Karnataka High Court
Keshava @ Choni vs Balwan Singh Vs. State Of ... on 6 May, 2021
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF MAY, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
CRIMINAL APPEAL No.1128/2016
C/W
CRIMINAL APPEAL No.1616/2016
C/W
CRIMINAL APPEAL NO.871/2016
IN CRL.A. No.1128/2016:
BETWEEN:
1. KESHAVA @ CHONI
AGED ABOUT 23 YEARS,
S/O JAYA POOJARY,
RESIDING AT BACKSIDE OF
SOMESHWARA RAILWAY STATION,
SOMESHWARA,
MANGALORE-575 023.
2. PREETHESH @ PREETHU
AGED ABOUT 20 YEARS
S/O DAYANAND POOJARY
2
RESIDING AT MANTE PADAVU
MANE, NARINGANA VILLAGE,
BANTWAL TALUK,
PIN CODE-575 018.
(NOW IN JUDICIAL CUSTODY,
CENTRAL PRISON, BANGALORE)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR COUNSEL A/W
SRI KARIAPPA, N.A., ADVOCATE)
AND:
STATE OF KARNATAKA BY
ULLAL POLICE, D.K.,
MANGALORE
PIN CODE-575 020.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
HIGH COURT OF KARNTAKA,
BENGALURU.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTIN AND ORDER OF SENTENCE
DATED 22/23.04.2016 PASSED BY THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K., MANGALORE IN S.C.NO.117/2012
AGAINST THE APPELANTS/ ACCUSED NO.1 AND 3 CONVICTING
THEM FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
143,147, 148,447,448 AND 302 READ WITH SECTION 149 OF IPC
AND CONSEQUENTLY ACQUIT THEM FOR THE SAID OFFENCES.
3
IN CRL.A. No.1616/2016:
BETWEEN:
STATE OF KARNATAKA,
THROUGH POLICE INSPECTOR,
ULLAL P.S.,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, BANGALORE - 1.
...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
AND:
1. KESHAVA @ CHONI,
AGED ABOUT 27 YEARS,
S/O JAYA POOJARY,
R/AT BACK SIDE OF SOMESHWAR,
RAILWAY STATION, SOMESHWARA,
MANGALORE - 575 023.
2. NISHANTH @ NISHU
AGED ABOUT 24 YEARS,
S/O LATE NITHYANANDA KAVA,
R/AT NITHYANANDA KRIPA,
NEAR THOKKOTTU OVER BRIDGE,
ULLAL VILLAGE, MANGALORE TALUK - 575 020.
3. PREETHESH @ PREETHU
AGED ABOUT 24 YEARS,
S/O DAYANANDA POOJARY
R/AT MONTE PADAV MANE
NARINGANA VILLAGE,
BANTWAL TALUK - 574 211.
4. BHUSHAN
AGED ABOUT 26 YEARS,
S/O THULASIDAS ACHAR,
R/AT FAKEERA GATTY COMPOUND,
4
SHARADA KATTE, KOLLYA,
SOMESWARA VILLAGE,
MANGALORE TALUK - 575 023.
5. SANDESH @ SANDU
AGED ABOUT 24 YEARS,
S/O SUBRAMANYA CHETTIYAR,
R/AT BEHIND SOMESHWARA RAILWAY STATION,
C/O CHANDRASHEKAR'S RENT HOUSE,
MANGALORE TALUK - 575 023.
6. SURAJ,
AGED ABOUT 27 YEARS,
S/O KRISHNA
R/AT NEAR THE HOUSE OF HARISH RAJ,
MADYAR PARASHAKTHI TEMPLE ROAD,
MANDYAR, KOTEKAR VILLAGE,
MANGALORE - 575 023.
7. CHETHAN @ CHETHU
AGED ABOUT 29 YEARS,
S/O J. NARAYANA,
R/AT SARASWATHY COLONY,
DWARAKA NAGAR,
KOLLYA, MANGALORE TALUK - 575 023.
8. AVINASH BAJILAKERI
AGED ABOUT 29 YEARS,
S/O PRABHAKAR NAYAK,
R/AT ASHA NILAYA, DEVINAGAR
KINYA POST, TALAPADY VILLAGE,
MANGALORE TALUK - 575 023.
9. RAJESH,
AGED ABOUT 34 YEARS,
S/O LATE SUNDAR SHETTY,
R/AT SANTHOSH NAGAR,
KUTHAR, MUNNAR VILLAGE,
MANGALURU TALUK - 574 199.
5
10 . GURUPRASAD @ GURU
AGED ABOUT 32 YEARS,
S/O LATE SUNDAR
R/AT SHIVAGIRI NAGARA,
NEAR DEEPA FARM HOUSE
HOSABETTU, KULAI,
MANGALURU - 575 019.
11 . CHANDRAHAS NARAYANA POOJARY @
CHANDRA, AGED ABOUT 42 YEARS,
S/O NARAYANA POOJARY,
R/AT SOMESHWARA, SOMANATHA COLONY,
KOTEKAR POST,
MANGALURU TALUK - 575 022.
...RESPONDENTS
(BY SRI HASHMATH PASHA, SENIOR COUNSEL ALONG WITH
SRI N.A. KARIAPPA, ADVOCATE FOR R1 & R3;
SRI TOMY SEBASTIAN, SENIOR COUNSEL ALONG WITH
SRI RAVINDRA GOWDA, ADVOCATE FOR R8;
SRI SUYOG HERELE E., ADVOCATE FOR R2 & R9;
SRI MUZZAFFAR AHMED, ADVOCATE FOR R4, R5, R7, & R11;
SRI VISHWANATH POOJARY, ADVOCATE A/W
SRI PRASANNA V.R., ADVOCATE FOR R6;
SRI LOKESHA K., ADVOCATE FOR R10)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 22/23.04.2016 PASSED
BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE IN S.C.NO.117/2012 IN SO FAR AS ACQUITTING THE
RESPONDENTS/ACCUSED No.1,3 AND 8 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 120-B READ WITH 149 IPC AND
ACQUITTING A2, 4 TO 7 AND 9 TO 11 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143,147,148,447,448, 120B,75
AND 302 READ WITH SECTION 149 OF IPC AND CONVICT AND
SNTENCE THE ACCUSED FOR THE SAID OFFENCES.
6
IN CRL.A. No.871/2016:
BETWEEN
SRI. AVINASH BAJILAKERI,
S/O PRABHAKAR NAYAK,
AGED ABOUT 25 YEARS,
R/AT ASHA NILAYA,
DEVINAGAR, KINYA POST
TALAPADI VILLAGE,
MANAGALORE TALUK,
D.K.DISTRICT-576233.
(NOW CONVICTED AND UNDERGOING
LIFE IMPRISONMENT
AT DHARWAD CENTRAL PRISON)
...APPELLANT
(BY SRI TOMY SEBASTIAN SENIOR COUNSEL ALONG WITH
SRI RAVINDRA GOWDA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ULLALA POLICE STATION,
D.K.DISTRICT, MANGALORE,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 22/23.04.2016 PASSED BY THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K., MANGALORE IN S.C.NO.117/2012 IN
7
SO FAR AS CONVICTING AND SENTENCING ACCUSED NO.8 FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 143,147,148,447,
448 AND 302 R/W 149 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
These Criminal Appeals are arising out of the common
Judgment and Order dated 22/23.04.2016 made in S.C.
No.117/2012 on the file of the III Addl. District & Sessions Judge,
D.K., Mangalore, whereby the trial Court convicted and sentenced
Accused Nos.1,3 and 8 for the offences punishable under Sections
143, 147, 148, 447, 448 and 302 r/w 149 of IPC and acquitted
Accused Nos.1,3 and 8 for the offence punishable under Section
120B r/w Section 149 of IPC and Accused Nos.2,4 to 7, 9 to 11 for
the offences punishable under Sections 143, 147, 148, 447, 448,
120B, 75 and 302 r/w 149 of IPC.
2. Criminal Appeal No.1128/2016 is filed by Accused Nos.1
and 3 praying to set aside the impugned judgment and order
passed by the trial Court in so far as convicting and sentencing
them for the offences punishable under Sections 143, 147, 148,
447, 448 and 302 r/w 149 of IPC and consequently acquit them for
the said offences.
3. Criminal Appeal No.871/2016 is filed by Accused No.8
praying to set aside the impugned judgment and order passed by
the trial Court in so far as convicting and sentencing him for the
offences punishable under Sections 143, 147, 148, 447, 448 and
302 r/w 149 of IPC and consequently acquit him for the said
offences.
4. Criminal Appeal No.1616/2016 is filed by the State
praying to set aside the impugned judgment and order passed by
the trial Court in so far as acquitting Accused Nos.1,3 and 8 for the
offence punishable under Section 120B r/w 149 of IPC and Accused
NOs.2, 4 to 7, 9 to 11 for the offences punishable under Sections
143, 147, 148,447, 448, 120B, 75 and 302 r/w 149 of IPC and
convict and sentence the accused for the said offences.
I. BRIEF FACTS OF THE CASE
5. It is the case of the prosecution that there was animosity
between accused No.1 and deceased Sandeep Shetty in connection
with the real estate business and money transaction. The accused
Nos. 1 to 10 on account of assuming that deceased Sandeep Shetty
had given information about them to the police, had grudge against
him. On 31.10.2010, they conspired with accused No.11 after
knowing that he will come to Kankanady Railway Station, met him
in the said Railway Station and also in Jail, Mangaluru and formed
unlawful assembly, with common intention and hatched plan to kill
Sandeep Shetty and made preparations. Later on 13.11.2011, at
about 10.10 p.m., during night hours, at the place called Sowmya
Compound, near Someshwara Railway Station, accused Nos. 1 to
10 were being the members of unlawful assembly found with
rioting, holding deadly weapons namely talwars and iron rods,
criminally trespassed by entering into the house of CW1
Hemachandra with intention to commit the murder of Sandeep
Shetty. Afterwards, the accused Nos.1 to 6 being members of
unlawful assembly with common intention caused the death of
Sandeep Shetty by assaulting him by means of talwars and iron
rods, caused grievous injuries on his head, neck, waist and other
parts of the body. Thus, the accused No.11,who has been convicted
in CC No.97/PW/2010, had hatched plan with accused Nos. 1 to 10
to commit the murder of Sandeep Shetty.
6. Accordingly, PW.1 (father-in-law of the deceased) lodged
a complaint - Ex.P1 on 14.11.2011 between 00.30 a.m. and 1.30
a.m. On the basis of the complaint, the Police Inspector - PW.33
registered Crime No.355/2011 in Ullal Police Station for the
offences punishable under Section 143, 147, 148, 447, 448, 302
r/w 149 of IPC. After completion of investigation, the Police filed
the charge sheet against the accused persons. The learned JMFC
has taken cognizance and committed the case to the District &
Sessions Judge, Mangalore. The learned District Judge framed the
charges, read over and explained to the Accused Nos.1 to 11 in the
language known to them. They pleaded not guilty and claimed to
be tried.
