Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 341 OF 2006
Gurunath Donkappa Keri and others …Appellants
Versus
State of Karnataka …Respondent
J U D G M E N T
S.B. SINHA, J :
1. Appellants are before us aggrieved by and dissatisfied with a
th
judgment dated 11 August, 2005 passed by a Division Bench of the High
Court of Karnataka, Bangalore in Criminal Appeal No. 1254 of 2002
affirming the judgment passed by the Presiding Officer, Fast Track Court
and Additional Sessions Judge, Belgaum in S.C. No. 97/1996 convicting
accused Nos. 1 to 6, 10 and 13 for offences punishable under Sections 143,
148, 307, 302, 504 read with Section 149 of the Indian Penal Code
1
(hereinafter referred to as the ‘Code’) and sentencing them to undergo
rigorous imprisonment for three months for the offence punishable under
Section 143 read with Section 149 ; six months under Section 148 read with
Section 149 of the Code ; rigorous imprisonment for life for the offence
under Section 302 read with Section 149 of the Code and six months under
Section 504 read with Section 149 of the Code. All the sentences were,
however, directed to run concurrently.
th
2. The incident in question took place at about 1400 hours on 5
October, 1995 at the Bus Stand of Village Yadawada wherein three persons,
namely - Venkappa Laddi ; Vittal Laddi and Vittal Harijan were killed.
Originally the first information report in relation to the said incident was
lodged by PW-11 Mohammad Haji Khajamia against 13 persons, namely, –
Donkapa Venkapa Keri (A-1), Shrimant Donkappa Keri (A-2), Gurunath
Donkappa Keri (A-3), Ashok Donkappa Keri (A-4), Hanamant Donkappa
Keri (A-5), Govindgouda @ Goundappa (A-6), Maruti Gurusidda Dabaji
(A-7), Kallapa Mayappa (A-8), Ramappa Siddagouda (A09< Subhash
Donkappa (A-10), Iqbal @ Ayub Mohamadisaq (A-11), Iswhar
Shivalingappa (A-12) and Basu @ Bassapa Govindappa (A-13).
.Donkappa Venkappa Keri (A-1); Shrimant Donkappa Keri (A-2). Out of
2
them Ramappa Siddagouda, (A-9) died pending trial. Accused Nos. 7, 8, 11
and 12 were acquitted by the trial court.
A judgment of conviction and sentence was recorded by the learned
trial court against eight persons being A-1 to A-6, A-10 and A-13.
All the aforementioned accused persons preferred appeals before the
High Court. A-1 died while in custody. A-2 is said to have committed
suicide during the pendency of the appeal.
By reason of the impugned judgment the High Court acquitted A-5,
A-6 and A-13. It may also be placed on record that A-5 was released under
Article 161 of the Constitution of India. Before us are A-3, Gurunath
Donkappa Keri ; A-2, Ashok Donkappa and A-10, Subhash Donkappa Keri.
3. The first information report was lodged at about 1730 hours by PW-1
Shivappa Vishni Keri. The distance between the place of occurrence and
P.S. Kulgod is said to be about 16 kms. The first informant and the accused
persons are cousins. Deceased No.1 and 2 were maternal uncles of PWs-1
and 2. Deceased No.3 is said to be one of the servants of the deceased Nos.
1 and 2.
3
4. The deceased were residents of Neralgi Village. PWs. 1 & 2 and the
accused had their ancestral properties in the said village. Although the
family was separated, some boundary dispute existed in respect of their
lands. Land of PWs 1 & 2 was adjacent to the land of the accused. Some
trees on the boundary wall on the land of accused and PWs. 1 & 2 resulted in
disputes; both parties having filed civil suits in relation thereto.
st
5. On 31 October, 1995 while PW-2 was plucking coconuts from the
tree standing on the disputed land, some of them fell on the lands of the
accused. Accused No.1., accused No.8, his wife, and accused No.5, were
alleged to have taken away the said coconuts claiming the same to be
belonging to them.
