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CASE NO.: Appeal (crl.)  851 of 2006

PETITIONER: Venkategowda & Ors.

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 06/11/2006

BENCH: A. K. Mathur & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

Lokeshwar Singh Panta, J.

       This appeal is preferred by Venkategowda (A-1),  Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4)   Govindaiah (A-5), Venkataramanaiah (A-6), Rajashekaraiah (A- 7), Lakkegowda (A-8), Rama (A-9), Shivanna (A-10), Mahadeva  (A-11), Ganghahanumaiah (A-12), Singraiah (A-13), Annaiah  (A-14), Bettegowda (A-15), Chikkanna (A-16), Govindaiah (A- 17), Rama (A-18), appellants herein, questioning the  correctness of the final judgment and order dated 7.3.2006  made in Criminal Appeal No. 161/2000 on the file of the High  Court of Karnataka at Bangalore.  The appellants took their  trial before the Additional District and Sessions Judge,  Bangalore Rural District, Bangalore, in S.C. No. 97 of 1989 for  offences under Sections 143, 147, 148, 324, 302 read with  Section 149 of the Indian Penal Code (for short "the IPC") on  the allegations that all of them formed themselves into an  unlawful assembly to cause the death of Venkatesh, the  deceased herein, and in prosecution of the same, they  murdered the deceased and caused injuries to Rajanna (P.W.1)  and Kenchaiah (P.W.3).           The trial court, after examining the prosecution evidence,  observed that there was delay in lodging the FIR and noticing  the contradictions and improvements between the ocular  evidence of Rajanna (P.W.1), Moodalagiri (P.W.2), Kenchaiah  (P.W.-3) and Lakshmana (P.W. 10) came to the conclusion that  the prosecution had not established its case against the  accused and consequently acquitted all the accused persons  vide judgment and order dated 15.04.1999.         In an appeal filed against the said judgment of acquittal  by the State before the High Court of Karnataka, the High  Court, accepting the evidence of one injured witness and two  eye-witnesses coupled with the medical evidence of the  doctors, found all the appellants guilty of the offences under  Sections 143, 148 and 326 IPC read with Section 149 IPC and  sentenced each one of the appellants to undergo imprisonment  for a period of five years and to pay a fine of Rs.10,000/- each  and in default of payment of fine to undergo further rigorous  imprisonment for one year.  Out of the amount of fine, if  realized, a sum of Rs.20,000/- each was ordered to be paid to  the injured witnesses P.W.1 and P.W.3 and the balance  amount of fine to Venkatappa (P.W.7), the father or the legal  heirs of the deceased Venkatesh as compensation.   No  separate sentence, however, was awarded for the offences  under Sections 143 and 148 of IPC.

