REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 682 OF 2006
BIRAPPA & ANR.
.. APPELLANT(S)
vs.
STATE OF KARNATAKA
.. RESPONDENT(S)
O
RDER
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
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
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.
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.
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
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 :
“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.