Full Judgment Text
Crl.A.No.1438 of 2011
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1438 OF 2011
Rajendra @ Rajappa & Ors. …..Appellants
Versus
State of Karnataka …..Respondent
J U D G M E N T
R. Subhash Reddy, J.
1. This criminal appeal is filed by the accused nos.2 to 5 in
Sessions Case No.162 of 2003 on the file of Fast Track CourtIV,
Gulbarga, aggrieved by the judgment and order of conviction and
sentence dated 22.02.2011 in Criminal Appeal No.1812 of 2005
passed by the High Court of Karnataka (Circuit Bench at Gulbarga).
2. Sessions Case No.162 of 2003 is a case chargesheeted by
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2021.03.26
19:01:59 IST
Reason:
Shahbad Police Station in the State of Karnataka against the
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appellantsaccused under Sections 143, 147, 148, 324, 326, 307, 302
read with 149 of Indian Penal Code (IPC). For the aforesaid offences,
they were tried by the Fast Track CourtIV at Gulbarga and by
judgment dated 20.06.2005, the appellants/accused nos.2 to 5 and
accused no.6 were acquitted for the charges framed against them. As
the accused no.1 died during the pendency of the proceedings, case
was abated against him.
3. Aggrieved by the acquittal of the appellants, the respondent
State has preferred Criminal Appeal No.1812 of 2005 before the High
Court of Karnataka. The High Court, by the impugned judgment and
order dated 22.02.2011, has allowed the appeal partly and convicted
the appellants/accused nos.2 to 5 for various offences they were
charged with, and confirmed the acquittal of the accused no.6 (Smt.
Shantabai). All the appellants were sentenced for various offences as
under :
(i) R.I. for a period of three months and to pay fine of
Rs.3,000/ each. In default, to undergo S.I. for a period of
one month for the offence under Section 143 IPC.
(ii) R.I. for a period of one year and to pay fine of
Rs.4,000/ each. In default, to undergo S.I. for a period of
three months for the offence under Section 148 r/w
Sec.149 of IPC.
(iii) R.I. for a period of one year and also to pay fine of
Rs.5,000/ each. In default, to undergo S.I. for a period of
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four months for the offence under Section 324 r/w Sec.149
IPC.
(iv) R.I. for a period of two years and to pay fine of
Rs.6,000/ each. In default, to undergo S.I. for a period of
five months for the offence under Section 326 r/w Sec.149
of IPC.
(v) Life imprisonment and also to pay fine of Rs.8,000/
each. In default, to undergo S.I. for a period of one year for
the offence under Section 302 IPC r/w Sec.149 of IPC.
4. Stated in brief, the necessary facts and the case of the
prosecution for the disposal of this appeal are as under :
The complainant (PW1) Sheshamma, is the wife of the
deceased. That on 02.02.2003 the complainant and her
husband went to coolie work in the morning and when they
were returning along with firewood bundle and PW2 was
following them, at about 11:30 a.m. when the complainant
and her husband came near the Government Hostel, all the
accused A1 to A6 armed with axe, stick, pickaxe and stone,
attacked the deceased and thereby inflicted fatal wounds on
his person by assaulting him with weapons which they were
carrying. It is further alleged that the complainant rescued
her husband, went behind the hostel, the accused followed
them and A1 assaulted the deceased with axe on left cheek,
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A2 assaulted with bedaga , A3 assaulted with stick, A4
assaulted with club, A5 assaulted with axe. A1 is the father
of the complainant; A2 and A4 are uncles of the
complainant; A3 and A5 are sons of A1’s sister and A6 is
one of the sisters of A1. It is alleged in the complaint that all
the accused have attacked the deceased and started abusing
him saying that, inspite of telling not to pass from the front of
their houses and to show their faces, they have come towards
the side of the accused. Further, it is stated in the complaint
that when she and her husband tried to escape and ran away
from the back side of the hostel, all the accused followed
them and attacked them. Further, it is stated that as her
husband sustained grievous injuries he died on the spot and
said incident was witnessed by her mother Sayamma and her
sister Rathnamma, Mahesh and their villagers Haji, Hussain
have also seen. In her complaint, she prayed to take action
against the accused.
