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CASE NO.: Appeal (crl.)  1146 of 2003

PETITIONER: PEERAPPA & ORS.                                  

RESPONDENT: STATE OF KARNATAKA                               

DATE OF JUDGMENT: 09/08/2005

BENCH: P. VENKATARAMA REDDI & D.M. DHARMADHIKARI

JUDGMENT: JUDGMENT

P. VENKATARAMA REDDI, J.

The three appellants herein are accused Nos. A2, A3 & A4 in  Sessions Case No. 30 of 1989 on the file of I Addl Sessions Judge,  Gulbarga. They, along with nine others, were charged with the offences  under Sections 147, 148 & 302 read with 149 IPC. The accused No.7  died during the pendency of the Sessions case. The other 11 accused  including the appellants herein were acquitted by the trial Court. The  State of Karnataka filed the appeal in the High Court questioning the  acquittal. During the pendency of the appeal, the accused No.1 died.  Hence the appeal had abated against him. The High Court, on  reappreciation of evidence, held that the trial Court acquitted the  accused Nos. 1 to 4 "on flimsy grounds by rejecting the evidence of PWs  4 & 5 and other circumstantial evidence". The High Court observed that  no second view was possible as far as the guilt of the accused Nos. 1 to  4 was concerned. The High Court felt that the trial Judge gave undue  importance to minor aspects in rejecting the testimony of PWs 4 & 5.  Accordingly, the High Court allowed the appeal to the extent of  convicting the accused Nos. 2 to 4 (appellants herein). As A1 died, he  was not convicted, though A1’s complicity was held proved. The three  appellants were convicted under Section 302 IPC read with Section 149  IPC and sentenced to life imprisonment. As regards the other accused  persons, the High Court was of the view that A5 to A12 reached the spot  only after the other four accused attacked the deceased Mahadevappa  and that these persons did not share the common object with the  accused Nos. 1 to 4 and the attack did not continue after they came to  the scene. Hence accused Nos. 5 to 12 were acquitted on benefit of  doubt. Aggrieved by the reversal of acquittal by the High Court, the  present appeal is filed by the accused Nos. 2 to 4. At the outset, we may point out that there is a palpable error in  the judgment of the High Court concerning the provision under which  the appellants were convicted. As unlawful assembly consists of five or  more persons and the accused other than A1 to A4 having been  acquitted on the ground that they did not share the common object, the  conviction under Section 302 with the aid of Section 149 IPC is clearly  unsustainable. On the finding of the High Court, the number of persons  of the unlawful assembly is less than five. If at all they can be convicted  under Section 302 read with Section 34 IPC or Section 302 simplicitor.  Another patent error in the High Court’s judgment is the reason given  by the High Court for acquitting A5 to A12. The High Court wrongly  assumed that A5 to A12 reached the spot after the assault by A1 to A4  and that none of them were with the other four accused initially. But the  very evidence of the eyewitnesses on which the High Court placed  reliance is otherwise. They attributed varied roles to the accused Nos. 5  to 12 at various stages of the incident. Thus, the ground of acquittal of  the other eight accused was an irrelevant ground, though, in the view

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we take, the ultimate conclusion is correct. Now we shall consider whether the High Court was justified in  reversing the verdict of acquittal recorded by the trial Court. Briefly, the  prosecution case is this: On 3.9.1988, at about 9 a.m. when the deceased Mahadevappa,  who went to the house of PW8 at Kuknoor village the previous day, was  going back to his native village Kumman Sirasgi, PW4\027a carpenter by  profession, was also going to Kumman Sirasgi along with the deceased.  When they came to the cart road near the land of Chand Patel (A11)  within the limits of Kumman Sirasgi, the accused A6, A9 & A10 stopped  Mahadevappa and thereafter A1 & A3 attacked him with axe and A2 &  A4 assaulted him with dagger and A5, A8 & A12 instigated the other  accused to kill Mahadevappa. A6 tied the two legs of the deceased with  ’dhoti’. The accused fell down on the spot and succumbed to the  injuries. The postmortem revealed that there were injuries to the vital  parts of the body such as stomach, abdomen, intestine, liver and lungs  apart from the fracture of ribs. There were 11 external injuries. He died  on the spot. PW4 who was behind the deceased and PW5, a person  having lands in the vicinity, are supposed to be the eyewitnesses to the  crime. PW3, the younger brother of the deceased, having got the  information about the incident from PWs 4 & 5, went to Yadrami police  station by walk and lodged the report to the Sub-Inspector of Police  (PW12) at 4.15 p.m. In turn, he recorded the statement of PW3 and it is  marked as Ext.P5.  The FIR was registered on the basis of that  statement. According to PW3, PW4 gave him the names of six persons who  assaulted Mahadevappa. They are A1, A2, A3, A7, A9 & A10. PW5, who  came to the spot where the dead body lay, allegedly gave the names of  A4 to A6, A8, A11 & 12. Thus, according to the version in the FIR and  the evidence of PW3, PW4 gave six names and PW5 gave equal number  of names. The FIR seems to have reached the Magistrate the next day  morning at about 9 a.m. The Sub-Inspector of Police, who registered  the FIR proceeded to the spot of the incident at about 8 p.m. and stayed  there upto 11 p.m. till the arrival of the Circle Inspector of Police  (PW13), but he did not meet the family members nor did he make any  efforts to call the witnesses or record their statements. The inquest was  conducted by the Circle Inspector of Police\027PW13, the next day  morning. The statements of PWs 4 & 5 were recorded sometime in the  evening of 4.9.1988. PW13 then arrested the accused and claimed to  have recovered the weapons used on the basis of the information  furnished by them in the presence of panchas. The postmortem was  done on the spot by the Medical Officer, Jawargi who was examined as  PW11. PW13 then took other steps such as sending the bloodstained  mud and clothes found on the dead body for chemical examination. The  chemical examiner’s report is Ext.P19. After completion of investigation,  PW13 filed the charge sheet in the Court. The prosecution case mainly rests on the evidence of PWs 4 & 5.  The alleged recovery of weapons at the instance of the accused  appellants is also being relied upon as corroborative evidence. As  regards the motive of the crime, it is fairly clear from the evidence on  record that the accused and the members of the prosecution party were  inimically disposed towards each other in view of the land dispute and  the panchayat elections. Many of the accused are interrelated. It is also  seen from the evidence of the Police Officer\027PW12 that the deceased  Mahadevappa had criminal record and he is an accused in a case of  murder of A3’s mother. His name was entered in the rowdy sheet of the  police station. The trial Court disbelieved the evidence of PW4 for the following  reasons: 1.      The version of PW4 that he was going to Kumman Sirasgi  on 3.9.1988 in order to fix a wooden horse to the doors  of Kuderagonda family is unbelievable. The purpose of his  visit to Kumman Sirasgi was not disclosed to the I.O. He  could not even give the name of the person who placed

