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CASE NO.: Appeal (crl.)  609 of 2006

PETITIONER: Chandrappa & Ors

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 29/04/2008

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T NON-REPORTABLE

CRIMINAL APPEAL NO.609/2006

HARJIT SINGH BEDI,J.

1.      The facts leading to the filing of this appeal by way of  special leave are as under: 2.      PW-1 Bhagyavathi, wife of Thimmappa deceased of village  Arebilachi, is the complainant in the case.  Thimmappa was  the son of  Navilapa.  Navilapa had, in addition, five other sons  Devendrappa, Manjappa, Chandrappa, Nagarajappa and  Gadigeshappa and two daughters including Ratnamma PW-2.   Navilapa had about 12 acres of ancestral land and he had  divided the said land equally between himself and his sons  and all were in possession of their respective shares thereafter.  Thimmappa, Devendrappa and Manjappa were residing  separately whereas the other two, Chandrappa and  Gadigeshappa,  were residing in their old family home whereas  Nagarajappa was residing with his father  Navilapa and his  sister Ratnamma.  Thimmappa,  however, acquired about 10  acres of land on his own but his brothers Chandrappa and  Gadigeshappa were demanding a share out of this land as well  and on account of this development, the relationship between  the brothers had become strained.  Chandrappa and  Gadigeshappa also filed a suit seeking a share in the 10 acres  acquired by Thimmappa with the result that the relation  between the brothers was further strained.  At about 4 p.m. on  1.8.1993, Thimmappa told his wife Bhagyavathi that he had  learnt that Chandrappa and Gadigeshappa had gone to the  field to pluck coconuts and that he was going to prevent them  from doing so.  Thimmappa and his brother Devendrappa PW3  then left for the fields on a scooter.  A few minutes later  Rathnamma PW2, sister-in-law of Bhagyavathi PW-1 came to  her house and informed her that she had seen Chandrappa  and Gadigeshappa accompanied by their brother-in-law  Hanumanthappa, Shiva and Siddeshappa along with  Bhoomesha and Manja proceeding towards the field armed  with Choppers and sickles and she apprehended some danger.   Bhagyavathi and Rathnamma then left for the field and as  they reached the outer fencing at about 4.30 p.m., they saw all  the accused as well as Bhoomesha and Manja assaulting  Thimmappa with sickles and choppers.  PW3 Devendrappa  went to the rescue of his brother but he too was assaulted and  having sustained an injury he ran away towards the village.   PWs1 and 2 thereafter entered the garden and saw that  Thimmappa was lying grievously injured near the Samadhi