The police, after investigation of the case and after completion
thereof, filed chargesheet against the accused under various
sections, as stated already.
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After committal of the case to the Fast Track CourtIV,
Gulbarga, as accused no.1 was reported dead, case against
him was abated. After hearing the accused, the charge was
framed against the appellants under Sections 143, 147, 148,
324, 326, 302, 307 read with 149, IPC. The accused pleaded
not guilty and claimed trial.
The prosecution, to prove its case examined 22 witnesses, i.e.,
PW1 to PW22 and got marked 15 documents as exhibits, i.e.
P1 to P15 and material objects MO1 to MO13 were
marked. No witness was examined in defence, but 10
documents – Ex.D1 to D10 were marked.
5. After appreciating the ocular and documentary evidence on
record, the trial court has acquitted all the accused from the charges
with the following observations :
The deceased died due to brain hemorrhage on account of
multiple head injuries suffered by him;
As per the evidence, deceased died 6 to 8 hours earlier to the
postmortem examination;
PW1 to PW5 being close relatives of the deceased, they were
inimical with each other before the incident, therefore, their
evidence has to be considered with great care and caution;
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The name of PW6, the only independent witness, is not
mentioned in the complaint;
It is not clear, at what time injuries were sustained or the
incident took place;
The nature of injuries and details of the same are not
consistent;
There are different versions in the oral and documentary
evidence and they do not tally with each other;
Key witnesses to the incident were not examined;
The weapons used for the offence do not find a mention in the
complaint itself;
Discrepancies in the statement of PW1 and as she has not
disclosed about the earlier Sessions case which was going on
against her husband, PW2 and their father.
6. On appeal by the State, the High Court, while confirming the
conviction of the accused no.6, has convicted accused nos.2 to 5 by
the impugned judgment and order. The High Court, in the impugned
judgment, has mainly held that PW1 is a truthful witness and her
testimony is quite consistent and supports the case of the
prosecution. The High Court believed the oral evidence of PW1 and
PW2 who are injured witnesses. High Court noted that PW1 is no
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other than the daughter of accused no.1 and PW3 – Smt. Sayamma –
is none other than the wife of accused no.1 – Devendrappa. They
have deposed in clear terms about the occurrence on the day of
incident. Having regard to the consistent evidence of PWs1 to 3 as to
the occurrence of the incident, which is in the manner alleged in the
complaint – Ex.P1, High Court found that the trial court has
committed serious error in disbelieving their evidence, for the charges
levelled against the accused. The High Court also considered the
testimony of Medical Officer PW14 and held that the occurrence of
incident of assault on the deceased by the accused resulting in spot
death of the deceased, is proved beyond reasonable doubt. Further,
by observing that in view of such evidence, motive for the commission
of murder of the deceased by accused assumes little importance.
However, referring to the evidence of PWs1 to 3 it is held that even
the motive is established as much as there was a dispute between the
parties in respect of tapping of toddy trees, therefore, accused
developed illwill against the deceased. By recording a finding that the
evidence on record was not properly appreciated by the trial court, the
High Court has found that the prosecution has proved the case
against the accused nos.2 to 5 and they are guilty of committing
murder of the deceased and causing injuries to PWs1 and 2. It is
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further held that all the accused – A2 to A5 – have had shared
common object of causing the death of the deceased, as such all are
liable to be convicted for the offences alleged against them.
