(Ranjan Gogoi, C.J. and L. Nageswara Rao and Sanjiv Khanna, JJ.)
Basavaraj @ Basya and Others ______________________ Appellant(s);
v.
State of Karnataka etc. ____________________________ Respondent(s).
Criminal Appeal No. 1031-1032/2016, decided on January 23, 2019
The Order of the court was delivered by
Order
1. The appellants herein (four in number) have been convicted, inter alia, under Section 302 IPC and have been sentenced to death by the learned trial Court which has been affirmed by the High Court. Aggrieved, the present appeals by special leave have been filed.
2. The case of the prosecution, in short, is that on 14th February, 2009 at about 11.45 p.m. the Police Sub-Inspector/Circle Inspector Hanamantraya s/o Bhimaraya (P.W.26), Saidapur Police Station of Yadgir District received information of multiple murders in Gondadagi village. Proceeding to the spot, P.W.26 found Suryakanthamma (P.W.7) lying near a shed with injuries. She (P.W.7) was removed to Raichur Government Hospital for treatment, whereafter, P.W. 26 recorded the statement of one Srinivas @ Seenu (P.W.6), the complainant, who was present at the spot. The said statement was treated as a complaint.
3. In the complaint, it was stated that at about 9.30 p.m. when the complainant (P.W.6) was in his shed watching television, Basannagouda (since deceased) joined him. The aforesaid person, according to the complainant, left the shed at about 11.00 p.m. to sleep in his own shed. Thereafter, according to the complainant (P.W.6), he heard commotion and going there he found that Basannagouda had been murdered and he was lying on a cot outside the shed. Looking into the shed the complainant (P.W.6) found/heard people conversing in Telugu language and thereafter he saw a blaze inside the shed. At that point of time, according to the complainant (P.W.6), three persons had come out from the shed wearing vests and shorts. Going inside the shed, the complainant (P.W.6) found Suryakanthamma (P.W.7) lying on the floor with severe injuries and her two sons Shivareddy and Srinivasreddy lying dead/murdered. Thereafter, the Police was informed and investigation commenced in the course of which the accused appellants were arrested. Their statements allegedly leading to the recovery were recorded. On completion of investigation the accused appellants were charge-sheeted for commission of offences punishable under Sections 120B, 396, 397, 302, 201, 109 read with Section 149 of the Indian Penal Code, 1860 (“IPC” for short) and under Section 98 of the Karnataka Police Act.
4. The learned trial Court and the first appellate Court having held the accused appellants guilty, inter alia, of the offence of commission of murder and having imposed sentence of death the present appeals have been filed before this Court.
5. We have heard the learned counsel for the parties and considered the materials on record.
6. Srinivas @ Seenu (P.W.6) and Suryakanthamma (P.W.7) are the eye-witnesses to the occurrence. Both have given a graphic and vivid description of the manner in which the offence was committed by the accused persons.
7. Even if we are to accept the aforesaid part of the evidence of Srinivas @ Seenu (P.W.6) and Suryakanthamma (P.W.7), what would be further required is proof of identification of the accused persons to sustain the case of the prosecution that it is the accused who had committed the crime.
8. So far as the identification of the accused persons is concerned, the Test Identification Parade (“T.I.P.” for short) was held after 27 days of the arrest of the accused. Both the courts below accepted the delay by taking note of the grounds assigned, namely, the requirement to complete some procedural formalities. Even if the period of delay in holding the T.I.P. is to be discounted, what would be required is the satisfaction of the Court that the eye-witnesses (P.W.6 and P.W.7) had correctly identified the accused appellants to be the perpetrators of the crime. This would be, particularly, significant in view of the admitted case of the prosecution that the accused persons and the deceased as well as the eyewitnesses were not known to each other from before.
9. Srinivas @ Seenu (P.W.6) in his deposition had very clearly stated that he was told in the Police Station that the four accused (appellants herein) who had come to the Police Station were the perpetrators of the crime. P.W.6 has further stated that when he had gone from the Police Station to the place from where the alleged recoveries were made the accused persons were brought there by the Police.
10. Considering the strata of the society from which P.W.6 comes, namely, a daily wage-labourer the impression created on him by the Police that it is the accused persons who had committed the crime would have a lasting impact on his mind which was bound to exhibit itself in the T.I.P. which was held subsequently. We, therefore, are of the view that even if the description of the offence, as narrated by P.W.6, is to be accepted, the identification of the accused by P.W.6 as the perpetrators of the crime would require a very close look.
