Halappa Pujar & Ors Vs. State of Karnataka  Insc 480 (27 April 2007)
S.B. Sinha & Markandey Katju
S.B. SINHA, J.
Appellants herein have filed this statutory appeal under the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 being aggrieved
by and dissatisfied with the judgment dated 9.6.2005 passed by a Division Bench
of the High Court of Karnataka at Bangalore in Criminal Appeal No.252 of
1999(A) whereby and whereunder, a judgment of acquittal passed by a III
Additional Sessions Judge, Dharwad acquitting the appellants herein for offence
punishable under sections 143, 147, 148, 341, 324, 342, 504 and 302 read with
Section 149 of I.P.C., was reversed.
The alleged occurrence took place at about on 13.12.1994 near the Bus stand at Village Ichangi situated
in the District of Dharwad. A First Information Report was lodged by one
Devendrappa (PW-25). He is the brother of appellants 1 and 2 herein being
original accused nos.1 and 2.
Appellant no. 4 is married to the sister of the appellants 1 and 2.
Appellants 1 and 2 and the first informant allegedly sold 5 acres 20 gunthas of
land situated in the said Village Ichangi to deceased Ratnavva. The contention
of the accused no.1, however, was that his signature on the alleged deed of
sale was a forged one. The property, however was in possession of the deceased
Ratnavva. On 13.12.1994 at about 7.30 A.M. Ratnavva and her sons Shivananda
Basavaraj and Veeresh went to the land in question for plucking groundnuts. The
accused persons in furtherance of their common object of assaulting them came
to the land in question with deadly weapons. They chased Devendrappa and
assaulted him. They assaulted the deceased with sticks causing bleeding
injuries. They were also abused. Allegedly in the scuffle that followed,
accused no.1 instigated accused no.4 to stab Devendrappa and when an attempt
was made in this behalf, bleeding injuries accidentally were caused to accused
no.1. Devendrappa ran away from the said place. He was, however, caught near a
place known Udachammana Gudi at Ichangi. His hands were tied. He was wrongfully
confined to the house. It is stated that the accused persons also threw stones
at the deceased and her companions PWs.26 to 28. One of them had hit the
PWs.25 to 28 being frightened, moved a little away from the scene leaving
the deceased on the spot. She was forcibly taken near the Bus stand of their
village, tied to an electric pole and her garments were taken off. She was tied
around her neck with her own saree. She was assaulted with sticks. She begged
for water but the same was denied to her. The accused continued to assault her
with sticks. She breathed her last at that spot. The first informant
Devendrappa (PW-25) who was kept confined in his house allegedly had become
unconscious. After regaining consciousness he came to know of the said murder
and lodged the First Information Report.
The post-mortem examination of the deceased was conducted by Dr.
Mohantappa (PW-13). The dead body was received at the hospital for post
mortem examination on or about 11.30 P.M. in the night. The post-mortem
examination was conducted in the morning of 14.12.1994. PW 13 found the
following external injuries on the dead body :- "1. Oblique ligature mark
on the upper part of the neck, mark is interrupted, stating from right angle of
the jaw and along the border of the mandible and to the left angle of the jaw,
traversing to the nape of the neck, measuring about 14"2 x in length.
Interrupted ligature mark along the lower border of jaw from right to left side
of the jaw 4 in No. measuring 1" x =" x = x =' x =' x =" x
respectively. Ligature mark on the middle of the nape of measuring =" x
=". Ligature marks were reddish, dry, parchment like, ecchymosed margins.
Both the hands were clinched.
2. There are 3 ligature marks on the right forearm about 3" away from
the wrist, measuring 6" x <", 8" x <, 8 =" x1/4"
3. Ligature marks on the left fore arm two in No.
measuring 5 =" x <", 5" x <" respectively.
4. There was fracture of left thigh bone lower 1/3rd about 2" away from
the knee joint.
5. Contusion on left knee joint medial aspect measuring 3" x 2"
Multiple contusions were found on the body.
6. Contusion on left infracbuicular region measuring 2" x 3".
7. Contusion abrasion on the right elbow posterior aspect measuring 2"
8. Contusion on left knee front aspect measuring 5" x =".
9. Two contusion on lateral and front of left thigh measuring 3 =" x
3", 3" x 3" respectively.
10. Contusion on left buttick and posterior aspect of thigh measuring 6
=" x 3", 3 <" x 3" respectively, 2" x 1".