7. In this appeal, Ms. Kiran Suri, learned senior counsel
appearing for the appellantsaccused has submitted that the trial
court, by considering the entire evidence on record and by noticing the
material discrepancies in the evidence on record, has rightly held that
the prosecution has not proved the guilt of the accused beyond
reasonable doubt. It is submitted by learned counsel that the view
taken by the trial court was a possible view. In that view of the
matter, the High Court committed error in reversing the well reasoned
judgment of the trial court. The learned counsel has placed reliance
on a judgment of this Court in the case of
Shivaji Sahabrao Bobade
1
wherein this Court has considered
& Anr. v. State of Maharashtra
the scope of appeal against acquittal under Code of Criminal
Procedure 1898. Reference is also made to the judgment of this Court
2
in the case of Kanhaiya Lal & Ors. etc. v. State of Rajasthan etc.
wherein this Court has considered scope of appeal under Section 378
of Code of Criminal Procedure, 1973 and has held that unless there
1 (1973) 2 SCC 793
2 (2013) 5 SCC 655
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are substantial and compelling reasons, judgment of acquittal cannot
be overturned. Further, reference is also made to a judgment of this
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Court in the case of V.N. Ratheesh v. State of Kerala wherein this
Court has held that the order of acquittal shall not be interfered with
because the presumption of innocence of the accused is further
strengthened by acquittal. By further referring to the medical
evidence and ocular evidence on record, it is submitted by learned
counsel that evidence of PW14 (Medical Officer) and the contents of
Ex.P6, i.e., postmortem report run contrary to the deposition of PW1
and that in view of such material contradictions, the High Court ought
not have interfered with the judgment of the trial court. Further, it is
submitted, having regard to the evidence of PW14 who conducted the
autopsy on the dead body of the deceased and the Ex.P6 –
postmortem examination report which revealed that stomach
contained undigested rice like food particles, as such it was held that
deceased might have died about 18 hours prior to his postmortem
examination, clearly falsifies the case of the prosecution that the
deceased was assaulted by the accused at about 11:30 a.m. on
02.02.2003. To buttress the said submission, the learned counsel has
relied on a judgment of this Court in the case of Moti & Ors. v. State
3 (2006) 10 SCC 617
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of U.P. . Lastly, it is submitted that in any event it is not a case for
conviction under Section 302 IPC as there was no intention to kill the
deceased, and if her submissions are not accepted on merits of the
matter, she made a request to modify the conviction to one under
Section 304II, IPC.
8. On the other hand, learned counsel appearing for the State of
Karnataka, by taking us to the various findings recorded by the trial
court as well as the High Court, has submitted that the findings in
support of acquittal recorded by the trial court are perverse and
erroneous. It is always open for the appellate court to reappreciate
the evidence and reverse such findings. It is contended by learned
counsel, though PWs1 to 3 are rustic villagers and when deposing
after a long lapse of time from the date of incident, the minor
discrepancies will occur and same is no ground to discard their
evidence. It is submitted that the evidence of PWs1 to 3 is
trustworthy and natural. Inspite of the same, by misconstruing the
evidence, the trial court discarded their testimony only on the ground
that all are interested witnesses as they are related. It is submitted
that even the accused was related to PWs1 to 3 and merely because
they are related, same is no ground to discard their evidence. By
4 (2003) 9 SCC 444
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referring to the various findings recorded by the High Court, learned
counsel has submitted that the findings recorded in support of
conviction by the High Court are in conformity with the evidence on
record, as such there are no grounds to interfere with the same.
Lastly, it is submitted that if the view taken by the trial court is a
possible view, having regard to the evidence on record, it is not open
for the appellate court, unless there are compelling and strong
grounds made out for interference but at the same time when the
findings recorded by the trial court are not in conformity with the
evidence on record, perverse and erroneous, it is always open for the
High Court to reverse the same. It is submitted that in view of the
common object shared by the accused to commit murder of the
deceased there are no grounds to interfere with the conviction
recorded under Section 302 read with 149 IPC etc., as recorded by the
High Court.
9. The learned counsel for the appellants placed reliance on
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judgments of this Court in the case of Shivaji Sahabrao Bobade
wherein the scope of the appeal preferred against acquittal is
considered by this Court. In the said case this Court has considered
the scope of appeal against acquittal, as a matter of practice.
