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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.          OF 2015  (Arising out of SLP (Crl.) No.9321 of 2013)

Abdul Razak & Ors. …Appellants

Vs.

The State of Karnataka Rep. By SHO, Hutti PS  …Respondent

WITH CRIMINAL APPEAL NO.          OF 2015  

(Arising out of SLP (Crl.) No.9420 of 2013) Muktumsab …Appellant

Vs.

State of Karnataka & Ors.  …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. These appeals by special leave call in question a judgment

and order dated 19th November, 2012 passed by the High Court

of Karnataka at Gulbarga whereby Criminal Appeal No.1926 of

2007 has been allowed, judgment and order of the Trial Court

acquitting  the  appellants  set  aside,  and  the  appellants

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convicted and sentenced to undergo rigorous imprisonment for

a period of seven years under Section 304 Part II read with

Section  34  IPC.  A  fine  of  Rs.5,000/-  each  and  a  default

sentence of imprisonment for a period one year has also been

awarded to the appellant.  

3. The prosecution case in brief is that three years before the

date  of  incident  CW-11 Md.  Shafi  sold  two acres  of  land to

CW-2 Lingappa. The accused-appellants herein were upset by

the  said  sale  transaction  and  are  alleged  to  be  picking  up

quarrels with CW-2 besides causing obstruction in the free flow

of  water  to  the  fields  owned  by  the  complainant  from  a

distributory at Narayanapur. The appellants are alleged to be

insisting that they will let water for irrigation flow only if the

land  purchased  by  the  complainant  was  transferred  in  their

favour. Lingappa was on that count coerced to sell the said two

acres  of  land purchased  from Mohd.  Sahfi  to  accused-Abdul

Razak.  Despite  this,  however, the  obstruction  in  the  flow of

water  continued as the appellants  started demanding money

for letting the water flow. It was in the above background that

on 19th September, 2006 at about 7.30 p.m. the appellants are

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alleged  to  have  caught  hold  of  Lingappa’s  son

Basavaraj-deceased  while  he  was  returning  home,  tied  his

hands behind his back splashed chilly powder on his face and

assaulted him with a club of stones causing injuries on his head

and other parts of body leading to his death. The incident is

alleged  to  have  been  witnessed  by  Hanumantha  (PW-1),

brother of  the deceased,  and Mannamma (PW-4),  mother of

the deceased. In connection with the incident Crime No.168 of

2006  was  registered  at  Hutti  Police  Station  for  an  offence

punishable under Section 302 read with Section 34 IPC against

the appellants herein.

4. A charge-sheet, after completion of investigation, was filed

against the appellants before the jurisdictional Court for their

committal.  The  appellants  pleaded  not  guilty  before  the

Additional  Sessions  Judge,  Fast  Track  Court-II,  Raichur,  to

whom  the  case  was  made  over  for  trial.  At  the  trial  the

prosecution examined as many as 22 witnesses besides placing

reliance upon several documents produced on its behalf.

 5. In  their  statements  under  Section  313  Cr.P.C.,  the

appellants  denied  the  incriminating  circumstances  appearing

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against them, but led no evidence in their defence. The Trial

Court on an appraisal of the prosecution evidence came to the

conclusion that the prosecution had failed to bring home the

guilt  of  the accused for the offences allegedly committed by

them. Aggrieved by the order of acquittal the State preferred

an appeal before the High Court of Karnataka which was heard

and  allowed  by  a  Division  Bench  of  that  Court  holding  the

appellants guilty of the offence punishable under Section 304

Part II read with Section 34 of the IPC and sentencing them to

undergo imprisonment for a period of seven years with fine and

default sentence mentioned above. The present appeal assails

the correctness of the said order.

6. We have heard learned counsel for the parties who have

taken us through the orders passed by the courts below.

7. The prosecution case primarily rests on the depositions of

Haumantha (PW-1), brother of the deceased, who was also the

first informant and Mannamma (PW-4), mother of the deceased

both of whom claimed to be eye witnesses to the occurrence.   

