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Tuesday, October 20, 2015

the delay in lodging the FIR. Not only the FIR was delayed but there was delay in sending the seized articles to FSL and in writing the post-mortem report also. Merely because they are interested witnesses their evidence cannot be discredited. However, in our view, it appears that the evidences of each of these eye-witnesses are doubtful and require careful scrutiny.;It is a settled law that motive is not a necessary element in deciding culpability but it is an equally important missing link which can be used to corroborate the evidences.=The learned senior counsel appearing for the respondents accused cited the judgment of State of Rajasthan v. Raja Ram,[4] recently quoted in Upendra Pradhan v. State of Orissa,[5] wherein this Court held: “Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference...” 14. Thus, in the light of the above discussion, we find no compelling and substantial reasons to interfere with the judgment passed by the High Court. The appeals are, accordingly, dismissed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                   CRIMINAL APPEAL NOS.774 - 776  OF  2010
      K.A. KOTRAPPA REDDY AND ANR.                    APPELLANTS
                                   VERSUS
      RAYARA MANJUNATHA REDDY
      @ N.R. MANJUNATHA & ORS.                     RESPONDENTS










                               J U D G M E N T
      Pinaki Chandra Ghose, J.
   1. These appeals are directed against the judgment and order  dated  19th
      November, 2008 passed by the High Court of Karnataka at  Bengalore  in
      Criminal Appeal Nos.790, 829 and 1408 of 2007. Criminal Appeal Nos.790
      of 2007 and 829 of 2007 were filed by  accused  Nos.1  to  10  against
      their conviction  and  the  same  were  allowed  by  the  High  Court.
      Criminal Appeal No.1408 of 2007 was filed by the  State  of  Karnataka
      against the acquittal of accused Nos.11 and 12, which was dismissed by
      the High Court.


   2. The brief facts necessary to dispose of  these  appeals  are  that  on
      13.09.2005 at about 10:30 A.M., one Ajjanna Reddy (deceased), who  was
      the President  of  Nandigavi  Village  Panchayat  in  Harihara  Taluk,
      District Davangere, Karnataka, was monitoring execution  of  the  road
      repair work in front of Ishwar  Temple  situated  near  the  house  of
      accused Nos.1 to 4.  Accused No.6 objected to the  same  as  the  said
      repair would reduce the area of the  front  yard  of  his  house.  The
      accused persons picked up quarrel with Ajjanna Reddy and asked him  to
      stop the work which he refused to  do  so.  It  is  alleged  that  the
      accused persons, who were 12 in number, formed  an  unlawful  assembly
      carrying dangerous weapons, abused and  beat  the  deceased  at  about
      12:30 P.M. and soon, about 50 odd people  gathered  at  the  place  of
      occurrence and there was a chaos. PW1, PW2 and PW5 came to rescue  the
      deceased but they were also thrashed. Further, the  accused  left  the
      scene, the deceased was taken  to  Davangere  Hospital  where  he  was
      declared brought dead at 2:30 PM. PW1 went to lodge the FIR  at  about
      6:30 P.M. at Malebennur Police Station against 11 accused persons  and
      one Siddappa (not accused herein).


   3. After investigation, charge-sheet was filed against 12 accused persons
      (name  of  12th  accused  Siddappa  was  substituted   with   Nadigara
      Tipeswamy). After considering the material on record and  hearing  the
      counsel for the accused, they were  charged  for  offences  punishable
      under Sections 143, 147, 148, 504, 114, 323, 324 and 302 of the Indian
      Penal Code, 1860 (hereinafter referred to as “IPC”). The charges  were
      read over and explained to them. All the accused persons  pleaded  not
      guilty and claimed for trial.


