Full Judgment Text
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CASE NO.:
Appeal (crl.) 1344 of 2005
PETITIONER:
Ramappa Halappa Pujar & Ors
RESPONDENT:
State of Karnataka
DATE OF JUDGMENT: 27/04/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J.
Appellants herein have filed this statutory appeal under the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 being
aggrieved by and dissatisfied with the judgment dated 9.6.2005 passed by a
Division Bench of the High Court of Karnataka at Bangalore in Criminal
Appeal No.252 of 1999(A) whereby and whereunder, a judgment of
acquittal passed by a III Additional Sessions Judge, Dharwad acquitting the
appellants herein for offence punishable under sections 143, 147, 148, 341,
324, 342, 504 and 302 read with Section 149 of I.P.C., was reversed.
The alleged occurrence took place at about 10.30 A.M. on 13.12.1994
near the Bus stand at Village Ichangi situated in the District of Dharwad. A
First Information Report was lodged by one Devendrappa (PW-25). He is
the brother of appellants 1 and 2 herein being original accused nos.1 and 2.
Appellant no. 4 is married to the sister of the appellants 1 and 2. Appellants
1 and 2 and the first informant allegedly sold 5 acres 20 gunthas of land
situated in the said Village Ichangi to deceased Ratnavva. The contention of
the accused no.1, however, was that his signature on the alleged deed of sale
was a forged one. The property, however was in possession of the deceased
Ratnavva. On 13.12.1994 at about 7.30 A.M. Ratnavva and her sons
Shivananda Basavaraj and Veeresh went to the land in question for plucking
groundnuts. The accused persons in furtherance of their common object of
assaulting them came to the land in question with deadly weapons. They
chased Devendrappa and assaulted him. They assaulted the deceased with
sticks causing bleeding injuries. They were also abused. Allegedly in the
scuffle that followed, accused no.1 instigated accused no.4 to stab
Devendrappa and when an attempt was made in this behalf, bleeding injuries
accidentally were caused to accused no.1. Devendrappa ran away from the
said place. He was, however, caught near a place known Udachammana
Gudi at Ichangi. His hands were tied. He was wrongfully confined to the
house. It is stated that the accused persons also threw stones at the deceased
and her companions PWs.26 to 28. One of them had hit the deceased.
PWs.25 to 28 being frightened, moved a little away from the scene leaving
the deceased on the spot. She was forcibly taken near the Bus stand of their
village, tied to an electric pole and her garments were taken off. She was
tied around her neck with her own saree. She was assaulted with sticks. She
begged for water but the same was denied to her. The accused continued to
assault her with sticks. She breathed her last at that spot. The first
informant Devendrappa (PW-25) who was kept confined in his house
allegedly had become unconscious. After regaining consciousness he came
to know of the said murder and lodged the First Information Report.
The post-mortem examination of the deceased was conducted by Dr.
Mohantappa (PW-13). The dead body was received at the hospital for post
mortem examination on or about 11.30 P.M. in the night. The post-mortem
examination was conducted in the morning of 14.12.1994. PW 13 found the
following external injuries on the dead body :-
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"1. Oblique ligature mark on the upper part of the
neck, mark is interrupted, stating from right angle
of the jaw and along the border of the mandible
and to the left angle of the jaw, traversing to the
nape of the neck, measuring about 14"2 x in
length. Interrupted ligature mark along the lower
border of jaw from right to left side of the jaw 4 in
No. measuring 1" x =" x = x =’ x =’ x =" x ="
respectively. Ligature mark on the middle of the
nape of measuring =" x =". Ligature marks were
reddish, dry, parchment like, ecchymosed margins.
Both the hands were clinched.
2. There are 3 ligature marks on the right forearm
about 3" away from the wrist, measuring 6" x <",
8" x <, 8 =" x1/4" respectively.
3. Ligature marks on the left fore arm two in No.
measuring 5 =" x <", 5" x <" respectively.
4. There was fracture of left thigh bone lower 1/3rd
about 2" away from the knee joint.
