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Saturday, July 4, 2015

whether the PW1. Siddaramaiah was eye witness to the occurrence, in our opinion, is definitely a possible view. The presence of PW2 Savitha as well as PW13 Parwathamma is also doubtful for the reasons mentioned by the High Court. The testimony of PW15 reveals that a telephone call was received in the police station from PW7 Jagadamba about the incident of assault. Having reached the village by 7.15 a.m., it was logically expected of him to start making inquires about the crime and the identity of alleged assailants. Additionally, if out of two constables present in the village, one of them was injured, this by itself was one good source of information. According to the witness, he had spoken to those two constables and yet no steps were taken to register the crime. The witness further accepted that he had seen Shivarudraiah writhing in pain. In the circumstances, it would also be expected of him either to ask him or accompany him to the hospital, he being primary source of information. The conduct in the matter exhibited by PW15 is completely unexplainable. Similarly, it also does not stand to reason why PW1 Siddaramaiah did not approach the police when they were present in the village soon after the transaction and chose to make a written complaint scribed by PW11 and thereafter lodge it in the police station 10 kms. away. He himself later accepted that in the complaint, he had added two names by mistake. Secondly, the attribution to one of the accused having given blow by a sickle was also not mentioned in the complaint. The injuries found in the post mortem also do not support such assertion about injury by a sickle. In the circumstances, the assessment made by the High Court expressing serious doubts whether the PW1. Siddaramaiah was eye witness to the occurrence, in our opinion, is definitely a possible view. The presence of PW2 Savitha as well as PW13 Parwathamma is also doubtful for the reasons mentioned by the High Court. 11. Having analyzed the facts on record, the reasons stated by the High Court while acquitting the respondent are quite possible from the evidence on record. While considering this appeal against acquittal, the view expressed by the High Court being a possible view, we do not see any reason to interfere in the matter. We, thus, affirm the judgment and order of acquittal passed by the High Court and dismiss the present appeal.

                                                  Non-Reportable




                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1611 of 2009




      State of Karnataka                                       …. Appellant


                                   Versus


      Sateesh & Others                                         ....
      Respondents




                               J U D G M E N T


      Uday Umesh Lalit, J.




   1. This appeal by special leave is  directed  against  the  judgment  and
      order dated 22.01.2009 passed  by  the  High  Court  of  Karnataka  at
      Bangalore allowing Criminal Appeal  No.  1696/2005  preferred  by  the
      respondents herein and setting aside their conviction as  recorded  by
      the trial court and acquitting them of all the charges leveled against
      them.


   2. On 06.09.2000, PW15 M.N. Somashekharaih, then working as ASI  in  Kota
      Police Station, reached the  Police  Station  at  6.55  a.m.  and  was
      informed  by  Head  Constable-37  that  PW7   Jagadamba,  daughter  of
      Shivarudraiah of  Mavukere  village had  informed  on  telephone  that
      persons of Nayaka community  had smashed her father  with  stones  and
      were  attacking  the  police  personnel.   PW15  instructed  that   an
      ambulance be sent to Mavukere village and left along with some  police
      personnel for Mavukere.  According to PW15 when he reached the spot at
       about 7.15 a.m. he saw Shivarudraiah having received serious injuries
      on his head, hand and legs and was writhing in pain and shouting  “Ayo
      Ayo”.  He made arrangements to send  said  Shivarudraiah  for  medical
      attention to hospital  at  Tumkur.   According  to  him,  out  of  two
      constables, namely Jayaram and Rajanna, one had received injuries  and
      PW15 made inquiries with them.   His  superior  reached  the  spot  at
      about 9.30 a.m. and therefore said PW15 left for the Police Station.


