STATE OF KARNATAKA Vs. SHESHADRI SHETTY

JUDGEMENT

(1.) WE have heard the learned Government Pleader as also the learned Counsel who represents the respondent-accused. The facts of this case are rather distressing insofar as the prosecution alleges that pursuant to some communal disturbances in the town of Bhadravathi, on the evening of 21-8-1994 at about 8 p. m. , a mob of approximately 200 to 300 persons are alleged to have decided to target the grocery store of one Mohammed Ibrahim. The police were informed about this and they rushed to the spot but it was not possible for them to avert the disaster because it does appear from the record that the mob had already set fire to the premises using kerosene, petrol and other inflammables. After warning the persons present there, the police opened fire in the air whereupon the entire mob dispersed and the persons are alleged to have run away. According to the prosecution, some of the participants were known to the police constables and to PW 8 who was the Sub-Inspector of Police. These persons were therefore recognised by them as being participants and they came to be arrested and charge-sheeted by the police for offences punishable under Ss. 143, 147, 148, 427, 436 r/w. 149, IPC, The substratum of the prosecution allegation is more or less evident from the fact that accused No. 1 is referred to as a B. J. P. activist and it does appear that the attack was communally motivated because the owner of the shop mohammed Ibrahim belonged to another community. What happened was not only unfortunate but downright despicable because the victim was running a small grocery shop, that was obviously the source of his livelihood and merely because his name, religion or community were unacceptable is really no ground on which he could have been subjected to what happened. The burning down of his shop could have really meant the end of the world for Ibrahim and his family and it does appear from the fact that he was not available at the time of the trial, that he must have fled the place fearing for his life. We refer to this aspect from the limited point of view of emphasizing the seriousness of the situation and the learned govt. Pleader was quite right when he pointed out that if instances of this type go unpunished, wrong signals would emerge and the sad possibility of repetitions only gets heightened. The fifteen accused in this case have been acquitted by the trial Court because a conviction was legally unsustainable and, having regard to the overtones of the whole incident the State has filed an appeal assailing the Order of acquittal. We have heard the learned Counsel on both sides, both on facts and on law and we have also done a total review of the record which , is rather limited.

(2.) THE only witnesses who have not turned hostile and whose evidence has survived are all witnesses belonging to the police department. That is perfectly understandable and there is no reason why in a case of the present type a conviction cannot be based on the evidence of these witnesses. For one thing, being members of the police force the normal charge that the witnesses are interested or that the witnesses are related would not arise. The prosecution evidence would therefore have to be evaluated at face value, which we have done and the short question is as to whether the Order of acquittal recorded by the trial Court needs to be interfered with.

(3.) ONE of the basic legal infirmities which have been held against the prosecution by the trial Court emanates from the fact that pw. 8, H. Manjappa who was the Sub-Inspector of Police at the relevant time had gone to the spot and being also the Investigating Officer has recorded his own complaint, treated it as the FIR and has proceeded with the investigation. The legal complications that emanate from a situation of this type have been highlighted by the Supreme Court in the case of Megha Singh v. State of Haryana reported in 1995 Cri. L. J. 3988 : (AIR 1995 SC 2339) wherein the Investigating Officer was the very person who had lodged the complaint which was treated as the FIR and the starting point of the investigation. The Supreme Court disapproved of the procedure and undoubtedly, there was very valid reason for it because the Supreme court has indicated that where the Investigating Officer happens to be the complainant that it would be perhaps difficult to uphold the position that the investigation was impartial. An impartial investigation is the essential bed-rock for any successful prosecution. Undoubtedly this situation was very very unusual and was something that rarely ever happens in criminal cases but the Supreme Court was quick to point out that this is a legal infirmity or an impediment. This is precisely the plea that was put forward before the trial Court. The trial Court upheld the plea and it was one of the principal grounds on which the accused have been acquitted.