State of Karnataka Vs. Basappa
EmailAppeal: Criminal Appeal No. 715 of 1992
Petitioner: State of Karnataka
Respondent: Basappa
Apeal: Criminal Appeal No. 715 of 1992
Judges: Dr. A.S. ANAND, CJI., R.C. LAHOTI & DORAISWAMY RAJU, JJ.
Date of Judgment: Apr 26, 2001
Head Note:
CRIMINAL LAW
Evidence Act, 1872
Section 3 with Indian Penal Code, 1860 – Section 302 – Murder – Evidence – Trial court relying upon state-ments of two eye-witnesses – Mother and brother of deceased al-leged to be present in village of accused – PWs, the eye-witness-es also alleged to be present in said village on being requested by some relations of deceased – Presence of eye-witnesses at the house of a particular witness (PW 22) but denied by said witness (PW 22) – Eye-witnesses having no relation, though claim to have come to know the welfare of de-ceased – Both seeing accused attacking deceased with sickle in early hours – No attempt to intervene or raise hue and cry – Conduct most unnatural – No other evidence to show their pres-ence. Held that High Court was justified in recording acquittal on proper appreciation and that being possible view no interfer-ence is called for. (Para 7)
JUDGEMENT:
ORDER
1. An occurrence took place on 19th January, 1983. Bangarewwa was found murdered in her village Mudaligi. Accused – respondent is the husband of Bangarewwa. It is alleged that he suspected that the deceased was having an illicit relationship with PW-19, and, therefore, he murdered her. He was sent up for trial for an offence under Section 302 IPC for the murder of Bangarewwa. The learned Sessions Judge, Belgaum found him guilty of the offence under Section 302 IPC and vide judgment dated 20th September, 1983 convicted him for the said offence and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and in default, suffer further rigorous imprisonment for six months. The respondent filed an appeal against his conviction and sentence. On 19th March, 1986, the High Court accepted his appeal and set aside the conviction and sentence of the respondent. By special leave, the State is before us.
2. We have carefully perused the judgment of the High Court as also of the trial court.
3. The prosecution case hinges on the evidence of PW-4 and PW-5, who are claimed by the prosecution to be the eye-witnesses and found by the trial court to be reliable. The other material witnesses in the case did not support the prosecution case at the trial and their evidence has not been relied upon by the trial court. However, medical evidence and the testimony of PW-1 has been used as corroborative evidence lending support to the evi-dence of PW-4 and PW-5. Reliance has also been placed on the evidence of PW-18 and PW-23.
4. According to the prosecution case, both PW-4 and PW-5 are residents of Jamkhandi where the brother and mother of the de-ceased, PW-18 and PW-23 reside. The evidence of PW-18 and PW-23 is to the effect that on the date prior to the fatal day, they received intimation through brother of the accused-respondent, that the deceased was suffering from acute stomach pain and on learning about it, they left their village for Mudaligi at a distance of about 30 kms. to enquire about the welfare of the de-ceased. On reaching village Mudaligi, they camped at the house of Parasappa, PW-22. They, however, learnt that the story of stomach pain of the deceased was only a hoax. Late at night, some rela-tions of the deceased requested PW-4 and PW-5 to go from their village Jamkhandi to Mudaligi to enquire about the welfare of the deceased. Accordingly, they also left and went to the house of Parasappa, PW-22. Next morning, i.e. on 19th January, 1983, PW-4 and PW-5 allegedly saw, after they were returning after answering the call of nature, the deceased being followed by her husband, the respondent and on reaching near a ‘halla’, he assaulted the deceased with a sickle, MO-1 and gave her multiple injuries and she succumbed to the injuries. According to PW-4 and PW-5, after causing the injuries, the respondent ran away from the place. PW-2 and PW-3 are also alleged to have witnessed the assault on the deceased but they did not support the prosecution case. Both PW-4 and PW-5, after witnessing the assault, went to the house of Parasappa, PW-22 and informed the mother and brother of the deceased about the occurrence. All of them then went to the place of occurrence and found the deceased lying in a pool of blood with a number of injuries. She was dead. They went back to the house of PW-22 where PW-4 wrote a complaint, Exhibit PW-7 and along with PW-23 went to police out-post of Mudaligi village and handed over the same to PW-25 head constable who made an entry of the FIR in the police out-post diary and investigation was taken in hand. After the post-mortem of the deceased, the respondent was arrested and certain recoveries were effected. He was sent up for trial as already noticed.