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adjoining the land.  The accused Siddeshappa and  Hanumanthappa also abused and assaulted the two women.   PW4 Prashanth Kumar, who was attracted to the place,  rushed in with some water which he attempted to put into  Thimmappa’s mouth but he succumbed to his injuries at the  spot.  PW3 Devendrappa was also taken to the Bhadravathi  hospital by PW11 Rudrappa whereas PWs.1,2 and 4 stood  near the dead body.  It was also noticed that the accused while  running away had left behind a sickle and a club near the  dead body.  An FIR was got registered by PW1 Bhagyavathi at  about 11.45 p.m. at the Police Station.  The investigation was  taken over by Inspector M.I. Jameel PW20 who visited the  scene of occurrence on 2nd August 1993  at about 6.30 a.m.  and prepared the inquest report and recorded the statements  of the witnesses and picked up the sickle and club in the  presence of witnesses.  His efforts to trace out the accused  were, however, not successful till the 3rd August 1993 when he  arrested four of them. Accused No.2 was arrested on  10.9.1993. He also visited the Government Hospital  Bhadravathi on the same day and seized the blood stained  clothes of injured PW3 Devendrappa.  Several weapons of  offence were also recovered on the interrogation of the  accused.    On the completion of the investigation, the accused  were charged for offences punishable under sections 143,  147,148,302 and 324 read with 149 of the IPC.                    3.      The prosecution in support of its case relied primarily on  the statements of the four eye witnesses PW1 Bhagyavathi,  wife of the deceased, her sister-in-law PW2 Rathnamma, PW3  Devendrappa an injured witness and brother of the deceased  and of two of the accused, and PW4 Prashanth Kumar son of  PW3, a boy aged 13 years.  Reliance was also placed on certain  pieces of circumstantial evidence.  The prosecution case was  then put to the accused under section 313 of the Cr.P.C. and  in the written statements filed by way of their defence  they  denied the allegations in toto and on the contrary put up a  counter version that Hanumanthappa and Siddeshappa had  not been present at the time of incident and that the other  three accused had been assaulted by Thimmappa deceased,  PW3 Devendrappa and one Manju Nath and that they had  caused injuries to Thimmappa in their self defence.      4.      The trial court held that it was clear from the record that  a dispute existed between Thimmappa and his brothers with  regard to the 10 acres of land and that Thimmappa had in fact  filed three suits seeking an injunction but the said suits had  been dismissed on 3rd April, 1993  itself and as such there was  no injunction in favour of Thimmappa on the day of incident.   The court also observed that a Partition Suit which too had  been filed, had been compromised after the murder on 5th  November 1993 and that no partition had taken place before  the aforesaid date and the field in which the incident  happened stood in the name of Navilappa and that they had  started a plantation on the said land which was being  managed by them.  The court also noted that it appeared that  in the early hours of 1st August 1993 Navilappa had filed a  complaint before the police alleging that his sons Thimmappa  deceased and PW3 Devendrappa were obstructing him from  entering his land and it therefore appeared that the accused  Chandrappa and Gadigeshappa and son Nagarajappa had  joined hands to defend their possession when the deceased  Thimmappa and Devendrappa PW3 were creating an  obstruction.  The court then examined the statements of the  witnesses and observed that the FIR did not show the  presence of PW4 Prashanth Kumar or the nature of the  weapons in the hands of the accused and the story that the  accused had snatched a Mangalya with a golden chain from

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PW1 Bhagyavathi was also an exaggeration.  The court further  observed that the police itself appeared to have discarded the  presence of  Bhoomesha and Manja and had not filed a  charge-sheet against them which supported the view that an  attempt had been made to rope in innocent people.  The court  also observed that the fact that the witnesses who were  allegedly 30 meters away from the field of the spot had stood  still watching "just like a film shooting" or like "Dumb statues"  and this was also circumstance against the prosecution.  The  court further observed that there was a delay in the lodging of  the FIR which had not been adequately explained away.   The  court then went into the medical evidence and opined that  PW15 Dr. Nanda Koti, who had treated the accused and PW3  Devendrappa for their injuries had not informed the police as  to what had transpired and that PW3 had mentioned only two  of the accused i.e. Chandrappa and Gadigeshappa as having  been present.  The court finally concluded that it was the  deceased and injured witnesses who were the aggressors, the  moreso as the prosecution had not been able to explain the  injuries on the accused.  For arriving at this conclusion, the  trial court relied on the evidence of PW15 Dr. Nanda Koti who  had examined  three of the accused i.e. Chandrappa, Shiva  and Gadigeshappa for their injuries at the Bhadravathi  Government Hospital at 5.20 p.m. on 1st August 1993 with a   history of assault caused on deceased Thimmappa, PW3  Devendrappa and one Manjappa and had detected one incised  injury each on the person of Gadigeshappa  and Shiva, both  injuries which could have been caused with a sickle or a  chopper.  PW15 also examined PW3 at 6.30 p.m. the same day  who had appeared with a history of assault by Chandrappa  and Gadigeshappa.  The court nevertheless relying on several  judgments held that though the non-explanation of minor  injuries on the person of the accused could not be said to be  fatal to the prosecution story but such an omission did create  a doubt as to its veracity.  The court finally hinted that it  appeared that the defence version was more probable and  prefaced  its conclusion by observing: "In view of the discussions made by me in  the above said paras, I find there is an  inordinate delay in lodging the complaint.   That delay is not satisfactorily explained.   The witnesses chosen by the prosecution  are only the interested inimical witnesses.   In view of the material discrepancies in  between the evidence of PW’s 1 to 4 their  presence at the time of the alleged mutual  fight or galata is itself rather doubtful.  In  all probability, PWs.1,2, and 4 must have  come to the spot only after coming to know  of the assault not prior to that and the  person involved in the fight PW3 somehow  escaped from the spot.  The whole of the  evidence of PWs 1 to 4 appears to be bit  unnatural and unbelievable one in the  ordinary course of time.  It is an over  exaggerated evidence given by them.   Admittedly, there is a property dispute.  As  on the date of this alleged incident, the land  "Pavadi Hondada Thota" was standing in the  name of Navilappa, the father of deceased  Thimmappa as well as accused Nos. 1 and  4.  It is accused Nos. 1 and 4 who are  managing the said property.  It has also  come in the evidence that the suit filed by  deceased seeking injunction pertaining to