5. Contusion on left knee joint medial aspect
measuring 3" x 2" Multiple contusions were found
on the body.
6. Contusion on left infracbuicular region measuring
2" x 3".
7. Contusion abrasion on the right elbow posterior
aspect measuring 2" x 1".
8. Contusion on left knee front aspect measuring 5" x
=".
9. Two contusion on lateral and front of left thigh
measuring 3 =" x 3", 3" x 3" respectively.
10. Contusion on left buttick and posterior aspect of
thigh measuring 6 =" x 3", 3 <" x 3" respectively,
2" x 1".
11. Abrasion on left side of the ankle measuring =" x
=".
12. Contused abrasion of left lateral aspect of ankle
measuring 2 =" x 1".
13. Contusion on lateral aspect of left leg upper part
measuring 3 =" x 2".
14. Two contusions on right thigh measuring 2" x 2",
4 =" x 1" respectively.
15. Abrasion on the right thigh lateral aspect
measuring 1 =" x =".
16. Contusion on the right buttock measuring 1 =" x
=".
17. There was no fracture of Hyoid bone, Thyroid
cartilages or tracheal rings.
18. Multiples small abrasion on right side of buttock
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measuring =" to 1" in length <" to =" in width."
In the opinion of the autopsy surgeon, the injury No.1 ligature mark
can also be caused if saree piece is rolled and tied around the neck. It can
also be caused by a rope. Injuries Nos. 2 and 3 can be caused if rope is tied
to that part of the body. Injury 4 on the body of the deceased it was opined,
could be caused by a hit with hard and blunt substance like stick. The other
injuries namely contusion and abrasions can be caused by stick, and also
with the fists and with kicks. The injuries around the neck were sufficient to
cause the death.
Devendrappa was also examined by one Dr. Achut Kumar Vasant.
He found the following injuries on his person :
5m x 3mm abrasion with 2 cm x 2 cm swelling on the back of the
head in the occipital region. The said injuries according to him could not be
self-inflicted ones.
Before the learned Trial Judge, a large number of witnesses were
examined on behalf of the prosecution. PWs.1 to 8, 10, 11, 19, 20, 21 and
29 who were either eye witnesses or Panch witnesses turned hostile. PW.9
Karveerapa Chenbasapa, however, proved the Panchnama which was
marked Ext.p-14. The panchnama was drawn in respect of the spot where
Ratnavva was found dead. He, however, refused to prove the contents of the
other panchnamas. He was also declared hostile.
Before the learned Trial Judge, an auto driver Huchappa Basappa
Parasannavar was examined as PW.2 to prove that accused no.1 was carried
in his tempo to the Handignur Government Hospital. Almost for the said
purpose, one Rafiq Abdulsab Havaldar was examined as PW.18. He,
however, did not support the prosecution case.
Learned Trial Judge recorded a judgment of acquittal opining that the
prosecution case has been supported only by the first informant
Devendrappa, sister of the deceased Chembavva and sons of the deceased
Shivananda, Basavaraj, PW.27 and Veeresh, PW.28 on whose evidence no
reliance can be placed. The learned Trial Judge took into consideration the
defence of the accused that the deceased and her sister were of loose moral
character and although married, had left their respective husbands. It was
noticed that the deceased had been living with the first informant and in
view of their immoral conduct the villagers were against them. It was held
that Accused no.1 allegedly had suffered a stab injury at the hands of the
prosecution witnesses and was taken to the hospital at about 9.30 A.M. on
that day whereafter only the villagers killed the deceased. The learned Trial
Judge further held that PWs.25, 26, 27 and 28 being interested witnesses
were not reliable.