5. The trial court, while convicting the respondent for an offence under Section 302 IPC recorded that the complaint, Exhib-it P-7 had not been written in the manner suggested by the prose-cution. It was found by the trial court that the complaint Exhib-it P-7 appears to have been written under dictation of PW-25 after due deliberations and that the investigation to the extent was not fair and was tainted. Nonetheless, the trial court rely-ing upon the testimony of PW-4 and PW-5, recorded an order of conviction finding support from the medical evidence and the testimony of PW-18 and PW-23.
6. In our opinion, after recording the finding about the taint in the investigation and manner in which the FIR came to be recorded and delay with which a copy of the same was received by the Magistrate, the trial court ought to have been more careful in evaluating the evidence of PWs 4 and 5 as they are the only two witnesses on whom the entire prosecution case rests. However, we find that the appreciation of evidence of PW-4 and PW-5 by the trial court is not proper.
7. These two witnesses, on their own showing, belong to a dif-ferent village. They had no particular relationship with the deceased. According to them, they were requested by some other relations of the deceased to go to village Mudaligi and enquire about the welfare of the deceased and they accordingly went and camped with PW-22 Parasappa. According to PW-22, Parasappa, PW-4 and PW-5 did not visit him and did not stay with him on the night preceding the fatal day. According to PW-22, even PW-18 and PW-23 had not visited him and did not camp with him on the night pre-ceding the occurrence. There is no other material on the record which may lend any assurance to the presence of PW-4 and PW-5 in the village in the early hours of morning of 19th January, 1983. The conduct of these two witnesses at the time of occurrence also creates a doubt about their presence at the spot. On their own showing, not only they did not try to intervene and save the deceased from the assault but did not even raise a noise or hue and cry about the assault. If they had gone to the village for the purpose which they allege, they had gone for, their conduct at the time of assault on the deceased is most unnatural. The possibility cannot be ruled out that these two witnesses, along with the mother and brother of the deceased, PW-18 and PW-23, on learning about the murder of Bangarewwa, went to village Mudaligi early in the morning on 19th January, 1983 and on the basis of misguided suspicion, that her husband could have committed the murder having suspected the chastity of his wife and her illicit relationship with PW-19, spun the entire story. In the absence of reliable corroboration of the testimony of PW-4 and PW-5 and keeping in view the tainted nature of the investigation, which has been found both by the trial court and the High Court, it would not be safe to rely upon the evidence of PW-4 and PW-5, the two chance witnesses. The reasons given by the High Court to record an order of acquittal of the respondent and discarding the evidence of PW-4 and PW-5 are based on proper appreciation of evidence. In any event, it is not possible to say that the view taken by the High Court, in the established facts and circum-stances of the case, was not a possible view or was even an unreasonable view, much less a perverse view.
8. For what we have said above, we not inclined to interfere with the order of acquittal recorded by the High Court. The appeal, therefore, fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged.
1. An occurrence took place on 19th January, 1983. Bangarewwa was found murdered in her village Mudaligi. Accused – respondent is the husband of Bangarewwa. It is alleged that he suspected that the deceased was having an illicit relationship with PW-19, and, therefore, he murdered her. He was sent up for trial for an offence under Section 302 IPC for the murder of Bangarewwa. The learned Sessions Judge, Belgaum found him guilty of the offence under Section 302 IPC and vide judgment dated 20th September, 1983 convicted him for the said offence and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and in default, suffer further rigorous imprisonment for six months. The respondent filed an appeal against his conviction and sentence. On 19th March, 1986, the High Court accepted his appeal and set aside the conviction and sentence of the respondent. By special leave, the State is before us.
2. We have carefully perused the judgment of the High Court as also of the trial court.
3. The prosecution case hinges on the evidence of PW-4 and PW-5, who are claimed by the prosecution to be the eye-witnesses and found by the trial court to be reliable. The other material witnesses in the case did not support the prosecution case at the trial and their evidence has not been relied upon by the trial court. However, medical evidence and the testimony of PW-1 has been used as corroborative evidence lending support to the evi-dence of PW-4 and PW-5. Reliance has also been placed on the evidence of PW-18 and PW-23.