   4. The Trial Court by its judgment and order convicted the accused Nos. 1
      to 9 for the offences punishable under Section 143, 148 and  302  read
      with 149 IPC. Accused No. 10 was found to be  guilty  of  the  offence
      punishable under Section 114 read with 302 IPC. Accused Nos.2, 4 and 9
      were also convicted for the offence punishable under Section 324  IPC.
      The convictions were based on the  evidences  of  the  eye  witnesses,
      which included two injured witnesses, and the recovery of weapons used
      further corroborated by the extra-judicial  confession  made  to  PW14
      (B.M. Halaswamy) and the motive being established. However, the  Trial
      Court gave benefit of doubt to accused Nos.11  and  12  and  acquitted
      them of all the charges. Accused Nos.1 to 9 challenged their order  of
      conviction by filing Criminal Appeal No.829  of  2007,  accused  No.10
      separately challenged his conviction order by filing  Criminal  Appeal
      No.790 of 2007 before the High Court and the State also filed Criminal
      Appeal No.1408 of 2007 against the acquittal of accused Nos.11 and 12.
      The High Court by the impugned judgment and order  allowed  the  first
      two appeals and dismissed the third appeal filed by the State, on  the
      ground that the prosecution failed to bring  home  the  guilt  of  the
      accused beyond reasonable doubt and as such, they  were  entitled  for
      benefit of doubt. The acquittal was based on  ground  that  there  was
      delay in filing the FIR and the eye witnesses who were relied upon  by
      the Trial Court were interested and partisan witnesses. The motive was
      also not clearly established since there was no proof  of  any  repair
      work in front of the house of the accused and it was proved on  record
      that the accused never contested any election against the deceased.


   5. The Informant PW1 has filed the present appeals before this Court. Mr.
      Sushil Kumar Jain, learned senior counsel appearing  for the appellant
      has made various submissions on the basis of the Trial Court judgment.
      It was argued that there was no undue delay, as the informant  had  to
      travel to various hospitals for about 61 Kms. Regarding the  testimony
      of the eye witnesses, the learned senior  counsel  for  the  appellant
      contended that except PW1 (Kotrappa Reddy),  no  other  witnesses  are
      related to the complainant or the deceased. It was also contended that
      PW1 was independent witness as he was also a relative of  the  accused
      party. The testimony of PW1 and PW5 was more trustworthy as they  were
      injured witnesses and PW10 and PW11 were  chance  witnesses  who  were
      working in an  Anganwadi  within  close  proximity  to  the  place  of
      incidence. Learned senior counsel also submitted  that  there  was  no
      dispute regarding the fact that the deceased died a homicidal death on
      account of serious injuries inflicted upon him which  caused  profound
      bleeding. With regard  to  accused  No.12,  it  was  argued  that  PW5
      specifically stated his role in the alleged assault in  the  statement
      recorded by the police immediately after the FIR was  lodged.  Against
      the acquittal of accused No.11, it was argued that the certificate was
      not in the  name  of  accused  No.11  and  even  otherwise,  merely  a
      certificate would not prove the attendance  of  the  accused  at  some
      other place.


   6. Mr. B.  H.  Marlapalle,  learned  senior  counsel  appearing  for  the
      respondents  accused  has  made  various  submissions  countering  the
      arguments put forward by the appellant. The FIR was  contended  to  be
      delayed by more than 6 hours and owing to the relationship between the
      parties, the said time was used to built up a story wherein as many as
       9 members of accused family were named. The  learned  senior  counsel
      pointed out various lapses in the prosecution story and contended that
      the prosecution failed to materially explain few facts. For  instance,
      there was no forensic report brought before the Trial  Court  of  PW15
      (Geeta-wife of the deceased) or any other person who  accompanied  the
      deceased;  bloodstains from the jeep car were also not seized;  blood-
      stained clothes of PW1 or PW2 were  also  not  seized.   Another  fact
      which was not explained by the prosecution was as to why no action  or
      investigation was initiaited when the police  officers  came  to  know
      about the death of a person in the City  Central  Hospital  itself  at
      about 2:30 P.M. There is also no explanation as to  why  the  deceased
      was not taken to the Chigatiri General Hospital which is a  Government
      hospital with 1000 beds. The deceased was instead taken to  a  private
      City Central Hospital. Another fact which still remains unanswered was
      as to why the nearest police station was not informed and  as  to  why
      the FIR was lodged in Malebennur Police Station. Though  there  was  a
      regional branch of Forensic Science Laboratory at Davangere,  yet  the
      seized articles were sent to Forensic Science  Laboratory,  Bengaluru,
      after a delay of about one month. The learned senior counsel  for  the
      respondent further argued that there were numerous corrections made in
      the autopsy report, as was admitted by PW21 (Doctor Tulsi Nayak),  and
      he did not give any explanation as to the cause of  delay  in  drawing
      the autopsy report.


