M.F. Saldanha, J.
1. The State of Karnataka has, through this appeal, assailed the order of acquittal passed in favour of accused Nos. 1 to 6 in S.C.No. 165/91 by the learned II Additional Sessions Judge, Belgaum. The accused are charged for having committed offences punishable under Sections 143, 147, 148, 323, 427, 342, 448, 429 and 302 read with Section 149, I.P.C. It was alleged that on the night of 25-5-1991, at Kenchanahatti Village, the accused persons, in furtherance of their common objective, had formed an unlawful assembly and that they had assaulted some of the prosecution witnesses, but the main allegation is that they had committed the murder of one Basappa Shetappa Jambali, Briefly stated, the allegation was that pursuant to some level of hostility between the two parties, at about the time of the incident, the accused persons got into an altercation with the prosecution witnesses in the course of which they abused them, assaulted them, pelted stones on that house of these persons and when all of them ran into the house, the accused are alleged to have locked the outer door and confined them inside the house.
2. PW-16, Basappa Shivappa Naik, had gone to fetch the victim, Basappa Jambali, who was more or less in a position of an elderly person and leader of the group, to which the prosecution witnesses belonged, from Yamunapur. Basappa came back in a taxi at about 12.30 midnight along with PW-16 and PW-17, taxi driver. The accused were alleged to have been sitting outside their house which is opposite to the house of the prosecution witnesses. Basappa is alleged to have asked these persons for the key since the prosecution witnesses and the rest of the family had been locked inside the house. At that time, the accused are alleged to have caught hold of him. It is further alleged that accused Nos. 1 and 4 who were armed with small size axes, inflicted two blows on the chest of Basappa, one on the left side and the other on the right side. It is also alleged that prior to doing this, accused No. 4 had proceeded to Basappa's house and had hacked a she-buffalo belonging to Basappa on the neck, as a result of which the animal died. The prosecution witnesses contend that they broke open the front door and came out by which time the accused persons had run away. Basappa died on the spot, and a complaint was ultimately lodged at the police station and the investigation was commenced. It is alleged that the accused persons were absconding for some time, that they were traced and that during the course of the investigation, accused Nos. 1 and 4 made certain statements pursuant to which the two axes were recovered.
3. On completion of the investigation, the accused were charge-sheeted and sent for trial.
4. This is a case in which the prosecution produced as many as seven eye-witnesses and the learned trial Judge has discarded their evidence on the solitary ground that they are family members or partisan and they come within the category of interested persons; therefore, it would be dangerous to rely on their evidence. The prosecution essentially relies on oral evidence and since this has been rejected, the accused were acquitted. The State has challenged the acquittal through the present appeal.
5. At the hearing of the appeal, the State has been represented by the learned Additional Special Public Prosecutor, Sri B.V. Pinto and on behalf of the respondent-saccused, we have heard the learned advocate, Sri. R.B. Deshpande. The two counsel have taken us through the evidence on record and we have reappraised the whole of the evidence very carefully as required to be done by this Court.
6. We need to start by reiterating that we are very much conscious of the fact that in a string of judgments starting from : 1971CriLJ1547 right upto some of the recent judgments, the Hon'ble Supreme Court and High Courts have consistently held the view that in an appeal against acquittal, the prosecution must first demonstrate that the findings and conclusions recorded by the trial Court are not only incorrect, but that if they are upheld, it would result in a miscarriage of justice. We have also been guided by the parallel principle that if the view taken by the trial Court and the conclusions recorded by it are sustainable, and if on the evidence, that view is possible, merely because a superior reasoning or another view can be taken, that the High Court will not interfere in such situations. We have therefore started with a careful reconsideration of the judgment.
7. The learned Additional Special Public Prosecutor pointed out to us that despite overwhelming evidence of a whole string of eye-witnesses, the learned trial Judge has brushed aside all this evidence on the solitary consideration that they are interested persons. He further pointed out to us that PWs-16 and 17 did not come within this category, despite which the learned trial Judge has not relied on their evidence. Lastly, he submit ted that the medical evidence fully and totally falls in with the oral evidence and that in this background, recording an order of acquittal in a case where a death has occurred and where the prosecution has established the charges, constitutes grave miscarriage of justice.
