Chandrappa & Ors Vs. State of Karnataka [2008] INSC 723 (29 April 2008)
S.B. SINHA & HARJIT SINGH BEDI NON-REPORTABLE CRIMINAL APPEAL NO.609/2006 HARJIT SINGH BEDI,J.
1. The facts leading to the filing of this appeal by way of special leave
are as under:
2. PW-1 Bhagyavathi, wife of Thimmappa deceased of village Arebilachi, is
the complainant in the case. Thimmappa was the son of Navilapa. Navilapa had,
in addition, five other sons Devendrappa, Manjappa, Chandrappa, Nagarajappa and
Gadigeshappa and two daughters including Ratnamma PW-2.
Navilapa had about 12 acres of ancestral land and he had divided the said
land equally between himself and his sons and all were in possession of their
respective shares thereafter.
Thimmappa, Devendrappa and Manjappa were residing separately whereas the
other two, Chandrappa and Gadigeshappa, were residing in their old family home
whereas Nagarajappa was residing with his father Navilapa and his sister
Ratnamma. Thimmappa, however, acquired about 10 acres of land on his own but
his brothers Chandrappa and Gadigeshappa were demanding a share out of this
land as well and on account of this development, the relationship between the
brothers had become strained. Chandrappa and Gadigeshappa also filed a suit
seeking a share in the 10 acres acquired by Thimmappa with the result that the
relation between the brothers was further strained. At about 4 p.m. on
1.8.1993, Thimmappa told his wife Bhagyavathi that he had learnt that
Chandrappa and Gadigeshappa had gone to the field to pluck coconuts and that he
was going to prevent them from doing so. Thimmappa and his brother Devendrappa
PW3 then left for the fields on a scooter. A few minutes later Rathnamma PW2,
sister-in-law of Bhagyavathi PW-1 came to her house and informed her that she
had seen Chandrappa and Gadigeshappa accompanied by their brother-in-law
Hanumanthappa, Shiva and Siddeshappa along with Bhoomesha and Manja proceeding
towards the field armed with Choppers and sickles and she apprehended some
danger.
Bhagyavathi and Rathnamma then left for the field and as they reached the
outer fencing at about 4.30 p.m., they saw all the accused as well as Bhoomesha
and Manja assaulting Thimmappa with sickles and choppers. PW3 Devendrappa went
to the rescue of his brother but he too was assaulted and having sustained an
injury he ran away towards the village.
PWs1 and 2 thereafter entered the garden and saw that Thimmappa was lying
grievously injured near the Samadhi adjoining the land. The accused Siddeshappa
and Hanumanthappa also abused and assaulted the two women.
PW4 Prashanth Kumar, who was attracted to the place, rushed in with some
water which he attempted to put into Thimmappa's mouth but he succumbed to his
injuries at the spot. PW3 Devendrappa was also taken to the Bhadravathi hospital
by PW11 Rudrappa whereas PWs.1,2 and 4 stood near the dead body. It was also
noticed that the accused while running away had left behind a sickle and a club
near the dead body. An FIR was got registered by PW1 Bhagyavathi at about 11.45
p.m. at the Police Station. The investigation was taken over by Inspector M.I.
Jameel PW20 who visited the scene of occurrence on 2nd August 1993 at about
6.30 a.m.
and prepared the inquest report and recorded the statements of the witnesses
and picked up the sickle and club in the presence of witnesses. His efforts to
trace out the accused were, however, not successful till the 3rd August 1993
when he arrested four of them. Accused No.2 was arrested on 10.9.1993. He also
visited the Government Hospital Bhadravathi on the same day and seized the
blood stained clothes of injured PW3 Devendrappa. Several weapons of offence
were also recovered on the interrogation of the accused. On the completion of
the investigation, the accused were charged for offences punishable under
sections 143, 147,148,302 and 324 read with 149 of the IPC.
3. The prosecution in support of its case relied primarily on the statements
of the four eye witnesses PW1 Bhagyavathi, wife of the deceased, her
sister-in-law PW2 Rathnamma, PW3 Devendrappa an injured witness and brother of
the deceased and of two of the accused, and PW4 Prashanth Kumar son of PW3, a
boy aged 13 years. Reliance was also placed on certain pieces of circumstantial
evidence. The prosecution case was then put to the accused under section 313 of
the Cr.P.C. and in the written statements filed by way of their defence they
denied the allegations in toto and on the contrary put up a counter version
that Hanumanthappa and Siddeshappa had not been present at the time of incident
and that the other three accused had been assaulted by Thimmappa deceased, PW3
Devendrappa and one Manju Nath and that they had caused injuries to Thimmappa
in their self defence.
