VITHAPPAGOUDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal presents a slightly unusual set of facts in so far as even though the charge is of murder, the corpus delicti is not traceable. The prosecution alleges that six accused had taken part in the incident on 31-1-1992 at about 7. 30 p. m. at village madanahalli. It is alleged that deceased mastansab maktumsab soudagar was chased by the six accused and that he took refuge in a farm house where, after entering, he bolted the door from inside. A-1, a-2 and a-4 are alleged to have climbed on to the roof and removed one of the zinc sheets. A-l was armed with a gun and a-2 was armed with a pistol and it is alleged that after gaining access through the roof, that they shot mastansab. Thereafter the door was opened from inside and a-6 was asked to bring a bullock-cart into which the body was placed and taken to a spot at a distance of about 5 k. ms. At that place, the body was burnt making use of wood sticks that were available at that spot. It is also alleged that the ashes and other remnants were carried by the accused to a further point near the river where they were disposed of. Since the deceased did not return to his house, his father P. W. 1-mareyamsab maktunsab soudagar went in search of him on sunday, 2nd february, 1992. According to him, P. W. 24-saifansab told him that he had seen the deceased along with a-4, boarding a bus on friday, the 31st january, 1992. P. w. 1-mareyamsab states that he went in search of his son and that he found a towel lying on the path leading to the village which towel was identified by him as the one which the deceased normally carried. On going further, he learnt about the incident and he thereafter contacted the police authorities who came to the village and commenced investigations. In the meanwhile, the farm house where the incident had taken place had been cleaned up and fresh cow-dung had been applied to the floor which was heavily blood-stained in the course of the incident. On checking the adjoining area, the police officer found a few stones which had traces of blood on them and which were attached. In the course of the investigation, the investigating officer also made his way to the spot where the body had been burnt by following the cart-tracks. At this place, all that he could find was the evidence of recent burning which was also confirmed by the adjoining land owners. On checking the spot, the police officer found some coins and he also found two keys which were taken charge of. He also attached the bone splinters which according to him were the remnants of the corpse after the burning. The investigating officer also drew up an inventory of the spot where the ashes and other remnants were alleged to have been thrown near the river, but nothing incriminating was found at that place. The six accused were placed under arrest and on completion of the investigation, they were charge-sheeted for the offence of having been members of an unlawful assembly, the object of which was to commit the murder of mastansab, trespass in respect of the entry into the farm house and an offence under Section 27 of the Indian arms act in so far as the firearms in question had been used for unlawful purposes. There were also two other charges which came to be framed. The first of them is under Section 506, Indian Penal Code in respect of intimidation to the witnesses and a more serious charge under Section 201, Indian Penal Code which was in respect of the wilful destruction of the evidence of the crimes. The accused were committed to the court of session and the trial thereafter proceeded.

(2.) THE evidence essentially consisted of the deposition of the four eye-witnesses-p. w. 2-laxmibai, P. W. 3- irappa, son of P. W. 2, P. W. 4-suresha, brother of P. W. 3, and P. W. 5-bhimashya, brother of suresha. The learned trial judge accepted the evidence of these witnesses and held that the prosecution had established all the charges and consequently convicted all the six accused. They were awarded a sentence of rigorous imprison-ment for life in respect of the murder charge and lesser sentences in respect of the subsidiary charges and it is against this set of convictions, that the present appeal is directed.

(3.) MR. Acharya, learned counsel who appears on behalf of the appellants, contended that the conviction itself is unsustainable in law. In the first instance he submitted that there is virtually no supportive evidence in this case in so far as the body was admittedly destroyed and therefore, there is no medical evidence on record. He submitted that the first aspect of the matter viz. , the fact that the deceased met with a homicidal death has itself not been conclusively established and that this court ought to re-examine the record for purposes of ascertaining as to whether or not serious lacunae as pointed out by him and which according to the learned counsel are fatal to the prosecution, have been overlooked by the trial court or not.