14 October 2004
Supreme Court
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STATE OF KARNATAKA Vs PAPANAIKA

Case number: Crl.A. No.-000590-000590 / 1999
Diary number: 6107 / 1999


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CASE NO.: Appeal (crl.)  590 of 1999

PETITIONER: State of  Karnataka  

RESPONDENT: Papanaika & ors.

DATE OF JUDGMENT: 14/10/2004

BENCH: B.N.Agrawal & A.K. Mathur

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

       This appeal  is directed against an order of the Karnataka High  Court whereby the Division Bench of the High Court has acquitted all  the six accused persons by its order dated April 3,1998 passed in  Criminal Appeal No.962 of 1996. Hence the present appeal has been  filed against the order of acquittal of the aforesaid six accused  persons.

       Brief facts which are necessary for disposal of this appeal are  that a charge-sheet was filed by  Kavalande Police-Station against 17  accused persons  under Sections 143, 147, 148, 341, 302 and 324 of  the Indian Penal Code ( hereinafter to be referred to as "I.P.C.") read  with Section 149, I.P.C. Allegations were that accused 1 to 17 on  March 24, 1996 at about 4.00 p.m. at Mallahalli village, Nanangud  Taluk, formed an unlawful assembly with the common object to cause  the death of Dasanaika, husband of P.W.1. In pursuance of such  common object such assembly was formed and they were armed with  deadly weapons like Chopper, iron rod, clubs and stones.  All the  accused persons wrongfully restrained Dasanaika and murdered him  intentionally causing injuries. They also caused injuries on P.W.4 by  stone. It is alleged that there are rival factions in the village and the  whole incident  leading to lodging of F.I.R. is alleged to have taken  place in the early hours of March 24, 1996 when P.W.1 Malligamma,  went to the village well  for fetching water. It is alleged that she had  filled one pitcher and she was drawing water to fill the next pot,  at  that time Jayaraju, son of Puttamada Nayak- A-3, came there to fetch  water for his bullocks. Jayaraju allowed the bullocks to take water  from one pitcher filled by Malligamma. This was objected to by P.W.1.  Thereupon, Jayaraju kicked the water pitcher and kicked P.W.1.  However, with the intervention of other elderly women  Karigamma,  Nanjamma and Kempanaik , she was persuaded to go back to her  house. In the afternoon at 2.30 P.M. when her husband came back  from Nanjangud Court she narrated whole incident  of the  maltreatment given by Jayaraju to her and she asked him to lodge a  complaint. But her husband went to his younger brother, Puttaswamy  for consultation and thereafter they went to their elder brother,  Ponnanaika. The houses of Puttaswamy and Ponnanaika are  adjacent to each other. It is alleged that at 4.00 P.M. she heard some  shouting  and she saw her husband, Dasanaika was being chased by  a group of 10 to 12 persons. They were all persons of other factions  of the village and they were chasing her husband towards the house  of Chairman-Dasanayaka. It is alleged that A-1, Papanaika was  holding a chopper, A-2, Mahadevanaika @ Mahadeva  @  Chikkavanu  son of Govindanaika was armed with an iron rod and A- 7  & A-8 were holding clubs and other accused persons had clubs or

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stones in their hands. When her husband, Dasanaika came near the  house of Chairman-Dasanayak, A-1 gave a blow by his chopper on  the head of her husband and on other parts of the body. Similarly, A- 2, Mahadevanaika beat her husband by means of an iron rod on  different parts of the body and rest of the accused persons beat her  husband with the clubs and stones.  She ran towards her husband to  rescue him and  she raised her hands to ward off the blows on her  husband; the blows fell on her right hand and caused injuries to her  wrist.  Her husband fell down and became unconscious. Meanwhile,  one Shankar, P.W.4, son of Ponnanaika came running to  rescue her  husband but he was also beaten with stones and clubs which hit his  forehead and all over his body. He fell down near the house of  Ramanaika and became unconscious. A report of this incident was  immediately lodged at the Police-Station  and on the basis of the  statement of the P.W.1, an F.I.R. was chalked out. Thereafter,  Dasanaika, the injured was immediately taken to the hospital and  ultimately he succumbed to his injuries. He received as many as 29  injuries on dissection of his body, 9 injuries were also found including  fracture of parietal and occipital bones and fractures on the hands  and feet.  After necessary investigation, the police filed challan  against 17 accused persons.  Prosecution examined as many as  36  witnesses and got a large number of documents exhibited. The police  arrested the accused persons, the chopper and iron rod were   recovered at the instance of the accused persons.  Out of the 36  witnesses, there are seven eye witnesses examined by the  prosecution and rest of the witnesses were to the recovery of the  seized articles  and the medical evidence.

