Karnataka High Court
Parvatamma vs Maruthi S/O Kambayya on 24 February, 2021
Author: Sreenivas Harish P.N.Desai
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24 T H DAY OF FEBRUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL No.100130/2016
C/W CRIMINAL APPEAL No.100139/2016
AND CRIMINAL APPEALNo.100233/2016
IN CRL.A.No.100130/2016
BETWEEN:
1. MARUTHI S/O KAMBAYYA,
AGE: 35 YEARS.
2. THIMMAPPA S/O KAMBAYYA,
AGE: 30 YEARS.
3. CHAGE BASAPPA S/O MAREPPA,
AGE: 45 YEARS.
4. GURIKE DODDA BASAPPA,
S/O YENKAPPA,
AGE: 45 YEARS.
5. VEERANNA S/O KAMBAYYA,
AGE: 42 YEARS.
6. YUVARAJ S/O GURIKERI DODDA BASAPPA,
AGE: 20 YEARS.
7. GURIKERI SHARAN,
S/O DEVANNA,
AGE: 30 YEARS.
:2:
ALL ARE R/O ELUBENCHI VILLAGE,
DIST: BALLARI.
...APPELLANTS
(BY SRI S.S.KOTI, ADVOCATE FOR
SRI SRINAND A.PACHHAPURE, ADVOCATE)
AND
STATE BY:
THE CIRCLE INSPECTOR OF POLICE,
KUDITHINI POLICE STATION,
KURUGODU CIRCLE, BALLARI DISTRICT,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENT
(BY SRI L.S.SULLAD, SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., SEEKING TO SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 28/03/2016 AND 29/03/2016 RESPECTIVELY, PASSED
IN S.C.NO.131/2009 BY THE I ADDL. DISTRICT AND
SESSIONS JUDGE, BALLARI, BY ALLOWING THIS APPEAL,
CONSEQUENTLY ACQUIT THE APPELLANTS OF THE CHARGES
LEVELLED UNDER SECTIONS 143, 147, 148, 302, 120B READ
WITH SECTION 149 OF IPC.
IN CRL.A.No.100139/2016
BETWEEN:
PARVATAMMA,
W/O VEERUPANGOUDA,
AGED ABOUT 41 YEARS,
OCC: HOUSEHOLD WORK,
R/AT: ELUBENCHI VILLAGE,
TQ. AND DIST: BALLARI.
...APPELLANT
(BY SRI ARAVIND D.KULKARNI, ADVOCATE)
:3:
AND
1. MARUTHI S/O KAMBAYYA
AGED ABOUT: 41 YEARS.
2. THIMMAPPA S/O KAMBAYYA,
AGED ABOUT: 36 YEARS.
3. CHAGE BASAPPA S/O MAREPPA,
AGED ABOUT: 51 YEARS.
4. GURIKE DODDA BASAPPA,
S/O YENKAPPA,
AGED ABOUT: 51 YEARS.
5. VEERANNA S/O KAMBAYYA,
AGED ABOUT: 48 YEARS.
6. YUVARAJ,
S/O GURIKERI DODDA BASAPPA,
AGED ABOUT: 26 YEARS.
7. GURIKERI SHARAN,
S/O DEVANNA,
AGED ABOUT: 36 YEARS.
8. UMESH S/O DEVANNA,
AGED ABOUT: 41 YEARS.
9. MALLANAGOUDA,
S/O PORANAGOUDA,
AGED ABOUT: 41 YEARS.
RESPONDENTS 1 TO 9 ARE
R/O: ELUBENCHI VILLAGE,
TQ: DIST: BALLARI.
10. THE STATE OF KARNATAKA,
BY CIRCLE INSPECTOR OF POLICE,
KUDITHINI POLICE STATION,
KURUGODU CIRCLE,
REP.BY STATE PUBLIC PROSECUTOR,
:4:
ADVOCATE GENERAL'S OFFICE,
HIGH COURT PREMISES, DHARWAD.
...RESPONDENTS
(BY SRI S.S.KOTI, ADVOCATE FOR
SRI SRINAND A.PACHHAPURE, ADV.FOR R1 TO 7 & R9;
SRI A.G.WAJAPE, ADVOCATE FOR R8;
SRI L.S.SULLAD, SPECIAL PUBLIC PROSECUTOR FOR R10)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL OF ACCUSED NO.8 AND 9 PASSED BY
THE COURT OF THE I ADDL. DISTRICT & SESSIONS JUDGE,
BALLARI, IN SESSIONS CASE NO. 131/2009 DATED
28/03/2016, CONSEQUENTLY ALLOW THIS CRIMINAL APPEAL
AND CONVICT ACCUSED NO.8 AND 9 i.e., RESPONDENT
NOS.8 AND 9 HEREIN FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 143, 147, 148, 302, 120B R/W SECTION 149 OF
IPC.
IN CRL.A.No.100233/2016
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE
CIRCLE POLICE INSPECTOR,
KUDITHINI POLICE INSPECTOR,
KURUGODU CIRCLE, BALLARI DISTRICT,
THROUGH THE ADDL.STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI L.S.SULLAD, SPECIAL PUBLIC PROSECUTOR)
AND
1. UMESH S/O SHIVAYYA SWAMY,
AGE: 42 YEARS.
:5:
2. MALLANAGOUD,
S/O PORANAGOUDA,
AGE: 42 YEARS.
BOTH ARE R/O: ELUBENCHI VILLAGE,
TALUK AND DISTRICT: BALLARI.
...RESPONDENTS
(BY SRI A.G.WAJAPE, ADVOCATE FOR R1;
SRI SRINAND A.PACHHAPURE, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 28.03.2016 PASSED BY THE LEARNED I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BALLARI IN SESSIONS
CASE NO.131 OF 2009 SO FAR IT RELATES TO
RESPONDENTS/ACCUSED NOS.8 AND 9 AND SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.03.2016
PASSED BY THE LEARNED I ADDITIONAL DISTRICT AND
SESSIONS AND SPECIAL JUDGE, BALLARI IN SESSIONS CASE
NO.131 OF 2009 SO FAR AS IT RELATES TO
RESPONDENTS/ACCUSED NOS.8 AND 9 AND CONVICT THE
RESPONDENTS/ACCUSED NOS. 8 AND 9 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 148, 302, 120B
READ WITH 149 OF IPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 09.02.2021 COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, SREENIVAS HARISH KUMAR J.,
DELIVERED THE FOLLOWING:
:6:
JUDGMENT
These appeals are directed against judgment of the I
Addl. Sessions Court, Ballari, in S.C.No.131/2009.
