Anand Byrareddy, J.—Heard the learned Counsel for the appellant. There were six accused before the Court below. Accused 1 is no more.
Accused 2 and 3 have filed the appeal in Cri. A. No. 3509 of 2011. Accused 4 and 5 are absconding. Therefore, the case against them has been
split up and said to be pending before the Court below. The appeal in Cri. A. No. 3742 of 2010 is filed by accused 6.
2. The case of the prosecution, briefly stated, are as follows:
It is stated that the complainant''s elder brother, namely, Sanjeevkumar had proposed to purchase a site from one Vittal Pujar-P.W. 4. The
proposed purchase was opposed by Babu Pujari-accused 1. He had also threatened the complainant with dire consequences if he continued to
complete the transaction. It is found that on 13-10-2008, the deceased Sanjeevkumar had gone to Tadkal Village to make purchase and returned
to Tambakwadi by 4 p.m. and he had proceeded towards his land to harvest bajra crop, on the footing that it was an auspicious time to
ceremoniously commence harvesting without actually harvesting the crop. And on his way, he had visited Kirana shop, where the complainant was
present and he told him that he was going to the land to commence ceremonious harvesting of the bajra crop as it was a very auspicious time.
3. It is stated that when the complainant and his cousin Gurulingappa reached the land, they saw accused persons quarrel with the deceased and
they heard a shout to the effect that ""VERNACULAR MATTER"" (Bastard Sanjya has grown insolent and he was interfering in every matter and
today we have the opportunity to finish him''). Saying so, according to the complainant, accused 1-Babu Pujari assaulted Sanjeevkumar on the
backside of his head with koita and caused bleeding injuries. Accused 2-Shivanand had assaulted with an axe on the front side of his neck and
accused 4 had assaulted again on the back of his neck with a sickle Accused 3-Ramesh Hadapad assaulted with koita on the right hand and palm
of the deceased and cut-off his fingers and had also assaulted on the lips of the deceased and caused injuries. Accused 5-Annappa jawali is said to
have assaulted with koita on his right shoulder and caused bleeding injuries and accused 6 had also assaulted with koita on the left shoulder of the
deceased.
4. It is further stated by the complainant that on being so assaulted by all the six accused, Sajeevkumar had fallen to the ground while shouting
VERNACULAR MATTER"" ( I am dead''). When the complainant and his cousin tried to intervene to save and protect the deceased, accused
are said to have threatened them with words ""VERNACULAR MATTER"" (Hey; bastards, if you try to rescue, we will take your lives like
Sanjya). Therefore, the complainant-Gurulingappa had refrained from going towards Sanjeevkumar and could not save him. The accused had
thereafter left the scene. Since adjoining landowners had also heard the commotion, were also observing the accused. The accused had run away.
This had occurred, according to the complainant, at 5.30 p.m. Thereafter, the complainant and Gurulingappa had shifted Sajeev kumar to the
Government Hospital at Aland in a jeep for treatment. The doctor there had provided first aid and advised them to shift Sanjeevkumar to
Gulbarga, for further treatment and while they were making arrangements to shift him, Sanjeevkumar is said to have died. This was around 8.30
p.m. The Police were then informed about the incident and the Police had then registered a case and investigated the same and had filed a charge-
sheet against the accused for offences punishable under Sections 147, 148, 504, 506 and 302 read with Section 149 of the Indian Penal Code,
1860 (hereinafter referred to as the ''IPC'' for brevity).
5. The presence of the accused was said to have been secured and the matter had been committed to the Court of Sessions. The Court of
Sessions had numbered the case as SC No. 123 of 2009 as against accused 1 to 3 and as against accused 6, in SC No. 134 of 2009. The case
was split up against accused 4 and 5. The Court has thereafter proceeded to frame charges in the two aforesaid cases against accused 1 to 4 and
accused 6.
6. The accused having pleaded not guilty and having claimed to be tried, the prosecution had tendered evidence of 25 witnesses and marked
several exhibits and material objects in support of its case.
