Ganesh Vs. State of
Karnataka & Ors. [2008] INSC 1388 (20 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 586 OF 2007 Ganesh
...Appellant State of Karnataka and Ors. ...Respondents WITH (Criminal Appeal
No. 50/2006) (Criminal Appeal No. 587/2007) (Criminal Appeal No. 588/2007)
(Criminal Appeal No. 589/2007)
Dr. ARIJIT PASAYAT,
J.
1.
These
appeals are interlinked and therefore they are disposed of by this common
judgment.
2.
The
High Court by its judgment dated 24th August, 2005 disposed of three appeals.
Criminal Appeal 394 of 2001 was filed by the State of Karnataka questioning
acquittal of the accused persons for the offence punishable under Section 302
read with Section 149 of the Indian Penal Code, 1860 (in short the `IPC'). The
other appeals were filed by the accused persons who were convicted for offences
punishable under Sections 143, 148, 504 read with Section 149, Section 324 read
with Section 149 IPC, Section 326 read with Section 149 and Section 307 read
with Section 149 IPC. In all 25 persons faced trial. However, the trial Court
found only 6 of the accused persons to be guilty and therefore they filed
appeals which were numbered as Criminal Appeal Nos.1344/2000 and 1359/2000. The
other appeal was filed by the State as noted above.
3.
The
High Court acquitted S.Holeyappa (A-1) but held the other five to be guilty of
offence punishable under Section 302 read with Section 149 IPC. Accordingly
State's appeal was allowed. The appeals filed by the accused persons were
dismissed.
4.
It
is to be noted that while accepting the State's appeal, the accused persons
were convicted for the offence punishable under Section 302 read with Section
149 IPC.
5.
Background
facts in a nutshell are as follows:
The accused, the
deceased and the material prosecution witnesses are all residents of
Malladihalli village in Holalkere Taluk. Accused Nos. 1 and 4 are brothers.
Accused No.2 is the son of accused No.4, whereas accused Nos. 3 and 5 are the
sons of accused No.1. Accused No.6 is related to these accused. Similarly on
prosecution side, Shivakumar (PW-2), Lokesh (PW-3) and Murthappa (PW-7) are the
sons of the Kenchappa (hereinafter referred to as `deceased'). Relation between
the accused group and the deceased and his family members was strained over
erecting an electric pole in the land of the accused, the line of which would
have passed and benefited the deceased and his borewell in the land near by
which was objected by the accused. This ill will and enmity ultimately resulted
in the assault on the deceased and his sons on 2.10.1995. On that day, there
was a festival and a procession was taken of the deity by the villagers. The
deceased and his children had also joined the procession.
According to the
prosecution when the procession came near the post office by the side of which
is also the house of the accused, the accused group suddenly pounced upon the
deceased and his children and assaulted them. This took place around 6.30 P.M.,
or so in the evening. After the assault Kenchappa (deceased), P.W.2 Shivakumar,
Lokesh were taken to the hospital. In spite of the treatment given to the
injured Kenchappa, he breathed his last on 7.10.1995. Thereafter, PW-1 a nephew
of the deceased approached the jurisdictional police at Holalkere and gave his
written information as per Ex.P.1, P.W.25 Mohammad Arif, S.H.O. of the Police
Station on receipt of the written information from P.W.1, registered a case in
Crime No.290/1995 for the offences under Sections 143, 147, 148, 504, 324, 307
read with Section 149 IPC against 18 named and other un-named accused and
investigation was taken up. After the death of Kenchappa on 7.10.1995 the
offence under Section 302 read with Section 149 IPC was also added. After
completion of investigation, the charge sheet was filed. The trial was held as
the accused persons abjured guilt. Thirty nine witnesses were examined to
further the prosecution version. The trial Court as noted above placed reliance
on the evidence of large number of persons who are stated to be eye witnesses
and held the accused persons guilty of several offences but acquitted them of
the charge relatable to Section 302 read with Section 149 IPC.
In appeal, the
primary stand of the State was that the evidence on record left no manner of
doubt that Section 302 read with Section 149 IPC was clearly applicable. The
accused appellants in their appeals contended that the evidence does not
inspire confidence and most of the related witnesses are partisan witnesses and
the High Court did not find any substance in the appeals filed by the accused
persons and accepted the appeal filed by the prosecution.
6.
In
support of the appeals, learned counsel for the appellants submitted that the
eye witnesses PWs 2 and 3 should not have been accepted as they were to be
related witnesses. Admittedly, there was enmity between the parties because of
political rivalry. There was delayed examination of so-called witnesses. It is
submitted that when the trial Court acquitted 19 accused persons i.e. A-7 to A-25
and the High Court directed acquittal of A-1, it would be unsafe to sustain the
conviction of others. The investigating officer did not investigate fairly and
therefore the trial Court and the High Court were not justified in upholding
the conviction of the five appellants. It is submitted the cause of death was
due to cardiac arrest and not on account of injuries sustained in the alleged
incident. Therefore, Section 302 IPC has no application.
