Mr. Aslam and Others vs State

K.N. Keshavanarayana, J.—This appeal is directed against the judgment and order dated 27.12.2006 passed by the Preceding Officer, Fast Track Court-IV, Mandya in S.C. No. 18/2005.

Appellants-1 to 4 were Accused Nos. 1, 2, 4 and 5 before the Trial Court. They along with two other persons were charge-sheeted for the offences punishable under Sections 143, 148, 302, 201 r/w. 149 of IPC on the allegation that, in the intervening night of 14th and 15th August 2004 the accused persons forming themselves into an unlawful assembly with a common object of committing murder of the deceased Prakash alias Hebbuli S/o. Sri. Nagaraju-PW. 1, and in furtherance of said common object, assaulted the said Prakash with clubs and wooden plank in front of the petty shops situated in the bus stand circle in Arkere Town, dragged him towards college and killed him, and thereby the accused persons have committed the aforesaid offences.

The accused persons pleaded not guilty for the charges levelled against them and claimed to be tried. The prosecution in order to bring home the guilt of the accused persons, examined P Ws. 1 to 24 and marked Exs. P1 to P22 and Mos. 1 to 5. The defence of the accused persons was one of total denial and that of false implication. The accused persons did not choose to lead any defence evidence.

The case against Accused No. 3 was spilt up as he was not available during the trial. After hearing both sides and on appreciation of the oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal convicted the Appellants/accused herein for the offences punishable under Sections 143, 148, 201 and 302 r/w 149 of IPC. However, Accused No. 6 was acquitted of the charges levelled against him. The convicted accused persons were sentenced to undergo imprisonment for life for the offence punishable u/s 302 r/w 149 IPC and for other offences they were separately sentenced and ordered to pay fine. Being aggrieved by the said judgment of conviction and order of sentence, the Appellants/Accused Nos. 1, 2, 4 & 5 are in appeal before this Court.

We have heard Sri. H. Maltesh, learned Counsel appearing for the Appellants/accused and Sri G.M. Srinvasa Reddy, learned HCGP appearing for the Respondent-State. We have perused the records, carefully scrutinized the evidence on record and read the judgment under appeal.

Learned Counsel for the Appellants submits that the judgment under appeal suffers from perversity and illegality inasmuch as the appreciation of the oral and documentary evidence by the learned Sessions Judge is erroneous. According to the learned Counsel, the only evidence on which reliance was placed by the Court below is the ocular evidence of PW.2 Smt. Mahadevamma and having regard to the nature of her evidence, the learned Counsel submits that her evidence does not inspire confidence of the Court on account of several improbabilities and incongruities in her evidence. It is his further submission that though the evidence placed by the prosecution on record does not satisfactorily establish the complicity of the accused persons for the death of the deceased, the learned Sessions Judge has recorded an erroneous judgment of conviction, as such, the judgment calls for interference by this Court.

On the other hand, learned High Court Government Pleader sought to justify the judgment of the Court below and contended that the learned Sessions Judge on proper appreciation of the oral and documentary evidence has recorded judgment of conviction and the judgment being sound and reasonable having regard to the evidence on record, it does not call for interference by this. Court. Therefore, he sought for dismissal of the appeal.

In the light of the above, the points that arise for our consideration in this appeal are.--

i) Whether the learned Sessions Judge is justified in convicting the Appellants/accused for all the charges levelled against them?

ii) Whether the judgment under appeal calls for interference by this Court?

The case of the prosecution in brief is that PW. 1 -Nagaraju is the father and PW.3-Jayasheela is the wife of the deceased Prakash. As per the evidence or record, PW. 1-Nagaraju was residing in a separate house in Arkere Town while the deceased and his wife Jayasheree (PW.3) along with their children were residing in Gareebi site in Arkere Village. Earlier there was a quarrel between accused persons on one hand and the deceased on the other hand and in that background, the accused persons were nursing ill-will against the deceased and they were waiting for an opportunity to kill him. On 14.08.2004 at about 11.00 or 11.30 a.m., the deceased left the house after having lunch stating that he would not go for work on that day. However, since he did not return home till 11.00 p.m. PW.3- along with her children after having dinner, slept in the house. At about 1.00 or 1.30 a.m., in the midnight. Accused Nos. 2 & 6 said to have come near the house of the deceased and after knocking at the door, woke up PW.3 and told her that some one has assaulted her husband and that her husband is lying with injuries. However, she did not open the door, therefore, they went back. Next day. i.e., on 15.01.2011 at about 9.00 or 9.30 a.m., she came to know about her husband lying dead near the college and guest house.