4. The trial court held that it was clear from the record that a dispute
existed between Thimmappa and his brothers with regard to the 10 acres of land
and that Thimmappa had in fact filed three suits seeking an injunction but the
said suits had been dismissed on 3rd April, 1993 itself and as such there was
no injunction in favour of Thimmappa on the day of incident.
The court also observed that a Partition Suit which too had been filed, had
been compromised after the murder on 5th November 1993 and that no partition
had taken place before the aforesaid date and the field in which the incident
happened stood in the name of Navilappa and that they had started a plantation
on the said land which was being managed by them. The court also noted that it
appeared that in the early hours of 1st August 1993 Navilappa had filed a
complaint before the police alleging that his sons Thimmappa deceased and PW3
Devendrappa were obstructing him from entering his land and it therefore
appeared that the accused Chandrappa and Gadigeshappa and son Nagarajappa had
joined hands to defend their possession when the deceased Thimmappa and
Devendrappa PW3 were creating an obstruction. The court then examined the
statements of the witnesses and observed that the FIR did not show the presence
of PW4 Prashanth Kumar or the nature of the weapons in the hands of the accused
and the story that the accused had snatched a Mangalya with a golden chain from
PW1 Bhagyavathi was also an exaggeration. The court further observed that the
police itself appeared to have discarded the presence of Bhoomesha and Manja
and had not filed a charge-sheet against them which supported the view that an
attempt had been made to rope in innocent people. The court also observed that
the fact that the witnesses who were allegedly 30 meters away from the field of
the spot had stood still watching "just like a film shooting" or like
"Dumb statues"
and this was also circumstance against the prosecution. The court further
observed that there was a delay in the lodging of the FIR which had not been
adequately explained away. The court then went into the medical evidence and
opined that PW15 Dr. Nanda Koti, who had treated the accused and PW3
Devendrappa for their injuries had not informed the police as to what had
transpired and that PW3 had mentioned only two of the accused i.e. Chandrappa
and Gadigeshappa as having been present. The court finally concluded that it
was the deceased and injured witnesses who were the aggressors, the moreso as
the prosecution had not been able to explain the injuries on the accused. For
arriving at this conclusion, the trial court relied on the evidence of PW15 Dr.
Nanda Koti who had examined three of the accused i.e. Chandrappa, Shiva and
Gadigeshappa for their injuries at the Bhadravathi Government Hospital at 5.20
p.m. on 1st August 1993 with a history of assault caused on deceased Thimmappa,
PW3 Devendrappa and one Manjappa and had detected one incised injury each on
the person of Gadigeshappa and Shiva, both injuries which could have been
caused with a sickle or a chopper. PW15 also examined PW3 at 6.30 p.m. the same
day who had appeared with a history of assault by Chandrappa and Gadigeshappa.
The court nevertheless relying on several judgments held that though the
non-explanation of minor injuries on the person of the accused could not be
said to be fatal to the prosecution story but such an omission did create a
doubt as to its veracity. The court finally hinted that it appeared that the
defence version was more probable and prefaced its conclusion by observing:
"In view of the discussions made by me in the above said paras, I find
there is an inordinate delay in lodging the complaint.
That delay is not satisfactorily explained.
The witnesses chosen by the prosecution are only the interested inimical
witnesses.
In view of the material discrepancies in between the evidence of PW's 1 to 4
their presence at the time of the alleged mutual fight or galata is itself
rather doubtful. In all probability, PWs.1,2, and 4 must have come to the spot
only after coming to know of the assault not prior to that and the person
involved in the fight PW3 somehow escaped from the spot. The whole of the
evidence of PWs 1 to 4 appears to be bit unnatural and unbelievable one in the
ordinary course of time. It is an over exaggerated evidence given by them.
Admittedly, there is a property dispute. As on the date of this alleged
incident, the land "Pavadi Hondada Thota" was standing in the name of
Navilappa, the father of deceased Thimmappa as well as accused Nos. 1 and
4. It is accused Nos. 1 and 4 who are managing the said property. It has
also come in the evidence that the suit filed by deceased seeking injunction
pertaining to the said land was dismissed very well prior to this alleged
incident. So, as on the date of incident, there was no injunction nor deceased
was in possession of the said property including PW3. But still they went there
to assert their right. There are two versions. According to PW3 it is he and
his brother deceased Thimmappa, who first went to the said land. Thereafter 10
minutes, accused came to the said land.