The Division Bench of the High Court, however, opining that there
was no reason to disbelieve the said PWs.25 to 28, particularly when PW.25
was an injured witness, differed with the said findings holding :
"39. It might be that PWs 26 to 28 are the close
relatives of the deceased. The central evidence
against the accused consists of their evidence who
have given a complete narration of the prosecution
case. Though they are the close relatives of the
deceased, they cannot be termed as the interested
witnesses. The witness is normally to be
considered independent unless he or she springs
from sources which are likely to be tainted and that
usually means unless the witness has cause, such
as enmity against the accused, to wish to implicate
him falsely. Ordinarily a close relative would be
the last to screen the real culprit and falsely
implicate an innocent person. It is true, when
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feelings run high and there is personal cause for
enmity, that there is a tendency to drag in an
innocent person against whom a witness has a
grudge along with the guilty, but foundation must
be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a
sure guarantee of truth. There cannot be any
mechanical rejection of their evidence on the sole
ground that it is the evidence of partisan or
interested witnesses. Therefore the mere fact that
PWs.26 to 28 are the close relatives of the
deceased is not sufficient to discard their testimony
given in Court, more so, when their evidence does
not suffer from any such infirmity.
40. For these reasons, we are of the view that we
are unable to reject the evidence of PWs.26 to 28
on the ground that they are the relatives of the
deceased. We have ourselves carefully gone
through the entire evidence of PWs.26 to 28 and
we find that shorn of a few embellishments here
and there, their evidence read as a whole in its
entirety is acceptable. Moreover the testimony
given by them in Court stands corroborated from
the medical evidence on record. They have given
a true and correct description of what they had
seen, observed and comprehended at the spot."
The High Court, however, gave benefit of doubt to A6 to A8. The
case against A9 abated as he died during trial. Appellants before us were
convicted by the High Court under sections 143, 147, 148, 341, 342, and 302
read with Section 149 of I.P.C. They were sentenced to undergo
imprisonment for life and a fine of Rs.1,000/- for commission of the offence
under section 302 read with Section 149 of the IPC, but no separate sentence
was passed in respect of the other offences found to have been committed by
the appellants.
Mr. Girish Ananthamurthy, learned counsel appearing on behalf of the
appellants, took us through the judgment of the learned Trial Judge to
contend that sufficient and cogent reasons having been assigned in support
of the judgment of acquittal recorded by the learned Trial Judge which was
based on probability and the view taken by it being a possible one, the High
Court committed a manifest error in reversing the said judgment of acquittal.
Mr. Rana Mukherjee, learned counsel for the respondent, however,
supported the judgment.
Before we embark upon the rival contentions of the parties, we may
notice that although the learned Trial Judge noticed the motive of the
appellants in committing the offence, did not deal therewith in his
judgment. The High Court, however, considered the question of motive on
the part of the accused to commit the said offence at some length. Execution
of the deed of sale in favour of the deceased by the three brothers is not in
dispute. What was, however, in dispute was that as to whether appellant
no.1 had executed the said deed of sale or not. Possession of the parties in
or over the said land was also in dispute.
Appellants herein and other persons supporting them were bearing ill
will against the deceased and her family. Existence of the land in dispute
between the deceased and the accused stands admitted. Homicidal nature of
the death of the deceased is also not in dispute. The fact that she suffered a
number of ante-mortem injuries is also not in dispute. From the post-
mortem report it is evident that she had suffered injuries almost on all parts
of her body. She suffered even a fracture on left thigh bone.
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Learned Trial Judge appears to have totally relied upon the evidence
of PW.22 Veerbhadrappa Sadeppa Gundagavi who was the Medical Officer
at General Hospital, Haveri. According to him accused no.1 was brought to
the Hospital by one Mallangouda Hanman Thagounda Patil with a history of
assault. He examined him and found stab-wound 1 cm. above umbilicus
transversally measuring 2-1/2 cm. x = cm. x 1 cm. which was red in colour
and since there was no sufficient facility in that hospital and since the injury
was grievous, he was referred to Chigateri Hospital wherein he was admitted
and discharged on 13.2.1995 only. He proved a purported entry made in the
Medical Legal Register maintained at the General Hospital, Haveri which
was marked as Ext.P-25 wherein it was allegedly mentioned that one
Ramappa Halappa Pujar (accused no.1) was brought by one Mallangouda
and another Nellappa Hullur to that doctor with the history of assault on that
day at about 9.30 A.M. with knife by one Shivanand Chennashetty.