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       Feeling aggrieved and dissatisfied against the judgment  and order of the High Court, the appellants have filed the  present appeal by way of special leave challenging their  conviction and sentence imposed on them by the High Court.         Briefly stated the facts of the case are that the appellants  are residents of Village Gangonahalli.  The deceased  Venkatesh, Rajanna (P.W.1), Kenchaiah (P.W. 3), Venkatappa  (P.W.7) and Lakshmana (P.W.10) are residents of Village  Basvanapalya.  The distance between the said two villages is  about 1.5 to 2 kilometres.  Venketagowda (A-1) is the father- in-law of complainant Rajanna (P.W.1) and Venkatappa  (P.W.7) is the father of the deceased.           The occurrence, in question, took place on 04.11.1986 at  about 6.30 p.m. when Rajanna (P.W.1), Kenchaiah (P.W.3),  Lakshmana (P.W. 10) and the deceased Venkatesh went to the  Co-operative Society at Chowdanapalya and collected food  grains from the ration shop.  When they were returning to  their village, they found Venkategowda (A-1) standing in front  of his house armed with a chopper.  A-1 had picked up a  quarrel with the deceased Venkatesh, Rajanna (P.W.1),  Kenchaiah (P.W. 3) and Lakshmana (P.W. 10) on the pretext as  to why they had worked in the garden of Thimmappa Gowda  inspite of they being asked not to do any job of Thimmappa  Gowda. Govindappa (A-4) assaulted Rajanna (P.W.1) on his  right hand with a spear whereas Govindaiah (A-5) assaulted  him with a club on his back.  Shivanna (A-3) assaulted the  deceased Venkatesh with a club on his shoulder and  Venkategowda (A-1) assaulted the deceased with a chopper on  the left thigh whereas Muddegowda(A-2) assaulted the  deceased with a chopper on the left arm and left ear.  As a  result of injuries, the deceased Venkatesh fell down on the  ground.  After commission of the offences, the appellants tried  to assault Lakshmana (P.W.10) who escaped from their  clutches and took shelter in the house of P.W. 12 and P.W. 14.   Rajanna (P.W.1) and Kenchaiah (P.W. 3) were persuaded by  Moodalagiri (P.W. 2) to go to their village leaving the deceased  Venkatesh at the scene of occurrence in an injured condition.           On the following day, i.e. 5.11.1986, at about 10.00 a.m.  Rajanna (P.W.1) went to Kudur Police Station and got the  complaint (Exhibit P-1) written by a scribe near the Kudur  Police Station.  K.B. Jayaramappa (P.W. 20) who, at the  relevant time, was the Station House Officer of the Police  Station, registered a case Crime No. 177/1986 vide FIR  (Exhibit P-30) against the appellants under  Sections 143,  147, 148, 149 and 324 of the IPC.  P.W.20 K.B. Jayaramappa  went to the scene of occurrence at about 12.00 noon.  He  found Venkatesh lying with injuries on the footpath between  the houses of Venkategowda (A-1) and Ganghahanumaiah (A- 12).  The Investigating Officer prepared the spot mahazar and  searched the houses of the appellants to recover the weapons  of offences but no recovery was effected therefrom.         Rajanna (P.W.1) and Kenchaiah (P.W.3) were medically  examined by Dr. D. Rajanna (P.W.9) on 05.11.1986 at about  11.00 a.m. and he found simple injuries on their persons.  On  the same day, injured Venkatesh was examined by the Medical  Officer of Nagavalli, who referred him to Tumkar Hospital  where Dr. C.R. Rangaraju (P.W. 4), the Assistant Surgeon,  medically examined him.  Dr. C.R. Rangaraju (P.W. 4) found  three injuries on the person of Venkatesh out of which  compound fracture of the left femur lower end was grievous in  nature while other injuries were simple in nature.  The victim  was shifted after two days to Victoria Hospital, Bangalore.  Dr.  Rangarajan (P.W.18) medically examined the victim at Victoria  Hospital.  Venkatesh died at Victoria Hospital on 04.02.1987  at 6.00 a.m.  Dr. S.B. Patil (P.W.13) conducted post-mortem

