H C KARIGOWDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This appeal by the appellants/accused Nos. 1, 3 to 9 is directed against the judgment and order dated 18/22.9.2008 passed in SC No. 143/2005 by the Addl. Sessions Judge, Fast Track Court-I, Hassan convicting them for the offences punishable under Secs. 143, 147, 148, 341, 302, 427, 120B r/w Sec. 149 of IPC and sentencing each of them to undergo S.I. for three months for the offences punishable under Sections 143, 147, 148 of IPC, to undergo S.I. for one month for the offence punishable under Sec. 341 r/w Sec. 149 of IPC, to undergo imprisonment for life and to pay a fine of Rs. 2000/- each in default to undergo S.I. for six months for the offence punishable under Section 302 r/w Sec. 149 of IPC and to undergo S.I. for three months for the offence punishable under Section 427 r/w Sec. 149 of IPC. Brief facts of the case are:

(2.) During the pendency of this appeal, it is reported that, accused No. 9 committed suicide. In support of the same, learned Counsel for the appellant has also produced the UDR report and FIR registered on the basis of the information of the death of A9. In view of the same, appeal preferred by A9 gets abated.

(3.) Sri Hashmath Pasha, learned Counsel appearing for the appellants/accused assailing the impugned judgment and order, firstly, contended that Ex.P2, the first information in the case is hit by Section 162 of the Code of Criminal Procedure as the Police had information about the occurrence much prior to the registration of the case. In this connection, he submitted that the evidence on record reveals the Police had earlier information of the occurrence and immediately thereafter, they had visited the scene of occurrence and had removed the bodies to the hospital and later at about 11.00 p.m. in the hospital, Ex.P2 of PW-4 has been recorded. The evidence of PW-3, PW-4, PW- 10 and PW- 11 reveals that the Police had come to the spot much prior to the registration of the case in pursuance of Ex.P2. Ex.P2 cannot be treated as the first information as the investigation had already commenced. Therefore, the subsequent events that have taken place will have to be viewed in a suspicious manner which does not inspire confidence to place any reliance on the same. He further contended that in so far as the testimony of the eyewitnesses is concerned, namely, PWs-3, 8, 9, 10, 13, 11, 17 and 18, they are all interested witnesses being related to each other. Among them some of them are the brothers of the two deceased. The names of PWs-8, 9, 10, 13, 17 & 18 has not been mentioned in the first information report. Further, the statements of PWs-9, 10 and 18 has been recorded nearly about five days after the occurrence and that by itself is sufficient to hold, their testimony cannot be relied upon claiming that they had witnessed the occurrence. In so far as the injured witnesses PWs-4 and 18 are concerned, he submitted that PW-4 has turned hostile. He has not supported the case of the prosecution. PW-18, the other injured eyewitness has got himself treated at Mangala Hospital in Hassan at the hands of PW-19 on 23.05.2005 and as his statement came to be recorded by the Investigating Officer on 05.06.2005 about 13 days after the occurrence. If really, these two witnesses had sustained injuries at the hands of the accused as projected by the prosecution. PW-4 would not have turned hostile and the statement of PW- 18 could not have been recorded about 13 days after the occurrence. He also pointed out, when PW-4 according to the prosecution has gone to the hospital at Holenarasipura, immediately after the occurrence, PW18 has escaped from the spot and has taken treatment at Hassan. The evidence of these two injured witnesses therefore does not inspire confidence to place reliance on them. He further submitted the ocular testimony of the alleged witnesses examined by the prosecution is in direct conflict with the medical evidence on record. The eyewitness claim that the two deceased were assaulted with choppers and longs. The two Medical Officers, who have conducted autopsy, namely, PWs-21 and 27 have not noticed any incised wounds on the two deceased. Therefore, the claim of the eyewitnesses that the two deceased were assaulted by the accused with choppers and longs, cannot be believed. He also further contended in so far as the recovery of MOs-18 to 26 at the instance of A1, A3, A6, A7 & A9 cannot also be believed for the reason. Firstly, the recoveries of the aforementioned material objects have been made much later to the date of arrest of the accused and recording of their voluntary statement. Nextly, on account of direct evidence being untrustworthy, he submitted, as all the eye witnesses to the occurrence are related to each other interse, they being interested and as their testimony is not corroborated from any independent quarters, no reliance can be placed on them. He also contended, according to the prosecution, the two deceased were assaulted with three choppers wielded by A1, A5 & A6 and with three longs by A3, A7 and A8. What has been seized during the course of investigation is only one chopper MO-18 and no explanation is forthcoming with regard to the non- seizure of the other two choppers which according to the prosecution has been used by the accused in the commission of the offence. The learned Trial Judge without appreciating this material on record in its right perspective has come to an erroneous conclusion in holding that the accused are guilty of the offence punishable under Section 302 of IPC and other allied offences for which they have been convicted. He also contended the prosecution case is that, in pursuance of the conspiracy that had been hatched on 21.05.2005 in the evening near Borappa's temple at Kyathanahalli Village by the accused, they had committed this offence on the evening of 22.05.2005 near the house of PW-12 on the road running in between Halekote to Kyathanahally. As the prosecution did not lead any cogent evidence on this aspect, the learned Trial Judge has acquitted all the accused of the said charge of conspiracy and A10 & A11 of all the charges levelled against them. As the initial conspiracy according to the prosecution has failed in view of Ex.P2 having been hit by Section 162 and having regard to the conduct of the prosecution witnesses, they being interested, the accused cannot said to have committed the aforementioned offences. Therefore, the impugned judgment and order of conviction and sentence passed on the appellants be set aside and they be acquitted.