Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1697 OF 2011
RAMABORA @ RAMABORAIAH & ANR. …Appellant(s)
Versus
STATE OF KARNATAKA …Respondent(s)
J U D G M E N T
V. RAMASUBRAMANIAN, J.
1. Aggrieved by the conviction for an offence under Section 302 IPC
and the sentence of imprisonment for life handed over to them by the
High Court of Karnataka, reversing the order of acquittal passed by the
Sessions Court, accused Nos.1 and 2 have come up with the above
appeal.
2. We have heard the learned counsel for the appellants and the
learned standing counsel for the State of Karnataka.
The appellants herein were prosecuted along with 20 other persons,
3.
Signature Not Verified
before the II Additional District and Sessions Judge, Bangalore, for
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2022.08.10
16:00:33 IST
Reason:
alleged offences under Sections 143, 144, 148, 147, 448 and 302 read
with Section 149 IPC. By a judgment dated 8.8.2001, all the accused
except those against whom the prosecution abated, were acquitted by the
Sessions Court.
4. However on appeals filed by the State of Karnataka, a Division
Bench of the High Court of Karnataka set aside the acquittal of the
appellants herein (A1 and A2) and held them guilty of the offence
punishable under Section 302 IPC and sentenced them to imprisonment
for life. But the acquittal of all the other accused was confirmed by the
High Court.
5. Aggrieved by the said judgment of reversal, accused Nos.1 and 2
have come up with the above appeal.
The case of the prosecution was that on 30.11.1997 at about 11
6.
p.m., all the 22 accused formed themselves into an unlawful assembly
and that armed with deadly weapons, they committed trespass by
entering into the house of the deceased Siddaraju and committed the
murder of the deceased in furtherance of a common object.
The motive for the murder according to the prosecution, was that
7.
when A1 was passing through the house of the deceased, he heard the
deceased hurling abuses in a foul and filthy language. Though the victim
was purportedly abusing his own father, A1 mistook as though he was
being abused. Therefore, he picked up a quarrel with the deceased and
thereafter went to the village, secured the other accused and went to the
house of Siddaraju, broke open the door, pulled him out to the street and
hacked him to death.
8. The case of the prosecution rested on the ocular testimony of PW1
and PW4 who were the mother and maternal uncle of the deceased.
Though the father and sister of the deceased were also examined as PW
2 and PW3, they were not treated as eyewitnesses on the ground that
they had not seen the incidence.
9. Four Panch witnesses examined as PWs 5, 6, 7 and 8 did not
support the case of the prosecution and were declared as hostile. PW9,
the mahazar witness also turned hostile. PW10 was the doctor who
conducted the postmortem on the body of the deceased.
10. At this stage, it is relevant to note that PW1, mother of the
deceased, gave a complaint at 00.45 hrs on 1.12.1997, on the basis of
which Exhibit P8 FIR was registered. Thereafter, one Nagamma, wife of
the deceased is said to have given another complaint which was marked
as Exhibit P9. On the basis of the said complaint, a second FIR was
registered for more offences, including offences under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. But for
reasons not known, this Nagamma was not examined as a witness,
though cited as a witness in the charge sheet.
11. On the basis of the oral and documentary evidence, the Sessions
Court recorded certain findings with regard to the appellants herein (A1
& A2) which are reproduced in the words of the Sessions Court itself, as
follows:
“1. PW1 speaks about the presence of only six persons and they
are A1, A2, A3, A11, A16 and A18. Whereas A14 speaks about the
presence of only 7 persons viz.., A1, 2, 8, 11, 16 and 12. In this
way PW1 speaks about the presence of 7 accused persons. The
accused stated by these two witnesses are not exactly the same.
Both the witnesses have spoken about only the presence of A1 ,A2,
A11 and A16 and they had not spoken about the presence of
others.
2. The presence stated by PW1 and PW4 put together, are A1 to
A3, A8, A11, A12, A16, A18 and A21. Hence, the presence of all
other accused persons is not even stated by any of the witnesses
and because of it there is no evidence against them.
