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
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