A quarrel ensued. With a view to get the said dispute settled, PW-1 is
said to have called his maternal uncles, deceased Nos. 1 and 2 and requested
them to resolve the same. The prosecution case proceeded on the basis that
th
on 4 October, 1995 deceased Nos. 1 and 2 accompanied by their servant
deceased No.3 and PW-3, a relation of both, came to the village Yadewade
in the morning. They approached the village elders – Ishwar Mahadevappa
Katti (PW-20) and Shivappa Bailappa Chikkanavar (PW-21) for settlement
of the dispute. Accused Nos. 1 to 5 were summoned. Accused No.1 and
4
PW-1 were present in the talks for settlement. A suggestion was mooted
with regard to settlement of dispute between the parties. To that Accused
No.1 expressed his intention to consult his children viz. Accused Nos. 2 to
5.and 10. He left the place for the said purpose. When he did not return back
within a reasonable time, having regard to the time gap, PW1 and PW-2,
deceased and his people went to a tea shop belonging to Shankarappa
Ramanna Chippalakatii (PW-9) to have tea. While they were taking tea, the
accused persons consisting of as many as 13 people arrived at the spot by a
tempo trax, holding out that the persons who wanted to settle the matter
should not be allowed to do so and attacked on them. Deceased Nos. 1 and
2 were attacked first while the third deceased who had come to help the
others was also assaulted. When the village people started arriving all the
accused ran away. The three deceased and one Siddappa Basappa Nagalagi
were taken to Primary Health Centre of the Village. Dr. Siddramappa (PW-
25), of the said Primary Health Centre noticed the injuries on the deceased
and referred them to Civil Hospital, Belgaum. The deceased thereafter were
taken to Belgaum Hospital. At the said hospital they were declared dead.
6. In the meantime a report was scribed by PW-2. PW-1 took the same
to the police station and a first information report was recorded bearing No.
5
90 of 1995 under Sections 143, 148, 307, 302, 504 read with Section 149
IPC.
7. Before the learned trial Judge forty witnesses were examined on
behalf of prosecution. Concededly except PWs. 1, 2 & 3 all other witnesses
including PWs 4 to 14, 17-20, who were eye witnesses and PW32 who was a
panch witness were declared hostile. Indisputably a judgment of conviction
and sentence as against the appellants were recorded by the learned trial
Judge as also the High Court only on the basis of the evidence of PWs. 1 to
3.
8. Appellants before us do not deny or dispute the occurrence of the
incident. Death of three persons also stands admitted.
9. Mr. K.V. Viswanathan, learned counsel appearing on behalf of the
appellants in support of this appeal would raise the following contentions :-
I)
PWs 1, 2 & 3 being closely related and they, being inimically
disposed of towards the appellants and, thus, being interested
witnesses should not have been relied upon by the courts below.
6
II) There being a large number of contradictions in their
depositions, the evidence of PWs 1-3 does not inspire
confidence.
III) PW-3 having not been named in the first information report, no
reliance could be placed upon his evidence. Even the doctor in
his register and other documents did not record the names of the
said prosecution witness.
IV) The weapon of offence allegedly carried by the appellants being
axe; their deposition in court that assault took place with sticks,
clearly demonstrates that they were not the eye witnesses to the
occurrence..
V) Exhibits P-29 and P-33 being medical certificates having not
contained names of any of the four persons, including PW-3,
who allegedly shifted the deceased and the injured to Primary
Health Centre, the prosecution must be held to have failed to
prove its case.
VI)
In the hospital register, the nature of the weapon used or the
names of the culprits do not find place, which creates a
suspicion in regard to participation of the appellants in the
commission of the crime.
7
VII) If PW-3 was an eye witness his name should have been
mentioned in all those medical certificates.
VIII) For want of mentioning the mode of transport which is said to
be a tractor and the name of PW-3 in Ext.P-1 and Exts. P-29 to
P-33, it is difficult to believe that he was an eye witness.
IX)
The clothes which were being worn by PWs. 1 and 2 said to be
stained with blood having not been seized, the same, gives rise
to a suspicion they in fact shifted the deceased to the Primary
Health Centre.
X) In view of the contradictory statements with regard to the
question whether PW-1 or PW-2 had in fact gone to Village
Primary Health Centre, the prosecution story becomes doubtful.
XI) The presence of accused No.1 with PW-1 having not been
supported by the Panch witnesses, it is doubtful as to whether
accused No.1 came to his house to consult his sons and after
sometime went back with other accused to assault on the three
deceased and the party.
XII) The depositions of PWs. 1 and 2 on their plain reading would
be found to be having parrot like statements, no reliance can be
placed thereupon.
8
XIII) As on the same set of evidence A-7, A-8, A-11 and A-12 were
acquitted by the trial court and A-5, A-6 and A-13 by the High
Court, it would not be safe to convict and sentence the
appellants on the basis of the contradictory version of the
prosecution witnesses..