7. On behalf of the defence, portions of the statements of the prosecution witnesses were marked as Exhibits D. 1 to D. 9 and the certificates
issued by the doctor-P.W. 22, who initially provided first aid to Sanjeevkumar was confronted to him in his cross-examination and the same was
marked as Exhibit D. 10.
8. On the basis of the evidence so recorded, and after recording the statement of the accused under Section 313 of the Code of Criminal
Procedure, 1973, the Court below had framed the following points for consideration:
1. Whether the prosecution proves the homicidal death of Sanjeevkumar?
2. Whether prosecution proves beyond all reasonable doubt that on 13-10-2008 at about 5.30 a.m., in the land bearing Survey No. 777 situated
at Tambakwadi the accused persons along with split up accused persons held deadly weapons and formed an unlawful assembly in prosecution of
their common object and thereby committed an offence punishable under Sections 147 and 148 read with Section 149 of the Indian Penal Code,
I860?
3. Whether prosecution further proves beyond all reasonable doubt that on the above said date, time and place, accused persons along with split
up accused persons in prosecution of their common object have intentionally insulated deceased Sanjeevkumar by abusing him in filthy language
and thereby committed an offence punishable under Section 504 read with Section 149 of the IPC?
4. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, accused persons along with
split up accused persons in prosecution of their common object have intentionally threatened the deceased Sanjeevkumar to take away his life and
thereby committed an offence punishable under Section 506 read with Section 149 of the IPC?
5. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the accused persons along
with split up accused persons in prosecution of their common object, assaulted Sanjeevkumar with sickles and axe and intentionally caused the
death of Sajeevkumar and thereby committed an offence punishable under Section 302 read with Section 149 of the IPC?
9. The Court below has answered all the points in the affirmative and convicted accused 2 and 3 for the offence punishable under Section 302 of
the IPC and sentenced to undergo life imprisonment and to pay fine of Rs. 5,000/- each.
10. It is to be noticed here that there is an inadvertent but a serious error, committed by the Court below in the operative portion of to judgment
and while sentencing the accused it is restricted the accused 2 and 3 whereas the findings are against accused 6 as well. Therefore, the non-
inclusion of accused 6 while sentencing is an inadvertence that we will have to overlook having regard to the findings in the body of the judgment as
to accused 6 also having been found guilty. We proceed on the basis notwithstanding that the operative portion of the judgment pertaining to the
sentence does not include accused 6, as in fact including him since an appeal has been preferred as understood by the accused 6 himself, that he
was also convicted. Hence, no doubt, that there is an inadvertence committed by the Court below which could be attributed to a clerical error
committed by the Court. Accordingly, we proceed on the basis that even accused 6 has been convicted along with accused 2 and 3 when he
continues to be in judicial custody. Therefore, the punishment imposed on accused 2 and 3 for the various offences punishable under the several
provisions that are invoked, would equally apply to accused 6 also.
11. It is that judgment which is challenged in these appeals. The learned Counsel appearing for the appellants would commonly contend that the
prosecution had examined several so-called eye-witnesses in support of their case that the accused had attacked the deceased together and had
caused the injuries as a result of which he had died. All these several eye-witnesses who include the owners of the adjoining lands on which the
deceased was said to have been done to death, had all turned hostile and had not supported the case of the'' prosecution. Therefore, the only eye-
witnesses whose testimony has been accepted by the Court below is that of P.Ws. 12 and 13. P.W. 12 is the direct brother of the deceased
Pujari, whereas P.W. 13 was his cousin. According to the prosecution, the deceased after having returned from the market, had decided to
symbolically commence the harvest of the bajra crop on their land and for that purpose he had left home and had informed his brother-P.W. 12,
who was at the Kirana shop which they own, that he was proceeding to the land to symbolically commence the harvest of bajra crop and it is
claimed that P.W. 2 had stated him that he would follow him to the land and he had later done so along with Gurulingappa-P.W. 13. It is a
coincidence that just when they arrived at the land, which was about one and a half kilometre from their village, and according to the witness, it
would take about ten minutes to reach the land, the coincidence that they came upon the same as the accused were accosting the deceased and
shouting at him in the words that had already been narrated herein above and proceeded to attack him and that on their attempt to intervene while
continuing to attack the deceased, P.Ws. 12 and 13 were threatened that if they came to the victim''s rescue, they would also meet the same fate.