Accused 1 to 7 are the appellants in Criminal Appeal
No.100130/2016, they have been convicted and sentenced
for the offences punishable under Sections 143, 147, 148,
302, 120-B r/w 149 IPC; the major punishment being
imprisonment for life and fine of Rs.1,00,000/- each, for
each of the offences under Section 302 and Section 120B
of the IPC.
2. Accused No.1 to 7 have preferred Criminal
Appeal No.100130/2016 challenging their conviction for
the offences noted above. The State and PW5 have
preferred Criminal Appeals No.100233/2016 and
100139/2016 under Section 378 of Cr.P.C. and 372
Cr.P.C. respectively questioning the correctness of
acquittal of accused No.8 and 9.
3. The name of the deceased is Virupanagowda.
PW1 is his father and PW5 is his wife. The prosecution
case in brief is that on 19.03.2009, when the deceased
and his wife PW5 went for a morning walk at 5.45 a.m.,
all the accused caused his death in the presence of PW5.
The place of occurrence was near Maremma Temple,
Elubenchi village. PW1 made a report of this incident to
the Police as per Ex.P.1 against seven named accused 1 to
7 and the investigation that followed Ex.P.1 disclosed
conspiracy and ultimately totally nine accused came to be
charge sheeted.
4. The prosecution sought to prove its case by
examining 26 witnesses, and producing 42 documents and
18 material objects. The defence elicited contradictions as
per Exs.D1 to D6 during cross-examination of some of the
prosecution witnesses. Perusal of the entire evidence
shows that the prosecution has based its case mainly on
the testimonies of PW1, PW5, PW6, PW7, among whom
PW5 is an eyewitness. PW19 is the doctor who conducted
postmortem examination. Ex.P31 is the postmortem
report. His opinion about the death is that, it was due to
shock and hemorrhage as a result of the following ante
mortem external injuries that he noticed before dissecting
the body.
1. Chop injuries measuring 11 cm x 5cm x
mandible deep present over right side of the
chin and lower part of face, underlying
mandible is cleanly cut into pieces with
extravasation of blood.
2. Chop inj ury measuring 8 cm x 2 cm x muscle
deep present over front and right side of
neck 1 cm below the injury No.1.
3. Chop injury measuring 9 cm x 3 cm x
cervical bone deep present over front 2 sides
of middle of neck, underlying the cheek and
esophagus, muscles, vessels, nerves are
cleanly cut with fracture dislocated of C2-C3
cervical vertebra, underlying spinal cord
lacerated.
4. Chop injury measuring 6 cm x 1 cm x bone
deep present over right temporal region.
5. Chop inj ury measuring 7 cm x 1 cm x bone
deep present over left side back of head.
6. Avulsed laceration measuring 6 cm x 4 cm x
bone deep present over back of left ear with
laceration of left ear pinna.
7. Chop injury measuring 8 cm x 1 cm x bone
deep present over right side back of head.
8. Chop injury measuring 7 cm x 1 cm x bone
deep present over root of left shoulder with
beveling of lower margin for a length of 4
cm.
9. Grazed abrasion measuring 22 cm x 20 cm
present over middle of back of lower part of
chest and abdomen.
10. Abrasion measuring 10 cm x 1 cm present
over lower part of back of left thigh region.
11. Chop inj ury measuring 7 cm x 1 cm x muscle
deep present over back of lower part of left
elbow.
12. Chop inj ury measuring 6 cm x 1 cm x muscle
deep present over lower part inner side of
left arm.
13. Chop injury measuring 10 cm x 3 cm x bone
deep present over middle of front of upper
part of chest with abrasion over right side.
14. Abrasion measuring 9 cm x 4 cm present
over upper part front of chest.
15. Abrasion measuring 4 cm x 3 cm present
over back of upper part of right forearm.
He has deposed that on dissection, he noticed that
the underlying spinal card was lacerated. This internal
injury corresponded to external injury No.3. On
21.07.2009, the investigating officer showed him two
sickles for obtaining his opinion whether the external
injuries found on the dead body could occur if those
weapons had been used for committing the offence. He
gave opinion as per Ex.P32 about the possibilities of
occurrence of the injuries that he noticed if those
weapons had been used. The weapons that were shown to
PW19 has relevancy and the same will be referred to while
discussing the evidence of the investigating officer about
seizure of weapons.
5. The judgment of the trial court shows nothing
but extraction of the depositions of the witnesses, actual
assessment of the evidence is not forthcoming. The final
conclusion is found in Para-71 of the judgment. Learned
trial judge has observed in this paragraph, "On careful
perusal of the evidence led by the prosecution and upon
hearing the arguments of the learned P.P. for the State
and the learned counsel for the accused, it becomes clear
that there is sufficient material against accused No.1 to 7.
There is evidence of PW1 to 5 to show that accused Nos.1
to 7 have committed offences charged against them.
There is no material to show about the involvement of
accused 8 and 9 in the commission of the offence."
Further there is a reference to the judgment of the
Supreme Court and one conclusion with regard to
evidence given by PW5 that immediately after assault on
her husband, she felt giddiness and sat in the temple and
that if she was not present at the spot, she would not
have been in a position to state the details of the act of
the each accused. Therefore firstly we see that there is no
proper appreciation of evidence and an opinion that PW5
was an eyewitness because she could give details of the
overt-act of each accused.
6. We have heard the learned counsel for accused
No.1 to 7, Sri S.S.Koti, Sri L.S.Sullad, the Special Public
Prosecutor and Sri Aravind D.Kulkarni, who has appeared
for the appellant in Criminal Appeal No.100139/2016.