3. The very fact that PW1 is silent about the presence of A8,
A12 and A21 whose presence is stated by PW4, goes to show that
they were not present. Similarly the silence of PW4 about the
presence of A3 and A18 whose presence is spoken by PW1 goes to
show that A3 and A18 could not have been present. Hence, it
clearly goes to show that there is false implication.
4. The very fact that the eye witnesses do not speak about the
presence of most of the accused persons goes to show that they
have been falsely implicated. Hence, from the beginning the
evidence of the prosecution is doubtful.
5. When we examined the evidence relating to what weapons
were used, it clearly goes to show that it is only an exaggeration
and none of the witnesses are speaking the truth and even their
presence becomes doubtful.
6. Accordingly to the complaint, accused1 assaulted deceased
by ‘bettukodali’ on his head. A12 Ashwatha assaulted the
deceased by club all over the body. All other accused persons
assaulted him with stones and bricks. Hence, according to the
complaint only one ‘bettukodali’ (axe), one club were used in
addition to some stones and bricks. But in evidence MO1 To MO6
clubs and MO7 to MO9 chopper and sickle and axe are marked.
Hence the number of weapons stated in the complaint is different
while compared to the weapons produced and marked in evidence.
7. PW1 goes to the extent of saying that the accused had
brought ‘machu’, sickle, axe, knife and clubs. In this way the
weapons stated by PW1 are different when compared to the
weapons stated in the complaint. PW1 is the complainant and
because of it, she could not have stated such weapons which were
not even stated in the complaint. This goes to show that the
evidence of PW1 is full of exaggeration and that is not acceptable.
8. In the complaint the overt act done by accused1 is that he
assaulted with bettukodali on the head of the deceased. But PW1
states that A1 assaulted with axe on the ear of the deceased and it
was cut off. PW4 has stated that accused1 assaulted by sickle.
Hence, about the overt act done by accused1, there is
contradiction.
9. When we see that overt act done by accused2 Thimma,
there is contradicting version. In the complaint it is only stated
that accused2 broke open the lock of that house where Siddaraju
was kept and then it is the accused1 who assaulted him on his
head by axe and caused his death. But in evidence PW1 states that
accused2 had brought MO9 axe and assaulted him. He gave
another version by stating that MO7 chopper was in the hand of
accused2 Thimma. PW4 states that accused2 assaulted with axe.
In this way about the overt act done by accused2, there are
different version and because of it their evidence is not acceptable.
10. PW1 states accused assaulted her also and she sustained
bleeding injury on her head and she was assaulted with club by
one Ashwatha and she took treatment of Government hospital
Channapatna. In my opinion, this is only an exaggeration because,
it is not stated in the complaint about assaulting her and there is
no medical evidence to show that she was treated at
Channapatana hospital.
11. The fact that the eye witnesses PW1 and PW4, does not
speak about the presence of many of the accused persons as
discussed above corroborates the inference that some of the
accused persons are falsely implicated. Hence, all is not well in the
prosecution case and it raises substantial doubt and the accused
will be entitled to benefit of doubt.”
On the basis of the above findings, the Sessions Court acquitted
12.
all the 22 accused except those against whom the charges abated.
Therefore, the State filed two appeals, one of which was against 17
accused and the other against 2 accused. The appeal in Criminal
Appeal No.1591 of 2001 was against the acquittal of A7 and A8 and
the other appeal, Criminal Appeal No.1590 of 2001 was against the
acquittal of A1 to A3, A5, A6, A9 to A16, A18, A19, A21 and A
22.
13. The High Court dismissed the State’s appeal Criminal Appeal
No.1591 of 2001, thereby confirming the acquittal of A7 and A8. In
the other appeal, namely, Criminal Appeal No.1590 of 2001, the High
Court confirmed the acquittal of all the other accused except A1 and
A2. In other words, this appeal was partly allowed and A1 and A2
were convicted only for the offences under Section 302 IPC.
