REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 341 OF 2006

Gurunath Donkappa Keri and others …Appellants

Versus

State of Karnataka …Respondent

J U D G M E N T  

S.B. SINHA, J :

1. Appellants  are  before  us  aggrieved  by  and  dissatisfied  with  a  

judgment dated 11th August, 2005 passed by a Division Bench of the High  

Court  of  Karnataka,  Bangalore  in  Criminal  Appeal  No.  1254  of  2002  

affirming the judgment passed by the Presiding Officer, Fast Track Court  

and Additional  Sessions Judge,  Belgaum in S.C.  No. 97/1996 convicting  

accused Nos. 1 to 6, 10 and 13 for offences punishable under Sections 143,  

148,  307,  302,  504  read  with  Section  149  of  the  Indian  Penal  Code  

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(hereinafter  referred  to  as  the  ‘Code’)  and  sentencing  them  to  undergo  

rigorous imprisonment  for three months for the offence punishable under  

Section 143 read with Section 149 ; six months under Section 148 read with  

Section 149 of the Code ;  rigorous imprisonment  for life for the offence  

under Section 302 read with Section 149 of the Code and six months under  

Section 504 read with Section 149 of the Code.  All  the sentences were,  

however, directed to run concurrently.  

2. The  incident  in  question  took  place  at  about  1400  hours  on  5th  

October, 1995 at the Bus Stand of Village Yadawada wherein three persons,  

namely -  Venkappa Laddi ;  Vittal  Laddi and Vittal  Harijan were killed.  

Originally the first information report in relation to the said incident was  

lodged by PW-11 Mohammad Haji Khajamia against 13 persons, namely,  –  

Donkapa Venkapa Keri  (A-1),  Shrimant  Donkappa Keri  (A-2),  Gurunath  

Donkappa Keri (A-3),  Ashok Donkappa Keri  (A-4), Hanamant Donkappa  

Keri  (A-5),  Govindgouda @ Goundappa (A-6),  Maruti  Gurusidda  Dabaji  

(A-7),  Kallapa  Mayappa  (A-8),  Ramappa  Siddagouda  (A09<  Subhash  

Donkappa  (A-10),  Iqbal  @  Ayub  Mohamadisaq  (A-11),  Iswhar  

Shivalingappa  (A-12)  and  Basu  @  Bassapa  Govindappa  (A-13).  

.Donkappa Venkappa Keri (A-1); Shrimant Donkappa Keri (A-2).  Out of  

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them Ramappa Siddagouda, (A-9) died pending trial.  Accused Nos. 7, 8, 11  

and 12 were acquitted by the trial court.   

A judgment of conviction and sentence was recorded by the learned  

trial court against eight persons being A-1 to A-6, A-10 and A-13.   

All the aforementioned accused persons preferred appeals before the  

High Court.   A-1 died while in custody.  A-2 is  said to have committed  

suicide during the pendency of the appeal.   

By reason of the impugned judgment the High Court acquitted A-5,  

A-6 and A-13.  It may also be placed on record that A-5 was released under  

Article  161  of  the  Constitution  of  India.   Before  us  are  A-3,  Gurunath  

Donkappa Keri ; A-2, Ashok Donkappa and A-10, Subhash Donkappa Keri.  

3. The first information report was lodged at about 1730 hours by PW-1  

Shivappa Vishni Keri.  The distance between the place of occurrence and  

P.S. Kulgod is said to be about 16 kms.  The first informant and the accused  

persons are cousins.  Deceased No.1 and 2 were maternal uncles of PWs-1  

and 2.  Deceased No.3 is said to be one of the servants of the deceased Nos.  

1 and 2.  

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4. The deceased were residents of Neralgi Village.  PWs. 1 & 2 and the  

accused  had  their  ancestral  properties  in  the  said  village.   Although  the  

family  was  separated,  some  boundary  dispute  existed  in  respect  of  their  

lands.  Land of PWs 1 & 2 was adjacent to the land of the accused.  Some  

trees on the boundary wall on the land of accused and PWs. 1 & 2 resulted in  

disputes; both parties having filed civil suits in relation thereto.