   7. In our considered opinion,  there  are  three  main  issues  on  which
      contentions have been advanced before this  Court  and  we  shall  now
      examine each contention in the light of the arguments made before  us.
      The first is regarding motive. It is a settled law that motive is  not
      a necessary element in deciding  culpability  but  it  is  an  equally
      important missing link which can be used to corroborate the evidences.
      In the present case, the motive of the accused was stated to  be  two-
      fold. One being the already existing  political  rivalry  between  the
      parties and the immediate cause being the heated objections raised  by
      the accused against the deceased for carrying out  repair  work  which
      would have reduced the area of the house of the accused. Upon  perusal
      of the records,  PW1  himself  admitted  that  the  accused  have  not
      contested any election against the deceased. As against the  immediate
      cause, PW18 (labourer) stated that the repair was going on at the back
      of  the  temple  and  not  in  front  of  the  accused’s  house.   The
      investigating officer did not seize any material nor  did  he  produce
      any evidence or Panchayat record or contract to prove  that  any  such
      repair work was going on in front of the house of the  accused.  Thus,
      the prosecution squarely failed to impute motive upon the accused.


   8. The  second  issue,  which  is  of  paramount  consideration,  is  the
      testimony of the eye-witnesses. PW1, PW2, PW5, PW10 and PW11  are  the
      five eye-witnesses, out of which PW1 and PW5  are  injured  witnesses.
      All the five witnesses are either related or the party members of  the
      deceased, hence they are  partisan  or  interested  witnesses.  Merely
      because  they  are  interested  witnesses  their  evidence  cannot  be
      discredited. However, in our view, it appears that  the  evidences  of
      each of these eye-witnesses are doubtful and require careful scrutiny.
      It is also pertinent to note that the incident  in  the  present  case
      occurred in broad day light in the afternoon and there were  a  number
      of neighbours in and  around  the  scene  of  the  incident.  But  the
      prosecution has failed to examine any independent witness which  casts
      a doubt on its genuineness. The High Court has scrutinized  at  length
      the statements of individual eye-witnesses and has rightly discredited
      their testimonies. PW1 and PW2 are closely related with  the  deceased
      and are thus interested parties. It has been  proved  that  there  has
      been a series of litigation, both civil and criminal,  on  each  side.
      The above added to the fact that neither blood-stained clothes of PW1,
      PW2 or PW5 were seized  nor  their  conduct  seemed  natural,  further
      weakens the prosecution case. The injuries on PW1 and  PW5  are  minor
      and upon medical examination, were opined to be self-inflicted.  Thus,
      the High Court rightly pointed out that they could not have been  eye-
      witness to the incident. PW10 and PW11 are the working  ladies  in  an
      Anganwadi within close proximity of the place of incident. However, as
      per their narration of the story,  their  presence  at  the  place  of
      incidence is itself doubtful. They deposed that  the  timings  of  the
      Anganwadi was 9:30 A.M. to 1:30 P.M., and the fact that they left  the
      school early on that  day  is  unnatural,  since  the  school  was  an
      Anganwadi which is usually attended by infants. The witnesses  further
      deposed that they  went  to  collect  their  honorarium.  However,  no
      explanation was given as to  why  they  left  early  just  to  collect
      honorarium, or how could they both have left the infants  without  any
      guidance. Also, no proof of any honorarium being  paid  to  these  two
      witnesses on the date of incidence was ever adduced  in  the  evidence
      before any Court. Thus, their  presence  at  the  time  and  place  of
      incident is not sufficiently proved.  Another  witness  PW18  was  the
      labourer, who deposed that repair work was going on at the back of the
      temple and not in front of the house of the accused, as  contended  by
      the prosecution. The said witness is the only non-partisan and  chance
      witness. However, he turned hostile and deposed that he  did  not  see
      any quarrel between the accused party and the deceased, in and  around
      the place of incident. The learned counsel for the appellant relied on
      the judgment of this Court in Brahm Swaroop & Anr. v. State  of  Uttar
      Pradesh,[1] wherein this Court held:
           “26. Merely because the witnesses were closely  related  to  the
           deceased persons, their testimonies cannot be  discarded.  Their
           relationship to one of the parties is not a factor that  affects
           the credibility of a witness; more  so,  a  relation  would  not
           conceal the actual  culprit  and  make  allegations  against  an
           innocent person. A party has to lay down  a  factual  foundation
           and prove by leading impeccable evidence in respect of its false
           implication. However, in such cases, the court has  to  adopt  a
           careful approach and analyse the evidence to find out whether it
           is cogent and credible evidence...  ...


