STATE Vs. VAIJINATH

JUDGEMENT

(1.) AN incident of some seriousness took place around midnight on 30-11-1992 at Kardiyal Village when it is alleged that accused 1 to 5 along with absconding accused Veershetty are alleged to have formed an unlawful assembly and assaulted deceased Prabhu as a result of which he lost his life. It was also alleged that Prabhu was tied up when he was sleeping on the katta of the post office and taken to the road, thrown on the ground and further assaulted. Prabhu died on the spot and the six accused persons came to be arrested and charge-sheeted for the offences punishable under Section 302 read with Sections 148 and 149 of the IPC and Section 342 read with Section 149 of the IPC. The learned Trial judge after a very detailed analysis of the evidence recorded a finding that the prosecution has failed to establish the charges beyond reasonable doubt and therefore acquitted the accused. The charge-sheet filed against absconding accused 6 was separated. The State of Karnataka has assailed the correctness of this decision through the present appeal.

(2.) WE have heard the learned State Public Prosecutor at length and we have also done a thorough review of the record which is relatively heavy. We have also heard learned Counsel Mr. R. B. Deshpande on behalf of the respondents-accused. The principal submission canvassed by the learned State Public Prosecutor is that even though the learned trial Judge followed a relatively balanced approach while assessing the evidence, that the basic and fundamental error committed by him is that he has applied too rigorous a test to the evidence totally overlooking the fact that the witnesses are rustic villagers. P. Ws. 1, 2 and 3 are eye-witnesses and the learned State Public Prosecutor after taking us through the evidence of these witnesses has pointed out to the Court that the infirmities that have been noted by the Trial Judge are undoubtedly there but that these are not of much consequence and that if one applies the well-defined test laid down by the Supreme Court of separating the grain from the chaff that after eliminating the infirmities that the substratum of the evidence still makes out a clear case for a conviction particularly as far as accused 1 is concerned. Though accused 1 is the father of the deceased Prabhu and though the prosecution case is to the effect that the entire dispute took place because Prabhu was insisting on a further share of the property being given to him, the learned State public Prosecutor submitted that the motive is not of any consequence because there is evidence as clear as daylight from nobody other than p. W. 1-Channamma that it was accused 1 who sat on the chest of the deceased and inflicted a stab injury on the upper part of his body as a result of which Prabhu died on the spot. The learned State Public Prosecutor further pointed out to us that the medical evidence fully corroborates the evidence of P. W. 1 and that the evidence of P. Ws. 2 and 3, even though it is slightly divergent, does not in any way detract from the evidence of P. W. 1 insofar as both these witnesses have in terms deposed to the fact that the accused were present, that they were armed with different types of weapons and that they had participated in the assault. In sum and substance therefore, what was contended was that the order of acquittal has resulted in a serious failure of justice and that it is incumbent that this Court interferes with the order and convicts the accused.

(3.) WE have briefly summarised the arguments of the learned State public Prosecutor because a perusal of the record would indicate prima facie that there are no basic or serious infirmities that would justify the court doubting the credibility of the eye-witnesses in this case. Once that position is established normally, a conviction would follow almost as a matter of course. There is one interesting aspect of law that has surfaced in this appeal which is almost unanswerable. The respondents' learned Counsel submitted before us that the evidence of P. W. 1 who claims to be an eye-witness will have to be tested in the light of certain other material on record and if that is done, it would be extremely unsafe to rely on that evidence. What Mr. Deshpande submitted was that P. W. 1 who is the mother of the deceased and the wife of the accused 1 was undoubtedly in a very delicate position because the deceased was her son and the main accused in the trial was none other than her own husband. Despite this and the fact that she is an ordinary village lady, she has given a complete and clear-cut description of the incident mentioning that all the six accused were present, the weapons carried by them and the assault and the fact that as a result of which her son Prabhu was murdered. What Mr. Deshpande was quick to point out to the Court was that before acting on this evidence and recording a conviction the Court would have to overcome an almost insurmountable situation that is peculiar to this case. While P. W. 1, the mother is very categorical about the fact that the entire incident took place at that spot namely, the katta of the post office which is in front of their house, p. Ws. 2 and 3 are categorical about the fact that the deceased was tied up with a rope and then carried by the accused to the road which is some distance away where he was assaulted. The sketch on which Mr. Deshpande places heavy reliance indicates that the dead body was lying on this spot on the main road which is a long way off from the katta and the house of P. W. 1. Learned Counsel submitted before us that if one were to check the panchanamas that have been drawn up, it will be found that there were no bloodstains at the katta. If deceased Prabhu had been stabbed on the neck, there would have been profuse bleeding and the panchanama of that spot would have clearly noted this. The absence of any trace of blood would cast serious doubt on the evidence of p. W. 1 who maintains that Prabhu had been murdered at that spot.