8. Though Sri Deshpande, learned advocate, submitted very strongly that the trial Court has not overlooked any of the evidence and that if a particular view has been taken, this Court should not interfere, we need to record that the ground on which the evidence has been rejected is unsustainable in law. While we do concede that partisan witnesses or family members in a given situation may try to exaggerate, or if there is a background of hostility, that the possibility of fabrication cannot be ruled out, at the same time, we need to go strictly on the basis of the well defined principles of law which apply to situations of this type and which clearly postulate that such evidence will have to be scrutinised with a degree of care and caution higher than that applicable to independent witnesses and further more, as a rule of prudence, we invariably look for support from some other heads of supportive evidence in order to be doubly sure that the evidence on which the prosecution relies is absolutely and totally good enough to sustain a conviction. It is on the basis of these principles and after having satisfied ourselves that interference may be necessary, as the judgment in question requires review, that we have re-examined the record and reconsidered the position both on facts and in law.
9. This is a rather unusual and interesting case for one reason, namely that we have a string of witnesses who claim to have seen the incident at very close quarters and who have given evidence before the Court and remained unshaken in cross-examination. The more important aspect of the case is that the evidence of these witnesses falls exactly into the same pattern. It is this feature that caused a degree of suspicion in the mind of the learned trial Judge who recorded the finding that their version is parrot-like.
10. The learned Additional Special Public Prosecutor submitted; and perhaps quite rightly so, that if seven witnesses have seen the incident from a distance of hardly 10', if the accused are known to them and if the incident is one of simple nature, that the version of all the witnesses would tally 100% provided they are all telling the truth. His submission is that if the intention is to fabricate or to wrongly implicate, the Court would automatically find out from tell-tale circumstances, because these witnesses are all rustic villagers who would falter at some time if they have been asked to lie on oath. We have made these observations for only one reason because we shall recount briefly the common version that emerges from the evidence of these witnesses, after also briefly setting out the topography of the place where the incident took place.
11. The sketch of the scene of the offence very clearly indicates that the incident took place virtually between two structures, the first of them being the residence of the prosecution witnesses, and directly opposite is the residence of the accused persons. The distance between the two sets of houses is hardly 20' and the exact spot where Basappa's body was lying is about 13' from the house of the accused which makes it hardly 7' from the house of the prosecution witnesses. There is something else of importance which emerges from the diagram which is that, the prosecution witnesses who were locked up inside the house by the accused claim that they saw the entire incident through the window and the sketch very clearly indicates that the window is directly in front of the spot where the incident took place and where the body was lying. This would also indicate to us that if the prosecution witnesses contend that they had seen the incident from the window, it has not only in their line of vision, but furthermore that it was within a distance of hardly 7' from where they were. This last aspect is of some importance because admittedly, the incident took place at 12.30 a.m. i.e. after midnight. Though there are a few lights around the place, the defence had contended that it would not have been possible for the prosecution witnesses even if they were present, to have been able to clearly identify the persons and see the incident. The distance from which the incident was witnessed is therefore of some consequence.
11-A. The other aspect of the case which we have occasion to deal with, is with regard to the question of proper identification. Sofar as this is concerned, we need to record that a few hours prior to the present incident, an altercation had taken place between the parties and there is very clear evidence on record from all the eye-witnesses that the six accused persons were present, that they had taken part in the altercation, that they had not only assaulted some of the prosecution witnesses, but they had also pelted stones on their house and finally, locked them up inside the house. We refer to this earlier incident only for purposes of establishing that the more serious incident which took place after midnight was no an isolated incident, but it was preceded by something which went on for a considerable time in which time all the prosecution witnesses had occasion to see the six accused persons. It is after this incident that the six of the were seated there obviously to ensure that none of the prosecution witnesses or their family members could get out of the house.
11-B. Before dealing with the evidence of the main eye witnesses, we prefer to indicate our findings with regard to the evidence of PWs-16 and 17.
11-C. It is in the evidence of PW-16, Basappa, that he had come to Kenchanatti to attend 'Kara Hunnime'. On that day, accused No. 1 and others pelted stones on the house of PW-1, Yallappa, at about 8.30 p.m. Then, PW1, Yallappa requested him to go to Yamunapura and bring Basappa Jamble. Accordingly, himself and two others went to Yamunapura by about 10.30 p.m. and conveyed the information. It is also in his evidence that the deceased Basappa secured a taxi through some persons from Belgaum to Yamunapura and thereafter, from 'Yamunapura, they all went to Kenchanatti and reached there by about 12.30 midnight. It has further come in his evidence that the deceased Basappa was making entreaties with the accused persons that they can resolve the dispute on the next day, when A-1, Basappa, A-5, Yallappa and A-3, Siddappa as well as A-2, Siddaraya, caught hold of him tightly whereas the other two assaulted Basappa with axe. In the cross-examination, he has specifically stated that he did not know the names of the accused persons and it is only after the incident that he came to know the names of the accused persons, apart from which nothing of any importance has been elicited.
