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CASE NO.: Appeal (crl.)  298 of 2000

PETITIONER: Mallanna and Ors

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 20/\020K/07

BENCH: B.N. AGRAWAL & P.P.NAOLEKAR

JUDGMENT: JUDGMENT

WITH CRIMINAL APPEAL NO. 1159 OF 2006

B.N. AGRAWAL, J.

1.      Sixteen accused persons were tried and by judgment rendered  by the Trial Court all of them were acquitted of the charge under  Section 302/149 of the Indian Penal Code [\021IPC\022 for short]. Against  the order of acquittal the State of Karnataka filed an appeal before  the High Court, during the pendency of which, Basavara Jappagouda  [A-4], who was respondent no. 4 in that appeal, died, as such the  appeal in relation to him abated.  The High Court considered cases of  the remaining fifteen accused persons and out of them confirmed the  order of acquittal in relation to Mallinathreddy [A-8], Basureddappa  [A-10], Channareddy [A-11], Sanna Chennareddy [A-12]. So far as  the remaining eleven accused persons viz., Mallanna [A-1], Lalesa [A- 2], Bhimangouda [A-3], Mahboobsab [A-5],  Buddesab [A-6],  Khasimsa [A-7], Appasab [A-9], Sharnappa [A-13], Bapugouda [A-14],  Chandappa [A-15] and Rajsekhar [A-16] are concerned, High Court  reversed the order of acquittal and convicted them under Section  302/149, IPC and sentenced them to undergo imprisonment for life  and to pay a fine of Rs. 10, 000/- each. Before this Court the  aforesaid eleven convicted accused persons preferred appeal bearing  Criminal Appeal No. 298 of 2000 challenging their conviction, and  during the pendency of the appeal A-14 [appellant no. 9] died, as  such his appeal before this Court abated. So far as State of  Karnataka is concerned, it filed an appeal by special leave against  the order of the High Court whereby order of acquittal in relation to  A-8, A-10, A-11 and A-12 has been confirmed which gave rise to  Criminal Appeal No. 1159 of 2006. Thus, in these two appeals cases  of only fourteen accused persons are required to be considered. 2.      Prosecution case in short was that one Siddanna Patil, who  was father of A-1 and A-4, was murdered in the year 1983 in which  Bhimanagowoda Desai and thirteen other persons were accused  which gave rise to Sessions Case No. 47 of 1984, in which trial  proceeded against the other thirteen persons and the same in  relation to Bhimanagowoda Desai was separated because he was  absconding and numbered as Sessions Case No. 83 of 1988.   The  aforesaid thirteen persons were convicted by the Trial Court and  their conviction was confirmed by the High Court, against which  Special Leave Petition was filed before this Court in which bail was  granted and Bhimanagowoda Desai was instrumental in securing  release of the aforesaid thirteen persons on bail from this Court.     Bhimanagowoda Desai was granted anticipatory bail and thereafter  his trial proceeded and the date fixed for hearing of that case was  22.4.1989.   One day prior to the aforesaid date, i.e., on 21.4.1989 in