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the order and paid the price of Rs.3500/-. Admittedly  PW4 did not fix the wooden horse at the house  mentioned above even till the date of giving evidence and  no reason has been given  for not fixing the wooden  horse till date. 2.      The witness stated that the police called him to the spot  at the time of conducting panchnama on the dead body  of Mahadevappa and he had signed the inquest  ’mahazar’; but the inquest report does not bear his  signature (his statement was recorded under Section 161  Cr.P.C. only in the evening of 4th September, 1988). 3.      PW4 did not inform the complainant PW3 about the  presence of A3, A4, A6, A8, A11 & A12 but in his  deposition PW4 made improvements stating that A4, A5,  A8, A11 & A12 were also present at the spot and that A6,  A9 & A10 pelted stones at him. If he had really seen the  incident, he would not have omitted to mention the  names of A4, A5, A6, A8, A11 & A12 before PW3. 4.      The presence of PW5 is also doubtful. According to him,  he had gone to his land in order to see whether weeds  shall be removed from the land on which a groundnut  crop was sown 40 days earlier. According to the spot  panchnama (Ext.P32), there was no crop on the land of  PW5 but only grass was found. PW1, the panch witness  also confirmed this fact. Moreover, it is improbable to  believe that for the first time after 40 days, he went to  his land to see the groundnut crop raised. 5.      His evidence in regard to the assault of the deceased is  not consistent with the evidence of PW4 as to the part  played by each of the accused. PW5 did not attribute any  overt act to A1 except stating that he was standing with  others near the deceased.  It may be noted that PW5 did not state before the Investigating  Officer that PW4 had seen the incident. The High Court, after referring to the evidence of PWs 4 & 5  observed that the evidence of these two witnesses corroborates the  presence of each other. The High Court also referred to the evidence of  PW8, who stated that PW4 was going with the deceased to Kumman  Sirasgi. According to the High Court, there were only minor  discrepancies in the evidence. There was nothing unnatural in PW5  going to his land and witnessing the incident. The High Court further  observed that the trial Court was not justified in rejecting the evidence  of PW4 on the ground that the wooden horse was not fixed even later  on. The High Court pointed out that PWs 4 & 5 have no axe to grind  against the accused. We are of the view that the High Court has not come to the grips  of the reasoning given by the trial Court and did not critically examine  the evidence of PWs 4 & 5 before reversing the acquittal. As regards the  presence of PW5, the spot panchnama of his land coupled with the  evidence of panch witness PW1 reveal that there was no crop at all in  the land and therefore his version that he had gone to the land to check  on the removal of weeds, was not believed by the trial Court. The  reason given by the trial Court was a relevant reason and goes a long  way in doubting the presence of PW5. The main reason assigned by the  trial Court was not discussed at all. As regards the presence of PW4  again the reasons given by the trial Court are relevant reasons. The fact  that he could not even given the name of the person who paid the  advance towards price and the he did not fix the wooden horse even  after the incident, has been legitimately taken into account by the trial  Court. May be a different view is possible. But the view taken by the  trial Court cannot be said to be irrelevant. Apart from that, PW4’s  evidence as to the watching the incident by standing under nearby  neem tree and minutely observing the details of attack, is highly  improbable. His version is that when he was answering the calls of  nature near the land of Chand Patel (A11), A6, A9 & A10 pelted stones