XIV) The first information report was lodged after a long time and as
such the prosecution story should not be accepted.
XV) The motive alleged by the prosecution arising out of a dispute
on a trivial issue ordinarily would not give rise to an occasion
of murder of the three persons.
10. Mr. Sanjay R. Hedge, learned counsel appearing for the State, on the
other hand would, contend :-
I) PWs 1 to 3, although are related to each other, they being
natural witnesses and their testimonies having not been shaken
in essential details, the court below could not be said to have
committed any error in passing the impugned judgments
particularly when they being closely related to the accused,
would not unnecessarily implicate them.
9
II) Although PWs. 1 and 3 in their evidence have stated the
weapons of offence as sticks whereas in the first information
report, they were mentioned as axe, their evidence cannot be
disbelieved, more so when some incised wounds were found on
the persons of the deceased.
III)
The motive for killing of the three persons is evident as it has
been brought out on record from the deposition of PW-19 that
the accused party had clearly stated that as PWs. 1 and 2 had
brought their maternal uncles for the purpose of resolution of
dispute, they would not let them go and finish them.
IV) Non-mentioning of the names of the witnesses who had
brought the deceased to the Primary Health Centre and later to
the Civil Hospital, Belgaum is not material as the doctors must
be busy in attending the patients immediately and naturally they
would not pay any attention to the persons who brought them or
record their statements or names.
V)
Non-mentioning of the mode of transport and name of PW-3
must be held to be an omission of a minor nature as ordinarily
such details are not necessarily to be recorded in
contemporaneous documents.
10
VI) Non seizure of the blood stained clothes worn by PW-1 and
PW-2 must also be viewed as a minor error on the part of the
Investigating Officer.
VII) On a proper reading of the evidence of PW-2, it would appear
that before the Village elders not only A-1 but also PW-1 was
present and from the shop/residence of Shivappa Bailappa
Chikkanavar (PW-21) they went to a tea shop.
VIII) Even the witnesses who had turned hostile in their deposition
before the Court conceded that the incident had taken place
near the tea shop, goes to show that they supported a part of the
prosecution case with regard to the place of occurrence.
IX) The first information report having been lodged within 2 ½
hours at Kulgod Police Sation, which is at a distance of 16 kms.
the truthfulness of the prosecution case cannot be doubted.
X) In the first information report the name of PW-1 could not have
mentioned as regards the death of the three deceased as they
were sent to Civil Hospital, Belgaum in injured conditions and
the factum of the death of all the three persons was not known.
11
XI) It is not correct to contend that the dispute was on a trivial
issue, namely collection of few coconuts by A-1, A-8 and A-5
accused No.1, but it was a longstanding boundary dispute.
11. A holistic approach, in our opinion, is required to be taken in a case of
this nature.
The first information report, having regard to the distance between the
place of occurrence and the police station cannot be said to have been lodged
after a long delay. The incident took place at about 2 O’ clock in the
afternoon. It must have continued for sometime. The mental condition of
the prosecution witnesses can be well imagined. They had to arrange a
transport to take three persons who were severely injured to the hospital
particularly when one of them had suffered grievous injuries. They were
taken to the Primary Health Centre of the village.
12. Dr. Siddramappa, PW-25, noticed the following injuries on the
deceased :-
DECEASED VITTAL TIMMAPPA LADDI
“1. Laceration injury in left side of parietal region, 3” x 2”.
12
2. Abrasion in on left side of forehead and left temporal
region.
3. Lacerated wound in occipital region 3 in number
1 ½” x 1” x ½” ; 1” x ¼” x ¼” ; ½” x ½” x ½”.
4. Abrasion on left side of knee.”
DECEASED VENKAPPA TIMMAPPA LADDI
1. Two vertical 8” x1” contusions on right posterior oxillary
line 1” apart from each other.
2. Two parallel vertical 6” x 1” reddish contusion left part
of oxillary line on body.
3. Contusion injury in the back on left scapular region
roundish.
4. Laceration injury in the frontal region 3” x 2” x 1”.
5. Laceration injury in the left side of temporal region
4” x 2” x 1”.
6. Laceration injury in the occipital region 2” x 1” x 1 ½”. “
DECEASED VITTAL YALLAVVA HARIJANA
1. Bruise cum laceration in the occipital region 2” x 1” x 2”.
2. Injury seen on left lower limb at the junction of upper
rd rd
2/3 and lower 1/3 looks like fracture of both bones.