11. The next witness in this regard is Suryakanthamma (P.W.7), the mother of two of the victims. She was apparently shown the photographs of the persons suspected to have committed the crime while she was in the hospital nursing the injuries she has sustained in the course of commission of the offences. Out of the photographs shown she identified Palya (Accused No. 2). Whether the prosecution had shown the photographs of the other three accused by including them in the list of suspects to Suryakanthamma (P.W.7) is a fact that does not emanate from the record. The trauma which the mother [Suryakanthamma (P.W.7)] had undergone at that point of time; the wounds inflicted on her by the assailants; the time of the incident at night i.e. 11.00 p.m.; and the gruesome manner in which the incident had occurred would lead us to hold that the Court ought to scrutinize the evidence of Suryakanthamma (P.W.7) insofar as the identification of the accused persons is concerned with the greatest of circumspection.
12. Having done that, we are of the view that it would be safer if some more corroborative evidence on the point of identification is available on record. No such evidence is forthcoming.
13. The above apart, there is another aspect of the case which would need to be highlighted. The evidence of recovery of jewelry, cash, etc. looted in the course of the incident and the recovery of the knives which Basavaraj @ Basya (Accused No. 1), Yankappa @ Yankya (Accused No. 3) and Ramesh @ Ramya (Accused No. 4) were apparently carrying with them and had used in the commission of the crime has not been satisfactorily proved by the prosecution. The evidence of Panch witnesses i.e. Chandrashekhar s/o Siddanagouda Koppardavar (P.W.13) and Sharanayya (P.W.18) clearly shows that they were called to the Police Station and the jewelry items, cash, knives, etc. were already there on display. How and in what manner the recovery was made has not been brought on record by the prosecution.
14. In a situation where the statement of the accused recorded by the Police is to the effect that they had thrown the looted items into the water tank it was the bounden duty of the prosecution to prove/show as to how the recovery of the articles were made if such recovery is to be treated as evidence admissible under Section 27 of the Indian Evidence Act, 1872. No such evidence is forthcoming.
15. In the absence of adequate evidence on the part of the prosecution with regard to identification of the accused persons and recovery of articles/items we are of the view that the conviction of Basavaraj @ Basya (Accused No. 1), Yankappa @ Yankya (Accused No. 3) and Ramesh @ Ramya (Accused No. 4) as recorded/made by the learned trial Court and affirmed by the High Court and the sentence of death imposed would require to be interfered with. We order accordingly and set aside the said conviction recorded and the sentence imposed insofar as the accused appellants Nos. 1, 3 and 4 are concerned and allow the appeals filed by them by acquitting them.
16. This will bring us to a consideration of the evidence as against accused appellant No. 2. The identification of the said accused appellant No. 2 in the hospital from the photographs shown to Suryakanthamma (P.W.7); the further identification in the course of T.I.P. and subsequently in Court, in our considered view, sufficiently establishes the case of the prosecution that the accused appellant No. 2 was involved in the commission of the crime. That apart, on the basis of the statement made by the accused appellant No. 2 recovery of axe, which is one of the offending weapons, has also been proved by the prosecution by relying on the evidence of Khasimsab (P.W.12), the panch witness, who was said to be present at the time of recovery/seizure of axe. Such recovery being at the instance of the accused appellant No. 2, the said evidence would be admissible under Section 27 of the Indian Evidence Act, 1872.
17. According to Dr. Praveenkumar (P.W.20), who had conducted the post-mortem on the bodies of the deceased, the cause of death of the deceased is due to haemorrhage and shock as a result of injuries to vital organs which injuries could have been made with both knife and axe.
18. We, therefore, hold that the prosecution on the basis of evidence of P.W.6, P.W.7 and P.W. 20 has succeeded in proving the case so far as the Palya-accused appellant No. 2 is concerned. However, taking into account the circumstances in which the crime was committed and the fact that the charges against three of the co-accused have failed, we are of the view that the sentence imposed on the accused appellant No. 2 would require modification.
19. Having considered the matter we take the view that the sentence of death imposed on the accused appellant No. 2 ought to be commuted to one of imprisonment for life. We order accordingly and dismiss the appeals filed by the accused appellant No. 2 with the aforesaid modification.
20. The appeals as well as all pending applications shall stand disposed of in the above terms.
CRIMINAL APPEAL NO. 1031-1032/2016
Basavaraj @ Basya and Ors __________________________ Appellant(s)
v.
State of Karnataka etc ____________________________ Respondent(s)
Date : 23-01-2019 These matters were called on for hearing today.
(Before Ranjan Gogoi, C.J. and L. Nageswara Rao and Sanjiv Khanna, JJ.)
For Appellant(s) Mr. S.N. Bhat, AOR
Mr. Priyank Jain, Adv.
Mr. D.P. Chaturvedi, Adv.
For Respondent(s) Mr. Devadatt Kamat, Addl. Adv. Gen.
Mr. V. N. Raghupathy, AOR
Mr. Rajesh Inamdar, Adv.
Mr. Javedur Rahman, Adv.
Mr. Aditya Bhat, Adv.
Mr. Parikshit P. Angadi, Adv.
Mr. Ashwin G. Raj, Adv.
UPON hearing the counsel the Court made the following
ORDER
21. The appeals as well as all pending applications shall stand disposed of in terms of the signed order.
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