But on the other hand, the investigation reveals through PWs 1 and 2's
evidence that it is the accused, who first went to the said land. When they
intended to pluck the coconuts, these PW3 and deceased went to the spot there
arose galata."
and finally concluded as under:
"I have closely scrutinized the evidence of these PWs 1 to 4. But I
find their evidence is not trustworthy. The other part of the evidence of other
witnesses is very much formal and procedural one. The two other eye witnesses
PWs 6 and 7 have turned hostile. So, viewing from any angel, I find the
evidence now before me is not just and sufficient to connect the accused with
the alleged offence punishable under section 143,147,148,324,302 and 149 of the
IPC. I find the prosecution has failed to prove that the accused being the
members of unlawful assembly being armed with deadly weapons in prosecution of
their common object caused rioting on that day and assaulted Thimmappa as well
as PW3 with the said weapons, which has resulted in the death of Thimmappa and
injuries to PW3. It may amount to repetition if I say that the evidence now
before is not just and sufficient to connect the accused with the said charge.
PW2 has categorically stated that when herself and PW1 came to the said spot on
that day, they saw PW3 already left the place. He had gone to his house. That
means to say these PWs 1, 2 and 4 have not actually seen the accused assaulting
either Thimmappa or PW3.
This evidence of PW2 cuts at the root of the prosecution case. As there
arises a reasonable doubt in the case of prosecution, the accused are entitled
to have the benefit of the same. Prosecution has failed to establish that these
accused are the real aggressors or they are directly responsible causing the
said incident. On the other hand, defence of the accused is substantiated on
the facts and material now placed before the court that in all probability the
deceased and PW3 must have taken the law into their own hands at the inception
and in that mutual fight both sides sustained injuries. Unfortunately,
Thimmappa succumbed to the injuries. But who is responsible for his death, who
is responsible for causing injury to PW3 is not specifically established by the
prosecution. Hence, with these reasons, I answer point Nos. 1 to 3 in the
negative and proceed to pass the following:"
5. The trial court accordingly acquitted the accused.
The matter was taken to the High Court by way of an appeal at the instance
of the State of Karnataka. The High Court in the course of its judgment upset
the order of the trial Judge by observing that the fact that Thimmappa deceased
had met a homicidal death had been proved from the medical evidence and then
went to the question as who was responsible thereof. The court examined the
evidence of the eye witnesses and found that they corroborated each other in
material particulars, the moreso as the presence of PW3 Devendrappa had also
been admitted by the defence. The court also held that the eye witness
testimony had a ring of truth around it and the injuries Ex.P27 to P29
confirmed the presence of the accused in the incident and also the fact that
only one of the accused had sustained a simple injury, no obligation rested on
the prosecution to explain it. The court also observed (in the facts of the
case) that the delay in lodging of the FIR was not fatal to the prosecution
story as the complaint had been lodged by PW1 between 10 and 11 p.m. and the
formal FIR had been registered at about 11.45 p.m. The plea of the accused that
the case would fall under section 304 IPC was also repelled as the manner of
the assault did not justify such a conclusion. The court accordingly held as
under:
"To sum up, we hold that the trial court's judgment and order of
acquittal cannot be sustained as it is contrary to the evidence on record and
unreasonable as well as perverse and bring opposed to well established
principles of law with regard to appreciation of evidence and as such, the same
is liable to be interfered with. We, therefore, convict the accused persons for
the offences punishable under Sections 143,147,148,302 read with 149 and 324
read with 149 of the IPC."
and in doing so sentenced them to imprisonment for life under section302/149
IPC with no separate sentence for the other offences. It is in this
circumstance that the present appeal by way of special leave has come up before
us.
6. Mr. Basava Prabhu S.Patil, the learned counsel for the appellants has
pointed out that certain facts had been admitted by both parties and that the
matter would have to be examined in this background. He has pointed out that
both the complainant and the accused party were very closely related to each
other, the five accused being the brothers of the deceased and the eye
witnesses being the wife and nephew of the deceased and of the accused.
It has also been pointed out that the fact that a dispute with regard to the
land had also found its way to the civil and criminal Courts was clear from the
record. It has also been pleaded that the accused had spelt out a counter
version and had pointed out in their statement under section 313 of the Cr.P.C.
inasmuch as three of them i.e.
Hanumanthappa, Siddeshappa had not been present whereas the other three have
in their statements admitted their presence and stated that the land in which
the incident had happened was the ancestral property of the family with the
Revenue documents in the name of Navilapa their father and that a complaint had
also been filed by Navilapa against Thimmappa as to his attempts to encroach
upon this property.
7. In this background, Mr. Patil has argued that it appeared that deceased
and his companions were indeed the aggressors and that the incident had
happened when the accused were exercising their right of self defence to
protect their person and property. It has further been pleaded that the
witnesses were discrepant as to the actual manner of the assault and as such no
credence could be attached to their testimony. It has finally been pleaded that
there was an inordinate delay in the registration of the FIR and that this
delay had been utilized to create four eye witnesses and a false story
inculpating the accused. The State counsel has however supported the judgment
of the High Court.
