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CASE NO.: Appeal (crl.)  129 of 2006

PETITIONER: Shivappa & Ors

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 31/03/2008

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M  E N T REPORTABLE

CRIMINAL APPEAL NO.129 OF 2006

S.B. Sinha, J.

1.      Appellants herein were tried under Section 302 of the Indian Penal  Code for committing murder of one Shrishail Shivappa Jagadale.   2.      The occurrence took place at about 8.30 pm on 28.5.1994.  A First  Information Report was lodged by Nimbewwa, sister of the deceased  Shrishail Shivappa Jagadale at about 10.00 am on 29.5.1994, inter alia,  alleging that the appellants were inimically disposed of towards her brother  and his family.         It was furthermore alleged that on the fateful day, when she, her  mother, Mannandevva, father Shivappa, younger brother Basappa, his wife,  Gurubai, elder brother’s wife Maadevi were sitting in front of their house  and her elder brother (deceased Shreeshaila) was sitting on a katte (platform)  below a Neem tree, the accused persons, who were 11 in number, forming  an unlawful assembly armed with axe and Jambiya in their hands came  there. Accused No.1,  Ningondeppa Master, shouted, "see that he is sitting  there on the platform, son pull that Shreeshaila", whereupon Accused No.  11, Malakaji, pulled him up from his feet and threw him on the ground.   Accused No. 11, Malakaji who had been holding an axe then assaulted  Shreeshaila on his head.   He fell down shouting "satteppo" (died) whereafter Accused No. 11,  Malakaji, and others assaulted the deceased with axe and jambiya on his  neck, chest, etc.   The deceased sustained grievous injuries.  When the family members  of the deceased came to his rescue, the accused allegedly threatened them.   They also told Basappa, the younger brother, and Shivappa, the father of the  deceased, that they would also finish them whereupon they ran away from  the village to a jungle. 3.      It was alleged that the informant and her sister being women did not  dare come to the Police Station in the night apprehending that the accused  might also assault them.  She came to the Police Station with her elder sister  Shantavva and lodged the First Information Report. 4.      Before the learned Trial Judge, a large number of witnesses were  examined on behalf of the prosecution.   Pw-9 is the father, PW-10 is the brother, PW-11 is the complainant- informant, PW-1 is another sister, PW-13 is the wife and PW-21 is the niece  of the deceased.   Apart from the family members, eight others were cited as witnesses  in the charge-sheet.  CW-1 and CW-3 were not examined. Six villagers who  were examined by the prosecution, however, did not support the prosecution  case.   It is not in dispute that Accused No.1 Ningondeppa, Accused No.2,

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Shivashankar and Accused No.3, Shivappa, are dead.   The learned Trial Judge by reason of his judgment and order dated  07.05.1999 gave benefit of doubt to the accused persons, inter alia, holding : (1)     Having regard to the ocular evidence, vis-‘-vis the medical  evidence, it is doubtful as to whether the prosecution has come out  with correct version in regard to the time of death; (2)     As the male eye-witnesses, who were members of the same family  namely PW-9 and PW-10, fled away from the place of occurrence  and did not return during night and only PW-11 and PW-12 having  come to the Police Station for lodging the First Information Report  only at about 10 a.m. on the next day, they cannot be relied upon. (3)     Prosecution witnesses made improvements in their statements in  court, vis-‘-vis these were statements made in terms of Section 161  of the Code of Criminal Procedure and on that ground too their  testimonies should not be relied upon.  5.      All the witnesses who supported the prosecution case are related to  the deceased.  Specific overt acts have been attributed by the prosecution  witnesses only against Accused No.1,  Ningondeppa, as against Accused  No.2, Shivashankar, Accused No.3, Shivappa, Accused No.5 Shekappa and  Accused No. 11, Malakaji, but they made general statements with regard to  the purported overt acts having been committed by all the accused. 6.      The High Court, on the appeal preferred by the State against the  judgment of acquittal, however, reversed the same opining that the  prosecution has proved its case beyond all reasonable doubts.         Appellants are, thus, before us. 7.      Mr. S.S. Javali, learned senior counsel appearing on behalf of the  appellant Nos. 1 and 2, submitted that as the findings of fact arrived at by the  learned Trial Judge cannot be said to be wholly perverse, no interference  therewith by the High Court was warranted.  It was urged that as the learned  Trial Judge took into consideration the evidence of all the relevant  witnesses, the High Court committed a serious error in reversing the  judgment as it had the benefit of looking at the demeanour of all the  prosecution witnesses.   8.      Mr. Sushil Kumar, learned senior counsel appearing on behalf of the  appellant Nos. 3 to 8, supplemented the submissions of Mr. Javali urging  that as in the post-mortem report, semi-digested food was found in the  stomach of the deceased, the same clearly established that the time of death  of the deceased as stated by the prosecution witnesses, namely, at about 8.30  p.m. was false as according to the prosecution witnesses, the deceased did  not take any food after 10.00 a.m. 9.      Mr. Anil K. Mishra, learned counsel appearing on behalf of the State,  would, however, support the impugned judgment.   10.     The fact that the deceased met with a homicidal death is not in  dispute.  PW-24, Gurappa Yankappa, in his deposition, stated that he  received the dead body of Shrishail on 29.5.1994 for the purpose of  conducting the post-mortem.  The autopsy was conducted on the same day  between 12.30 pm and 2.30 pm.  The dead body bore as many as 20 injuries  covering almost all parts of the body.  Eight injuries were inflicted on upper  parts of the body.  He opined that the death was due to shock as a result of  hemorrhage and the injuries to vital organs like brain, liver and lungs as also  large blood vessels.  He opined that the death had occurred within 24 hours  of the post-mortem examination.  He identified the weapons of attack which  had been recovered during investigation and marked as M.OS 1 to 8, as the  possible weapons with which incised as also the lacerated wounds could  have been caused.  According to him, however, semi-digested food was  found in the stomach which shows that the deceased might have taken food  four to five hours prior to his death.   11.     The learned Sessions Judge, as also the learned counsel appearing on  behalf of the appellant, have laid great stress thereupon as PW-12,  Shantavva, sister-in-law of the deceased had deposed that food had been  prepared at the time when the incident took place and the deceased had taken  food at about 10.00 am.   12.     Medical opinion is admissible in evidence like all other types of  evidences.  There is no hard and fast rule with regard to appreciation of  medical evidence.  It is not to be treated as sacrosanct.

