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                                                     Reportable

            IN THE SUPREME COURT OF INDIA             CRIMINAL APPELLATE JURISDICTION             CRIMINAL APPEAL NO. 223 OF 2002

Razak Jinnesab Karajagi & Ors.             .....      Appellants

                           Versus

State of Karnataka                            .....   Respondent

                      JUDGMENT

Lokeshwar Singh Panta, J.

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

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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

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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.

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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

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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.

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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

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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

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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.

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8]    Being aggrieved against the order of acquittal, the State

of Karnataka preferred appeal before the High Court.        The

High Court allowed the appeal by the impugned judgment,

holding A-1 to A-4 guilty of the charged offences and

sentenced them for life under Section 302 read with Section

34 IPC.   No separate sentence was imposed upon them for

committing the offences under Section 201 read with Section

34 IPC and against A-2 for an offence under Section 506 IPC.

9]    Feeling aggrieved thereby and dissatisfied with the

judgment of the High Court, A-1 to A-4 have filed this appeal.

10]   Mr. Rajesh Mahale, Advocate appearing on behalf of A-1

to A-4, vehemently contended that the judgment of the High

Court reversing the order of acquittal passed by the trial court

is erroneous in law being against the well-established

principles with regard to interference in appeal under Section

378 of the Cr.P.C. He then contended that the trial court on

appraisal of the evidence and consideration of circumstances

has recorded well-reasoned order which cannot be regarded as

preferably wrong or perverse; therefore, the interference by the

High Court in the order of acquittal of A-1 to A-4 is wholly

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unwarranted and unjustified. He then contended that as the

evidence of the prosecution is not satisfactory and consistent,

therefore, the benefit of doubt has to be given to the accused,

but in the present case the High Court has failed to appreciate

this basic principle and convicted A-1 to A-4 on surmises and

conjectures.

11]   Mr. Sanjay R. Hegde, Advocate appearing on behalf of the

State, has canvassed correctness of the views taken by the

High Court in the impugned judgment. He submitted that the

approach of the High Court in re-appreciating the evidence led

by the prosecution cannot be found faulty.             He then

contended that the evidence of the eye-witnesses PW -

Kashimabi and            PW - Kum. Bismilla is concise, cogent

and satisfactory on the point that it was A-1 who assaulted

the deceased with a fatal blow of axe on his head and

thereafter A-2 poured petrol and set Allisab on fire, as a result

thereof, Allisab later on succumbed to the injuries sustained

by him.

12]   In order to appreciate the rival contentions of the learned

counsel for the parties, we have made independent scrutiny of

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the evidence led by the prosecution to find out whether the

High Court’s order of conviction of A-1 to A-4 can be sustained

or not.

13]   On reappraisal of the entire evidence on record, the High

Court has formulated three points for its consideration: [1]

Motive, [2] Evidence of the eyewitnesses and [3] Recovery of

MO-7.

                        [1] MOTIVE

     In support of motive, the prosecution has relied upon the

evidence of PWs-1 to 5 and PWs 6, 7 and 8.        Out of these

witnesses, PWs - 7 and 8 have not supported the prosecution

case to prove that one day before the day of incident, the

witnesses noticed PW-1 and PW-2 carrying food to the field of

the deceased.   So far as the motive is concerned, however,

they have supported PW-1 and PW-2.            Admittedly, the

appellants and the deceased are close relatives. It has come

on the record that there was some civil litigation pending

between A-1 to A-4 and the deceased over a pathway leading

to their respective lands. It was also proved on record that A-

1 to A-4 on one hand and the deceased on the other hand

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used to quarrel over this issue.   It is the evidence of PW-1,

PW-2 and PW-5 the family members of the deceased which

was corroborated by PW-6, PW-7 and PW-8 the independent

witnesses that about two years before the day of incident, A-2

and deceased had a quarrel over the pathway leading to their

respective fields.   The defence has failed to impeach the

evidence of the independent witnesses on this count.      The

evidence of the witnesses would go to show that the panchayat

of the elders of the village was held, but dispute of the

pathway could not be settled and solved by them which finally

led the death of the deceased. The High Court relying upon

the evidence of PWs - 1, 2, 5, 6, 7 and 8 has concluded that

though the prosecution has proved that there was no strong

motive attributed to A-1 to A-4, yet A-1 to A-4 had some

motive to do away with the life of the deceased who was not

residing at the place of the incident and had been cultivating

his land from a far of place in the State of Maharashtra where

he was living with his family members.

          [2] EVIDENCE OF THE EYEWITNESSES

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    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

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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.

    PW-2 corroborated the evidence of PW-1 in its entirety.

