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CASE NO.: Appeal (crl.)  1344 of 2005

PETITIONER: Ramappa Halappa Pujar & Ors

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J.         Appellants herein have filed this statutory appeal under the Supreme  Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 being  aggrieved by and dissatisfied with the judgment dated 9.6.2005 passed by a  Division Bench of the High Court of Karnataka at Bangalore in Criminal  Appeal No.252 of 1999(A) whereby and whereunder, a judgment of  acquittal passed by a III Additional Sessions Judge, Dharwad acquitting the  appellants herein for offence punishable under sections 143, 147, 148, 341,  324, 342, 504 and 302 read with Section 149 of I.P.C., was reversed.

        The alleged occurrence took place at about 10.30 A.M. on 13.12.1994  near the Bus stand at Village Ichangi situated in the District of Dharwad.  A  First Information Report was lodged by one Devendrappa (PW-25).  He is  the brother of appellants 1 and 2 herein being original accused nos.1 and 2.   Appellant no. 4 is married to the sister of the appellants 1 and 2.  Appellants  1 and 2 and the first informant allegedly sold 5 acres 20 gunthas of land  situated in the said Village Ichangi to deceased Ratnavva.  The contention of  the accused no.1, however, was that his signature on the alleged deed of sale  was a forged one.  The property, however was in possession of the deceased  Ratnavva.  On 13.12.1994 at about 7.30 A.M. Ratnavva and her sons  Shivananda Basavaraj and Veeresh went to the land in question for plucking  groundnuts.  The accused persons in furtherance of their common object of  assaulting them came to the land in question with deadly weapons.  They  chased Devendrappa and assaulted him.  They assaulted the deceased with  sticks causing bleeding injuries.  They were also abused.  Allegedly in the  scuffle that followed, accused no.1 instigated accused no.4 to stab  Devendrappa and when an attempt was made in this behalf, bleeding injuries  accidentally were caused to accused no.1.  Devendrappa ran away from the  said place.  He was, however, caught near a place known Udachammana  Gudi at Ichangi.  His hands were tied.  He was wrongfully confined to the  house.  It is stated that the accused persons also threw stones at the deceased  and her companions PWs.26 to 28.  One of them had hit the deceased.   PWs.25 to 28 being frightened, moved a little away from the scene leaving  the deceased on the spot.  She was forcibly taken near the Bus stand of their  village, tied to an electric pole and her garments were taken off.  She was  tied around her neck with her own saree.  She was assaulted with sticks.  She  begged for water but the same was denied to her.  The accused continued to  assault her with sticks.  She breathed her last at that spot.  The first  informant Devendrappa (PW-25) who was kept confined in his house    allegedly had become unconscious.  After regaining consciousness he came  to know of the said murder and lodged the First Information Report.

       The post-mortem examination of the deceased was conducted by Dr.  Mohantappa (PW-13).  The dead body was received at the hospital for post  mortem examination on or about 11.30 P.M. in the night.  The post-mortem  examination was conducted in the morning of 14.12.1994.  PW 13 found the  following external injuries on the dead body :-

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"1.     Oblique ligature mark on the upper part of the  neck, mark is interrupted, stating from right angle  of the jaw and along the border of the mandible  and to the left angle of the jaw, traversing to the  nape of the neck, measuring about 14"2 x in  length.  Interrupted ligature mark along the lower  border of jaw from right to left side of the jaw 4 in  No. measuring 1" x =" x = x =’ x =’ x =" x ="  respectively.  Ligature mark on the middle of the  nape of measuring =" x =".  Ligature marks were  reddish, dry, parchment like, ecchymosed margins.   Both the hands were clinched.

2.      There are 3 ligature marks on the right forearm  about 3" away from the wrist, measuring 6" x <",  8" x <, 8 =" x1/4" respectively.