11. Abrasion on left side of the ankle measuring =" x =".
12. Contused abrasion of left lateral aspect of ankle measuring 2 =" x
13. Contusion on lateral aspect of left leg upper part measuring 3 =" x
14. Two contusions on right thigh measuring 2" x 2", 4 =" x
15. Abrasion on the right thigh lateral aspect measuring 1 =" x
16. Contusion on the right buttock measuring 1 =" x =".
17. There was no fracture of Hyoid bone, Thyroid cartilages or tracheal
18. Multiples small abrasion on right side of buttock measuring =" to
1" in length <" to =" in width."
In the opinion of the autopsy surgeon, the injury No.1 ligature mark can
also be caused if saree piece is rolled and tied around the neck. It can also
be caused by a rope. Injuries Nos. 2 and 3 can be caused if rope is tied to
that part of the body. Injury 4 on the body of the deceased it was opined,
could be caused by a hit with hard and blunt substance like stick. The other
injuries namely contusion and abrasions can be caused by stick, and also with
the fists and with kicks. The injuries around the neck were sufficient to cause
Devendrappa was also examined by one Dr. Achut Kumar Vasant.
He found the following injuries on his person :
5m x 3mm abrasion with 2 cm x 2 cm swelling on the back of the head in the
occipital region. The said injuries according to him could not be
Before the learned Trial Judge, a large number of witnesses were examined on
behalf of the prosecution. PWs.1 to 8, 10, 11, 19, 20, 21 and 29 who were
either eye witnesses or Panch witnesses turned hostile. PW.9 Karveerapa
Chenbasapa, however, proved the Panchnama which was marked Ext.p-14. The
panchnama was drawn in respect of the spot where Ratnavva was found dead. He,
however, refused to prove the contents of the other panchnamas. He was also
Before the learned Trial Judge, an auto driver Huchappa Basappa Parasannavar
was examined as PW.2 to prove that accused no.1 was carried in his tempo to the
Handignur Government Hospital. Almost for the said purpose, one Rafiq Abdulsab
Havaldar was examined as PW.18. He, however, did not support the prosecution
Learned Trial Judge recorded a judgment of acquittal opining that the
prosecution case has been supported only by the first informant Devendrappa,
sister of the deceased Chembavva and sons of the deceased Shivananda,
Basavaraj, PW.27 and Veeresh, PW.28 on whose evidence no reliance can be
placed. The learned Trial Judge took into consideration the defence of the
accused that the deceased and her sister were of loose moral character and
although married, had left their respective husbands. It was noticed that the
deceased had been living with the first informant and in view of their immoral
conduct the villagers were against them. It was held that Accused no.1
allegedly had suffered a stab injury at the hands of the prosecution witnesses
and was taken to the hospital at about 9.30 A.M. on that day whereafter only
the villagers killed the deceased. The learned Trial Judge further held that
PWs.25, 26, 27 and 28 being interested witnesses were not reliable.
The Division Bench of the High Court, however, opining that there was no
reason to disbelieve the said PWs.25 to 28, particularly when PW.25 was an
injured witness, differed with the said findings holding :
"39. It might be that PWs 26 to 28 are the close relatives of the
deceased. The central evidence against the accused consists of their evidence
who have given a complete narration of the prosecution case. Though they are
the close relatives of the deceased, they cannot be termed as the interested
witnesses. The witness is normally to be considered independent unless he or
she springs from sources which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily a close relative would be the last to screen
the real culprit and falsely implicate an innocent person. It is true, when
feelings run high and there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom a witness has a grudge
along with the guilty, but foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is often a sure guarantee
of truth. There cannot be any mechanical rejection of their evidence on the
sole ground that it is the evidence of partisan or interested witnesses.
Therefore the mere fact that PWs.26 to 28 are the close relatives of the
deceased is not sufficient to discard their testimony given in Court, more so,
when their evidence does not suffer from any such infirmity.
40. For these reasons, we are of the view that we are unable to reject the
evidence of PWs.26 to 28 on the ground that they are the relatives of the
deceased. We have ourselves carefully gone through the entire evidence of
PWs.26 to 28 and we find that shorn of a few embellishments here and there,
their evidence read as a whole in its entirety is acceptable. Moreover the
testimony given by them in Court stands corroborated from the medical evidence
on record. They have given a true and correct description of what they had
seen, observed and comprehended at the spot."
