RAZAK ALIAS ALLYA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THESE Appeals are filed by the accused persons of Sessions Case No.48/2011 on the file of the II Additional Sessions Judge, Bijapur, against the judgment of conviction and sentence dated 30th January 2014. By the impugned judgment, the appellants i.e., accused Nos.1 to 4 are convicted for the offence punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code.

(2.) BRIEFLY stated the case of the prosecution is: On 19.10.2009, deceased Ramzan Madabhavi had won Rs.20,000/ - in cards game on the eve of Deepavali festival. All the four accused persons with a common intention to grab the said amount and to commit his murder, at 12.30 midnight took the deceased in the Auto Rickshaw bearing No.KA -28/7049 belonging to accused No.4, to the Goat Bazaar (Market) situated behind the APMC Godown at Bijapur; accused Nos.1 to 3 assaulted him with boulders on his head and face and disfigured him beyond identity and done himto death; thereafter disposed off the body in the garbage.

(3.) ON committal, learned Sessions Judge framed charge against the accused persons for the above offences. They pleaded not guilty and entered trial. The prosecution examined totally 17 witnesses as PWs -1 to 17 and marked documents Exs.P1 to P16 and produced M.Os.1 to 10. One document for the defence was marked as Ex.D1 during the evidence of prosecution witness. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. They totally denied the incriminating evidence appearing against them. They opted not to enter into defence. After hearing both parties, the learned Sessions Judge convicted accused Nos.1 to 4 for the offence punishable under Sections 302 and 201 read with Section 34 of I.P.C. It is the synchronous submission of the learned Counsels representing the accused persons that the trial court rested its findings totally on assumption and presumption, which is inadmissible; the statements of highly interested witnesses, which are superficial and contradictory to the probabilities of human conduct, are believed. Fair version of the incident was not displayed by the prosecution before the court. Though the place where the dead body was found is surrounded by residential quarters, shops and godowns, none of the local witnesses were examined. The 'last seen' theory is applied on the evidence of PWs -1, 8, 9 and 15 but, none of them were independent witnesses. They are either the kith and kin of the deceased or the residents of neighbourhood. The alleged place of offence is hardly within the vicinity of the APMC Police Station. There were a good number of security guards engaged by the APMC authorities and also security personnel engaged by shop owners; since it was the eve of Deepavali, good number of Police were also deployed as a precaution against the untoward incident that could be caused by the gamblers; none of such natural witnesses are examined by the prosecution.