7. In order to prove the guilt of the accused persons, the
prosecution examined PWs.1 to 39 and got marked the
material documents - Ex.P1 to Ex.P56 and the material objects -
Mos.1 to 39. On behalf of the defence, no witness was examined,
but got marked the documents - Ex.D1 to Ex.D6.
8. After completion of evidence of the prosecution witnesses,
the statement of the accused persons as contemplated under
Section 313 of the Code of Criminal Procedure were recorded. The
accused persons denied all the incriminating circumstances adduced
against them by the prosecution.
II. FINDINGS OF THE TRIAL COURT
9. The learned Sessions Judge based on the material on
record, has formulated four points for consideration, which are as
under:
1) Whether the prosecution is able to prove that,
the accused Nos. 1 to 10 met accused No.11 who
was convicted in CC No.92/2010, at Railway Station,
Kankanady and also at jail at Mangaluru by accused
No.8 and criminally conspired to commit the murder
of Sandeep Shetty and thereby, the accused Nos. 1
to 10 have committed the offence punishable under
Section 120B read with 149 of IPC and accused
No.11 has committed the offence punishable under
Section 75 of IPC?
2) Whether the prosecution is able to prove that
on 13.11.2011, accused Nos. 1 to 10 formed
unlawful assembly with common intention, found
with rioting by holding deadly weapons and accused
Nos. 1 to 6 criminally trespassed into the house of
CW1 Hemachandra in order to cause the murder of
Sandeep Shetty and thereby they have committed
the offence punishable under Sections 143, 147,
148, 447 and 448 read with Section 149 of IPC?
3) Whether the prosecution is able to prove that
accused Nos. 1 to 6 after criminally trespassed into
the house of CW1 with common intention to cause
the death of Sandeep Shetty, deadly assaulted him
by means of talwars and iron rods, caused grievous
injuries, from which, he died subsequently and
thereby, they have committed the offence
punishable under Section 302 read with Section 149
of IPC?
4) Whether the prosecution is able to prove that
the accused Nos. 1 to 11 have committed the
offences punishable under Sections 143, 147, 148,
447, 448, 120B, 75 and 302 read with Section 149 of
IPC?
10. Considering both the oral and documentary evidence on
record, the learned Sessions Judge answered the 1st point in the
negative holding that the prosecution failed to prove beyond
reasonable doubt that the Accused Nos.1 to 10 have committed the
offence punishable under Section 120B r/w 149 of IPC and Accused
No.11 has committed the offence punishable under Section 75 of
IPC and answered the 2nd, 3rd and 4th points partly in the
affirmative.
11. Accordingly by the impugned judgment of conviction and
order of sentence, the trial Court convicted Accused Nos.1,3 and 8
for the offences punishable under Sections 143, 147, 148, 447, 448
and 302 of IPC r/w 149 of IPC. By the very impugned judgment,
the trial Court acquitted the Accused Nos.1,3 and 8 for the offence
punishable under Section 120B r/w 149 of IPC and the Accused
Nos.2,4 to 7, 9 to 11 for the offences punishable under Sections
143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC.
Hence, Criminal Appeal No.1128/2016 is filed by Accused Nos.1 and
3 and Criminal Appeal No.871/16 is filed by Accused No.8 against
the impugned judgment of conviction and order of sentence and the
State filed Criminal Appeal No.1616/2016 against the impugned
judgment of acquittal passed by the trial Court.
12. We have heard the learned counsel for the parties.
III. ARGUMENTS ADVANCED BY SRI HASHMATH PASHA,
LEARNED SENIOR COUNSEL FOR ACCUSED
13. Sri Hashmath Pasha, learned senior counsel for the
appellants/Accused Nos.1 and 3 in Criminal Appeal No.1128/2016
has contended that the impugned judgment of conviction and order
of sentence passed by the trial Court against Accused Nos.1 and 3
for the offences punishable under Sections 143, 147, 148, 447, 448
and 302 r/w 149 of IPC, is erroneous and contrary to the material
on record and cannot be sustained. He would further contend
that the trial Court having rightly held that the conspiracy not
proved under the provisions of Section 120B r/w 149 of IPC,
proceeded to convict Accused Nos.1,3 and 8 erroneously. He would
further contend that the evidence of PWs.4,5,6 and 7 who deposed
about conspiracy turned hostile. He would further contend that the
incident and the presence of Accused Nos.1 to 6 not proved and
evidence of PWs.1 and 2 cannot be believed as they are interested
witnesses. He also contended that no Test Identification Parade
was conducted to identify the accused as no source of light was
available. He would further contend that in Ex.P1 - complaint, the
names of Accused Nos.2 to 6 not mentioned. Therefore, the
evidence of PWs.1 and 2 is defective and cannot be relied upon.
He would further contend that because Accused Nos.1 to 6 were
shown to PWs.1 and 2 when they were in the Police Station, they
deposed against them. Therefore, the evidence of PWs.1 and 2,
who are the alleged eye witnesses to the incident which had taken
place in the house during the night time, cannot be relied upon.
He would further contend that though the evidence of PWs.30, 31,
33, 35 and 36 - Police Officers depicts that the deceased was
murmuring as "Choni Choni" (name of Accused No.1) on the way to
the hospital, the said aspect was not recorded at the earlier point
of time i.e., in the FIR or before the doctor. In the absence of any
documentary evidence, same cannot be relied upon. He would
further contend that the oral dying declaration of the deceased as
to whether the deceased was in sound state of mind, has not been
proved. PW.1 deposed that when the deceased fell on the
ground, he was unconscious and the doctor - PW.38 deposed that
the deceased was unconscious when he was brought to the
hospital.
14. The learned counsel would further contend that PW.17 -
doctor deposed that because of the nature of injuries sustained by
the deceased, he might have been unconscious. Hence, the
evidence of PW.1 and the evidence of PWs.38 and 17 is not
consistent and cannot be relied upon. Therefore, the learned
Sessions Judge was not justified in convicting the accused persons.
He would further contend that the recovery of weapons MOs. 4 to 9
under Ex.P19 and clothes of Accused NOs.1 to 6 i.e., MOs.27 to 38
under Ex.P20 - mahazar not proved because all the panch
witnesses have turned hostile. He would further contend that the
accused Nos.1 to 6 were in police custody from 14.11.2011 to
17.11.2011. He would further contend that the charge sheet filed
is defective and recovery made after 24 hours, is invalid as the
same is artificial recovery. He would further contend that
considering the serious lacuna in the evidence of PWs.1 and 2, the
trial Court ought to have extended the benefit of doubt in favour of
the accused persons. He would further contend that when the
common charge was made, in the absence of identification of the
accused persons, when the trial Court has acquitted Accused Nos.2,
4 to 7, 9 to 11 for the offences punishable under the provisions of
Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC
and acquitted Accused Nos.1,3 and 8 for the offence under Section
120B r/w 149 of IPC, ought to have acquitted Accused Nos.1,3 and
8, who are similarly situated persons. He would further contend
that admittedly, the deceased Sandeep Shetty was a rowdy
sheeter and involved in many heinous offences and the same has
been ignored by the learned Sessions Judge while passing the
impugned judgment against the accused persons.
15. The learned senior counsel would further contend that
the deceased Sandeep Shetty has earned so many enemies viz.,
Manoj, Vidyadhar, Chandra, Dixith including Accused NO.1 and
somebody might have involved in the homicidal death of the
deceased and not Accused NOs.1,3 and 8 or other accused persons.
He would further contend that though the appeal filed by the State
against acquittal of some of the accused persons for certain
offences, the State has not made out any ground to interfere with
the impugned judgment of acquittal passed by the trial Court based
on the oral and documentary evidence on record. He would further
contend that the scope of the appeal filed by the State against the
judgment of acquittal is very limited. He also contended that even
if two views are possible, the view expressed by the trial Court in
favour of the accused persons acquitting them, has to be accepted.
Therefore, he sought to allow the appeals filed by Accused Nos.1,3
and 8 and dismiss the appeal filed by the State.
16. In support of his contentions, learned senior counsel for
the appellants/Accused Nos.1 and 3 relied upon the following
judgments:
1. Rajesh v. State of Haryana reported in (2021)1 SCC 118
(Paragraph Nos. 43, 43.4, 43.8)
2. Mohd. Iqbal M Shaik V. State of Maharastra reported in
(1998)4 SCC 494 (Paragraph Nos.15,17,19)
3. Mohanlal Gangaram Vs. State of Maharastra reported in
(1982)1 SCC 700 (Paragraph Nos.19, 20)
4. Atmaram Ziingaraji vs. State of Maharastra reported in
(1997)7 SCC 41 (Paragraph No.6)
IV. ARGUMENTS ADVANCED BY SRI TOMY SEBASTIAN,
LEARNED SENIOR COUSNEL FOR ACCUSED NO.8
17. Sri Tomy Sebastian, learned senior counsel for
appellant/Accused No.8 in Criminal Appeal No.871/2016 has
contended that the charge sheet filed by Police only against
Accused Nos.1 to 6 and there is no whisper in the complaint or in
the evidence of PWs.1 and 2 against Accused No.8. Therefore, the
impugned judgment of conviction passed by the trial Court
convicting Accused No.8 for the charges levelled against him along
with Accused Nos.1 and 3, is erroneous and contrary to the material
on record and cannot be sustained. He would further contend that
the charge under Section 120B against Accused NOs.1 to 8 is based
on the statements under Section 161 of the Code of Criminal
Procedure by PW.4 to 7 (Ex.P3 to Ex.P6) and the evidence of
PWs.18 and 19. Admittedly, the conspiracy not proved as held by
the trial Court. Therefore, he would contend that the conviction of
Accused NO.8 is erroneous and contrary to the material on record
and cannot be sustained. He would further contend that the further
statement of PW.1 is only against Accused NOs.1 to 6 and recovery
of MOs.4 to 7 - Talwars and MOs.8 and 9 - iron rods under Ex.P19,
is not at the instance of Accused NO.8. He would further contend
that PW.37 has deposed only against Accused Nos.1 to 6. In the
cross-examination, PW.37 has stated about Accused No.7. Only at
paragraph-37 of his evidence, a stray sentence was made against
Accused NO.8. He would further contend that examination-in-chief
of PW.1 depicts against Accused Nos.1,2,3,4,7 and 8 and the
evidence of PW.2 is only against Accused NOs.1,2 3 and 10.