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towards him and therefore he ran and stood below the neem tree  adjacent to the land of PW5. It is difficult to believe this version. It is  clear from the evidence of PW4 that he became apprehensive of his  safety and therefore he ran away. If so, will he stand close to the spot  of the incident, especially, when so many armed persons were at the  scene? If on the other hand, he took shelter at a place located at a  respectable distance from the spot of incident, would it be possible for  him to give minute details of who attacked with what weapon and at  which spot of the body? We do not think that it is reasonably possible.  The tendency of a person placed in a position of A4 would have been to  run away from that place or if he was bold enough, he could have  intervened and tried to dissuade them from attacking the deceased.  No  such course was followed by PW4, if we go by his version. At best it can  be said that PW4, who was behind the deceased saw the accused  coming in a group and trying to assault him. Thereafter, he would have  fled from the place for his safety. Thereafter, we have no details about  the incident in order to hold that the three appellants herein who were  amongst the group were actuated by common intention to attack and  kill the deceased and accordingly killed him. In the absence of reliable  evidence as to the details that happened at the spot, it is not possible to  hold the appellants guilty with the aid of Section 34 IPC especially  having regard to the fact that rest of the accused, who were also in the  group, were acquitted. Moreover, the High Court did not really scrutinize  whether the comment of the trial Court regarding material  improvements and inconsistencies in the evidence of the alleged  eyewitnesses pertaining to the part played by the various accused is  justified or not. That comment was merely brushed aside. Regarding the recovery of weapons on the basis of the alleged  disclosure made by the accused, the trial Court commented that no  blood was found on the weapons. Moreover, the learned trial Judge  observed that the places from which A1 to A4 produced the articles  were accessible to public and therefore no reliance can be placed on  such recovery. Another reason given by the trial Court was that the I.O.  did not record the statement of A1 to A4 in the diary before proceeding  to the place, but he made A1 to A4 repeat the same information in the  presence of the panch PW6 and therefore the statement made by A1 to  A4 cannot be said to be an information to the police which led to the  discovery under Section 27 of the Evidence Act. The trial Court placed  reliance on a case reported in 1964 Mysore Law Journal 185. Here  also we find that the High Court did not deal with the reasons given by  the trial Court. The High Court merely referred to the evidence in regard  to the recoveries and held that they were proved beyond doubt. Though  we feel that some of the reasons given by the trial Court for discarding  the recoveries are not correct, we are not convinced that there is  satisfactory evidence regarding recovery of weapons. PW6 stated that  he did not enter the dilapidated house in which A2 & A4 allegedly  pointed out the knife (MO11) and jambia (MO12) respectively which the  police seized. In the course of cross examination, he further stated that  he was standing outside the house along with another panch and police  officer. Moreover, PW6 also stated that neither A2 nor A4 informed him  that he had kept the knife in the dilapidated house. The trial Court  found that the I.O. did not record the information anywhere. But the  prosecution version is that in the presence of panchas, the accused  orally revealed at the police station, about the factum of hiding the  weapons at that particular place. But, it is belied by the evidence of  PW6. So also, in the case of A1 & A3, PW6 stated that they did not  inform him in the FIR about the place where they had kept the axes  (MOs 9 & 10). He further stated that when A1 & A3 produced axes, he,  another panch and the police were sitting on the road in front of the  temple. Therefore, the panch witnesses did not actually see the  deceased pointing out to the police the hidden weapon. Moreover, there  was no proof of any prior information passed on to the police in the  presence of panch witnesses as claimed by the I.O. In these  circumstances, no reliance can be placed on the evidence as to recovery  so as to make it admissible either under Section 27 or Section 8 of the

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Evidence Act. On an anxious consideration of the contentions in the light of the  evidence on record and the findings of the trial Court, we are of the  view that the High Court ought not to have interfered with the order of  acquittal. In this regard, we may recall the observations made by R.C.  Lahoti, J (as His Lordship then was), speaking for a three judge Bench in  Kashiram Vs. State of M.P. [(2002) 1 SCC 71]. It was observed  thus: "Though the High Court while hearing an appeal against an  acquittal has powers as wide and comprehensive as in an  appeal against a conviction and while exercising its appellate  jurisdiction the High Court can reappraise the evidence,  arrive at finding at variance with those recorded by the trial  Court in its order of acquittal and arrive at its own findings,  yet, the salutary principle which would guide the High Court  is\027if two views are reasonably possible, one supporting the  acquittal and the other recording a conviction, the High  Court would not interfere merely because it feels that sitting  as a trial Court its view would have been one of recording a  conviction. It follows as a necessary corollary that it is  obligatory on the High Court while reversing an order of  acquittal to consider and discuss each of the reasons given  by the trial Court to acquit the accused and then to dislodge  those reasons. Failure to discharge this obligation  constitutes a serious infirmity in the judgment of the High  Court."

That obligation has not been discharged by the High Court in the  instant case.  All the reasons given by the trial  Court while  appreciating the evidence have not been dealt with by the High  Court.  We, therefore, allow the appeal, set aside the judgment of the  High Court and restore the acquittal by the trial Court. The appellants  shall be released forthwith if not required to be detained in any other  case.