She deposed that she saw A-1 striking axe blow on her father’s

head. She noticed A-3 and A-4 standing by the side of A-1 and

A-2, who held her father’s legs and dragged him to a short

distance.   It is her categorical statement that A-1 poured petrol

on her father, whereas A-2 lit a match stick and threw the

burning stick on her father’s body.        She corroborated the

testimony of PW-1 that A-2 threatened both of them that if they

dared to raise any noise they would meet the same fate. After

the accused had left the place of occurrence, they went near the

deceased and tried to extinguish fire by pouring water and mud

on the body of her father. According to her version, Allisab was

still alive at that time and before his death he uttered "Tu kya

karare Razaak", and "Tu kya karare Jinne". Razaak is no other

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person than A-1 and A-2 is called Jinnesab. She stated that she

and PW-1 put some water into the mouth of her father but he

could not swallow it because by that time he died. PW-1 and

PW-2 deposed that they had seen and recognized the accused in

moonlit night as they were not strangers to the witnesses. The

prosecution has proved on record that during harvesting season

the deceased had been going to village Bairawadagi.       It was

quite natural for PW-1 - the mother-in-law of the deceased,

who belongs to the nearby village, to take food to her

son-in-law and grand-daughter who were attending to their

agricultural pursuits on the date of incident. It is the evidence

of PW-5 son of PW-1 that his mother had been taking food to

the deceased for the past about twenty days before the day of

incident. The distance between village of PW-1 and the land of

the deceased is about 10 kms and on the night of incident

after taking food at about 8.00 or 8.30 p.m.; it was not

possible and practicable for PW-1 to go back to her home. The

High Court found PW-1 and PW-2 most natural and truthful

witnesses, whose testimony was not rebutted and shattered by

the defence on material aspect of the matter. The trial court

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rejected the evidence of the eyewitnesses merely on the

ground that they are the interested witnesses and their

presence on the day and at the place of the incident was held

to be doubtful. The evidence of the eye-witnesses as referred

to above is quite natural, satisfactory and believable to prove

that after the incident due to repeated threats given by A-2 to

do away with their life if they dare to make noise, PW-1 and

PW-2 for about one hour remained seated by the side of the

dead body of the deceased at the place of occurrence and

thereafter went to the house of the deceased at Maharashtra.

They disclosed the entire incident to the family members of

the deceased and other village people. It was but natural that

they too have first gone to the village of the deceased and

apprised the incident to his family members and the relatives.

After narrating the incident to the family members and village

people, PW-1 along with PW-5 and other village people

immediately went to the Police Station for lodging report of the

incident.     The eye-witnesses, under these circumstances,

could   not   be   expected   to rush   to the   Police   Station

immediately after the occurrence of the crime or could have

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first gone to the village of the accused for seeking help from

the villagers. It may be noted that the evidence of PW-1 and

PW-2 cannot be rejected on the ground that they are relations

of the deceased.    It is well-settled that if the eyewitness is

related to the deceased, his evidence has to be accepted if

found to be believable and reliable because he would inter alia

be interested in ensuring that the real culprits are punished.

Both the eyewitnesses have been subjected to search in cross-

examination by the defence, but nothing tangible has been

extracted from their evidence to create any shadow of doubt

that they are not reliable and truthful witnesses. Therefore,

the finding of the trial court disbelieving and discarding the

evidence of PW-1 and PW-2 - eyewitnesses on the sole ground

of stamping them as interested, partisan and parrot-like

witnesses, in our view, is wholly unjustified and not tangible.

                  [3] RECOVERY OF MO - 7

    It is the evidence of PW-14 that disclosure statement

[Ex.-P-13] was voluntarily made by A-1 and in pursuant

thereto, weapon of offence MO-7 was recovered at the instance

of A-1. Gunny bag seized from the spot and the blood-stained

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clothes of the deceased were sent to Forensic Science

Laboratory, Bangalore.    The report of the FSL, Bangalore,

reveals that the presence of petrol was detected from partly

burnt clothes of the deceased.    On our examination of the

judgment of the High Court, we find that the High Court has

properly and rightly re-assessed and re-appraised the entire

evidence on record and there is no infirmity or perversity in

the reasoning record by the learned Judges of the High Court

to interfere with the well-reasoned judgment to the extent of

holding A-1 and A-2 guilty of the charged offences.

14]   There is not an iota of evidence placed on record by the

prosecution to prove that A-3 and A-4 had participated in the

commission of the crime alongwith A-1 and A-2. PW-1 and

PW-2 only stated A-3 and A-4 on the asking of A-2 caught

hold of the legs of the deceased and dragged him to a short

distance.   The allegation levelled by the prosecution against

A-3 and A-4 do not attribute any overt act or part played by

them in the commission of the crime.      The evidence of the

prosecution is wholly lacking to hold that A-3 and A-4 had

shared a common intention with A-1 and A-2 to cause the

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murder of Allisab.    Similarly for the lack of any tangible,

satisfactory or credible evidence, A-3 and A-4 cannot be held

liable for causing disappearance of the evidence with intention

of screening A-1 and A-2 from legal punishment under Section

201 read with Section 34, IPC. Therefore, the judgment and

order of the High Court holding A-3 and A-4 guilty of the

charged offences cannot be sustained.

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

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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.

                                 ........................................J.                                  (Lokeshwar Singh Panta)

                                 ........................................J.                                  (B. Sudershan Reddy) New Delhi, April 01, 2009.

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