3. Lacerated injury in the parietal region 2” x 2” x 1”.”
13
The doctor was of the opinion, keeping in view the infrastructure
available at Primary Health Centre, that they could not have been properly
treated. They were, thus, advised to take them to Civil Hospital at Belgaum.
The distance between the village and Belgaum is also considerable.
13. The post-mortem reports of the three deceased show the nature of
injuries suffered by them. We may reproduce the same heretobelow:-
DECEASED VITTAL TIMMAPPA LADDI –
“1. Sutured wound left parietal area 3” in length.
rd
2. Abrasions covering left 1/3 of forehead and left
temporal area blackish in colour.
3. 3 wounds on the occipital area as shown in the figure 1
¼” x 1” ; 1” x ¼” and ½” x ¼:, blood dot bone exposed.
in on left side of forehead and left temporal region.
4. Abrasion left knee 1” x 1 ¼”. ”
DECEASED VENKAPPA TIMMAPPA LADDI
1. Two parallel, vertical 8” x 1”contusion reddish in colour
on right post axillary line 1” apart on back.
2. Two parallel, vertical 6* x 1” reddish contusion on left
post axillary line on back.
3. Defused contusion on the back.
14
4. Sutured wound from frontal hair line in the centre
extending upwards 2 ½” – incised, bone deep wound.
5. Sutured wound in occipital region, irregular 2” x ¼” –
lacerated wounds.
6. Parallel to injury. No.5 bone deep sutured wound 2” in
length lacerated.
7. Parallel to injury No.6 bone deep sutured wound 1” –
lacerated.
8. 2 ½ long bone deep sutured wound on left fronto parietal
region. Injury Nos. 4, 5, 6, 7, 8 clotted blood present.
9. Dark brown colour contusion on a dorsum of the right
hand 2” x ¼” Posterior laternal aspect of right arm, ½ x
¼”
10. Contusion bridge of the nose.
11 Multiple dark brown abrasions of forehead ranging from
4 cm to 2/ ½ cms.
12. Lacerated wound on mid shin lt. leg 1” x ½”
13. Contusion, anterior aspect of left knee ½” X ¼”. “
14. Before coming to the police station, PW-1 got the first information
report scribed by PW-2 who is a graduate in Science. He wrote the same in
English. That must have also consumed some time. It was in the
aforementioned circumstances that the first information report was lodged at
the Police Station within a period of 2 ½ hours from the time when the
15
incident had taken place; the police station being at a distance of 16 kms
from the village.
We, therefore, do not find that any delay at all was caused in lodging
the same.
15. The evidence of PW-34, that only PW-1 was present at the time of
recording of the first information report is of no consequence.
Admittedly PW-1 was the first informant. The Head Constable could
not have remembered as to who else had come with him. He could have
refreshed his memory on the basis of the first information report alone.
It is true that whereas in the first information report the overt act on
the part of the appellants was said to have been caused with axe, in their
depositions no prosecution witness stated that overt act was caused with
bamboo sticks.
16. The deceased were seriously injured. It is, therefore, not expected of
PW-25 to record in detail the names of the persons who had brought them to
the Primary Health Centre or the transport in which they were brought.
Their condition was serious. Naturally the first concern was to see that the
16
available medical aid is provided to them so that they could reach Civil
Hospital, Belgaum as early as possible. The priority of the doctor would be
to save the lives of the injured and not to make entries. Furthermore there
was not only one injured, there were three persons who had suffered
grievous injuries. The doctor was also required to notice the number of
injuries suffered by them. He did so.
17. PW-25, Dr. Ashok, who conducted the postmortem examination on
the dead body of deceased Venkappa Laddi opined that the death was due to
head injuries. Dr. Sycheta Manohr, PW-26, who conducted the postmortem
examination on the dead body of Vittal Thimappa Laddi stated the cause of
death of the deceased as coma secondary to injury to the vital organ. Dr.
Vijyvithal, PW-29, who conducted the postmortem examination of the dead
body of Vittal Harijan opined that the death was due to coma as a result of
negugin shock secondary to fracture skull, haemotoma brain and laceration
of left temporal lobe of brain.
Each of the deceased also appears to have suffered one incised wound.
18. PW-34, PI.S. registered the case. He recorded the statements of PWs.
1, 2, 8, 9, 10, 17, 18, 20, 21 and 24. He drew the map of the place of
occurrence.