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13.     The High Court, however, opined that in view of the evidence of the  doctor that the death occurred within 24 hours of the time of the post- mortem, the variation between the medical evidence and the testimony of the  eye witnesses is not such which would lead to a conclusion that the  prosecution case was not correct.  We agree with the said view.         In Modi’s Medical Jurisprudence, p. 185, it is stated that so far as the  food contents are concerned, they remain for long hours in the stomach and  duration thereof depends upon various factors. 14.     In Main Pal & Anr. v. State of Haryana & Ors. [(2004) 10 SCC 692],  this Court held : "If the eyewitnesses’ version, even though of the  relatives, is found to be truthful and credible after  deep scrutiny the opinionative evidence of the  doctor cannot wipe out the effect of eyewitnesses’  evidence. The opinion of the doctor cannot have  any binding force and cannot be said to be the last  word on what he deposes or meant for implicit  acceptance. On the other hand, his evidence is  liable to be sifted, analysed and tested, in the same  manner as that of any other witness, keeping in  view only the fact that he has some experience and  training in the nature of the functions discharged  by him."

15.     Indisputably, a large number of factors are responsible for drawing an  inference with regard to digestion of food.  It may be difficult if not  impossible to state exactly the time which would be taken for the purpose of  digestion.  Reliance, however, has been placed on Shambhoo Missir & Anr.  v. State of Bihar [(1990) 4 SCC 17] wherein this Court keeping in view the  fact situation obtaining in that case held : "4. The substance of the prosecution case is that  the deceased Rajendra died as a result of the  assault in question at about 3 p.m. on the very day  of the incident. However, on the basis of the  medical evidence, the defence has succeeded in  establishing that he had died soon after he left his  house at 8 a.m. Dr Shambhoo Sharan (PW 13) who  performed the post-mortem examination of the  dead body, has stated both in his report as well as  in his deposition, that there was 8 ounces of  undigested food in the stomach of the deceased. If  as alleged by the prosecution the death had  occurred at 3 p.m., no such undigested food would  have been found in the stomach at that hour when  the food was taken by the deceased before 8 a.m. If  this is so, then the whole case of the prosecution  must crumble. For this will establish beyond doubt  that Rajendra had died very soon after 8 a.m. and  none of the so called eye-witnesses had seen the  assault on Rajendra. The said fact will also  demolish the entire version of the three dying  declarations made by the deceased to various  prosecution witnesses at three different places. The  non-explanation by the prosecution of the  undigested food therefore casts serious adverse  reflections on the entire investigation in the present  case. Unfortunately, the High Court has failed to  deal with this very important aspect of the  evidence on record which has been highlighted by  the trial court. It also strengthens the defence  version that the accused have been involved in the  present case by the obliging witnesses and unfair  investigation. "