8. It is true that prima facie there appears to be some delay in the lodging
of the FIR at 10.45 p.m. in the light of the fact that incident had happened at
4.30 p.m. on 1st August 1993. However, as three of the accused have put up a
counter version, the effect of the delay in the FIR is somewhat reduced. We are
also of the opinion that the delay in the lodging of the FIR has been
substantially explained as the incident had happened in a remote village some
distance from the Police Station and as PW3 had also sustained a serious
injury, the first anxiety of the family would have been to look after him the
more so as all the brothers of the deceased and PW3 were themselves the
assailants and there was nobody else in the family to have taken the injured
PW3 to the hospital. It is also significant that the FIR could not have been
recorded earlier as the entire family was involved either on one side or the
other and it had ultimately been left to a hapless widow, completely isolated
from the rest of the family, to lodge the FIR. It is in this background we find
that a delay of a couple of hours cannot be said to be unreasonable.
9. It has been contended by the learned counsel for the appellants that the
discrepancies between the statements of the eye witnesses inter-se would go to
show that they had not seen the incident and no reliance could thus be placed
on their testimony. It has been pointed out that their statements were
discrepant as to the actual manner of assault and as to the injuries caused by
each of the accused to the deceased and to PW3 the injured eye witness. We are
of the opinion that in such matters it would be unreasonable to expect a
witness to give a picture perfect report of the injuries caused by each witness
to the deceased or the injured more particularly where it has been proved on
record that the injuries had been caused by several accused armed with
different kinds of weapons. We also find that with the passage of time the
memory of an eye witness tends to dim and it is perhaps difficult for a witness
to recall events with precision. We have gone through the record and find that
the evidence had been recorded more than 5 years after the incident and if the
memory had partly failed the eye witnesses and if they had not been able to
given an exact description of the injuries, it would not detract from the
substratum of their evidence. It is however very significant that PW2 is the
sister of the 5 appellants, the deceased and PW3 Devendrappa and in the dispute
between the brothers she had continued to reside with her father Navilappa who
was residing with the appellants, but she has nevertheless still supported the
prosecution. We are of the opinion that in normal circumstances she would not
have given evidence against the appellants but she has come forth as an eye
witness and supported the prosecution in all material particulars.
10. Much emphasis has been however laid by Mr. Patil, on the defence version
that Thimmappa, Devendrappa and one Manjappa had first made an attack on three
of the appellants and that the appellants had thereafter caused injuries in
their self defence leading to the death of Thimmappa and some injuries to
Devendrappa. We find that this matter had been discussed in extenso by the High
Court in its judgment and the version of the appellants had been rightly
rejected. Some emphasis has also been laid by the learned counsel on the fact
that as per injury certificates Ex.P-27 to P-29 that three accused had suffered
injuries in the incident. It is however clear from a perusal of these documents
that out of the three, only one of the accused had sustained a simple injury on
the hand and the other two had no discernible injury except a complaint of a
backache in the case of Shiva. On the other hand, we have the evidence of PW15
Dr. Nanda Koti who had examined Devendrappa on the evening of the day of
incident with a history of attack with a sickle and club and she had found the
following 5 injuries on his person:
-
lacerated would over occipital region 3 cms X 1 cm bleeding.
-
Stab injury over right arm, lower and
posterior aspect 1 cm X = cm covered with fresh blood clots.
-
Incised wound over web space between
right thumb and index finger 3 cm X 1cm X = covered with fresh blood clots.
-
Contusion over middle of a shin of
left leg 6 cm X 4 cm red.
-
Contusion with club impression over left side of the chest 6 cms X 2 cms
red.
11. It is also well settled that the prosecution is not called upon to
explain each and every injury on the person of an accused and in this view of
the matter the non- explanation of an insignificant injury on the person of
only one does not dislodge the prosecution story.
12. It has also been contended that no case under section 302 of the IPC had
been made out and if at all the accused were liable to be convicted under
section 304 Part-II of the IPC. We find no merit in this plea. It is clear from
the record that the accused had come to the place of incident fully armed with
the object to sort things out with the deceased as he was creating problems for
them and their father over the land in question and to remove him from the
scene once and for all. Furthermore, in the light of the serious injuries
caused to the deceased and to PW3 Devendrappa the matter does not fall within
the ambit of section 304 Part II of the IPC.
13. It has finally been pleaded by Mr. Patil that Siddeshappa, accused No.5
was a juvenile on the date of incident and ought to have been dealt with under
that procedure. We, however, find no evidence to suggest that the aforesaid
accused was indeed a juvenile and the counsel's mere ipse-dixit at this belated
stage cannot be accepted.
14. We thus find no merit in the appeal. Dismissed.
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