Allegedly he intimated the concerned Police Station. No document,
however, has been produced to prove the said fact. We have perused the
original register. We have found certain interpolations therein. A certificate
was purported to have been granted only in February 1995. The said
certificate has not been legally proved. The Doctor at Chigateri General
Hospital at Davangere had not been examined by the accused is shrouded by
mystery. According to PW.12, Appellant no.1 was being transported in a
tractor. He was, however, transferred to the auto belonging to PW.12.
PW.18 was the driver of the tractor. Although he was examined on
13.11.1997, according to him the incident took place a year prior thereto.
He stated the time to be around 10 A.M.. He did not say that he found
accused no.1 to be in an injured condition. He was merely told that he had
not been feeling well. He took him to a distance of one kilometer from the
Bus stand, whereafter he was transferred to a matador van. He could not
identify the accused no.1. PW.12 Huchappa Basappa, however, describes
himself to be a driver of a tempo. He was examined on 24.10.1997.
According to him his tempo was booked two years ago by accused nos.7 and
8 for a trip to Haveri from Hosaritti Bus stand. When accused no.1 was
being brought in a tractor he saw a bandage on his stomach. He was taken to
Handignur Government Hospital and from there to Haveri Government
Hospital. The inconsistencies between evidence of PW.18 and PW.12 is
evident. If PW.12 is to be believed, apart from the mistake in the year in
which the accident took place, the appellant no.1 reached Handignur
Government Hospital at 10.45 A.M. They were there only for 5 to 10
minutes. They reached Haveri Hospital at about 12 O’Clock which was
situated at a distance of 25 k.m. Why it took more than ninety minutes to
cover a distance of 25 k.m., is not known. How accused no.1 was being
taken to the Handignur Government Hospital when he had a bandage on his
stomach has not been explained. We also notice that although according to
PW.18 the vehicle in which accused no.1 was transported was a matador
van, according to PW.1 he was merely driving a tempo. Appellant no.1 was
unconscious who made a statement in regard to the time of manner of
occurrence and the name of the assailants is not known. Why such a
statement had to be recorded has also not been disclosed. PW.22 must have
examined the accused no.1 only for a few minutes. He might have given
only the first aid.
How he could prove the entries made in the general register has not
been disclosed.
The time factor taking into consideration the findings of the learned
Trial Judge would be a relevant piece of evidence. According to the
prosecution the occurrence took place at about 10.30 A.M. It must have
started round about 9.30 A.M. The manner in which the occurrence took
place at three different places goes to show that it must have taken some
time. Possibility of the appellant no.1 sustaining a stab injury at the instance
of the prosecution witnesses or others is not clear. Prosecution, at least, has
come out with some explanation as to how he suffered a stab injury. On the
other hand, the appellants had not offered any explanation whatsoever. It is
unbelievable that in a situation of this nature, particularly when an accused
had suffered a grievous injury for which he was allegedly required to remain
in hospital for more than 2 months, would not be reported to the police.
PW.22 although stated that he had reported the matter to the police; no
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attempt was made to obtain production of the said document. The copy of
the said report had also not been produced by PW.22.
Accused no.1 had not been arrested. If he was undergoing treatment
at the hospital for such a long time, he himself could have lodged a first
information report. The other villagers also could have done the same.
Sustenance of the injury at the hands of the prosecution witnesses in
ordinary course should have been disclosed by the Panch witnesses.
Investigating Officer in his deposition stated that he came to learn about the
said injury in the course of his investigation only on 16.12.1994. He had not
carried out any investigation in relation thereto. Presumably he did not feel
any necessity therefor. The learned Sessions Judge made a caustic remark
thereabout. Performance of statutory duties of the Investigating Officer
making investigation properly or not may be a subject matter of comment
but, in our opinion, the High Court cannot be said to have committed any
mistake in not getting swayed by the said fact alone.
