STATE OF KARNATAKA Vs. NINGAPPA BHIMAPPA UPPAR

JUDGEMENT

(1.) THE State of Karnataka has assailed the acquittal of original accused Nos. 1 to 7 through the present appeal. Original accused No. 1 died on 14-4-1996 and hence, the appeal against him has abated. We are effectively concerned with the remaining accused. The prosecution alleged that accused Nos. 1 to 7 formed an unlawful assembly on the morning of 21-7-1989 near the entrance gate of village Govinakoppa near the Tea Shop in which P. W. 16 Gurupadappa was working and that the accused were armed with axes and clubs and that they assaulted Yankappa, son of Bhimappa Uppar and that his brother Nagappa was also assaulted in the course of the same incident. The injured persons were taken to hospital and Yankappa died at about 9 p. m. on the same night whereas Nagappa survived. We need to record that Nagappa was not available to give evidence because even though he is the complainant, he died sometime before the trial. The learned trial Judge after a careful analysis of the evidence led in the course of the trial recorded the finding that none of the charges were substantiated and consequently acquitted all the accused persons. The present appeal challenges that order of acquittal.

(2.) THOUGH we have heard the appeal on merits and have carefully considered the arguments canvassed by the learned S. P. P. on behalf of the State and learned Advocate Mr. R. B. Deshpande on behalf of the respondent-accused, we confine this judgment to only those of the salient features because it is necessary for us to mention at the very outset that even though the prosecution originally led the evidence of as many as 7 eye-witnesses effectively, the evidence of P. Ws. 1 to 3 and 12 will have to be brushed aside because these witnesses have virtually turned hostile and P. Ws. 6 and 7 who are the sister and wife of Nagappa respectively have again admitted in cross-examination that the injured were lying on the ground by the time they got to the spot. In the light of this position, the evidence ultimately gets limited to the evidence of P. W. 16 Gurupadappa. The learned S. P. P. submitted that the evidence of P. W. 16 Gurupadappa has wrongly been rejected by the learned trial Judge without taking into consideration the most important aspect namely that in cross-examination the entire evidence of this witness has virtually been left uncontroverted. The only question put to this witness in cross-examination, which he has admitted is that he was brought to the Court by Mahadevappa and told what to depose by this person. The learned S. P. P. submitted that this admission has to be viewed at from the context of the earlier answer namely that the witness is working at a dhaba near Dharwar that he was not available to the police for service of summons and that this was the reason why Mahadevappa brought him to the Court and his further submission is that the reference to Mahadevappa telling him what to depose is not to be understood in the context of tutoring but that the Court must view it from the point of view that Gurupadappa is an eye-witness and that he is an independent person who does not belong to either of the groups nor is he related to them and furthermore that his statement was recorded on the very next day of the incident i. e. on 22-7-1989 and trial having been held virtually after the lapse of five years that Mahadevappa had only refreshed the memory of this witness. What the learned S. P. P. was quick to demonstrate to us was that if Gurupadappa had departed from his original version which was recorded by the police that the defence would certainly have contradicted him and further that they would have established or proved the contradiction through the Investigating Officer. He submits that not having done this, the evidence is left unchallenged and he demonstrates to us that Gurupadappa has very clearly referred to the fact that he knows all the accused persons, he knows the deceased-Yankappa as also the injured Nagappa and according to him that he heard the screams on the morning of 21-7-1989 when he was in the kitchen of the tea shop, that he ran out of the shop and witnessed the incident. The submission is that it is well settled law that a conviction can be based on the evidence of a single eye-witness provided that evidence passes the test of absolute scrutiny and the learned counsel submitted that the version of P. W. 16 is corroborated by the medical evidence as far as the injuries on both the persons are concerned, and that in this background, where the defence has left the evidence unchallenged that this testimony alone is sufficient to establish the charges. On behalf of the respondents, Mr. Deshpande submitted that in so far as Gurupadappa admits that he was told what to depose by Mahadevappa that it seriously affects the credibility of the witness and, it is very clear that his evidence is on the basis of tutoring/instigation. His submission is that it is most unsafe to rely on this evidence and to base a conviction on the sole testimony of a witness who has admitted to some sort of influence from Mahadevappa.

(3.) WE have carefully considered these submissions in the light of the legal position. While we do not dispute the fact that a single credible eye-witness would be good enough to sustain a conviction, that evidence would have to be of a very high order and quality. In this instance, the witness claims personal knowledge as far as the identity of both the assailants and the victims are concerned and since he was working in the village we have no hesitation in accepting this position. The real difficulty arises with regard to his admission that he was not only brought to the Court by Mahadevappa but that he was told what to depose. This admission assumes some level of seriousness and we cannot ascribe to the evidence either a watered down or charitable interpretation of this admission such as the submission canvassed by the learned S. P. P. because it is not a question of what was contained in the police statement which is something that the Court has to totally ignore, but the real issue as to whether the witness gave evidence on the basis of his own personal knowledge or on the basis of something second hand. Moreso, in a case such as the present one where the evidence has ultimately narrowed down to its being a one witness case, a Court will have to be doubly cautious in accepting the evidence and if the witness admits to any sort of outside influence of whatsoever nature, when the veracity and the credibility will both be suspect. We do agree with the submission canvassed by the learned S. P. P. that where the whole of the evidence has been left untouched by the defence and where no cross-examination has been done with regard to the narration of the incident that a Court would normally have to accept this evidence and act on it but we are unable to do so in view of the serious legal infirmity that has been set out by us.