The High Court, however, gave benefit of doubt to A6 to A8. The case against
A9 abated as he died during trial. Appellants before us were convicted by the
High Court under sections 143, 147, 148, 341, 342, and 302 read with Section
149 of I.P.C. They were sentenced to undergo imprisonment for life and a fine
of Rs.1,000/- for commission of the offence under section 302 read with Section
149 of the IPC, but no separate sentence was passed in respect of the other
offences found to have been committed by the appellants.
Mr. Girish Ananthamurthy, learned counsel appearing on behalf of the
appellants, took us through the judgment of the learned Trial Judge to contend
that sufficient and cogent reasons having been assigned in support of the
judgment of acquittal recorded by the learned Trial Judge which was based on
probability and the view taken by it being a possible one, the High Court
committed a manifest error in reversing the said judgment of acquittal.
Mr. Rana Mukherjee, learned counsel for the respondent, however, supported
Before we embark upon the rival contentions of the parties, we may notice
that although the learned Trial Judge noticed the motive of the appellants in
committing the offence, did not deal therewith in his judgment. The High Court,
however, considered the question of motive on the part of the accused to commit
the said offence at some length. Execution of the deed of sale in favour of the
deceased by the three brothers is not in dispute. What was, however, in dispute
was that as to whether appellant no.1 had executed the said deed of sale or
not. Possession of the parties in or over the said land was also in dispute.
Appellants herein and other persons supporting them were bearing ill will
against the deceased and her family. Existence of the land in dispute between
the deceased and the accused stands admitted. Homicidal nature of the death of
the deceased is also not in dispute. The fact that she suffered a number of
ante-mortem injuries is also not in dispute. From the post- mortem report it is
evident that she had suffered injuries almost on all parts of her body. She
suffered even a fracture on left thigh bone.
Learned Trial Judge appears to have totally relied upon the evidence of
PW.22 Veerbhadrappa Sadeppa Gundagavi who was the Medical Officer at General
Hospital, Haveri. According to him accused no.1 was brought to the Hospital by
one Mallangouda Hanman Thagounda Patil with a history of assault. He examined
him and found stab-wound 1 cm. above umbilicus transversally measuring 2-1/2
cm. x = cm. x 1 cm. which was red in colour and since there was no sufficient
facility in that hospital and since the injury was grievous, he was referred to
Chigateri Hospital wherein he was admitted and discharged on 13.2.1995 only. He
proved a purported entry made in the Medical Legal Register maintained at the
General Hospital, Haveri which was marked as Ext.P-25 wherein it was allegedly
mentioned that one Ramappa Halappa Pujar (accused no.1) was brought by one
Mallangouda and another Nellappa Hullur to that doctor with the history of
assault on that day at about 9.30 A.M. with knife by one Shivanand
Allegedly he intimated the concerned Police Station. No document, however,
has been produced to prove the said fact. We have perused the original
register. We have found certain interpolations therein. A certificate was
purported to have been granted only in February 1995. The said certificate has
not been legally proved. The Doctor at Chigateri General Hospital at Davangere
had not been examined by the accused is shrouded by mystery. According to
PW.12, Appellant no.1 was being transported in a tractor. He was, however,
transferred to the auto belonging to PW.12.
PW.18 was the driver of the tractor. Although he was examined on 13.11.1997,
according to him the incident took place a year prior thereto.
He stated the time to be around 10 A.M.. He did not say that he found
accused no.1 to be in an injured condition. He was merely told that he had not
been feeling well. He took him to a distance of one kilometer from the Bus
stand, whereafter he was transferred to a matador van. He could not identify
the accused no.1. PW.12 Huchappa Basappa, however, describes himself to be a
driver of a tempo. He was examined on 24.10.1997.
According to him his tempo was booked two years ago by accused nos.7 and 8
for a trip to Haveri from Hosaritti Bus stand. When accused no.1 was being
brought in a tractor he saw a bandage on his stomach. He was taken to Handignur
Government Hospital and from there to Haveri Government Hospital. The
inconsistencies between evidence of PW.18 and PW.12 is evident. If PW.12 is to
be believed, apart from the mistake in the year in which the accident took
place, the appellant no.1 reached Handignur Government Hospital at 10.45 A.M.