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the said land was dismissed very well prior  to this alleged incident.  So, as on the date  of incident, there was no injunction nor  deceased was in possession of the said  property including PW3.  But still they went  there to assert their right. There are two  versions.  According to PW3 it is he and his  brother deceased Thimmappa, who first  went to the said land.  Thereafter 10  minutes, accused came to the said land.   But on the other hand, the investigation  reveals through PWs 1 and 2’s evidence that  it is the accused, who first went to the said  land.  When they intended to pluck the  coconuts, these PW3 and deceased went to  the spot there arose galata."     

and finally concluded as under: "I have closely scrutinized the  evidence of these PWs 1 to 4.  But I find  their evidence is not trustworthy.  The  other part of the evidence of other  witnesses is very much formal and  procedural one.  The two other eye  witnesses PWs 6 and 7 have turned  hostile.  So, viewing from any angel, I find  the evidence now before me is not just  and sufficient to connect the accused  with the alleged offence punishable under  section 143,147,148,324,302 and 149 of  the IPC.  I find the prosecution has failed  to prove that the accused being the  members of unlawful assembly being   armed with deadly weapons in  prosecution of their common object  caused rioting on that day and assaulted  Thimmappa as well as PW3 with the said  weapons, which has resulted in the death  of Thimmappa and injuries to PW3.  It  may amount to repetition if I say that the  evidence now before is not just and  sufficient to connect the accused with the  said charge.  PW2 has categorically stated  that when herself and PW1 came to the  said spot on that day, they saw PW3  already left the place.  He had gone to his  house.  That means to say these PWs 1, 2  and 4 have not actually seen the accused  assaulting either Thimmappa or PW3.   This evidence of PW2 cuts at the root of  the prosecution case.  As there arises a  reasonable doubt in the case of  prosecution, the accused are entitled to  have the benefit of the same.  Prosecution  has failed to establish that these accused  are the real aggressors or they are  directly responsible causing the said  incident.  On the other hand, defence of  the accused is substantiated on the facts  and material now placed before the court  that in all probability the deceased and  PW3 must have taken the law into their  own hands at the inception and in that  mutual fight both sides sustained

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injuries.  Unfortunately, Thimmappa  succumbed to the injuries.  But who is  responsible for his death, who is  responsible for causing injury to PW3 is  not specifically established by the  prosecution.  Hence, with these reasons, I  answer point Nos. 1 to 3 in the negative  and proceed to pass the following:"