5. On 31st October, 1995 while PW-2 was plucking coconuts from the  

tree standing on the disputed land, some of them fell  on the lands of the  

accused.  Accused No.1., accused No.8, his wife, and accused No.5, were  

alleged  to  have  taken  away  the  said  coconuts  claiming  the  same  to  be  

belonging to them.  

A quarrel ensued.  With a view to get the said dispute settled, PW-1 is  

said to have called his maternal uncles, deceased Nos. 1 and 2 and requested  

them to resolve the same.  The prosecution case proceeded on the basis that  

on 4th October, 1995 deceased Nos. 1 and 2 accompanied by their servant  

deceased No.3 and PW-3, a relation of both, came to the village Yadewade  

in the morning.  They approached the village elders – Ishwar Mahadevappa  

Katti (PW-20) and Shivappa Bailappa Chikkanavar (PW-21) for settlement  

of the dispute.  Accused Nos. 1 to 5 were summoned.  Accused No.1 and  

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PW-1 were present in the talks for settlement.  A suggestion was mooted  

with regard to settlement of dispute between the parties.  To that Accused  

No.1 expressed his intention to consult his children viz. Accused Nos. 2 to  

5.and 10.  He left the place for the said purpose. When he did not return back  

within a reasonable time, having regard to the time gap, PW1 and PW-2,  

deceased  and  his  people  went  to  a  tea  shop  belonging  to  Shankarappa  

Ramanna Chippalakatii (PW-9) to have tea.  While they were taking tea, the  

accused persons consisting of as many as 13 people arrived at the spot by a  

tempo trax,  holding out that the persons who wanted to settle  the matter  

should not be allowed to do so and attacked on them.  Deceased Nos. 1 and  

2 were attacked first while the third deceased who had come to help the  

others was also assaulted.  When the village people started arriving all the  

accused ran away.  The three deceased and one Siddappa Basappa Nagalagi  

were taken to Primary Health Centre of the Village.  Dr. Siddramappa (PW-

25), of the said Primary Health Centre noticed the injuries on the deceased  

and referred them to Civil Hospital, Belgaum.  The deceased thereafter were  

taken to Belgaum Hospital.  At the said hospital they were declared dead.   

6. In the meantime a report was scribed by PW-2.  PW-1 took the same  

to the police station and a first information report was recorded bearing No.  

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90 of 1995 under Sections 143, 148, 307, 302, 504 read with Section 149  

IPC.   

7. Before  the  learned  trial  Judge  forty  witnesses  were  examined  on  

behalf of prosecution.  Concededly except PWs. 1, 2 & 3 all other witnesses  

including PWs 4 to 14, 17-20, who were eye witnesses and PW32 who was a  

panch witness were declared hostile.  Indisputably a judgment of conviction  

and sentence  as against  the appellants  were recorded by the learned trial  

Judge as also the High Court only on the basis of the evidence of PWs. 1 to  

3.  

8. Appellants  before us do not  deny or  dispute  the  occurrence  of  the  

incident.  Death of three persons also stands admitted.

9. Mr.  K.V. Viswanathan, learned counsel appearing on behalf of the  

appellants  in support of this appeal would raise the following contentions :-

I) PWs  1, 2  & 3 being closely related and they, being inimically  

disposed of towards the appellants and, thus, being interested  

witnesses should not have been relied upon by the courts below.  

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II) There  being  a  large  number  of  contradictions  in  their  

depositions,  the  evidence  of  PWs  1-3  does  not  inspire  

confidence.

III) PW-3 having not been named in the first information report, no  

reliance could be placed upon his evidence.  Even the doctor in  

his register and other documents did not record the names of the  

said prosecution witness.   

IV) The weapon of offence allegedly carried by the appellants being  

axe; their deposition in court that assault took place with sticks,  

clearly demonstrates that they were not the eye witnesses to the  

occurrence..  

V) Exhibits  P-29 and P-33 being medical  certificates  having not  

contained names of any of the four persons, including PW-3,  

who allegedly shifted the deceased and the injured to Primary  

Health Centre, the prosecution must be held to have failed to  

prove its case.

VI) In the hospital register, the nature of the weapon used or the  

names  of  the  culprits  do  not  find  place,  which  creates  a  

suspicion  in  regard  to  participation  of  the  appellants  in  the  

commission of the crime.    