7.
Per
contra, learned counsel for the State supported the judgments of the trial
Court and the High Court.
8.
In
the instant case, the evidence of PWs 2, 3, 7 and 13 is of considerable
relevance. Out of 39 witnesses examined, PWs 1 to 7, 12, 14, 15, 16, 27 to 29,
31, 33 and 35 were projected as eye witnesses to the incident. But at the stage
of trial, except PWs 1 to 3, 7, 14 and 15, others did not support the
prosecution. The evidence on record shows that PWs 2 and 3 were injured
witnesses. Their evidence assumes great importance. It was pointed out by
learned counsel for the appellants that no definite overt act has been
attributed to any of the five respondents.
9.
In
Masalti v. State of Uttar Pradesh (AIR 1965 SC 202) it has been observed as
follows:
"where a crowd
of assailants who are members of an unlawful assembly proceeds to commit an
offence of murder in pursuance of the common object of the unlawful assembly,
it is often not possible for witnesses to describe accurately the part played
by each one of the assailants. Besides, if a large crowd of persons armed with
weapons assaults the intended victims, it may not be necessary that all of them
have to take part in the actual assault.
Where for instance,
several weapons were carried by different members of the unlawful assembly, but
it appears that the guns were used and that was enough to kill 5 persons, it
would be unreasonable to contend that because the other weapons carried by the
members of the unlawful assembly were not used, the story in regard to the said
weapons itself should be rejected. Appreciation of evidence in such a complex
case is no doubt a difficult task; but criminal courts have to do their best in
dealing with such cases and it is their duty to sift the evidence carefully and
decide which part of it is true and which is not.
It is true that under
the Evidence Act, 1872 trustworthy evidence given by a single witness would be
enough to convict an accused person, whereas evidence given by half a dozen
witnesses which is not trustworthy would not be enough to sustain the
conviction.
But where a criminal
Court has to deal with evidence pertaining to the commission of an offence
involving a large number of offenders and a large number of victims, it is
usual to adopt the test that the conviction could be sustained only if it is
supported by two or three or more witnesses who give a consistent account of
the incident. In a sense, the test may be described as mechanical; but it
cannot be treated as irrational or unreasonable. It is, no doubt, the quality
of the evidence that matters and not the number of witnesses who 8 give
evidence. But sometimes it is useful to adopt a mechanical test."
10.
In
the instant case, though large number of co-accused have been acquitted that
cannot be a ground to discard the evidence of trustworthy witnesses.
11.
As
a rule of universal application, it cannot be said that when a portion of the
prosecution evidence is discarded as unworthy of credence, there cannot be any
conviction. It is always open to the court to differentiate between an accused
who has been convicted and those who have been acquitted.
(See Gurcharan Singh
v. State of Punjab (AIR 1956 SC 460) and Sucha Singh v. State of Punjab (2003
(7) SCC 643). The maxim "falsus in uno, falsus in omnibus" is merely
a rule of caution.
As has been indicated
by this Court in Sucha Singh case in terms of felicitous metaphor, an attempt
has to be made to separate the grain from the chaff, truth from falsehood. When
the prosecution is able to establish its case by acceptable evidence, though in
part, the accused can be convicted even if the co-accused have been acquitted
on the ground that the evidence led was not sufficient to fasten guilt on them.
But where the position is such that the evidence is totally unreliable, and it
will be impossible to separate the truth from falsehood to an extent that they
are inextricably mixed up, and in the process of separation an absolutely new
case has to be reconstructed by divorcing essential details presented by the
prosecution completely from the context and background against which they are
made, conviction cannot be made.
12.
Great
emphasis was laid on the version of the doctor to contend that the death was
not due to any injury but it was due to cardiac arrest and respiratory failure
as a result of tetanus. The doctor's evidence is by way of hypothetical answer
that the death would not occur because of the injuries received by sharp edged
weapon. The evidence of Shiv Kumar (PW-2), Murthappa (PW-7) and Lokesh (PW-3)
clearly established the role played by the accused persons and PW-3 was the
injured witness. Ganesh (A-3) assaulted PW-2 with axe on the neck part. He
stated that A-4 has assaulted PW-2 with sickle and thereafter he assaulted him.
The evidence of PWs 1, 2, 3, 7 and 14 inspire confidence and, therefore, the
trial Court and the High Court had rightly convicted the appellants. So far as
acquittal of A-1 is concerned, the High Court has given ample reasoning for
setting aside his conviction and affirming the conviction of other accused
persons.
13.
The
appeals are without merit and deserve dismissal which we direct.
.........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
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