& 0rs Vs. State of Karnataka  INSC 535 (12 November 1998)
B.N.Kirpal M.K. Mukherjee,J.
persons, including the ten appellants before us, were tried by the Sessions
Judge, Raichur for rioting, murder and other cognate offences and acquitted.
their acquittal the respondent-State of Karnataka filed an appeal in the High
Court during the pendency of which three of them died and, resultantly, the
appeal as against them abated. Of the surviving fourteen, the High Court upheld
the acquittal of three and, reversing the acquittal of the other eleven ( who
were arrayed as Al, A2, A4 to AIO, A12 and A1.3 before the trial Court and will
henceforth be so referred to), convicted them under Section 148 I.P.C. and 302,
307, 449, 436 and 201 1.P.C., all read. with Section 149 I.F.C. A9 died
thereafter and the remaining ten filed the instant appeal under Section 379 of
the Code of Criminal Procedure.
According to the prosecution case on October 10, 1985, at or about 1O A.M. the
accused persons formed themselves into an unlawful assembly armed with various
weapons in village Bappur and, in prosecution of their common object, accosted Veerabhadrappa
(P.W.I) and Pampansgowda (the deceased), when they came out of the hotel of Pampayya
(P.W.4) and assaulted the former with a sword near the house of one Nabeebi,
Thereafter they chased P.W.I and the deceased who, being frightened, took
shelter in the nearby house of Meelamma (P.W.5), after bolting the door of the
house from inside. They then attempted to set the house of P.W.8 on fire by
pouring kerosene soaked lighted cotton inside the house. Finding no other
alternative when P.W.8 opened the door of her house, the accused persons
trespassed into it, assaulted P.W.I and dragging the deceased out of the house
killed him with the weapons they were carrying.
then threw the dead body in the hut of one Hajamara Mahantappa and set it on
fire with a view to destroying the evidence of the murder.
P.W.I then went to the Police Station at Turvihar and lodged a complaint. A
case was registered on that complaint and P.W.I was sent to the local hospital
for treatment, Kalakappa (P.W.27), Inspector of Police, took up investigation
of the case and want to the scene of offence.
held Inquest upon the dead body and, after sending it for post-mortem
examination, went in search of the accused persons. Though he failed to
apprehend any of them on that day he found a tractor with trailer parked in
front of the cafe shed of A3 containing various weapons like sticks, sword,
spear and axe. He attached those articles and the tractor. Later on. In course
of the investigation he apprehended the accused persons and seized some weapons
pursuant to their statements. On completion of investigation he submitted
charge-sheet against them.
accused persons pleaded not guilty to the charges framed against them and
contended that they had been falsely implicated due to enmity.
course of the trial the prosecution examined twenty seven witnesses. The defence,
however, did not examine any witness but exhibited certain documents in support
of their case. Of the witnesses examined by the prosecution Veerabhadrappa
(P.W.I), Shankarappa (P.W.2), Yankappa (P.W.3), Pampayya (P.W.4), Mahanthappa
(P.W.6) and Neelamma (P.W8) figured as eye witnesses,
Relying upon the evidence of the doctor (P.W.16), the trial Court first held
that the deceased met with a homicidal death and P,W,1 sustained injuries as
alleged by the prosecution; and then proceeded to consider the evidence of the
five eye witnesses. On consideration thereof it observed that none of them
could be relied upon as their testimony was unsatisfactory and inconsistent.
the trial Court held that the incident did not take place in the manner alleged
by the prosecution and acquitted the accused.
appeal, the High Court first observed that the inconsistencies referred to by
the trial Court were insignificant and it was not at all justified in
discarding the evidence of the eye witnesses on that score. The High Court then
detailed and reappraised the evidence of the eye witnesses and found the same
reliable and fully corroborated by other evidence. Thus, accepting the case of
the prosecution, it convicted the appellants and A9 but gave benefit of doubt
to A15, A16 and A17 in absence of satisfactory evidence to prove their
participation in the incident.
This being a statutory appeal we have, with the assistance of the learned
counsel for the parties, gone through the entire evidence on record and the
judgments of the Courts below. Our such exercise constrains us to say that the
judgment of the trial Court Is, to say the least, perverse. The so called
evidential infirmities, for which the eye witnesses have been disbelieved, are
so trivial that the trial Court should not have referred to the same, much
less, relied upon. To eschew prolixity we refrain from referring to ail of them
except a few to demonstrate the approach of the trial Court in dealing with the
same. In disbelieving P.W,1, the trial Court observed that he was not a
position to say the number of blows given by each of the accused on his person
nor could he say on which part of his body such blow was inflicted. Similar
details he (P.W.I) could not give about the assault on the deceased. For
identical reasons he disbelieved the evidence of some of the other eye
witnesses. On a careful analysis of the evidence of the eye witnesses we have
no hesitation in concluding that the incident took place in the manner alleged
by the prosecution. In drawing this conclusion we have drawn inspiration from
the fact that the evidence stands amply corroborated by the objective findings
of the Investigating Officer about the burnt houses and that of the doctor
regarding injuries found on the person of the deceased and P.W.I.
next question that needs an answer is whether the prosecution has been able to
conclusively prove the participation of the appellants in the incident. Having
given our anxious consideration to this aspect of the matter we find that the
participation of Al, A2, A4, A5 and A8 and their active notes in the incident
stands established by the evidence of two or more eye witnesses. We, therefore,
find no hesitation in upholding the convictions of the above five appellants.
So far as A6 and A7 are concerned, they were identified by P,W,2 only as two of
the fact that a large number of persons were involved in the gruesome incident
we do not feel It safe to sustain their convictions relying solely on the
identification by one witness only. We, therefore, give them benefit of
reasonable doubt. As regards AIO and A13 there is no satisfactory evidence to
conclusively hold that they were members of the unlawful assembly. In other
words, their presence at the scene of the crime as onlookers cannot be ruled
out. Coming now to A12 we find that he has not been named in the F.I.R. lodged
by P.W.I even though he had named all other accused persons therein as the
also, therefore, entitled to the benefit of reasonable doubt.
the conclusions as above, we uphold the impugned order of conviction and
sentence recorded against Mahantappa (Al), Giriyappa (A2), Yankanagouda (A4), Mallanagouda
(A5) and Waddar Mariappa (A8) - who are the appellant Nos. 1,2,3,4 and 7
respectively in this appeal and set aside the same so far as it relates to Shekharappa
(A6), Devanagouda (A7), Nagappa @ Dodda Nagappa (AIO), Bhimanna @ Sanna Nagappa
(A12) and Bheemanagouda (A13) - the other appellants in this appeal. Let A6,
A7, AIO, A12 and A13, who are appellant Nos. 5, 6, 8, 9 and 10 before us, and
are in jail, be released forthwith unless wanted in connection with some other
case. The appeal is, thus, disposed of.