According to the case of the prosecution. PW.2- Mahadevamma, who was sleeping in the petty shop situated near the bus stand, on hearing some sounds of galata in front of her petty shop woke up and came out of the shop and saw all the accused quarrelling with the deceased and assaulting him with clubs. Thereafter, Accused No. 2-Mohan pulled out the wooden plank placed near her shop for sitting purpose in spite of her protest and with the said plank assaulted the deceased on the head and thereafter, they dragged the deceased towards college and thereafter, she went and slept in the shop. According to the case of the prosecution this incident of assault was witnessed by P Ws. 4 to 8. who were all sleeping in their respective petty shops situated near the bus stand. In the morning of 15.08.2004, PW. 1, the father of the deceased on coming to know of the death of his son lodged a complaint as per Ex. P. 1, based on which, the case was registered and investigation was taken up. During investigation inquest was held and thereafter, the dead body was subjected to autopsy. PW. 15- Dr. Puttaswamy, who conducted autopsy on the dead body opined that the death was due to respiratory failure on account of pressure with force on the chest by hard and blunt object with force. During Investigation, the investigating Officer apprehended the accused persons seized M Os. 1 in 5 at the instance? of accused persons, recorded the siatements of witnesses and after completing investigation, laid the charge-sheet.

Unfortunately, during the trial, except PW.2-Mahadevamma, none of the other eye-witnesses namely, P Ws. 4 to 8 supported the case of the prosecution and all of them were declared hostile. Perusal of the judgment under appeal indicates that the learned Sessions Judge placing reliance on the testimony of P Ws. 1 to 3, recorded finding that the prosecution has proved the charges levelled against the accused persons. Based on the medical evidence the learned Sessions Judge held that the death of the deceased was homicidal and in the light of the evidence of P Ws. 1 to 3, it has been held that the Appellants/accused were responsible for the homicidal death of the deceased and consequently, the learned Sessions Judge convicted the Appellants/accused for the charges levelled against them.

We have carefully scrutinized the oral testimony of P Ws. 1 to 3 to find-out whether the finding recorded by the learned Sessions Judge is sound and reasonable. Having considered the evidence on record, we are of the opinion that the learned Sessions Judge is not justified in holding that the evidence placed on record would establish the complicity of the accused persons for the death of the deceased. No doubt, the medical evidence on record would clearly establish that the death of the deceased was homicidal. However, that by itself is not sufficient to record conviction against the accused persons. The prosecution is under an obligation to establish that the accused persons were responsible for the homidical death of the deceased. PW. 1-Nagaraju, the father of the deceased and who is also the complainant, has spoken with regard to the earlier incident which had taken place a couple of months prior to the incident in question, which is the basis for motive attributed against the accused persons to commit the offence and he has also spoken about the quarrel which took place at about 9.00 or 9.30 p.m. on 14.08.2004 near the bus stand. He is not a witness to the alleged incident of assault on the deceased at about 12.00 ''O'' clock in the midnight. According to him, he came to know about the death of his son on the next day morning and thereafter, lie lodged the complaint. The evidence of PW.3-wife of the deceased was only to the effect that during the night of 14.08.2004, till 11.00 p.m., her husband did not return home, therefore, she after taking dinner was sleeping in the house; at about 1.00 or 1.30 a.m. in the midnight Accused Nos. 2 & C came near the house, knocked at the door, woke her up and told that her husband is lying with injuries and asked her to accompany them to bring her husband back to her house; however, she did not come out of the house and asked them to bring her husband. Further she has spoken that, about 10 minutes later Accused Nos. 2 & 6 again came near the house and knocked at the door of her house and when she peeped through the window, her husband was not seen with them, therefore, she questioned them as to why they have not brought her husband, for which, they replied that her husband is lying there fully exhausted, but she did not open the door, therefore, they went back. However, she did not inform this incident to any one immediately during that night. Even the oral evidence of PW.3 does not indicate anything about the incident of assault on the deceased. Therefore, what remains is the evidence of PW.2-Mahadevamma, who is stated to be an eye-witness. According to the evidence of PW 2 Mahadevamma, she runs a petty condiment shop near bus stand: about one year prior to the incident, there was an incident of theft in her shop therefore from that day she and her husband started sleeping in the shop, though they have a residential house at a distance of about 2 Kms. from her shop. According to her evidence, on the date of incident, at about 11.00 p.m. she and her husband came to the shop after taking dinner in the house and slept inside the shop: at about 12.00 ''O'' clock in the midnight she woke up on hearing some sounds of galata near her shop and woke up her husband also: however, her husband told her not to go out, stating that some drunken people might be fighting with each other, after some time, when the sounds of galata intensified, she came out of the shop and then she saw the accused persons holding and assaulting the deceased with clubs and at the same time in spite of her protest. Accused No. 2 pulled out the wooden plank put near the shop for sitting purpose, and with the said wooden plank, assaulted on the head of the deceased, thereafter the accused persons dragged the deceased towards the college, thereafter, she went inside the shop and slept without informing any one.

