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  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  

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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  

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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.

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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.  

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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  

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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 :

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“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.