They were there only for 5 to 10 minutes. They reached Haveri Hospital at about
12 O'Clock which was situated at a distance of 25 k.m. Why it took more than
ninety minutes to cover a distance of 25 k.m., is not known. How accused no.1
was being taken to the Handignur Government Hospital when he had a bandage on
his stomach has not been explained. We also notice that although according to
PW.18 the vehicle in which accused no.1 was transported was a matador van,
according to PW.1 he was merely driving a tempo. Appellant no.1 was unconscious
who made a statement in regard to the time of manner of occurrence and the name
of the assailants is not known. Why such a statement had to be recorded has
also not been disclosed. PW.22 must have examined the accused no.1 only for a
few minutes. He might have given only the first aid.
How he could prove the entries made in the general register has not been
The time factor taking into consideration the findings of the learned Trial
Judge would be a relevant piece of evidence. According to the prosecution the
occurrence took place at about 10.30 A.M. It must have started round about 9.30
A.M. The manner in which the occurrence took place at three different places
goes to show that it must have taken some time. Possibility of the appellant
no.1 sustaining a stab injury at the instance of the prosecution witnesses or
others is not clear. Prosecution, at least, has come out with some explanation
as to how he suffered a stab injury. On the other hand, the appellants had not
offered any explanation whatsoever. It is unbelievable that in a situation of
this nature, particularly when an accused had suffered a grievous injury for
which he was allegedly required to remain in hospital for more than 2 months,
would not be reported to the police.
PW.22 although stated that he had reported the matter to the police; no
attempt was made to obtain production of the said document. The copy of the
said report had also not been produced by PW.22.
Accused no.1 had not been arrested. If he was undergoing treatment at the
hospital for such a long time, he himself could have lodged a first information
report. The other villagers also could have done the same.
Sustenance of the injury at the hands of the prosecution witnesses in
ordinary course should have been disclosed by the Panch witnesses.
Investigating Officer in his deposition stated that he came to learn about
the said injury in the course of his investigation only on 16.12.1994. He had
not carried out any investigation in relation thereto. Presumably he did not
feel any necessity therefor. The learned Sessions Judge made a caustic remark
thereabout. Performance of statutory duties of the Investigating Officer making
investigation properly or not may be a subject matter of comment but, in our
opinion, the High Court cannot be said to have committed any mistake in not
getting swayed by the said fact alone.
If the defence story in regard to sufferance of injury by accused no.1 at
9.30 A.M. is not believed, much of the reasonings adopted by the learned
Sessions Judge to record a judgment of acquittal in favour of all the accused
persons become unsustainable. The manner in which the deceased met her death
would show that she had been brutally assaulted by a large number of persons.
She was tied with a wooden pole and not only she had been assaulted all over
her body, an attempt was made even to hang her by using her saree.
The investigation started without any delay. Statements of a large number of
witnesses were recorded on 13.12.1994 itself. Witnesses turned hostile. The
same by itself would not negate the prosecution case. The very fact that the
villagers in a case of this nature had turned hostile would, on the other hand,
show that there was a ring of truth in the prosecution case.
It is in the aforementioned backdrop, the High Court opined :- "38. It
is no doubt true that except PWs.25 to 28, all other eyewitnesses have turned
hostile. But that by itself is no reason to discard the evidence of PWs.25 to
28. On the other hand, it would show that no independent witness from the village
is prepared to come forward to depose against the accused persons. If the other
witnesses were not eyewitnesses to the incident, why should the Investigating
Officer record their statement falsely if they have not stated so. Be that as
it may be.
Merely because the other eyewitnesses examined by the prosecution have
turned hostile and did not support the prosecution version for the reason best
known to them, that by itself does not corrode vitality of the prosecution
version particularly when the witnesses who have supported the prosecution
version viz. PWs. 25 to 28 have withstood the incisive cross-examination and
pointed out the accused as the perpetrators of the crime. There is nothing
unusual in a criminal trial that many a times independent witnesses who do not
want to incur the wrath of the accused will turn hostile at the trial. It is
the tendency on the part of the persons to play safe by remaining
The High Court has noticed and in our opinion rightly that although the
prosecution witnesses turned hostile, they made no whisper about the incident
having occurred in the manner as alleged by the appellants. It is of some
significance that the injuries sustained by PW.25 is not in dispute.
Why the evidence of the injured witnesses was not believed by the learned
Trial Judge is beyond any comprehension. He was the brother of accused 1 and 2.