7. Before appreciating the evidence of the prime
witnesses, it may be necessary to delve on two points of
arguments of Sri S.S.Koti with regard to registration of
FIR and the inquest. His argument was that PW25, the PSI
of Kudithini Police Station received information about
homicidal death of Virupanagouda near Maremma Temple,
Elubenchi village and immediately he came to the spot.
Soon after receiving the information about a cognizable
offence, he did not register FIR or make an entry in the
station house diary. After seeing the dead body, he
shifted it to VIMS Hospital, Ballari and then visited the
house of PW1. He received report of the incident from
PW1, the father of the deceased, then went to police
station and registered FIR. That means the investigation
commenced before registration of FIR, hence Ex.P1 is hit
by Section 162 of Cr.P.C. In support of this point of
argument, he placed reliance on judgment of the Supreme
Court in the case of State of A.P. V/s Punati Ramulu
and others (AIR 1993 SC 2644). Sri L.S.Sullad met this
argument of Sri S.S.Koti by arguing that though PW25
received the information about the incident while he was
in the police station, he wanted confirmation of the
information that received and therefore came to spot.
Shifting of the dead body to Ballari Hospital was after
receiving the complaint and therefore Ex.P1 is not hit by
Section 162 of Cr.P.C.
8. In the case of Punati Ramulu (supra), the
circumstances are that the Circle Inspector of Police,
having received information of the incident from a police
constable, went to village where the incident had taken
place and started the investigation. He admitted in the
evidence that he did not make entry of the information
that he received in the daily diary or in the general diary.
PW1 came to village from the police station with a written
complaint and PW22 received it and then registered FIR at
12.30 in the noon. In that circumstance, it was held that
the complaint made by PW1 was during investigation and
thus hit by Section 162 of Cr.P.C. We don't find such a
circumstance herein this case. In this context, we find it
useful to place reliance on judgment of the Supreme Court
cited by Sri L.S.Sullad. In Sri Sambhu Das @ Bijoy Das
and another V/s State of Assam (Criminal Appeal
No.342 of 2007), it is held:
22) In State of U.P. vs. Bhagwant Kishore,
(AIR 1964 SC 221), this court stated that "Though
ordinarily investigation is undertaken on
information received by a police officer, the
receipt of information is not a condition precedent
for investigation."
23) The principles now well settled are that
when information regarding a cognizable offence is
furnished to the police that information will be
regarded as the FIR and all enquiries held by the
police subsequent thereto would be treated as
investigation, even though the formal registration
of the FIR takes place only later.
24) Assuming that some report was made
on telephone and that was the real First
Information Report, this by itself would not affect
the appreciation of evidence made by the learned
Sessions Judge and the conclusions of fact drawn
by him. The FIR under Section 154 Cr.P.C. is not a
substantive piece of evidence. I ts only use is to
contradict or corroborate the maker thereof.
Therefore, we see no merit in the submission
made by learned counsel for the appellants.
9. On this point, it is to be stated that registration
of FIR at the earliest point of time rules out manipulations
and embellishments. Delay gives room for doubting the
contents of FIR. PW25 could have made an entry of the
information that he received while he was in police station
before visiting the spot. If he wanted to confirm the truth
in the information that he received and therefore visited
the spot without making an entry in the station house
diary, it cannot be said that it was a serious procedural
infraction. In this context, reliance may be placed on two
judgments of the Supreme Court cited by Sri Aravind
D.Kulkarni. In the case of Sidhartha Vashisht alias
Manu Sharma V/s State of Delhi, (2010) 6 SCC 1, it is
held as below:
303. (3) The phone calls made immediately
after an incident to the police constitutes an FIR
only when they are not vague and cryptic. Calls
purely for the reason of getting the police to the
scene of crime do not necessarily constitute the
FIR. In the present case, the phone calls were
vague and therefore could not be registered as the
FIR. The FIR was properly lodged as per the
statement of Shyan Munshi, PW2.
Same view has been taken in Surajit Sarkar V/s State
of West Bengal, AIR 2013 SC 807.
10. In this case what we find is there was no
inordinate delay in receiving the report as per Ex.P1 from
PW1 and registration of FIR. When he visited the spot, he
saw the dead body, came to village and met PW1. He
received the report from PW1 at 7.45 a.m. and returned
to police station at 8.30 a.m. and registered FIR. The
incident is said to have taken place at about 6.00 a.m. We
do not find delay in registration of FIR. But whether first
information given by PW1 is trustworthy or not is
altogether a different aspect, and it requires
consideration.
11. Sri S.S.Koti argued that the inquest should have
been conducted at the spot, instead PW25 made
arrangement for shifting the dead body to Ballari Hospital.
The body was kept in the freezer of the mortuary of the
hospital to keep the injuries afresh till inquest was
conducted. This shows unnecessary interest shown by the
police. He further argued that the inquest as per Ex.P18
was vitiated because it was conducted by a police officer-
PW22 who had no authority to conduct it. Sri L.S.Sullad
and Sri Aravind D.Kulkarni argued that inquest is not a
substantial piece of evidence. PW25 was not questioned in
the cross-examination as to why he took a decision to
shift the dead body to the hospital. The evidence of PW22
clearly shows that he conducted inquest as per oral
instructions of the Superintendent of Police. To garner
support for their argument that inquest is just a formality
during investigation, they have placed reliance some
authorities. In the case of Sambhu Das (supra), it is held
in para 17:
" .....................This Court, in the case of Podda
Narayana Vs. State of Andhra Pradesh (AIR 1975
SC 1252), has indicated that the proceedings
under Section 174 Cr.P.C. have limited scope. The
object of the proceedings is merely to ascertain
whether a person has died in suspicious
circumstances or an unnatural death and if so,
what is the apparent cause of the death. The
question regarding details as to how the deceased
was assaulted or who assaulted him or under what
circumstances, he was assaulted is foreign to the
ambit and scope proceeding under Section 174.