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VII) If  PW-3  was  an  eye  witness  his  name  should  have  been  

mentioned in all those medical certificates.   

VIII) For want of mentioning  the mode of transport which is said to  

be a tractor and the name of PW-3 in Ext.P-1 and Exts. P-29 to  

P-33, it is difficult to believe that he was an eye witness.

IX) The clothes which were being worn by PWs. 1 and 2 said to be  

stained with blood having not been seized, the same, gives rise  

to a suspicion they in fact shifted the deceased to the Primary  

Health Centre.

X) In  view  of  the  contradictory  statements  with  regard  to  the  

question whether PW-1 or PW-2 had in fact gone to Village  

Primary Health Centre, the prosecution story becomes doubtful.

XI) The  presence  of  accused  No.1  with  PW-1  having  not  been  

supported by the Panch witnesses, it is doubtful as to whether  

accused No.1 came to his house to consult his sons and after  

sometime went back with other accused to assault on the three  

deceased and the party.   

XII) The depositions of PWs. 1 and 2 on their plain reading would  

be  found to be having parrot like statements, no reliance can be  

placed thereupon.  

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XIII) As on the same set of evidence A-7, A-8, A-11 and A-12 were  

acquitted by the trial court and A-5, A-6 and A-13 by the High  

Court,  it  would  not  be  safe  to  convict  and  sentence  the  

appellants  on  the  basis  of  the  contradictory  version  of  the  

prosecution witnesses..

XIV) The first information report was lodged after a long time and as  

such the prosecution story should not be accepted.  

XV) The motive alleged by the prosecution arising out of a dispute  

on a trivial issue ordinarily would not give rise to an occasion  

of murder of the three persons.  

10. Mr. Sanjay R. Hedge, learned counsel appearing for the State, on the  

other hand would, contend :-

I) PWs  1  to  3,  although  are  related  to  each  other,  they  being  

natural witnesses and their testimonies having not been shaken  

in essential details, the court below could not be said to have  

committed  any  error  in  passing  the  impugned  judgments  

particularly  when  they  being  closely  related  to  the  accused,  

would not unnecessarily implicate them.

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II) Although  PWs.  1  and  3  in  their  evidence  have  stated  the  

weapons of offence as sticks whereas in the first information  

report,  they were mentioned as axe, their evidence cannot be  

disbelieved, more so when some incised wounds were found on  

the persons of the deceased.  

III) The motive for killing of the three persons is evident as it has  

been brought out on record from the deposition of PW-19 that  

the accused party had clearly stated that as PWs. 1 and 2 had  

brought their maternal uncles for the purpose of resolution of  

dispute, they would not let them go and finish them.

IV) Non-mentioning  of  the  names   of  the  witnesses  who  had  

brought the deceased to the Primary Health Centre and later to  

the Civil Hospital, Belgaum is not material as the doctors must  

be busy in attending the patients immediately and naturally they  

would not pay any attention to the persons who brought them or  

record their statements or names.

V)  Non-mentioning of the mode of transport and name of PW-3  

must be held to be an omission of a minor nature as ordinarily  

such  details  are  not  necessarily  to  be  recorded  in  

contemporaneous documents.  

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VI) Non seizure of the blood stained clothes worn by PW-1 and  

PW-2 must also be viewed as a minor error on the part of the  

Investigating Officer.

VII) On a proper reading of the evidence of PW-2, it would appear  

that before the Village elders not only A-1 but also PW-1 was  

present  and  from  the  shop/residence  of  Shivappa  Bailappa  

Chikkanavar (PW-21) they went to a tea shop.  

VIII) Even the witnesses who had turned hostile in their deposition  

before  the  Court  conceded  that  the  incident  had  taken  place  

near the tea shop, goes to show that they supported a part of the  

prosecution case with regard to the place of occurrence.

IX) The first  information  report  having  been  lodged  within  2  ½  

hours at Kulgod Police Sation, which is at a distance of 16 kms.  

the truthfulness of the prosecution case cannot be doubted.  

X) In the first information report the name of PW-1 could not have  

mentioned as regards the death of the three deceased as they  

were sent to Civil Hospital, Belgaum in injured conditions and  

the factum of the death of all the three persons was not known.  

