STATE OF KARNATAKA Vs. AKBARSAB AMEENSAB UMACHAGI

JUDGEMENT

(1.) THIS appeal has been preferred by the State of Karnataka assailing the acquittal of the accused persons in Sessions Case No. 130/1990. Before dealing with the facts and the law, we need to clarify that even though there were 3 accused before the trial Court that the original accused No. 1 has died and therefore, in this appeal we are confining the consideration to original accused Nos. 2 and 3 only. Briefly stated, the prosecution case was that on 7-8-1990at about 9 p. m. at Korageri lane in Harti village within the limits of Gadag Rural Police Station that the accused persons acting in furtherance of their common intention had committed the murder of Channappa Bandi Waddar and that in the course of the same transaction they had caused an injury to his son P. W. 4 Basappa. It is alleged that there was some argument between P. W. 5 and the accused earlier to the incident over the distribution of some relief material to persons who had been involved in a riot. The argument culminated in P. W. 5 and the accused grappling with each other and the deceased is supposed to have come on the scene in an attempt to separate these persons. The problem virtually travelled some distance close to the house of the accused and it is alleged that accused No. 2 came with an axe and aimed a blow at the deceased whereupon his son P. W. 4 tried to ward off the blow which he was successful in doing because the axe landed on his hand and he suffered a relatively minor injury. P. W. 4 managed to get hold of the axe from accused No. 2 and just at that time it is alleged that accused No. 3 stabbed the deceased who immediately fell down as a result of the injury and died very shortly thereafter. It transpired that accused No. 1 appears to have gone to the Gadag Rural Police station and conveyed some information to the police constable who in turn conveyed the same to the Sub Inspector P. W. 18 who came to the spot and recorded the complaint and thereafter proceeded with the investigation. In the meanwhile, accused No. 1 had been taken to the hospital for medical attention and was kept there until the next day. The investigating officer P. W. 17 has pointed out that pursuant to the statements made by the accused that the weapon in question which is MO. 2 axe and the knife MO. 16 were recovered at their instance. On completion of the investigation, the accused were put up for trial and the learned trial Judge after a consideration of the evidence of P. Ws. 1 to 18 and Exs. P. 1 to P. 23 and MOs. 1 to 16 and Exs. D. 1 and D. 2 recorded the conclusion that the prosecution had failed to establish the charges and acquitted the accused. The present appeal is directed against this decision.

(2.) AT the hearing of the appeal, the S. P. P. initially took us through the judgment of the lower Court, the reason being that this is an appeal against acquittal and it has first got to be demonstrated by the prosecutor that interference is necessary by this Court. We find on a perusal of the judgment that the learned trial Judge has virtually rejected the prosecution evidence from beginning to end and that it does appear to us rather strange that virtually nothing has been accepted by the trial Court. This is a case in which there are as many as seven virtual eye witnesses and having very carefully reviewed the entire record and assessed the quality of their evidence very meticulously we find that there is virtually no conceivable ground on which any Court could have rejected all this evidence despite which it has been done. It is rather unfortunate that this had happened because it is very necessary for criminal Courts to ensure that justice in the true sense of the term is done. While there can be no doubt about the fact that on the ground of well defined principles of appreciation that if the evidence is unsatisfactory or if the evidence is weak or a conviction is not permissible or is not warranted according to law that the Criminal Courts must acquit the accused; it is equally true that in cases where the evidence is more than sufficient where the evidence is credible, where the charge is brought home and where on the basis of all acceptable canons of criminal jurisprudence a conviction is the only correct verdict, that in such cases the Court must be extremely careful about ensuring that there is no miscarriage of justice. This is not the only instance where we are constrained to observe that this has happened which is why it becomes necessary for us to reiterate once again what the law and propriety demand of the trial Court. Suffice it to say that after a perusal of the judgment, we are of the view that the case does require a very serious reconsideration and we have therefore heard the appeal on merits.

(3.) THE prosecution evidence rests heavily on the testimony of P. W. 4 Basappa. We commence with this witness for a special reason in so far as even though he is the first of the seven eye witnesses in order of sequence, what is more important is that he is the son of the deceased and the person who had narrated the entire incident. According to him, even though his party and the accused are on cordial terms in so far as there is no hostility or enmity between them that some argument emanated over the distribution of certain provisions to the riot victims which was resented by the accused,the argument took a physical turn and P. W. 5 Hasanappa and the accused No. 1 were grapping with such other and the deceased tried to play the role of a peacemaker. The matter did not subside immediately and when they reached in front of the house of the accused, accused No. 2 aimed an axe blow at the father of P. W. 4 which P. W. 4 was able to word off as a result of which he sustained an injury on his thumb. According to him, he snatched the axe from P. W. 2 and threw it down but he states that in the meanwhile P. W. 3 stabbed his father with a knife as a result of which his father collapsed. He was bleeding profusely and he died at that place itself. The witness has more categorically stated that there was enough of light when the incident took place as the street light was burning and he has also identified the three accused as they were known to each other. The witness has been cross-examined at some length but as far as his evidence concerning the incident goes, the version remains unshaken. Nothing has been brought out on the basis of which his evidence can be discredited.