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on the dead-body of the deceased Venkatesh on 05.02.1987.   According to the opinion of Dr. S.B. Patil (P.W.13), the cause of  death of Venkatesh was due to respiratory failure as a result of  consolidation of lungs secondary to fracture of thigh bone.   The factum of death was intimated to the Police Station.  On  04.02.1987, K.N. Mariyappa, who at the relevant time was  working as Head Constable in Kudur Police Station, prepared  a supplementary F.I.R. at 9.00 p.m. and converted the offence  from Section 324, IPC, to Section 302, IPC, and thereafter FIR  was sent to the Judicial Magistrate and other higher officials.   On completion of the investigation, charge sheet was laid by  the Police against the appellants.           The prosecution, in support of its case, examined as  many as 20 witnesses and marked 32 exhibits.  The  appellants in their statements recorded under Section 313 of  the Code of Criminal Procedure pleaded not guilty to the  charges and claimed that they have been falsely implicated in  the case because of political rivalry and animosity between the  complainant party and the accused party.         The trial court acquitted the accused of all the charges.   On appeal by the State of Karnataka, the appellants were  convicted and sentenced as aforesaid.  Hence, this appeal.         On behalf of the appellants, Shri Dinesh Dwivedi, learned  senior counsel, contended that the trial court, on a proper  appreciation of the evidence of injured witnesses, namely,  Rajanna (P.W.1), Kenchaiah (P.W. 3) and the eyewitness  Moodalagiri (P.W.2) has rightly come to the conclusion that  because of prior enmity the appellants were falsely implicated  in the case after due deliberation.  Learned counsel contended  that the FIR in this case had come into existence after due  deliberation and there were discrepancies and improvements  in the versions of Rajanna (P.W.1), Moodalagiri (P.W.2), and  Kenchaiah (P.W.3),  which were noticed by the trial court  and  these were found to be sufficient to doubt the correctness of  the prosecution case.  Therefore, according to the learned  counsel, the trial court was justified in acquitting the  appellants.  He also contended that the High Court, on the  same set of facts and on re-appreciation of the evidence  without properly noticing the contradictions in the ocular  evidence of the injured witnesses and one eyewitness, has  erroneously convicted the appellants on flimsy grounds.         Shri Sanjay R. Hegde, the learned counsel for the  respondent-State, however, supported the judgment of the  High Court concerning the conviction of Venkategowda (A-1),  Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4) and  Govindaiah (A-5) by contending that there was no reason why  the evidence of the injured witnesses and the eyewitness  corroborated by the medical evidence should be rejected.  It  was his argument that the High Court, as a first Court of  Appeal, has a duty to reconsider the evidence and correct the  error committed by the trial court.  He, however, fairly and in  our view, rightly stated that the conviction of  Venkataramanaiah (A-6), Rajashekaraiah (A-7), Lakkegowda  (A-8), Rama (A-9), Shivanna (A-10), Mahadeva (A-11),  Ganghahanumaiah (A-12), Singraiah (A-13), Annaiah (A-14),  Bettegowda (A-15), Chikkanna (A-16), Govindaiah (A-17) and  Rama (A-18) by the High Court cannot be justified for the lack  of satisfactory and cogent evidence connecting them with the  commission of the offences.          We have independently scrutinized the evidence of the  material witnesses in the teeth of the rival contentions of the  parties.  On reprisal of the evidence of the injured witnesses  Rajanna (P.W.1) and Kenchaiah (P.W.3) as also the evidence of   eyewitness Moodalagiri (P.W.2), it is clear that the evidence on  record fully establishes the case of the prosecution against