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XI) It  is  not  correct  to  contend that  the  dispute  was  on a  trivial  

issue, namely collection of few coconuts by A-1, A-8 and A-5  

accused No.1, but it was a longstanding boundary dispute.  

11. A holistic approach, in our opinion, is required to be taken in a case of  

this nature.

The first information report, having regard to the distance between the  

place of occurrence and the police station cannot be said to have been lodged  

after  a  long  delay.   The  incident  took  place  at  about  2  O’  clock  in  the  

afternoon.  It must have continued for sometime.  The mental condition of  

the  prosecution  witnesses  can be well  imagined.   They had to arrange a  

transport  to take three persons who were severely injured to the hospital  

particularly  when one of them had suffered grievous injuries.  They were  

taken to the Primary Health Centre of the village.   

12. Dr.  Siddramappa,  PW-25,  noticed  the  following  injuries  on  the  

deceased :-

DECEASED VITTAL TIMMAPPA LADDI  

“1. Laceration injury in left side of parietal region,  3” x 2”.   

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2. Abrasion  in  on left  side  of  forehead and left  temporal  region.

3. Lacerated  wound  in  occipital  region  3  in  number  1 ½” x 1” x ½” ; 1” x ¼” x ¼” ; ½” x ½” x ½”.

4. Abrasion on left side of knee.”

DECEASED VENKAPPA TIMMAPPA LADDI

1. Two vertical 8” x1” contusions on right posterior oxillary  line 1” apart from each other.

2. Two parallel vertical 6” x 1” reddish contusion left part  of oxillary line on body.   

3. Contusion  injury  in  the  back  on  left  scapular  region  roundish.

4. Laceration injury in the frontal region 3” x 2” x 1”.

5. Laceration  injury in  the  left side  of  temporal  region  4” x 2” x 1”.

6. Laceration injury in the occipital region 2” x 1” x 1 ½”. “

DECEASED VITTAL YALLAVVA HARIJANA  

1. Bruise cum laceration in the occipital region 2” x 1” x 2”.

2. Injury seen on left lower limb at the junction of upper  2/3rd and lower 1/3rd looks like fracture of both bones.

3. Lacerated injury in the parietal region 2” x 2” x 1”.”

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The doctor  was  of  the  opinion,  keeping  in  view the  infrastructure  

available at Primary Health Centre, that they could not have been properly  

treated.  They were, thus, advised to take them to Civil Hospital at Belgaum.  

The distance between the village and Belgaum is also considerable.  

13. The post-mortem reports  of  the  three  deceased show the nature  of  

injuries suffered by them.  We may reproduce the same heretobelow:-

DECEASED VITTAL TIMMAPPA LADDI –

“1. Sutured wound left parietal area 3” in length.

2. Abrasions  covering  left  1/3rd of  forehead  and  left  temporal area blackish in colour.  

3. 3 wounds on the occipital area as shown in the figure 1  ¼” x 1” ; 1” x ¼” and ½” x ¼:, blood dot bone exposed.  in on left side of forehead and left temporal region.

4. Abrasion left knee 1” x 1 ¼”. ”

DECEASED VENKAPPA TIMMAPPA LADDI

1. Two parallel, vertical 8” x 1”contusion reddish in colour  on right post axillary line 1” apart on back.  

2. Two parallel, vertical 6* x 1” reddish contusion on left  post axillary line on back.

3. Defused contusion on the back.  

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4. Sutured  wound  from  frontal  hair  line  in  the  centre  extending upwards 2 ½” – incised, bone deep wound.  

5. Sutured wound in occipital region, irregular 2” x ¼” –  lacerated wounds.

6. Parallel to injury. No.5 bone deep sutured wound 2” in  length lacerated.

 7. Parallel  to injury No.6 bone deep sutured wound 1” –  

lacerated.  

8. 2 ½ long bone deep sutured wound on left fronto parietal  region.  Injury Nos. 4, 5, 6, 7, 8 clotted blood present.