After each of the accused had attacked the deceased in the manner that has been narrated and caused injuries which were inflicted on the victim,
and on seeing the other neighbouring landowners also arriving on the scene, the accused are said to have fled from there. Therefore, when the case
of the prosecution is sought to be supported by closely related witnesses of the deceased, it is settled law that the Trial Court ought to have
scrutinised the evidence with much circumspection, especially, when other eye-witnesses had turned hostile and had resiled from their original
statement to support the case of the prosecution merely on the testimony of blood relatives, would require the Court to proceed with extreme
caution and care in accepting the case of the prosecution.
12. The learned Counsel would point out that the further sequence of events cast serious suspicion about their very presence on the scene. First of
all, the learned Counsel would contend that there was no reason for the witnesses P.Ws. 12 and 13 to follow the deceased to the land and even if
it was in order to witness a symbolic commencement of harvesting the bajra crop, the time of the day at which the incident had occurred is again
lost in ambiguity, for, the statement of witnesses as to time of the incident varies. The Trial Court having noticed this variance in the time of the
incident has characterised it as being attributable to the fact that the witnesses were rustic witnesses and could not be accurate about the time.
Secondly, it is pointed out that immediately after the incident, P.Ws. 12 and 13 have claimed that they have removed the body from there and
carried it to the hospital in a jeep. It is also stated that, firstly, they carried the body to the gate of the village and thereafter procured the assistance
of a jeep to carry the body to Aland Hospital. Therefore, this inconsistency is also not reconciled. Assuming that the jeep was in fact utilised, either
from the land of the deceased to the hospital or from the village gate to the hospital, it was incumbent on the prosecution to have supported this
circumstance by examining the jeep driver. No such endeavour was undertaken; and if the deceased having suffered at least ten serious injuries and
was profusely bleeding, if he had been carried in a jeep, it was further incumbent to secure such evidence of blood which would have definitely split
in the jeep, to match the allegation of the prosecution as to the manner in which the deceased was carried to the hospital. It is further, pointed out
that at Aland Hospital, the Medical Practitioner present had stated that the deceased was in a serious condition and that he should be taken to a
better hospital for better treatment and that he had only offered to provide first aid and had called upon P.Ws. 12 and 13 to lake him directly to a
larger hospital and while they were making preparations to move to a Hospital at Gulbarga, the deceased is said to have died.
13. This sequence of events the learned Counsel would submit, is not supported by any independent witnesses and it is the self-serving testimony
of P.Ws. 12 and 13 merely to implicate the accused.
14. Significantly, in the First Information Report that was lodged by P.W. 12, he has not mentioned the name of accused 6. It is only thereafter in a
further statement recorded of the said witness that accused 6 has been incorporated. Therefore, when both P.Ws. 12 and 13 had witnessed the
manner in which the murder had been committed, the inconsistency in not having mentioned the name of accused 6 to whom a particular overt act
is attributed, is indeed inexplicable and was clearly an afterthought. This becomes evident from the fact that the first information report itself is
registered a full twelve hours after it was recorded. The explanation offered by the Police Constable, who had carried the first information report to
the Magistrate is that his superior had mentioned that it would be alright if the first information report is carried the next morning. In that, the first
information report was recorded at 10.15 p.m. on 13th October, 2008 and it was carried to the Court of Magistrate only at 8.20 a.m. on 14th
October, 2008. The inordinate delay in registering the first information report is itself fatal to the case of the prosecution, for it is evident that there
has been much contemplation as to the manner in which the accused could be implicated and even thereafter the significant absence of mentioning
the name of the accused 6 is an infirmity for which there has been no explanation offered.