Therefore, the learned Sessions Judge is not justified in convicting
Accused No.8 alongwith Accused NOs.1 and 3 for the charges
levelled against him. He would further contend that point NO.1
raised by the trial Court under Section 120B against Accused Nos.1
to 11 and point No.2 under Sections 143, 147, 148, 447, 448 r/w
149 of IPC raised only against Accused NOs.1 to 6. On the basis of
the wrong identification of Accused NO.8, the trial Court proceeded
to convict Accused No.8 without any basis. While adopting the
arguments advanced by Sri Hashmath Pasha, he would further
contend that though the appeal filed by the State against acquittal
of some of the accused persons for certain offences, the State has
not made out any ground to interfere with the impugned judgment
of acquittal passed by the trial Court based on the oral and
documentary evidence on record. Therefore, he sought to allow the
appeal filed by Accused No.8 and dismiss the appeal filed by the
State.
V. ARGUMENTS ADVANCED BY SRI VIJAYKUMAR MAJAGE,
LEARNED ADDL. SPP FOR THE STATE
18. Sri Vijaykumar Majage, learned Addl. SPP, who filed
Criminal Appeal No.1616/2016 against the impugned judgment and
order of acquittal acquitting Accused Nos.1,3 and 8 for the offence
punishable under Section 120B r/w 149 of IPC and Accused NOs.2,
4 to 7, 9 to 11 for the offences punishable under Sections 143, 147,
148,447, 448, 120B, 75 and 302 r/w 149 of IPC, has contended
that the defect in framing charge is not a ground to acquit the
accused persons in view of the provisions of Section 464 of the
Code of Criminal Procedure. The acquittal order passed by the
learned Sessions Judge is without any basis and liable to be set
aside. He would further contend that in the complaint - Ex.P1, it is
specifically stated that Accused NO.1 and five others i.e., Accused
NOs.1 to 6 are involved in the homicidal death of the deceased
Sandeep Shetty. He would further contend that the evidence of
PWs.1 and 2 depicts that PW.1 knew all the accused persons, but
could not spell out the names to identify Accused Nos.1 to 6 and
therefore, the Test Identification Parade is not necessary. He would
further contend that PW.37 - Investigating Officer recovered the
weapons - Mos.4 to 7, 8 and 9 at the instance of Accused
Nos.1 to 6. Though under Ex.P19 to 22 - seizure mahazars,
PWs.24 to 26 turned hostile, the Investigating Officer reiterated the
same. He would further contend that Ex.P1 clearly depicts that
Accused No.1 and five others, who are known by face were involved
in the commission of the offence. The evidence of PW.1 depicts
about Accused No.1 to 5, 7 and 8 and the evidence of PW.2 depicts
about Accused NOs.1 to 3, 8 and 10. The evidence of PW.37
depicts the recovery of weapons at the instance of Accused Nos.1 to
6. In the cross-examination of PW.1 by Accused No.5, it is clearly
stated about the existence of light on that day. He would further
contend that Ex.P18 and Ex.P25 - sketches produced clearly depict
the involvement of Accused Nos.1,3,8 and 10. He would further
contend that the doctor - PW.17 has stated that on 24.11.2012,
the Ullal Police have sent six packed and sealed covers along with
six weapons and out of six weapons, 2 are sickles, 2 are talwars
and 2 are iron rods. After detailed examination of the above
weapons and on perusal of the post-mortem report, the doctor
issued the report as per Ex.P12, wherein the doctor has opined that
the injury Nos.1 to 54 could be caused by the weapon Nos.1,2,3,4
(F,G,H,I) mentioned in his report. He would further contend that
as per the FSL report - Ex.P15 , the articles 5 to 10 (sealed cover
containing long machus and iron rods) were stained with blood. He
would further contend that as per the serology report, items
B,C,F,G,H,I,J,K,L,M, N,O,Q,R,S,T,U,V and W were stained with
human blood. Further, the blood group of the stains on the said
items could not be determined because the results of the tests were
inconclusive. He would further contend that under Ex.P14 - seizure
mahazar, MOs.7 and 28 recovered at the instance of Accused NO.1.
PW.37 - Investigating Officer specifically stated in his evidence with
regard recovery of clothes of Accused NO.1 and Accused Nos.2 to 6.
He would further contend that the deceased murmured on the way
to the hospital as "Choni, Choni" (name of Accused No.1) and the
same coupled with the evidence of PWs.30, 33 and 35, clearly
depict that Accused No.1 is involved in the homicidal death of the
deceased. He would further contend that the doctor - PW.38 has
stated in paragraph-5 of his examination-in-chief that the
deceased was well built, aged about 30 years when he was brought
to the hospital and he was breathing, but was unable to talk. As
per his opinion, the injured might be able to speak for about 30 to
45 minutes after he sustained injuries. He would further contend
that the evidence of the prosecution witnesses and the material
documents clearly depict that the accused persons involved in the
homicidal death of the deceased. Therefore, he sought to allow
the appeal filed by the State and dismiss the appeals filed by the
Accused Nos.1,3 and 8 and convict all the accused persons for the
offences charged against them.
19. In support of his contentions, he relied upon the
following judgments:
1. Balwan Singh vs. State of Chhattisgarh and another re
reported in AIR 2019 SC 3714 (paragraph Nos.9 and 13 with
regard to unlawful assembly)
2. Duleshwar and another vs. State of Madhya Pradesh
reported in (2020)11 SCC 440 (paragraphs 14 and 15)
3. Raja and another -vs- State by the Inspector of Police
and another reported in AIR 2020 SC 254 (with regard to Test
Identification Parade not required)
VI. REPLY ARGUMENTS BY SRI HASHMATH PASHA, LEARNED
20. In reply, Sri Hashmath Pasha, learned counsel for
Accused Nos.1 and 3 while reiterating the grounds urged in his
appeal, sought to dismiss the appeal filed by the State. He would
contend that Accused No.3 was a student. PWs.1 and 2 have not
stated anything about Accused No.3 that he is known person. In
the absence of the same, the judgment relied upon by the learned
counsel for the accused in the case of DULLESHWAR -vs- STATE OF
M.P. reported in (2020)11 SCC 440 (para 21.5) support the case
of Accused No.3. He would further contend that none of the
prosecution witnesses have whispered the names of Accused Nos.2
to 6. In the absence of any identity, the blood group as per the
FSL report was necessary. In support of his contention, he relied
upon the judgment of the Hon'ble Supreme Court in the case of
KANSA BEHERA -vs- STATE OF ORISSA reported in (1987)3 SCC
480 ( paragraph- 12).
VII. ARGUMENTS ADVANCED BY SRI SUYOG E. HERELE,
21. Sri Suyog E. Herele, learned counsel for Accused NOs.2
and 9 while justifying the impugned judgment of acquittal passed
by the trial Court against Accused Nos.2 and 9, has contended that
the name of Accused NO.2 neither found in the FIR nor in the
complaint. In the cross-examination, PW.1 has not identified
Accused NO.2. Admittedly, the assailants were not identified and
the Test Identification Parade was not conducted. He would
further contend that absolutely there is no material against Accused
Nos.2 and 9. Therefore, he would contend that the impugned
judgment and order passed by the trial Court is just and proper.
Therefore, in exercise of the powers under Section 378(1) & (3) of
the Code of Criminal Procedure, this Court cannot interfere with
the impugned judgment of acquittal passed by the trial Court.
22. In support of his contentions, he relied upon the dictum
of the Division Bench of this Court in Criminal Appeal No.572/2001
decided on 19.12.2008 (paragraph-16).
VIII. ARGUMENTS ADVANCED BY SRI MUZZAFAR AHMED,
23. Sri Muzzaffar Ahmed, learned counsel for Respondent
Nos.4,5,7 and 11 (Accused Nos.4,5,7,11) while justifying the
impugned judgment and order of acquittal, has contended that
PW.1 has not deposed anything against Accused Nos.4, 5 and 7 and
absolutely there is no material produced by the prosecution to
implicate Accused Nos.4, 5 and 7 and therefore, the learned
Sessions Judge is justified in acquitting Accused NOs.4,5 and 7.
He would further contend that though iron rod was recovered at the
instance of Accused No.5 by the Investigating Officer - PW.37 under
Ex.P19 - mahazar, PWs. 24 and 25 (witnesses to the mahazar)
have turned hostile and therefore, the same cannot be relied upon.
He would further contend that admittedly Accused No.11 was is in
jail and as rightly held by the trial Court, conspiracy not proved.
Therefore, he sought to dismiss the appeal filed by the State.
IX. ARGUMENTS ADVANCED BY SRI VISHWANTH POOJARY,
LEARNED COUNSEL FOR ACCUSD NO.6
24. Sri Vishwanath Poojary, learned counsel for Respondent
No.6/Accsued No.6 while justifying the impugned judgment of
acquittal, has contended that PW.1 has not identified Accused No.6
and under Ex.P19, MO.9 - iron rod recovered by PW.37 at the
instance of Accused No.6, but the mahazar witnesses turned hostile
and therefore, the same cannot be relied upon. The deceased
never disclosed the name of Accused No.6 nor any of the
prosecution witnesses. Therefore, the trial Court is justified in
acquitting the accused No.6 for the charges levelled against him.
X. ARGUMENTS ADVANCED BY SRI LOKESHA, LEARNED
COUNSEL FOR ACCUSED NO.10
25. Sri Lokesha, learned counsel for Respondent
No.10/Accused No.10 while justifying the impugned judgment of
acquittal, has contended that the name of the Accused NO.10 is not
found in the FIR. PW.2 identified Accused No.10 first time in the
Court. The statements recorded under Section 161 of the Code of
Criminal Procedure do not whisper the name of Accused No.10. No
material produced against Accused NO.10. Ex.P8 is the seizure
mahazar relating to seizure of mobile phones and sim and the
mahazar witnesses i.e, PWs.15, 27 and 28 turned hostile. Ex.P47
to Ex.P55 - call details not admissible for non-compliance of the
provisions of Section 65B(4) of the Evidence Act. Conspiracy
between Accused Nos.10 and 11 is not proved. Therefore, he
sought to dismiss the appeal filed by the State.
XI. POINTS FOR DETERMINATION
26. In view of the rival contentions urged by the learned
counsel for the parties, the points that would arise for our
consideration in the present criminal appeals are:
i) Whether the trial Court is justified in
convicting and sentencing Accused No.1 for
the offences punishable under Sections 143,
147, 148, 447, 448, 302 r/w 149 of IPC ?
ii) Whether the trial Court is justified in
convicting and sentencing Accused Nos.3 and
8 for the offences punishable under Sections
143, 147, 148, 447, 448, 302 r/w 149 of IPC ?
iii) Whether the State in Criminal Appeal
No.1616/2016 has made out a case to
interfere with the impugned judgment and
order passed by the trial Court insofar as
acquitting the Accused Nos.1,3 and 8 for the
offence punishable under Section 120B r/w
and 9 to 11 for the offences punishable under
Sections 143, 147, 148, 447, 448, 120B, 75
and 302 r/w 149 of IPC, in the facts and
circumstances of the case ?
27. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire material including the original records carefully.
XII. WITNESSES EXAMINED ON BEHALF OF THE
PROSECUTION
28. This Court being the appellate Court, in order to re-
appreciate the entire material on record, it is relevant to consider
the evidence of the prosecution witnesses and the material
documents relied upon:
i) PW.1 - Hemachandra, who is the father-in-law of the
deceased is the complainant and an eye witness to the
incident. While reiterating the averments made in the
complaint, he has stated that on the date of the incident,
he has seen 10-11 members in an unlawful assembly
assaulting the deceased and thereafter, 4 to 5 persons
have entered his house and further assaulted the
deceased. Ex.P1 is the complaint and Ex.P2 is the spot
mahazar. He supported the prosecution case.
ii) PW.2 - Asha, who is the mother-in-law of the deceased
while reiterating the averments made in the examination-
in-chief of her husband (PW.1) has deposed on par with
him. She supported the prosecution case.
iii) PW.3 - Soumya, who is the wife of the deceased has
deposed that she learnt about the incident and
involvement of Accused No.1 and others. She also
deposed regarding the dispute between her husband and
Accused Nos.1 and 11 on certain aspects. He supported
the prosecution case.
iv) PW.4 - Loknath has deposed regarding conspiracy near
Kankanadi Railway Station. He made contradiction -
Ex.P3. He turned hostile to the case of the prosecution.
v) PW.5 - Vijay has also deposed regarding conspiracy near
Railway Station. He made contradiction - Ex.P4. He
turned hostile to the case of the prosecution.
vi) PW.6 - Padmanabh, who has General Store at
Someshwara, has deposed that he knew Accused No.1, but
Accused No.1 and others not came to his shop and he had
not heard talks regarding conspiracy to kill the deceased.
He made contradiction - Ex.P5. He turned hostile to the
case of the prosecution.
vii) PW.7 - Manoj has deposed about conspiracy and following
to kill the deceased and made contradiction - Ex.P6. He
turned hostile to the case of the prosecution.
viii) PW.8 - Sadananda Shetty, who is maternal uncle of the
deceased, has deposed that on early hours at 3.00 a.m. on
the night of the incident, PWs.1 and 2 came and informed
about the incident and that Choni and others have
assaulted Sandeep Shetty. Later, he went to A.J.
Hospital and saw the dead body. He supported the
prosecution case.
ix) PW.9 - Vikram Thudu, who is the Railway Station Master,
Ullala, has deposed that on 13.11.2011 at 10.30 p.m., one
aged person came and requested for telephone call to
Police Station. He dialled to Ullal Police Station and given
to him. He supported the prosecution case.
x) PW.10 - Ivan Rego, who is the panch witness to Ex.P7,
has signed in the Police Station and not in A.J. Hospital.
He turned hostile to the prosecution case.
xi) PW.11 - Nishith Kumar, who is another panch witness to
inquest report - Ex.P7, has deposed that inquest mahazar
not done in his presence in the hospital. He turned
hostile to the prosecution case.
xii) PW.12 - Kiran , who is the witness to spot mahazar has
deposed that he has not seen the scene of occurrence.
No mahazar as per Ex.P2 was drawn in his presence. He
turned hostile to the prosecution case.
xiii) PW.13 - Narayan, who is one of the witness to the spot
mahazar - Ex.P2 has deposed that he has not seen the
scene of occurrence and no mahazar as per Ex.P2 was
drawn in his presence. He turned hostile to the case of
the prosecution.
xiv) PW.14 - Vijay, who is one of the witness to the spot
mahazar - Ex.P2 has also deposed that he has not seen
the scene of occurrence and no mahazar as per Ex.P2 was
drawn in his presence. He turned hostile to the case of
the prosecution.
xv) PW.15 - Vasanth Bangera, who is the panch witness to
Ex.P8 - mahazar regarding recovery of six mobile phones
and eight SIM cards at the instance of the Accused NO.8,
has denied the mahazar and his presence at the relevant
point of time. He turned hostile to the case of the
prosecution.
xvi) PW.16 - Praveen Kumar is the owner of the alto car
bearing No.KA-19-P-8418. Ex.P9 is the Police notice and
Ex.P10 is the mahazar. He denied having given his car to
Accused No.7 to use for escaping after commission of
murder. He turned hostile to the case of the prosecution.
xvii) PW.17 - Dr. Ullasa Shetty is the doctor of A.J. Hospital,
who conducted post-mortem examination on 14.11.2011
over the dead body of Sandeep Shetty. Ex.P11 is the
post-mortem report. He opined that the death was due to
hemorrhage shock consequent upon multiple injuries
sustained over the body. Ex.P12 is the opinion regarding
weapons MOs.4 to 9. He supported the prosecution case.
xviii) PW.18 - Parashuram Shivarudrappa Ambedkar is the
Superintendent of Mangalore Jail. When he was working
in Mangalore Jail, he was maintaining Visitors names in the
Register. The Investigating Officer has asked him to
furnish Visitors Interview Register copy from 17.10.2011 to
5.12.2012. Accordingly, he has furnished Ex.P13, the
copy of the said Register from pages 58 to 67.
Regarding Accused No.11 - Chandra, warrant of
commitment was given as per Ex.P14. He supported the
prosecution case.
xix) PW.19 - Kavitha is the Chief Warden of Mangalore Jail. He
deposed regarding maintaining Visitors Book and Ex.P13 is
the register of Visitors. He supported the prosecution
case.
xx) PW.20 - Dr. Geethalakshmi is the Scientific Officer, FSL,
Mangalore. She has deposed that on 12.12.2011,
Laboratory has received articles from Ullal Police for
analysis and after conducting test, she has issued chemical
analysis report as per Ex.P15. Serology report is as per
Ex.P16. She supported the prosecution case.
xxi) PW.21 - Vishwanath, who is the Gram Panchayath Officer,
has deposed that he issued Demand Register of property
bearing No.10-109A as per Ex.P17. He supported the
prosecution case.
xxii) PW.22 - Sharan Shetty is the panch to the inquest report
- Ex.P7. He has deposed that Ex.P7 - inquest report not
conducted before him. He turned hostile to the case of
the prosecution.
xxiii) PW.23 - K.T.Chandrashekaraiah, who is the Assistant
Engineer, PWD has deposed that he prepared the sketch of
scene of occurrence as per Ex.P18. He supported the
prosecution case.
xxiv) PW.24 - Chittharanjan is the witness to Ex.P19 - mahazar
regarding seizure of weapons - Mos.1 to 6. Ex.P20,
Ex.P21 and Ex.P22 are mahazars regarding seizure of
clothes of Accused Nos.1 to 6. He turned hostile to the
case of the prosecution.
xxv) PW.25 - Praveen Kumar is the panch for recovery of
weapons and clothes. Ex.P19 is the mahazar regarding
seizure of weapons - MOs.1 to 6 from Accused Nos.1 to 6
and Ex.P20, Ex.P21 and Ex.P22 are mahazars relating to
seizure of clothes of Accused Nos.1 to 6. He turned hostile
to the case of the prosecution.
xxvi) PW.26 - Manojraj Shetty is the witness to recovery of
weapons and clothes. He is the witness to mahazar -
Ex.P19 relating to recovery of MOs.1 to 6 from Accused
NOs.1 to 6. Ex.P20 to Ex.P22 are mahazars regarding
seizure of clothes. He turned hostile to the case of the
prosecution.
xxvii) PW.27 - Gunavathi is mother of Accused NO.8. She has
deposed that Accused NO.8 produced six mobiles and 8
Sims from house. He turned hostile to the case of the
prosecution.
xxviii) PW.28 - Ganesh Acharya is the panch for seizure of six
mobile phones - Mos.10 to 15 and 8 SIMS - Mos.16 to 23
under Ex.P8. He turned hostile to the case of the
prosecution.
xxix) PW.29 - Dayanda .K is the P.C. No.375 of Ullal Police
Station. He has deposed that on 14.11.2011 at 7.00
a.m., he carried FIR - Ex.P23 and delivered to Magistrate
at 9.10 a.m. He supported the prosecution case.
xxx) PW.30 - Gangadhar is the P.C. NO.819 of Ullal Police
Station. He has deposed that on 13.11.2011 at 10.10
p.m., he was in Police Station on night duty and then, the
Police Inspector - Sanjeev Naik told to him and other staff
and took in department vehicle to Someshwar village,
where incident of assault has taken place. They all went
behind Railway Station to house of Sandeep Shetty. The
deceased was taken to A.J. Hospital and on the way, the
deceased asked for water and when water was given, he
was telling as 'Choni, Choni'. The deceased was got
admitted for treatment, but died at 11.00 p.m. Distance
was 4 to 5 kilometers. He supported the prosecution
case.
xxxi) PW.31 - Kiran Kumar is P.C. No.2211 of Ullal Police
Station. He has deposed that on 13.11.2011 at 10.10
p.m., he was in Police Station on night duty and then the
Police Inspector - Sanjeev Naik told him and other staff
and took in department vehicle to Someshwar village,
where incident of assault has taken place. They all went
behind Railway Station to house of Sandeep Shetty. The
deceased was taken to A.J. Hospital and on the way, he
has asked for water and when water was given, he was
telling as 'Choni Choni'. The deceased was got admitted for
treatment, but died at 11.00 p.m. Distance was 4 to 5
kilometers. He supported the prosecution case.
xxxii) PW.32 - Ravindra K is the P.C. No.314 of Ullal Police
Station. He has deposed that on 3.12.2011, he carried 24
parcels to FSL, Mangalore and delivered and mud sample
taken to Bangalore FSL. He supported the prosecution
case.
xxxiii) PW.33 - Sanjeeva Naik is the Police Inspector. The
oral version of deceased heard and registered FIR on the
basis of Ex.P1. He conducted further investigation. He
supported the prosecution case.
xxxiv) PW.34 - B. Puttabasavaiah, who is the Assistant
Director, FSL, Bangalore has deposed that on 2.2.2012, he
received mobile through PW.32. He supported the
prosecution case.
xxxv) PW.35 - Damodhar is the Head Constable. He deposed
that Police Inspector took him and PW.33, PW.30 and
PW.31 to the scene of occurrence. He carried the
articles. He supported the prosecution case.
xxxvi) PW.36 - Raveesh S Nayak is the Police Inspector of
Jappina Moguru Police Station. He has deposed that he
received control room message on 13.11.2011 at about
10.20 p.m. to 10.30 p.m. in respect of incident near
Railway Station. He also went and taken injured to the
hospital. Later, on 17.11.2011, he assisted for
apprehension of Accused No.8 and from his house, six
mobiles and 8 SIMs were seized under mahazar - Ex.P8.