9. Dark brown colour contusion on a dorsum of the right  hand 2” x ¼”  Posterior laternal aspect of right arm, ½ x  ¼”  

10. Contusion bridge of the nose.  

11 Multiple dark brown abrasions of forehead ranging from  4 cm to 2/ ½ cms.

12. Lacerated wound on mid shin lt. leg 1” x ½”

13. Contusion, anterior aspect of left knee ½” X ¼”.     “

14. Before coming to the police station, PW-1 got the first information  

report scribed by PW-2 who is a graduate in Science.  He wrote the same in  

English.   That  must  have  also  consumed  some  time.   It  was  in  the  

aforementioned circumstances that the first information report was lodged at  

the Police Station within a period of 2 ½ hours from the time when the  

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incident had taken place; the police station being at a distance of 16 kms  

from the village.   

We, therefore, do not find that any delay at all was caused in lodging  

the same.   

15. The evidence of PW-34, that only PW-1 was present at the time of  

recording of the first information report is of no consequence.   

Admittedly PW-1 was the first informant.  The Head Constable could  

not have remembered  as to who else had come with him.  He could have  

refreshed his memory on the basis of the first information report alone.

It is true that whereas in the first information report the overt act on  

the part of the appellants was said to have been caused with axe, in their  

depositions  no prosecution witness  stated that  overt  act  was  caused with  

bamboo sticks.   

16. The deceased were seriously injured.  It is, therefore, not expected of  

PW-25 to record in detail the names of the persons who had brought them to  

the  Primary Health  Centre  or  the  transport  in  which  they  were  brought.  

Their condition was serious.  Naturally the first concern was to see that the  

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available  medical  aid  is  provided to them so that  they  could reach Civil  

Hospital, Belgaum as early as possible.  The priority of the doctor would be  

to save the lives of the injured and not to make entries.  Furthermore there  

was  not  only  one  injured,  there  were  three  persons  who  had  suffered  

grievous injuries.   The doctor  was also required to notice  the number of  

injuries suffered by them.  He did so.

17. PW-25, Dr. Ashok, who conducted the postmortem examination on  

the dead body of deceased Venkappa Laddi opined that the death was due to  

head injuries.  Dr. Sycheta Manohr, PW-26, who conducted the postmortem  

examination on the dead body of Vittal Thimappa Laddi stated the cause of  

death of the deceased as coma secondary to injury to the vital organ.  Dr.  

Vijyvithal, PW-29, who conducted the postmortem examination of the dead  

body of Vittal Harijan opined that the death was due to coma as a result of  

negugin shock secondary to fracture skull, haemotoma brain and laceration  

of left temporal lobe of brain.   

Each of the deceased also appears to have suffered one incised wound.  

18. PW-34, PI.S. registered the case.  He recorded the statements of PWs.  

1, 2, 8, 9, 10, 17, 18, 20, 21 and 24.  He drew the map of the place of  

occurrence.   

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The investigation in the case was completed by C.P.I. Sangangouda  

Shivangouda Patil, PW-40.   

19. We may notice the evidence of PWs. 1, 2 and 3 in regard to the overt  

acts committed on the deceased.   

In the first information report it is stated :-

“Subhash hit  with  axe  twice  on  the  head of  my  uncle Vittal Laddi.  He fell down and in fear we  started running.   My uncle Venkappa was chased  by  two  persons  of  Gataprabha,  caught  him  and  Gurunath  assaulted  Venkappa  by  hitting  on  the  head with the axe twice.  And Srimantha hit twice  with axe on the head of Venkappa and two persons  from Ghataprabha held tightly Vittal Harijana, and  Ashok  assaulted  Vittal  with  axes  on  the  head.  Then he fell down and Donkappa with his cane hit  him  on  his  left  knee,  and  Hanumantha  and  Govindappa  assaulted  Shivappa  Savalagi  with  hatchets on his head and other parts of the body”.  

PW-1 in his deposition stated :-

“That  had  come  there  assaulted  Vithal  Harijan  with  a  Bidaria  stick  on  his  head  and  then  the  deceased Venkappa Laddi tried to run by getting  down the steps towards the Nala being afraid of  the accused, and A. Nos. 2, 3 and a person from  Ghp. assaulted Venkappa Laddi with stick on his  head,  and  Venkapa  Laddi  fell  down  sustaining  injuries on his head and fell down on the ground.”   