3.      Ligature marks on the left fore arm two in No.  measuring 5 =" x <", 5" x <" respectively.

4.      There was fracture of left thigh bone lower 1/3rd  about 2" away from the knee joint.

5.      Contusion on left knee joint medial aspect  measuring 3" x 2" Multiple contusions were found  on the body.

6.      Contusion on left infracbuicular region measuring  2" x 3".

7.      Contusion abrasion on the right elbow posterior  aspect measuring 2" x 1".

8.      Contusion on left knee front aspect measuring 5" x  =".

9.      Two  contusion on lateral and front of left thigh  measuring 3 =" x 3", 3" x 3" respectively.

10.     Contusion on left buttick and posterior aspect of  thigh measuring 6 =" x 3", 3 <" x 3" respectively,  2" x 1".

11.     Abrasion on left side of the ankle measuring =" x  =".

12.     Contused abrasion of left lateral aspect of ankle  measuring 2 =" x 1".

13.     Contusion on lateral aspect of left leg upper part  measuring 3 =" x 2".

14.     Two contusions on right thigh measuring 2" x 2",  4 =" x 1" respectively.

15.     Abrasion on the right thigh lateral aspect  measuring 1 =" x =".

16.     Contusion on the right buttock measuring  1 =" x  =".

17.     There was no fracture of Hyoid bone, Thyroid  cartilages or tracheal rings.

18.     Multiples small abrasion on right side of buttock

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measuring =" to 1" in length <" to =" in width."

          In the opinion of the autopsy surgeon, the injury No.1 ligature mark  can also be caused if saree piece is rolled and tied around the neck.  It can  also be caused by a rope.  Injuries Nos. 2 and 3 can be caused if rope is tied  to that part of the body.  Injury 4 on the body of the deceased it was opined,  could  be caused by a hit with hard and blunt substance like stick.  The other  injuries namely contusion and abrasions can be caused by stick, and also  with the fists and with kicks.  The injuries around the neck were sufficient to  cause the death.                  Devendrappa was also examined by one Dr. Achut Kumar Vasant.   He found the following injuries  on his person :

       5m x 3mm abrasion with 2 cm x 2 cm swelling on the back of the  head in the occipital region.  The said injuries according to him could not be  self-inflicted ones.   

       Before the learned Trial Judge, a large number of witnesses were  examined on behalf of the prosecution.  PWs.1 to 8, 10, 11, 19, 20, 21 and  29 who were either eye witnesses or Panch witnesses turned hostile.  PW.9  Karveerapa Chenbasapa, however, proved the Panchnama which was  marked Ext.p-14.  The panchnama was drawn in respect of the spot where  Ratnavva was found dead.  He, however, refused to prove the contents of the  other panchnamas.  He was also declared hostile.  

       Before the learned Trial Judge, an auto driver Huchappa Basappa  Parasannavar was examined as PW.2 to prove that accused no.1 was carried  in his tempo to the Handignur Government Hospital.  Almost for the said  purpose, one Rafiq Abdulsab Havaldar was examined as PW.18.  He,  however, did not support the prosecution case.           Learned Trial Judge recorded a judgment of acquittal opining that the  prosecution case has been supported only by the first informant  Devendrappa, sister of the deceased Chembavva and sons of the deceased  Shivananda, Basavaraj, PW.27 and Veeresh, PW.28 on whose evidence no  reliance can be placed.  The learned Trial Judge took into consideration the  defence of the accused that the deceased and her sister were of loose moral  character and although married, had left their respective husbands. It was  noticed that the deceased had been living with the first informant and in  view of their immoral conduct the villagers were against them.  It was held  that Accused no.1 allegedly had suffered a stab injury at the hands of the  prosecution witnesses and was taken to the hospital at about 9.30 A.M. on  that day whereafter only the villagers killed the deceased.  The learned Trial  Judge further held that PWs.25, 26, 27 and 28 being interested witnesses  were not reliable.   