He supported the prosecution case.
xxxvii) PW.37 - Manjunatha Shetty, who is the Police
Inspector of Ullal Police Station has deposed that on
14.11.2011, he took up further investigation from PW.33
and on 17.11.2011, Accused Nos.1 to 6 were produced and
he arrested them. He recorded their voluntary
statements as per Ex.P34 to Ex.P39. He conducted further
investigation and filed the charge sheet. He supported the
prosecution case.
xxxviii) PW.38 - Dr. Sunil Jathanna, who is the Casualty
Medical Officer of Father Mular Hospital, has deposed that
on 13.11.2011 at 11.20 p.m. when he was in hospital, a
patient - Sandeep Shetty was brought to Casualty for
treatment. He supported the prosecution case.
xxxix) Pw.39 - Shyam Sundar is the PSI of CCB Police,
Mangalore. He has deposed that as per the direction of
PW.37 - Investigating Officer, he contacted the office of
Commissioner through e.mail and secured call details of
mobile phones of accused as per Ex.P47 to Ex.P55. He
supported the prosecution case.
Based on the aforesaid oral and documentary evidence on
record, the trial Court proceeded to convict Accused Nos.1,3 and 8
for the offences punishable under Sections 143, 147, 148, 447, 448
and 302 r/w 149 of IPC and acquitted them for the offence
punishable under Section 120B r/w 149 of IPC. By the impugned
judgment, the trial Court also acquitted Accused Nos.2, 4 to 7, 9 to
11 for the offences punishable under Sections 143, 147, 148, 447,
448, 120B, 75 and 302 r/w 149 of IPC.
XIII. CONSIDERATION
29. It is relevant to consider the gist of the complaint -
Ex.P1 lodged by PW.1 - father-in-law of the deceased, wherein it is
stated that about three years prior to the incident, the deceased
Sandeep Shetty married his daughter - Sowmya and out of their
wedlock, they have a son, who was aged two years at the relevant
point of time. That, on 13.11.2011 himself and his wife alongwith
his son-in-law and daughter attended naming ceremony function of
relative of the deceased at Jappina Mogirivu village and after
completion of function, himself and his wife returned to their shop
in the afternoon and their son-in-law came to their shop at about
9.30 p.m. and his daughter and grand-son (wife and daughter of
the deceased) remained in Jappina Mogirivu village. After
closing the door of the shop, himself (complainant), his wife and
son-in-law came back to their house in a car. At about 10.10 p.m.
deceased Sandeep Shetty received a phone call and went to the
vardanah of the house, where he was speaking and immediately,
they heard the screams from the verandah and when they went
there, they saw Choni @ Keshava (Accused No.1) and five others,
who were known by faces, assaulting and beating the deceased.
When the deceased came inside the house screaming with pain,
the accused No.1 and others followed the deceased and mercilessly
assaulted the deceased with talwar haphazardly on right and left
knee joint and left hand was cut off and also caused certain
grievous injuries and chop wounds. Subsequently, Accused No.1
and others ran away towards Railway Station. Thereafter, he went
to Railway Station and informed the Ullal Police through Railway
Station Master. Accordingly, the Ullal Police came to his house and
taken the injured Sandeep Shetty to the A.J. Hospital and
subsequently, he came to know that the deceased died in the
hospital without responding to the treatment. The complainant
further stated in the complaint that there was animosity between
Choni @ Keshava (Accused No.1) and the deceased in real estate
business and also in some financial transactions and out of enmity,
the incident has occurred. It is also stated in the complaint that
he has seen the accused and the weapons used for commission of
the offence with the help of the electric lights inside and outside
the house and he will identify if they are shown to him.
Therefore, he sought for taking suitable action against the accused.
30. At this stage, it is relevant to consider the evidence of
some of the important witnesses meticulously, in detail.
31. PW.1 - Hemachandra, who is the complainant has stated
in his examination-in-chief that on 13.11.2011 at about 10.10 p.m.
his son-in-law - deceased Sandeep Shetty received a phone call and
went to the vardanah of the house, where he was speaking and
immediately, they heard the screams from the verandah and when
he saw from the window, about 10-11 persons were assaulting the
deceased with clubs and talwars. Thereafter, the deceased ran
into the house and fell in the hall. At the same time 4-5 persons
followed him and assaulted by means of talwars on his legs, hands,
head and face and caused chop wounds and grievous injuries. All
the persons after assaulting the deceased, ran towards the Railway
Station. Immediately, he went to the Railway Station and through
Railway Station Master informed the Police. Thereafter, the Police
came to his house and took the injured Sandeep Shetty to the
hospital. The doctor has stated that he was brought dead. He
further deposed that Choni @ Keshava (Accused No.1) and many
others were there and he does not know their names, but he can
identify them by their faces. He further deposed that there was
animosity between the deceased and Accused No.11 - Chandra in
some real estate business and if the assailants were shown to him,
he will identify them. Accordingly, he lodged a complaint to the
jurisdictional Police. PW.1 has also deposed that Accused No.1
himself has arranged marriage between his daughter and the
deceased and the marriage took place in the Police Station. He
further deposed that the deceased Sandeep Shetty himself has
stated before the Police before he died as to who assaulted him.
He has also stated that he has seen the assailants in the Police
Station and he will identify if they are shown to him. He has further
stated that the Police have shown him Accused nos.1,7 and 5 and
other four to five persons in the Police Station. He further stated
that accused, who are before the Court, had assaulted the
deceased on the date of the incident. He identified Accused No.1,
who is before the Court as Keshava @ Choni. Showing another
accused before the Court, he has stated that his name is Chetan
(Accused No.7) and he also identified Accused No.3. He has also
identified the other accused and then the said accused told his
name as Nishanth. He has identified Accused No.8 and Accused
No.4 and then the said accused mentioned their names.
32. In the cross-examination, PW.1 has admitted that the
deceased and Accused No.1 are good friends. Till he reached the
Police Station, except Accused No.1, he did not know the names of
others. Ex.P2 - spot mahazar does not indicate the light. In the
cross-examination by counsel for Accused No.2, PW.1 had admitted
that he came to know from others that the deceased was involved
in the rowdy activities and further he came to know the names of
accused persons only when the Police apprehended and published
their names in the newspaper. At the time of the incident, as his
eyes were blocked out (blurred) and also due to shock, he was
frightened and could not do anything. He further admitted in the
cross-examination that the photos reflected in the newspaper were
in the Police Station. On 14.11.2011 the Police shown to him 4 to
5 persons, who are unknown persons to him. He also admitted that
in the complaint lodged before the Police, he has not given the
particulars of the assailants and their identity and the clothes worn
by them, but they were wearing pants. He further stated that on
17.11.2011 the Police shown to him 10 persons not mixed with any
other persons. He further admitted that he did not know the gang
members of Accused No.1.
33. From the evidence of PW.1, it is clear that in the absence
of any Test Identification Parade conducted, PW.1 has identified
when the accused themselves mentioned their names and when the
Police stated that the assailants have been arrested. A careful
reading of the examination-in-chief and cross-examination of PW.1,
it clearly depicts that PW.1 identified only Accused No.1 and he
could not identify the other persons. As admitted by him, they are
unknown persons to him. He has identified 4 to 5 persons only
after the Police shown to them that those persons are involved and
their names and photos published in the newspaper. PW.1
identified 4 to 5 persons not on his personal knowledge, but on
account of the paper publication and at the instance of the Police
people alone. The entire incident took place within five minutes or
so and he came to know the names of other persons only after the
Police shown to them and therefore, there is no identification of
other accused persons from the personal knowledge of PW.1.
34. PW.2 - Smt. Asha (wife of PW.1) has deposed that in
their house, PW.1 (her husband), PW.3 (her daughter), the
deceased Sandeep Shetty (son-in-law) and the grand son were
residing. Her son-in-law's friend viz., Choni and others used to
come to their house for dinner. The deceased Sandeep Shetty and
accused used to converse over phone. She further deposed that
when they reached the house after naming ceremony function on
the date of the incident, the deceased received a call over mobile
phone and he went outside to speak, at that time, he was attacked
by a group of about 11 people and 4 people entered inside the
house and assaulted the deceased. She has witnessed the
incident and the persons who have entered and assaulted the
deceased were Choni (Accused No.1), Preetesh (Accused No.3),
Avinash (Accused No.8) and Guruprasad (Accused No.10). All
these people came inside the house and assaulted the deceased.
She also stated that when the Police came to the spot, the
deceased himself informed the Police as to who assaulted him.
When she asked her son-in-law, he informed that Choni and gang
assaulted him. She further deposed that when they were on the
way to their house, she has seen Accused No.1 and others in an
unlawful assembly. She further deposed that there was financial
transaction between the deceased and Accused No.1. She further
deposed that the accused assaulted the deceased with the weapons
- Mos.4 to 7.
35. In the cross-examination by the defence, PW.2 has
stated that her daughter - Sowmya and the son-in-law were in
their house only. She stated that Accused No.1 is their relative.
She further stated that when the quarrel took place and when the
Police took the deceased to the hospital, neighbours not came to
the spot and thereafter, they went to the Ullal Police Station.
When they taken the deceased to the A.J. Hospital, herself and her
husband followed them. She further stated that when they went to
the hospital, PW.33 - Inspector was there. Again, after four days,
they went to the Police Station. At that time, PW.33 did not
accompany them. She further deposed that when she was in the
hospital, she came to know that the deceased has died. She
further stated in her evidence that at the time of complaint, the
deceased Sandeep Shetty was alive, but he was not in a position to
speak. The said evidence is contrary to Ex.P1 - complaint. She
further denied the suggestion that she has not stated before the
Police that Accused Nos.1,3,8 and 10 have entered the house and
assaulted the deceased. She further admitted that she is not aware
as to whether she told before the Police that there was a quarrel
between the deceased Sandeep Shetty and PW.26 (Manoj) and
they are not in good terms. She further admitted that the
deceased was doing real estate business.
36. The evidence of PW.2 clearly depicts that there is an
improvement in her evidence from the averments in the complaint.
There is inconsistency in the evidence of PWs.1 and 2. Except
naming three persons, she has not spoken anything about the
other accused persons.