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the afternoon all the sixteen accused persons aforementioned met at  the residence of A-11 at village Hadnoor and in the said meeting A-10  stated that as Bhimanagowoda Desai had secured bail of thirteen  accused persons from this Court he should be done to death.     Shivashranappa [PW-10] went to the house of A-11, who was his  neighbour, in the same afternoon at about 3.00 pm with an intention  to meet A-10 and saw all the sixteen accused persons in the room  and overheard their aforesaid conversation whereafter the accused  persons left the house of A-11.  In the same evening one Sangappa  [PW-12] visited the house of one Nangouda at Shantinagar in  Gulbarga town where he found that all the sixteen accused persons  excepting A-8, A-10, A-11 & A-12 were talking and he heard their  conversation in which A-4 was telling other accused persons to finish  Bhimanagowoda Desai on the next day, i.e., 22.4.1989.  3.      Further prosecution case was that on 21.4.1989 at 9.30 pm  Bhimanagowoda Desai along with his bodyguard-Mallappa [PW-3],  Bhimareddy [PW-1], Bhimaraya and Basavraja went to village  Gulbarga for appearing in morning court at Gulbarga on 22.4.1989  in the aforesaid Sessions Case No. 83 of 1988 and stayed that night  in the house of his nephew-Rudragouda [PW-2]. On the next day, i.e.,  on 22.4.1989 Bhimanagowoda Desai along with the aforesaid  persons, excluding PW-2, went to court at 7.30 am to appear in the  said case. Thereafter PW-2 also left for the court and arrived there.  Bhimanagowoda Desai was standing on the katta of Civil Judge\022s  Court and was waiting for his case to be called out. Between 7.45 am  \026 8.15 am all the twelve known persons viz., A-1 to A-8, A-10 to A-13  and five to six other persons arrived there, out of whom, A-1, A-2, A- 3, A-6, A-7 and A-13 ran towards Bhimanagowoda Desai with  jambiyas in their hands and out of these seven persons A-1, A-2 and  A-3 assaulted him whereas others caught hold of him.  PW-1, PW-2  and PW-3 and others tried to save Bhimanagowoda Desai who after  receiving injuries fell down on the ground. 4.      Prosecution case then was that thereafter PW-2, PW-3 and  Bhimaraya lifted injured Bhimanagowoda Desai and took him in an  auto-rickshaw to the hospital and PW-1 followed them in another  auto-rickshaw. On the way to the hospital the injured-  Bhimanagowoda Desai is said to have made an oral dying declaration  before PW-2, PW-3 and Bhimaraya to the effect that he was  assaulted by A-1, A-2 and A-3. All of them arrived with the injured  Bhimanagowoda Desai at G.G. Hospital, Gulbarga at about 8.30 am  where Dr. Prabhavathi, Asst. Surgeon [PW-6] examined him and  there he died at 8.45 am. In the meantime, H.K. Revanna [PW-27]  who was working as Police Sub-Inspector, Station Bazar police  station, received a telephonic call at 8.30 am to the effect that in the  court premises one person was assaulted. Thereupon he proceeded  to the place of occurrence and from there he reached the hospital at  9.30 am where he received medico legal case intimation [Exhibit P- 12] from the doctor [PW-6] at 10.00 am and learnt that PW-1 had  already left for the police station for lodging a case. As such PW-27  returned to the police station at 11.25 am whereafter PW-1 arrived  there at 11.30 am whose statement was recorded by PW-27 on the  basis of which First Information Report [\021FIR\022 for short] was drawn up  in which A-1 to A-8 and A-10 to A-13 were named besides five to six  other persons. 5.      The police after registering the case took up investigation and  on completion thereof submitted chargesheet on receipt whereof  learned Magistrate took cognizance and committed the aforesaid  sixteen accused persons to the Court of Sessions to face the trial. 6.      Defence of the accused persons was that they were innocent,  had no complicity with the crime, no occurrence as alleged had taken  place, the deceased-Bhimanagowoda Desai might have received  injuries in some other manner of occurrence and they have been  implicated in the case in hand to feed fat the old grudge. 7.      During trial the prosecution adduced oral and documentary  evidence and upon conclusion of the same all the accused persons