Neither in practice nor in law was it necessary for
the Police to mention these details in the Inquest
Report. I n George Vs. State of Kerala AIR 1998 SC
1376, it has been held that the Investigating
Office is not oblig ed to investigate, at the stage of
Inquest, or to ascertain as to who were the
assailants. In Suresh Rai Vs. State of Bihar AIR
2000 SC 2207, it has been held that under Section
174 read with Section 178 of Cr.P.C., Inquest
Report is prepared by the Investigating Officer to
find out prima facie the nature of injuries and the
possible weapon used in causing those injuries as
also possible cause of death."
12. In Harijan Jivrajbhai Badhabhai V/s State of
Gujarat (2017) 1 Crimes 214 (SC), it is held in para
12:
".....................The Investigating Officer had initially
requested the Presiding Officer to lodge a
complaint. Upon his refusal, the Investigating
Officer then had to make enquiries and record the
complaint of PW30 Bhanj i. In the meantime, if
inquest was undertaken and the body was sent for
postmortem, we do not see any infraction which
should entail discarding of the entire case of
prosecution."
13. From the above decisions of the Supreme Court,
it may be held that shifting of the dead body to Ballari
Hospital without conducting the inquest at the spot may
not be considered significantly. If according to the
defence, non-conduction of inquest at the spot materially
affected the prosecution case, the concerned police officer
should have been questioned and he would have
answered. They are not questioned. Ex.P18 shows that the
inquest was actually held in between 10.30 a.m. to 12.00
noon, that means after registration of FIR. The argument
of Sri S.S.Koti, for these reasons, cannot be accepted.
Despite these observations regarding FIR and the inquest,
we point out certain other aspects which we think to be
very material and we deal with them little later after
assessing the evidence of prime witnesses.
14. The entire case rests on the sole testimony of
PW5-Parvatemma, the wife of the deceased. Sri S.S.Koti
argued that she was not an eyewitness, PW1-her father-
in-law and the investigating officer planted her to be an
eyewitness. His argument was that no woman in the
village would accompany her husband in the village side
for a morning walk, that if she was really present at the
spot when her husband was sacked to death, her natural
conduct would have been something different; she would
have cried loudly for help; she would not have sat at a
distance in front of the temple like an angel. The dead
body was at a distance of nearly 40 to 50 feet from the
place where she was found to be sitting. Being a wife her
natural conduct was to sit near the dead body weeping.
Her evidence discloses that she even did not go and see
whether her husband was still alive or not. She would
come to conclusion that her husband might have died, this
is not expected of a wife in the context of Indian society.
Very soon after the incident, PW6 came on his bicycle in
search of his missing she-buffalo; he did not see PW5 at
that place. PW25 also came to that place and he too did
not see her. All these circumstances clearly indicate that
she was not present. She might have refuted all the
suggestions given in her cross-examination and she
appears to have not been discredited, but if her evidence
is subjected to scrutiny having regard to the answers
given by PW1, PW6, PW7 and PW25, it is not impossible to
draw an inference that she was not only planted, but
tutored and therefore her evidence requires to be
discarded. He further argued that on 19.03.2009, she was
very much present in the village when the investigating
officer came there for the purpose of holding panchanama
and he admitted that PW5 was very much present.
According to him, PW5 showed the place of incident and
her signature is also there on the spot panchanama-
Ex.P16. If really PW5 was present at the time of drawing
spot panchanama, nothing prevented the investigating
officer from taking her statement under Section 161
Cr.P.C. on that day itself, rather her statement was
recorded on 20.03.2009 and further statement on
21.03.2009. This delay, though one day, cannot be
ignored because of two possibilities, one that she might
not be an eyewitness and second that she might not have
shown the spot. This implies manipulation and therefore
the testimony of PW5 needs to be discarded.
15. Sri L.S.Sullad and Sri Aravind D.Kulkarni argued
that PW5 was neither a planted nor a tutored witness. Her
sole testimony is trustworthy. If she sat in front of the
temple after seeing her husband being killed, it cannot be
said that her conduct was unnatural. She has given
explanation that she fainted seeing the assault on her
husband. When suitable explanation is forthcoming, the
sole testimony cannot be discarded. They submitted that
there was no delay in recording the statement of PW5.
One delay is no delay at all, if the testimony of sole
witness is trustworthy, delay in recording the statement
cannot be given too much of importance.
16. Sri S.S.Koti, Sri L.S.Sullad and Sri Aravind
D.Kulkarni have relied upon umpteen case law in support
of their arguments. In Jagadish V/s State of Haryana
(AIR 2019 SC 3696), the Supreme Court, taking note of
the circumstance that there was unexplained delay of six
hours in lodging FIR and the pre existing enmity between
the parties, held that evidence of sole eyewitness was
doubtful. In Ram Chander and others V/s State of
Haryana, (2017) 2 SCC 321, the Supreme Court found
that the testimony of eyewitness was natural, credible and
consistent and that her testimony was corroborated by
other prosecution witnesses on all material points and
therefore confirmed the conviction. In Mahesh and
another V/s State of Madhya Pradesh, (2011) 9 SCC
626, what is held is that a proper and appropriate
explanation has been given for the delay in recording a
statement of witness under Section 161 Cr.P.C., delay will
not demolish or vitiate prosecution case. It is also held in
the same judgment that it is not the quantity, but the
quality that matters. The co-ordinate bench of this court
in the case of Venkatesha alias Poori and others V/s
State of Karnataka, 2016 (1) KCCR 34, has held that
there is no statutory rule that conviction cannot be made
on the testimony of a sole eyewitness and that the courts
can accept such evidence though uncorroborated. In the
same judgment it is also observed that the evidence of a
witness to a murder cannot be discarded merely on the
ground that the witness did not react in a particular
manner.
17. While appreciating evidence in criminal cases,
there cannot be a straight jacket formula, evidence must
be appreciated from the perception of a prudent common
man. How a prudent common man behaves in the normal
set of circumstances is the guiding factor and if a question
is put whether there is any rule for appreciating the
evidence, the answer is no rule. If testimony of a sole
eyewitness is believable in one case, it may not be found
believable in another case. If delay does not matter in one
case, the same matters in another case. Therefore every
case is distinct and different. There cannot be a particular
yardstick. We find it apt to refer to here an observation
made by Justice V.R.Krishnaiyer in the case of Inder
Singh and another V/s the State (Delhi
Administration), 1978 SCR (3) 393. His Lordship has
observed:
"If a case is proved too perfectly, it is
argued that it is artificial; if a case has some
flaws, inevitable because human beings are prone
to err, it is argued that it is, too imperfect."
