(1.) THE State of Karnataka has assailed the acquittal of respondents 1 and 2 who stood charged with having committed the murder of one mohamed Khaleel at Badrodi Colony, Bidar, on 14-9-1991 at about 6 p. m. It was alleged that Khaleel though a close relative of the accused had a rather colourful background and that on the previous day he is alleged to have caught the hand of Khubra Bi with some ulterior motive. As a result of this, a minor skirmish took place on the afternoon of 14 9-1991 at about noon time but it appears that nothing of real consequence by way of injuries occurred. At about 6 p. m. however, the wife of the deceased P. W. 14-Zaheeda Bee and the father Mohamed Khasim sab as also the brother Mohamed Basheer were in the house when A-1 and A-2 who are father and son are alleged to have come there and asked for Khaleel. Khaleel was a fruit vendor who used to normally stay out the whole day and return only at night and the Bazaar where he was to normally go was known to the accused. We need to mention here that a-2 is the brother and A-l is his father. Apart from this, the witnesses and the deceased all belong to one extended family. The two accused are supposed to have stated that they will find out where Khaleel was and that they will finish him off, and they went towards the Bazaar. According to P. W. 1-Basheer, he followed them at some distance. When the accused found Khaleel, A-1 is alleged to have caught hold of him by his shirt and A-2 stabbed Khaleel with a knife on the lower portion of his stomach i. e. , pubic supra region and thereafter, inflicted another stab injury on the back, apart from four other injuries which are not of much consequence, on the limbs. Seeing Basheer approaching, the accused are alleged to have run away. In the meanwhile, the Police arrived on the scene and after making enquiries from Basheer as to what had happened, his statement which was treated as an F. I. R. was recorded on the spot. Khaleel had died in the meanwhile and the Police commenced their investigations in the course of which they arrested A-l and A-2 on the next day i. e. , 15-9-1991. It is alleged that pursuant to a voluntary statement, A-2 produced a knife which is M. O. 1 which the Police seized under a Mahazar and it is alleged to have been bloodstained. A-2 is alleged to have produced this knife from his residence. On completion of the investigation, the two accused were charge-sheeted for offences punishable under Section 302 read with 304 of the Indian Penal Code. The learned Trial Judge after analysing the evidence of the sole eye-witness mohamed Basheer, who is the brother of the deceased, as also the evidence of the wife Zaheeda Bee and the father Mohamed Khasim Sab, recorded a finding that the evidence suffers from several infirmities, that it was unsafe to rely on such evidence and consequently acquitted the accused. It is against this order that the present appeal has been directed.
(2.) AT the hearing of the appeal, the learned Additional State Public prosecutor Sri Koti and the respondents' learned Counsel Sri R. B. Deshpande have taken us extensively through the entire record and we have also heard their submissions both on factual aspects as also on points of law. Mr. Koti's principal submission is that the evidence of P. W. 1-Mo-hamed Basheer who is the brother, fully and conclusively establishes the fact that on the evening of 14-9-1991 that he had followed the two accused at some distance after they had come to the house and asked for khaleel and according to him, he has personally witnessed the assault and it is his case that A-l was holding the deceased in order to prevent him from escaping and in order to facilitate A-2 stabbing him and that the only reason why the two accused ran away from that place is because they saw him approaching. Mr. Koti points out that the evidence of the Police Officers P. W. 19-P. S. I. Shankar, s/o Rudrappa and P. W. 12-Namdev, s/o Vithal Rao, Police Constable, conclusively establishes that the Police arrived at the scene of the incident virtually within minutes after its taking place and they have stated unequivocally that the brother-P. W. 1 was at the spot. It is also their evidence that P. W. 1 informed them immediately as to who the two assailants were and that p. W. 19-the P. S. I, took down his statement on the spot. Mr. Koti relies on the F. I. R. which sets out the names of the assailants and which in turn has reached the Court within hardly one hour and he submits that there could not have been a clearer and quicker recording of the facts than what has happened in this case. His submission is that the Trial court was totally in error in having rejected the evidence of P. W. 1-Basheer on the ground that the wife P. W. 14-Zaheeda Bee and the father P. W. 20-Mohamed Khasim Sab have not referred to the presence of P. W. 1-Basheer in the house. Whereas it is the express case of P. W. 1 that he was in the house when the accused came and searched for khaleel and that he followed them at a distance, the learned Judge holds that the non-mention of Basheer in the house by P. Ws. 14 and 20 would in terms indicate that he was not there and if this was the position, then the rest of his contention becomes doubtful. Mr. Koti submitted before us that the non-mention of P. W. 1 in the house by P. Ws. 14 and 20 is of absolutely no consequence because those witnesses have referred to the incident vis-a-vis the accused and it is obviously by oversight that they have not mentioned the name of P. W. 1. He has also taken us through the evidence P. Ws. 14 and 20 and pointed out that the learned Trial Judge has been not only strict but extra rigorous while scrutinising this evidence and has virtually rejected it because of minor and insignificant infirmities. Learned Counsel submitted that the evidence of P. W. 1 which finds support from the F. I. R. and the evidence of the Police Officer-P. W. 19 and the Police Constable-P. W. 12 and again, from the medical evidence because the injuries on deceased Khaleel correspond to exactly the injuries which P. W. 1 states were inflicted on him, that the prosecution must be held to have established its case and that consequently, the order of acquittal ought to be set aside.
(3.) ON the other hand, Mr. Deshpande vehemently submitted that it is not one or two minor infirmities which have tainted the evidence of P. W. 1 but that there is a whole string of omissions which have been duly proved through P. W. 15-the C. P. I, and he points out to us that all these omissions taken together cast very serious doubt as to whether the P. W. 1 was in the house when the accused are alleged to have gone there and more importantly on the question of his having witnessed the incident. Mr. Deshpande explains the presence of P. W. 1 when the Police arrived by pointing out that the incident must have caused a commotion or must have spread like wild fire and that P. W. 1 who may have been in the vicinity must have rushed to the spot and having found his brother stabbed to death, that he continued to remain there until the Police came. Mr. Deshpande submits that it is important for the Court to take note of the fact of the so-called motive which is pleaded namely that khaleel had caught the hand of the sister of A-2. Even assuming this was true, it is not an incident of such seriousness as to provoke a murderous assault in retaliation. His submission is that the defence has brought out the fact that deceased Khaleel had a rather dubious record even as far as women are concerned and that if he had misconducted himself with one of the ladies from the family, that he would undoubtedly have provoked an admonition. What he submits essentially is that this was not a case where the lady has been molested or raped in which case, a violent reappraisal could have been triggered off but that the so-called motive itself is extremely weak and could hardly constitute any background for the murder. Also, he points out to us that even as far as the earlier incident is concerned that the versions of P. W. 1, P. W. 14-Zaheeda Bee and P. W. 20-the father do not tally with each other. His submission is that the deceased Khaleel had misconducted himself and that there was every reason to believe that one or more of the persons whom he had infuriated had attacked him Learned Counsel points out to us that even the Serologist report does not establish any bloodstains on the clothes of the accused and furthermore that the recovery panchas-P. Ws. 5 and 6 have also turned hostile. In totality therefore, his submission is that the conclusions arrived at by the Trial Court are neither wrong nor are they perverse. He submits that it is a perfectly plausible point of view and that in an appeal against acquittal, this court must refuse interference.