If the defence story in regard to sufferance of injury by accused no.1
at 9.30 A.M. is not believed, much of the reasonings adopted by the learned
Sessions Judge to record a judgment of acquittal in favour of all the accused
persons become unsustainable. The manner in which the deceased met her
death would show that she had been brutally assaulted by a large number of
persons. She was tied with a wooden pole and not only she had been
assaulted all over her body, an attempt was made even to hang her by using
her saree.
The investigation started without any delay. Statements of a large
number of witnesses were recorded on 13.12.1994 itself. Witnesses turned
hostile. The same by itself would not negate the prosecution case. The very
fact that the villagers in a case of this nature had turned hostile would, on the
other hand, show that there was a ring of truth in the prosecution case.
It is in the aforementioned backdrop, the High Court opined :-
"38. It is no doubt true that except PWs.25 to 28,
all other eyewitnesses have turned hostile. But
that by itself is no reason to discard the evidence of
PWs.25 to 28. On the other hand, it would show
that no independent witness from the village is
prepared to come forward to depose against the
accused persons. If the other witnesses were not
eyewitnesses to the incident, why should the
Investigating Officer record their statement falsely
if they have not stated so. Be that as it may be.
Merely because the other eyewitnesses examined
by the prosecution have turned hostile and did not
support the prosecution version for the reason best
known to them, that by itself does not corrode
vitality of the prosecution version particularly
when the witnesses who have supported the
prosecution version viz. PWs. 25 to 28 have
withstood the incisive cross-examination and
pointed out the accused as the perpetrators of the
crime. There is nothing unusual in a criminal trial
that many a times independent witnesses who do
not want to incur the wrath of the accused will turn
hostile at the trial. It is the tendency on the part of
the persons to play safe by remaining neutral."
The High Court has noticed and in our opinion rightly that although
the prosecution witnesses turned hostile, they made no whisper about the
incident having occurred in the manner as alleged by the appellants. It is of
some significance that the injuries sustained by PW.25 is not in dispute.
Why the evidence of the injured witnesses was not believed by the learned
Trial Judge is beyond any comprehension. He was the brother of accused 1
and 2. He was also a party to the deed of sale. The High Court had assigned
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cogent and sufficient reasons in relying upon the evidence of PW.25,
particularly, when there are evidences on record to show that he had been
assaulted with material objects.
Even if, the version of the respondent that accused no.1 suffered
injury at the hands of PW.27 while he was firmly held by the deceased and
PW.26 is believed, the presence of PWs. 26 and 27 stands accepted.
We, therefore, are of the opinion that keeping in view the fact that
PW.26 is the sister of the deceased and PWs.27 and 28 were her sons, their
testimonies before the Court cannot be said to be wholly unreliable. [See
Mano v. State of Tamil Nadu, JT 2007 (5) SC 143] We may also notice that
as per evidence of the Investigating Officer, the accused no.1 when
questioned, declined to tell him anything. If he was not at the place of
occurrence at the time when the incident had taken place, it was expected
that he would tell his side of the story including the manner in which he had
suffered injuries to the Investigating Officer. There was absolutely no
reason why he would suppress the fact from the Investigating Officer. This
clearly goes to show that accused no.1 made all attempts to conceal the
circumstances under which he had sustained injuries on his person. If in the
aforementioned situation the High Court has believed the prosecution story,
we do not see any infirmity therein, particularly, when no complaint was
made in that behalf by the accused no.1 or by anybody else in their behalf to
the police.
Accused no.1 has also not raised any plea of self-defence.
Suggestions given to the prosecution witnesses are self-inconsistent and
wholly contradictory to each other. They cannot go together.
We have been taken through the depositions of PWs. 25 to 28. We
agree with the inference arrived at by the High Court as regards credibility
of their evidences before the court. There may be some contradictions in the
depositions of the said witnesses but they are minor in nature. We cannot
loose sight of the fact that they deposed in court about 3 = years after the
date of occurrence and, thus, minor variations from their earlier statements
are but natural.