Now the question is as to whether the testimony of PW. 2 could be believed and that could become the basis for recording conviction? Even according to the evidence of PW.2, her husband was also sleeping in their shop and he asked her not to go out of the shop. In spite of the same, she said to have came out of the shop and spoke to Accused No. 2 also when he tried to pull out the wooden plank put near her shop. During that dead hour of the night, this lady coming out of the shop on hearing some galata is highly unnatural and improbable that too when her husband asked her not to go out of the shop. Her conduct in not informing about this incident immediately to any one, though it is on record that the police station is at a distance of about 100 to 150 feet from her shop is highly unnatural. The only reason put forth by PW2 for sleeping inside the shop is the incident of theft said to have occurred one year prior to the incident in question. According to her evidence, in respect of theft incident, she had lodged a police complaint. However, nothing is placed on record to probablise the said story put forth by PW2. According to her evidence, in respect of theft incident, she had lodged a police complaint. However, nothing is placed on record to probablise the said story put forth by PW2. According to PW2, it is only on account of the theft which took place about one year prior to the incident in question, she started sleeping in the petty shop along with her husband. According to her, prior to the incident of theft, she was sleeping in the house and no one was sleeping in the shop. In the absence of any acceptable evidence that there was an incident of theft in the shop of PW2, it is highly difficult to believe that she was sleeping in the shop along with her husband. Thus, presence of PW.2 in the shop is highly doubtful. According to PW.2. Accused No. 2 after pulling out the wooden plank put near her shop, assaulted the deceased on the head with the wooden plank. However, this part of the evidence of PW.2 does not gain corroboration from the medical evidence, as according to the Doctor who conducted autopsy, there was no injuries on the head. The acts of assault by other accused were said to be by clubs. However, the nature of injuries noticed on the dead body does not correspond to the weapon said to have been used. According to the medical evidence, there were lacerations on the testicles but nothing is spoken in this regard by PW.2. Having regard to the improbabilities and incongruities brought-up in the evidence of PW.2 it is highly unsafe to place reliance on the testimony of PW.2. without there being any corroboration by the other witnesses. Of course, no doubt, the testimony of sole witness is sufficient to record conviction provided such testimony is convincing and inspires confidence of the Court. However, in the case on hand, in our opinion, the evidence of PW.2 does not inspire confidence of the Court to base conviction. The other witnesses examined as eye-witnesses have not supported the case of the prosecution. According to them, no one could sleep in petty shops, as they are not sufficient for any one to sleep. Their testimony in that regard is of no assistance to the prosecution, therefore, no reliance can be placed on the testimony of P Ws.4 to 8. In the absence of any other corroborative evidence, the sole testimony of PW.2 could not have been made basis to record conviction. Therefore, we are of the considered opinion that the judgment of the learned Sessions Judge convicting the Appellants/accused is perverse and illegal, as such, it is liable to be set aside.

Accordingly the appeal is allowed. The judgment of conviction and order of sentence dated 27.12.2006 passed by the Presiding Officer, Fast Track Court-IV, Mandya, in S.C. No. 18/2005 convincing the Appellants/accused is hereby set aside. The Appellants/accused are acquitted of all the charges levelled against them.

The Appellants/accused, who are stated to be serving sentence, are ordered to be set at liberty forthwith. If they are not required in any other case.

Registry is directed to communicate the operative portion of the judgment to the concerned Jail Authorities, forthwith.