       The case was ultimately committed to the Court of Session and  learned II Addl. Sessions Judge, Mysore after scrutinizing all the  evidence came to the conclusion that so far as the guilt of the  accused, A- 1 to A-6, it is fully established and convicted and  sentenced  A-1  to undergo R.I. for one month under Section 341, for  two years under Section 324 and imprisonment for life under Section  302 read with Section 149, I.P.C. A2 to A-6 were sentenced to  undergo R.I. for one month for the offence u/S 341 I.P.C. and  imprisonment for life for the offence under Section 302 read with  Section 149 I.P.C.

       Aggrieved against the said order of conviction and sentence,   A-1 to A-6 preferred an appeal before High Court and the Division  Bench of the High Court acquitted all the accused persons  on the  ground that when the witnesses were disbelieved for large number of  accused persons involved, therefore, it is not trustworthy to uphold  the conviction of the six accused persons on the basis of the same  evidence. Hence, the learned Division Bench acquitted all the  accused persons.

       Aggrieved against the said order of acquittal dated April 3,1998  passed by the Karnataka High Court,  the present appeal was filed by  the State of Karnataka.

       Learned counsel for the appellant-State submitted that in view  of the consistent and reliable  statement of the eye witnesses, the  Division Bench of the High Court has completely gone wrong in  reversing the order of conviction into an acquittal simply on the  ground that the evidence of some of the witnesses  were inconsistent  about the alleged occurrence and moreover large number of accused  persons had been acquitted by the learned trial court, therefore it is  not safe to believe this evidence to uphold the conviction for  remaining accused.  Learned counsel for the appellant read out to us  the statement of the eye witnesses and tried to persuade us that  small discrepancy in the version is just but natural and relationship  between the parties cannot be a ground to disbelieve all the eye  witnesses.  Learned counsel for the appellant also invited our

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attention to some of the decisions of this Court in his support  which  we will deal at appropriate stage.

       As against this, learned counsel for the respondents has taken  us to the statement of the witnesses and  submitted that all the  witnesses are either interested or inimical. He further submitted that  there are two factions in the village and all the witnesses who have  deposed in this case belong to other faction and they are interested  witnesses because of their close relationship with the deceased.  He  also  submitted that the houses of the accused were damaged and A- 1 also received injuries which has not been explained by the  prosecution. Therefore, the prosecution has not come forward with  the correct version of the incident. He submitted that this was a case  of free fight and not a case that the accused persons chased the  deceased and waylaid him and abandoned him to die.  He also  invited our attention to the two medical reports, submitted  by P.W.35  and  P.W.19 and he invited our attention to the post-mortem report  given by P.W.36. He supported the judgment of the High Court.

       We have considered the rival submissions made by learned  counsel for the parties and perused the record.         It is an admitted fact that the deceased was waylaid  on March  24, 1996 by the accused party and in that as per the statement of  P.W.1,  Malligamma, the wife of the deceased, A1, A-2 , A-6 & A-7  and A8, all these  persons participated in beating the deceased. In  her statement, P.W.1 has deposed that on the fateful day when she  protested to her husband about the maltreatment given by Jayaraju,  her husband went to his younger brother’s house and at about 4.00  P.M. when he was returning from his brother’s house he was waylaid  by  A-1, who was holding a chopper, A-2 who was holding an iron rod  and A-7 & A-8 armed with clubs and other accused persons were  having clubs or stones Near the house of Chairman,Dasanaik, A-1  gave the deceased a blow on the head. He hit her husband with  chopper on the head and other parts of the body. A-2, Mahadevanaik  beat her husband by iron rod on different parts of the body. She has  also categorically stated that A-2, Mahadevanaik beat her husband  on his left leg and left shoulder with the iron rod. She stated that she  immediately rushed to the rescue of her husband and placed herself  on him and tried to ward off the blows  with her hand and that a blow  fell on her right hand and caused injuries to her wrist. She deposed  that  while her husband fell down, he became unconscious and could  not speak. She has further deposed that meanwhile, Ponnanaika’s  son Shankar came running to her rescue and he was also beaten by  clubs and stones and he fell down near the house of Ramanaika  and  these accused beat him with clubs and stones. She also deposed  that other accused persons beat her husband who had fallen down,  with clubs and stones and left the place thinking him to be dead.  It is  alleged that at about 7-8  P.M. police party came and they asked  about the incident and she narrated them the whole incident. They  reduced the same to a complaint and took her thumb impression.  Thereafter, her husband and Shankar were taken to Nanjagud  Hospital and there the doctor examined her husband and asked her  to take him to Mysore. Thereafter, her husband was taken to  K.R.Hospital, Mysore and at about 11 a.m. next morning he expired.  Another injured i.e. Shankar was  admitted to a different ward. She  has identified the chopper and iron rod with which her husband was  assaulted. She was also cross-examined  at length and she was  specifically confronted that she has not given all the names of the  accused persons in the F.I.R. to which she has explained that she  was dazed and therefore she could not furnish all the names. She  has very categorically stated that  A-1, Papanaika was having the  chopper  in his hand and A-2 was having iron rod and A-7 & A-8 were  armed with clubs. She has deposed that she has given all the names  of 17 persons in her complaint.  Therefore, from her statement  it is  clear that she has categorically deposed that she has identified A-1