           28. Where a witness to the occurrence has himself  been  injured
           in the incident, the testimony of such a  witness  is  generally
           considered to be very reliable, as he is a  witness  that  comes
           with a built-in guarantee of his presence at the  scene  of  the
           crime and is unlikely to spare his actual assailant(s) in  order
           to falsely implicate someone. Convincing evidence is required to
           discredit an injured witness".


   9. However, in the present case it is proved that there has been a series
      of litigation, both criminal and civil, on both sides.  Moreover,  the
      presence of the injured witnesses is disputed as neither the  injuries
      sustained by both of them are proved, nor their  clothes  were  seized
      which are alleged to have contained the blood stains of the  deceased.
      Thus, the ratio of the above case fails to support  the  case  of  the
      present appellant.


  10. The third issue is the delay in lodging the FIR. Not only the FIR  was
      delayed but there was delay in sending the seized articles to FSL  and
      in writing the post-mortem report also. Initially  a  verbal  exchange
      took place at 10:30 A.M., which led to a major attack at  about  12:30
      P.M.  Consequently the deceased was severely injured. The deceased was
      first taken to  Harihar  where  the  doctor,  without  any  paperwork,
      referred him to some big hospital. The deceased was  then  brought  at
      City Central Hospital in Davangere  where  he  was  declared  as  dead
      before arrival at about 2:30 P.M.  The dead body was  then  taken  for
      post-mortem at Chigatiri General Hospital in Davangere.  The  FIR  was
      lodged at Malebennur at 6:30 P.M. Despite police stations at Davangere
      and Harihar, which were closer, the informant went to lodge the FIR at
      Malebennur Police Station, which was around 16 Kms. from the place  of
      incident. The only explanation the informant gave was that  they  were
      under shock due to the brutal attack, which is not explanatory in view
      of the distance and time taken. Also, looking at the  previous  enmity
      and earlier litigations between the parties, the time  taken  is  good
      enough to cast a doubt upon the entire event.  Further,  it  has  been
      revealed from the depositions that a crowd had gathered  in  front  of
      the Chigatiri General Hospital on receiving the news that the Chairman
      of the Village Panchayat was dead. To  cater  to  the  law  and  order
      situation, many police personnel headed by the  Deputy  Superintendent
      of Police were present at the hospital.  However,  non-action  on  the
      news of a homicidal death on behalf of the police officer casts  doubt
      on the role of the informant in connivance with the police officer.




  11. One more aspect for  our  consideration   is  the  non-explanation  of
      material irregularities by the prosecution. Firstly,  the  prosecution
      have no explanation  to  the  fact  that  when  at  Chigatiri  General
      Hospital, many police officers were  deputed  as  the  information  of
      death of Chairman of the Panchayat had spread, why none of the  police
      officers approached any witness or the relative to enquire  about  the
      incident. The informant took the  deceased  to  private  City  Central
      Hospital even though a Government Chigatiri General Hospital with 1000
      beds was situated in the vicinity. Further, the  prosecution  did  not
      explain the delay in making the FIR and as to why  it  was  lodged  in
      Malebennur Police Station instead of Harihar or Davangere. The  search
      and  seizure  was  doubtful,  as  the  blood-stained  clothes  of  the
      witnesses were not seized. The deceased was allegedly resting  in  the
      lap of his wife Geeta, however, her blood-stained  clothes  were  also
      not seized. No efforts were made  even  to  trace  the  shirt  of  the
      deceased. It was only after four days on 17.09.2005, that  the  blood-
      stained shirt was seized from the Chigatiri General Hospital from  PW7
      by the Investigating Officer. The police officer also did  not  follow
      the appropriate procedure under  investigation.  There  is  no  arrest
      Panchanama drawn by PW23  and  duly  signed  by  any  witnesses  while
      affecting the alleged arrest. In addition, there is nothing on record,
      placed by the prosecution, to suggest that the mandatory provisions of
      the Code of Criminal Procedure, 1973 as well as the guidelines laid by
      this Court in D.K. Basu v. State of  W.B.  [2],  while  effecting  the
      arrests were followed.  The  Investigating  Officer  sent  the  seized
      articles after one month of the alleged recovery,  and  that  too  the
      articles were sent to FSL, Bengaluru, when in fact a  regional  branch
      of FSL exists in Davangere. The prosecution also failed to explain  as
      to why the post-mortem report was written on 17.09.2005 when the  body
      was sent on 13.09.2005 and the examination was carried on  14.09.2005.
      Learned counsel for the appellant, on this point cited the judgment of
      this Court in Mritunjoy Biswas v. Pranab @ Kuti  Biswas  &  Anr.  [3],
      wherein it was held:
           “28. ...It is well settled in law that the discrepancies are not
           to be given undue emphasis and the evidence is to be  considered
           from the point of view of trustworthiness. The test  is  whether
           the same inspires confidence in the mind of the  court.  If  the
           evidence is incredible and cannot be accepted  by  the  test  of
           prudence, then it may create a dent in the prosecution  version.
           If an omission or discrepancy goes to the root of the matter and
           ushers in incongruities, the defence can take advantage of  such
           inconsistencies. It needs no  special  emphasis  to  state  that
           every omission cannot take place of  a  material  omission  and,
           therefore,    minor    contradictions,    inconsistencies     or
           insignificant embellishments do  not  affect  the  core  of  the
           prosecution case and should not be  taken  to  be  a  ground  to
           reject the prosecution evidence. The omission  should  create  a
           serious doubt about the truthfulness or  creditworthiness  of  a
           witness. It is only the  serious  contradictions  and  omissions
           which materially affect the case  of  the  prosecution  but  not
           every contradiction or omission.”