18. In the case on hand, PW1, PW5, PW6 and PW7
are the prime witnesses, though PW25 is a police officer
who registered FIR, his evidence becomes relevant to
appreciate evidence of PW5 to some extent. PW1 is not an
eyewitness, it was PW6 who informed PW1 about the
death of his son near Maremma Temple. What PW1 has
stated is that on 19.03.2009, his son and daughter-in-law
left their house at 5.30 a.m. for a morning walk and at
6.00 a.m. Hosagerappa i.e. PW6 came to his house and
told him that his son Virupanagouda was found dead near
Maremma Temple. Immediately he went to that place with
Hosagerappa, Ramanjini, Sharanappa and Nagappa. He
saw the blood on the road, and in a ditch aside the road,
he saw the dead body of his son. There were multiple
injuries on the dead body. His daughter-in-law was sitting
in front of Maremma Temple. When he asked her as to
what happened, she told him that her husband stopped
the motorcycle and when he was pulling its stand to park
it on the road, accused No.1-Maruti, accused No.2-
Timmappa, accused No.3-Basappa, accused No.4-
Doddabasappa, accused No.5-Veeranna, accused No.6-
Yuvaraja and accused No.7-Sharana came and sprinkled
the chilly powder on him. When her husband tried to
escape, they all chased him, inflicted injuries with
machchu and then threw the dead body into the ditch. She
also said that she felt like going unconscious and
therefore sat in front of the temple. The motive that PW1
revealed for killing his son was that he (deceased) was
elected as the president of the gram panchayath with the
support of Congress party, that the accused belonged to
the BJP party; that his son, while resolving a land dispute
between one Manjugouda and the first accused-Maruti,
gave a decision in favour of Manjugouda; and that in
another panchayath relating to water dispute between
Kotwal farmers and the first accused, his son had decided
the matter in favour of Kotwal farmers. For these three
reasons, the accused nurtured enmity against his son.
19. PW1 has stated about giving a report to the
police as per Ex.P1 which was written by PW13-
Tammannagouda. The answers elicited from him in the
cross-examination will be referred to little later.
20. PW6 has stated in examination-in-chief that on
19.03.2009, at 6.00 a.m. he came near Maremma Temple
on his bicycle in search of his missing she-buffalo. He saw
bloodstains on the road. When he looked aside, he saw
the dead body of Virupanagouda and then came to the
village, met PW1 and told him about what he had seen.
Thereafter he again came to near Maremma Temple with
PW1, Nagappa, Sharanappa, Swamy and Ramanjini. Then
he saw PW5-Parvatemma sitting in front of the temple.
Further he has stated that PW1 asked PW5, and that she
revealed everything at that time.
21. PW7-Sharana's evidence in chief examination is
that on 19.03.2009 at 6.00 a.m. he was having tea in
Patrappa's hotel with Nagappa, Ramanjani and
Honnurswamy, that ten minutes later he heard some
commotion in the house of PW1, that they all went there
and saw PW6 telling PW1 about Virupanagouda having
been killed near Maremma Temple. He has stated that
they all came to that place and saw the dead body. He
also saw PW5-Parvatemma sitting in front of temple and
about PW1 asking her as to what happened. He too heard
what PW5 told at that time as to how her husband was
killed.
22. PW5 in her examination-in-chief has stated that
at 5.45 a.m. on 19.03.2009 she and her husband went up
to Maremma Temple on a motorcycle, that her husband
stopped the motorcycle and pulled its stand, that when
they were about to leave that place, accused 1 to 7 came
there from behind the temple and threw chilly powder on
her husband. When her husband tried to escape and run
towards the village, the accused chased him, and then
accused No.1-Maruti and accused No.2-Timmappa
assaulted him with machchus on his head, chin, ear, hand
and chest; in all they gave 15 to 16 blows. Afterwards the
other accused 3 to 7 pulled the body towards a roadside
ditch. By the time she went there, they all ran away with
machchus towards the canal. She has stated that seeing
this incident, she felt giddiness and sat in front of the
temple. Some time later, her father-in-law, Sharana,
Nagappa, Ramanjani, Honnurswamy, Hosagerappa came to
that place. When her father-in-law asked, she revealed
the entire incident to him. She too has given the same
motive as her father-in-law has given.
23. PW25-Jagadish N. was the Sub-Inspector of
Police at the Kudithini Police Station. What he has stated
in examination-in-chief is that on 19.03.2009, he received
information about the killing of Virupanagouda and
immediately he came to the spot. Thereafter he went to
the house of PW1, received the written complaint as per
Ex.P1, returned to the police station and registered FIR as
per Ex.P37. At this juncture itself reference may be made
to Ex.P16-spot panchanama. PW2 has stated that PW5
showed the place of incident to the investigating officer,
that he was present when this panchanama was drawn in
between 11.00 a.m. and 1.00 p.m., and that he signed the
panchanama as a witness. PW26 the investigating officer
has given evidence about drawing of spot panchanama at
the place shown to him by PW5.
24. The oral evidence as referred to above shows
that PW5 is an eyewitness. Her presence at the spot has
been doubted because, as argued by Sri S.S.Koti, when
PW6 went to that place very soon after the incident, he
did not see her. Even PW25 also did not see her.
Therefore, the question that arises is whether PW5 was
really an eyewitness. To draw inferences, it is necessary
to refer to the cross-examination of the above witnesses.
25. Sri S.S.Koti argued that the evidence of PW1,
PW6 and PW7 as regards what they came to know from
PW5 was hearsay. But Sri L.S.Sullad submitted that their
evidence assumes relevancy in accordance with Section 6
of the Indian Evidence Act, they are not hearsay
witnesses, rather they speak about things that happened
soon after the incident. Sri S.S.Koti replied that Section 6
of the Indian Evidence Act can be applied if presence of
PW5 is proved. We find force in the argument of Sri
S.S.Koti on this point.