   3. At about 10.00 a.m., PW1 Siddaramaiah came to the Police Station  with
      a written complaint which was registered as First Information  Report,
      on the basis of which Crime No.135 of 2000 came  to  be  lodged.   The
      relevant assertions in the written complaint were as under:
           “About one month ago, there was a quarrel in  our  village  with
           regard to 5 acres land in  Sy.  No.135/1  and  129  between  the
           members  of  Naik  community,  Uppara  community  and   Lingayat
           community.  In respect of the  same,  on  5.8.2000  Shekhar  and
           others belonging to Naik  community  quarreled  with  us.   With
           regard to this enmity has arisen between us and members of  Naik
           community and petty quarrels were  taking  place  from  time  to
           time.    In  these  circumstances  on  06.09.2000   morning   at
           6.00a.m.,  I was standing on his cycle towards his land and came
           on the road opposite the house of Shivaramaiah, s/o  Nanjundaiah
           and at that time residents of our village viz. (1) Sateesh,  s/o
           Siddagangaiah (2) Siddaiah, s/o Sunnarangaiah   (3)  Lakshmaiah,
           s/o  Sunnarangaiah  (4)  Suresh,  s/o  Late  Chikkarangaiah  (5)
           Shekaraiah, s/o  Late  Chikkarangaiah  (6)  Nanjaiah,  s/o  Late
           Chikkarangaiah (7)  Shanakariah,  s/o  Late  Chikkarangaiah  (8)
           Kaluvaiah, s/o Late Chikkarangaiah  (9)  Shankaraiah,  s/o  Late
           Chikkarangaiah (10) Nanjundaih,  s/o  Late  Chikkarangaiah  (11)
           Manjukumar, s/o Kaluvaiah, (12) HMT Shivanna,  s/o   Nanjundaiah
           (13) Ramesh, s/o Nanjundaiah (14) Jagadish,  s/o   Shivananjaiah
           (15)  Manjunath,  s/o  Shivananjaiah   (16)   Jayaramaiah,   s/o
           Ramakrishnaiah   (17)   Shrirangaiah,    s/o     Puttiah    (18)
           Rangandhamaiah,   s/o   Lakshmirangaiah   (19)   Nanjaiah,   s/o
           Nanjundaiah (20) Ishwariah, s/o  Nanjundaiah,   all  had  formed
           unlawful assembly and were  armed  with  clubs  in  their  hands
           passed me on the road and  unlawfully  obstructed  Shivarudraiah
           who was coming on the  cycle.   They  stopped  him  and  Shekhar
           pushed the cycle down and as soon as Shivarudraiah fell  on  the
           ground, Suresh, s/o Late Chikkaraingaiah said that, “one of  the
           two has to happen today, we will finish this fellow”.   As  soon
           as he uttered this, all of them made Shivarudraiah  sit  on  the
           ground, held his hands and  legs  and  made  him  sleep  on  the
           ground.  They placed his legs on a flat stone  and  smashed  his
           legs with size  stones  (boundary  marker  stones)  (Talakuttu).
           Shivarudraiah started screaming.   They did not  leave  him  and
           some of them relentlessly started beating Shivarudraiah with the
           clubs held by them  in  their  hands.   Hearing  the  screaming,
           Shivarudraiah’s wife came  running  and  embraced  her  husband.
           They  pulled  parvatamma  and  pushed  her  aside.   Later  they
           repeatedly kicked him with their legs.  At that time, I screamed
           saying that,  “they are going to kill Shivarudraiah”.   They saw
           people coming from the village side and  threw  away  the  clubs
           which they were holding in their  hands  there  itself  and  ran
           away.  Myself, Parvatamma and  Jagadamma  lifted  Shivarudraiah.
           His left leg was smashed and  was  bleeding.   There  were  open
           wounds on the right side of the head, right hand, forearm,  left
           knee, right feet and left leg and blood was  oozing  out.   This
           incident was witnessed by Chandrashekaraiah,  s/o  Gurulingaiah,
           Nanjegowda,  s/o  Shivanna,   Narasimhaiah,  s/o  Chikkappa   by
           standing in their respective lands.  All of them were afraid  of
           the members of the Naik community and did not  come  forward  to
           help.”




      4.    Shivarudraiah was  admitted  to  Tumkur  district  hospital  for
      treatment and while undergoing treatment,  he died at 10.25  a.m.   on
      06.09.2000.  Post Mortem was conducted by PW19 Dr. K.G. Shivamurthy on
      the dead body of Shivarudraiah at  District  hospital,  Tumkur.   Post
      Mortem revealed following injuries:-
           “1. Lacerated wound of 3”x1” present over the frontal region.


        2. An aberration of 1/½”x1” present over the anterior middle of the
           nose.


        3. Lacerated wound of 1/½”x1” present over the back  of  the  right
           elbow.


        4. Lacerated wound of 3”x1” present in between right  index  finger
           and thumb extending to the palmer aspect with bone deep.