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PW-2 in his deposition stated :-

“Then myself and PW-1 went by the side of the  liquor  shop  and  when  my  mother’s  younger  brother  Venkappa  Laddi  was  going  towards  the  Nala A. Nos. 2, 3 and 2 persons of Ghp wearing  Dhoti followed them and A. Nos. 2 and 3 assaulted  with  sticks  on  the  head  and  leg  of  Venkappa  Laddi.”

PW-3 in his deposition stated :-

“A. nos. 2 and 3 and 2 persons who were wearing  dhoti assaulted Venkappa Laddi, who was running  towards the Nala.  And when he was 2 step down,  he was assaulted by them with sticks on his head,  and  on  receiving  the  bleeding  injuries,  he  fell  down unconscious.”  

20. Except contending that depositions of PWs 1 to 3 are tutored ones and  

they had made parrot like statements, Mr. Viswanathan has not been able to  

show before us that the depositions of three witnesses had been shaken in  

cross-examination  in  essential  particulars.   A longstanding The boundary  

dispute  between the parties  is  not  denied or  disputed.   The fact  that  the  

deceased were called for by the prosecution witnesses is also not denied or  

disputed.  Their presence in the village is accepted.   

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21. The possibility that some of them were carrying axe and some of them  

lathis cannot be ruled out.  Even the blunt portion of axe can produce the  

same nature of injuries.

22. We are also not in a position to accept the submission of the learned  

counsel that motive to commit the overt act must be disbelieved.  The parties  

were on litigating terms.  They had filed suits against each other.  Boundary  

dispute between them was an old one.  It may be true that quarrel started on  

collection of a few coconuts which fell on the land of the accused but they  

were collected on the premise that some coconut trees were within their own  

land.  

23. PW-1 in his evidence clearly stated that coconut trees were standing  

on their land whereas as per the testimony of PW-2 and PW-3  they were  

standing on the bandh.  The very fact that there existed a boundary dispute  

must have prompted PWs. 1 and 2 to call their maternal uncles.  

24. There is overwhelming evidence on record to show that the incident  

had taken place in the village.   

Once the genesis of the occurrence is proved, it is now well-settled,  

contradictions which are minor in nature would not be sufficient to dispel  

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the entire prosecution case.  It is true that all the three prosecution witnesses  

who have been relied upon by the courts below are interested witnesses.  It  

must, however, be borne in mind that despite existence of their animosity,  

keeping in view the relationship between the parties, it is unlikely that they  

would be falsely implicated.   

25. We have noticed hereinbefore the manner in which the entire incident  

had taken place.  Prosecution witnesses intended that the disputes between  

them should be settled through mediation.  It is only with that intent in view  

they brought the deceased to their own village so that the village elders may  

intervene in the matter so as to end their longstanding disputes.

The reason for attack on the deceased, as revealed by PW-2, is that as  

they had brought their maternal uncle to resolve the dispute, they would not  

let them go and finish them.  Almost to the same effect is the statement of  

PW-9.

An effort had been made even by the village elders.  Various options  

must have been given to the accused persons.  One of the options which was  

given  to  the  accused  was  to  quote  from  the  deposition  of  one  of  the  

prosecution witness, was “It is true, that we the elders told both the sides to  

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settle the matter either by giving some portion of the land, or by taking some  

portion of the land”.  Accused No. 1 being the head of the family intended to  

consult  his  children  only  to  know  their  view-points  so  that  further  

negotiations may take place.  They had gone to a tea shop for taking a cup of  

tea.   They  never  expected  that  they  would  be  attacked  by  the  accused  

persons.  They evidently did not comprehend that the deceased would be  

subjected to attack in the manner in which it was done.   

26. All  the  prosecution  witnesses  are  natural  witnesses.   The  essential  

ingredients to prove the crime against the accused have categorically been  

stated by them.  Both the courts below have placed implicit reliance on their  

testimonies.   

Our attention has not been drawn to any major contradiction in the  

deposition of the witnesses so as to disbelieve the entire prosecution case.  

The very fact that they had been taking the deceased who were grievously  

injured at that point of time from hospital to hospital is itself a pointer to  

show the state of mind they were having at the relevant time.  It is, therefore,  

too much to expect that they would not only state the details of the manner  

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in which the occurrence had taken place but also the names of all the persons  

who witnessed the same.   