15. Therefore, the motive alleged, even if could be sustained as against accused 1, there is no earthly connection in the manner in which the
accused 2 to 6 could have been implicated because there is no allegation against the said accused being engaged as contract killers or for other
considerations by accused 1 in those accused also being involved. Since accused 1 is no more and since the accused 2 to 6 also do not belong to
the same community as accused 1 or the deceased, the prosecution has completely failed to establish the motive which could be attributed to
accused 2 and 3 and accused 6 who are in appeal before this Court. Hence, the entire case of prosecution that all the accused had the motive to
commit the murder of the deceased is not forthcoming in the absence of any material evidence to support the same. Hence, the evidence of P.Ws.
12 and 13, even if it could be accepted, would have to be turned down insofar as accused 2 and 6 are concerned, as no motive can be attributed
to them in the commission of the murder. This is especially so when other eye-witnesses claimed by the prosecution had all turned hostile and did
not support the case of the prosecution.
16. The learned Counsel for the appellants would further point out that it was very necessary to have addressed the conduct of the accused, if
indeed they had been involved in the commission of the murder. It is not the case of the prosecution that the accused 2 and 6 were absconding
immediately after the incident, especially since P.Ws. 12 and 13 had seen the said accused commit the murder and also been warned by the said
accused that they would meet the same fate if they tried to intervene or protect the deceased. That being the case, it would be the normal reaction
of any person to flee; and avoid the long arm of law. However, before the incident and after the incident, the accused continued to be carrying on
their normal activities, which is on record, and it is difficult to accept that they had indeed committed the murder. This is the view of the Supreme
Court in the case of Sadananda Mondal v. State of West Bengal, 2013 (AIAR) (Criminal) 955, where non-abscondence of the accused,
who were very well-available before the after the incident is certainly a factor which would prove their defence that they had nothing to do with the
crime in question. Such conduct of accused would go against the case of prosecution just as in the case on hand and in one other significant
circumstance which the Counsel for the appellants would plead as negativing the case of the prosecution.
17. It is also pointed out that except accused 3 and 6, the other accused being of the same village, if indeed P.Ws. 12 and 13 had witnessed the
manner in which they had committed the murder, apart from reporting to police they would have ensured, with the help of other villagers, that the
accused are kept in confinement till such time they are brought to book by the police. No such information has been provided to any one of the
villagers nor has action been taken by anybody to see that the accused are confined till they are duly arrested by the police. These are the
circumstances which have been glossed over by the Trial Court in merely accepting the eye-witness account of P.Ws. 12 and 13 without anything
more. These are attendant circumstances which ought to have been taken into consideration in accepting the testimony of blood relatives who
would be only interested in implicating the accused for reasons best known to them, for otherwise there is no possible motive that could be
attributed, at least, to accused 2 to 6. It is in this manner, the learned Counsel would seek to point out that there is a serious infirmity in the manner
in which the Court below has mechanically accepted the testimony of P.Ws. 12 and 13 as being sufficient to bring home the charges against the
accused irrespective of these other glaring circumstances.
18. The alleged recovery on the basis of the alleged voluntary statements of the accused is also not sustainable insofar as accused 2 and 3 are
concerned as there was no such recovery, even according to the prosecution, made from the accused 2 and 3. The only alleged recovery made
from accused 1 and the so-called weapons used and the injuries caused, again are not consistent as is evident from the evidence of the Medical
practitioner. The accuracy with which the witnesses have supposedly stated of the weapon used by each of the accused and the actual injury
caused to the deceased on a particular part of his body, is humanly impossible to have been recorded and when the Entire scene unfolds in quick
succession and when there are six persons attacking the deceased and when it was almost night fall and there was little light, it is difficult to fathom
as to how the other witnesses had, with such accuracy, noticed the particular injuries caused with the particular weapon by the particular accused.
This is yet another circumstance with cannot be readily accepted as bearing any substance and the Court below having freely accepted such
testimony, has resulted in a gross miscarriage of justice and therefore seek acquittal of the accused.