        5. Contusion of 4”x3” present over the left wrist  and  dislocation
           of the proximal phalanx of the index and middle finger.


        6. There is fracture of the  right  upper  1/3  of  the  tibia  and
           fibula.


        7. Contusion of 2½” x1” present over the  anterior  aspect  of  the
           right knee.


        8. Lacerated wound of 4”x5” present over  the  deep  of  the  right
           foot.  In between 4th and 5th tow and there  is  dislocation  of
           the 4th and 5th metatarsal joints.


        9. There is fracture of the lower 1/3 of the left labia and fibula.




       10.  Lacerated wound 6”x2” present over the  middle  border  of  the
           left foot and bone deep.


       11.  Lacerated wound of 3”x2” present over the dorsum  of  the  left
           foot.


       12.  Lacerated wound of 2½”x2” present in between the left  3rd  and
           4th toe.


       13.  Contusion of 1”x3” present over the right zygote of the  acetyl
           region.


       14.  Lacerated wound of 2”x1” and skull bone deep present  over  the
           occipital region.”

                    The cause of death was said to be  hemorrhage resulting
           from aforesaid injuries.


      5.    During investigation  statement  of  PW2  Savitha,  daughter  of
      Shivarudraiah  was  recorded  on  07.09.2000,  while  that   of   PW13
      Parwathamma wife of Shivarudraiah was  recorded  two  days  after  the
      incident.    After due investigation 19 persons were  sent  for  trial
      vide S.C. No. 71/2000 before the Fast Track Court No.III at Tumkur.


      6.    The prosecution principally  relied  on  the  testimony  of  PW1
      Siddaramaiah, PW2 Savitha and PW13 Parwathamma who were stated  to  be
      eye-witnesses to the incident while other daughter  of  Shivarudraiah,
      namely, PW7 Jagadamba, PW3 Nanjegouda and PW4  M.G.  Chandrashekaraiah
      were the witnesses who had arrived at the  scene  of  occurrence  soon
      after  the  incident.  PW1  Siddaramaiah    accepted  that  names   of
      Manjukumar and Shrirangaiah, s/o Puttiah were wrongly mentioned in the
      FIR.    Though it was not so asserted in the  FIR,  PW1  in  his  oral
      testimony stated that accused Manjunath  had  assaulted  Shivarudraiah
      with a sickle.   PW2 Savitha stated  that  she  was  accompanying  her
      father Shivarudraiah on the relevant day  when  they  were  proceeding
      from their house to go to their  farm  land.   According  to  her  she
      started screaming soon  after  the  assault  began.   PW13  Parvatamma
      deposed  that  shouts  and  screams  of  her  daughter  attracted  her
      attention and she came running from the house  and  saw  the  assault.
      According to the witness she had tried to intervene and  as  a  result
      had received simple injuries and  had  tried  to  cover  her  bleeding
      husband.


      7.    The trial court while accepting the case of the prosecution came
      to the conclusion that the case  against  the  respondents  was  fully
      proved.  However, giving benefit of doubt to original  accused  Nos.12
      and 13, it acquitted them of all the offences  alleged  against  them.
      It convicted and sentenced original accused Nos.1  to  11,  14  to  19
      under Sections 148, 341, 302 read with  149  IPC  sentencing  them  to
      undergo sentences including the imprisonment for life. Accused Nos.  4
      to 6 were also additionally convicted and sentenced under Sections 114
      read with 302 IPC while original accused No.16 was  further  convicted
      and sentenced for the offences under Section 324  IPC  read  with  506
      IPC.   Thus, out of 19  persons  who  were  tried,  17  accused  stood
      convicted by the  Trial  Court  vide  its  judgment  and  order  dated
      21.07.2005.


