Parashurama and Others vs State of Karnataka

N. Ananda, J.—The appellants were arrayed as accused 1 & 5 to 8 (hereinafter referred as ''accused 1 & 5 to 8'') in S.C. No. 170/2005. Accused No. 2 was absconding. Therefore, case against accused No. 2 was separated. Accused 3 & 4 died during pendency of trial. Therefore, case against accused 3 & 4 abated. Accused 1 & 5 to 8 were tried for offences punishable under sections 143, 147, 148, 448, 436 & 427 r/w 149 IPC. Therefore, they are before this court. I have heard Sri G. Jairaj, learned counsel for accused 1 & 5 to 8 and Sri B. Visweswaraiah, learned HCGP for State.

It is the case of prosecution, at about 7 a.m.. on 26.07.2002, a Maruti Van of P.W. 6-Narayanappa was set on fire and household articles of P.W. 6 were damaged and ransacked by accused 1 & 5 to 8 in his house in Doddabele village, within the jurisdiction of Bidadi Police Station. The incident was the aftermath of the murder of one Kailash, on 25.07.2002. The said Kailash is the elder brother of accused 1, 3 &5.

The prosecution has relied on evidence of P.W. 1 to P.W. 10.

P.W. 1-Galappa, who is alleged to have witnessed the incident, has not supported the case of prosecution. P.W. 1 was declared as a hostile witness.

P.W. 2-Venkatesh who is alleged to have attested spot mahazar at the time of spot inspection has not supported the case of prosecution. Similar is the evidence of P.W. 3-Lokesh.

P.W. 4-Rudreshaiah was the Assistant Sub-Inspector of Police of Bidadi Police Station. P.W. 4 had registered first information lodged by P.W. 5 at 7 p.m. on 27.07.2002.

P.W. 5-Hanumantharaju, is the first informant and cousin brother of P.W. 6. P.W. 5 was not present when fire mischief had taken place. P.W. 5 after learning about the incident came from his village to Doddabele. P.W. 5 got information from villagers and lodged first information. The evidence of P.W. 5 is hearsay in nature and first information lodged by him was based on the information which he had received from other villagers.

P.W. 6-Narayanappa has admitted that he was arrayed as accused No. 1 in crime registered for the murder of one Kailash. P.W. 6 has deposed; in retaliation to murder of Kailash, accused 1, 3 & 5 who are the younger brothers of Kailash had come near his house at 7 a.m. on 26.07.2002 and they wanted to commit murder of P.W. 6; on overhearing this conversation, P.W. 6 escaped through rear door of his house; after reaching garden, P.W. 6 found that his household-articles were damaged and set ablaze.

During cross-examination, P.W. 6 has denied suggestion that after murder of Kailash, he was absconding till he was arrested.

As per evidence of P.W. 6, he was inside house when culprits came near his house at 7 a.m. on 26.07.2002. P.W. 6 has deposed; after overhearing assailants that they would kill P.W. 6, he escaped through rear door of his house. In the circumstances, evidence of P.W. 6 that he had seen accused setting fire to Maruti Van and household articles cannot be believed. It is also seen from the evidence of Investigating Officer, statement of P.W. 6 u/s 161 Cr.P.C., was recorded on 13.11.2003 (after a period of one year and three months from the date of incident). Therefore, evidence of P.W. 6 is hardly possible to hold accused 1 & 5 to 8 were the members of unlawful assembly, they had set fire to car of P.W. 6 and they had damaged and ransacked household articles of P.W. 6.

P.W. 7-Muninarasamma is the wife of P.W. 6. P.W. 7 has deposed; on the date of incident, P.W. 7 and her husband (P.W. 6) were in their house; at 7 a.m., on 26.07.2002, accused armed with clubs, iron rod and chopper came to their house, broke open door, saying that they would kill her husband (P.W. 6) and destroyed household articles; P.W. 7 got scared and ran away from place of incident.

12 At this juncture, it is relevant to state that P.W. 6 has not deposed that he was inside the house when accused broke open door and entered house. P.W. 7 has not deposed as to what happened to her husband (P.W. 6) after accused gained entry into their house. Above all, statement of P.W. 7 u/s 161 Cr.P.C. was recorded on 13.11.2003 after a period of one year and three months. The Investigating Officer having admitted inordinate delay in recording statements of P.W. 6 & P.W. 7 u/s 161 Cr.P.C., has not offered any explanation.

It is interesting to notice that final report was filed on 13.11.2003, the date on which statements of P.W. 6 & P.W. 7 were recorded u/s 161. Cr.P.C. it appears there was gang rivalry between P.W. 6 and the accused. The other villagers had remained neutral and none had come forward to narrate the incident. Therefore, the Investigating Officer after planting P.W. 6 & P.W. 7 as eye-witnesses, recorded their statements u/s 161 Cr.P.C. on 13.11.2003 and filed final report on the same day. The evidence on record is hardly sufficient to hold accused 1 & 5 to 8 guilty of aforestated offences.

The learned trial Judge without noticing these basic discrepancies in the evidence of prosecution witnesses and background of the case has held accused 1 & 5 to 8 guilty of aforestated witnesses. Therefore, the impugned judgment cannot be sustained. In the result, I pass the following:--

ORDER

The appeal is accepted. The impugned judgment is set aside. Accused 1 & 5 to 8 (appellants herein) are acquitted of offences punishable under sections 143, 147, 148, 448, 436, 427 r/w 149 IPC. The bail bonds executed by accused 1 & 5 to 8 stand cancelled. If accused 1 & 5 to 8 have deposited the fine amount, the same shall be refunded to them.