       As is noticed from the factual matrix involved in the said case, the

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death occurred at 3.00 pm.  Although the deceased had left his house at 8.00  a.m., it was found that he died soon after 8.00 a.m.  Certain additional  features as for example, no eye-witness having seen the assault on the  deceased was also taken into consideration by the court.  The dying  declaration whereupon the High Court relied upon was also not found to be  reliable.  It was the cumulative effect of the said findings that a judgment of  acquittal was recorded and not on the basis of the medical opinion with  regard to the time of taking of food item alone.   16.     Yet again, in Bhimappa Jinnappa Naganur v. State of Karnataka [1993  Supp. (3) SCC 449], on the same ground that the deceased died within a  couple of minutes after coming out of his courtyard could not have  consumed his lunch at the time stated by PW-1, namely, at about 1.00 pm,  judgment of acquittal was rendered.  In that case, the names of the witnesses  were not disclosed in the First Information Report.  Although there were  more than 10 injuries on the head and face of the deceased, there was no trail  of blood from the house of the deceased right till the gutter on the roadside  from where the body was found which was at a distance of 400 feet.  The  fact that some semi-digested food was found in his stomach together with  other facts led this Court to hold that the High Court did not meet with the  reasonings of the trial court while rejecting the statement of the eye- witnesses.  Such is not the position here. 17.     We may notice the salient features of the prosecution case.   The learned Sessions Judge did not arrive at any specific finding as to  why the conduct of the witnesses was such which would lead to a total  distrust to the prosecution witnesses.  All the members of the family were at  one place.  Two married daughters, namely, PW-11 Nimbevva, and PW-12,  Shantavva came to the village, as there was a Jatra festival of the village  Diety, Lakkavva.   Accused persons who were 11 in number came variously armed.   They not only killed the deceased but also threatened the two family  members with death as a result whereof they fled to the jungle.   PW-9, Shivappa fled to his firm land.  They did not dare come back in  the night. If having regard to the manner in which the occurrence took place,  the witnesses became dumbfounded and could not shout, the same by itself,  in our opinion, would not lead to the conclusion that they were wholly  untrustworthy.  In fact, their conduct, having regard to the nature of the  offence, appears to be more probable.   18.     The parties are related.  PW-21, Gurubai, in her evidence  categorically stated that both sides are related to her.  All the witnesses in no  uncertain terms described the manner in which the assault had taken place.   Not only the nature of the weapons which had been used had been disclosed,  the different parts of the body of the deceased whereupon injuries were  inflicted had also been stated.  The reaction of the deceased on receipt of the  injuries has also been disclosed by almost all the material witnesses. 19.     According to PW-11, Nimbewwa, she and PW-12 Shantavva started  for Kolhar Police Station to lodge the complaint at about 8 am from the  village.  The fact that both the ladies went to the police station cannot be  doubted as in the First Information Report itself, the fact that the informant  had come with her sister Shantavva was mentioned.  Only because  PW-23,  Ramappa, the Investigating Officer, in his evidence stated that PW-11,  Nimbewwa, had come alone to the Police Station is not of much  significance.  It may be true that according to all the prosecution witnesses,  about 100 villagers assembled.  Admittedly, even then nobody came forward  to help them.   It was not necessary for the ladies to shout for help or ask the villagers  to snatch the weapons of offence from them as was suggested on behalf of  the defence.  If the villagers who gathered in such a large number intended  to render any help, they would have done so of their own.  Whether because  of the village politics or otherwise, the fact remained that they had not only  failed to come to help the informant family but also turned hostile to them  speaks volume of their apathy.  No villager even informed the Police.  At least some of them could  have done so.  PW-11, Nimbewwa, in her evidence categorically stated that  immediately after the occurrence, the electricity went off.  The telephones  were also not working.  They also stated that no transport was available.  It

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would, therefore, be too much to expect that those young ladies would walk  11 kilometers on foot in the dead of night to lodge the First Information  Report.   PW-21,  Gurubai, made a statement that the Police came at about 8  am in the morning on the next day.  Evidently, it was an inadvertent  statement as in her examination in chief, she categorically stated that PW-11,  Nimbewwa and PW-12, Shantavva left the village for lodging a First  Information Report at 8.00 am in the morning.  This cannot be a ground for  disbelieving them.  Minor discrepancies or some improvements also, in our  opinion, would not justify rejection of the testimonies of the eye-witnesses,  if they are otherwise reliable.  Some discrepancies are bound to occur  because of the sociological background of the witnesses as also the time gap  between the date of occurrence and the date on which they give their  depositions in court.   20.     In S. Sudershan Reddy & Ors. v. State of A.P. [(2006) 10 SCC 163],  this Court held : "12. We shall first deal with the contention  regarding interestedness of the witnesses for  furthering the prosecution version. Relationship is  not a factor to affect the credibility of a witness. It  is more often than not that a relation would not  conceal the actual culprit and make allegations  against an innocent person. Foundation has to be  laid if plea of false implication is made. In such  cases, the court has to adopt a careful approach and  analyse evidence to find out whether it is cogent  and credible.  