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were acquitted of the charge but on appeal being preferred eleven  accused persons have been convicted whereas acquittal of four  accused persons has been maintained and appeal in relation to one  accused abated in view of his death as stated above. Against the  order of conviction the eleven accused persons preferred appeal  before this Court whereas the State filed appeal by Special Leave  against the confirmation of acquittal as stated above.  8.      In these appeals we are required to consider cases of fourteen  accused persons only, viz., ten convicted persons and four acquitted  ones. So far as four acquitted accused persons, viz., A-8, A-10, A-11  and A-12 are concerned, they were charged for conspiracy and the  Trial Court as well as the High Court has concurrently recorded  findings to the effect that prosecution failed to prove the charge of  conspiracy after taking into consideration the evidence adduced on  behalf of the prosecution. We have been taken through the evidence  of the prosecution witnesses to prove this charge and in our opinion  the High Court was quite justified in upholding the order of acquittal,  the view taken by the Trial Court and confirmed by the High Court,  being reasonable one, cannot be said to be perverse in any manner  and, consequently, no interference by this Court is called for. 9.      We now proceed to consider the cases of the ten convicted  accused persons. The High Court as well as the Trial Court has come  to the conclusion that the prosecution failed to prove the case of  conspiracy beyond reasonable doubt as stated above. Both the courts  further concluded that prosecution failed to prove its case beyond  reasonable doubt that the deceased made an oral dying declaration  before PW-2, PW-3 and Bhimaraya, A-1 was arrested, only after four  hours of the occurrence, from near the place of occurrence and  jambiya was recovered from his possession. 10.     Shri Sushil Kumar, learned Senior Counsel appearing on  behalf of the appellants in support of the appeal, submitted that as  the prosecution failed to prove the charge of conspiracy, which was  the genesis of occurrence, the prosecution case should be discarded  on this ground alone. In our view the submission has been made  only to be rejected. Firstly, conspiracy cannot be said to be the  genesis of occurrence and secondly, in the facts of the present case,  the offences of conspiracy and murder cannot be said to have been  committed in one transaction. A day previous to the date of  occurrence, i.e., on 21.4.1989, the accused persons were said to have  hatched up conspiracy, one in the afternoon at the house of A-11 by  all the sixteen accused persons and another in the evening by twelve  accused persons out of sixteen at the house of Nangouda at  Shantinagar in Gulbarga town and the occurrence had taken place  not in continuation of the conspiracy on the same day but on the  following day. In the present case, according to the findings recorded  by the two courts, the prosecution has failed to prove the charge of  conspiracy beyond reasonable doubt. From this it cannot be inferred  that the case of prosecution that the accused persons conspired to  kill the deceased was found to be false. Proof beyond reasonable  doubt is entirely different from finding a charge to be false. Even if  conspiracy is assumed to be genesis of the occurrence which, on the  facts of the present case, cannot be said to be so, it is well-settled  that if the genesis fails the same would not by itself necessarily  create doubt regarding veracity of the prosecution case on the  manner of actual assault and evidence of witnesses in this regard.  Thus, we do not find any substance in this submission. 11.     Learned senior counsel next submitted that evidence of the  three alleged eyewitnesses, viz., PW-1, PW-2 and PW-3 should be  scrutinized with greater care and caution in view of the fact that the  prosecution failed to prove the charge of conspiracy and its case that  the deceased made an oral dying declaration before PW-2, PW-3 and  Bhimaraya, A-1 was arrested after four hours from near the place of  occurrence and recovery of jambiya from his possession. He very  strenuously submitted that none of the three witnesses was  eyewitness, they reached the hospital after PW-27 had left the

