Bhimapa Chandappa Hosamani And Others vs State Of Karnataka

The appellants have appealed to this Court by special leave against their conviction and sentence passed by the High Court of Karnataka at Bangalore on 26th May, 2004 in Criminal Appeal No. 1485 of 1998. The appellants were charged of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code for having committed the murder of Lakshman at about 6.00 a.m. on May 30, 1996 while he was sleeping on the 'katta' of his house. The Principal Sessions Judge, Bijapur, who tried the appellants in Sessions Case No.144 of 1998 acquitted them of the charge by his judgment and order of September 14, 1998. The trial Court held that out of the four witnesses examined as eye witnesses, two, namely- PW.8 and PW.9 turned hostile and did not support the case of the prosecution. The remaining two witnesses were PW-1, Smt. Nimbavva, mother of the deceased and PW-2, Ayyappa, the younger brother of the deceased, aged about 12 years. On an appreciation of their evidence the trial court held that PW-2 had not really witnessed the occurrence while PW-1 was not a truthful witness. The High Court on re- appreciation of the evidence on record came to the contrary conclusion that PWs. 1 and 2 were truthful eye-witnesses and on the basis of their evidence the appellants could be safely convicted of the offence punishable under Section 302 read with Section 34 IPC. Accordingly the appellants were sentenced to undergo imprisonment for life.

The case of the prosecution is that on May 30, 1996 the deceased was sleeping on the 'katta'in the outer portion of the house by the side of the road, while the remaining members of the family were sleeping inside. According to PW-1 on May 30, 1996 her husband Basappa, PW-3 woke up at about 5.00 a.m. since he had to go to Muddebihal. PW-1 and PW-2 also woke up with him. PW-3 wanted the deceased to accompany him to Muddebihal but he insisted on sleeping and stated that he will come to Muddebihal with food by 9 O' clock bus. While PW-3 left for Muddebihal, she started washing utensils at a place which was at a distance of about 2 meters from the 'katta' where the deceased was sleeping. There is evidence on record to the effect that at about 5.00 a.m. it was dark but at about 6.00 a.m. there was some light as the sun was about to rise. At about that time she noticed the three accused variously armed coming there. While appellant No.2 was armed with an axe the other two were armed with 'Jambiya'. They came saying that they will finish the deceased. In spite of her begging of them not to do so, they started assaulting the deceased. She saw that appellant No.2 gave 2 or 3 blows on the neck of the deceased while the remaining two assaulted him with their weapons on different parts of the body. According to her, the occurrence was witnessed by her younger son, PW-2 and PWs. 8 and 9, the neighbours, who had come on hearing her cries. According to her a police havaldar came to her house after about 4-5 hours and recorded the information given by her. At about 12 noon an Inspector came who held inquest over the dead body of the deceased and took other steps in the course of investigation. The dead body of the deceased was then sent for post-mortem examination.

In the First Information Report lodged by PW-1, it was stated that about 3 months before the date of occurrence, her son Lakshman, the deceased, who had illicit connection with Renuka (sister of appellant No.2) was seen following Renuka while she was going to wash clothes to the village 'nallah'. People of village had seen him following Renuka and with a view to protect her reputation Renuka complained to her mother and mother-in-law about the deceased dragging her. Thereafter the mother and mother-in-law of Renuka had come to her house and abused the deceased in filthy language. From that day onwards the appellants were moving about in the village saying that the deceased had insulted their sister and, therefore, they will not spare him and will finish him. In this background the occurrence took place on May 30, 1996. It is stated that her husband got up at 5.00 a.m. in the morning since he had to go to Muddebihal . She tried to wake up her son (deceased) but he insisted on sleeping since it was dark and said that he will get up after sun rise. She thereafter started sweeping and washing utensils. At about 6.00 a.m. the appellants came and finding her son sleeping on the 'katta' said that they will not spare Lakshman (deceased). So saying, appellant No.2 assaulted the deceased on his neck twice or thrice with an axe while the remaining accused assaulted him with 'Jambiyas' on his back and thigh. Her son died on the spot. They then ran away saying that they had finished Lakshman. She further stated in the FIR that her mother-in-law and her son PW-2 came out and witnessed the occurrence. PWs-8 and 9 of the neighborhood also witnessed the assault. It was alleged that out of anger and to take revenge for her son having illicit connection with Renuka, the appellants had committed the murder of her son.

