SIDDASETTY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE three appellants before us were the original accused in Sessions Case No. 37/1991 on the file of the IInd Additional Sessions Judge, Mysore. The accused were charged with having committed the murder of Mahadeva Setty on 30-1-1991 at about 3. 30 p. m. in front of Narayanaswamy temple at Mangala village which comes within the jurisdiction of Kuderu Police Station. Briefly stated, the prosecution contends that there was a dispute between the side of the deceased and the side of the accused in respect of a share in the land ad measuring 3 acres being Sy. No. 587/4. It has come on record that the deceased and his brothers and the accused were quarrelling over the share in respect of this land because the three accused who were the sons of the first wife of Mada Setty contended that they were entitled to the proportionate share whereas this was being resisted by the deceased and his brothers who were the sons by the second wife. We are not much concerned with the inter se dispute because the immediate provocation for the incident appears to have arisen from the fact that the deceased Mahadeva Setty had proceeded on the morning of that day with a bullock cart to the land where he had felled a tree, cut it into pieces and was returning with the wooden pieces in the bullock cart. At that time, the three accused are alleged to have attacked him in front of the Narayanaswamy temple. The prosecution alleges that A1 used a cart peg, A2 used an iron rod and A3 used a small axe normally known as pichu Kodali in the assault. It is the case of P. W. 1 who is the brother that P. W. 2-Nagaraju ran and informed the brother P. W. 1 about the fact that the three accused were assaulting the deceased where upon P. W. 1 rushed to that spot and because he shouted, the three accused stopped assaulting the deceased and ran away from that place. The medical evidence indicates that the deceased had sustained as many as 13 external injuries out of which, two were serious namely the injuries on the head and on the legs. As a result of the assault, the deceased died on the spot and P. W. 1 thereafter lodged the complaint which is the F. I. R. at the Police Station at about 6 p. m. on that evening. A copy of the F. I. R. was transmitted to the learned Magistrate at about mid night on that day. The defence has contended that this delay is of consequence because of the fact that this is one of the few cases wherein the star witness for the prosecution had admitted in unequivocal terms that he is extremely hostile to the accused persons. The defence is basically one of denial and by implication, what is contended is that there has been a history of disputes and incidents between the two groups though they are the children born through two wives and that therefore the accused have been falsely implicated in order to virtually get them out of the picture so that the other group could hold on to the lands that were the bone of contention. We need to mention that it is alleged that in the course of investigation, the three accused made certain statements pursuant to which the cart peg, iron rod and the axe were recovered and these items have been produced before the Court in the course of the trial. On completion of the investigation, the three accused who were arrested some time later, were put up for trial and the learned Judge at the conclusion of the trial held the three accused guilty of the offences punishable under Sections 302 read with 34, IPC and sentenced them to suffer R. I. for life and to pay a fine of Rs. 5,000/- each, in default to undergo further R. I. for six months. This appeal is directed against the conviction and sentence awarded to the accused.

(2.) AT the commencement of the hearing of the appeal, Mr. B. T. Parthasarathy, learned counsel who represents the appellants stated that he desires to lay special emphasis on the background of the case which is admitted and the intense hostility that existed between the two parties even though they were the sons of two wives. His submission was that from the complaints that have been referred to and brought on record, that there can be no dispute about the fact that the fight over the share in Sy. No. 587/4 which ad measures 3 acres had been going on for a considerable period of time and that there had been a series of incidents prior to the present one which had only escalated the hostilities between the two factions. He submitted that the Court will have to take special cognizance of this situation and he thereafter straightaway drew our attention, while making his comments with regard to the evidence of PW. 1 who is the younger brother of the deceased, to the unequivocal admission made by the witness that though he does not bear any illwill towards any other people in the village that as far as the accused are concerned, that they were his "sworn enemies". Learned counsel submitted that in this background, the Court would have to straightaway reject his evidence completely because he is a self-professed enemy regardless of the relationship and he submitted that where there was such intense illfeeling, that there was no doubt about the fact that P. W. 1 would go to any extent to not only involve the three accused who are brothers but further more to try and get them convicted so that they would virtually be out of the way once and for all. We have taken note of the fact that there was this background of hostility, we have taken note of the fact that P. W. 1 is the younger brother of the deceased and we have also taken note of the fact that the law is now well settled with regard to the position of a witness who is closely related and therefore interested and the cautions that have been laid down by the Courts while appreciating the evidence of a witness who is also extremely hostile to the accused persons.

(3.) P. W. 1 is the complainant and it is he who lodged the complaint at about 6 p. m with the Police. The appellants' learned counsel has pointed out to us that the incident was of a short duration and that everything was over within a matter of minutes and he laid stress on the fact that this is not a case in which the injured was required to be carried to hospital and several other formalities attended to because admittedly, Mahadeva Setty died on the spot. It was also pointed out to us that it would not have taken more than half an hour at the very most to travel to the Police Station and, in this background, the delay of approximately three hours must put the Court on extreme guard because of the fact that the possibility or probability of false implication gets immensely heightened if there is a time lag during which period of time the complainant, his relations and others could and would have discussed among themselves about the incident and the further steps to be taken. It is true that the complaint has been lodged after 6 p. m. and that it could have been lodged earlier. The explanation which P. W. 1 has put forward is that he was shocked, that he was also depressed because it took him considerable time to gather himself together and to thereafter go to the Police and lodge the formal complaint. This explanation is not altogether an unbelievable one and we notice that strangely enough, though the cross-examination has been very elaborate, not a word has been asked to P. W. 1 with regard to what precisely he was doing during the interim period. In other words, the explanation given by him has not really been beaten down or demonstrated to be false nor has a parallel theory been established that this interim period was used for plotting and planning false implication. In this background, nothing seriously turns on the fact that the complaint was lodged after 6 p. m. because the time is not abnormally long. Also, the learned Counsel was sharply critical of the fact that there is no valid reason why the complaint could have taken six hours to reach the learned Magistrate. Some explanation has been put forward by the I. O. which does not appear to be a very good explanation. The appellants' learned counsel submitted that if the complaint is supposed to have taken six hours to reach the learned Magistrate, that the truth of the matter would be that it must have been lodged much later than 6 p. m. which only worsens the situation. No such case has really been put to the I. O. and in this background, we can only attribute the delay to the usual Police laxity and to nothing else. We have also taken note of the fact that the first duty of the Police is to visit the scene of offence and commence the initial formalities which could have taken some time and secondly, we do not propose to accept the defence contention that merely because there is a small time lag that ipso facto the complaint should be regarded as a fabrication. To a very large extent, this conclusion would depend on the credibility and the quality of the evidence of P. W. 1 because if this evidence was either suspect or if the credibility itself was extremely low, then this does have a bearing on the delay factor.