Full Judgment Text
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PETITIONER:
MAHANTAPPA &0RS.
Vs.
RESPONDENT:
STATE OF KARNATAKA
DATE OF JUDGMENT: 12/11/1998
BENCH:
M.K.Mukherjee, B.N.Kirpal
JUDGMENT:
M.K. MUKHERJEE,J.
Seventeen persons, including the ten appellants
before us, were tried by the Sessions Judge, Raichur for
rioting, murder and other cognate offences and acquitted.
Assailing their acquittal the respondent-State of Karnataka
filed an appeal in the High Court during the pendency of
which three of them died and, resultantly, the appeal as
against them abated. Of the surviving fourteen, the High
Court upheld the acquittal of three and, reversing the
acquittal of the other eleven ( who were arrayed as Al, A2,
A4 to AIO, A12 and A1.3 before the trial Court and will
henceforth be so referred to), convicted them under Section
148 I.P.C. and 302, 307, 449, 436 and 201 1.P.C., all read.
with Section 149 I.F.C. A9 died thereafter and the
remaining ten filed the instant appeal under Section 379 of
the Code of Criminal Procedure.
2.(a) According to the prosecution case on October
10, 1985, at or about 1O A.M. the accused persons formed
themselves into an unlawful assembly armed with various
weapons in village Bappur and, in prosecution of their
common object, accosted Veerabhadrappa (P.W.I) and
Pampansgowda (the deceased), when they came out of the hotel
of Pampayya (P.W.4) and assaulted the former with a sword
near the house of one Nabeebi, Thereafter they chased P.W.I
and the deceased who, being frightened, took shelter in the
nearby house of Meelamma (P.W.5), after bolting the door of
the house from inside. They then attempted to set the house
of P.W.8 on fire by pouring kerosene soaked lighted cotton
inside the house. Finding no other alternative when P.W.8
opened the door of her house, the accused persons trespassed
into it, assaulted P.W.I and dragging the deceased out of
the house killed him with the weapons they were carrying.
They then threw the dead body in the hut of one Hajamara
Mahantappa and set it on fire with a view to destroying the
evidence of the murder.
(b) P.W.I then went to the Police Station at
Turvihar and lodged a complaint. A case was registered on
that complaint and P.W.I was sent to the local hospital for
treatment, Kalakappa (P.W.27), Inspector of Police, took up
investigation of the case and want to the scene of offence.
He held Inquest upon the dead body and, after sending it for
post-mortem examination, went in search of the accused
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persons. Though he failed to apprehend any of them on that
day he found a tractor with trailer parked in front of the
cafe shed of A3 containing various weapons like sticks,
sword, spear and axe. He attached those articles and the
tractor. Later on. In course of the investigation he
apprehended the accused persons and seized some weapons
pursuant to their statements. On completion of
investigation he submitted charge-sheet against them.
3. The accused persons pleaded not guilty to the
charges framed against them and contended that they had been
falsely implicated due to enmity.
4. In course of the trial the prosecution examined
twenty seven witnesses. The defence, however, did not
examine any witness but exhibited certain documents in
support of their case. Of the witnesses examined by the
prosecution Veerabhadrappa (P.W.I), Shankarappa (P.W.2),
Yankappa (P.W.3), Pampayya (P.W.4), Mahanthappa (P.W.6) and
Neelamma (P.W8) figured as eye witnesses,
5. Relying upon the evidence of the doctor
(P.W.16), the trial Court first held that the deceased met
with a homicidal death and P,W,1 sustained injuries as
alleged by the prosecution; and then proceeded to consider
the evidence of the five eye witnesses. On consideration
thereof it observed that none of them could be relied upon
as their testimony was unsatisfactory and inconsistent.
Accordingly the trial Court held that the incident did not
take place in the manner alleged by the prosecution and
acquitted the accused.
6. In appeal, the High Court first observed that the
inconsistencies referred to by the trial Court were
insignificant and it was not at all justified in discarding
the evidence of the eye witnesses on that score. The High
Court then detailed and reappraised the evidence of the eye
witnesses and found the same reliable and fully corroborated
by other evidence. Thus, accepting the case of the
prosecution, it convicted the appellants and A9 but gave
benefit of doubt to A15, A16 and A17 in absence of
satisfactory evidence to prove their participation in the
incident.
7. This being a statutory appeal we have, with the
assistance of the learned counsel for the parties, gone
through the entire evidence on record and the judgments of
the Courts below. Our such exercise constrains us to say
that the judgment of the trial Court Is, to say the least,
perverse. The so called evidential infirmities, for which
the eye witnesses have been disbelieved, are so trivial that
the trial Court should not have referred to the same, much
less, relied upon. To eschew prolixity we refrain from
referring to ail of them except a few to demonstrate the
approach of the trial Court in dealing with the same. In
disbelieving P.W,1, the trial Court observed that he was not
a position to say the number of blows given by each of the
accused on his person nor could he say on which part of his
body such blow was inflicted. Similar details he (P.W.I)
could not give about the assault on the deceased. For
identical reasons he disbelieved the evidence of some of the
other eye witnesses. On a careful analysis of the evidence
of the eye witnesses we have no hesitation in concluding
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that the incident took place in the manner alleged by the
prosecution. In drawing this conclusion we have drawn
inspiration from the fact that the evidence stands amply
corroborated by the objective findings of the Investigating
Officer about the burnt houses and that of the doctor
regarding injuries found on the person of the deceased and
P.W.I.
8. The next question that needs an answer is
whether the prosecution has been able to conclusively prove
the participation of the appellants in the incident. Having
given our anxious consideration to this aspect of the matter
we find that the participation of Al, A2, A4, A5 and A8 and
their active notes in the incident stands established by the
evidence of two or more eye witnesses. We, therefore, find
no hesitation in upholding the convictions of the above five
appellants. So far as A6 and A7 are concerned, they were
identified by P,W,2 only as two of the miscreants.
Considering the fact that a large number of persons were
involved in the gruesome incident we do not feel It safe to
sustain their convictions relying solely on the
identification by one witness only. We, therefore, give
them benefit of reasonable doubt. As regards AIO and A13
there is no satisfactory evidence to conclusively hold that
they were members of the unlawful assembly. In other words,
their presence at the scene of the crime as onlookers cannot
be ruled out. Coming now to A12 we find that he has not
been named in the F.I.R. lodged by P.W.I even though he had
named all other accused persons therein as the miscreants.
He is also, therefore, entitled to the benefit of reasonable
doubt.
9. On the conclusions as above, we uphold the
impugned order of conviction and sentence recorded against
Mahantappa (Al), Giriyappa (A2), Yankanagouda (A4),
Mallanagouda (A5) and Waddar Mariappa (A8) - who are the
appellant Nos. 1,2,3,4 and 7 respectively in this appeal
and set aside the same so far as it relates to Shekharappa
(A6), Devanagouda (A7), Nagappa @ Dodda Nagappa (AIO),
Bhimanna @ Sanna Nagappa (A12) and Bheemanagouda (A13) - the
other appellants in this appeal. Let A6, A7, AIO, A12 and
A13, who are appellant Nos. 5, 6, 8, 9 and 10 before us,
and are in jail, be released forthwith unless wanted in
connection with some other case. The appeal is, thus,
disposed of.