& Ors Vs. State of Karnataka  Insc 402 (9 August 2005)
Reddi & D.M. Dharmadhikari P. Venkatarama Reddi, J.
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
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.
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.
by the reversal of acquittal by the High Court, the present appeal is filed by
the accused Nos. 2 to 4.
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.
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 we take, the ultimate conclusion is correct.
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:
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, PW4a carpenter by profession, was also going to Kumman Sirasgi
along with the deceased.
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.
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.
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 PolicePW13, 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
prosecution case mainly rests on the evidence of PWs 4 & 5.
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 OfficerPW12 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
trial Court disbelieved the evidence of PW4 for the following reasons:
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 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.
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).
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.
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.
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.
be noted that PW5 did not state before the Investigating Officer that PW4 had
seen the incident.
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.
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 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.
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.
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
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 Evidence Act.
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.
J (as His Lordship then was), speaking for a three judge Bench in thus:
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 isif 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.
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.