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i.e. Papanaika and A-2, Mahadevanaika who were armed with  Chopper and iron rod respectively. She has also mentioned that A-7  & A-8  gave blows with the clubs. Of course later on she has tried to  develop that 17 persons tried to beat her husband. May be this was  her improved version but so far as the version with regard to A-1, A-2,  A-7 & A-8 is concerned, there is  no doubt about their participating in  the incident.  

       P.W.2 \026Karigamma was also injured witness. His version more  or less supported the version of P.W.1. She deposed that  when the  deceased Dasanaika was waylaid by the attacking party and A-1 hit  Dasanaika on different places on head with chopper in his hand, A-2  also hit Dasanaika with iron rod and A-3 to A-6 hit Dasanaika by  means of clubs and stones on his head.  Other accused persons  assaulted by means of stones and clubs. It is alleged that after the  incident, A-1 & A-2 left their chopper and iron rod. She was also  cross-examined at length and she has supported the version given  out by P.W.1. P.W.4, Shankar is the nephew of the deceased. He has  also supported the version given out by P.Ws. 1 & 2. and he has  deposed that he saw A-1, Papanaika was holding a chopper, A-2 \026 Mahadevanaika was holding an iron rod, A-3 Puttamadanaika , A-4 \026 Chikkamadanaika @ Dore, A-6- Mahadevanaika and A-5  Chikkakalanaika  were having clubs in their hands. He deposed that  A-1 gave a chopper blow on the head of his uncle and he fell down  and A-2 Mahadevanaika @ Mahadeva @ Chikkavanu gave a blow  with the iron rod and A-3 to A-6 gave blows by means of clubs in their  hands and other accused persons assaulted with the stones. He  deposed that he ran to the rescue of his uncle and at that time,  Papanaika shifted the chopper to his left hand and taking a stone in  his right hand threw the same towards him and it hit on the upper  portion of his forehead. At the same time, other accused persons also  hit him with stones which hit him on different parts of his body.  Sensing the danger he tried to run from the place but he fell down  near Ramanaika’s house and became unconscious. He has also  identified the chopper as well as the iron rod. He has also recognized  the clubs which were in possession of A-3 to A-6. P,W.5 \026 Kempanaika has more or less supported the version given out by  P.Ws.1, 2 & 4. He has deposed that A-1 was having a chopper and  A-2 was having an iron rod and the remaining accused i.e. A-3 to 6  were armed with clubs and others were throwing stones. He has also  supported the version that P.W.1 fell on her husband to save him and  Shankara also came to rescue his uncle. But Shankara fell down and  became unconscious. He has also identified  the chopper and iron  rod. Similar is the version of P.W.6 and P.W.7. Learned Additional  Sessions Judge believed all these witnesses and after appreciating  the evidence came to the conclusion that there is no inconsistency  between them so far as these six accused persons are concerned. A  major grievance of learned counsel for the defence was that all these  witnesses belong to the other factions and they are all relations and  there is litigations pending between the parties. Therefore, their  testimony should be discarded as a whole.  Learned counsel for the  defence has also emphasized that A-1 also received injuries and the  houses of other factions were damaged and lastly he faintly  contended that  there is also right of defence to property and he  ultimately submitted that this is a case of free fight and the other  part  of the story has not been highlighted by the prosecution. It is true that  while appreciating the evidence of the prosecution witnesses utmost  care and caution has to be exercised by the trial court. This aspect  was very closely examined by  learned Additional Sessions Judge  and therefore, he has acquitted all the remaining accused persons  except these six persons, against  whom  he found there is no   ambiguity about the version.  We have also examined the evidence of  all these witnesses and we are of opinion that  the appreciation of  evidence done by  learned  Additional Sessions Judge appears to be  correct and the Division Bench of the High Court  came to the

