Birappa & Anr vs State Of Karnataka

O R D E R

This appeal arises out of the following facts:

Gulappa deceased was the younger brother of Kareppa

Gadad (PW.1) and Ramappa Gadad (CW-6). They resided

separately in their garden near village Koonur, Jamkhandi

Taluk. About four months prior to August 2002 Kareppa

Rangappa Kote, the father of A.1 Birappa, was found dead in

a well in the village Koonur and it was not known as to whether it was an accidental death or a murder, but rumour

had it that he had been murdered by Gulappa, the deceased

in the present matter. This rumour caused a great deal of

ill will between Birappa, appellant No.1, and the deceased

on which the appellant threatened that he would kill him

one day. On 8th August 2002, which happened to be the

Amavas day, the deceased went to the Kali Devi temple

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at about 4.00 p.m. to make his offerings and as he came out

from the temple and sat down at a nearby tea shop to take

tea he was attacked by Birappa, his cousin Kareppa A.2 and Muttappa A.3. Mutappa also made an exhortation than as it

was Amavas day and a sacrifice had to be offered to the

Goddess, Gulappa ought to be that sacrifice. This created

a fear in the mind of Kareppa (PW.1) and Gulappa and they

attempted to escape from the place by rushing towards the

Hulyal road. They were however chased by the accused and

whereas Kareppa caught hold of the deceased Birappa caused

him several injuries. Kareppa (PW.1) ran for his life and

informed his brother Ramappa about the accident and also

the wife of Gulappa, Shivakka (PW.11). They also attempted

to trace out the whereabouts of Gulappa during the night

but remained unsuccessful and it was only at 9.00 a.m. the

next morning that they found his dead body in the sugarcane

field of one Derappa Shivaramatti. They also noticed that

his neck has been virtually severed from the body. Kareppa

(PW.1) thereafter went to the Jharkhandi police station and made a statement at about 2.00 p.m. before Malakappa

Siddappa Malabagi (PW.12) and a case under Sec.302,

Sec.201 and 109 read with Section 34 of the IPC was duly

registered. The dead body was also dispatched for its

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post-mortem and was received at the hospital at 5.45 p.m.

on 9th August 2002. The accused A.1 and A.2 were arrested

on the 10th August 2002 and on the completion of the

investigation they were charged for offence punishable

under Sections 302/201 and 109 read with Section 34 of the

IPC and A.3 for the offences punishable under Sections 302 read with Section 109 of the IPC. The accused pleaded not

guilty and were brought to trial.

The Trial Court relying primarily on the evidence of

PW.1 as supported by medical evidence and the circumstances

of the case convicted Birappa under Sec.302 whereas Kareppa

A.2 and A.3 was acquitted on the ground that no overt act

had been attributed to them.

Two appeals were therefore filed before the High

Court. The High Court dismissed the appeal of Birappa and

allowed the State Appeal qua appellant No.2 Kareppa and

also convicted and sentenced him to in terms similar to his

co-appellant. The acquittal of Muttappa, the third

accused, was however maintained. The present appeal has

been filed under Section 380 of the Cr.P.C. directly in

this Court.

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Mr. Rajesh Mahale the learned counsel for the

appellants has raised several arguments before us. He has

pointed out that PW.1 was the only effective witness who

had appeared for the prosecution and that it was apparent

that he had not witnessed the incident and had been brought

in much later and this was the reason why the FIR had been

lodged after an inordinate delay. He has also pleaded that

some support for the statement of PW.1 could have been

found from the contemporaneous evidence of the wife of the

deceased PW.11, but this lady had not supported the

prosecution and had disowned her statement made to the police.

Mr. Sanjay Hegde the learned counsel for the State

has, however supported the judgment of the High Court and

has submitted that there was no reason to doubt the

evidence of PW.1 and that his conduct inspired full

confidence as he had rushed to the village, informed his

brother and the wife of the deceased and had then returned

to the place of incident, made a search for his brother

the whole night and on discovering the dead body the next

morning had lodged the FIR at about 2.00 p.m. It has

accordingly been urged that there was no delay in lodging

of the FIR and on the contrary its very promptitude

strengthened the prosecution story.

-5- We have considered the arguments advanced by the

learned counsel for the appellants and for the State very

carefully. It is now well settled that where the

prosecution story rests only on a single witness the

evidence of such a witness must inspire full confidence.

We find however that the conduct of PW.1 was clearly

unnatural which makes his evidence extremely suspicious. As

per the prosecution story he had seen his brother being cut

up at about 6.00 p.m. at a place half a kilometer away

from the village near a temple and in an area which was

heavily populated (as Konnur was a large village) and he

had rushed home at 6.00 p.m. and then returned at 8.00 p.m.

to look for his brother. PW.1 in his evidence did not

utter a single word as to the places he had visited while

in search or the inquiries he had made from the

neighbourhood which had a Chemist shop, a tea shop, a liquor vend and several residential houses in the fields

along a very busy road. We are therefore of the opinion

that PW.1 was perhaps not an eye witness and he had lodged

the FIR only after the dead body had been discovered. This

perhaps explains the delay in the lodging of the FIR. It

has come in the evidence of PW.1 that he had rushed to the

police station at 9.00 a.m. Curiously enough however the

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FIR had been recorded at 2.00 p.m. The High court has

glossed over this glaring flaw by observing that it was a

mistake on the part of the police officer to have recorded

the FIR belatedly. Some justification for this argument could perhaps have been found if the special report had

been delivered within a reasonable time. It has however

come in the evidence of PW.9, the police constable who had

been deputed to deliver the special report to the

Magistrate, that the distance between the police station

and the Magistrate's residence where he had delivered the

special report at 5.55 p.m. was only a half kilometer. We

therefore find some substance in Mr. Mahale's argument

that the FIR had indeed been recorded at about 5.30 or

5.45 p.m. that is at the time when the dead body had been

received in the hospital.

It is significant also that some corroboration could

have been found from the prosecution story had Ramappa

(CW.6), the brother of the deceased supported the evidence

of PW.1. CW.6 though cited as a witness was not produced

as a PW. The wife of the deceased PW.11 Shivakka supported the prosecution story in the examination in

chief but when she was called for further cross-examination

after a few days she disowned her earlier statements

saying :

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"I did not come to know as to how my husband

died and who have committed the murder of my husband. Kareppa did not inform me as to who have committed the murder of may husband.

Nobody informed me that accused have assaulted my husband."

It is true that this witness was declared hostile

but in the light of the uncertain and shaky evidence we

have no option but to treat this as the final blow to the prosecution story.

On a cumulative reading of the aforesaid factors we

are of the opinion that the judgment of the High Court

cannot be maintained. Accordingly, we allow the appeal,

set aside the conviction of the appellants and direct that

the appellants, who are in custody, shall be released

forthwith if not required in connection with any other

case.

.................J. (HARJIT SINGH BEDI)

.................J. (C.K. PRASAD) New Delhi, July 28, 2010.