(1.) THE State of Karnataka has assaulted the correctness of the judgment and order passed by the learned IV Additional Sessions Judge, Bijapur, in Sessions Case No. 115 /1998. The prosecution had alleged that the accused who is the husband had assaulted the deceased wife Muttawwa in front of his hut on 24-3-1998 at about 5 PM with a sickle and stone. The assault was one of considerable seriousness and as a result of the same, Muttawwa died on the spot. The incident in question was witnessed by PWs. 1 and 2. P. W. 1 Mahadeva is the son and P. W. 2. Rukmavva is the daughter who at the relevant time was aged about 15 years. The apparent reason for the assault was because the accused suspected the fidelity of the wife and he was harboring the suspicion that Muttawwa was carrying on a love affair with one Ningappa Appanna Jagadal who is P. W. 9. The assault on Muttawwa was rather savage in so far as the postmortem notes indicate that the accused had not only assaulted her but that he had virtually battered and bashed up her face with the stone. The incident was reported to the police, the accused was arrested and on completion of the investigation he was charge-sheeted for an offence punishable under Sec. 302, IPC. At the trial, the evidence virtually narrowed down to the depositions of P. Ws. 1 and 2, namely, the son Mahadeva and the daughter Rukmavva. The learned trial Judge took note of the fact that P. W. 2 was a child witness and furthermore that P. W. 1 the son, in the view of the learned trial Judge had deposed on the basis of information gathered from P. W. 2 and not on the basis of his own knowledge. The reason for this was because the learned trial Judge held that Mahadeva had come to the scene of offence after the actual incident took place and that the report of what had happened had been relayed to him by the sister. The learned trial Judge assessed the evidence of Rukmavva and came to the conclusion that it is not of a sufficient caliber that would instill the confidence in the court to the extent that a Court base the conviction on the sole testimony of P. W. 2. The supportive evidence in this case establishes that the deceased met with a homicidal death but as far as fixing of the liability is concerned, if the evidence of P. Ws. 1 and 2 is unacceptable then a conviction would be unsustainable. It is for this reason that the learned trial Judge recorded an order of acquittal against the accused. The State has preferred the present appeal assauling the correctness of the order acquitting the accused.
(2.) THE accused did not engage any advocate before the trial Court and was afforded State assistance. After service of the notice in this appeal the accused has not engaged any lawyer of his choice and we have therefore appointed learned Advocate Sri G. A. Chandrashekar to appear as amicus curiae. The learned SPP has very ably argued the appeal on behalf of the State and we need to record our equal appreciation for the efforts put in by the learned advocate Sri Chandrashekar who has represented the respondent-accused and who has studied the case well and advanced his submission supporting the order of acquittal.
(3.) THE main submission canvassed by the learned SPP is to the effect that this is a case in which the two witnesses who have been cited by the prosecution P. Ws. 1 and 2, are none other than the son and daughter of the accused and the deceased. Secondly, what is pointed out is that both of them were residing with the parents and are not strangers or passersby or even neighbours for that matter. The submission is that their presence is perfectly natural and normal and that consequently the learned trial Judge was in error in having doubted their presence at the scene of offence. The learned SPP has demonstrated to us from the depositions that the defence did try to establish that Rukmavva was not present when the incident took place, that she had only seen the dead body and that only because of some hostility between the father and the mother which had been going on for sometime that she informed her brother that the father was the assailant. Similarly, the case put to Mahadeva is that he was out of the house, and that he received the news of the assault on the way home. What the learned SPP has pointed out is that the witnesses have denied the suggestion but more importantly he has demonstrated to us from the caliber of the evidence that first of all P. Ws. 1 and 2 are rustic villagers and secondly that if one were to examine the evidence virtually line by line both in the examination-in-chief and cross-examination that it will be very clear that these witnesses have neither been tutored nor have they fabricated. He has then taken us through the cross-examination and the submission which he has advanced merits due consideration from this Court. What the learned SPP points out to us is that the charge regarding fabrication could be made in instances where hostility is demonstrated between the witnesses and the accused or that the charge of fabrication could be levelled in cases where presence of the witnesses is seriously in doubt. Having established that the witnesses were residents of that place and were present when the incident took place and furthermore that they were the son and daughter of the deceased and the accused, his submission is that the grounds on which the evidence has been faulted by the trial Court are totally unjustified. He has also emphasised that the quality of the evidence was very high in so far as it has not been shattered in cross-examination nor has it been diluted to the least extent and that consequently, this evidence will have to be accepted in its entirety. What he next demonstrates is that the supportive evidence viz. , recovery of the sickle and the stone fully corroborates the evidence of P. Ws. 1 and 2 in so far as the number of injuries and the nature of injuries tally with the weapons used. Secondly, what he submitted is that the evidence fully makes out the charge under Sec. 302, IPC and that the accused is liable to be convicted.