4. According to the prosecution case, both PW-4 and PW-5 are residents of Jamkhandi where the brother and mother of the de-ceased, PW-18 and PW-23 reside. The evidence of PW-18 and PW-23 is to the effect that on the date prior to the fatal day, they received intimation through brother of the accused-respondent, that the deceased was suffering from acute stomach pain and on learning about it, they left their village for Mudaligi at a distance of about 30 kms. to enquire about the welfare of the de-ceased. On reaching village Mudaligi, they camped at the house of Parasappa, PW-22. They, however, learnt that the story of stomach pain of the deceased was only a hoax. Late at night, some rela-tions of the deceased requested PW-4 and PW-5 to go from their village Jamkhandi to Mudaligi to enquire about the welfare of the deceased. Accordingly, they also left and went to the house of Parasappa, PW-22. Next morning, i.e. on 19th January, 1983, PW-4 and PW-5 allegedly saw, after they were returning after answering the call of nature, the deceased being followed by her husband, the respondent and on reaching near a ‘halla’, he assaulted the deceased with a sickle, MO-1 and gave her multiple injuries and she succumbed to the injuries. According to PW-4 and PW-5, after causing the injuries, the respondent ran away from the place. PW-2 and PW-3 are also alleged to have witnessed the assault on the deceased but they did not support the prosecution case. Both PW-4 and PW-5, after witnessing the assault, went to the house of Parasappa, PW-22 and informed the mother and brother of the deceased about the occurrence. All of them then went to the place of occurrence and found the deceased lying in a pool of blood with a number of injuries. She was dead. They went back to the house of PW-22 where PW-4 wrote a complaint, Exhibit PW-7 and along with PW-23 went to police out-post of Mudaligi village and handed over the same to PW-25 head constable who made an entry of the FIR in the police out-post diary and investigation was taken in hand. After the post-mortem of the deceased, the respondent was arrested and certain recoveries were effected. He was sent up for trial as already noticed.
5. The trial court, while convicting the respondent for an offence under Section 302 IPC recorded that the complaint, Exhib-it P-7 had not been written in the manner suggested by the prose-cution. It was found by the trial court that the complaint Exhib-it P-7 appears to have been written under dictation of PW-25 after due deliberations and that the investigation to the extent was not fair and was tainted. Nonetheless, the trial court rely-ing upon the testimony of PW-4 and PW-5, recorded an order of conviction finding support from the medical evidence and the testimony of PW-18 and PW-23.
6. In our opinion, after recording the finding about the taint in the investigation and manner in which the FIR came to be recorded and delay with which a copy of the same was received by the Magistrate, the trial court ought to have been more careful in evaluating the evidence of PWs 4 and 5 as they are the only two witnesses on whom the entire prosecution case rests. However, we find that the appreciation of evidence of PW-4 and PW-5 by the trial court is not proper.
7. These two witnesses, on their own showing, belong to a dif-ferent village. They had no particular relationship with the deceased. According to them, they were requested by some other relations of the deceased to go to village Mudaligi and enquire about the welfare of the deceased and they accordingly went and camped with PW-22 Parasappa. According to PW-22, Parasappa, PW-4 and PW-5 did not visit him and did not stay with him on the night preceding the fatal day. According to PW-22, even PW-18 and PW-23 had not visited him and did not camp with him on the night pre-ceding the occurrence. There is no other material on the record which may lend any assurance to the presence of PW-4 and PW-5 in the village in the early hours of morning of 19th January, 1983. The conduct of these two witnesses at the time of occurrence also creates a doubt about their presence at the spot. On their own showing, not only they did not try to intervene and save the deceased from the assault but did not even raise a noise or hue and cry about the assault. If they had gone to the village for the purpose which they allege, they had gone for, their conduct at the time of assault on the deceased is most unnatural. The possibility cannot be ruled out that these two witnesses, along with the mother and brother of the deceased, PW-18 and PW-23, on learning about the murder of Bangarewwa, went to village Mudaligi early in the morning on 19th January, 1983 and on the basis of misguided suspicion, that her husband could have committed the murder having suspected the chastity of his wife and her illicit relationship with PW-19, spun the entire story. In the absence of reliable corroboration of the testimony of PW-4 and PW-5 and keeping in view the tainted nature of the investigation, which has been found both by the trial court and the High Court, it would not be safe to rely upon the evidence of PW-4 and PW-5, the two chance witnesses. The reasons given by the High Court to record an order of acquittal of the respondent and discarding the evidence of PW-4 and PW-5 are based on proper appreciation of evidence. In any event, it is not possible to say that the view taken by the High Court, in the established facts and circum-stances of the case, was not a possible view or was even an unreasonable view, much less a perverse view.
8. For what we have said above, we not inclined to interfere with the order of acquittal recorded by the High Court. The appeal, therefore, fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged.
