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CASE NO.: Appeal (crl.)  1641 of 2005

PETITIONER: Jai Singh & Ors

RESPONDENT: The State of Karnataka

DATE OF JUDGMENT: 12/04/2007

BENCH: B.P. Singh & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

HARJIT SINGH BEDI,J

The facts leading to this appeal by  special  leave  are as  under : On 13.1.1997 at about 6 a.m.  Bhairu Dadu Misale,  resident of village Veeravade was on his way to Sholapur   taking food for his son, who was in jail at that time. A short  distance away from village Veeravade on the Pakani-  Veeravade road he met PW 30 Kishore and PW 33 Dhanaji  Tukaram Mane, both residents of the same village and got into  a conversation with them.  Bhairu Dadu thereafter left on his  way to Sholapur, but a minute or two later the two P.Ws heard  a noise and on looking in that direction observed that Bhairu  Dadu had been surrounded by the six accused and while  accused No.1 Jaisingh Shivaji Awatade and accused No.2  Shanu Awatade had caught hold of him, accused No.5 Haridas  had closed his mouth, whereas the other two accused were  strangulating him with a rope.  Bhairu Dadu soon died on  which his dead body was removed from the spot in Jeep  bearing No. MH-13/A-3125 and deposited in the land of one  Shanker (after it had been burned beyond recognition) from  where it was subsequently recovered.  It appears that  Guranna PW1 who was not an eye witness received  information about the dead body lying in the field belonging to  Shanker.  This witness reached the Police Station and lodged  the FIR at about 10.30 p.m. on 13.1.1997.   The investigation  was thereafter set in motion and on completion thereof the  accused were charged for offences punishable under Sections  302/149, 201 and 147 of the IPC.     It transpired from the  evidence that the accused and the deceased belonged to two  different political parties and relations between the two were  strained on that account.  From the evidence of PW1, the  observations recorded in the inquest report, and the medical  evidence it was revealed that the dead body was of an  individual about 25-30 years of age whereas the Bhairu Dadu  in fact was about 50-55 years old at the time of his murder.  A  very large number of PW’s  resiled during the course of the  trial though the two eye witnesses supported the prosecution.  The Trial Court in its judgment dated 17.5.1999 held that the  evidence of PWs 30 and 33 did not inspire  confidence as their  conduct appeared to be unnatural which indicated that they  had in fact not been present when the murder had been  committed.  It also observed that in the light of this fact, the  other evidence which was largely circumstantial in nature was  of little use in securing a conviction.   The Trial Court  accordingly acquitted all the accused.   The State thereupon  filed an application under Section 378 of the Cr. P.C.  and

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after leave was granted the matter was heard by a Division  Bench of the High Court which in its judgment dated  17.8.2005 reversed the judgment of the trial court, convicted  the accused and sentenced them to various terms of  imprisonment.   The present appeal has been filed as a  consequence thereof. It has been argued by Mr. Sushil Kumar, the learned  counsel for the accused-appellants that the trial court had  acquitted the accused on a minute appreciation of the  evidence and arrived at conclusions clearly possible on that  evidence and in this circumstance the High Court was not  justified in reversing the acquittal.  He has submitted that  though the jurisdiction of the High Court in an appeal against  acquittal was as wide and unfettered as in the case of a  conviction appeal yet the presumption that an accused was  innocent until proved guilty was further strengthened when  the trial court made an order of acquittal and in this view of  the matter extra care and caution was required if the acquittal  was to be reversed.   He has in this connection placed reliance  on the judgment in Chandrappa & Ors.  Vs.  State of  Karnataka   2007 (3) SCALE 90.   The learned counsel has  also urged that the entire matter would hinge on the testimony  of PWs 30 and 33, and the veracity of their evidence would  have to be evaluated under the principles laid down in the  afore cited case.  He has highlighted that the two were chance  witnesses and their conduct was so unnatural that their  presence had to be ruled out ab-initio.   It has finally been  pleaded that in this situation the evidence of motive or  recovery of incriminating articles did not connect the accused  with the crime and could not by themselves and in isolation  form the basis of  a conviction.  Mr. Hegde the learned Government Advocate has however  supported the judgment of the High Court and at the very  outset pointed out that the trial court’s judgment though  laboured and lengthy did not deal with the evidence in a  systematic manner and the entire discussion on the evidence  had been confined to the last four pages whereas the judgment  of the High Court had been rendered after a minute re- evaluation of the matter and for very good reasons. He has  urged that the matter would have to be examined in the  background that the murder appeared to have been committed  in the State of Maharashtra and the body recovered in the  State of Karnataka and the resulting confusion which would  have ensued in such a situation.  He has pointed out that the  relations between the parties were undoubtedly strained as  they represented different political groups and as such the  motive for the murder stood proved.  It has finally been urged  that the circumstantial evidence inasmuch as the recovery of  the bicycle, the identification of the tiffin carrier, the jeep etc.  supported the prosecution’s story.    We have considered the arguments advanced by the  learned counsel.  From a perusal of the judgment in  Chandrappa’s case (supra) we observe that though the powers  of the High Court in an acquittal appeal are not circumscribed  and are clearly unfettered, the situation under which they  should be resorted to have been spelt out.  The broad principle  is that the presumption of innocence is strengthened if an  accused is acquitted by the trial court and that a reversal of  the trial court’s judgment should be made in cases where the  view taken was not possible on the evidence or perverse with  the broad understanding that if two views were possible, the  one taken by the Trial Court in favour of the accused should  be retained.   As already observed above, the entire prosecution story  hinges on the evidence of PWs 30 and 33. A bare reading of