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hospital for the police station, PW-2, PW-3 and Bhimaraya did not  carry the deceased in auto-rickshaw to the hospital and the recovery  of their blood-stained clothes has not been proved.  12.     According to the evidence of PW-27, he reached the hospital at  9.30 am and remained there at least till 10.00 am, during which time  he took medico legal case intimation [Exhibit P-12] and found twenty  two to twenty five persons standing in front of the hospital who told  him that Bhimanagowoda Desai had died. PW-27 further stated that  the dead body had been shifted to the mortuary and as relatives of  the deceased and the villagers told him that nobody was present  there he didn\022t go to the mortuary. He further stated that the  relatives of the deceased, who were present in the hospital, told him  that one of the relatives of the deceased had left for the police station  for lodging the FIR, but they themselves did not give any information  to this witness about the incident. On the basis of the aforesaid  statement of PW-27 it cannot be inferred that PW-1, PW-2 and PW-3  arrived at the hospital after this witness left the hospital. Syed Abdul  Waheed [PW-16], who is a court staff, stated that injured was taken  in an auto-rickshaw to the hospital. Gurulingappa [PW-14], who was  driver of the auto-rickshaw, stated that two persons took the injured  to the hospital in his auto-rickshaw. The doctor [PW-6] stated that  the injured was brought to the hospital at 8.30 am by PW-2 and this  fact has been noted down in the entry made in the register duly  maintained in the hospital which has been marked as Exhibit P-10.  PW-3 stated in his evidence that his and PW-2\022s clothes were stained  with blood. He further stated that he and PW-2 lifted the injured and  when they were taking him to the hospital in the auto-rickshaw  blood was oozing out from the injuries and drops of blood fell on his  shirt. Basaraja Ningin, Police Inspector, the Investigating Officer [PW- 28] stated that he seized five shirts, one each from the persons of  PW-2, PW-3, Bhimaraya, who was chargesheet witness no. 11, A-1  and the deceased and sent the same to the Chemical Examiner for  analysis. The Chemical Examiner has submitted a report [Exhibit P- 48] which shows that he found blood upon five shirts which were  marked a-2, c-1, e-2, f-2 and g-1.  According to the report of  Serologist [Exhibit P-49] on the last four shirts human blood was  found but on the first one, i.e., a-2 it was not possible to opine  whether it was human or animal blood as the same was disintegrated  and the blood group found on c-1, e-2, f-2 and g-1 was \021A\022 but there  is no evidence to show that the blood group of deceased was \021A\022. It  has been submitted that there is no evidence to show that out of the  five shirts which one belonged to PW-2 and PW-3. One thing is clear  that out of the five shirts on four shirts human blood was found,  therefore, at least over one of the shirts belonging to PW-2 and PW-3  human blood was found whereas on the other shirt also though  blood was found but whether the same was human or animal blood  could not be detected because of the disintegration. Thus, taking  cumulative effect of the report of Chemical Examiner [Exhibit P-48],  that of the Serologist [Exhibit P-49] and the evidence of PW-2, PW-3,  PW-6, PW-14, PW-16 and PW-28 it cannot but be said that the  injured was carried to the hospital by PW-2, PW-3 and chargesheet  witness no. 11-Bhimaraya  and while carrying the injured in the  auto-rickshaw the clothes of PW-2 and PW-3 were stained with  blood, which negatives the submission of the learned counsel for the  appellants that PW-2 and PW-3 had not witnessed the occurrence.  Likewise, the aforesaid facts and the evidence of PW-27 that he was  told by some of the relatives of the deceased that one person had  already gone to the police station to lodge the FIR also show that  there is no substance in the submission of the learned counsel for  the appellants that none of PW-1, PW-2 and PW-3 had witnessed the  occurrence and they arrived the hospital after PW-27 left the  hospital. 13.     Another ground of attack to the evidence of PW-1, PW-2 and  PW-3 is that no reliance should be placed upon these witnesses as  PW-1 and PW-2 are close relations of the deceased and PW-3 is his