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8. In his deposition before the Trial Court PW-1 refers to the

purchase of land and resultant enmity between the appellants

and  the  complainant  party.  He  also  refers  to  the  dispute

regarding the irrigation channel and the civil litigation between

the two sides before the Sindhanaur Court.  According to the

witness, on the fateful day the deceased-Basavaraj had gone to

a restaurant (dhaba) owned by PW-6 Basappa. At about 6.00

p.m. he heard Basavaraj shouting for help whereupon he and

his mother PW-4 rushed towards the land of one Swami from

where  they  saw  Pathe  Sab  (A-3)  throwing  chilly  powder

towards Basavaraj whose hands had been tied behind his back.

He also saw A-3 assaulting deceased-Basavaraj  on the head

and A-2 and A-4 also doing so with a stick and stone. When he

stepped  forward  to  rescue  Basavaraj,  his  mother-PW4

dissuaded him from doing so. The accused persons then left the

spot  whereafter  the  witness  and  his  mother  went  near  the

injured but returned home. Sometime later they again went to

the field with PW3-Lingappa who too saw his son Basvaraj in an

injured condition.  PW-3 is then said to have gone to Gurgunta

police post to inform the police about the incident and returned

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at about 6.00 p.m.  It was only at about 10.00 p.m. that a Sub

Inspector from Hutti police station came to the spot in a Jeep.

PW-1 Hanumantha presented to him a written complaint about

the incident.  He also narrated the incident to the police Sub

Inspector which was reduced to writing by him and treated as

the first information report marked as Ex.P-1 at the trial. The

witness further states that it was the ASI of police who directed

him to untie the ropes from the hands of deceased-Basavaraj

which he accordingly did.  Deceased-Basavaraj was then shifted

in an injured condition to Government Hospital at Lingasugur.

PWs. 1 and 3 also accompanied the injured, but the injured

Basavaraj breathed his last on the way.  The deposition of PW-4

mother of the deceased-Basavaraj is also on the same lines.   

9. The Trial  Court  appraised the version  given  by the two

witnesses  but  came  to  the  conclusion  that  the  same  was

unreliable.  The Trial Court gave more than one reason for its

view.  In the first place, the Trial Court found the conduct of

PWs 1 and 4 who are closely related to the deceased unnatural.

The  Trial  Court  held  that  if  their  version  that  they  were

witnesses to the occurrence was correct, there was no reason

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why they would not intervene to rescue the deceased from the

clutches of  the assailants.   More importantly, the Trial  Court

held  that  PW1,  brother  and  PW4,  mother  of  the  deceased,

instead of untying the deceased who was in a seriously injured

condition,  returned  home even  after  the  assailants  had  fled

away from the spot. What is worse is that even after returning

home PWs. 1 and 4 accompanied by PW-3 who is none other

than the father of the deceased had gone back to the place of

occurrence  where  they  found  the  deceased  in  an  injured

condition  with  his  hands  tied  behind  his  back,  his  leg

broken/fractured  and  eyes  burning  with  chilly  powder,  but

made no effort to untie his hands or rush him to the hospital

for treatment.  Instead PW-3 father of the deceased went to

lodge a report with the police leaving the injured in a hapless

condition on the spot where he was lying only to wait till 10.00

p.m. at night for the police to arrive.  If the prosecution version

is  correct,  it  is  only  after  instructions  were  given  by  the

Sub-Inspector to PW-1 to untie the hands of Basavaraj that he

does so. The injured Basavaraj was then put in the police Jeep

for being taken to the hospital where he reached only after he

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had died.   The Trial  Court  found the story, the sequence of

events and the conduct of the prosecution witnesses who claim

to be eye witnesses to the incident to be wholly unnatural and

unreliable. The Trial Court was, in our opinion perfectly justified

in taking that view. The conduct of the prosecution witnesses

does  not  inspire  confidence  not  only  because  they  did  not

intervene  when  Basavaraj  was  being  assaulted  but  also

because post the event, the witnesses did practically nothing to

help the unfortunate soul, who was left to die with his hands

tied  for  over  4  hours  without  any  succor  coming  from any

quarter.  The High Court has made light of these aspects and

thereby fallen in an error.  