37. PW.3 - Soumya, who is wife of the deceased Sandeep
Shetty has stated in her evidence that Choni, Manoj, Chetan and
other friends of her husband used to come to their house. Once
there was a quarrel on some subject and since then, they were all
not in talking terms with her husband. She further stated that her
husband informed the Police about Chandra (Accused No.11) and
therefore, he has animosity against her husband. She further
stated that on the date of the incident, after naming ceremony
function, her parents left the place and her husband went back at
about 9.30 p.m. towards shop in the car. Thereafter, her mother
initially informed her that deceased Sandeep Shety met with an
accident and admitted to the hospital. Thereafter, she was
informed by her mother (PW.2) that Choni and his companions
assaulted the deceased. She further deposed that Choni and his
companions were wandering near their house and Railway Station.
Prior to 2-3 months of the incident, when they were coming in a
car, the said Choni and others had blocked the road by parking the
vehicles in the road and her husband avoided the said road and
proceeded in another road. She further deposed that she knows
Vidyadhara and he is related to Accused No.11 - Chandra. In the
murder case of Vidyadhra, her husband was accused and in view of
the same, there may be animosity between the Accused No.11 -
Chandra and her husband. There was also quarrel between her
husband and Choni with regard to land and financial matters. She
further deposed that her husband once informed her that Choni and
gang tried to attack him. She identified Choni (Accused No.1) and
Chetan (Accused No.7), who were present before the Court and
stated that only those two accused persons used to come inside
their house and further stated that she is not able to identify the
other accused persons. In the cross-examination by the counsel
for the defence, she admitted that herself and her husband
belonged to different caste and it was a love marriage. She
further admitted that there were various cases relating to murder,
robbery and dacoity registered against her husband. She further
stated that her mother informed that Choni and gang attacked the
deceased Sandeep Sheety, but the same was not informed to the
Police.
38. By considering the evidence of PWs.1 to 3, it clearly
depicts that except Accused No.1, there is no proper identification
of other accused. The evidence of PWs.1 to 3 (father-in-law,
mother-in-law and wife of the deceased) is inconsistent. PW.1
stated that he identified 4 to 5 persons only after seeing paper
publication and after the Police apprehended them and on his own,
he has not identified any of the accused persons except Accused
No.1. Though PW.2 stated entirely different version than her
husband, she is not in a position to identify any of the accused
except Accused No.1. PW.3 (wife of the deceased) also stated that
she could not identify other accused persons except Accused Nos.1
and 7. Therefore, the evidence of the alleged eye witnesses, is
not consistent. Admittedly, the prosecution has not conducted
any Test Identification Parade to identify the accused persons. Only
in so far as involvement of Accused No.1 in the homicidal death of
the deceased, the evidence is consistent.
39. PW.17 - Dr. Ullasa Shetty conducted post-mortem
examination on the dead body of the deceased Sandeep Shetty
from 11.10 a.m. to 1.10 p.m. On external examination, the
doctor has stated that it is the dead body of a adult male, aged 26
years, weighing 70 kilograms and measuring 175 centimeters in
length. He has also stated that the body is cold and stiff (kept in
cold chamber) and post-mortem lividity present on the back except
over pressure areas. The whole body is pale, blood stains
present all over the body and body showed 54 external injuries.
40. The doctor has further stated that on 24.11.2012, the
Ullal Police have sent six packed and sealed covers alongiwth
weapons for examination and out of six weapons, two are sickles,
two are talwars and two are rods. The doctor has opined that the
deceased died due to hemorrhagic shock consequent upon
multiple injuries over body. All injuries are ante-mortem in nature,
fresh in duration. Injury Nos.1,2,3,5,6 to 10, 12, 13, 14, 16 to 19,
24, 25, 30, 31, 33 to 40, 43 to 50, 52 to 54 are caused by heavy
sharp cutting edge weapon and injury Nos.4, 11, 15, 20 to 23, 26
to 29, 32, 41, 42 and 51 are caused by sharp cutting edge weapon
with a pointed tip.
41. Though according to the prosecution witnesses, initially,
11 persons formed an unlawfully assembly and attacked the
deceased and thereafter when the deceased came inside the house
screaming with pain, 4 to 5 persons attacked, only two talwars, two
sickles and two rods were recovered. There is no clarity in the
evidence of the prosecution witnesses and the Investigating Officer
- PW.37 as to which of the weapons are recovered from which of
the accused and none of the prosecution witnesses/eye witnesses
identified the persons who were holding talwar. Unfortunately
though the Investigating Officer recovered MOs.4 to 9 - talwars,
iron rods as per Ex.P19, PW.24 and 25, who are the witnesses to
the seizure mahazars Ex.P19 to Ex.P29 have turned hostile.
42. PW.30, the Police Constable, who went alongwith PW.33
to the spot, has deposed that there were so many injuries on the
head and other parts of the body of the deceased and the deceased
was in the pool of blood. They went to the spot and taken the
deceased to the A.J. Hospital. While going from the place of
occurrence to the hospital, on the way, the deceased asked water
and accordingly, they have provided water. When the Inspector -
PW.33 enquired the deceased as to what happened, the deceased
stated 'Choni Choni' about 2-3 times and thereafter, he died in the
hospital at about 11.00 p.m. He withstood the cross-examination
with regard to the information by the injured Sandeep Shetty in
the jeep that he was assaulted by Choni. He further admitted in
the cross-examination that he knows the deceased Sandeep Shetty
even before his death and he was a rowdy sheeter of the Police
Station and he was involved in so many murder, robbery and
dacoity cases. He denied that the deceased has not stated in front
of them as 'Choni Choni'.
43. PW.31 - Police Constable reiterating the averments made
by PW.30, has stated that he also accompanied the Inspector to the
spot and shifted the deceased in the department jeep to the
hospital. On the way to the hospital, when the Inspector (PW.33)
asked the deceased Sandeep Shetty as to who assaulted him, the
deceased responded as 'Choni Choni' and they have given water
near pump house and thereafter, he was admitted to ICU of A.J.
Hospital and within 10-15 minutes, the doctor declared that he was
dead.
44. PW.33 - Sanjeeva Naik, Police Inspector, Mangalore
Railways, has deposed that when he was in the Police Station on
13.11.2011, at about 10.30 p.m., he received phone call to
landline and when he received the phone call, the complainant
stated that his son-in-law - Sandeep Shetty was assaulted by
Choni and five others with talwar and thereafter, they ran away.
Immediately, himself, Gangadhar, HC 842 and Kiran, PC No.2211
went in the department vehicle to the spot and noticed Sandeep fell
down in the hall with chop wounds. With the help of his staff, the
deceased was taken to A.J. Hospital in the department vehicle.
When they were on the way to the hospital, about 2-3 times, the
deceased requested for water and water was given and then, he
enquired as to who assaulted him, then he told that 'Choni Choni'.
45. Nothing has been elicited in the cross-examination of
PWs. 30, 31 and 33, the Police officers to discredit their statement
that while taking the deceased in the department vehicle, when
enquired about chop wounds, he has stated that Choni Choni
(Accused No.1) assaulted him.
46. PW.37 - Investigating officer has deposed that he has
taken charge from PW.33 on 14.11.2011 and he verified all the
enquiry documents and he has recorded the further statement of
PWs.1 and 2. On 15.11.2011, the statements of PW.3, CWs.6 and
7 were also recoded and accordingly appointed the team to
apprehend the accused persons and he has also requested CCB and
taken all the efforts to arrest the accused. He further deposed that
on 17.11.2011 CCB Inspector - Venkatesh and his staff
apprehended Accused Nos.1 to 6 and produced them before him
and he enquired Accused Nos.1 to 6 and their voluntary statements
were recorded as per Ex.P34 to Ex.P39. He has seized talwars and
rods - Mos.4 to 9 produced by the accused persons as stated in
their voluntary statements under mahazars. MOs.4, 5,6,7,8 and 9
were recovered from Accused Nos.1, 2, 3, 4,5 and 6 respectively.
Pants and shirts of Accused Nos.2 to 6 marked as "N, O, P,Q,
R,S,T,U, V and W" were also recovered as per MOs.29 to 38 as per
Ex.P20 in presence of mahazar witnesses - PWs.24 to 26.
47. Ex.P12 is the report of the Dr. Ullas Shetty on the
weapons. After detailed examination of the weapons and on
perusal of the post-mortem report of Mr. Sandeep dated
14.11.2011, the doctor has opined that the injury Nos.1 to 54 could
be caused by the weapon Nos,1,2,3,4 (F,G,H,I).
48. PW.20 - Dr. Geethalakshmi is the Scientific Officer, who
after examining 23 articles which were sent to her, has given the
report as per Ex.P15. The serology report - Ex.P16 issued by her
shows that human blood found on items
B,C,F,G,H,I,J,K,L,M,N,O,Q,R,S,T, U,V and W, which are lungi, blood
mixed cement mud, four long machus, two iron rods, pant, shirt,
jeans pant, T.shirt, jeans pant, T. Shirt. The stains found on
articles A and P, the underwear and jeans pant were not sufficient
for serological examination. The blood group of the stains in items
B,C,F,G,H,I,J,K,L,M,N,O,Q,R,S,T, U,V, W and I could not be
determined because the results were inconclusive.
49. In view of the aforesaid oral and documentary evidence
produced and adduced by the prosecution, particularly the evidence
of PWs.1 to 3 as well as the evidence of the Police officers and
medical and scientific evidence, it is clear that PWs.1 to 3 have not
identified other accused persons except Accused No.1. Admittedly,
the learned Sessions Judge acquitted Accused Nos.1,3 and 8 for the
offence under Section 120B r/w 149 of IPC and Accused Nos.2,4 to
7 and 9 to 11 of all the charges. Of course, the State filed Criminal
Appeal No.1616/2016 against the acquittal of accused persons.
50. In so far as accused No.1 - Keshava @ Choni is
concerned, in the complaint - Ex.P1 by PW.1, it is specifically
stated with regard to the animosity between Accused No.1 and the
deceased in view of land and financial disputes between them.
PW.1 in the complaint categorically stated that the Accused No.1 -
Choni and others formed an unlawful assembly and attacked the
deceased. PWs.1,2 and 3 have consistently stated in the
categorical terms in their evidence with regard to the involvement
of the Accused No.1 in the commission of the offence, though they
could not identify other assailants. The averments of the complaint
and the evidence of PWs.1 to 3 and 4 clearly depict that the motive
for murder was the land and the financial disputes between Accused
No.1 and the deceased. MOs.27 and 28 were recovered under
Ex.P20, but the mahazar witnesses turned hostile. PW.37
recovered talwar from Accused No.1 on his voluntary statement.