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bodyguard inasmuch as, undisputedly, there was animosity between  the deceased and the accused persons, especially when these  witnesses cannot be said to be stamp witnesses as none of them has  received any injury. In our view, merely because witnesses are  related or interested or not injured their evidence cannot be  discarded if the same is otherwise found to be credible, especially  when they have supported the prosecution case in material  particulars. All the three eyewitnesses PW-1, PW-2 and PW-3 are  natural witnesses. PW-3 was undisputedly bodyguard of the  deceased and PW-1 and PW-3 came with the deceased to the house  of PW-2 which was in Gulbarga the previous night for appearance of  the deceased in Sessions trial, pending against him, in the morning  court at Gulbarga and in the morning all of them went to the court  where the present occurrence had taken place in the broad day light.  So far as PW-2 is concerned, further submission has been made that  his evidence should be discarded also on the ground that he made  the statement before the doctor [PW-6] to the effect that A-4 was also  the assailant, as would appear from Exhibit P-10, an entry made in  the register duly maintained in the hospital, which shows that he  had not seen the occurrence. The learned counsel for the appellants  is right in submitting that A-4 was not an assailant but only a person  present at the time of the conspiracy being hatched as per the  prosecution itself, but has been named along with the accused  persons who were said to have assaulted the deceased. The  submission of the counsel is that therefore his testimony as a whole  has to be discarded and the statement of this witness cannot be  accepted in the circumstances of the case. PW-2 is a close relation of  the deceased. In fact, the deceased stayed with him the previous  night and they came to the court premises. The incident had  happened unexpectedly all of a sudden. Immediately thereafter he  along with two others carried the deceased in an auto-rickshaw to  the hospital and reported the incident to the doctor. One can  understand in the circumstances that the witness was in complete  shock and, therefore, a discrepancy made by him in including the  name of A-4 along with the other accused persons to be assailants is  a mistake which could be committed by any person in the  circumstances narrated above. For this mistake, the statement of  PW-2 cannot be discarded which is corroborated in material  particulars by the statements of other eye-witnesses and the  documents produced by the prosecution. Further, it has been  submitted that this witness was an advocate, as such he ought to  have realized the implication of delay in lodging the FIR. We find from  the evidence of this witness that he being close relation of the  deceased was under shock, as such he couldn\022t take any steps for  lodging the FIR before the same was lodged by PW-1. Thus, we find  no reason whatsoever to discard the sworn testimony of PW-1, PW-2  and PW-3. 14.     We now proceed to deal with the cases of the ten convicted  persons individually, out of whom, Appasab [A-9], Chandappa [A-15]  and Rajasekhar [A-16] were not named in the FIR, although they  were also known to the informant [PW-1], for which no explanation  whatsoever has been furnished by the prosecution. This being the  position, on this ground alone, these three accused persons are  entitled to be given benefit of doubt. 15.     Turning to the cases of Mahboobsab [A-5], Buddesab [A-6],  Khasimsa [A-7] and Sharnappa [A-13], according to the FIR, A-5 was  merely a member of the mob not having any arms in his hands, he  neither ran towards the deceased nor caught hold of him nor is said  to have assaulted him. Even in his subsequent statement made  before the police, the informant [PW-1], had nowhere stated that A-5  caught hold of the deceased but, in court in the year 1994 after  about five years he disclosed, for the first time, that this accused  caught hold of the deceased. PW-2 also did not name this accused in  his statement made before PW-6 on the basis of which entry was  made in the hospital register [Exhibit P-10]. Moreover, in his

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statement made before the police PW-2 had not stated that this  accused caught hold of the deceased but in court he stated for the  first time after five years that this accused caught hold of the  deceased.   PW-3 also did not state in his statement made before the  police that this accused caught hold of the deceased but made  statement in the Sessions Court after five years for the first time that  this accused caught hold of the deceased.   In view of these facts, we  feel that it would not be safe to uphold the conviction of A-5. 16.     Next accused in this category is Buddesab [A-6].   In the FIR it  has been simply stated that this accused along with others ran  towards the deceased with jambiya but specifically it has nowhere  been mentioned that he caught hold of him.   Even in his subsequent  statement made before the police PW-1 has nowhere stated that this  accused caught hold of the deceased.   It was for the first time in  court after five years he stated that this accused caught hold of the  deceased.   PW-2, another eyewitness, in his statement made before  PW-6, which was the earliest version of the occurrence, had not  named this accused, much less disclosing therein that he caught  hold of the deceased. PW-2 has nowhere stated in his statement  made before the police that A-6 caught hold of the deceased. This  witness, like PW-1, for the first time stated in court after five years  that A-6 caught hold of the deceased. On the question of complicity  of this accused the last witness is PW-3 who also in his statement  made before the police has nowhere stated that this accused caught  hold of the deceased but he has made such a statement for the first  time in court after five years. This being the position, we are of the  view that it is not possible to uphold the conviction of A-6. 17.     We now proceed to consider the case of Khasimsa [A-7].  According to the FIR this accused along with others ran towards the  deceased with jambiya but specifically it has nowhere been  mentioned that he caught hold of him. PW-1 in his subsequent  statement made before the police has nowhere stated that this  accused caught hold of the deceased. This witness has made  statement for the first time in court after five years that this accused  caught hold of the deceased. PW-2, another eyewitness in his  statement made before PW-6 has not named this accused, much less  disclosing therein that he caught hold of the deceased. PW-2 has  nowhere stated in his statement made before the police that A-7  caught hold of the deceased. This witness like PW-1 for the first time  has stated in court after five years that A-7 caught hold of the  deceased. The last witness is PW-3 who also in his statement made  before the police has nowhere stated that this accused caught hold of  the deceased but has made such a statement for the first time in  court after five years. This being the position, we are of the view that  the evidence adduced against this accused is not credible. 18.     Last accused in this category is Sharnappa (A-13]. So far as  the FIR is concerned it has been simply stated that this accused  along with others ran towards the deceased with jambiya but  specifically it has nowhere been mentioned that he caught hold of  him. PW-1 in his subsequent statement made before the police has  nowhere stated that this accused caught hold of the deceased. This  witness has made statement for the first time in court after five years  that this accused caught hold of the deceased. PW-2, another  eyewitness in his statement made before PW-6 has not named this  accused, much less disclosing therein that he caught hold of the  deceased. PW-2 has nowhere stated in his statement made before the  police that A-13 caught hold of the deceased. This witness like PW-1  for the first time stated in court after five years that A-13 caught hold  of the deceased. PW-3 stated that this accused caught hold of the  deceased. In view of the fact that in the earliest version of the  occurrence disclosed by PW-2 before PW-6, the name of this accused  was not disclosed much less stating that he caught hold of the  deceased, in the FIR and in the subsequent statement of PW-1 made  before the police there is no allegation that this accused caught hold  of the deceased, we feel it would not be safe to place reliance upon