Incidentally, in the said case, this Court has also held that while
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appreciating evidence in criminal trials, as far as the nature of
depositions by rural witnesses is concerned, courts not to judge their
evidence by same standard of exactitude and consistency as that of
3
urban witnesses. In the judgment in the case of V.N. Ratheesh
power of the appellate court in appeals against acquittal is considered
2
by this Court. Similarly in the judgment in the case of Kanhaiya Lal
this Court has held that while dealing with appeals against acquittals
unless there are substantial and compelling reasons and good and
sufficient grounds and very strong circumstances, interference is not
called for.
It is true that in various authoritative pronouncements, this
10.
Court has circumscribed the scope of appeal under Section 378 of the
Cr.PC, in cases where appeal is preferred against acquittal recorded
by the trial court. Further, it is also settled proposition that unless
the view taken by the trial court is not a possible view, normally the
High Court should not interfere with the acquittal recorded by the trial
court. There cannot be any straightjacket formula to apply readily
for the cases in appeals arising out of acquittal recorded by the trial
court. Whether the view taken by the trial court is a possible view or
not; whether the findings recorded by the trial court are in conformity
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with the evidence or not; are the matters which depend upon facts
and circumstances of each case and the evidence on record. By
reappreciating evidence on record if appellate court comes to
conclusion that findings recorded by the trial court are erroneous and
contrary to law, it is always open for the appellate court, by recording
good and compelling reasons for interference and overturn the
judgment of acquittal by converting the same to that of conviction.
11. In this case, it is to be noted that the deceased; PWs1 to 3;
and accused were closely related. The trial court has disbelieved the
evidence of PWs1 to 3 only on the ground that they are relatives of
the deceased, forgetting the fact that PW1 Smt. Sheshamma is the
daughter of accused no.1 and PW3 is no other than the wife of
accused no.1. It is clear from the evidence on record that they are
rustic villagers and incident happened when they were returning to
their house after attending the coolie work. In Ex.P1 itself PW1 has
stated that there was dispute between her deceased husband and his
elder brother Husanayya (PW2) on one side and her father (accused
no.1 – Devendrappa) and his brothers on other side in respect of
sharing of tapping of toddy trees. As a result of such dispute, her
senior and junior uncles were telling her that she should not come
towards the side of their house. Further, PW1 Smt. Sheshamma,
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who was accompanying the deceased at the time of the incident, has
stated in her evidence that at about 06:00 a.m. she, her deceased
husband and also PW2 – Husanayya, together went to attend coolie
work and when they were returning to their house, at about 11:30
a.m. assault was made near the hostel. It is quite natural that in
rural areas, going to work in early hours and coming back to their
home around 1111:30 a.m. to have their food. She has also clearly
stated in her deposition that A1 – Devendrappa (who is now dead) hit
with axe on the left cheek of the deceased, A3 – Dattayya hit the
deceased with bedaga (a sharpedged agricultural instrument) on his
head, A4 – Manik assaulted with club on the head of the deceased,
and A5 – Basayya also assaulted the deceased with axe on his head.
If we examine the testimony of PW1 closely, it is clear that it is
consistent with her allegations in her complaint – Ex.P1. Ex.P6 is
the postmortem examination report in which the external injuries on
the dead body of the deceased were mentioned. If the complaint made
by PW1 and her testimony are considered along with the injuries
found in Ex.P6 – postmortem report, it makes it clear that the said
injuries referred in the postmortem report are attributable to overt
acts of the accused nos.2 to 5, as stated in the complaint. PW1 has
not made any improvements, omission or contradiction, so far as it
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relates to details of occurrence of the incident in the manner alleged in
the complaint – Ex.P1 and as deposed by her in the examinationin
chief. As PW1 is a rustic villager, discrepancies in timelines, as to
the time when she was examined by PW14 (doctor) for the said
injuries cannot go to the root of the prosecution case and further it is
to be noted that she sustained injury on the said date and she was
examined by PW14. The deposition of PW1 appears to be truthful
and trustworthy. PW2 – Husanayya, the elder brother of the
deceased has also stated in his evidence narrating the incident in the
same lines as that of PW1. PW2 is also an injured witness in the
incident and PW10 (doctor) examined him for the said injury and
Ex.P4 is the wound certificate pertaining to injuries suffered by PW2,
issued by PW10 – Dr. M.S. Dhadave, Senior Specialist in District
Hospital, Gulbarga. The contents of the wound certificate and oral
evidence of PW2 also establish that the injured PW2 – Husanayya
was brought to the hospital by his wife with a history of assault on
him on the same day by Devendrappa (A1) and others. PW3 – Smt.