14. As a matter of fact, the charges under Sections 143, 144, 148,
147 and 448 read with Section 149 were all gone even against A1
and A2 who are the appellants herein. A1 and A2 have been
convicted by the High Court only for the offence under Section 302
IPC.
15. To come to the aforesaid conclusions, the High Court pointed out
the inconsistencies in the evidence of PW1 and PW4, insofar as
(i)
the role played by all the accused other than A1 and A2; (ii) that the
trial Court committed an error in acquitting all the 22 persons merely
because PW1 did not name all of them; that the principle “
(iii) falsus
in uno falsus in ominbus ”, cannot be invoked in cases of this nature;
and that there was consistency in the evidence of PW1 and PW4
(iv)
with regard to the participation of A1 and A2 in the commission of the
offence.
16. The crucial portion of the findings of the High Court for holding
the appellants guilty of the offence under Section 302 IPC reads as
follows:
“We find consistency in the evidence of PW1 and PW4 with
regard to the participation of A1 and A2 in the commission of
the offence. Both have deposed and have stated A1 and A2
broke open the door of the house, A1 dragged Siddaraju from
the house, hacked him with a sickle on the face and
thereafter A2 with axe assaulted on the head of the
deceased. The same also finds a place in the complaint. As
such, this part of evidence of PW1 and PW4 is reliable and
Trial Court erroneously acquitted A1 and A2 when there was
sufficient material on record to hold them guilty.”
17. But the above findings of the High Court appear to be illogical. The
primary charge of the prosecution was that all the 22 accused, formed
themselves into an unlawful assembly with the common object of
committing the murder of the deceased and that all of them being
members of the unlawful assembly were armed with deadly weapons
like clubs, bettu kudli, kodli etc. and that they committed the offence
of rioting, trespass and murder. All these charges have now been held
not proved against all the accused including A1 and A2 and the only
offence held proved against A1 and A2 is the one under Section 302
IPC. We do not know how, in the facts and circumstances of the case,
the conviction of only 2 out of the 22 accused can be sustained and
that too only for the offence under Section 302 when the allegation of
unlawful assembly, common object, trespass, rioting etc. are held not
proved against all of them. The State has not come up with any appeal
against the acquittal of all the other accused.
Moreover, there was also no explanation as to why there were two
18.
First Information Reports. According to PW13, the SubInspector of
Police, he received the oral complaint of PW1 at 00.45 hrs. on
01.12.1997 and he claims to have recorded the complaint, registered
the same as Crime No.182/1997 and sent the same to the Court. This
FIR was marked as Exhibit P8.
According to the same witness PW13, the wife of the deceased by
19.
name Nagamma gave a written complaint at the hospital. It was
marked as Exhibit P9. PW13 claimed that thereafter he registered a
second FIR by including the offences under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. This FIR was
marked as Exhibit P7. PW13 further claimed that the further
investigation of the second FIR was entrusted to the CPI, as the same
related to serious offences.
20. The CPI was examined as PW14. In his crossexamination he did
not make a whisper as to what happened to the second FIR. All that
he stated was that he took the statement of Nagamma (wife of the
deceased who gave the second complaint) only at the time of inquest
proceedings from 7:00 a.m. to 10 a.m.
21. As stated earlier, Nagamma was cited as one of the witnesses in
the ChargeSheet, but she was not examined as a witness during trial.
The High Court has recorded that her whereabouts were not known
and that, therefore, she could not be examined. Such an explanation
is not found in the testimony of PW14
22. It is true that the principle “ falsus in uno falsus in omnibus ” may
not have unadulterated application to criminal jurisprudence. The
Courts have always preferred to do what Hamsa, the mythological
Swan, is believed to do, namely, to separate milk and water from a
1
mixture of the two . In
Arvind Kumar @ Nemichand & Ors. vs.
