Eye Witnesses presence Doubtful - Suppression of Earlier Complaint which destroyed the entire story of present version - Resulted in Acquittal - Murder took Place at 7-30 p.m. - 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.- but the Eye Witness took no steps to rescue the deceased and to join him in the Hospital - even not untied the hands and all awaited till the arrival of police to take him to the treatment said to be dead on the way - Unnatural & Unbelievable reactions of the witnesses makes their presence on the spot doubtful - Earlier version as admitted by witnesses said that the injured was dead by the time police reached - that report not filed - 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. - Trail court rightly acquit the accused - High court committed an error and as such Apex court set aside the same and restored the orders of trial court - 2015 SC MSKLAWREPORTS

order of the Trial Court  acquitting  the  appellants  set  aside,  and  the
appellants 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.

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

 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.
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.
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 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
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.

In the  first  place,  the  Trial  Court
found the conduct of PWs 1 and 4 who are closely  related  to  the  deceased
The Trial Court held  that  if  their  version  that  they  were
witnesses to the occurrence was correct, there was no reason 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 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.

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.  
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.  
implies  that  the  first  version  regarding  the  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 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.-2015 S.C.MSKLAWREPORTS

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