12. Coming to the evidence of PW-17, Kutubuddin, who happened to be the driver of Car No. CTL 7437, he has categorically stated that he had parked the taxi in front of the Pai Hotel at Belgaum. Then some persons of Yallapur came and asked him to come to Kenchanatti and the taxi charges were finalised at Rs. 250/-. It has clearly come in his evidence that he went to Yamunapura. From there, along with the deceased and others, he went to Kenchanatti and reached there by about 12.30 midnight. It has further come in his evidence that the deceased went towards the persons who were there and the galata took place and the deceased was also assaulted and done to death and on account of the threat by the accused persons, he left the place. Thus, from the evidence of PW-16 and PW-17, it is fully established that the deceased Basappa came to Kenchanatti in the taxi of PW-17 and thereafter, the incident of assault took place.
13. Now coming to the evidence of the close relatives, viz., PW-1, Yallappa, brother-in-law of the deceased, PW-10, Smt. Holewwa, sister of PW-1, PW-11, Yallawwa, PW-12, Balappa, brother of PW1, PW-13, Smt. Yallawwa, mother-in-law of the deceased, PW-14, Shettappa, brother of PW-1, PW-15, Basappa, elder brother of PW-1, have consistently stated that it is A-6 who caught hold of the deceased. Then immediately, it is A-3 and A-5 who caught hold of both the arms of the deceased and when the deceased was making efforts to get himself released from the clutches of the accused, A-2, Siddaraya caught hold of the deceased firmly and it is then that Adiveppa dealt a blow with the axe on the right chest whereas A-4, Kariyappa dealt a blow with the axe over the left chest. It is also clear from the evidence of these witnesses that they witnessed the incident though it is dark as there were street light and there was also the light from the head lights of the taxi and they were able to visually observe the entire incident through the window which was without shutters. There was no plausible reason for these witnesses to falsely implicate the accused persons, whereas on the other hand, it is clear that on account of the motive that the accused were nurturing ill-will against the family of PW-1, his brothers and sisters. We are satisfied with the quality of the evidence of these witnesses regarding the incident of assault which is very consistent and nothing has been elicited to doubt or undermine their testimony. Merely because of the reason that the other witnesses have turned hostile, it does not mean that the evidence of these witnesses has to be discarded.
14. Thus, an analysis of the evidence that we have referred to above will totally set at rest the main ground of attack that has been canvassed by the learned counsel, Sri R.B. Deshpande, who submitted that because of the hostility, the accused have been falsely implicated.
15. First of all, we take note of one very simple factor, namely that the incident has taken place in the immediate proximity and within visible distance of the house of the prosecution witnesses. The incident has also taken place virtually at midnight and having regard to the fact that this was a village, there could be no place other than their residence where the witnesses would be at that hour of the night. Their presence can never be therefore, disputed.
16. Secondly, in order to be absolutely certain about the aspect of visibility and identification, apart from the proximity which was hardly about 7' from the scene of the incident, we have examined the records and found out that there were lights in the houses and even though there is nothing definitely recorded in evidence with regard to the street lights, all the witnesses have unequivocally stated that when Basappa arrived in the taxi, the taxi stopped with the head lights on and that the head lights remained on right through the incident which was of a short duration, until the time when PW-17 left the place. In order to make ourselves doubly sure, we have scrutinised the evidence of PW-17, Kutubuddin who has spoken about the fact that after he stopped the car, Basappa and others got down, that Basappa went towards the place where the accused were sitting and that these persons assaulted him. He stated that when he saw the assault taking place, he moved his car back and drove away from the spot. He mentions very clearly that all the car lights were on right throughout this period.
17. The head lights of a car are extremely powerful. The case was stopped very close by because Basappa had just got down from the vehicle. In these circumstances, the prosecution has succeeded in establishing that there was more than sufficient light for the purpose of identification, and more importantly, for the witnesses to have taken stock of every aspect of the assault.