2
State of Rajasthan , M.M. Sundresh J. speaking for the bench
crystallized this principle as follows:
“ 49 . The principle that when a witness deposes falsehood,
the evidence in its entirety has to be eschewed may not have
strict application to the criminal jurisprudence in our
country. The principle governing sifting the chaff from the
grain has to be applied. However, when the evidence is
inseparable and such an attempt would either be impossible
or would make the evidence unacceptable, the natural
consequence would be one of avoidance. The said principle
has not assumed the status of law but continues only as a
rule of caution. One has to see the nature of discrepancy in
a given case. When the discrepancies are very material
shaking the very credibility of the witness leading to a
conclusion in the mind of the court that is neither possible
to separate it nor to rely upon, it is for the said court to
either accept or reject.”
23. Therefore, the High Court was right on first principles that the
evidence of PW1 and PW4 cannot be rejected by invoking the theory
of falsus in uno falsus in omnibus.
24. But when there are glaring contradictions between the testimony
of even these two witnesses on the type of material object used and
even on the role of A2, the very foundation of the case of the
prosecution stood shaken.
25. As a matter of fact, the Trial Court took note of the absence of
evidence relating to the injuries suffered by PW1. Nothing was stated
1 The idiom “sifting the chaff from the grain” has become very old and worn out and requires
replacement
2 2021 SCC Online SC 1099
by PW1 in the FIR, about the injuries on her body, but she spoke
about it in her evidence. Even the same was not corroborated by
medical evidence. This is why the Trial Court disbelieved the evidence
of PW1 and PW4.
26. To overturn such a verdict of acquittal, handed over by the
Sessions Court after disbelieving PW1 and PW4, the High Court
should have come up with more stronger and cogent reasons than
what has been recorded. The law on the scope of Section 378 of the
Cr.P.C., is too well settled. Very recently this Court traced the law in
3
Ravi Sharma vs. State (Government of NCT of Delhi) & Another .
The impugned judgment of the High Court is not in accordance with
the law on the point.
27. In such circumstances, we are of the considered view that the
conviction of the appellants herein by the High Court cannot be
sustained. Therefore, the appeal is allowed and the impugned
judgment of the High Court insofar as it relates to the conviction of
appellants is set aside. The appellants shall be released forthwith,
unless they are suffering incarceration in connection with any other
case. No costs.
....…………....................J.
(Indira Banerjee)
…..………......................J.
3 2022 SCC Online SC 859
(V. Ramasubramanian)
AUGUST 10, 2022
NEW DELHI
ITEM NO.1501 COURT NO.6 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No. 1697/2011
RAMABORA@RAMABORAIAH & ANR. Appellant(s)
VERSUS
STATE OF KARNATAKA Respondent(s)
IA No. 19590/2019 - EXEMPTION FROM FILING O.T. IA No. 30236/2022 -
GRANT OF BAIL IA No. 51251/2022 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES IA No. 19588/2019 - PERMISSION TO FILE
ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)
Date : 10-08-2022 These matters were called on for pronouncement of
judgment today.
For Appellant(s) Mr. Krishna Pal Singh, AOR
Mr. Seemab Qayyum, Adv.
Ms. Aprajita Anvita, Adv.
Mr. Madhvendra Singh, Adv.
Mr. Mohan Singh Bais, Adv.
Mr. Ashwin V. Kotemath, Adv.
Mr. Harisha S.R., AOR
For Respondent(s) Mr. V. N. Raghupathy, AOR
Hon’ble Mr. Justice V. Ramasubramanian pronounced the judgment
of the Bench comprising Hon’ble Ms. Justice Indira Banerjee and His
Lordship.
The appeal is allowed in terms of the signed reportable
judgment and the impugned judgment of the High Court insofar as it
relates to the conviction of appellants is set aside. The
appellants shall be released forthwith, unless they are suffering
incarceration in connection with any other case. No costs.
Pending applications, if any, shall stand disposed of.
(MANISH ISSRANI) (MATHEW ABRAHAM)
COURT MASTER (SH) COURT MASTER (NSH)
(SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE)