MALLAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This is an appeal under Section 2-A of the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act. The 13 appellants, original accused 2 to 14, along with one Narasappa, original accused 1 were tried by the learned additional Sessions Judge Gulbarga for offences punishable under Sections 148, 302 and 302/149 Indian Penal Code and they were acquitted. The State preferred an appeal and a division bench of the High court reversed the order of acquittal and convicted all the 14 accused. Thereafter Narasappa, original accused 1 died. During the pendency of this appeal in this court, it is reported that Mookappa alias Sabanna son of Shivrappa, appellant 8, original accused 9 died. The prosecution case is as follows :

(2.) There are three deceased persons in this case. Doida Galib Patel, marappa, Bheemanna, the deceased persons and the material witnesses PWs 1, 2, 3 and 4 belong to Village Mundergi within the limits of Yadgiri Police station. The 14 accused also belong to the same village. There had been long- standing enmity between Public Witness 1 and some of the accused. On the day of occurrence namely, 7/5/1980, Public Witness 1 went to Yadgiri to purchase some groundnut seeds along with D-l. They reached Yadgiri at about noon time. They were told that the shop owner Chammallappa was not there and his son-in- law was present who told them to come after two days. As it was hot they took rest for some time. Both of them then started to walk to their village at about 5 p. m. as they could not get the bus and they wanted to go by walk as their village was not far away. Deceased 2 and deceased 3 also joined them. On their way, pw 2 Khasim Patel who was also going to the same village accompanied them. They were passing through the footpath, near Tambara Kere, another witness namely Bukkappa (not examined) also joined them. When they covered some distance they saw two ladies Chanbasamma and Narsamma also going. When they reached near Shivana's land, they heard the sound of footsteps and when they turned back then they saw A-1 to A-14 coming behind them. Public Witness 1 was hit by a stone on the left side of his hip. Out of 14 persons, except A-12, the others were holding sticks, axes and knives. Deceased I was hit by another stone as a result of which he fell down and D-2 and D-3 wanted to raise him. By that time a-1, A-2, A-6 and A-7 started attacking with axes and A-10, A-11, A-14 beat with the sticks as a result of which D-l died after sustaining bleeding injuries. A-3 and A-5 and A-4 and A-7 axed the deceased Marappa as a result of which he also died. Bhimanna deceased was grappling with A-1 and when A-1 cried out, he was bitten, A-9 and A-13 went and beat Bhimanna with sticks as a result of which he moved to the side and then A-1 took out a jambia and hit him and when he fell on the ground, A-2 and A-6 hit him with the axes. A-12 was instigating others. Public Witness 1 who received injuries due to the stone hits ran to the village. Meanwhile the accused persons ran away from the place. Public Witness I informed the father of D-l about the occurrence and thereafter went to his own house and informed his family members. On that night he could not go to the police station as he was afraid and on the next morning at about 7 a. m. on coming to know that nobody lodged the report, at about 8.30 a. m. went to the police station and gave the FIR which was reduced to writing by ASI - Public Witness 19. A case was registered and investigation commenced. The investigating officer visited the scene of occurrence, sent the dead bodies for post-mortem and also pw I for medical examination. The doctor who conducted the post-mortem on the dead bodies found number of injuries. He also found some injuries on Public Witness I which could have been caused by a stone hit. Some of the accused were arrested and at their instances, recoveries were effected. After completion of the investigation, the charge-sheet was laid. The prosecution mainly relied upon the evidence of the eyewitnesses PWs 1 to 4. The plea of the accused is one of denial and they pleaded that due to enmity they have been falsely implicated. The learned Sessions Judge acquitted all the accused on the ground that there was delay in giving the FIR and that the names of PWs 3 and 4 were not mentioned in the FIR and the conduct of PWs 1 and 2 namely not informing anybody about the incident particularly to any of the relatives of the deceased is unnatural and since there was semi-digested food found in the stomach of the deceased, the occurrence must have taken place sometime after taking the night meal and not at 5.30 p. m. and PWs 1 and 2 have improved their versions by giving details of the attack at a later stage. According to the learned Sessions judge it was not safe to rely on the evidence of these witnesses and accordingly acquitted all the accused.

(3.) The High court on the other hand held that mere delay by itself is no ground to reject the evidence of the eyewitnesses and that the presence of Public Witness 1cannot be doubted and that because of mere presence of semi-digested food it cannot be said that the occurrence must have taken place late at night. The High court also observed that the FIR need not contain all the details and on the other hand in the instant case the names of all the accused have been mentioned and the medical evidence corroborates the injuries caused and that the reasons given by the trial court are wholly unsound and accordingly set aside the order of acquittal.