Sayamma is none other than the wife of accused no.1 – Devendrappa
who died during the pendency of trial and mother of PW1. There is
absolutely no reason for PW3 to depose against her own husband
making such serious allegations. If the depositions of PW1 to PW3
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are considered along with the documentary evidence on record and
medical evidence of PWs10 and 14, it is crystal clear that their
evidence is natural, trustworthy and acceptable. The trial court has
disbelieved their testimony by referring to some minor contradictions.
This Court, in the case of Narayan Chetanram Chaudhary & Anr. v.
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State of Maharashtra , has considered the minor contradictions in
the testimony, while appreciating the evidence in criminal trial. It is
held in the said judgment that only contradictions in material
particulars and not minor contradictions can be a ground to discredit
the testimony of the witnesses. Relevant portion of Para 42 of the
judgment reads as under:
“42. Only such omissions which amount to contradiction
in material particulars can be used to discredit the
testimony of the witness. The omission in the police
statement by itself would not necessarily render the
testimony of witness unreliable. When the version given by
the witness in the court is different in material particulars
from that disclosed in his earlier statements, the case of
the prosecution becomes doubtful and not otherwise.
Minor contradictions are bound to appear in the
statements of truthful witnesses as memory sometimes
plays false and the sense of observation differ from person
to person. The omissions in the earlier statement if found
to be of trivial details, as in the present case, the same
would not cause any dent in the testimony of PW 2. Even if
there is contradiction of statement of a witness on any
material point, that is no ground to reject the whole of the
testimony of such witness.
5 (2000) 8 SCC 457
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… … …”
Though the evidence of PWs1 to 3 is consistent, reliable and
trustworthy, the trial court, only by referring to minor contradictions,
disbelieved the whole of their testimony. Thus, we are of the view that
the findings, as recorded by the trial court in support of the acquittal,
are contrary to evidence on record and the testimony of PWs1, 2 and
3. Thus such findings, being perverse and erroneous, it is always
open for the appellate court to reverse such findings on reappreciation
of evidence on record. As regards the contradictory portion of the
statement of PW14 pointed out by learned counsel with reference to
entries under Ex.P6 wherein it was recorded that undigested food
was found in the stomach, it is to be noticed that in Ex.P6 itself
reveals that the intestine of the deceased was full of faecal matter,
therefore, death must have occurred between 3 to 12 hours prior to
the postmortem examination, which supports the prosecution case.
In that view of the matter, the contradictory portion of the statement
of PW14 needs to be discarded and not significant to discard total
evidence on record. In view of the foregoing, we are of the view that
the judgments relied on by the learned counsel for the appellants
would not render any assistance in support of her case that the High
Court has committed error in reversing the acquittal recorded by the
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trial court. Having regard to evidence on record, as we are of the view
that the view taken by the trial court was not at all a possible view
and the findings run contrary to the evidence on record, the High
Court has rightly reversed the judgment of the trial court by
convicting the appellants (A2 to A5). Further we also do not find any
merit in the contention of the appellants that in any case it is not a
case for conviction under Section 302, IPC and same be modified to
that of conviction under Section 304II, IPC. From the evidence on
record, it is clear that the assault was intentional which resulted in
the death of the deceased and all accused – A2 to A5 – had a
common object, as such the High Court has rightly convicted the
accused for offence punishable under Section 302/149, IPC etc.
Thus, we endorse the view of the High Court.
12. For the aforesaid reasons, we do not find any merit in this
appeal, same is accordingly dismissed.
………………………………J.
[Sanjay Kishan Kaul]
………………………………J.
[R. Subhash Reddy]
New Delhi.
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March 26, 2021.
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