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their evidence however shows that it cannot be relied upon.  Clearly the two were chance witnesses and have not been able  to explain the circumstances which brought them to the place  of incident at 6.30 a.m.  PW 30 Kishore deposed that he had  seen the incident alongwith PW 33 Dhanaji Tukaram Mane  from a distance of about 50 feet while he was one kilometer  away from village Veeravade on the Pakani Veeravade road.  Concededly all the accused, the deceased and the two eye  witnesses belonged to village Veeravade and were thus co- villagers known to each other. The conduct of this witness  is  truly amazing.   As per his evidence he reached Veeravada  about half an hour after the incident but he did not inform  anybody as to what had  transpired till the 18th or 19th  January 1997 when his statement under Section 161 of the  Cr.P.C. was recorded by the Police.  He further stated in his  cross examination that he had gone to the police voluntarily  and had not been summoned.  The statement of PW 33 is even  more unreliable.  He admitted that he was the first cousin  of  the deceased and  that after witnessing the murder had gone  on to village Akola   to meet his sister and had returned to  Veeravade after several days.  He also admitted in his cross- examination that the house of the deceased was only 150 feet  away from his house and that he had not informed anybody  about the murder till the 19th of January 1997 on which he  was confronted with his statement under Section 161 of the  Cr.P.C. wherein he had stated that he had returned to village  Veeravade on the day after the incident.   We find it absolutely  impossible to accept that this witness could have gone to  village Akola after having been a witness to the brutal murder  of his cousin and had not even informed anyone from the  family of the deceased living only 150 feet away about the  incident till 19.1.1997.  It is true,  as has been contended by Mr. Hegde,  that  some allowance must be made for the fact that the incident  had spilt over to two States or that the two witnesses had been  so overtaken by fear on account of the  two warring political  groups in the village. We find, however that PW 30 gave no  explanation as to why he had kept quiet for almost six days  whereas PW 33 did, in a stray sentence, depose that he had  been scared to talk to anyone about the murder.   To our  mind, this explanation is unacceptable as this witness had  tried to hide the fact that he had returned to village Veeravade  from village Akola the day after the incident, and being the  first cousin of the deceased, and living only 100 feet away from  the latter’s house, still did not inform the family or anybody in  the village about the murder for a period of six days.  This  bespeaks of absolutely unnatural conduct.  We have also considered Mr. Hegde’s argument with   regard to the quality of the judgment recorded by the trial  court.   We observe that the copy of the judgment put on  record is apparently a translation from the Kannada version,  and that the translation is truly abysmal and that it has taken  us  a great deal of  time and effort to decipher it.  We find that  Mr. Hegde’s argument the reasons which had weighed with the  Trial Court for acquitting the accused have been confined to  the last few pages is not quite accurate in as much that the  last four pages are a summing up as the Court, has, while  discussing individual pieces of evidence, ocular or  circumstantial, given its comments and opinions as well.         We are, therefore, of the opinion that the  interference by the High Court in the judgment of the trial  court was not called for as the view taken by it was justified on  the evidence.  We thus have no option but to allow the appeal  and acquit the accused.