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conclusion without discussing the evidence of the prosecution  witnesses in detail and has erroneously disposed of the matter  taking  into account that when prosecution witnesses have indulged in over  implication then what is the credibility of prosecution witnesses qua  other accused persons. Therefore, the High Court  took an easy  approach in disbelieving all prosecution witnesses. This approach of  the High Court was not correct. It is common experience that  sometimes witnesses are prone to lapse of memory and sometimes  they overstate the facts but simply because the statements of the  witnesses are partly not trustworthy that does not mean that the  whole of the testimony of the witnesses should be discarded. After  going through the statements of P.W.1,  the wife of the deceased and  P.W.4, Shankar, there cannot be any two opinion on the matter that  they are natural witnesses and they are close relations and they will  not wrongly depose so far as the real assailants are concerned.  Therefore, learned Additional Sessions Judge after appreciating the  evidence of the witnesses i.e. P.Ws.1 & 4 found that there is  consistent evidence against A-1 to A-6 and he has discarded the  evidence as against the other accused persons and acquitted them.  The approach of learned Additional Sessions Judge appears to be  correct, he scrutinized  the  evidence  closely and he convicted these  six accused persons against whom there is sufficient evidence  fully  corroborated by eye witnesses.  He gave a benefit of doubt  to others  where there was  conflicting evidence with regard to role played by  them or their presence at the  time of occurrence.   He has relied on  the testimony of prosecution witnesses who have fully corroborated  the testimony of PW1 & PW4 by the other ocular witnesses like  P.Ws.2,3,5,6 & 7 as well    as by    medical evidence.  Criminal  Courts while  appreciating testimony of witnesses should not take  easy approach. Some exaggeration or embellishment can appear in  the testimony because of lapse of time or poor memory. Therefore,  wherever courts find sufficient corroboration then testimony of such  witnesses should be accepted. It is true that when the deceased was  taken to the hospital, all the injuries were not mentioned by the  doctors who treated him but the fact remains that in the post-mortem  report, all the injuries received by the deceased have been given in  detail and  as such there is no reason to disbelieve that post-mortem  report. It is not the case of the prosecution that the post-mortem  report has not been properly prepared or  there is any inconsistency  in the post-mortem report.  In the post-mortem report  it has been  mentioned that the deceased is said to have received  38 total  injuries, the doctor  has noted 29 external injuries and on dissection  of the body of the deceased, he  found 9 more injuries like   fracture  of the parietal and occipital bones, fracture of both corneas of hyoid  bone, haematoma around the facture side, osterior dislocation of right  elbow joint, fracture of left ulna at the junction of middle and lower  1/3rd. The nature of injuries corresponds  with the version given out  by the prosecution witnesses. As per the statements of P.Ws.1 & 4,  it  is categorical  that the deceased was given blow on the head by  chopper and  these injuries correspond with parietal and occipital  regions and also injuries on various parts of the body which can be  caused by iron rod and clubs & stones. Therefore, these injuries  received by the deceased correspond with the version of the  prosecution witnesses. In this connection our attention was invited to  a decision of this Court in the case of Surinder Singh & Anr. V. State  of U.P. reported in (2003) 10 SCC 26. In the said case, Their  Lordships have observed as follows:

               "An order of acquittal should not be lightly  interfered with. Though the appellate court has  full power to review the evidence upon which the  order of acquittal is founded, still while  exercising such an appellate power in a case of  acquittal, the appellate court should not only  consider every matter on record having a

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bearing on the question of fact and the reasons  given by the courts below in support of its order  of acquittal, it must express its reasons in the  judgment which led  it to hold that the acquittal is  not justified.

               Thus, 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. In the instant case, the  High Court has discharged the aforesaid  obligation as required and by careful analysis  demolished each one of the fundamentally weak  reasonings  given by the trial court."