19. It is incidentally noticed that the prosecution has relied upon P.W. 19 and P.W. 7 insofar as the accused having been seen going in the same
direction as the deceased on the fateful day and this is sought to be projected as being ample circumstantial evidence to demonstrate that the
accused had indeed committed the murder of the deceased. Significantly, P.W. 19 has mentioned five of the accused, while P.W. 7 has mentioned
only two. It is not stated by any of the witnesses that they had seen P.Ws. 12 and 13 also go in the same direction when all these people had
almost at the same time gone in the same direction, in order to accept the coincidence of the deceased being attacked by the accused, and P.Ws.
12 and 13 also having come on the scene. Significantly, accused 6 is not named either by P.W. 19 or by P.W. 7; and further, none of the villagers
had noticed P.Ws. 12 and 13 also going in the same direction as the accused and the deceased, which is yet another circumstance which has not
been reconciled by the Court below and therefore, there is no case made out by the Prosecution in the manner suggested.
20. It is also to be kept in view that P.W. 13 has not stated about the overt act or the weapon used by accused 6 in the acts alleged against him. It
is in this fashion, the learned Counsel for the appellants seeks to demonstrate that the judgment of the Court below cannot be sustained on more
than one ground.
21. Though the learned Additional Advocate General would seek to counter the grounds raised in the appeal and would emphasise that
notwithstanding the relationship of P.Ws. 12 and 13 to the deceased, their testimony could not be brushed aside when the same otherwise invokes
the confidence of the Court and when there are direct eye-witnesses, the testimony would be sufficient to bring home the charges, which is how the
Court below has proceeded. The Court having assigned reasons and having referred to all the circumstances which were apparent, there is no
infirmity in the judgment and hence submits that the appeals be dismissed.
22. In the light of the rival contentions and on a close examination of the record, it is evident that the time of accident is not established with any
certainty. The incident has occurred in the month of October and it is a scientific fact that in summer, the days are longer, and since in October we
would be heading towards winter, when the nights are longer and the days are shorter. In other words, there would be lesser light towards the end
of the days and if the incident had taken place in October and had even occurred at 5.30 or 6.00 p.m., the possibility of there being little visibility
looms large.
23. The coincidence of the accused having confronted the deceased and P.Ws. 12 and 13 having come on the scene just then and for the accused
to have stated in a loud voice that since the deceased was interfering in their affairs, they had found the right opportunity to kill him, etc. is not
readily acceptable. That the accused had noticed the presence of P.Ws. 12 and 13 and had even warned them that if they tried to intervene they
would also meet the same fate as the deceased, is a circumstance which would have compelled the accused after committing the offence to have
tried to also attack P.Ws. 12 and 13 in order to prevent them from revealing the incident. But they have merely walked away from the place and it
is the case of the prosecution that this was so because other adjoining landowners had appeared on the scene. This circumstance cannot be
reconciled with the subsequent conduct of the accused who continued to remain in the village freely till they were finally arrested on 14th October,
2008 i.e., on the next day of the incident, when they could have easily absconded and hidden themselves.
24. Further, as rightly pointed out by the learned Counsel for the appellants, though the motive alleged was that accused 1 was not happy with the
proposed transaction of sale which was being negotiated by the deceased with this brother and therefore he had the motive to commit the murder
of the deceased, would not apply insofar as accused 2 to 6 are concerned. The prosecution has not laid the foundation to establish the connection.
It has not been demonstrated that either they were paid monetary consideration to join accused 1 in the commission of the crime or that they were
such close friends as they would have readily come to the aid of the accused 1 in committing the murder of the deceased, or the they were of the
same community and had the affinity in joining accused 1 in committing the murder of the deceased. When this crucial connection is not established,
even if the motive is accepted insofar as accused 1 is concerned, the same cannot be accepted unless there was foundation laid to hold that
accused 2 to 6 were also carrying the same hatred against the deceased in order to be prompted to attack the deceased with such ferocity as is
claimed by the prosecution. It was necessary for the Trial Court to have viewed the evidence of P.Ws. 12 and 13 with circumspection and this
was especially so when other witnesses, who were cited as eye-witnesses had turned hostile and had not supported the case of the prosecution.
