STATE Vs. ABUBAKAR SIDDIK

JUDGEMENT

(1.) THIS appeal has been preferred by the State of Karnataka and it assails an order of acquittal recorded in favour of original accused 5 to 9 in S. C. No. 13 of 1994 on the file of the learned Sessions Judge, U. K. Karwar.

(2.) THESE accused along with original accused 1 to 4 whose case has been split up stood charged with having committed the offences punishable under Sections 143, 147, 148, 302, 201, 323, 114 read with Section 149 of the IPC. The incident had taken place at Mugdum Colony in Bhatkal Town at about 7. 40 p. m. on the evening of 20-8-1993. The allegation was that the deceased-Mahadev who used to run a small tea shop on the Bunder road was assaulted by nine persons some of whom were armed with knives and that he was not only stabbed but also beaten and kicked and that as a result of this attack, he died on the spot. The further allegation against the accused was that they had taken away the body of Mahadev to the side of a small hill and that the body was wrapped in two gunny bags and taken to that spot along with the bicycle which belonged to the deceased. This is the reason why there is an additional charge under Section 201 of the IPC for concealment/destruction of evidence. We are informed at the Bar that in two of the earlier trials against some of the other accused that the Court had acquitted those persons viz. , in S. C. No. 29 of 1996 and in S. C. No. 4 of 1996. There is still one Sessions Case pending against another accused person but we are really not concerned with those aspects in this case. As far as the present proceeding is concerned, it is alleged that the complaint came to be lodged on 22-8-1993 at about 1 O'clock in the afternoon and that it was registered as Cr. No. 618 of 1993. It is alleged that in the course of the investigation accused No. 6 made a certain statement pursuant to which he led the police and the panchas to a spot where fresh earth was detected and on excavation at that place, the police recovered the damaged bicycle as also the body of Mahadev which was wrapped in two rotten gunny bags. The body was sent for post-mortem and it was disclosed that it bore as many as twenty-two injuries. According to the prosecution, accused No. 7 made a voluntary statement pursuant to which he led the police to the side of a hill from where he produced a bunch of keys that is alleged to have belonged to the deceased. We need to straightaway mention that we will have occasion to deal with the quality of the investigation subsequently, but that even the conduct of the trial has not been up to the mark and we find from the record that formal evidence for purposes of identifying the key bunch and establishing that it in fact belonged to the deceased has not been led by the prosecution. This recovery is therefore of no consequence. Next we come to the voluntary statement attributed to accused No. 9 pursuant to which on 30-8-1993 at about 9. 00 a. m. in the morning accused No. 9 is alleged to have led the police and the panchas to the spot from where a knife was recovered but again no further investigation has been carried out with regard to this M. O. as a result of which, the prosecution can hardly rely on the recovery because it has not been identified as the weapon with which the injuries were caused to the deceased nor is there any report from the Chemical Analyser or Serologist which could incriminate the accused by virtue of that recovery. Even the Panch witnesses as far as this recovery is concerned have turned hostile and hence we do not propose to place any reliance on these circumstances. The learned Trial Judge after evaluating the evidence led by the prosecution and hearing the learned Counsel has recorded an order of acquittal holding principally that on the state of the record it would not be possible to hold that any of the charges has been established. It is against this order of acquittal that the present appeal has been directed.

(3.) WE propose only to deal with that limited part of the record of the relevant aspects of this case which we are required to consider for purposes of deciding as to whether the order of acquittal requires to be disturbed. At the hearing of the appeal the learned Additional State Public Prosecutor as also the learned Counsel Sri S. K. Venkata Reddy who has been appointed by us as Amicus Curiae since the accused were unrepresented, have taken us virtually through the entire record threadbare. On behalf of the appellants it was contended that P. W. 1-Hanumanth who is an eye-witness has stated that he was proceeding on his bicycle with a load of fish on that evening and that he saw the incident from a distance of about ten metres. He states that P. W. 2-Venkatesh has also witnessed the incident with him. P. W. 1 is a regular resident of that town and he claims to know the identity not only of the deceased but also of the accused persons. His version is very short, very simple and very clear and he states that he saw the deceased-Mahadev being mercilessly assaulted by the nine accused persons who were originally charge-sheeted. He has named these persons and according to him they were all participating in the assault. Some of them were armed with knives with which they were stabbing the deceased on different parts of the body and the others were assaulting and kicking him. He states that having seen the i ncident, he went away from that place and that he even made two attempts to contact the police on the telephone but that he was unsuccessful and this is really the explanation for why the complaint came to be lodged on the afternoon of 22-8-1993 which is about 36 hours after the incident. The learned Counsel submitted that p. W. 1 is a fish vendor that nothing has been elicited to show that he is either hostile or inimical to the accused, that he is an independent person and furthermore that even though it was dark he has stated that he saw the incident because there was a puddle of water in that place and a rickshaw had stopped and was slowly proceeding because of the water and according to him, he was facing the headlight of this vehicle that he saw the incident clearly and identified the accused. It was submitted that if the evidence of this witness is to be carefully scrutinized it will be found that there are no infirmities, no contradictions, no omissions and furthermore that it has withstood the test of cross-examination. The learned Additional State Public Prosecutor submitted that with evidence as good as this that a conviction can easily be based on the testimony of a single impregnable and reliable witness and that the learned Trial Judge was totally in error in having rejected this evidence. We reserve our comments with regard to this evidence till we have briefly recounted the evidence of P. W. 2.