This Court has further observed with regard to the related witnesses  and observed as follows:

                 "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 a plea of  false implication is made. In such cases, the  court has to adopt a careful approach and  analyse the evidence to find out whether it is  cogent and credible. Hence, the ground that the  witness being a close relative and consequently  being a partisan witness, should not be relied  upon, has no substance."

On medical evidence also their Lordships observed that when there is  inconsistency between the ocular testimony and medical evidence,  then the ocular evidence should not  be discarded unless  it is found  that the medical evidence totally improbablises the ocular evidence.   Similarly, our attention was invited to a decision of this Court in the  case of Kalyan & Ors. v. State of U.P. reported in (2001) 9 SCC 632  wherein it has been observed as follows:

               " The settled position of law on the  powers to be exercised by the High Court in an  appeal against an order of acquittal is that  though the High Court has full powers to review  the evidence upon which an order of acquittal is  passed, the principle of presumption of  innocence of the accused persons is also  equally well settled. Normally the views of the  trial court, as to the credibility of the witnesses,  must be given proper weight and consideration  because the trial court is supposed to have  watched the demeanour and conduct of the  witnesses and is in a better position to  appreciate their testimony. The High Court  should be slow in disturbing a finding of fact  arrived at by the trial court."

Similarly, our attention was invited to another decision of this Court in  the case of  Wilayat Khan & Ors. v. The State of U.P   reported in AIR

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1953 SC 122.  In that case,   it has been observed as follows:

       "  Even in appeals against acquittals, the  powers of the High Court are as wide as in  appeals from conviction. But there are two  points to be borne in mind in this connection.  One is that in an appeal from an acquittal, the  presumption of innocence of the accused  continues right up to the end; the second is that  great weight should be attached to the view  taken by the Sessions Judge before whom the  trial was held   and who had the opportunity of  seeing and hearing the witnesses."

Therefore, from the ratio of the above decisions it is more than clear  that while the High Court has full power to interfere with the finding of  the trial court but the High Court should be very slow in reversing the  decision of the trial court because the trial court has the occasion to  watch the demeanour of the witnesses very closely. There is no two  opinion that the High Court has full power to re-appreciate the  evidence and come to a conclusion independently but the conclusion  which is arrived at  by the High Court should be rational and proper  appreciation of the testimony of the witnesses. In the present case,  the High Court has not examined the statement of the witnesses and  just on a bald statement that when the prosecution version has  been  accepted in full and the witnesses have tendency to over implicate,   then what is the guarantee that other part is also true. The Division  Bench has disbelieved the entire prosecution evidence.  This  approach of the High Court, in our view, is not correct. There should  be proper appreciation of evidence and finding has to be recorded  against each witness as to why the said witness is not being believed  when he was  believed by the trial court. On the contrary, we have  closely examined the evidence of the witnesses and after taking chaff  from the grain we found that so far as the statement of P.W.1, the  wife of the deceased and P.W.4, Shankar, the nephew of the  deceased, their testimony is trustworthy and there is no reason to  disbelieve these two witnesses  leave apart other eye witnesses.  These two witnesses who were injured witnesses as they were  examined by the doctors and P.W.4, Shankar who received such  serious injuries  that he became unconscious, therefore, the  testimony of these two witnesses is wholly reliable so far as these  accused persons are concerned and they have been corroborated by  other eye witnesses i.e. P.Ws.5,6 & 7and they have been supported  by the medical evidence also. We are of the view that  the testimony  of these witnesses fully substantiate the prosecution case.

       Now, coming to the question that the houses of the accused  persons were damaged and A-1 was also injured, these two factors  which have been pressed in to service by learned counsel for the  defence would be of no avail. When such an incident took place and   the accused persons were assaulting the deceased and P.W.1 and  P.W.4 came to rescue the deceased, in that some injuries might   have been received by A-1. That does not negate the prosecution  case, the injury on the person of A-1 cannot improbablise  the whole  of the prosecution case. Some damage to the house of accused does  not cast any shadow of doubt on prosecution story.

       As a result of the above discussion, we allow the State appeal,  set aside the order passed by the High Court in Criminal Appeal  No.962 of 1996 on April 3, 1998, acquitting the accused  and affirm  the conviction and sentence passed by the IInd Additional Sessions  Judge, Mysore in S.C.No.46/1986. The accused persons who are on

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bail, their bail bonds are cancelled and they shall surrender before  the trial court to serve out the remaining sentence within one month.  In case they fail to do so, the Superintendent of Police shall arrest  them and send them to jail to serve out the sentence.