       The Division Bench of the High Court, however, opining that there  was no reason to disbelieve the said PWs.25 to 28, particularly when PW.25  was an injured witness, differed with the said findings holding :

"39.    It might be that PWs 26 to 28 are the close  relatives of the deceased. The central evidence  against the accused consists of their evidence who  have given a complete  narration of the prosecution  case.  Though they are the close relatives of the  deceased, they cannot be termed as the interested  witnesses.  The witness is normally to be  considered independent unless he or she springs  from sources which are likely to be tainted and that  usually means unless the witness has cause, such  as enmity against the accused, to wish to implicate  him falsely.  Ordinarily a close relative would be  the last to screen the real culprit and falsely  implicate an innocent person.  It is true, when

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feelings run high and there is personal cause for  enmity, that there is a tendency to drag in an  innocent person against whom a witness has a  grudge along with the guilty, but foundation must  be laid for such a criticism and the mere fact of  relationship far from being a foundation is often a  sure guarantee of truth.  There cannot be any  mechanical rejection of their evidence on the sole  ground that it is the evidence of partisan or  interested witnesses.  Therefore the mere fact that  PWs.26 to 28 are the close relatives of the  deceased is not sufficient to discard their testimony  given in Court, more so, when their evidence does  not suffer from any such infirmity.

40.     For these reasons, we are of the view that we  are unable to reject the evidence of PWs.26 to 28  on the ground that they are the relatives of the  deceased.  We have ourselves carefully gone  through the entire evidence of PWs.26 to 28 and  we find that shorn of a few embellishments here  and there, their evidence read as a whole in its  entirety is acceptable.  Moreover the testimony  given by them in Court stands corroborated from  the medical evidence on record.  They have given  a true and correct description of what they had  seen, observed and comprehended at the spot."                  The High Court, however, gave benefit of doubt to A6 to A8.  The  case against A9 abated as he died during trial.  Appellants before us were  convicted by the High Court under sections 143, 147, 148, 341, 342, and 302  read with Section 149 of I.P.C. They were sentenced to undergo  imprisonment for life and a fine of Rs.1,000/- for commission of the offence  under section 302 read with Section 149 of the IPC, but no separate sentence  was passed in respect of the other offences found to have been committed by  the appellants.   

       Mr. Girish Ananthamurthy, learned counsel appearing on behalf of the  appellants, took us through the judgment of the learned Trial Judge to  contend that sufficient and cogent reasons having been assigned in support  of the judgment of acquittal recorded by the learned Trial Judge which was  based on probability and the view taken by it being a possible one, the High  Court committed a manifest error in reversing the said judgment of acquittal.

       Mr. Rana Mukherjee, learned counsel for the respondent, however,  supported the judgment.

       Before we embark upon the rival contentions of the parties, we may  notice that although the learned Trial Judge noticed the motive of the  appellants  in committing the offence, did not deal therewith in his  judgment.  The High Court, however, considered the question of motive on  the part of the accused to commit the said offence at some length.  Execution  of the deed of sale in favour of the deceased by the three brothers is not in  dispute.  What was, however, in dispute was that as to whether appellant  no.1 had executed the said deed of sale or not.  Possession of the parties in  or over the said land was also in dispute.

       Appellants herein and other persons supporting them were bearing ill  will against the deceased and her family. Existence of the land in dispute  between the deceased and the accused stands admitted.  Homicidal nature of  the death of the deceased is also not in dispute.  The fact that she suffered a   number of ante-mortem injuries is also not in dispute.  From the post- mortem report it is evident that she had suffered injuries almost on all parts  of her body.  She suffered even a fracture on left thigh bone.