10. Although the accused have alleged that Hanumantha PW-1

who had a dispute over money and land with the deceased was

actually responsible for causing the injuries sustained by him,

yet even assuming that there was no such bad blood between

the two brothers, both PW-1 and his mother PW-4 would have

in the ordinary course rushed to intervene to save the deceased

from being belaboured.  No such attempt was made by any one

of them nor even by PW-5 who happens to be chance witness.

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So much so, they do not make any attempt to help the injured

after the alleged assailants had fled from the spot.  It is most

unnatural for PW-4 mother and PW-1 brother of the deceased

to return home leaving the injured in a hapless condition with

his hands tied behind his back. Equally unnatural is the conduct

of the father of the deceased who along with PW-1 and PW-4

came to the spot where the deceased was lying injured but did

nothing to help him. Instead, PW-4 the father of the deceased

leaves the deceased in a critical condition to report the matter

to the police. What makes the entire story unacceptable is that

the mother PW-4 and the son PW-1 wait till 10.00 p.m. when

the police arrive to untie the hands of the deceased. That is not

all. After the police arrived, PW-1 presents a written complaint

about the incident.  His statement (fardbeyan) is recorded by

the  Sub-Inspector  in  which  Basavaraj  is  said  to  have  died,

meaning thereby that Basavaraj was not alive when the police

reached the spot. What is amazing is the admission made by

PW-19 that the report received by him about the incident was

destroyed by him after the fardbeyan of PW-1 was recorded on

the  spot.  This  implies  that  the  first  version  regarding  the

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incident was totally obliterated by the Investigating Officer and

Exb. P-1 recorded in its place.  It is difficult to appreciate how

PW-19 could have destroyed the original complaint given to him

by Hanumantha PW-1.  This  implies  that  the  earliest  version

about the incident was destroyed by PW-19 and a new story

stated  in  the fardbeyan  was tailored  to  suit  the prosecution

version.  This  has  the  effect  of  completely  demolishing  the

prosecution case and rendering its version wholly unacceptable.

The only inference which can, in the circumstances, be drawn is

that Basavaraj was done to death and his dead body left at the

spot  from  where  it  was  picked-up  by  the  police  after  they

arrived  around  10.00  p.m.  The  complaint  presented  to

Sub-Inspector perhaps did not say what the police intended to

present as its case.  The same was, therefore, destroyed and a

new  version  brought  in,  according  to  which  Basavaraj  was

shown to be alive when the police reached the spot. The fact of

the matter, however, appears to be that Basavaraj was dead

when his brother, mother and father discovered the body, for

otherwise there was no question of the parents of the deceased

and his brother leaving him alone in the condition, which they

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are alleged to have done. The conclusion drawn by the Trial

Court that the prosecution had not proved the charges against

the appellants beyond reasonable doubt, was, in our opinion,

correct, no matter the judgment and order is not as happily

worded  as  it  ought  to  be,  especially  coming  from a  senior

judicial  officer  of  the  level  of  Additional  Sessions  Judge.

Inasmuch as the High Court has overlooked all these aspects,

we are constrained to  set  aside the order  passed by it  and

acquit the appellants of the charges framed against them. We,

accordingly, allow this appeal, set aside the judgment and order

passed  by  the  High  Court  and  acquit  the  appellants  of  the

charges framed against them. The appellants shall be released

from custody forthwith if not required in connection with any

other case.          

………………………………….…..…J.        (T.S. THAKUR)

………………………………….…..…J.        (R.K. AGRAWAL)

     …………………………..………...J.         (ADARSH KUMAR GOEL)

New Delhi May 15, 2015

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