[See also Sucha Singh & Anr. v. State of Punjab [(2003 (7) SCC 643] 21.     Delay in lodging the First Information Report, in our opinion, has  sufficiently been explained.  If the accused persons were to be falsely  implicated, PW-9, Shivappa, and PW-10, Bassappa, would have rushed to  the Police Station on the same night.  In any event, they would have  themselves gone for lodging the First Information Report on the next date.   They had fled away because of the threats given to them.  They stayed out  throughout the night.  PW-9 Shivappa, came back only on the next day.  One  can very well visualize his mental condition.  If the married sisters of the  deceased, therefore, in the aforementioned situation started from their village  round about 8 o’clock on the next day to reach the Police Station at about  10.00 am, no exception can be taken thereto.  Delay in lodging the First  Information Report in a case of this nature is not such which would impel us  to infer that there existed a possibility of false implication.   There cannot be any doubt whatsoever that lodging of the First  Information Report within a short time after the occurrence would ordinarily  lead to a conclusion that the statements made therein are correct but when  the delay in lodging a First Information Report is sufficiently explained, the  same would receive the evidentiary value it deserved. 22.     The very fact that two married sisters gathered the courage at the  earliest possible opportunity to go to the Police Station itself eliminates false  implication.  They are married.  They came to spend some time with their  family on the occasion of some festival.  It is difficult to believe that they  would have some independent motive to falsely implicate so many persons.   If that be so, it might not have been possible for them to give a detailed  description of the manner in which the occurrence took place.  Furthermore,  the Police came to the place of occurrence soon after the lodging of the First  Information Report.  The dead body was immediately sent for post-mortem  examination.  From the evidence of the doctor, as noticed hereinbefore, the  post-mortem examination started at 12.30 pm.  The approach of the High  Court, therefore, cannot be said to be incorrect.  Furthermore, in the First  Information Report itself, three motives have been attributed, one of them  being the involvement of the deceased in the murder of the younger brother  of Accused No.1,  Ningondeppa. 23.     The submission of Mr. Javali that overt acts have been attributed only  to five of the accused and all of them could not have been convicted  invoking the provisions of Sections 148 and 149 of the Indian Penal Code

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may now be considered.  The First Information Report, as also the evidences  of as many as six eye-witnesses, clearly reveals that all the eleven accused  came in a group.  All of them were armed with deadly weapons although  actual overt acts had been attributed to Accused No.1, Ningondeppa,  Accused No.2, Shivashankar, Accused No.3, Shivappa, Accused No.5,  Shekappa and Accused No.11 Malakji.  In their depositions, the prosecution  witnesses have categorically stated that all of them took part therein.  Even if  we do not put entire reliance on the said statements, the very fact that the  deceased received as many as 20 injuries is itself sufficient to show that all  the accused persons not only came to the place of occurrence upon forming  an unlawful assembly but also had the requisite common object to kill the  deceased.  Formation of common object must be inferred upon taking into  consideration the entire situation. 24.     We may notice that in Munivel v. State of Tamil Nadu [(2006) 9 SCC  394], this Court held : "36. Section 149 of the 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 the  unlawful assembly. Whether a member of such  unlawful assembly was aware as regards 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)"

25.     The motive having been proved and the number of injuries being 20,  in our opinion, leads to only one conclusion that all the accused persons  formed a common object in committing the crime.   26.     The submission of Mr. Javali that one of the accused persons is a  lawyer and another is a teacher is a matter which cannot distract a Court of  Law from arriving at a finding on the basis of materials on record and the  law operating in the field.  If a lawyer was falsely implicated and if he was  not a member of the unlawful assembly, he could have examined defence  witnesses to prove his purported alibi.  He is presumed to know his rights.   Presumably he knows as to how to establish a fact in a court of law. 27.     It is, therefore, not possible to interfere with the well-reasoned  judgment of the High Court only on the aforementioned premise.  There is  no quarrel with the proposition that an order of acquittal should not  ordinarily be interfered with as the presumption of innocence of the accused  gets further strengthened by acquittal but the same by itself would not mean  that the appellant court cannot review the evidence on record and interfere  with the findings of the Trial Judge despite existence of compelling reasons.           In Mani Pal & Anr. v. State of Haryana & Ors. [(2004) 10 SCC 692],  it was held : "12. There is no embargo on the appellate Court  reviewing the evidence upon which an order of  acquittal is based. As a matter of fact, in an appeal  against acquittal, the High Court as the court of  first appeal is obligated to go into greater detail of