18. At this stage, we need to deal with the motive that has been alleged by the prosecution. The learned trial Judge has rejected the evidence so far as possible motive is concerned, but we do not propose to go that far. Firstly, it is demonstrated that there was a property dispute of some long-standing origin and there is also litigation pending between accused No. 1 and the father of the prosecution witnesses. The prosecution alleges that this was the real reason for the assault. What is sought to be contended is that, the deceased Basappa who admittedly was like an elder member of the family, was the person managing the affairs and that therefore, the accused targeted him. The dispute related to the sale of the house in which the prosecution witnesses were residing which originally belonged to the accused. A panchayat was held to resolve it at which a sum of Rs. 2,000/- was awarded to accused No. 1 and this amount was paid over to him. Consequently, we hardly find any justification in the allegation that the hostility would persist after this. The second allegation was that the daughter of accused No. 1 is alleged to have got pregnant by somebody and the charge was that the person responsible for this was the brother of PW-16, Shettappa (PW-14). The fact of the matter is that this embarrassing and unpleasant incident had also gone to the panchayat and it was supposed to meet within a day or two to resolve the issue. It is alleged that this was the real flashpoint which set off the incident.
19. We have carefully examined this head of evidence and in our considered view, even if there is some truth in the two instances, neither of them are serious enough to prompt the accused to have assaulted the deceased Basappa with axes and taken his life. This precisely is the strongest submission canvassed by Sri R.B. Deshpande, on behalf of the accused, when he states that there was absolutely no ground on which the accused would have wanted to assault Basappa and that it is very clear that the witnesses are keeping back a lot of truth, and that consequently, none of them should be believed. In our considered view, motive is not an absolutely essential ingredient in every criminal case when there is direct credible evidence which the Court finds reliable enough to act upon.
20. We pause at this stage to refer briefly to the medical evidence which clearly indicates that both the axe blows which landed on the chest of Basappa had caused serious internal ruptures and his death was due to these injuries. The prosecution has therefore succeeded in establishing that Basappa met with homicidal death.
21. The prosecution evidence also indicates that Basappa had arrived at about 12.30 midnight in the taxi and that PW-16 was with him at that time. The version of all the eye-witnesses is to the effect that Basappa first went towards the accused and there was some talk with regard to the panchayat relating to the girl's case, but effectively, Basappa was concerned with the fact that the entire family had been locked up in the house and he asked for the key. There is virtually grey area here because we are not prepared to accept that the incident was as one-sided as the prosecution makes it out to be, because even if the accused did not want to part with the key, that would not have been sufficient ground for them to pounce on Basappa and assault him with axes. It is very clear to us that since Basappa had been sent for, the incident had reached a flashpoint and that Basappa must have, being an elderly person, not only reprimanded, but in all probability, abused and threatened the accused and when this happened, an altercation developed and in the process, the situation got out of hand and he came to be assaulted with the axes. Only two blows have been given to him; both of them were on vital parts of the body and he has fallen down and died within no time.
22. Apart from alleging that the eyewitnesses are family members and relations, the defence has not succeeded in impeaching their credibility or the quality of their evidence. All the same, we have gone through the evidence of each of the eyewitnesses. We have found that the evidence tallies, that there are no inter se contradictions and furthermore, that since the presence of all these eye-witnesses is established, there is no ground on which the Court can reject their evidence. A lot of capital has been made by the defence to the effect that ten witnesses have turned hostile. PWs-4 to 8 and 18 to 21 have turned hostile, and the defence contention was that this is a very clear indication of the fact that other than immediate family members, there is nobody to support the prosecution case. We do not propose to fathom reasons as to why witnesses may turn hostile. But the Court is only concerned with the crucial aspect as to whether the available material inspires confidence. To reassure ourselves, as indicated earlier, we have devoted considerable attention to the evidence of PW-16 who does not come within the category of an interested person/witness and we find that PW-16 has fully corroborated the evidence of the other eye-witnesses. Also, the taxi driver, PW-17 who is an outsider and who happened to have come there and witnessed the incident, has again supported the prosecution and has corroborated the evidence of the eye-witnesses. Taken cumulatively, the prosecution has succeeded in establishing that the deceased Basappa died as a result of two axe injuries inflicted upon him by accused Nos. 1 and 4.
23. One again, the defence has relied on the fact that witnesses to the recovery of the two axes have turned hostile. This is true, but we find that the evidence of the investigating officer very clearly indicates that the recovery has taken place at the instance of accused Nos. 1 and 4. It is now well settled law that in a situation like this, if the recovery panchanama is before the Court and if the evidence of the investigating officer inspires the confidence on the mind of the Court, that evidence does not have to be shut out. In a decision reported in AIR 1978 SC 1511 (Modan Singh v. State of Rajasthan), it is precisely this legal position which has been laid down, namely that if the recovery memo is proved by the investigation officer despite the fact that the panchas are either not available or do not support, the Court can still rely on this evidence. De hors recovery evidence, this is a case in which there is overwhelming evidence of a substantial nature lead by the prosecution which fully establishes the fact that the deceased met with his death as a result of the injuries inflicted on him by accused Nos. 1 and 4. We need to mention that the serology report, Ex. P41, does establish that one of the axes that was recovered (i.e. at item No. 11) was stained with 'O' blood group which was the blood group of the deceased.