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the uncorroborated testimony of PW-3 that this accused caught hold  of the deceased. This being the position, in our view it would not be  safe to uphold the conviction of A-13.  19.     For the following reasons we are of the view that the  prosecution has failed to prove its case beyond reasonable doubt so  far as A-5, A-6, A-7 and A-13 are concerned. 20.     Next category of accused is that of the assailants, viz.,  Mallanna [A-1], Lalesa [A-2] and Bhimangouda [A-3]. So far as these  accused persons are concerned, according to the FIR, all of them  were assailants of the deceased. Even in the first version of the  occurrence, which was disclosed before lodging the FIR by PW-2  before PW-6, as would appear from the entry made in the register  duly maintained in the hospital [Exhibit P-10], all the three accused  persons were named as assailants of the deceased. In the FIR, in the  subsequent statement of the informant-PW-1 made before the police,  in the statements of PW-2 and PW-3 made before the police and in  the statements of PW-1, PW-2 and PW-3 made in court they have  consistently stated that A-1, A-2 and A-3 assaulted the deceased  with jabmiyas and their evidence is corroborated by the medical  evidence as according to the post mortem examination conducted by  Dr. A.N. Kulkarni [PW-7], injuries by jambiya were found on the  person of the deceased and the same were sufficient to cause death  in the ordinary course of nature. In view of the foregoing discussions  we are of the view that the High Court was quite justified in  convicting Mallanna [A-1], Lalesa [A-2] and Bhimangouda [A-3] and  no interference by this Court is called for. 21.     In the result Criminal Appeal No. 298 of 2000 is allowed in  part and the appeal filed by Mallanna [appellant no. 1], Lalesa  [appellant no. 2] and Bhimangouda [appellant no. 3] is dismissed.  The appeal filed by Bapugouda [appellant no. 9] is disposed of the  same having abated in view of his death and appeal of Mahaboobsab  [appellant no. 4], Buddesab [appellant no. 5], Kashimsa [appellant  no. 6], Appasab [appellant no. 7], Sharanappa [appellant no. 8],  Chandappa [appellant no. 10] and Rajashekara [appellant no. 11] are  allowed, their conviction and sentence are set aside and they are  acquitted of the charge. Bail bonds of appellant nos. 1-3, who are on  bail, are cancelled and they are directed to be taken into custody  forthwith to serve out the remaining period of sentence for which the  matter must be reported to this Court within a period of one month  from the date of receipt/production of the copy of this judgment. So  far as appellant nos. 4-8, 10 and 11, who are on bail, are concerned,  they are discharged from the liability of bail bonds. Bapugowda  [appellant no. 9], who was also on bail and whose appeal abated,  stands discharged from bail bonds. 22.     Criminal Appeal No. 1159 of 2006 is dismissed.