fact that, the complainant has stated that the tree to which the deceased was tied up was beyond a live fence consisting of thorny bushes and other materials, thereby rendering it difficult for her to witness the scene at all. In cross-examination she has admitted that if one stands on one side of the fence, it was not possible to look at what was happening beyond the fence. Admittedly the deceased was tied to a tree, which was beyond the fence and this again renders the story putforth by P.W.4 as doubtful and that she also would have been prevented from viewing the scene standing at 15 feet away from the fence. Hence, there is a serious infirmity in the manner in which the incident is said to have occurred and in linking the accused to the incident.

Insofar as P.W.4 is concerned, though he was fielded by the prosecution as an eye-witness he has been treated as a hostile witness. Therefore, the evidence of P.W.4 is of little substance.

One other serious infirmity which the learned counsel seeks to point out is the sequence of events, as claimed by the complainant, namely, that she had immediately on noticing that her father was dead after the assault, she had rushed to the police station when the time was around 7.00 a.m. and according to her the Police Sub-Inspector was not present in the Station House and she had to wait for him till he came to the Station House at 9.00 a.m. Whereas, the Station House Officer, who had received the complaint from her has stated that P.W.1 came to the police station at 9.00 a.m. and not at 7.00 a.m., as claimed by her. And that she had given a written complaint, when the complainant had stated that she had orally stated the complaint and requested the Station House Officer to take action. Hence, there is a serious discrepancy which would be fatal to the case of the prosecution. He would further point out that even according to the Station House Officer, the complaint was lodged at 9.00 a.m. There is no explanation forthcoming for the complaint being placed before the Magistrate at 5.00 p.m. when the distance from the Station House to the Court was only 12 kms. and the village was well connected with transport facilities and the Station House Officer himself had his own mode of transport. Hence, would contend that there are a catena of decisions, in which it has been well settled that discrepancies such as the ones found in the present case on hand would be fatal to the case of prosecution and cites several decisions including the judgment in Motilal and Another Vs. State of Rajasthan, AIR 2009 SC 2790 : (2009) CriLJ 3971 : (2009) 8 JT 64 : (2009) 9 SCALE 1 : (2009) 7 SCC 454 : (2009) 8 SCR 303 : (2009) AIRSCW 4226 , where under identical circumstances when there was a delay in sending the report to the Magistrate and the delay not having been explained, as to the reasons why it was delayed, apart from there being discrepancy as to the time of lodging the First Information Report and the conduct of inquest report, the Supreme Court had taken a view that the prosecution case would fail and such discrepancies would be fatal to the case.

Similarly, in the present case on hand the total inconsistency of the eye-witnesses and the witnesses having actually being present at the scene and having witnessed the assault becomes doubtful, given the admitted conduct on their part.

Secondly, the evidence of several eye-witnesses is not consistent and cannot be readily accepted, in which event, it is not possible for the court below to have held that the charges against the accused were proved beyond all reasonable doubt.

The learned counsel would seek to urge other grounds in support of his case. However, the above grounds are the primary contentions taken by the learned counsel for the appellants.

The learned Additional State Public Prosecutor seeks to justify the judgment of the court below and insofar as the inconsistencies sought to be highlighted as to the evidence of several eye witnesses is concerned, he would submit that there is likely to be a slight variation in the narration of the actual sequence of events, by each witness. This itself would indicate that they were not tutored to narrate the same facts parrot like and this would give it a ring of truth as to the actual incident having taken place. Mere inaction on the part of the complainant, her mother and uncle, cannot be taken as unbelievable. For human reaction to an incident cannot be uniformly the same. The fact that there were seven armed men attacking Somanna and the fact that he was a known womaniser, who was having affairs with several women and P.W.2, the wife of Somanna herself having stated that people were disgusted with her husband on account of his conduct etc., would hardly be motivated to intervene and protect him when there were seven armed men attacking him. Therefore, out of sheer shock and horror the said witnesses being immobilised, cannot be ruled out. Therefore, this cannot be said to be fatal to the case of the prosecution nor any such discrepancies pointed out be taken a serious flaw in the case of the prosecution.

The independent witness P.W.14 having stated in a straight forward manner that she was passing by when she saw the seven accused attacking Somanna and that she moved on without awaiting the result and that it was only when she came back that she noticed that Somanna was dead and that there were several villagers standing, has an authentic ring to it. Even if the evidence of P.Ws. 1 to 3 is discarded, the prosecution has brought home the charges against the accused on the strength of the evidence of this witness alone. The fact that she has not stated as to P.Ws. 1 to 3 or other people being present, at the scene is possibly on account of she having come there first and then having moved on, before P.Ws. 1 to 3 and others gathered there. This again cannot be said to be discrepancy, which ought to be discarded as being not believable or being inconsistent with the evidence of other witnesses.

He would further submit that the delay in filing the First Information Report before the Court of Magistrate is not fatal to the case on hand. The Station House Officer had several duties to perform before he could complete the report and place it before the Court of Magistrate. The mere fact that the distance was only 12 kms. from the Station House to the Court is not a material circumstance, which required a detailed explanation. Insofar as the alleged delay in filing the First Information Report was never confronted to the Station House Officer when he was examined as a witness. He would further point out that there is no dispute of a homicidal death having occurred and that the victim had suffered several serious injuries, which according to the Medical Practitioner, who had submitted his Post Mortem report and also tendered evidence before the Court, has confirmed that these injuries were caused with the weapons like stones and sticks and that the cause of death was because of those injuries. Therefore, the narration of the incident and the manner in which the deceased was attacked is fortified by the Medical Practitioner''s evidence and fortified by the evidence of P.Ws. 1 to 3 and 14 as to the manner in which the assault had taken place and all the accused having caused the same, he would, hence, submit that the primary grounds urged in the appeal are not relevant and would have to be negated. He would submit, the brutal commission of offence, no matter the character of the deceased, would not absolve the accused of the crime and that the Court below having convicted them on all counts is justified, and hence, seeks dismissal of the appeal.