26. PW5 has been thoroughly cross-examined and of
course she appears to have not been discredited. Yet her
presence at the spot at the time of occurrence can be
doubted. As consistently spoken by PW1, PW6 and PW7,
she was found sitting in front of the temple. The spot
sketch drawn by the Assistant Engineer (PW14) shows
that the temple is at some distance from the place where
the actual assault took place and the place where the
dead body was found. In the spot panchanama Ex.P16, it
is clearly mentioned that the width of the road is 12 ft.,
that there are small canals on both the sides of the road;
that from that place (meaning thereby the place of
incident), Maremma Temple is at distance of 50 ft, and
that the dead body was found in a canal towards the
eastern side at a distance of 7 ft from the place of
incident. But why she went and sat in front of the temple
is the question. Natural conduct of a wife is to sit by the
side of the dead body. She has clearly admitted in the
cross-examination that she did not go near the dead body
and that she was sitting near the motorcycle (Para-14).
The sketch shows that the motorcycle was parked in the
road and that the temple was at some distance. If she
sunk near the motorcycle becoming unconscious, she
could not have gone near the temple and PW1, PW6 and
PW7 would not have seen her sitting in front of the
temple. She was able to speak when her father-in-law and
other came to that place. Their arrival to that place was
not too late, because as PW1 has stated in his
examination-in-chief itself, PW6 came to his house at 6.00
a.m. and gave the information. Very soon they all went to
that place. Moreover, as stated by her, the entire incident
took place within a few minutes after she and her husband
came near Maremma Temple. She has stated very clearly
in the cross-examination that she got down from the
motorcycle and turned towards the temple to bow to the
God. As she has stated, everyday they were going till
temple on the motorcycle and from there they were
walking in the same road further. That means after
getting down from the motorcycle, she would not have
gone near the temple. If the incident took place in her
front, and became unconscious having seen it, she should
have sunk to the ground at that place itself. If she was
seen sitting in front of the temple, obviously a doubt
arises whether really she had accompanied her husband
for the morning walk. To fortify this view, evidence of
PW6 becomes relevant. Because he was the first person to
come to that place. He did not see her at that time, he
has stated to have seen her when he came to that place
again (i.e. second time) with PW1 and other villagers. To
repeat what he has stated very clearly in the examination-
in-chief is that when he, PW1 and others came near the
temple, they saw PW5 sitting there. In the cross-
examination, he has stated that he became frightened to
see the dead body and in that state itself he went to the
house of PW1 and therefore he did not see anything
except the dead body. This was when he saw the dead
body for the first time. It may be possible, even accepting
his answer to be true, still the doubt about her presence
remains because PW25-the Sub-Inspector who came to
that place within a short span of time also did not see
her. He has clearly admitted in the cross-examination that
if someone comes from village Kudithini, one must pass
through the place of incident to go to the house of PW1,
and that he went to the house of PW1 with four police
staff. That means he did not come alone. If he did not see
PW5, at least one of the police constables should have
seen PW5 if she was really sitting in front of the temple.
PW25 has not been questioned whether he saw PW5 or
not. PW5 might have stated that she returned to the
house at 6.30 a.m. from the place of incident, but it is
elicited from PW1 in the cross-examination that when the
police came to the spot, her daughter-in-law i.e. PW5 was
still sitting in front of the temple. He has also stated that
the Police Sub-Inspector, and the Circle Inspector came to
the spot at 7.00 a.m. along with eight to ten police
constables. Since the police should pass through the place
where the incident had occurred before reaching Elubenchi
village, if none of them could see PW5, a doubt arises
about her presence at the time of incident.
27. The evidence of PW7 is also relevant to draw
inference about the presence of PW5. It is the clear
answer of PW7 in the cross-examination that the police
came to the spot after they all went to that place at 7.00
a.m. and none else was present at that place except
them. He has stated that after arrival of police, it was
PW1 who told them at that place as to how the incident
occurred. His further answer is that when PW1 was giving
the details of incident to them, time was 7.30 a.m.,
Parvatamma-PW5 was not present.
28. These discrepancies in the evidence of the
witnesses about the presence of PW5 at the place of
incident are not trivial, since the prosecution has
projected her to be an eyewitness, unless there is
convincing evidence that she was present at the place
when the incident occurred, her testimony does not
become trustworthy although she appears to have been
not discredited.
29. Another reason for doubting PW5 to be an
eyewitness is, according to PW26, PW5 showed him the
place of incident for drawing spot panchanama as per
Ex.P16 in between 11.00 a.m. and 1.00 p.m. Of course
Ex.P16 contains her signature. Though Sri S.S.Koti argued
that PW5 put her signature on Ex.P16 when she came to
court for giving evidence, his argument cannot be
accepted. However a doubt arises about her presence
because if she was really present at that time and showed
the place of incident to the investigating officer, he could
have recorded her statement as well at that time itself.
But he didn't, the reason for it is not forthcoming; when
he came to the village for the purpose of holding
investigation and came to know that the incident took
place in the presence of PW5, if he had recorded her
statement at the earliest point of time, it would have
inspired confidence to believe the testimony of PW5. At
this juncture, reference may be made to evidence given
by PW11-Sharanabasavanagouda. He has stated that on
19.03.2009 at about 6.20 a.m. he came to know about the
death of Virupanagouda. He wanted to go to Elubenchi
village but came to know that the dead body had already
been brought to VIMS Hospital, Ballari. He went to
hospital at 10.00 a.m. and saw the dead body in the
mortuary. He also speaks about inquest conducted in the
hospital and at that time, one Neelappa, PW4-Yerriswamy,
Manjunathagouda and Agasara Tammanna were present.
The Gandhinagar Police Inspector took his statement. In
the cross-examination it is elicited from him that when
the dead body of Virupanagouda was brought to hospital,
his (Virupanagouda) wife, Parvatamma was also present.