      8.    The convicted accused i.e. the respondents  herein  carried  the
      matter further by filing Criminal Appeal No.1656 of 2005 in  the  High
      Court.  The High Court found the conduct of PW15 unexplainable in that
      he had chosen not to record the statements of  two  police  constables
      who were present at the site and one of them was injured and also  had
      chosen not to ask questions to injured Shivarudraiah.  The High  Court
      further found it completely unexplainable that PW15 had not  made  any
      inquiry in the village itself.  The ultimate registration of crime  on
      the basis of a written FIR which was scribed by PW11  and  brought  to
      the Police Station by PW1 was not found to be  bona  fide.   The  High
      Court observed that there was unexplained  delay  in  registering  the
      crime and it was extremely doubtful whether PW1 was an eye witness  to
      the occurrence.   It further observed that in the  original  FIR,  the
      name of  PW2  Savitha  was  not  mentioned  at  all,  creating  doubts
      regarding her presence.  Furthermore, if PW13 had tried to  cover  her
      bleeding husband, her blood stained sari should have been produced  on
      record.   Her statement was also recorded two days after the incident,
      again creating a situation of doubt.  With  these  reasons,  the  High
      Court observed that the possibility of innocents being  implicated  in
      the matter could not be ruled out.  Giving benefit  of  doubt  to  the
      convicted accused the High Court thus acquitted all  of  them  of  the
      offences  alleged  against  them.   The  State  being  aggrieved   has
      approached this Court by filing this appeal by special leave.


      9.     Appearing in support of the appeal,  Mr. Parikshit  P.  Angadi,
      learned Advocate submitted that  three eye witnesses, namely,  PWs  1,
      2 and 13 were  completely  consistent in their  assertions  about  the
      involvement of  the respondents herein and that the  FIR  having  been
      lodged  at 10.30a.m. there was absolutely no delay in registration  of
      crime and that the reasons which weighed  with  the  High  Court  were
      completely incorrect.   Appearing  for  the  respondents,  Mr.  Rajesh
      Mahale, learned Advocate submitted that if PW15  was  present  in  the
      village immediately after the incident, it does not  stand  to  reason
      why he did not make any  inquiry  and  register  the  crime.   If  two
      constables were present in the village, one  of  them  being  injured,
      that source was a better one to gather information  and  register  the
      crime.   Furthermore, the place  of  occurrence  being  surrounded  by
      various houses in the village, none of the inmates of those houses was
      examined as witness.  In his submission, the reasons given by the High
      Court while acquitting the respondents were absolutely correct and  in
      any case was a possible view in the matter.


      10.   We have gone though the  record  carefully  and  considered  the
      submissions.  The testimony of PW15 reveals that a telephone call  was
      received in the police station from PW7 Jagadamba about  the  incident
      of assault.  Having reached the village by 7.15 a.m., it was logically
      expected of him to start making  inquires  about  the  crime  and  the
      identity  of  alleged  assailants.   Additionally,  if  out   of   two
      constables present in the village, one of them was  injured,  this  by
      itself was  one  good  source  of  information.     According  to  the
      witness, he had spoken to those two constables and yet no  steps  were
      taken to register the crime.  The witness further accepted that he had
      seen Shivarudraiah writhing in pain.  In the circumstances,  it  would
      also be expected of him either to ask him  or  accompany  him  to  the
      hospital, he being primary source of information.  The conduct in  the
      matter exhibited by PW15 is completely unexplainable.   Similarly,  it
      also does not stand to reason why PW1 Siddaramaiah  did  not  approach
      the police when they were  present  in  the  village  soon  after  the
      transaction and chose to make a written complaint scribed by PW11  and
      thereafter lodge it in the police station 10 kms.  away.   He  himself
      later accepted that in the  complaint,  he  had  added  two  names  by
      mistake.  Secondly, the attribution to one of the accused having given
      blow by a sickle was  also  not  mentioned  in  the  complaint.    The
      injuries found in the post mortem also do not support  such  assertion
      about injury by a sickle.   In the circumstances, the assessment  made
      by  the  High  Court  expressing  serious  doubts  whether  the   PW1.
      Siddaramaiah was eye witness to the occurrence,  in  our  opinion,  is
      definitely a possible view.   The presence of PW2 Savitha as  well  as
      PW13 Parwathamma is also doubtful for the  reasons  mentioned  by  the
      High Court.

      11.   Having analyzed the facts on record, the reasons stated  by  the
      High Court while acquitting the respondent are quite possible from the
      evidence on record.   While considering this appeal against acquittal,
      the view expressed by the High Court being a possible view, we do  not
      see any reason to interfere  in  the  matter.  We,  thus,  affirm  the
      judgment and order of acquittal passed by the High Court  and  dismiss
      the present appeal.



                                                            ....……………………..J.
                                              (Pinaki Chandra Ghose)





                                   ………………………..J.
                                              (Uday Umesh Lalit)
      New Delhi,
      July 01, 2015

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