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the evidence to see whether any miscarriage has  resulted from the order of acquittal, though has to  act with great circumspection and utmost care  before ordering the reversal of an acquittal.  Generally, the order of acquittal shall not be  interfered with because the presumption of  innocence of the accused is further strengthened by  acquittal. The golden thread which runs through  the web of administration of justice in criminal  cases is that if two views are possible on the  evidence adduced in the case, one pointing to the  guilt of the accused and the other to his innocence,  the view which is favourable to the accused should  be adopted. The paramount consideration of the  Court is to ensure that miscarriage of justice is  prevented. A miscarriage of justice which may  arise from acquittal of the guilty is no less than  from the conviction of an innocent. In a case where  admissible evidence is ignored, a duty is cast upon  the appellate Court to re-appreciate the evidence  where the accused has been acquitted, for the  purpose of ascertaining as to whether any of the  accused really committed any offence or not. [See  Bhagwan Singh and Ors. v. State of Madhya  Pradesh (2002 (2) SCC 567). The principle to be  followed by appellate Court considering the appeal  against the judgment of acquittal is to interfere  only when there are compelling and substantial  reasons for doing so. If the impugned judgment is  clearly unreasonable and relevant and convincing  materials have been unjustifiably eliminated in the  process, it is a compelling reason for interference."

       Therein, the conclusion by the trial court upon objective analysis with  regard to the acceptability or otherwise of the rival stands taken, it was  found that the judgment of acquittal should not have been interfered with. 28.     Reliance has also been placed on Ram Swaroop & Ors. v. State of  Rajasthan [(2004) 13 SCC 134] wherein this Court reiterated as under : "It is well settled that if two views are reasonably  possible on the basis of the evidence on record, the  view which favours the accused must be  preferred."           Such an observation, however, was made after this Court went  through the evidences brought on record as also the findings recorded by the  trial court vis-‘-vis the High Court to arrive at the conclusion that the  interference was not warranted.  The same view has been taken in Budh  Singh & Ors. v. State of U.P. [(2006) 9 SCC 731], wherein upon going  through evidences on record, this Court opined that the High Court was not  correct in arriving at the conclusion that the view of the trial court was  wholly perverse and could not be sustained by the materials brought on  record. 29.     Recently, however, in Mahadeo Laxman Sarane & Anr. v. State of  Maharashtra [2007 (7) SCALE 137], it was held: "18. We have heard counsel for the parties at  length. We are conscious of the settled legal  position that in an appeal against acquittal the High  Court ought not to interfere with the order of  acquittal if on the basis of the some evidence two  views are reasonably possible - one in favour of  the accused and the other against him. In such a  case if the Trial Court takes a view in favour of the  accused, the High Court ought not to interfere with  the order of acquittal. However, if the judgment of  acquittal is perverse or highly unreasonable or the

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Trial Court records a finding of acquittal on the  basis of irrelevant or inadmissible evidence, the  High Court, if it reaches a conclusion that on the  evidence on record it is not reasonably possible to  take another view, it may be justified in setting  aside the order of acquittal. We are of the view that  in this case the High Court was justified in setting  aside the order of acquittal." [Emphasis supplied]

30.     In Swami Prasad v. State of Madhya Pradesh [2007 (4) SCALE 181],  this Court opined: "15. However, it is equally true that the High  Court while entertaining an appeal against a  judgment of acquittal would be entitled to consider  the entire materials on records for the purpose of  analyzing the evidence. There is a presumption  that an accused is innocent, unless proved  otherwise. When he is acquitted, the said  presumption, becomes stronger. But it may not be  correct to contend that despite overwhelming  evidence available on records, the appellate court  would not interfere with a judgment of acquittal.  {See Chandrappa and Ors. v. State of Karnataka  2007 (3) SCALE 90.}"

31.     Which case, therefore, deserves interference at the hands of the  appellate court would depend upon the fact situation obtaining therein.   Legal propositions must be applied having regard to the fact of each case.   32.     In view of our findings aforementioned, there is no merit in this  appeal.  It is dismissed accordingly.