The evidence of the doctor - PW.17 coupled with the post-mortem
report - Ex.P11 also clearly depict the involvement of Accused NO.1
in the commission of the offence. In the evidence of Police Officers
- PWs.30, 31, 33, 35 and 36, they have specifically stated that
while taking the deceased from the spot to the A.J. Hospital in the
departmental jeep, when PW.33 asked the deceased as to who
assaulted him, the deceased has stated that 'Choni Choni'
(Accused No.1) has assaulted him with talwar.
51. The oral and documentary evidence on record clearly
depicts that the prosecution witnesses in their depositions identified
only Accused NO.1 - Choni. The averments in the complaint -
Ex.P1, evidence of PWs.1 to 3, evidence of PWs.30, 31, 33, 35 and
36 - Police Officials, medical and scientific evidence on record,
clearly depict the involvement of Accused No.1 in the commission of
the offence as there was a dispute between Accused No.1 and the
deceased in respect of the landed property and the financial
dispute. In the entire prosecution case, what is the role of the
other accused persons and as to whether they have personal
dispute with the deceased, is not forthcoming. Though PWs.1 and
2 stated that 11 persons formed an unlawful assembly and
assaulted the deceased and again 4 to 5 persons entered the house
and assaulted the deceased, they could not identify other assailants
except Accused No.1. "As admitted by PW.1, except Accused No.1,
the other assailants are unknown persons." PWs.1 and 2 came to
know them only when their names and photographs published in
the newspaper and on the basis of the information given by the
Police. Thus, they identified the other accused with the help of the
Police. As already stated supra, Test Identification Parade was not
conducted alongwith the others and the eye witnesses - PWs.1 and
2 have no personal knowledge of the other accused persons except
Accused No.1. In the absence of the same, the contention raised
by the learned Government Advocate that all the accused are
involved in the homicidal death of the deceased cannot be
accepted. Admittedly, the trial Court proceeded to convict accused
Nos.1,3 and 8. As per the charge, Accused Nos. 1 to 4 were
holding deadly weapons and Accused Nos.5 and 6 holding iron rods
and there were seven charges. There is no clarity in the charge
with regard to the weapons used by each of the accused persons.
Admittedly, PW.1 says at the time of the incident, his eyes were
blocked out (blurred) and he could not identify. The learned
Sessions Judge has not considered all these aspects in the proper
perspective while convicting Accused Nos.3 and 8. There is no
proper identification of the accused. In the absence of the same,
conviction of Accused Nos.3 and 8 by the trial Court cannot be
sustained. Further, the blood group of the deceased was not
identified as already stated supra and the FSL report was
inconclusive.
52. However, the findings of the trial Court with regard to
conviction of Accused No.1 - Choni is supported by the averments
made in the complaint - Ex.P1, evidence of eye witnesses - PWs.1
and 2, the evidence of PW.3, the evidence of Police witnesses -
PWs.30, 31, 33, 35 and 36 and the medical and scientific evidence,
which clearly depict the involvement of Accused NO.1 in the
homicidal death of the deceased.
53. On the basis of recovery of weapons and clothes of the
accused persons at the instance of Accused Nos.1 to 6 as per
Ex.P19 and P20, they cannot be convicted without any
corroborative evidence. Admittedly, the witnesses - PWs.24 to 26
turned hostile. Though on the basis of the voluntary statement,
MOs. recovered, the witnesses to the mahazar have turned hostile.
Merely on the basis of the voluntary statement and the recovery,
Accused Nos.2 to 11 cannot be convicted for the alleged offences.
54. On careful perusal of the evidence of PWs.1 to 3 (PWs.1
and 2 are eye witnesses and PW.3 is wife of the accused) so also
the evidence of PWs.30, 31, 32, 38 and other official witnesses and
mahazars - Ex.P19 and Ex.P20, under which MOs.4 to 9 and 29 to
38 were recovered (PWs.24 to 29, who are the witnesses to the
said mahazars have turned hostile), it clearly depicts that two views
are possible. It is well settled that there is no embargo on the
appellate Court reviewing the evidence upon which an order of
conviction is based. The golden thread which runs through the web
of administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which
is favourable to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may arise from acquittal
of the guilty is no less than from the conviction of an innocent.
55. On meticulous examination of evidence on record, it is
clear from the evidence of PWs.1 to 3 and PWs.30, 31, 32 and 38
that there are so many omissions and contradictions in the
evidence of the prosecution witnesses, that the entire fabric of the
prosecution case appears to be ridden with gaping holes in respect
of Accused Nos.2 to 11. It is true that due to passage of time,
witnesses do deviate from their Police statements as their memory
fades to some extent. Reasonable allowance can be made for such
discrepancies. But when such discrepancies make the foundation
of the prosecution case shaky, the Court has to take strict note
thereof. On thorough reading of the aforesaid evidence of the
prosecution witnesses, the discrepancies are located and the
witnesses have discredited themselves.
56. Further, the present case, the Test Identification Parade
was not conducted by the Investigating Authority and the so called
eye witnesses - PWs.1 and 2 have not identified the accused Nos.2
to 11 and in fact they have admitted in the examination-in-chief
that they are able to identify Accused Nos.2 to 6 on the basis of the
paper publication disclosing the names and photos and the
information given by the Police. The purpose of conducting a
Test Identification Parade is that persons who claim to have seen
the offender at the time of the occurrence identify them from
amongst the other individuals without tutoring or aid from any
source. An identification parade, in other words, tests the memory
of the witnesses, in order for the prosecution to determine whether
any or all of them can be cited as eye witnesses to the crime.
57. Our view is fortified by the judgment of the Hon'ble
Supreme Court in the case of Rajesh v. State of Haryana, (2021) 1
SCC 118, wherein the Hon'ble Supreme Court held at paragraphs
43, 43.4 and 43.8 as under:
"Refusal to undergo test identification parade (TIP):
43. The prosecution has submitted that an adverse
inference should be drawn against the appellants for
refusing to submit themselves to a TIP. Before we
deal with the circumstances in which the appellants
declined a TIP, it becomes essential to scrutinise the
precedent from this Court bearing on the subject. A
line of precedent of this Court has dwelt on the
purpose of conducting a TIP, the source of the
authority of the investigator to do so, the manner in
which these proceedings should be conducted, the
weight to be ascribed to identification in the course
of a TIP and the circumstances in which an adverse
inference can be drawn against the accused who
refuses to undergo the process. The principles which
have emerged from the precedents of this Court can
be summarised as follows:
xxx xxx
xxx xxx
43.4. A TIP should ordinarily be conducted soon after
the arrest of the accused, so as to preclude a
possibility of the accused being shown to the
witnesses before it is held.
43.8. As a rule of prudence, the court would,
generally speaking, look for corroboration of the
witness' identification of the accused in court, in the
form of earlier identification proceedings. The rule of
prudence is subject to the exception when the court
considers it safe to rely upon the evidence of a
particular witness without such, or other
corroboration."
58. It is also not in dispute that PWs.1 and 2 were called to
the Police Station when the accused persons were in Police lock up
and the witnesses have been given an opportunity of seeing the
accused in the Police lock up and based on the said source of
information and on the basis of the paper publication, PWs.1 and 2
identified the Accused Nos.3 and 8. In the cross-examination of
PW.1, he has admitted that at the time of incident, his eyes were
blocked out (blurred) and he was frightened. Therefore, there are
material omissions and variations in the evidence of PWs.1 and 2
and they do not know who are the real assailants. Hence, the
impugned judgment of conviction passed by the trial Court against
Accused Nos.3 and 8 cannot be sustained and the acquittal order
passed by the trial Court in respect of Accused Nos.2, 4 to 7, 9 to
11 has to be upheld.
59. Our view is also fortified by the dictum of the Hon'ble
Supreme Court in the case of Mohd. Iqbal M. Shaikh v. State of
Maharashtra reported in (1998)4 SCC 494, wherein the Hon'ble
Supreme Court held at paragraphs 17,19 and 20 as under:
17. The only other witness on whom the
prosecution relied upon to bring home the charge
against the accused persons is Krishna
Harishchandra Kate, PW 10, who was also residing in
Gandhi Chawl. He is the brother of PW 2 and his
statement was recorded by the police for the first
time on 29-1-1993. He has stated in his evidence
that he was called to the office of the Crime Branch
where the police showed him 3 to 4 accused persons
but he neither knows their names nor would be in a
position to identify them in the Court even by face. It
is his further evidence that he was called upon by
the police 15 days thereafter and he was shown
another accused person but he does not remember
the name of that accused person nor is in a position
to identify him in court. He also stated that he was
called to the police station at Kandivili on 22-4-1993
where police showed him one accused but he does
not know the name of that accused person nor can
he identify the same by face. Though in the Court he
had stated that between 6-12-1992 to 7-1-1993 the
goondas of the locality were threatening them but he
had not stated so in his earlier statement made
before the police. In the Court he had also stated
that he had never made any complaint on that score
before. On being cross-examined he candidly
admitted that he could not insert his head through
the grill to see what was happening outside, and
therefore, he climbed on a loft and from there he
could see the incident through the window. But
neither the investigating officer nor any other person
has stated about the existence of such a loft. It was
elicited in his cross-examination that he was sitting
inside the house from the time when the accused
started pouring kerosene till the accused went away
is not correct. A scrutiny of his evidence clearly
indicates that it bristles with inconsistencies and
improbabilities and the witness has contradicted
from his statement made to the police which makes
him thoroughly unreliable and it is difficult for us to
place any reliance on the testimony of such a
witness.
19. We are quite aware of the principle that in
a country like India where it is difficult to find a
witness who has not made any embellishment or
exaggeration, and therefore, in such case court
would be justified in separating the chaff from the
grain and then act upon the grain. But where the
evidence consists of only chaff as in the present
case, the question of separating the chaff from the
grain would not arise. Then again when all the
eyewitnesses suffer from the same infirmities as has
been discussed by us, the question of one
corroborating the other would not arise. If a witness
is partly reliable and partly unreliable then one may
look for corroboration to the reliable part of the
ocular version of a witness. But if a witness is wholly
unreliable as has been assessed by us, the question
of corroboration does not arise. It is no doubt true
that the incident with which we are concerned in the
present case was a ghastly one and on account of
communal frenzy several people belonging to one
community were burnt alive by some others but
unless and until the prosecution evidence
conclusively establishes those others as the
perpetrators of the crimes, it is not possible for a
court of law to record conviction on mere conjectures
and hypothesis.