PW11 is a relative of the deceased, not a stranger to the
family. If he had not seen Parvatamma in the hospital, he
would not have stated about her presence. The inquest
panchanama was drawn in the hospital in between 10.30
a.m. and 12 noon. Therefore, if his answer is considered,
the presence of PW5 in between 11.00 a.m. and 1.00 p.m.
at the time of spot panchanama becomes doubtful, and
this could be the reason for not recording her statement
at that time. This leads to two inferences that probably
she might not be an eyewitness and secondly that her
signature might have been obtained on the spot
panchanama when she went to the police station on
20.03.2009. Visiting the police station on 20.03.2009 by
PW1 and PW5 is admitted by them in the cross-
examination. In this view, delay in recording the
statement of PW5 matters very much.
30. The conduct of PW5 assumes importance.
Though it was argued by Sri L.S.Sullad and Sri Aravind
D.Kulkarni, that the behavioral pattern cannot be the
same in all and that it differs from person to person and
that it has been observed so in the judgment of the co-
ordinate bench of this court in the case of Venkatesh
alias Poojari (supra), here it is the conduct of the wife
that is in question. The conduct of a stranger eyewitness
to an incident cannot be equated with conduct of a close
relative of the deceased, if the eyewitness happens to be
the wife of the deceased and if her conduct appears
unusual, it cannot be simply ignored. Here PW5 was not
found sitting by the side of the dead body, she was sitting
in front of the temple. She might have stated that she felt
like going unconscious seeing her husband being sacked.
Of course, fainting or going to shock, may be quite
natural. But PW5 has not stated that she became
unconscious, she has stated she felt like becoming
unconscious. Then, instead of being near the dead body, if
she remained near the temple and if she even did not
show interest to see whether her husband was still
breathing or not, it appears unnatural. If a stranger meets
with an accident on a road, a passer's by conduct quite
naturally is to see whether the person who has suffered
injuries is still breathing or not. Being a wife if she would
come to conclusion without seeing her husband that he
was dead, it is something that cannot be accepted.
Therefore, the unnatural conduct of PW5 also leads to an
inference that she might not be present when her husband
was assaulted to death. For this reason the evidence of
PW1, PW6 and PW7 cannot be brought within the realm of
Section 6 of Indian Evidence Act.
31. PW8 has been examined to establish conspiracy.
According to PW1 and PW5, they came to know about
conspiracy on 21.05.2009. The conspiracy took place in
the flour mill (Zin, as stated by the witnesses). After
coming to know about conspiracy, both PW1 and PW5 gave
their further statements before the police about it and
they have stated so while deposing before the court.
Based on this conspiracy that two more accused 8 and 9
were included in the charge sheet. PW8 has stated in the
examination-in-chief that on 18.03.2009, he had been to
Kudithini and he returned to Elubenchi village with
Tayappa at about 11.00 p.m. in a tempo. They both
alighted from the tempo at Poteppanakatte. When they
were going towards village, they saw all the nine accused
going inside the Zin belonging to one of them i.e. accused
No.3-Chage Basappa. They closed the door. Therefore, he
and Tayappa went near the window of the Zin and peeped
through it to see what was going on inside. They heard all
the accused talking that Virupanagouda was always
coming in their way and he should be finished. At that
time, accused No.1-Maruti and accused No.2-Timmappa
told that they would bring machchu, and accused No.3-
Chage Basappa told that he would bring chilly powder.
Accused No.8-Umesh and accused No.9-Mallanagouda told
that they would be keeping watch at the time others
would attack Virupanagouda. After hearing these words,
PW8 and Tayappa went to their houses. On the next day
morning at 6.00 a.m., they came to know about the death
of Virupanagouda. They went to the place of incident and
saw the dead body. At that time, both he and Tayappa
thought that the accused might have executed their plan.
32. In the cross-examination, it is elicited from him
that his house and Tayappa's house are not situated near
the flour mill or the Zin, and their houses are near to the
old bus stand. There are two bus stands in their village,
one old and another new. The flour mill of Chage Basappa
is not situated near the bus stand, it is at some distance.
They have clearly admitted that in order to go to their
houses, they should pass through the new bus stand and
the old bus stand. They have also stated that all the
vehicles will stop near old bus stand. They were coming
from Kudithini village in order to reach their houses. They
should have got down near the stop which was very near
to their houses. They have stated that they did not
request for a stop near the old bus stand, instead they
went ahead and got down near that Poteppanakatte. There
is no explanation as to for what reason they did not get
down near the old bus stand. Therefore, a doubt arises
obviously whether all the accused had met in the flour mill
of accused No.3. Then if they had heard that accused were
planning to kill Virupanagouda, they could have gone to
his house to alarm him at that time itself. On the next
day, when they went to spot after coming to know about
the death, they could have revealed about the conspiracy
to the police or to PW1. They simply returned to their
houses. He has stated that on 21.03.2009,
Sharanabasayya i.e. PW1 called him to his house and at
that time, he told him about the conspiracy. Both PW1 and
PW5 have stated in the cross-examination that they came
to know about the conspiracy on 21.03.2009. Therefore,
the evidence of PW8 about conspiracy is not believable,
the involvement of PW1 in projecting conspiracy can be
suspected.
33. The trial court has not convicted accused No.8
and 9, holding that there are no materials against them.
According to prosecution, there is involvement of nine
accused, accused No.8 and 9 were part of conspiracy.
Assuming that the evidence of PW5 is believable as an
eyewitness, when PW1 came to the spot, she took the
names of only accused 1 to 7 for the assault on her
husband. According to the evidence of PW8, when he saw
the meeting of all the accused inside the flour mill, he
heard accused 8 and 9 saying that they would keep a
watch at the time when the other accused would attack
Virupanagouda. That means accused 8 and 9 should have
come near Maremma Temple along with other accused. For
the reason that PW5 did not take the names of accused 8
and 9 while narrating the incident to her father-in-law,
the inference is that they had not gone and that they
might not be a part of conspiracy. The evidence of PW8
for this reason also, becomes doubtful.