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       Learned Trial Judge appears to have totally relied upon the evidence  of PW.22 Veerbhadrappa Sadeppa Gundagavi who was the Medical Officer  at General Hospital, Haveri.  According to him accused no.1 was brought to  the Hospital by one Mallangouda Hanman Thagounda Patil with a history of  assault.  He examined him and found stab-wound 1 cm. above umbilicus  transversally measuring 2-1/2 cm. x = cm. x 1 cm. which was red in colour  and since there was no sufficient facility in that hospital and since the injury  was grievous, he was referred to Chigateri Hospital wherein he was admitted  and discharged on 13.2.1995 only.  He proved a purported entry made in the  Medical Legal Register maintained at the General Hospital, Haveri which  was marked as Ext.P-25 wherein it was allegedly mentioned that one  Ramappa Halappa Pujar (accused no.1) was brought by one Mallangouda  and another Nellappa Hullur to that doctor with the history of assault on that  day at about 9.30 A.M. with knife by one Shivanand Chennashetty.   Allegedly he intimated the concerned Police Station.  No document,  however, has been produced to prove the said fact.  We have perused the  original register.  We have found certain interpolations therein.  A certificate  was purported to have been granted only in February 1995.  The said  certificate has not been legally proved.  The Doctor at Chigateri General  Hospital at Davangere had not been examined by the accused is shrouded by  mystery.  According to PW.12, Appellant no.1 was being transported in a  tractor.  He was, however, transferred to the auto belonging to PW.12.   PW.18 was the driver of the tractor.  Although he was examined on  13.11.1997, according to him the incident took place a year prior thereto.   He stated the time to be around 10 A.M..  He did not say that he found  accused no.1 to be in an injured condition.  He was merely told that he had  not been feeling well.  He took him to a distance of one kilometer from the  Bus stand, whereafter he was transferred to a matador van.  He could not  identify the accused no.1.  PW.12 Huchappa Basappa, however, describes  himself to be a driver of a tempo.  He was examined on 24.10.1997.   According to him his tempo was booked two years ago by accused nos.7 and  8 for a trip to Haveri from Hosaritti Bus stand.  When accused no.1 was  being brought in a tractor he saw a bandage on his stomach.  He was taken to  Handignur Government Hospital and from there to Haveri Government  Hospital.  The inconsistencies between evidence of PW.18 and PW.12 is  evident.  If PW.12 is to be believed, apart from the mistake in the year in  which the accident took place, the appellant no.1 reached Handignur  Government Hospital at 10.45 A.M.  They were there only for 5 to 10  minutes.  They reached Haveri Hospital at about 12 O’Clock which was  situated at a distance of 25 k.m.  Why it took more than ninety minutes to  cover a distance of 25 k.m., is not known.  How accused no.1 was being  taken to the Handignur Government Hospital when he had a bandage on his  stomach has not been explained.  We also notice that although according to  PW.18 the vehicle in which accused no.1 was transported was a matador  van, according to PW.1 he was merely driving a tempo.  Appellant no.1 was  unconscious who made a statement in regard to the time of manner of  occurrence and the name of the assailants is not known.  Why such a  statement had to be recorded has also not been disclosed.  PW.22 must have  examined the accused no.1 only for a few minutes.  He might have given  only the first aid.         How he could prove the entries made in the general register has not  been disclosed.         The time factor taking into consideration the findings of the learned  Trial Judge would be a relevant piece of evidence.  According to the  prosecution the occurrence took place  at about 10.30 A.M.  It must have  started round about 9.30 A.M.  The manner in which the occurrence took  place at three different places goes to show that it must have taken some  time.  Possibility of the appellant no.1 sustaining a stab injury at the instance  of the prosecution witnesses or others is not clear.  Prosecution, at least, has  come out with some explanation as to how he suffered a stab injury.  On the  other hand, the appellants had not offered any explanation whatsoever.  It is  unbelievable that in a situation of this nature, particularly when an accused  had suffered a grievous injury for which he was allegedly required to remain  in hospital for more than 2 months, would not be reported to the police.   PW.22 although stated that he had reported the matter to the police; no

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attempt was made to obtain production of the said document.  The copy of  the said report had also not been produced by PW.22.         Accused no.1 had not been arrested.  If he was undergoing treatment  at the hospital for such a long time, he himself could have lodged a first  information report.  The other villagers also could have done the same.   Sustenance of the injury at the hands of the prosecution witnesses in  ordinary course should have been disclosed by the Panch witnesses.   Investigating Officer in his deposition stated that he came to learn about the  said injury in the course of his investigation only on 16.12.1994.  He had not  carried out any investigation in relation thereto. Presumably he did not feel  any necessity therefor.  The learned Sessions Judge made a caustic remark   thereabout.  Performance of statutory duties of the Investigating Officer  making investigation  properly or not may be a subject matter of comment  but, in our opinion, the High Court cannot be said to have committed any  mistake in not getting swayed by the said fact alone.