In the light of the above contentions, insofar as the appreciation of the evidence of the four eye-witnesses, who have spoken about the commission of the offence by the accused and the manner in which the deceased was assaulted, if viewed dispassionately, it does create a doubt as to the sequence of events being placed in their correct perspective.

The claim of the complainant that her father as usual, woke up at 4.00 a.m. and was found leaving the house and that he had informed her that he was going out to an open area to defecate and he did not return within half an hour. Therefore, the fact that he did not return within half an hour would in the normal course cause worry and it would not be expected that the entire family should rush out and search for the man. In the circumstances, it cannot be readily accepted.

Further, P.W.2 in her evidence has stated that accused No. 2 came near their house at about 3.00 a.m. and she was calling out to her husband deceased Somanna, and informing him that her husband was out of station. And that P.W.2 had taken exception and had therefore scolded her and asked her to go away from the house, is an embellishment to the case of the prosecution. It would not be expected that even if accused No. 2 was having an affair with the deceased, she would not come to his house and call him out at 3.00 a.m. in the presence of his wife, daughter and brother. This again is an exaggeration, which cannot be readily accepted.

Further the claim that all the three, namely, P.Ws. 1 to 3 had rushed to the house of accused No. 1 and found Somanna being beaten up with stones and sticks while he was tied to a tree and they could readily identify the accused and stood at a distance and waited for a period ranging from 10 minutes to 30 minutes, as stated by the several witnesses, is again not capable of being reconciled. The further fact that there were several people gathered around and they were all witnesses to the scene without anybody seeking to intervene is again a circumstance, which cannot be readily accepted, when there is no indication of any of those statements of the witnesses having been recorded and in the first instance even if the statements of several witnesses are recorded, it is noticed that only some of them have been examined as witnesses and who, in turn, have been treated as hostile witnesses. Therefore, there is little to support the evidence of P.Ws. 1 to 3.

Added to this, P.W.1 has admitted there was a live fence consisting of thorny bushes and other material, which was intervening between the scene of crime and from the place where she stood. Therefore, she did not have a clear view of the commission of offence and when the incident has occurred at a time when there was faint light or it was even possible that there was no light at all, it is indeed curious that she was able to identify all the seven accused and the manner in which they were assaulting her father. The same would apply insofar as P.Ws. 2 and 3 are concerned, the lack of light and the clear visibility of the commission of crime from the place where they stood, creates a serious doubt that they did in fact come upon the scene of offence and witnessed the incident. Though there is some element of truth, apparently from the evidence of P.W.14 the fact that she stood at a distance of 15 feet claims to have recognised all the seven accused, who were assaulting Somanna becomes doubtful for the lack of light and at that point of time she having remained without any reaction on noticing that the victim was Somanna and she not having thought it fit to atleast go to their home and inform the complainant or her mother about the assault taking place, is indeed strange. She has quietly gone about her duty without bothering to enquire or even seek somebody''s assistance in protecting the deceased, no matter that he may have been of a loose character.

Further, insofar as the discrepancies as regards lodging of the First Information Report and the delay in submitting the same before the Court of Magistrate is concerned, here again there are serious infirmities, which cannot be reconciled. In that, the complainant claims to have gone to the police station at 7.00 a.m. and has also stated that at 7.30 a.m. she had been to the Station House to lodge the complaint and she found that Station House Officer was not present and she had to wait for him till 9.00 a.m. to lodge the complaint is not consistent with the evidence of the Station House Officer himself, P.W.19, who has stated that he was in the Station House right from 7.00 a.m. onwards.

Secondly, the further serious discrepancy is the claim by the complainant that she had made an oral complaint to the Station House Officer, whereas the Station House Officer has stated that she had made a written complaint. This is again a serious discrepancy for which there is no explanation forthcoming and it creates a serious doubt of the manner in which the incident had taken place and the veracity of the complaint as well as the details contained therein. This leads to serious suspicion as to whether the prosecution case was tailored to bring home the charges against the accused.

The added circumstances that, there was a long delay of over 12 hours in the report being placed before the Judicial Magistrate would indeed be fatal to the case on hand, as laid down by the Supreme Court, including in the aforesaid decision in Motilal''s case supra. Therefore, on these primary contentions it can safely be said that the prosecution case would fail though the learned Additional State Public Prosecutor makes an effort to contend that notwithstanding the discrepancies and inconsistencies, the case of the prosecution has been established to bring home the charges, cannot be accepted as the burden of strict proof is not discharged and to convict the accused for the offence punishable under Section 302 of I.P.C. and to sentence them to life imprisonment requires better evidence than this and on the basis of such doubtful evidence the law does not permit conviction, which would result in a gross mis-carriage of justice.

The appeals are allowed. The judgment of conviction and the sentence passed by the Fast Track Court - III, Hospet in S.C. No. 40/2011 is set aside. The accused are acquitted.

The fine amount paid, if any, shall be refunded to the appellants.

The operative portion of the judgment shall be transmitted to the Jail authorities forthwith and the accused shall be set at liberty.