34. Examined whether the prosecution case stands
independently of the evidence of PW5, the evidence with
regard to recovery of incriminating materials on the basis
of voluntary statements made by accused 1 and 2 is to be
considered. PW26-the investigating officer has stated that
on 23.03.2009, himself and the Sub-Inspector traced
accused No.1, accused No.3, accused No.5, accused No.6
and accused No.7 near Toranagallu Railway Station,
arrested them and brought to police station. He obtained
the voluntary statement of accused No.1 and at that time,
he disclosed the place where he had hidden the machchu
and that he would show the same if he was taken to that
place. Accordingly, accused No.1 took them to a place
near canal and produced the machchu. The time of
recovery was between 7.00 p.m. and 8.30 p.m. Recovery
panchanama as per Ex.P23 was drawn in the torch light in
the darkness.
35. On 23.03.2009 itself, PW26 recorded the
voluntary statement of accused No.3 who at that time is
said to have stated that he would show the chilly powder
used at the time of committing the offence if he was taken
to his flour mill. Having recorded his statement on
23.03.2009, the investigating officer did not find it
necessary to immediately go to flour mill for seizing the
sample of the chilly powder. Till 31.03.2009, he did not go
to flour mill. Ex.P24-panchanama was drawn at the flour
mill on 31.03.2009.
36. On 12.04.2009, PW26 arrested accused No.2 at
Kampli bus stand. Based on the voluntary statement of
accused No.2, he seized another machchu that was
produced by accused No.2 removing it from a thorny
bushy plant near the canal. Of course there is no delay in
recovery of this machchu.
37. The conduct and approach of PW26 may be
mentioned here. If he hastened to seize a machchu at the
instance of accused No.1, based on his voluntary
statement, he did not show the same eagerness to seize
the samples of chilly powder from the flour mill of accused
No.3 although his voluntary statement was obtained on
23.03.2009; he waited till 31.03.2009. There is no
explanation for this delay. The approach of PW26 in this
regard appears to be very paradoxical.
38. Recovery can be doubted for another reason.
The weapons marked in evidence are two Machchus,
M.O.16 and M.O.17. But the doctor who conducted
postmortem examination has stated that the weapons
showed to him were sickles. A sickle is altogether a
different instrument from Machchu. If sickle is used for
cutting grass or standing crops; machchu is used for
chopping. As argued by Sri S.S.Koti, if a person is
assaulted with a sickle, possibility of occurrence of chop
injury is very unlikely. If PW26 recovered machchus at the
instance of accused 1 and 2, he should have shown
machchus to PW19 for his opinion. For these reasons, the
recovery based on voluntary statements becomes
doubtful.
39. Sri S.S.Koti argued with regard to seizure of
chilly powder that FSL report does not indicate whether
the chilly powder particles seized at the spot match with
the species of the sample chilly powder seized at the flour
mill and therefore the FSL report cannot be relied upon.
He also argued that the seizure of weapons at the
instance of accused 1 and 2 cannot be a sole ground for
convicting the accused when the testimony of PW5
appears to be unbelievable and that the active role played
by PW1 in connivance with police is very much apparent.
Though his first part of the argument about the matching
of the chilly powder collected at the spot with the species
of the chilly powder of the sample later on seized at the
flour mill, can be ignored, his second part of argument
about the active role of PW1 and the police appears to be
having force. It is already stated about the haste shown
by PW26 in seizing the machchu at the instance of
accused No.1 and the callousness in seizing the chilly
powder. In addition to this, what is very important to be
mentioned here is holding test identification parade of the
accused. PW5 has clearly stated about going to jail on
20.05.2009 and identifying the accused. PW26 also speaks
about arranging test identification parade by requesting
the Tahsildar. PW18 was the Tahsildar who conducted test
identification parade, Ex.P30 is the test identification
parade report.
40. Sri S.S.Koti argued that there was no necessity
to hold test identification parade because all the accused
were known to PW1 and PW5. Test identification parade
will be held for identifying the accused who are strangers
and if the faces of the accused could not be clearly seen
at the time of incident because of paucity of light. The
very reason that PW26 arranged for test identification
parade, only shows that he yielded to PW1. This argument
of Sri S.S.Koti has force to some extent. In the
circumstances of the case projected by the prosecution,
holding of test identification parade was absolutely
unnecessary. The involvement of PW1 in implication of the
accused may be seen. The evidence of PW7 fortifies the
fact that PW1 was also an accused along with him in an
earlier criminal case. PW8 has also stated in the cross-
examination that when the police came to the spot, it was
PW1 who gave all the information to them and later on
also in his house. PW5 has clearly admitted that the police
did not enquire her at all at the time of drawing of
panchanama. As stated above, if she was really present at
that time, the investigating officer should have enquired
her and not PW1 to ascertain the truth. She has also
stated that PW1 told her about the conspiracy. Therefore,
in this background, if the prosecution case is assessed as
a whole, recovery of the weapons at the instance of
accused 1 and 2 cannot be considered for drawing a
conclusion that prosecution has stood proved beyond
reasonable doubt. It is true that all doubts are not
reasonable, the doubts which do not find an answer or
suitable explanation, can only be treated as reasonable.
The discussion made above shows that for certain doubts
there are no explanations and therefore the conclusion
drawn by the trial court to hold the accused guilty of the
offences charged against them cannot be sustained.
41. Even if it is assumed that the recovery of the
weapons at the instance of accused 1 and 2 can be
believed, it is the alternative view possible. When two
views are possible, its benefit must be given to the
accused. Hence, we come to conclusion that the impugned
judgment cannot be sustained.
42. From the above discussion, we come to
conclusion that Criminal Appeal No.100130/2016 deserves
to be allowed and Criminal Appeals No.100139/2016 and
100233/2016, dismissed. Ordered accordingly. The
judgment of the trial court convicting accused No.1 to 7
for the offences punishable under Sections 143, 147, 148,
302, 120B read with 149 I.P.C. is set aside. They are
acquitted of the offences. Their bail bonds and surety
bonds are cancelled. Fine amount, if deposited by them,
shall be refunded to them.
SD/-
JUDGE
SD/-
JUDGE
Bvv/CLK