He was also a party to the deed of sale. The High Court had assigned cogent and
sufficient reasons in relying upon the evidence of PW.25, particularly, when
there are evidences on record to show that he had been assaulted with material
Even if, the version of the respondent that accused no.1 suffered injury at
the hands of PW.27 while he was firmly held by the deceased and PW.26 is
believed, the presence of PWs. 26 and 27 stands accepted.
We, therefore, are of the opinion that keeping in view the fact that PW.26
is the sister of the deceased and PWs.27 and 28 were her sons, their
testimonies before the Court cannot be said to be wholly unreliable. [See Mano
v. State of Tamil Nadu, JT 2007 (5) SC 143] We may also notice that as per
evidence of the Investigating Officer, the accused no.1 when questioned,
declined to tell him anything. If he was not at the place of occurrence at the
time when the incident had taken place, it was expected that he would tell his
side of the story including the manner in which he had suffered injuries to the
Investigating Officer. There was absolutely no reason why he would suppress the
fact from the Investigating Officer. This clearly goes to show that accused
no.1 made all attempts to conceal the circumstances under which he had
sustained injuries on his person. If in the aforementioned situation the High
Court has believed the prosecution story, we do not see any infirmity therein,
particularly, when no complaint was made in that behalf by the accused no.1 or
by anybody else in their behalf to the police.
Accused no.1 has also not raised any plea of self-defence.
Suggestions given to the prosecution witnesses are self-inconsistent and
wholly contradictory to each other. They cannot go together.
We have been taken through the depositions of PWs. 25 to 28. We agree with
the inference arrived at by the High Court as regards credibility of their
evidences before the court. There may be some contradictions in the depositions
of the said witnesses but they are minor in nature. We cannot loose sight of
the fact that they deposed in court about 3 = years after the date of
occurrence and, thus, minor variations from their earlier statements are but
The High Court, thus, in our opinion, in a case of this nature cannot be
said to have committed any error in reversing the judgment of acquittal by the
learned Trial Judge. The jurisdiction of the High Court albeit is limited in
this behalf, as would appear from some of the decisions of this Court but the
High Court in our considered view did not exceed its jurisdiction.
In the facts and circumstances of the case, it was not necessary for the
witnesses to prove the actual role played by each of the appellants.
The High Court had given benefit of doubt to four of them. That by itself is
not decisive. Allegation of overt acts on the part of the appellant is evident.
"36. Section 149 of the Indian 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 regard likelihood of commission
of another offence or not would depend upon the facts and circumstances of each
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].
this Court opined :- "21. The members of the unlawful assembly can be
held liable under Section 149 IPC, if it is shown that they knew beforehand that
the offence actually committed was likely to be committed in prosecution of the
common object. It is true that the common object does not require prior concert
and a common meeting of mind before the attack.
It can develop even on spot but the sharing of such an object by all the
accused must be shown to be in existence at any time before the actual
this Court held :- "8. While deciding an appeal against acquittal, the
power of the Appellate Court is no less than the power exercised while hearing
appeals against conviction. In both types of appeals, the power exists to
review the entire evidence. However, one significant difference is that an
order of acquittal will not be interfered with, by an appellate court, where
the judgment of the trial court is based on evidence and the view taken is
reasonable and plausible. It will not reverse the decision of the trial court
merely because a different view is possible. The appellate court will also bear
in mind that there is a presumption of innocence in favour of the accused and
the accused is entitled to get the benefit of any doubt. Further if it decides
to interfere, it should assign reasons for differing with the decision of the
Reliance has been placed by Mr. Girish Ananthamurthy on a recent (3) SCALE
90]. Therein also it was held :
"42. From the above decisions, in our considered view, the following
general principles regarding powers of appellate Court while dealing with an
appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider
the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate Court on the evidence
before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons',
'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions',
'glaring mistakes', etc. are not intended to curtail extensive powers of an
appellate Court in an appeal against acquittal. Such phraseologies are more in
the nature of 'flourishes of language' to emphasize the reluctance of an
appellate Court to interfere with acquittal than to curtail the power of the
Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused. Firstly, the
presumption of innocence available to him under the fundamental principle of
criminal jurisprudence that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence
on record, the appellate court should not disturb the finding of acquittal
recorded by the trial court."
For the aforesaid reasons, we do not find any infirmity in the judgment of
the High Court. The appeal is accordingly dismissed.