17
The investigation in the case was completed by C.P.I. Sangangouda
Shivangouda Patil, PW-40.
19. We may notice the evidence of PWs. 1, 2 and 3 in regard to the overt
acts committed on the deceased.
In the first information report it is stated :-
“Subhash hit with axe twice on the head of my
uncle Vittal Laddi. He fell down and in fear we
started running. My uncle Venkappa was chased
by two persons of Gataprabha, caught him and
Gurunath assaulted Venkappa by hitting on the
head with the axe twice. And Srimantha hit twice
with axe on the head of Venkappa and two persons
from Ghataprabha held tightly Vittal Harijana, and
Ashok assaulted Vittal with axes on the head.
Then he fell down and Donkappa with his cane hit
him on his left knee, and Hanumantha and
Govindappa assaulted Shivappa Savalagi with
hatchets on his head and other parts of the body”.
PW-1 in his deposition stated :-
“That had come there assaulted Vithal Harijan
with a Bidaria stick on his head and then the
deceased Venkappa Laddi tried to run by getting
down the steps towards the Nala being afraid of
the accused, and A. Nos. 2, 3 and a person from
Ghp. assaulted Venkappa Laddi with stick on his
head, and Venkapa Laddi fell down sustaining
injuries on his head and fell down on the ground.”
18
PW-2 in his deposition stated :-
“Then myself and PW-1 went by the side of the
liquor shop and when my mother’s younger
brother Venkappa Laddi was going towards the
Nala A. Nos. 2, 3 and 2 persons of Ghp wearing
Dhoti followed them and A. Nos. 2 and 3 assaulted
with sticks on the head and leg of Venkappa
Laddi.”
PW-3 in his deposition stated :-
“A. nos. 2 and 3 and 2 persons who were wearing
dhoti assaulted Venkappa Laddi, who was running
towards the Nala. And when he was 2 step down,
he was assaulted by them with sticks on his head,
and on receiving the bleeding injuries, he fell
down unconscious.”
20. Except contending that depositions of PWs 1 to 3 are tutored ones and
they had made parrot like statements, Mr. Viswanathan has not been able to
show before us that the depositions of three witnesses had been shaken in
cross-examination in essential particulars. A longstanding The boundary
dispute between the parties is not denied or disputed. The fact that the
deceased were called for by the prosecution witnesses is also not denied or
disputed. Their presence in the village is accepted.
19
21. The possibility that some of them were carrying axe and some of them
lathis cannot be ruled out. Even the blunt portion of axe can produce the
same nature of injuries.
22. We are also not in a position to accept the submission of the learned
counsel that motive to commit the overt act must be disbelieved. The parties
were on litigating terms. They had filed suits against each other. Boundary
dispute between them was an old one. It may be true that quarrel started on
collection of a few coconuts which fell on the land of the accused but they
were collected on the premise that some coconut trees were within their own
land.
23. PW-1 in his evidence clearly stated that coconut trees were standing
on their land whereas as per the testimony of PW-2 and PW-3 they were
standing on the bandh. The very fact that there existed a boundary dispute
must have prompted PWs. 1 and 2 to call their maternal uncles.
24. There is overwhelming evidence on record to show that the incident
had taken place in the village.
Once the genesis of the occurrence is proved, it is now well-settled,
contradictions which are minor in nature would not be sufficient to dispel
20
the entire prosecution case. It is true that all the three prosecution witnesses
who have been relied upon by the courts below are interested witnesses. It
must, however, be borne in mind that despite existence of their animosity,
keeping in view the relationship between the parties, it is unlikely that they
would be falsely implicated.
25. We have noticed hereinbefore the manner in which the entire incident
had taken place. Prosecution witnesses intended that the disputes between
them should be settled through mediation. It is only with that intent in view
they brought the deceased to their own village so that the village elders may
intervene in the matter so as to end their longstanding disputes.
The reason for attack on the deceased, as revealed by PW-2, is that as
they had brought their maternal uncle to resolve the dispute, they would not
let them go and finish them. Almost to the same effect is the statement of
PW-9.
An effort had been made even by the village elders. Various options
must have been given to the accused persons. One of the options which was
given to the accused was to quote from the deposition of one of the
prosecution witness, was “It is true, that we the elders told both the sides to
21
settle the matter either by giving some portion of the land, or by taking some
portion of the land”. Accused No. 1 being the head of the family intended to
consult his children only to know their view-points so that further
negotiations may take place. They had gone to a tea shop for taking a cup of
tea. They never expected that they would be attacked by the accused
persons. They evidently did not comprehend that the deceased would be
subjected to attack in the manner in which it was done.