Since PWs. 8 and 9 did not support the case of the prosecution, they were declared hostile. Their evidence was, therefore, of no assistance to the prosecution. Apart from the mother, PW-1, the other witness PW-2 was the younger brother of the deceased. The trial court came to the conclusion that he was not an eye witness and, therefore, placed no reliance on his testimony. The High Court dis- agreed with the trial court and held that PW-2, in clear terms, claimed in his examination in-chief that he had witnessed the incident and had seen all the accused assaulting the deceased with their respective weapons. The High Court observed that even in his cross- examination no material contradiction had been elicited and PW-2 had denied the suggestion that he had not witnesses the incident. What PW-2 stated was that he came from inside the house when his mother PW-1 shouted and by the time he came the assault was over. The High Court was of the view that since PW-1 in her evidence stated that she shouted when the assault was going on and at that time, hearing her shouts her neighbours PWs. 8 and 9 had come, it was but natural that PW-2, who was inside the house would have also come out and witnessed the incident. There was thus no reason to doubt the testimony of PW-2.

PW-2 stated that on the date of the incident he was sleeping inside the house with his father, mother and grand-mother. There was a 'katta' in the front portion of the house where the deceased was sleeping. In his examination-in-chief he asserted that he woke up early in the morning when his father and mother woke up. His father had to go to Muddebihal and while leaving for Muddebihal he (father) tried to awaken the deceased but the deceased insisted that he will come by 9 O' clock bus and will bring meals. The deceased again went to sleep. He was then asked by the deceased to bring 'beedi' which he brought from inside the house. The deceased smoked the 'beedi' and again went to sleep. When his father left for Muddebihal it was dark. His mother, PW-1, was washing utensils inside the house and at that time he was standing in the front-yard. He saw the appellants coming variously armed and he also witnessed the assault by them on his brother. The appellants after assaulting his brother went away saying that they had finished Lakshman. When the accused had come, his mother PW-1, had begged of them not to assault her son, yet the appellants murdered his brother. When the incident took pace there was light though the sun was not visible. Thereafter the police had come to his house. At about 8.00 a.m. Inspector also came.

In her First Information Report she had stated that PW-2 had witnessed the occurrence after coming out of the house alongwith her mother-in-law on hearing her cries. In her evidence, however, she gave a different version. She stated that when the appellants came, her son PW-2 was standing in the front yard of the house. Both she and her son pleaded with the appellants not to assault the deceased but they were both pushed by them and the appellants started assaulting the deceased. An improvement has been made by the witness in an attempt to project the presence of PW-2 from the very beginning of the occurrence which, as we have held earlier, is not true. Another aspect of the matter which deserves notice is the fact that neither her clothes nor that of PW-2 had any blood stains, though having regard to the nature of injures of the deceased a lot of blood must have come out. She explained by saying that she only touched the body of the deceased to find out whether he was alive. The conduct, to say the least, appears highly unnatural. Learned counsel for the appellant submitted that the absence of blood stains on the clothes of PWs.1 and 2 suggests that they had not witnessed the occurrence as they were perhaps inside the house and later when they came out they saw the dead body of the deceased on the 'katta' with severe injuires. It was submitted that according to PW-2 when the occurrence took place at about 6.00 a.m. the sun had not risen but there was sufficient light to identify the appellants. According to PW-2, his mother PW-1 was washing utensils inside the house. The speed with which the occurrence took place as described by PW-1 is such that she had hardly any time to raise her voice when the accused started assaulting her son. By the time she could raise her voice, the accused had murdered her son and had run away. In the light of these circumstances it was argued before us that while she was inside the house, the murder of her son had taken place outside on the 'katta' where he was sleeping and the assailants had disappeared after committing the offence. Her claim, therefore, that she was an eye witness cannot be accepted.

So tested, we do not find the evidence of PW-1 to be of that quality. In the first instance, she began with inventing a false story about existence of a motive. The narration of events as they took place before the actual murder of her son are also shown to be untrue. There is considerable doubt as to whether the first information was recorded on her saying at about 8.00 or 8.30 in the morning. Her evidence also leaves a lurking suspicion about her being an eye witness. Having discarded the evidence of PW-2, and the other two alleged eye witnesses having turned hostile, we find no reliable corroboration of her testimony. We do not find this case to be one in which the judgment of acquittal deserved to be set aside. We, therefore, feel compelled to give to the appellants the benefit of doubt while allowing their appeal. Accordingly, this appeal is allowed, the appellants are acquitted of the charge levelled against them, and they are directed to be released unless required in connection with any other case.