State vs Gopalappagouda

Anand Byrareddy, J.—Heard the learned Additional State Public Prosecutor Shri. K.R. Keshavmurthy and the learned Counsel for the respondents.

This appeal is by the State against the judgment of acquittal of the respondents-accused.

The facts of the case as sought to be projected by the prosecution before the Court below was that the complainant one Dyamawwa wife of Lakshamana CW.18 - PW.13 and deceased Durganna, who was aged about 26, was said-to be the son of Amarappa. It appears they belonged to the Nayak caste, which was a Scheduled Tribe and they were residents of Aidbhavi village. The accused were also from the same village and belonged to the Kuruba caste which is neither a Scheduled Caste nor a Scheduled Tribe and the parties were all known to each other.

On 27.04.2005 it transpires that at about 6:00 p.m. Durganna and one Hanamantharaya Karnal were sitting in a parked bullock-cart and were talking to each other, the bullock carl was parked in a place known as ''horaangala'', at which point of time accused Nos. 2. 4 and 6 are said to have come there. They were apparently in an intoxicated state and proceeded to lift the bullock-cart and turned it on its side. Durganna and Hanamantharaya had protested and had scolded them for their drunken behaviour, at which a quarrel is said to have broken out and accused No. 2 is said to have assaulted Hanamantharaya and they were pushed around while other accused namely accused Nos. 1, 3, 5, 7 and 8 had also arrived there and started to pelt stones at the said Durganna and Hanamantharaya. Thereafter, Durganna said to have been bodily carried towards the houses of accused Nos. 2, 4 and 7, situated at Durgamma Katta, and he was assaulted by all the accused with sticks and stones causing bleeding injuries and he is said to have died on account of the injuries so caused.

It transpires that the uncle of the Durganna having heard the news of his nephew attacked, had rushed to the spot. On seeing him, the accused had also assaulted him with sticks and stones and caused injuries. In the meanwhile, the brother of CW.18 namely Lakshman also had come to the spot after hearing the news of Durganna being attacked and it transpires that Lakshman was also assaulted with sticks and stones causing him injuries. Bhemanna is said to have sustained head inju ries on account of the attack.

It then transpires that CW.2 Manappa and CW.12 Bheemanna are said to have carried the injured as well as Durganna the deceased, to hospital. It is in this manner that the murder of Durganna is said to have been committed. It is stated that the motive was not necessarily the quarrel that had broken out with the bullock-cart being over turned but there was a standing dispute between one Ratreppa Jagali and Ayyappa Hudedar in respect of sheep fold on a ''kuri doddi'' as known in the vernacular, and it transpires that there was a quarrel, a month prior to the incident and Jagali is said to have lodged a complaint in Lingasgur police station, at which time CW. 18 Bheemanna had supported Ayyappa Hudedar, and this had created animosity between the accused and Bhemanna and his family and it is for that reason that accused had committed the murder, out of sheer animosity against Durganna and Bheemanna and his family and also attempted to commit the murder of Bhemanna and Lakshman by assaulting him with sticks and stones.

In the meanwhile, when the incident had taken place, Lingasgur police station had been informed about the incident and the Sub-Inspector of Police is said to have received a phone call and he had rushed to the village along with his staff and found that by then the murder had been committed. The complaint of Dyamawwa was recorded and thereafter he had returned to the police station and on the basis of the complaint, had registered a case in Crime No. 96/2005 for the offences punishable under Sections 143, 147, 148, 302, 307, 324 read with Section 149 of Indian Penal Code, 1860, and also Section 3 (ii) (v) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989. On further investigation, the matter was committed to the Sessions Court, which in turn had framed charges. On the accused having pleaded not guilty and having claimed to be tried and the prosecution having tendered evidence of PW 1 to PW-27, apart from marking several exhibits and material objects, the accused in turn had examined three witnesses and also marked 1''2 documents in support of their defence. It is on the basis of this evidence and after having recorded the statement of the accused under Section 313 of Code of Criminal Procedure, 1973, the Court below had framed the following points for consideration:

"1. Whether the prosecution has proved beyond all reasonable doubt that on 27-4-2005 at 6-00 p.m. near Durgamma Katta situated in Aidbhavi village the deceased Durganna has died homicidal death;

If so, whether the prosecution has further proved beyond all reasonable doubt that on the above mentioned date, time and place these accused persons caused the death of the said Durganna in prosecution of the common object of unlawful assembly formed by them by assaulting him with dangerous weapon like sticks and stones and thereby they are all guilty of the offences u/Ss. 143, 147, 148 and 302 r/w Section 149 of IPC?

Whether the prosecution has further proved beyond all reasonable doubt that on the above mentioned date time and place A-l to 8 being the members of the unlawful assembly and in prosecution of the common object of such assembly attempted to commit the murder of C.W.18- Laxman and C.W.9-Bheemanna by assaulting them with the said weapons and thereby they are all guilty of the offences u/S.307 r/w Section 149 of IPC?