26. All the prosecution witnesses are natural witnesses. The essential
ingredients to prove the crime against the accused have categorically been
stated by them. Both the courts below have placed implicit reliance on their
testimonies.
Our attention has not been drawn to any major contradiction in the
deposition of the witnesses so as to disbelieve the entire prosecution case.
The very fact that they had been taking the deceased who were grievously
injured at that point of time from hospital to hospital is itself a pointer to
show the state of mind they were having at the relevant time. It is, therefore,
too much to expect that they would not only state the details of the manner
22
in which the occurrence had taken place but also the names of all the persons
who witnessed the same.
27. It is not the requirement of law that the doctors, even before admitting
the injured or during their treatment, must note down every bit of details of
the incident or names of the witnesses in the registers maintained by them.
If the doctors were engaged in discharge of their primary duty, viz.,
attending to the patients, we are of the opinion that only because in the
registers the name of PW-3, who is said to have shifted them to the hospital,
had not been mentioned by itself can be a ground for not relying on his
testimony in support of the prosecution case. Such details are not
necessarily recorded in the contemporaneous document. In any event, the
purported discrepancies in the evidence of the prosecution witnesses as to
who had shifted the injured to hospital or the mode of transportation, is
minor in nature. For the self-same reason, only because his name was not
mentioned in the First Information Report, may not itself be sufficient to
discard his evidence particularly in view of the fact that whereas PW-1 went
to the police station to lodge the First Information Report, services of PW-3
and others must have been taken for the purpose of shifting the deceased and
injured to the hospital.
23
28. Mr. Viswanathan pointed out that blood-stained clothes of the
witnesses were not seized. Even if it is accepted, the same merely points out
an error on the part of the investigation officer. The same, by itself, is
sufficient to discard the entire prosecution case.
Statements of PWs 1 and 2 as regards the name of the person who had
gone to village in question to bring the deceased cannot be said to be
decisive. Attention of the witnesses was not drawn to their earlier
statements in cross-examination. Furthermore, the evidence that the
deceased had come to the village for the purpose of resolution of dispute
being consistent, it is difficult to disbelieve it. It is absolutely consistent in
nature.
29. Submission of Mr. Viswanathan that, on the one hand that PWs 1 and
2 had contradicted themselves as to who had gone to the Village Primary
Health Centre and at the same time his submission that they had been
making the comments that they had been tutored do not go together. It is
evident from the evidence of the prosecution witnesses that for the purpose
of holding negotiations PW-1, on the one side and the Accused No. 1 from
the other were present. It was only after the suggestion for the purpose of
resolution of the dispute had been given, they had come to the tea stall.
24
It is true that PW-7, the owner of the tempo trax, turned hostile. The
said witnesses, however, conceded that some incident had taken place near
the tea shop. Some transport must have been used for taking them to the
hospital. The statement of PW-7 had also been recorded under Section 164
of the Code of Criminal Procedure. He, however, as noticed, turned hostile.
30. Having regard to the evidences brought on record by the prosecution,
we are of the opinion that only because other witnesses have turned hostile,
the same should not by itself be a ground for coming to a conclusion that the
incident had not taken place near the shop of PW-9.
31. It is also difficult to accept the argument of Mr. Viswanathan that only
because Accused Nos. 7, 8, 11 and 12 have been acquitted, the same by
itself should be a ground for recording a judgment of acquittal of the
appellants.
32. Submission of Mr. Viswanathan that the prosecution has failed to
show as to why a First Information Report was recorded under Sections 143,
147, 148, 324, 504 read with Section 149 of the Indian Penal Code which
would go to show that the deceased was alive till 1730 hrs, cannot be
accepted. They were being taken to the Civil Hospital, Belgaum. When
the First Information Report was being recorded, the deceased were on their
25
way to Civil Hospital, Belgaum. The factum of their death was, thus, not
known to PW-1.
33. For the reasons stated hereinbefore, we are also not in a position to
agree with the submission of Mr. Viswanathan that motive alleged being a
trivial one, the prosecution case should not be believed as the dispute being
related to boundary of agricultural fields, the parties were on litigating terms
for a long time.
34. For the reasons aforementioned, there is no merit in this appeal, which
is dismissed accordingly.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Cyriac Joseph]
New Delhi;
May 06, 2009
26