27. It is not the requirement of law that the doctors, even before admitting  

the injured or during their treatment, must note down every bit of details of  

the incident or names of the witnesses in the registers maintained by them.  

If  the  doctors  were  engaged  in  discharge  of  their  primary  duty,  viz.,  

attending to the  patients,  we are  of  the  opinion that  only because  in the  

registers the name of PW-3, who is said to have shifted them to the hospital,  

had not been mentioned by itself  can be a ground for not relying on his  

testimony  in  support  of  the  prosecution  case.   Such  details  are  not  

necessarily recorded in the contemporaneous document.  In any event, the  

purported discrepancies in the evidence of the prosecution witnesses as to  

who had shifted the  injured to hospital  or  the  mode of  transportation,  is  

minor in nature.  For the self-same reason, only because his name was not  

mentioned in the First  Information Report, may not itself be sufficient to  

discard his evidence  particularly in view of the fact that whereas PW-1 went  

to the police station to lodge the First Information Report, services of PW-3  

and others must have been taken for the purpose of shifting the deceased and  

injured to the hospital.

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28.  Mr.  Viswanathan  pointed  out  that  blood-stained  clothes  of  the  

witnesses were not seized.  Even if it is accepted, the same merely points out  

an error  on the part  of  the investigation officer.   The same,  by itself,  is  

sufficient to discard the entire prosecution case.   

Statements of PWs 1 and 2 as regards the name of the person who had  

gone  to  village  in  question  to  bring  the  deceased  cannot  be  said  to  be  

decisive.   Attention  of  the  witnesses  was  not  drawn  to  their  earlier  

statements  in  cross-examination.   Furthermore,  the  evidence  that  the  

deceased had come to the village for the purpose of resolution of dispute  

being consistent, it is difficult to disbelieve it.  It is absolutely consistent in  

nature.   

29. Submission of Mr. Viswanathan that, on the one hand that PWs 1 and  

2 had contradicted themselves as to who had gone to the Village Primary  

Health  Centre  and  at  the  same  time  his  submission  that  they  had  been  

making the comments that they had been tutored do not go together.  It is  

evident from the evidence of the prosecution witnesses that for the purpose  

of holding negotiations PW-1, on the one side and the Accused No. 1 from  

the other were present.  It was only after the suggestion for the purpose of  

resolution of the dispute had been given, they had come to the tea stall.   

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It is true that PW-7, the owner of the tempo trax, turned hostile. The  

said witnesses, however, conceded that some incident had taken place near  

the tea shop.  Some transport must have been used for taking them to the  

hospital.  The statement of PW-7 had also been recorded under Section 164  

of the Code of Criminal Procedure.  He, however, as noticed, turned hostile.  

30. Having regard to the evidences brought on record by the prosecution,  

we are of the opinion that only because other witnesses have turned hostile,  

the same should not by itself be a ground for coming to a conclusion that the  

incident had not taken place near the shop of PW-9.

31. It is also difficult to accept the argument of Mr. Viswanathan that only  

because Accused Nos. 7, 8, 11 and 12 have been acquitted,  the same by  

itself  should  be  a  ground  for  recording  a  judgment  of  acquittal  of  the  

appellants.

32. Submission  of  Mr.  Viswanathan  that  the  prosecution  has  failed  to  

show as to why a First Information Report was recorded under Sections 143,  

147, 148, 324, 504 read with Section 149 of the Indian Penal Code which  

would  go  to  show that  the  deceased  was  alive  till  1730  hrs,  cannot  be  

accepted.  They were being taken to the Civil Hospital, Belgaum.    When  

the First Information Report was being recorded, the deceased were on their  

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way to Civil Hospital, Belgaum.  The factum of their death was, thus, not  

known to PW-1.

33. For the reasons stated hereinbefore, we are also not in a position to  

agree with the submission of Mr. Viswanathan that motive alleged being a  

trivial one, the prosecution case should not be believed as the dispute being  

related to boundary of agricultural fields, the parties were on litigating terms  

for a long time.   

34. For the reasons aforementioned, there is no merit in this appeal, which  

is dismissed accordingly.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; May 06, 2009

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