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Judgment
Anand Byrareddy, J.—Heard the learned Counsel for the appellants and the learned State Public Prosecutor. The appellants are accused No. 1, 2 and 5. The appeal is filed in the following circumstances:
The facts of the case are as follows:
The complainant one Nanjappa in his complaint dated 18.4.2005 had stated that on 17.4.2005 his father Ramappa had left home at about 10.30 p.m., informing the complainant and others that he was going towards the temple as there was a festival, which was on and therefore, there was activity in the temple. The complainant had further stated that his father was in the habit of consuming liquor and that he had consumed liquor even on that day. His father, however, did not return home that night and the complainant and other family members were under the belief that he must have slept at the temple as it was not unusual for him to stay out. However, it was on 18.4.2005 that the complainant was informed about his fathers dead body having been found in a well and it is thereafter that the complainant had identified the dead body and also noticed that there are injuries found on the face of his father and therefore, he suspected that the death was not on account of natural causes. The Police, therefore, registered a case as U.D.R. No. 25/2005 and inquest proceedings were conducted on that very day. It is later viz., on 24.4.2005 that further statement of the complainant was recorded and a case was registered for offences punishable under Sections 143, 148, 323, 324, 114 and 302 of the Indian Penal Code (hereinafter referred to as I.P.C. for brevity).
It was then alleged that, as informed by Thayamma - PW-6 that she had witnessed the accused viz., the present appellants along with accused Nos. 3 and 4 assaulting the deceased Ramappa at about 12 midnight and this was on account of Ramappa having questioned the accused as to why the cart laden with jaggery water, which was drawn along with deity at the festival was parked at Bedara Kannappa temple instead of at the Anjaneya temple, which was temple belonging to the community of the deceased. Since the accused belonged to other community viz., Naika community, an altercation had broken out between the two viz., accused as a group and the deceased. While it was stated by the accused that since it was a matter of worship, it did not matter whether the cart was parked but since the deceased took a fence, there was an altercation and according to PW-6, the accused together had assaulted the deceased by punching and kicking him, as a result of which he collapsed and that accused No. 5 had instigated the assault all the while. It was also claimed by PW-6 that she had intervened and broken up the quarrel. It is thereafter that the deceased was said to have been carried away from the scene and to destroy the evidence of such assault. resulting death, the body had been thrown into a well.
On the basis of this further statement on the strength of information provided by PW-6, that the Police registered a case and the same was ultimately committed to the court of sessions in a case S.C. No. 175/2005. Charges having been framed against the accused, accused pleaded not guilty and claimed to be tried. Thereafter, prosecution examined PWs-1 to 31 and marked Exs.P1 to P24 and Material Objects-1 to 4. On behalf of defence, Exs.D1 to D3 were marked and after recording the statement of the accused u/s 313 of the Code of Criminal Procedure, the court below had framed the following points for consideration, which if loosely translated into English read as follows:
Whether the prosecution has proved that on 17.4.2005 at 12 midnight near Anjaneya temple, Alur, the accused with an intention to murder, formed themselves into an unlawful assembly thereby committing an offence punishable u/s 143 of IPC?
Whether the prosecution has proved that the accused forming themselves into an unlawful assembly armed with deadly weapons committed an offence of rioting punishable u/s 148 of IPC?
Whether the prosecution has proved beyond all reasonable doubts that all the accused have committed murder by assaulting the deceased on his nose and face by a club thereby committing an offence punishable u/s 302 read with Section 149 of IPC?
Whether the prosecution has proved beyond reasonable doubt that accused Nos. 1 and 2 on the instigation of accused Nos. 3 to 5 had thrown the dead body of the deceased into the well of Yankanna near shipyard of Nagendrappa and destroyed evidence thereby committing an offence punishable u/s 201 read with Section 149 of IPC?
What order?
The court below answered point Nos. 1 and 2 in the negative and point Nos. 3 and 4 in the affirmative and acquitted accused Nos. 3 and 4, while sentencing accused Nos. 1, 2 and 5 for an offence punishable u/s 304 Part II of IPC with R.I. for a period of five years and fine of Rs. 5,000/- and for an offence punishable u/s 201 of IPC, R.I. for three years and fine of Rs. 5,000/- each on accused Nos. 1 and 2. It is that which is under challenge in the present appeal.
The learned Counsel for the appellants while taking this Court through the record would seek to point out that PWs-5, 6 and 7 were said to be the eye-witnesses to the incident. They have not supported the case of the prosecution. PW-1 was the complainant. He was not an eye-witness to the incident. In fact, he had no inkling of any such incident at all and believed that his father had died on account of having been fallen into a well. However, the injuries on the face of his father led to some suspicious foul play The complainant in any case did not have any suspicion of the accused having been involved in the incident. It is only on the basis of PW-6 that further statement was recorded and proceedings were initiated against the accused. In the absence of any support to the case of the prosecution by PW-6, the very basis of the "allegation would fall to the ground. However, the court below has chosen to rely upon the evidence of PW-11, PW-2 and PW-3 in concluding that the prosecution has made out a case beyond all reasonable doubts, notwithstanding the fact that other material witnesses have not supported the case of the prosecution.
