Razak Jinnesab Karajagi & Ors vs State Of Karnataka

1] Razak Jinnesab Karajagi [A-1], Jinnesab Rajesab Karajagi [A-2], Babulal Jinnesab Karajagi [A-3], Nabilal Jinnesab Karajagi [A-4] - appellants herein, have preferred this appeal under Section 2 [1] [a] of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction] Act, 1970 against the final judgment and order dated 03.09.2001 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No. 359 of 1996. By the impugned judgment, the High Court has set aside the order of 2 acquittal dated 03.01.1996 of the appellants passed by the learned 1st Additional Sessions Judge, Bijapur, in Sessions Case No. 109 of 1994 under Section 302 read with Section 34 of the Indian Penal Code (for short the "IPC"] under Sections 201 read with Section 34 of the IPC and Section 506 of the IPC of A-2 and as a result thereof, A-1, A-2, A-3 and A-4 have been convicted for the aforesaid offences and sentenced to imprisonment for life under Section 302 read with Section 34 of the IPC and Section 201 read with Section 34 of the IPC. However, no separate sentence has been awarded so far, the offences under Section 201 read with Section 34 of the IPC are concerned and under Section 506 of the IPC, for which A-2 was separately convicted. 2] The prosecution case as unfolded before the trial court was that Allisab Rajesab Karajagi was a resident of Bairawadagi and A-2 is his first cousin. A-1, A-3 and A-4 are the sons of A-2. The daughter of Kashimabi - complainant [PW-1] was married to Allisab Karajagi and out of the wedlock they have got five daughters and two sons. Allisab Karajagi's parents had died. His only sister was married and living in the State of Maharashtra. Allisab Karajagi was the owner of 4 acres of dry 3 land and one small hut at village Bairawadagi. Allisab Karajagi alongwith his wife and children had gone to Maharashtra with wishful hope of earning more income for the maintenance of the family. He had frequently been going to village Bairawadagi for looking after the agricultural pursuits and harvesting the crops. 3] Bismilla [PW-2] is the daughter of Allisab Karajagi. It was the case of the prosecution that Allisab Karajagi and A-1 to A-4 had some litigation over the pathway leading to their respective lands. It was alleged that in and around 1992, Allisab Karajagi had assaulted A-2 and on account of that incident, the accused persons had entertained enmity with Allisab. During harvesting season of February, 1994, Allisab alongwith his daughter Bismilla [PW-2] went to attend their lands. Kashimabi [PW-1] mother-in-law of Allisab, and her relatives are the residents of village Devarahipparagi, which is situated at a distance of about 10 kms. from the land of Allisab. The land of Allisab is situated near to village Satyal within the limits of village Bairawadagi. Allisab, has constructed a small hut on the land where he used to stay during his visits.

4] It was the prosecution case that on 24.02.1994 at about 4.00 p.m., both PW-1 and PW-2 brought cooked-food for Allisab from the house of PW-1. It was at about 8.00 p.m. when Allisab, PW Kashimabi and PW Bismilla all had taken their food in the field and thereafter went to sleep. PW Kashimabi and PW Bismilla slept near the heap of the crop, whereas Allisab slept near the hut at a distance of about 2 or 3 yards away from PW Kashimabi and PW Bismilla. In the intervening night of 24/25.02.1994 at about 0015 hours, PW-1 and PW-2 on hearing loud cries of Allisab, woke up and heard him uttering "Allah Marare". PW-1 and PW-2 saw and identified A-1 to A-4 in the moonlit night present near the place where Allisab was sleeping and they witnessed A-1 striking an axe blow on the head of Allisab. It was further alleged that A-2 asked A-3 and A-4 to drag the body of Allisab. A-1 thereafter alleged to have poured petrol on the person of Allisab and A-2 lit a match stick and set Allisab on fire. Having seen the incident, PW-1 and PW-2 rushed to the place of incident and tried to save the life of Allisab, but A-1 and A-2 held threat to their life. Because of fear to their life, PW-1 and PW-2 could not dare to save the life 5 of Allisab from the clutches of the accused persons and they witnessed the incident as mute spectators. No sooner, the accused persons left the place of occurrence, PW-1 and PW-2 tried to extinguish the fire by throwing mud and water on the body of Allisab. Allisab was still alive and uttered "Kya ghat karare Razaak". He later on succumbed to the injuries in the presence of PW-1 and PW-2 at the spot. PW-1 and PW-2 waited for one hour near the dead body of deceased - Allisab and thereafter they proceeded to village Satyal which is nearer to the land of the deceased and from there they boarded a truck and reached village Devarahipparagi where they narrated the entire incident to Ibrahimsab Modinsab MA Ikhed [PW-5] son of PW-1 and other family members. PW-1 alongwith her son PW-5 and some more persons went to Police Station, Basavanabagewadi, where PW-1 lodged a complaint (Ex. P-1] to Station House Officer - Siddappa Shankrapa Kumbar [PW-13], on the basis of which a Criminal Case No. 34 of 1994 came to be registered on 24.02.1994 at about 10.00 hours against the accused persons under Sections 302 read with Section 34 IPC and Section 201 read with Section 34 IPC.