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Venkategowda (A-1), Muddegowda (A-2), Shivanna (A-3),  Govindappa (A-4) and Govindaiah (A-5) although, there were  certain discrepancies in the testimony of the injured witnesses  and eyewitness in regard to the weapons of offence  individually used by (A-1), (A-2), (A-3), (A-4) and (A-5) for  inflicting  injuries on the person of each of the injured  witnesses (P.W.1) and (P.W.3) as also on the person of the  deceased Venkatesh.  The discrepancies, as pointed out by the  learned counsel for the appellants, are minor and  insignificant.   The witnesses were examined in the court after  a gap of almost ten years.  The injured witnesses were cross- examined not on the very same day when their examinations- in-chief was conducted, but their evidence was recorded after  a long gap of time.  On examination of the evidence of Rajanna  (P.W.1), we find that he was examined-in-chief on 26.11.1996,  but his cross-examination continued and he was cross- examined again on 27.11.1997.  Likewise, Kenchaiah (P.W.3)  was examined-in-chief on 28.11.1996, but his cross- examination took place on 28.4.1997.  Further evidence on  record would show that the injured witnesses had been  subjected to searching lengthy cross-examination and  questions numbering more than hundred were being put to  each witness.  In such type of cross-examination by the  defence, some improvements, contradictions, and omissions  are bound to occur in their evidence, but they are not of  serious nature and they cannot be treated as vital and  significant contradictions so as to disbelieve and discard the  substratum of the prosecution case.  The evidence of the  injured witnesses Rajanna (P.W.1), Kenchaiah (P.W.3) and  eyewitness Moodalagiri (P.W.2) has been rightly appreciated  and accepted by the High Court and we find no cogent and  sound reason to differ from the reasoning and finding recorded  by the High Court against Venkategowda (A-1), Muddegowda  (A-2), Shivanna (A-3), Govindappa (A-4) and Govindaiah (A-5)  holding them guilty of the offences.  There is no substance in  the argument of the learned senior counsel for the appellants  that the evidence of Rajanna (P.W.1), Moodalagiri (P.W.2) and  Kenchaiah (P.W.3) should be levelled as the evidence of the  interested witnesses. There was no basis for Rajanna (P.W.1),  Moodalagiri (P.W.2) and Kenchaiah (P.W.3) to falsely implicate  the appellants Venkategowda (A-1), Muddegowda (A-2),  Shivanna (A-3), Govindappa (A-4) and Govindaiah (A-5) in the  present case.  On the other hand, we find that the evidence of  the injured and eyewitnesses is quite natural, convincing and  trust-worthy.  The learned senior counsel for the appellants  then contended that there is an inordinate delay in lodging the  complaint by Rajanna (P.W. 1) and registering the FIR in the  Police Station.  In support of this submission, reliance is  placed on Peddireddy Subbareddi And Others v.  State of  Andhra Pradesh [AIR 1991 SC 1356] and Amar Singh v.  Balwinder Singh And Others   [(2003) 2 SCC 518].  We have  examined the ratio of the said decisions.           In Peddireddy’s case (Supra), this Court, on the scrutiny  of the evidence, found that the testimony of sole witness was  clouded with strong suspicion and as the FIR was lodged by a  delay of 15 hours, and in such circumstances, the false  implication of the accused in the said case could not be  completely ruled out.           In Amar Singh’s case (supra), it is held that there is no  hard and fast rule that any delay in lodging the FIR would  automatically render the prosecution case doubtful.  Further,  it is observed that it necessarily depends upon facts and  circumstances of each case whether there has been any such  delay in lodging the FIR which may cast doubt about the  veracity of the prosecution case and  for this, a host of

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circumstances like the condition of the first informant, the   nature of injuries sustained, the number of victims, the efforts  made  to provide medical aid to them, the distance of the  hospital and  the police station etc. have to be taken into  consideration and that there is no mathematical formula by  which an inference may be drawn either way merely on  account of delay in lodging of the FIR.         After perusing the entire evidence on record in the  present case, as noticed above, the incident took place on  04.11.1986 at about 6.30 p.m. in front of the house of  Venkategowda (A-1) and the manner in which Venkategowda  (A-1), Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4)  and Govindaiah (A-5) had assaulted the injured witnesses and  the deceased, the witnesses were frightened and they fled  away from the scene of occurrence to save their lives,  therefore, they did not lodge the complaint with the police on  the same day.  The injured witnesses have explained the delay  in lodging the FIR and it was on the following day of the  occurrence that Rajanna (P.W.1) along with Venkatappa  (P.W.7) went to the Kudur Police Station, which is about 15  kms. from the place of occurrence and made the complaint to  the police official.  Having regard to the injuries inflicted on  the body of the deceased as also on the person of the injured  witnesses, it was but natural for Rajanna (P.W.1) and other  witnesses not to venture to go straight to the Police Station  and lodge the complaint with the police on the day of the  occurrence and the fact that the witnesses left the deceased  Venkatesh on the scene of occurrence itself would indicate the  gravity of the situation.  It is settled law that the delay in  lodging the FIR will not be fatal in every case if the ocular  version of the eyewitnesses is reliable and trustworthy.  The  prosecution has explained the reason of the delay and as the  testimony of the injured witnesses was found credible by the  High Court, the delay in lodging of the complaint and FIR will  not be fatal to the prosecution case.  The sequence of the  events and the manner in which FIR has been lodged have  been rightly taken into consideration by the High Court and  we do not find any infirmity and perversity in the findings of  the High Court accepting the explanation of the prosecution   for lodging of F.I.R. on the next day of the incident.  The  submission of the learned senior counsel for the appellants  that the prosecution case should be discarded and disbelieved  on the ground of delay in lodging the FIR, does not merit  acceptance.  There is no material on record from which an  inference can be drawn that the material witnesses have  implicated appellants Venkategowda (A-1), Muddegowda (A-2),  Shivanna (A-3), Govindappa (A-4) and Govindaiah (A-5) in a  false case.  However, the evidence proved does not permit any  inference to be drawn regarding participation of other  appellants in the commission of the offences, therefore, the  conviction of Venkataramanaiah (A-6), Rajashekaraiah (A-7),  Lakkegowda (A-8), Rama (A-9), Shivanna (A-10), Mahadeva (A- 11), Ganghahanumaiah (A-12), Singraiah (A-13), Annaiah (A- 14), Bettegowda (A-15), Chikkanna (A-16), Govindaiah (A-17)  and Rama (A-18), as recorded by the High Court, is simply  based on the inference drawn regarding their participation and  existence of common intention on the basis of conjectures and  surmises cannot be sustained.  The established facts,  however, conclusively prove the complicity of Venkategowda  (A-1), Muddegowda (A-2), Shivanna(A-3), Govindappa (A-4)  and Govindaiah (A-5) in commission of the aforesaid offences.         Having given our careful consideration to the  submissions made by the learned counsel for the parties, we  are of the opinion that the judgment and order of the High  Court suffers from no perversity and illegality to warrant our