       If the defence story in regard to sufferance of injury by accused no.1  at 9.30 A.M. is not believed, much of the reasonings adopted by the learned  Sessions Judge to record a judgment of acquittal in favour of all the accused  persons become unsustainable.  The manner in which the deceased met her  death would show that she had been brutally assaulted by a large number of  persons.  She was tied with a wooden pole and not only she had been  assaulted all over her body, an attempt was made even to hang her by using  her saree.           The investigation started without any delay.  Statements of a large  number of witnesses were recorded on 13.12.1994 itself.  Witnesses turned  hostile.  The same by itself would not negate the prosecution case.  The very  fact that the villagers in a case of this nature had turned hostile would, on the  other hand, show that there was a ring of truth in the prosecution case.

       It is in the aforementioned backdrop, the High Court opined :-

"38. It is no doubt true that except PWs.25 to 28,  all other eyewitnesses have turned hostile.  But  that by itself is no reason to discard the evidence of  PWs.25 to 28.  On the other hand, it would show  that no independent witness from the village is  prepared to come forward to depose against the  accused persons.  If the other witnesses were not  eyewitnesses to the incident, why should the  Investigating Officer record their statement falsely  if they have not stated so.  Be that as it may be.   Merely because the other eyewitnesses examined  by the prosecution have turned hostile and did not  support the prosecution version for the reason best  known to them, that by itself does not corrode  vitality of the prosecution version particularly  when the witnesses who have supported the  prosecution version viz.  PWs. 25 to 28 have  withstood the incisive cross-examination and  pointed out the accused as the perpetrators of the  crime.  There is nothing unusual in a criminal trial  that many a times independent witnesses who do  not want to incur the wrath of the accused will turn  hostile at the trial.  It is the tendency on the part of  the persons to play safe by remaining neutral."     

       The High Court has noticed and in our opinion rightly that although  the prosecution witnesses turned hostile, they made no whisper about the  incident having occurred in the manner as alleged by the appellants.  It is of  some significance that the injuries sustained by PW.25 is not in dispute.  Why the evidence of the injured witnesses was not believed by the learned  Trial Judge is beyond any comprehension.  He was the brother of accused 1  and 2.  He was also a party to the deed of sale.  The High Court had assigned

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cogent and sufficient reasons in relying upon the evidence of PW.25,  particularly, when there are evidences on record to show that he had been  assaulted with material objects.

       Even if, the version of the respondent that accused no.1 suffered  injury at the hands of PW.27 while he was firmly held by the deceased and  PW.26 is believed, the presence of  PWs. 26 and 27 stands accepted.

       We, therefore, are of the opinion that keeping in view the fact that  PW.26 is the sister of the deceased and PWs.27 and 28 were her sons, their  testimonies before the Court cannot be said to be wholly unreliable. [See  Mano v. State of Tamil Nadu, JT 2007 (5) SC 143]  We may also notice that  as per evidence of the Investigating Officer, the accused no.1 when  questioned, declined to tell him anything.  If he was not at the place of  occurrence at the time when the incident had taken place, it was expected  that he would tell his side of the story including the manner in which he had  suffered injuries to the Investigating Officer.  There was absolutely no  reason why he would suppress the fact from the Investigating Officer.  This  clearly goes to show that accused no.1 made all attempts to conceal the  circumstances under which he had sustained injuries on his person.  If in the  aforementioned situation the High Court has believed the prosecution story,  we do not see any infirmity therein, particularly, when no complaint was  made in that behalf by the accused no.1 or by anybody else in their behalf to  the police.   

       Accused no.1 has also not raised any plea of self-defence.   Suggestions given to the prosecution witnesses are self-inconsistent and  wholly contradictory to each other.  They cannot go together.   

       We have been taken through the depositions of PWs. 25 to 28.  We  agree with the inference arrived at by the High Court as regards credibility  of their evidences before the court. There may be some contradictions in the  depositions of the said witnesses but they are minor in nature.  We  cannot   loose  sight of the fact that they deposed in court about 3 = years after the  date of occurrence and, thus, minor variations from their earlier statements  are but natural.           The High Court, thus, in our opinion, in a case of this nature cannot be  said to have committed any error in reversing the judgment of acquittal by  the learned Trial Judge.  The jurisdiction of the High Court albeit is limited  in this behalf,  as would appear from some of the decisions of this Court but  the High Court in our considered view did not exceed its jurisdiction.                  In the facts and circumstances of the case, it was not necessary for the  witnesses to prove the actual role played by each of the appellants.   