5] Ramappa [PW-14], at the relevant time was working as CPI, Basavana Bageradi, received information about the crime from PW-13. PW-14 visited the Police Station at 11.00 a.m. on the same day and inspected the documents prepared by Head Constable No. 1427. He took up the investigation in his hands and visited the place of occurrence. He saw the dead body of Allisab lying in the field. The dead body of Allisab was sent to Dr. S.S. Badar [PW-4] - Medical Officer for post-mortem through constable PC No. 704 Y.R. Bhosale [PW-11]. PW-14 conducted spot panchnama marked as Ex. P-8. He seized gunny bags MO- 1 to MO-4 found lying on the spot. He recorded the statements of Bismilla [PW-2], Ibrahimsab Modinsab MA Ikhed [PW-5], Kashipati Basappa Devanaganv [PW-6], Basappa Mallappa Talikoti [PW-7] and Rasulsab Lalesab Karajagi [PW-8]. The accused persons absconded from the scene of occurrence and they could not be arrested by the police. PW-14 instructed his personnel to make search for the accused persons. The Investigating Officer received the post-mortem report (Ext.- P-3] from the doctor. On 13.03.1994, HC-1427, PC-702 produced A-1 and A-2 before him at 7.00 a.m. The Investigating Officer 7 arrested them. On interrogation, A-1 voluntarily made a disclosure statement [Ex.-P-13] in the presence of Mahammadsab Inamsab Chapparbandi [PW-3] and Ibrahimsab Modinsab MA Ikhed [PW-5] and pursuant thereto, A-1 led the police party and the witnesses to the place of recovery wherefrom one axe, one baniyan (underwear), one dhoti were recovered, which were concealed at a hollow place in the cow shed. All the blood-stained articles were taken into possession vide panchnama (Ext.-P-2]. The weapon of offence and the blood stained clothes were marked as MO-7-9. A-3 and A-4 could not be arrested because they got pre-arrest bail. On 06.04.1994, Investigating Officer recorded statement of Namdev Shanker Kadam [PW-9]. On 13.05.1994, he sent seized articles to Chemical Examiner, Bangalore for chemical analysis through HC 1342 - G.A. Sangond [PW-12]. On receipt of the C. E.'s reports Exts. P-15 and P-16 and on completion of the investigation of the case, PW-14 on 16.05.1994 prepared chargesheet against the accused and filed it in the court of JMFC, Basavan Bagewadi under Section 302 read with Section 34 IPC and Section 201 read with Section 34 IPC as well as 8 under Section 506 IPC against A-2. The learned Judicial Magistrate, Basavan Bagewadi, committed the case to the Sessions Judge for trial.

6] Before the learned 1st Additional Sessions Judge, the accused pleaded not guilty to the charges and claimed to be tried. The prosecution, in order to substantiate its case, examined as many as 14 witnesses, out of whom PW-1- Kashimabi, PW-2 - Kum. Bismilla are the eyewitnesses of the incident. In addition to oral evidence, the prosecution produced on record Exts. P-1 to P-16 and MO 1 to MO - 9. 7] The accused in the statements recorded under Section 313 of the Criminal Procedure Code (for short `Cr.P.C') pleaded denial simpliciter. However, in defence they have not led any evidence. On examination of the oral and documentary evidence produced on record, the learned 1st Additional Sessions Judge by his order dated 03.01.1996 found the accused not guilty for the above-said charged offences, therefore, they were acquitted mainly on the ground of not accepting the evidence of PW-1 and PW-2 eyewitnesses branding them as interested witnesses.

[2] EVIDENCE OF THE EYEWITNESSES 13 The case of the prosecution entirely rests upon the evidence of PW-1 and PW-2 - the witnesses of the occurrence. It is the evidence of PW-1 that on the day of the incident at about 4.30 p.m., she alongwith PW-2 - daughter of the deceased carried cooked-food for the accused from village Devarahipparagi to the fields where he had gone for harvesting the seasonal crop. They at about 8.00 or 8.30 p.m. jointly took their dinner and went to sleep. She and PW-2 had slept in front of heap of the crop stacked on the land of the deceased, whereas the deceased slept at a short distance near a hut. In mid-night hours, PW-1 and PW-2 heard loud cries raised by Allisab uttering "Allah Marare". It is the evidence of PW-1 that on hearing cries, she and PW-2 both woke up and rushed to the nearby place where Allisab was sleeping. They saw A-1 assaulting the deceased with a blow of axe on the head. It is her evidence that when she and PW-2 tried to save the life of the deceased, A-2 threatened them if they would dare to interfere or shout for help, they would meet the same fate. A-2 openly shouted and commanded A-3 and A-4 to drag Allisab. A-3 and A-4 caught hold of the legs of Allisab and 14 dragged him to a short distance. A-1 poured petrol from a can on injured- Allisab, whereas A-2 lit a match stick and threw the burning stick on Allisab with an intention to screen of the crime. She stated that A-1 to A-4 left the place of occurrence holding threats to them not to make any noise lest they would be finished.

15] No other point has been raised by the parties. We, thus, find no merit and substance in any of the submissions made on behalf of A-1 and A-2.

16] In the facts and circumstances of the case, we are satisfied and convinced that the prosecution has proved its case beyond all reasonable doubt against A-1 and A-2 and the High Court committed no error or perversity in interfering with the trial court's order of acquittal of A-1 and A-2. However, the judgment of the High Court cannot be sustained against A-3 and A-4.

17] For the reasons above-stated, this appeal is allowed in part to the extent of upholding the conviction and sentence of A-1 and A-2. The conviction of A-3 and A-4 is set aside. A-1 20 and A-2 are on bail and their bail bonds and surety bonds are cancelled. A-1 and A-2 are directed to surrender within four weeks from the date of this judgment and serve out the remainder of the sentence imposed upon them by the High Court. If A-1 and A-2 fail to surrender as directed, the trial court will take coercive steps against them in order to comply with this order. Bonds furnished by A-3 and A-4 shall stand cancelled.