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interference to the extent of convicting Venkategowda (A-1),  Muddegowda (A-2), Shivanna(A-3), Govindappa (A-4) and  Govindaiah (A-5) for offences under Section 326 read with  Section 149 IPC and Sections 143 and 148 of the IPC.   However, the conviction and sentences imposed upon  Venkataramanaiah (A-6), Rajashekaraiah (A-7), Lakkegowda  (A-8), Rama (A-9), Shivanna (A-10), Mahadeva (A-11),  Ganghahanumaiah (A-12), Singraiah (A-13), Annaiah (A-14),  Bettegowda (A-15), Chikkanna (A-16), Govindaiah (A-17),  Rama (A-18) are set aside and they are acquitted of the  charges levelled against them.           The residuary question is whether the sentence as  imposed by the High Court upon Venkategowda (A-1),  Muddegowda (A-2), Shivanna (A-3), Govindappa (A-4) and  Govindaiah (A-5) is harsh.  Considering the background facts,  namely, the incident took place on 4.11.1986, the nature of  the injuries sustained by the deceased and the witnesses, the  fact that Venkategowda (A-1), Muddegowda (A-2), Shivanna(A- 3), Govindappa (A-4) and Govindaiah (A-5) have suffered  physically, mentally and financially in prosecuting the legal  battle in different courts for the past about 20 years, while  maintaining their conviction under Section 326, IPC, read with  Section 149, IPC, it might be appropriate to reduce the  sentence of Venkategowda (A-1), Muddegowda (A-2), Shivanna  (A-3), Govindappa (A-4) and Govindaiah (A-5) from five years  rigorous imprisonment to one year rigorous imprisonment   each and also to pay a fine of Rs. 5,000/- each instead of Rs.  10,000/- each as imposed by the High Court.  In default of  payment of fine, Venkategowda (A-1), Muddegowda (A-2),  Shivanna(A-3), Govindappa (A-4) and Govindaiah (A-5) each  shall further undergo 3 months rigorous imprisonment.  Out  of the amount of fine, if realized, a sum of Rs. 5,000/- each  shall be paid to Rajanna (P.W.1) and Kenchaiah (P.W.3)  injured witnesses and a sum of Rs.10,000/- shall be paid as  compensation to Venkatappa (P.W.7) - the father or the legal  heirs of the deceased Venkatesh.           The appeal is partly allowed to the extent indicated  above. Venkataramanaiah (A-6), Rajashekaraiah (A-7),  Lakkegowda (A-8), Rama (A-9), Shivanna (A-10), Mahadeva (A- 11), Ganghahanumaiah (A-12), Singraiah (A-13), Annaiah (A- 14), Bettegowda (A-15), Chikkanna (A-16), Govindaiah (A-17),  Rama (A-18) are stated to be in jail undergoing imprisonment  in this case.  They shall be released forthwith by the jail  authorities, if not required in any other case.