       The High Court had given benefit of doubt to four of them. That by  itself is not decisive.  Allegation of overt acts on the part of the appellant  is  evident.   

       In Munivel Vs. State of Tamil Nadu [(2006) 9 SCC 394], this Court  opined :

"36. Section 149 of the Indian Penal Code provides  for vicarious liability. If an offence is committed by  any member of an unlawful assembly in prosecution  of a common object thereof or such as the members of  that assembly knew that the offence to be likely to be  committed in prosecution of that object, every person  who at the time of committing that offence was  member would be guilty of the offence committed.  The common object may be commission of one  offence while there may be likelihood of commission  of yet another offence, the knowledge whereof is  capable of being safely attributable to the members of

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the unlawful assembly. Whether a member of such  unlawful assembly was aware as regard likelihood of  commission of another offence or not would depend  upon the facts and circumstances of each case.  Background of the incident, the motive, the nature of  the assembly, the nature of the arms carried by the  members of the assembly, their common object and  the behaviour of the members soon before, at or after  the actual commission of the crime would be relevant  factors for drawing an inference in that behalf. [See  Rajendra Shantaram Todankar v. State of  Maharashtra].

       In Mohinder Singh & Ors. Vs. State of Punjab [(2006) 10 SCC 418],  this Court opined :- "21. The members of the unlawful assembly can  be held liable under Section 149 IPC, if it is shown  that they knew beforehand that the offence actually  committed was likely to be committed in  prosecution of the common object. It is true that  the common object does not require prior concert  and a common meeting of mind before the attack.  It can develop even on spot but the sharing of such  an object by all the accused must be shown to be in  existence at any time before the actual  occurrence."

       In Kallu alias Masih & Ors. Vs. State of M.P. [(2006) 10 SCC 313],  this Court held :- "8. While deciding an appeal against acquittal, the  power of the Appellate Court is no less than the  power exercised while hearing appeals against  conviction. In both types of appeals, the power  exists to review the entire evidence. However, one  significant difference is that an order of acquittal  will not be interfered with, by an appellate court,  where the judgment of the trial court is based on  evidence and the view taken is reasonable and  plausible. It will not reverse the decision of the  trial court merely because a different view is  possible. The appellate court will also bear in mind  that there is a presumption of innocence in favour  of the accused and the accused is entitled to get the  benefit of any doubt. Further if it decides to  interfere, it should assign reasons for differing with  the decision of the trial court."

       Reliance has been placed by Mr. Girish Ananthamurthy on a recent  decision of this Court in Chandrappa & Ors. Vs. State of Karnataka [2007  (3) SCALE 90].  Therein also it was held :

"42. From the above decisions, in our considered  view, the following general principles regarding  powers of appellate Court while dealing with an  appeal against an order of acquittal emerge; (1) An appellate Court has full power to review,  reappreciate and reconsider the evidence upon  which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no  limitation, restriction or condition on exercise of  such power and an appellate Court on the evidence  before it may reach its own conclusion, both on  questions of fact and of law; (3) Various expressions, such as, ’substantial and  compelling reasons’, ’good and sufficient grounds’,

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’very strong circumstances’, ’distorted conclusions’,  ’glaring mistakes’, etc. are not intended to curtail  extensive powers of an appellate Court in an  appeal against acquittal. Such phraseologies are  more in the nature of ’flourishes of language’ to  emphasize the reluctance of an appellate Court to  interfere with acquittal than to curtail the power of  the Court to review the evidence and to come to its  own conclusion. (4) An appellate Court, however, must bear in  mind that in case of acquittal, there is double  presumption in favour of the accused. Firstly, the  presumption of innocence available to him under  the fundamental principle of criminal  jurisprudence that every person shall be presumed  to be innocent unless he is proved guilty by a  competent court of law. Secondly, the accused  having secured his acquittal, the presumption of  his innocence is further reinforced, reaffirmed and  strengthened by the trial court.  (5) If two reasonable conclusions are possible on  the basis of the evidence on record, the appellate  court should not disturb the finding of acquittal  recorded by the trial court."         For the aforesaid reasons, we do not find any infirmity in the  judgment of the High Court.  The appeal is accordingly dismissed.