      This Court  has  already  held  that  the  question  as  to  material
      omissions will depend upon the facts and circumstances of  each  case,
      and upon  the  discrepancies  noted  above,  these  are  all  material
      omissions in our view which are  fatal  to  the  present  case.  These
      omissions were to be answered by the prosecution  and  non-explanation
      creates a serious doubt about the truthfulness and  credit  worthiness
      of the investigation, and it seems to be tainted.


  12. We have given our careful  and  anxious  consideration  to  the  rival
      contentions put forward by either sides and also scanned  through  the
      entire materials available on record including the impugned  judgment.
      We are of the opinion that the prosecution has  failed  to  prove  its
      case beyond reasonable doubt against accused Nos.1 to 10 and the  High
      Court was justified in doubting the veracity of the  prosecution  case
      and consequently recording the verdict of  acquittal  which  does  not
      suffer from the vice of perversity. As against accused Nos.11 and  12,
      their alibi is sufficiently proved and the prosecution  has  not  been
      able  to  rebut  the  voluminous  documents  and  the  testimonies  of
      independent witnesses. The Trial Court and the High Court have arrived
      at a concurrent and correct finding that accused Nos.11 and  12   were
      not present in the village at the relevant point of  time,   then  the
      parrot-like eye witness account given  by  PWs.1,  2,  5,  10  and  11
      becomes suspicious as to its truthfulness.


  13. The learned senior counsel appearing for the respondents accused cited
      the judgment of State of Rajasthan v. Raja Ram,[4]  recently quoted in
      Upendra Pradhan v. State of Orissa,[5]  wherein this Court held:
           “Generally the order of acquittal shall not be  interfered  with
           because the presumption of innocence of the accused  is  further
           strengthened by acquittal. The golden thread which runs  through
           the web of administration of justice in criminal cases  is  that
           if two views are possible on the evidence adduced in  the  case,
           one pointing to the guilt of the accused and the  other  to  his
           innocence, the view which is favourable to the accused should be
           adopted. The paramount consideration of the Court is  to  ensure
           that miscarriage of  justice  is  prevented.  A  miscarriage  of
           justice which may arise from acquittal of the guilty is no  less
           than from the  conviction  of  an  innocent.  In  a  case  where
           admissible  evidence  is  ignored,  a  duty  is  cast  upon  the
           appellate court to reappreciate the evidence in a case where the
           accused has been acquitted, or the purpose of ascertaining as to
           whether any of the accused committed any  offence  or  not.  The
           principle to be followed by the appellate court considering  the
           appeal against the judgment of acquittal is  to  interfere  only
           when there are compelling and substantial reasons for doing  so.
           If the impugned  judgment  is  clearly  unreasonable,  it  is  a
           compelling reason for interference...”




  14. Thus, in the light of the above discussion, we find no compelling  and
      substantial reasons to interfere with the judgment passed by the  High
      Court. The appeals are, accordingly, dismissed.




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








                                       …...................................J
                                                                (R.K.
      Agrawal)
      New Delhi;
      October 15, 2015
-----------------------
[1]  (2011) 6 SCC 288
[2]  (1997) 1 SCC 416
[3]  (2013) 12 SCC 796
[4]  (2003) 8 SCC 180
[5]  (2015) 5 SCALE 634

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