The High Court, thus, in our opinion, in a case of this nature cannot be
said to have committed any error in reversing the judgment of acquittal by
the learned Trial Judge. The jurisdiction of the High Court albeit is limited
in this behalf, as would appear from some of the decisions of this Court but
the High Court in our considered view did not exceed its jurisdiction.
In the facts and circumstances of the case, it was not necessary for the
witnesses to prove the actual role played by each of the appellants.
The High Court had given benefit of doubt to four of them. That by
itself is not decisive. Allegation of overt acts on the part of the appellant is
evident.
In Munivel Vs. State of Tamil Nadu [(2006) 9 SCC 394], this Court
opined :
"36. Section 149 of the Indian Penal Code provides
for vicarious liability. If an offence is committed by
any member of an unlawful assembly in prosecution
of a common object thereof or such as the members of
that assembly knew that the offence to be likely to be
committed in prosecution of that object, every person
who at the time of committing that offence was
member would be guilty of the offence committed.
The common object may be commission of one
offence while there may be likelihood of commission
of yet another offence, the knowledge whereof is
capable of being safely attributable to the members of
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the unlawful assembly. Whether a member of such
unlawful assembly was aware as regard likelihood of
commission of another offence or not would depend
upon the facts and circumstances of each case.
Background of the incident, the motive, the nature of
the assembly, the nature of the arms carried by the
members of the assembly, their common object and
the behaviour of the members soon before, at or after
the actual commission of the crime would be relevant
factors for drawing an inference in that behalf. [See
Rajendra Shantaram Todankar v. State of
Maharashtra].
In Mohinder Singh & Ors. Vs. State of Punjab [(2006) 10 SCC 418],
this Court opined :-
"21. The members of the unlawful assembly can
be held liable under Section 149 IPC, if it is shown
that they knew beforehand that the offence actually
committed was likely to be committed in
prosecution of the common object. It is true that
the common object does not require prior concert
and a common meeting of mind before the attack.
It can develop even on spot but the sharing of such
an object by all the accused must be shown to be in
existence at any time before the actual
occurrence."
In Kallu alias Masih & Ors. Vs. State of M.P. [(2006) 10 SCC 313],
this Court held :-
"8. While deciding an appeal against acquittal, the
power of the Appellate Court is no less than the
power exercised while hearing appeals against
conviction. In both types of appeals, the power
exists to review the entire evidence. However, one
significant difference is that an order of acquittal
will not be interfered with, by an appellate court,
where the judgment of the trial court is based on
evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the
trial court merely because a different view is
possible. The appellate court will also bear in mind
that there is a presumption of innocence in favour
of the accused and the accused is entitled to get the
benefit of any doubt. Further if it decides to
interfere, it should assign reasons for differing with
the decision of the trial court."
Reliance has been placed by Mr. Girish Ananthamurthy on a recent
decision of this Court in Chandrappa & Ors. Vs. State of Karnataka [2007
(3) SCALE 90]. Therein also it was held :
"42. From the above decisions, in our considered
view, the following general principles regarding
powers of appellate Court while dealing with an
appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate Court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law;
(3) Various expressions, such as, ’substantial and
compelling reasons’, ’good and sufficient grounds’,
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’very strong circumstances’, ’distorted conclusions’,
’glaring mistakes’, etc. are not intended to curtail
extensive powers of an appellate Court in an
appeal against acquittal. Such phraseologies are
more in the nature of ’flourishes of language’ to
emphasize the reluctance of an appellate Court to
interfere with acquittal than to curtail the power of
the Court to review the evidence and to come to its
own conclusion.
(4) An appellate Court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence available to him under
the fundamental principle of criminal
jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused
having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court."
For the aforesaid reasons, we do not find any infirmity in the
judgment of the High Court. The appeal is accordingly dismissed.