24. Even though the charge which is a comprehensive one covers the earlier incident, we do not propose to devote any time to it because on consideration of the evidence, we find that the incident in question was relatively a minor one and nothing of any consequence really took place there. On the other hand, so far as the incident that took place at 12.30 a.m. is concerned, the evidence conclusively indicates that only two of the accused, i.e. A-1 and A-4 were armed with axes and the remaining four were not carrying any weapons. It is true that the witnesses have indicated that all the six persons took part in the assault, to the extent that some of them were holding the clothes of the deceased and two of them were holding his arms so that he could not escape and that it was at this time that accused Nos. 1 and 4 inflicted the fatal injuries. We take note of the fact that when instances of this type occur, there is a slight tendency on the part of witnesses to over-reach themselves even if they do not fabricate. The presence of the six accused persons has been consistently spoken about and consequently, it is very clear that when Basappa lost his life, the uniform decision was that all the six persons should be generally implicated. We would prefer to adopt an ultra-safe approach in so far as the culpability is restricted to the two persons who carried the weapons and inflicted injuries, and since hardly and overt acts of any consequence are attributed to the remaining accused, we propose to extend to them the benefit of doubt so far as conviction is concerned.
25. The learned Additional Special Public Prosecutor submitted that so far as accused Nos. 1 and 4 are concerned, even if they were the assailants, that they could not have killed Basappa without the assistance of the other accused and that consequently, the offences under Sections 148 and 149, I.P.C. are established. We have already indicated that accused Nos. 2, 3, 5 and 6 are entitled to the benefit of doubt and in our considered view therefore, all that would survive is to uphold the position that accused Nos. 1 and 4 were acting in furtherance of their common intention. Again, the learned Special Public Prosecutor submitted that having regard to the fact that axes were used and fatal injuries inflicted on vital parts of the body, that the conviction must be under Section 302, I.P.C.
26. On behalf of the respondents, it was submitted that the incident was sporadic, that each of the accused is alleged to have dealt only one blow and furthermore, that the implements used were ones which an agriculturist would normally use in his operations and that there is nothing on record to indicate either pre-meditation or the fact that there was any intention to cause death, even if that ultimately happened. We have already had occasion to observe on the basis of the evidence of the eye-witnesses and in particular, PW-17, taxi driver, that it was the deceased who went towards the accused, that it was he who started the talk with them and it is very obvious to us that it is he who gave cause for what ultimately happened. That the provocation did come from the side of the deceased is very clear to us and this is the main reason why apart from the other facts and circumstances of the case, we are inclined to hold that this is a case that would be covered by Section 304, Part II, I.P.C.
27. The acquittal orders passed in favour of accused Nos. 1 and 4 are therefore set aside and accused Nos. 1 and 4 are convicted of the offences punishable under Section 304, Part II read with Section 34, I.P.C. The order of acquittal against accused Nos. 2,3,5 and 6 stands confirmed.
28. Lastly, on the question of sentence, a strong plea was advanced having regard to the fact that the accused are agriculturists, that they have no past convictions and having regard to the overall facts and circumstances of the case, and the age of the accused and more importantly, the long period of time that has elapsed since the incident, that this Court must confine imprisonment to the period already under gone. We have considered this plea and we are upholding it for a special reason, namely that the accused have under gone over three years in jail and the Hon'ble Supreme Court itself, in several of the recent cases, has upheld the principle that if the accused has spent a reasonable time in jail, even in a conviction under Section 304, Part II, I.P.C., the Court may confine the sentence to the period already under gone. We refer to only one of the recent decisions of the Hon'ble Supreme Court in this regard reported in 1988 SCC (Cri) 905 : 1989 Cri. L.J. 122. However, having regard to the seriousness of the incident, we direct that accused Nos. 1 and 4 shall pay a fine quantified at Rs. 10,000/- each which amount shall be deposited in the trial Court within a period of twelve weeks from today. We do not propose to award any default sentence and if the fine is not deposited in the trial Court within the prescribed period, the trial Court to take out necessary recovery proceedings. The trial Court shall thereafter issue notice to PW-2, Smt. Gowrawwa, who is the widow of the deceased and shall pay over the amount of Rs. 20,000/- to her as and by way of comapensation.
29. The appeal, as earlier indicated, partially succeeds and stands disposed of. The bail bonds of the accused to stand cancelled.