25. This when viewed in the further circumstances, as to the manner in which the deceased had been admitted to hospital and he had continued to
be alive and he was taken to the Aland Hospital and administered first aid, it was also necessary for the prosecution to demonstrate that even if the
deceased was not a position to mention the assailants who had attacked him and the reason for such attack, as P.Ws. 12 and 13 who were very
much present, could have informed the doctor and it could have been recorded in the wound certificate as to the assailants who had committed the
offence.
26. Thereafter, the first information report having been lodged, did not mention accused 6. It is only as an afterthought that his name has been
included under the additional statement made by the accused.
27. Further, when the deceased was moved in a jeep, it is ambiguously stated that he was taken in a jeep from the very spot where the incident
had taken place directly to the hospital. It is also stated that the deceased was first carried up till the village gate and from he was taken therein a
jeep to the hospital. Neither the jeep driver is examined nor has the jeep been seized to collect the material evidence, as for instance the deceased
would have been profusely bleeding on account of serious injuries inflicted and certainly there would be bloodstains left behind in the jeep which
was significant material evidence which could have been supported by the jeep driver to establish whether the body of the deceased was moved
from the spot of the incident to the hospital or from the village gate to the hospital, as the case may be. This exercise has not been undertaken by
the prosecution. In their endeavour to provide immediate treatment and first aid to the deceased when P.Ws. 12 and 13 had bodily carried the
deceased, it is apparent that at least their clothes would have been bloodstained. No such clothes have been exhibited to establish that
circumstance.
28. The inordinate delay in lodging the first information report is again a circumstance which has not been explained or sought to be reconciled. The
distance from police station to the Court of Magistrate was hardly one kilometre and it is inexplicable therefore that the first information report was
registered only clear 12 hours after it was lodged and this has certainly dented the case of the prosecution leading to the presumption that there
must have been much contemplation about the people who could be implicated as the accused and going by the conduct of the accused before the
after the incident, it could be said that non-abscondence gains significance and as held by the Supreme Court that if they were available before and
after the incident, when their identity was clearly noticed by P.Ws. 12 and 13 and their acts were also noticed by them and if they continued to act
normally, it is contrary to normal human behaviour and especially a person who has committed a serious crime and such conduct would go against
the case of the prosecution.
29. Insofar as circumstantial witnesses-P.Ws. 7 and 19 are concerned, P.W. 19 has stated that she has seen five of the accused and she has not
mentioned accused 6. P.W. 7 on the other hand has mentioned two of the accused and not mentioned the other accused seen going in the same
direction as the accused. Those witnesses have not spoken about the deceased having gone in the same direction, nor had they seen P.Ws. 12 and
13 go in the same direction. If the case of the prosecution is to be accepted, the deceased had first gone to his land followed by the accused and
thereafter followed by P.Ws. 12 and 13. Hence, they were all proceeding in the same direction at more or less the same time, for if P.Ws. 12 and
13 had come upon the accused attacking the deceased, they'' must have simultaneously reached the spot. This aspect of the matter has been
glossed over by the Trial Court. There is no material witness to substantiate that P.Ws. 12 and 13 were seen going in the same direction at that
point of time and hence it creates serious doubt as to their very'' presence on the scene. The possible scenario according to the learned Counsel for
the appellant, the deceased may have ben found dead, murdered and on such news being received in the village many people have proceeded to
the scene including P.Ws. 12 and 13.
30. In the above view of the manner since the Court below has not appreciated the circumstances and the evidence that the prosecution has
tendered in support of the allegations and charges framed against tine? accused, we are of the view that the appeals ought to succeed.
Accordingly, the appeals are allowed. The judgment of the Court below is set aside. The accused are acquitted. The fine amount, if any paid, shall
be refunded.