Whether the prosecution has further proved beyond all reasonable doubt that the accused persons being not the member of SC/ST knowing fully well that the deceased Durganna is a member of Scheduled-Tribe on the above mentioned, date, time and place and in prosecution of the common object of unlawful assembly committed the murder of the deceased Durganna, on the ground that he is member of Scheduled-Tribe and thereby they are all guilty of the offence under section 3(2)(v) of Scheduled-Caste/Scheduled-Tribe (Prevention of Atrocities) Act, 1989,

What order?"

The Court below had answered point No. 1 in the affirmative and point Nos. 2 to 4 in the negative and had acquitted the accused. It is that which is under challenge in the present appeal.

The learned Additional State Public Prosecutor would contend that the trial Court has proceeded to acquit the accused mainly on having disbelieved that the complaint was actually filed by Dyamawwa. Having regard to the inconsistencies with reference to the manner in which it was recorded and the very authorship of the complaint being doubted. For the reason that PW-4 had negated the very contents of the complaint. Further, the only eye-witness to the actual commission of the incident which had taken place in two phases, one, when some of the accused who overturned the bullock cart on which Durganna and his friend were sitting and thereafter Durganna being carried away to an area near the house of accused Nos. 2, 4 and 7 and Durganna having been further assaulted with sticks and stones. It is not the case of the prosecution that there were eye witnesses to the actual commission of the murder in the second phase. It is contended that the Court below had failed to consider the evidence of PW-1 who is an eye-witness and the complainant, as well as the evidence of Pws-2, 4, 7, 8, 9, 10 and 16 who were the other eye witnesses to the incident. PWs-13 and 14 were the injured eye-witnesses. Therefore, there were a whole host of witnesses to the incident which has been negated by the trial Court on frivolous reasoning. The trial court having characterised these witnesses as being related to the deceased and therefore terming them as "interested witnesses" was unfair and cannot be readily accepted. If the only eye-witnesses were people who were related to the deceased they could not be characterised as being ''interested witnesses'' and their testimony could not be trashed. The trial Court therefore was in serious error in overlooking the said evidence.

The complainant had clearly stated in her evidence that on the date of the incident some children had informed her that Durganna was being assaulted by the accused and she had immediately rushed to the spot and had actually seen the accused being assaulted and she had also seen Durganna being carried away by the accused from the place where he was first assaulted and she had followed them to the place where he was taken and again beaten up. PWs-13 and 14 had also arrived on the scene immediately thereafter and they were also assaulted by the accused and since injuries on PWs-13 and 14 could not be denied, their presence at the scene of occurrence, could not have been doubted or disputed, but the trial Court has negated their evidence, notwithstanding that they had suffered injuries and had arrived on the scene immediately after Durganna had been assaulted.

Thus, the evidence of PWs-1, 13 and 14 has been corroborated by the evidence of a'' string of witnesses, namely PWs-2, 4, 7 to 10, 13, 14 and 16, but the trial Court has unfairly disbelieved the evidence of these witnesses, which has resulted in a miscarriage of justice. It is contended that the minor discrepancies have been magnified by the trial Court in negating the case of the prosecution.

Therefore, the learned Additional State Public Prosecutor would take us through the record to demonstrate that the evidence ought to be viewed in the right perspective, which the trial Court has failed to do and would seek to point out that the mere fact that the trial Court thought that there were no independent witness to corroborate the case of the prosecution, could not by itself efface the evidence of the witnesses before the Court. The other reasoning that the blood stained clothes of accused No. 6 was not sent for forensic examination and the fact that clothes of the injured witnesses was not also collected and proved etc. were all aspects which did not over turn the case of the prosecution. The evidence tendered on behalf of the prosecution stood on its own strength and could not have been diluted or effaced by reference to such discrepancies and hence seeks that the judgment of the trial Court be set aside and accused be convicted in accordance with law.

While the learned Counsel for the accused-respondents would seek to justify the judgment of the trial Court.

The Trial Court, it is noticed, had firstly addressed the question as to whether an offence punishable under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was established and it is the finding of the Court below that it was not the case of the prosecution that the accused committed the murder of deceased Durganna and attacked PW-13 and PW-14 on the ground that they were members of a Scheduled Tribe. There was no evidence on this aspect. Therefore, the Court below has summarily held that the said provision was not attracted and the charge failed. There is justification in the finding of the trial Court in this regard.

