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2009 DIGILAW 871 (KAR)

Thavareppa v. State of Karnataka

2009-11-17

K.SREEDHAR RAO, RAVI MALIMATH

body2009
JUDGMENT K. Sreedhar Rao, Judge 1. The material facts of the prosecution case discloses that one Krishnappa (deceased) is aged about 15 years studying 8th Standard. P.W.1 is the complainant and father of the deceased. The respondents are accused 3 to 5 before the Trial Court. Accused 5 is the brother of accused 3, accused 4 is the son of accused 3. Accused 1 is one Suresh Lamani, son of accused 3. Accused 2 is the juvenile and nephew of accused 3. The deceased had illicit relationship with the daughter of accused 3. Therefore all the accused persons were bearing grouse against the deceased. 2. On 21-2-2002, A2 went to the house of deceased and took him to the house of P.W.16 for sleeping together. The said fact is witnessed by P.W.5-mother of the deceased. P.W.1 goes to the house of P.W.16 to call the deceased to have meals. The deceased informs that he has already taken meals and that he would sleep in the house of P.W.16 along with A2. On the intervening night of 21-2-2002 around 1.45 a.m. all the accused went to the house, A2 wielding axe deals blow on the neck of the deceased and all of them. While returning to their house at about 50 feet from the house of P.W.16 notice P.W.8 who had got up to attend calls of nature. The accused persons informed P.W.8 that because of illicit relationship they have killed the deceased. 3. The prosecution case further disclosed that P.W.9 who is the relative to the deceased and whose house is situated nearby the house of P.W.16 on hearing the cries go to the scene, he finds the accused persons dealing blow on the deceased. P.W.8 informs P.W.1 about the incident. P.W.1 comes to the scene. FIR is lodged on the next day at 9 a.m. and transmitted to the Court around 2.30 p.m. on the same day. Post-mortem report discloses that death is homicidal death and on account of injury to neck. The death is said to 18 to 36 hours prior to post-mortem. At the voluntary instance of A3 the axe-M.O.5 was seized, the bloodstained cloths and M.O.5 was sent to FSL. The prosecution has not produced Serological report to prove the nexus between the blood group of the stains on clothing of the deceased and blood group found on the incriminating articles. 4. At the voluntary instance of A3 the axe-M.O.5 was seized, the bloodstained cloths and M.O.5 was sent to FSL. The prosecution has not produced Serological report to prove the nexus between the blood group of the stains on clothing of the deceased and blood group found on the incriminating articles. 4. The case of prosecution discloses that A1 was found drowned in a well in the village on 22-2-2002 around 10 a.m. A2 is a juvenile. Hence the case as against him is split up. A3 to A5 have faced trail for committing offence punishable under Sections 143, 147, 148, 302 read with Section 149 of Indian Penal Code, 1860. The charge under Sections 143 and 147 of IPC is redundant and unnecessary when the accused is charged for higher offence under the same genre punishable under Section 148 of IPC. 5. The P.Ws.1, 8 and 9 have supported prosecution case. Evidence of P.W.8 disclose that around 1.45 a.m. in the night on 22-2-2002 when he was awake to attend the calls of nature the accused were passing by his house and they told him that they have killed the deceased because of the illicit relationship. P.W.8 immediately went and informed P.W.1 about the incident. P.W.9 stated that upon hearing the cries he went to the scene and found the accused assaulting the deceased. Evidence of P.W.9 becomes doubtful to be believed. Because the presence of P.W.9 at the scene as an eye-witness to the incident is not referred to and mentioned in FIR and also in the Inquest report. The statement of P.W.9 is recorded by the Police almost 15 days after the incident. 6. The evidence of P.W.1 discloses that P.W.8 informed him about the incident, he goes to the scene, find his son killed. Telephonic information is given to the police who arrive to the scene by 4.30 a.m. in the night. It appears strange to reason that why the police did not make efforts to record the complaint at the scene when P.W.1 and others were present. The records show that FIR is registered at 9 a.m. There is inordinate delay of about 8 hours in registering the FIR. P.W.1 states that he has no transport to go to the police station. The said explanation is doubtful. The records show that FIR is registered at 9 a.m. There is inordinate delay of about 8 hours in registering the FIR. P.W.1 states that he has no transport to go to the police station. The said explanation is doubtful. When the police were at the spot there is no impediment for the I.O. to record the statement at the scene and register the FIR. The inordinate delay in registering the FIR creates serious doubt about the veracity of the prosecution case and also reflects upon the veracity of evidence of P.Ws.1 and 8 who are closely related to each other. Except the discrepant evidence of P.W.8 regarding extra-judicial confession there is no other credible material to substantiate the prosecution case. 7. Post-mortem is conducted on the same day, i.e., 22-2-2002 at 2.30 a.m. Post-mortem report states that death is about 18-36 hours prior to the post-mortem. The approximate time of death in post-mortem also does not correspond with the time of death stated by the prosecution. This discrepancy may not be of very serious nature. The evidence of P.W.5 – mother of the deceased discloses that it is the A2 who comes and take the deceased to the house of P.W.16. P.W.1 contends that he saw A2 and deceased together in the house of P.W.16 when he went to call the deceased for the meals. The last seen circumstances whatever stated would only incriminate A2 but not the other accused. However it is not proper to discuss the evidence of the witnesses with regard to A2 who is the juvenile and has not faced trial. 8. In view of the inordinate delay in lodging FIR it becomes doubtful to believe theory of the prosecution, on the basis of above discrepant evidence, conviction cannot be based. The order of conviction recorded by the Trial Court is set aside. Respondents-accused are acquitted and directed to be set free if not required to be detained in another case. Accordingly appeal of the accused is allowed.