Learned Counsel would point out that insofar as evidence of PWs-2, 3 and 11 are concerned, would again be a totally inconsistent and would hardly support the case of the prosecution. In any event, it can never be said that the prosecution had established its case beyond all reasonable doubts on the basis of the said evidence. In this regard, the learned Counsel would draw the attention to certain glaring circumstances, which would certainly require this Court to negate the evidence of said witnesses. Insofar as PWs-2 and 3 are concerned, the evidence tendered by them is inconsistent and would not support the case of the prosecution. It was the claim or the allegation that PW-6 had witnessed the assault carried out on the deceased by all the accused and that, the deceased was then carried away by the accused without elaborating on which of the accused had carried him away. However, PW-1 in support of these further circumstances, after the assault has stated that the deceased was laid away by accused No. 1, which would on the face of it indicate that the deceased was not dead at the time he was laid away, he was apparently alive going by the evidence of PW-2. PW-3, on the other hand has however, stated that he was asleep when he was woken up by the dogs barking and he saw accused Nos. 1 and 2 carrying the inert body of the deceased stealthily away and on the basis of that evidence that the trial court has held that the assault as well as the involvement of the accused in carrying away the deceased is established.
Learned Counsel would submit that given the inconsistency between the evidence of PW-2 and PW-3, it cannot be said that it was established that the deceased had died as a result of the assault and that his dead body was carried away by accused Nos. 1 and 2. Further, even insofar as the evidence of PW-11 is concerned, it is to be noticed that PW-11 claims to be the nephew of the deceased and it is his case that the assault taken place at about midnight on 17.4.2005 and he saw the deceased being assaulted by all the accused. However, he does not choose to state as to what his reaction or response to the incident was, except to state that he was assaulted, thereafter his body was carried away by the accused. He has not chosen to report the incident to anybody let alone the complainant and being blood related of the deceased has chosen to remain silent even after a week and it is only on 24.4.2005 that he has made a statement before the Police to vaguely narrate the incident without being in a position to specify the particular accused, who had committed overt acts in causing the death of the deceased and the manner in which the dead body was carried away and by which of the accused.
It is further pointed out by the learned Counsel for the appellants that the court below has found that the evidence of PWs-2, 3 and 11 was sufficient to bring home the charges and to hold that the prosecution had proved its case beyond all reasonable doubts and has inexplicably acquitted accused Nos. 3 and 4 when it was the categorical evidence of PW-11 that it was all the accused including accused Nos. 3 and 4 had assaulted the deceased. In the absence of specific overt acts being attributed to each of the accused, the categorical statement that all the accused assaulted the deceased would have necessarily required the court to consider the role played by accused Nos. 3 and 4 and it could not have justified the court below to have acquitted them, notwithstanding that their names were not mentioned in the complaint in the first instance. That by itself would not be conclusive of their non-involvement. There was no justification in convicting these accused in the face of such inconsistent and unacceptable evidence to hold that they were guilty of the offence alleged while acquitting accused Nos. 3 and 4. Further the allegation that accused No. 5 had instigated the commission of the offence, when the court below has held that there was no apparent motive for the commission of the crime nor was there indication of any premeditation in committing crime and that it was on account of fit of fury as a result of communal differences that the incident has taken place could not have attributed the instigation to accused No. 5 without there being any basis or foundation for the same except surmises on the basis of which the entire prosecution case is built up. Therefore, the learned Counsel would submit that the judgment of the court below suffers from infirmities and the conviction has resulted in gross miscarriage of justice, which requires intervention of this court and seeks acquittal of the accused.
While the learned State Public Prosecutor would seek to justify the judgment and would also draw the attention of this Court to other aspects of the case with reference to the testimony of the witnesses on the basis of which the court below has found in favour of the prosecution. In the light of the above rival contentions and from examination of the record, it is straightaway noticed that the court below having framed four points for its consideration has chosen to address all the four points together. There was then no need for the court to have framed such points if the record was to be considered in its entirety in addressing the circumstances of the case and as rightly pointed out by the learned Counsel for the appellants, the reasoning of the court below and in finding the accused guilty of the offences and having convicted them, is to be found at internal page- 19 of the judgment and the entire findings are on the basis of the evidence of PW-11 coupled with the evidence of PW-2 and PW-3. For the reasons highlighted by the learned Counsel for the appellants, it cannot be said that the court below was justified in holding that the prosecution had established its case beyond all reasonable doubts. The complainant had not witnessed the incident. He did not even suspect that there was murder committed and it is only on the basis of the information provided by PW-6 that he has made a further statement on the basis of which proceedings were initiated for offences punishable as aforesaid against the accused. Therefore, it was necessary that the case of the prosecution was duly supported by the evidence of PW-6, who was an eye-witness along with PWs-5 and 7. However, it is found that these witnesses have not supported the case of the prosecution. Apart from other witnesses, who weft? official witnesses, examined in the usual course, the material witness on the basis of whose evidence the court below has found the accused guilty as already stated, is PW-11, whose testimony cannot be wholly accepted for the reason that though he had allegedly witnessed the incident in between the intervening night of 17/18.4.2005, he has not chosen to inform any person about the incident. This is wholly unnatural. He claims'' to be nephew of the deceased. Even if it was petrified on account of the incident being committed, it was expected that he would have at least informed the complainant or other family members at a later point of time, if not immediately, but inexplicably he has not intimated anybody nor made a statement till 24.4.2005. This is glossed over by the trial court in merely accepting that narration of the incident by said witness would have to be accepted without any hesitation. Any such exercise would result in the accused being found guilty of the serious offences, which is resulted in serious consequence, which has been held by virtue of impugned judgment. Therefore, the prosecution would necessarily have to prove its case beyond all reasonable doubts. This cannot be set as a case with reference to the evidence of PW-11, PW-2 and PW-3.
In the light of the inconsistencies that I have already highlighted, which need not be reiterated, the judgment of the court below cannot be sustained Consequently, the appeal is allowed. The judgment dated 21.4.2006 passed by the Presiding Officer, Fast Track (Sessions) Court-I, Davangere, in S.C. No. 127/2005, is set aside. The accused are acquitted. The fine amount, if any, paid by the accused shall be refunded. Bail bond furnished stands cancelled.