The trial Court then has addressed the veracity of the complaint. According to PW-1-the complainant, it was PW-4 who had written the said complaint, but PW-4 has disowned the fact that he had drafted the complaint and in fact did not know how to read and write, except affixing his signature and though he had admitted that the complaint bore his signature, the fact remains that he was not the author and therefore he did not support the case of the prosecution that the complaint was drafted by him. Hence the Court below has seriously doubted the generation of the complaint. Having regard to the delay in lodging the complaint namely, when the police were informed about the incident immediately upon the incident having broken out, the police having arrived at the scene, only much later and having received the complaint at 9.45 p.m., when the incident has taken place at 6.00 p.m. The Court below has concluded that the complaint has been prepared after much deliberation to suit the case of the prosecution and it is in that fashion that content of the very complaint itself has been doubted and the author of the complaint not having been established with any certainty, the Court below has seriously doubted the veracity of the complaint.

It is further found by the Court below that PWs-2 and 4 had not been described as eye-witnesses. Their names are not mentioned in Ex.P1 and even PW-4 had ruled out the presence of PW-1 on the spot. PW-2 was closely related to PW-1 and the deceased, as well as PWs-13 and 14. According to him PW-1 had come to the spot after the death of Durganna. Therefore, the Court has concluded that PW-1 could not have been an eye-witness to the incident. It was further pointed out that PWs-2, 7 to 10 and 16 had spoken only about the incident which took place in the first phase when the bullock cart was over turned, but did not speak about the subsequent event where the deceased was repeatedly assaulted near the house of accused Nos. 2, 4, 7 and 10 and therefore their evidence could not support the case of the prosecution.

Insofar as PWs-13 and 14 who were the uncles of the deceased Durganna, admittedly, they had arrived much after the incident had taken place and though they were also said to be attacked and injured, their injuries were caused after the incident of Durganna''s murder according to the prosecution. Therefore they were also not eye-witnesses to the incident. It follows that there were no eye witnesses to the incident. The Court below having found that given the very testimony of PW-4 cancelling out the veracity and truth of evidence of PW-1 and the fact that PWs-13 and 14 have arrived at the scene, one after the other, much after the incident had taken place, for it is on record that they had heard about the assault being carried on Durganna, their nephew, rushed to the spot, they would not indicate that they had actually witnessed the commission of the murder of Durganna and it is in this fashion that the Court below has held that the case of the prosecution could not be accepted.

The other circumstance which has weighed in the mind of the trial Court was the fact that the incident had occurred on a main road namely, the bullock cart was parked near the main road and it was over turned, it could therefore be presumed that many people would have been present as it was not a remote area, but there were several houses on either side of the road. Further the second attack where Durganna was carried away and was assaulted repeatedly, was also on the main road and therefore it was inexplicable that the prosecution has not been able to secure any other independent witness to support the case of the prosecution. It is this glaring circumstance which has again fortified the Court''s finding that the case made out by the prosecution was not readily acceptable.

Insofar as the evidence of PWs-1, 4, 13 and 14, the Court below did not have any difficulty in holding that their evidence could not be accepted as that of eye-witnesses given the circumstances as was made out by their own statements.

Insofar as the others namely, PWs-2, 7 to 10 and 16 who claimed to have seen as to how exactly the incident commenced is concerned, it is noticed that Pws-2,7 and 16 who claimed to be sitting on the "Hora-angala katte" at the point of time when PW-9 and the deceased were sitting in a bullock cart and at that time accused Nos. 4 and 6 having come there and having over turned the bullock cart and a quarrel having commenced and thereafter accused No. 2 having carried away the deceased towards his house and the other accused having followed, those witnesses did not further state that they had also followed the accused to witness the actual commission of the murder. It was also their case that from the place where they were sitting, they could not witness the area where the deceased was actually done to death. In which event, it is evident that they did not witness the actual commission of the murder. It is on these findings, which cannot be faulted, that the Court below has held that the prosecution has not established its case beyond all reasonable doubt. There was also no indication by any of these witnesses as to which of the accused was armed with what weapons and which were the injuries caused by each of the accused. In the absence of such particulars, to attribute any particular overt act to a particular accused, and to hold that all of them, had a common intention and had assaulted the deceased as well as the injured witnesses and had committed the murder of Durganna, would lead to a situation where the accused would be convicted without any evidence against each of them. It is this prudence with which the Court below has held that in the absence of cogent evidence and evidence which could be accepted as being independent evidence, the Court has stayed its hands in accepting the case of the prosecution and therefore has (held that the prosecution has failed to bring home the charges and has acquitted the accused.

We do not find any reason to interfere with the judgment. The grounds urged by the prosecution to claim that the Court below has ignored the evidence and the material witnesses, is found to be an incorrect assertion. As there were no material witnesses as is pointed by the trial Court where it has been demonstrated that none of them could claim themselves as eye-witness and all of them were related to the deceased as well as PWs-13 and 14, their evidence could not be accepted when there would certainly have been other witnesses who may have been present. Having regard to the time of day when the act was said to have been committed and the location of the incident, it was inexplicable that no independent witnesses were examined. Therefore, the reasoning of the trial Court cannot be faulted.

There is no merit in this appeal and the same is dismissed.