Birappa
& ANR. Vs. State of Karnataka [2010] INSC 604 (28 July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 682
OF 2006 BIRAPPA & ANR. .. APPELLANT(S) vs.
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 -2- 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 -3- 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.
-4- 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 -6- 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.
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