5.              The trial court accordingly acquitted the accused.   The matter was taken to the High Court by way of an appeal  at the instance of the State of Karnataka.  The High Court  in the course of its judgment upset the order of the trial  Judge  by observing that the fact that Thimmappa deceased  had met a homicidal death had been proved from the  medical evidence and then went to the question as who was  responsible thereof.  The court examined the evidence of the  eye witnesses and found that they corroborated each other  in material particulars, the  moreso as the presence of PW3  Devendrappa had also been admitted by the defence.  The  court also held that the eye witness testimony had a ring of  truth around it and the injuries Ex.P27 to P29 confirmed  the presence of the accused in the incident and also the fact  that only one of the accused had sustained a simple injury,  no obligation rested on the prosecution to explain it.  The  court also observed (in the facts of the case) that the delay  in lodging of the FIR was not fatal to the prosecution story  as  the complaint had been lodged by PW1 between 10 and  11 p.m. and the formal FIR had been registered at about  11.45 p.m.   The plea of the accused that the case would fall  under section 304 IPC was also repelled as the manner of  the assault did not justify such a conclusion.  The court  accordingly held as under:                 "To sum up, we hold that the trial court’s  judgment and order of acquittal cannot be  sustained as it is contrary to the evidence  on record and unreasonable as well as  perverse and bring opposed to well  established principles of law with regard to  appreciation of evidence and as such, the  same is liable to be interfered with.  We,  therefore, convict the accused persons for  the offences punishable under Sections  143,147,148,302 read with 149 and 324  read with 149 of the IPC."

     and in doing so sentenced them to imprisonment for life  under section302/149 IPC with no separate sentence for  the other offences.  It is in this circumstance that the  present appeal by way of special leave has come up before  us.         6.      Mr. Basava Prabhu S.Patil, the learned counsel for  the appellants has pointed out that certain facts had been  admitted by both parties and that the matter would have  to be examined in this background.  He has pointed out  that both the complainant and the accused party were  very closely related to each other, the five accused being  the brothers of the deceased and the eye witnesses being  the wife and nephew of the deceased and of the accused.   It has also been pointed out that the fact that a dispute  with regard to the land had also found its way to the civil  and criminal Courts was clear from the record.  It has also  been pleaded that the accused had spelt out a counter  version and had pointed out in their statement under  section 313 of the Cr.P.C. inasmuch as three of them i.e.

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Hanumanthappa, Siddeshappa had not been present  whereas the other three have in their statements admitted  their  presence and stated that the land in which the  incident had happened was the ancestral property of the  family with the Revenue documents in the name of  Navilapa their father and that a complaint had also been  filed by Navilapa against Thimmappa as to his attempts to  encroach upon this property.         7.      In this background, Mr. Patil has argued that it  appeared that deceased and his companions were indeed  the aggressors and that the incident had happened when  the accused were exercising their right of self defence to  protect their person and property.  It has further been  pleaded that the witnesses were discrepant as to the  actual manner of the assault and as such no credence  could be attached to their testimony.  It has finally been  pleaded that there was an inordinate delay in the  registration of the FIR and that this delay had been  utilized to create four eye witnesses and a false story  inculpating the accused.  The State counsel has however  supported the judgment of the High Court.         8.      It is true that prima facie there appears to be some  delay in the lodging of the FIR at 10.45 p.m. in the light of  the fact that incident had happened at 4.30 p.m. on 1st  August 1993.  However, as three of the accused have put  up a counter version,  the effect of the delay in the FIR is  somewhat reduced.   We are also of the opinion that the  delay in the lodging of the FIR has been substantially  explained as the incident had happened in a remote village  some distance from the Police Station and as PW3 had  also sustained a serious injury, the first anxiety of the  family would have been to look after him the more so as all  the brothers of the deceased and PW3 were themselves the  assailants and there was nobody else in the family to have  taken the injured PW3 to the hospital.  It is also significant  that the FIR could not have been recorded earlier as the  entire family was involved either on one side or the other  and it had ultimately been left to a hapless widow,  completely isolated from the rest of the family,  to lodge  the FIR.  It is in this background we find that a delay of a  couple of hours cannot be said to be unreasonable.         9.      It has been contended by the learned counsel for  the appellants that the discrepancies between the  statements of the eye witnesses inter-se would go to show  that they had not seen the incident and no reliance could  thus be placed on their testimony.  It has been pointed out  that their statements were discrepant as to the actual  manner of assault and as to the injuries caused by each of  the accused to the deceased and to PW3 the injured eye  witness.  We are of the opinion that in such matters it  would be unreasonable to expect a witness to give a  picture perfect report of the injuries caused by each  witness to the deceased or the injured more particularly  where it has been proved on record that the injuries had  been caused by several accused armed with different kinds  of weapons.  We also find that with the passage of time the  memory of an eye witness tends to dim and it is perhaps  difficult for a witness to recall events with precision.  We  have gone through the record and find that the evidence  had been recorded more than 5 years after the incident  and if the memory had partly failed the eye witnesses and  if they had not been able to given an exact description of  the injuries, it would not detract from the substratum of  their evidence.  It is however very significant that PW2 is  the sister of the 5 appellants, the deceased and PW3

