IMPORTANT POINT
When evidence of eye witnesses is not reliable and inspiring confidence conviction would not be safe.

JUDGMENT

T.S. THAKUR, J.

1. Leave granted.

2. These appeals by special leave call in question a judgment and order dated 19th November, 2012 passed by the High Court of Karnataka at Gulbarga whereby Criminal Appeal No.1926 of 2007 has been allowed, judgment and order of the Trial Court acquitting the appellants set aside, and the appellants convicted and sentenced to undergo rigorous imprisonment for a period of seven years under Section 304 Part II read with Section 34 IPC. A fine of Rs.5,000/-each and a default sentence of imprisonment for a period one year has also been awarded to the appellant.

3. The prosecution case in brief is that three years before the date of incident CW-11 Md. Shafi sold two acres of land to CW-2 Lingappa. The accused-appellants herein were upset by the said sale transaction and are alleged to be picking up quarrels with CW-2 besides causing obstruction in the free flow of water to the fields owned by the complainant from a distributory at Narayanapur. The appellants are alleged to be insisting that they will let water for irrigation flow only if the land purchased by the complainant was transferred in their favour. Lingappa was on that count coerced to sell the said two acres of land purchased from Mohd. Sahfi to accused-Abdul Razak. Despite this, however, the obstruction in the flow of water continued as the appellants started demanding money for letting the water flow. It was in the above background that on 19th September, 2006 at about 7.30 p.m. the appellants are alleged to have caught hold of Lingappa’s son Basavaraj-deceased while he was returning home, tied his hands behind his back splashed chilly powder on his face and assaulted him with a club of stones causing injuries on his head and other parts of body leading to his death. The incident is alleged to have been witnessed by Hanumantha (PW-1), brother of the deceased, and Mannamma (PW-4), mother of the deceased. In connection with the incident Crime No.168 of 2006 was registered at Hutti Police Station for an offence punishable under Section 302 read with Section 34 IPC against the appellants herein.

4. A charge-sheet, after completion of investigation, was filed against the appellants before the jurisdictional Court for their committal. The appellants pleaded not guilty before the Additional Sessions Judge, Fast Track Court-II, Raichur, to whom the case was made over for trial. At the trial the prosecution examined as many as 22 witnesses besides placing reliance upon several documents produced on its behalf.

5. In their statements under Section 313 Cr.P.C., the appellants denied the incriminating circumstances appearing against them, but led no evidence in their defence. The Trial Court on an appraisal of the prosecution evidence came to the conclusion that the prosecution had failed to bring home the guilt of the accused for the offences allegedly committed by them. Aggrieved by the order of acquittal the State preferred an appeal before the High Court of Karnataka which was heard and allowed by a Division Bench of that Court holding the appellants guilty of the offence punishable under Section 304 Part II read with Section 34 of the IPC and sentencing them to undergo imprisonment for a period of seven years with fine and default sentence mentioned above. The present appeal assails the correctness of the said order.

6. We have heard learned counsel for the parties who have taken us through the orders passed by the courts below.

7. The prosecution case primarily rests on the depositions of Haumantha (PW-1), brother of the deceased, who was also the first informant and Mannamma (PW-4), mother of the deceased both of whom claimed to be eye witnesses to the occurrence.

8. In his deposition before the Trial Court PW-1 refers to the purchase of land and resultant enmity between the appellants and the complainant party. He also refers to the dispute regarding the irrigation channel and the civil litigation between the two sides before the Si