STATE OF KARNATAKA Vs. MACHENDRA REDDY AND OTHERS

JUDGEMENT

(1.) The State of Karnataka has assailed the acquittal of the four accused in Sessions Case No. 55 of 1991 through the present appeal. The prosecution arose out of an incident that took place in Gokul Village at about 9 P.M. on 21-1-1991. The four accused before the Court are the sons of one Gunda Reddy and the prosecution case is that these five persons armed with sticks, iron bars and axes had collectively attacked deceased Sangram and inflicted a number of injuries on him in the course of the assault. As far as accused 3 and 4 are concerned, the allegation is that accused 3 is supposed to have physically twisted the arm of the deceased until it virtually broke into pieces and the bones were protruding and accused 3 is alleged to have conducted some similar operation on the leg of the deceased and finished off by smashing the leg with a large stone. Accused 4 according to the version of the witnesses virtually pulverised the deceased by raining blows with an iron rod. The sum total of the assault resulted in the deceased suffering as many as eleven injuries virtually from head to foot, he was lifted and taken to his house where some attempts were made to bandage the injuries and he was thereafter transported to the hospital but he died before reaching that place. The complaint was lodged by P.W. 1-Ramanna who is the brother of the deceased who stated that he was informed about the incident and even though he had not physically witnessed it, that all the elaborate details had been relayed to him. One of the heads of criticism is that there is some delay in lodging the complaint but in our considered view, that is unjustified because having regard to the time of the incident and all that followed, we are of the view that the complaint was lodged within reasonable time. The prosecution alleges that about three weeks earlier some incident relating to fire had taken place at the house of P.W. 12-Kasturi Bai, that a police complaint had been lodged and that when the police came to the village to arrest the accused that they went into hiding and that the deceased Sangram was responsible for assisting the police in arresting some of the accused persons. The prosecution alleges that this was the incident that triggered off intense rivalry between the family of the accused and deceased Sangram and that it was in this background that they attacked him in order to settle scores. We need to mention here that P.W. 12-Kasturi Bai in her evidence denies the incident. The prosecution has not produced any evidence of that complaint and consequently, that aspect of the case which seeks to suggest that this was the motive is not of much consequence. However, it is well-settled law that motive is not a necessary ingredient in criminal cases and we are therefore required to evaluate as to whether the remaining evidence makes out a good case for conviction or not. The learned Trial Judge after a very detailed analysis of the evidence hasrecorded the finding that the inconsistencies are so gross in this case that it would be unsafe to rely on any of the heads of evidence for purposes of basing a conviction and has therefore recorded an Order of acquittal which Order is under challenge by the State in the present appeal.

(2.) We have heard the learned Government Pleader and the learned Counsel who represents the respondents-accused and we have done a careful and complete re-evaluation of the record. The main reason for this is because this is not a border line case insofar as even after discarding the evidence of the hostile witnesses we still have the evidence of the wife, the son, the neighbour and independent witness who is a Retired Police Head Constable. The learned Government Pleader advanced an interesting argument insofar as he pointed out to us that the principle infirmity in this case centres around the fact that while the evidence of each of these four witnesses is reasonably good and is reasonably reliable that when the evidence is examined inter se that it is mutually destructive. This has proved fatal to the prosecution in the Trial Court and it is only this aspect of the law that is required to be re-examined in this appeal. For instance, we shall demonstrate by pointing out that P.W. 4-Vinayak who was aged ten years at that time claims that his father Sangram and he left the house that night because his father desired to purchase bidis and according to him it was on the way to the shop that the five accused persons assaulted Sangram. Vinayak has given a detailed description of the incident and he has implicated all the four accused who are before the Court but the problem that comes up is that he contends that he remained there until the assault was complete, that he went to his house and brought his mother to the scene of offence. The mother Bhagirathi Bai on the other hand claims that some of the local boys informed her of the assault, that she rushed to the scene of offence and that she witnessed the whole of the assault. There is a slight discrepancy because there is also the suggestion that her son P.W. 4 called her to the scene of offence. Either ways, the incident was of a very short duration and it would have been physically impossible for her to have witnessed the incident because of the time factor. This would cast a serious doubt with regard to her basic claim that she was an eye-witness. It would also mean that her entire narration is on the basis of hearsay and what she had stated on oath claiming insistingly to be an eye-witness considerably impeaches her credibility. Coming back to the son Vinayak while we do concede that if there was a murderous assault on the father that we do not expect a ten year boy to either intervene or fight for his father or to rescue him but what we do except is that he would have run away from there to the closest point and raised an alarm out of the motive of self-preservation and in order to attract attention of the incident so that persons could rush there and save his father. This become all the more relevant because P.W. 13 who is a resident of the village and virtually lives in the very next house to where the incident took place is categorical about the fact that P.W. 4 was not at all present when he witnessed the incident. P.Ws. 3 and 4 are also very clear about the fact that P.Ws. 9 and 13 who claim to be eye-witnesses were not present when the incident took place.

(3.) It is on the basis of this confusion, that the learned Trial Judge through a process of elimination has recorded the only possible conclusion that it would be impossible to rely on the evidence of these witnesses all four of whom claim to be eye-witnesses and to base a conviction on that evidence. The learned Government Pleader has advanced an even better argument because he contends that the Court should not lose sight of the fact that P.W. 9 who is in fact a visitor to the village and a stranger to both the parties and P.W. 13 who is a Retired Police Head Constable and is also in no way related or connected to either of the parties have both implicated all the four accused and their versions are not really divergent. His submission therefore is that the Court may for the time being set aside the evidence of P.Ws. 3 and 4 in view of the obvious problem but that since the defence has not been animus or able to allege any motive or hostility on the part of P.Ws. 9 and 13 that the Court would safely base a conviction on the evidence of these two witnesses corroborated by the recovery evidence and more importantly by the medical evidence. We hasten to add that the evidence of P.Ws. 9 and 13 does not really tally and that there are considerably serious infirmities between the version of these two witnesses. P.W. 9 is a visitor to the village who had come there for a loan transaction and he is in the category of a chance witness. P.W. 13 though an independent witness who does give rise to some level of doubt because P.Ws. 3 and 4 are categorical about the fact that neither P.W. 9 nor P.W. 13 were present when the incident took place. In sum total therefore, it would not be permissible for us to completely shut our eyes to the evidence of P.Ws. 3 and 4 because they are family members. They claim to be eye-witnesses and they are an intrinsic part of the prosecution case and consequently, one cannot ignore that evidence as was the argument put forward by the learned Government Pleader. Apart from this, we find some difficulty in placing total reliance on the evidence of these two witnesses which does suffer from a host of infirmities, particularly when tested in the light of the medical evidence and consequently the submission canvassed is not really acceptable.