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Devendrappa and in the dispute between the brothers she  had continued to reside with her father Navilappa who was  residing with the appellants, but  she has nevertheless still  supported the prosecution.    We are of the opinion that in  normal circumstances she would not have given evidence  against the appellants but she has come forth as an eye  witness and supported the prosecution in all material  particulars.         10.     Much emphasis has been however laid by Mr. Patil,  on the defence version that Thimmappa, Devendrappa and  one Manjappa had first made an attack on three of the  appellants and that the appellants had thereafter caused  injuries in their self defence leading to the death of  Thimmappa and some injuries to Devendrappa.  We find  that this matter had been discussed in extenso by the  High Court in its judgment and the version of the  appellants had been rightly rejected.  Some emphasis has  also been laid by the learned counsel on the fact that as  per injury certificates Ex.P-27 to P-29 that three accused  had suffered injuries in the incident.  It is however clear  from a perusal of these documents that out of the three,  only one of the accused had sustained a simple injury on  the hand and the other two had no discernible injury  except a complaint of a backache in the case of Shiva.   On  the other hand, we have the evidence of PW15 Dr. Nanda  Koti who had examined Devendrappa on the evening of the  day of incident with a history of attack with a sickle and  club and she had found the following 5 injuries on his  person: i)      lacerated would over occipital region  3 cms X 1 cm bleeding.

ii)     Stab injury over right arm, lower  and posterior aspect 1 cm X = cm  covered with fresh blood clots.

iii)    Incised wound over web space  between right thumb and index  finger 3 cm X 1cm X = covered with  fresh blood clots.

iv)     Contusion over middle of a shin of  left leg 6 cm X 4 cm red.

v)      Contusion with club impression over  left side of the chest 6 cms X 2 cms  red.   

       11.     It is also well settled that the prosecution is not  called upon to explain each and every injury on the person  of an accused and in this view of the matter the non- explanation of an insignificant injury on the person of only  one does not dislodge the prosecution story.                 12.     It has also been contended that no case under  section 302 of the IPC had been made out and if at all the  accused were liable to be convicted under section 304  Part-II of the IPC.  We find no merit in this plea.  It is clear  from the record that the accused had come to the place of  incident fully armed with the object to sort things out with  the deceased as he was creating problems for them and  their father over the land in question and to remove him  from the scene once and for all.  Furthermore, in the light  of the serious injuries caused to the deceased  and to PW3

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Devendrappa the matter does not fall within the ambit of  section 304 Part II of the IPC.         13.     It has finally been pleaded by Mr. Patil that  Siddeshappa, accused No.5 was a juvenile on the date of  incident and ought to have been dealt with under that  procedure.  We, however, find no evidence to suggest that  the aforesaid accused was indeed a juvenile and the  counsel’s mere ipse-dixit at this belated stage cannot be  accepted.         14.     We thus find no merit in the appeal.  Dismissed.