20. As we have discussed earlier the
investigating agency merely on suspicion have roped
in the persons belonging to the other community
who were residing in the locality and then somehow
tried to get them identified through the witnesses
who belong to the community from where the people
were burnt alive and the learned Designated Court
was swayed away by the so-called evidence of
identification and based the conviction. We have
already discussed as to how unreliable the evidence
of these eyewitnesses is and no court on the basis of
such unreliable evidence can base conviction,
howsoever ghastly the crime may be. In the
aforesaid premises we set aside the conviction and
sentence passed by the learned Designated Court
under the provisions of TADA as well as under
different sections of the Penal Code, 1860 and direct
that the appellants be set at liberty forthwith unless
they are required in any other case.
60. The Hon'ble Supreme Court while considering the
testimony of a witness who identified the accused for the first time
in Court without knowing him before, in the absence of any Test
Identification parade, held, would be valueless and unreliable.
Admittedly in the present case, it is not the case of the prosecution
that the eye witnesses have identified the accused persons before
coming to the Court in the absence of any source or information or
aid either from the Police or the newspaper cuttings. Therefore,
the evidence of PWs.1 and 2 would be valueless and unreliable.
61. Our view is fortified by the dictum of the Hon'ble
Supreme Court in the case of Mohanlal Gangaram Gehani v.
State of Maharashtra reported in (1982) 1 SCC 700, wherein the
Hon'ble Supreme Court held at paragraphs 20 and 25 as under:
20. Thus, as Shetty did not know the appellant
before the occurrence and no test identification
parade was held to test his power of identification
and he was also shown by the police before he
identified the appellant in court, his evidence
becomes absolutely valueless on the question of
identification. On this ground alone, the appellant is
entitled to be acquitted. It is rather surprising that
this important circumstance escaped the attention of
the High Court while it laid very great stress in
criticising the evidence of Dr Heena when her
evidence was true and straightforward.
25. The only other evidence against the appellant is
that of PWs 3 and 4. So far as PW 3 is concerned his
evidence also suffers from the same infirmity as that
of Shetty. PW 3 (Shaikh) admits at p. 22 of the
paper-book that he had not seen the accused or any
of the three accused before the date of the incident
and that he had seen all the three for the first time
at the time of the incident. He further admits that
the names of the accused were given to him by the
police. In these circumstances, therefore, if the
appellant was not known to him before the incident
and was identified for the first time in the court, in
the absence of a test identification parade the
evidence of PW 3 was valueless and could not be
relied upon as held by this Court in V.C. Shukla v.
State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC
(Cri) 561 : (1980) 3 SCR 500] where this Court
made the following observations:(SCC p. 677, para
24)
"Moreover, the identification of Tripathi by the
witness for the first time in the court without being
tested by a prior test identification parade was
valueless."
62. It is relevant to state at this stage that in the statement
recorded under Section 313 of the Code of Criminal Procedure, the
Accused NO.1 has categorically denied the incriminating evidence
adduced against him as false and further stated that there was no
enmity between him and the deceased and he has not assaulted the
deceased. Except the said statement, he has not offered any
explanation when PWs.1 to 3 and PWs. 30 to 37 categorically stated
the involvement of the accused NO.1 and the Police officials -
Pws.30, 31, 33, 35 and 36 stated that the deceased himself has
mentioned that 'Choni Choni' (Accused No.1) assaulted him with
talwar. In the absence of any explanation offered, adverse
inference has to be drawn against Accused No.1 as held by the
Hon'ble Supreme Court in the case of Prahlad -vs- State of
Rajasthan reported in (2020)1 SCC (Crl.) 381, wherein the Hon'ble
Supreme Court held at paragraph-11 as under:
11. No explanation is forthcoming from the
statement of the accused under Section 313 CrPC as to
when he parted the company of the victim. Also, no
explanation is there as to what happened after getting
the chocolates for the victim. The silence on the part of
the accused, in such a matter wherein he is expected to
come out with an explanation, leads to an adverse
inference against the accused.
63. Admittedly, the complaint does not disclose the names of
Accused Nos.2 to 6 or other accused persons except Accused No.1.
The prosecution proved beyond reasonable doubt the involvement
of Accused No.1 in the homicidal death of the deceased so as to
attract the provisions of Section 302 of IPC.
64. On re-appreciation of the entire oral and documentary
evidence on record and in the light of the principles enunciated in
the judgments of the Apex Court stated supra, we are of the
considered opinion that the trial Court is justified in convicting and
sentencing Accused No.1 for the offences punishable under Sections
143, 147, 148, 447, 448, 302 r/w 149 of IPC and the prosecution
failed to prove beyond reasonable doubt the involvement of the
Accused Nos.3 and 8 in the commission of the offences.
Therefore, the impugned judgment of conviction and order of
sentence passed by the trial Court against Accused Nos.3 and 8 is
liable to be set aside, in the facts and circumstances of the present
case.
XIV. REGARDING THE CRIMINAL APPEAL FILED BY
THE STATE
65. The State filed Criminal Appeal No.1616/2016 against
the acquittal of Accused Nos.1, 3 and 8 for the offence punishable
under Section 120B r/w 149 of IPC and acquittal of accused Nos.2,
4 to 7, 9 to 11 of all the charges levelled against them.
66. The learned Sessions Judge considering both the oral
and documentary evidence, has recorded a finding that the
prosecution failed to prove beyond reasonable doubt the
involvement of Accused Nos.2,4 to 7 and 9 to 11 in the commission
of the offences and acquitted the said accused persons. The scope
of the appeal filed by the State against the judgment of acquittal is
very limited and unless this Court while considering the material on
record finds that the findings of the learned Sessions Judge are
perverse, this Court cannot interfere with the judgment of acquittal.
This Court would be justified in reversing the judgment of acquittal
only if there are substantial and compelling reasons and when the
judgment of the trial Court is found to be perverse judgment.
Even if two reasonable conclusions are possible on the basis of the
evidence on record, this Court should not disturb the finding of
acquittal recorded by the trial Court. In the present case, the
findings recorded, the reasons assigned and the conclusion arrived
at by the trial Court for acquittal of the accused persons for the
offences stated supra, are sound and proper.
67. Our view is fortified by the judgment of the Hon'ble
Supreme Court in the case of Arulvelu v. State reported in
(2009) 10 SCC 206, wherein the Hon'ble Supreme Court held at
paragraphs 33 and 40 as under:
33. In Chandrappa v. State of Karnataka
[(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] this
Court reiterated the legal position as under: (SCC p.
432, para 42)
"(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 emphasise 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 is 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."
40. Unquestionably, the appellate court has power to
review and reappreciate the entire evidence on
record. The appellate court would be justified in
reversing the judgment of acquittal only if there are
substantial and compelling reasons and when the
judgment of the trial court is found to be a perverse
judgment. Interfering in a routine manner where
other view is possible is contrary to the settled legal
position crystallised by the aforementioned
judgments of this Court. The accused is presumed to
be innocent until proven guilty. The accused
possessed this presumption when he was before the
trial court. The trial court's acquittal bolsters the
presumption that he is innocent. This fundamental
principle must be kept in view while dealing with the
judgments of acquittal passed by the trial court.
68. Our view is also fortified by the judgment of the Hon'ble
Supreme Court in the case of Rajendra @ Rajappa and others -
vs- State of Karnataka reported in 2021 SCC OnLine SC 262,
wherein the Hon'ble Supreme Court held at paragraphs 9 and 10 as
under:
9. The learned counsel for the appellants
placed reliance on judgments of this court in the
case of Shivaji Sahabrao Bobade {(1973)2 SCC
793}, wherein the scope of the appeal preferred
against acquittal is considered by this Court. In the
said case this Court has considered the scope of
appeal against acquittal, as a matter of practice.
Incidentally, in the said case, this Court has also held
that while appreciating evidence in criminal trials, as
far as the nature of depositions by rural witnesses is
concerned, courts not to judge their evidence by
same standard of exactitude and consistency as that
of urban witnesses. In the judgment in the case of
V.N. Ratheesh {(2006)10 SCC 617} power of the
appellate court, in appeals against acquittal is
considered by this court. Similarly in the judgment
in the case of Kanhaiya Lal {(2013)5 SCC 655} this
Court held has held that while dealing with appeals
against acquittals unless there are substantial and
compelling reasons and good and sufficient grounds
and very strong circumstances, interference is not
called for.
10. It is true that in various authoritative
pronouncements, this Court has circumscribed the
scope of the appeal under Section 378 of the Cr.PC,
in cases where appeal is preferred against acquittal
recorded by the trial Court. Further, it is also settled
proposition that unless the view taken by the trial
Court is not a possible view, normally the High Court
should not interfere with the acquittal recorded by
the trial Court. There cannot be any straight-jacket
formula to apply readily for the cases in appeals
arising out of acquittal recorded by the trial Court.
Whether the view taken by the trial Court is a
possible view or not; whether the findings recorded
by the trial Court are in conformity with the evidence
or not; are the matters which depend upon facts and
circumstances of each case and the evidence on
record. By reappreciating evidence on record if
appellate court comes to conclusion that findings
recorded by the trial court are erroneous and
contrary to law, it is always open for the appellate
court, by recording good and compelling reasons for
interference and overturn the judgment, of acquittal
by converting the same to that of conviction.
69. On re-appreciation of the entire oral and documentary
evidence on record and in the light of the principles enunciated in
the dictums of the Hon'ble Supreme Court stated supra, we do not
find any ground to interfere with the acquittal of Accused Nos.3 and
8 for the offence punishable under Section 120B r/w 149 of IPC and
acquittal of Accused Nos.2, 4 to 7 and 9 to 11 of all the charges, in
the facts and circumstances of the case.
XV. CONCLUSION
70. For the reasons stated above, we answer the points
raised in these criminal appeals as under:
i) The 1st point raised in these criminal appeals is answered
in the affirmative holding that the trial Court is justified in
convicting and sentencing Accused No.1 for the offences
punishable under Sections 143, 147, 148, 447, 448 and
302 r/w 149 of IPC, in the facts and circumstances of the
case.
ii) The 2nd point is answered in the negative holding that the
trial Court is not justified in convicting and sentencing
Accused Nos.3 and 8 for the offences punishable under
Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC,
as the prosecution failed to prove beyond reasonable doubt
the involvement of the Accused Nos.3 and 8 in the
commission of the said offences.
iii) The 3rd point is answered in the negative holding that the
State in Criminal Appeal No.1616/2016 has not made out a
case to interfere with the impugned judgment and order
passed by the trial Court insofar as acquitting the Accused
Nos.1,3 and 8 for the offence punishable under Section
120B r/w Section 149 of IPC and Accused Nos.2,4 to 7 and
9 to 11 for the offences punishable under Sections 143,
147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC, in
the facts and circumstances of the case.
XVI. R E S U L T
71. In view of the above, we pass the following order:
i) Criminal Appeal No.1128/2016 is allowed in part.
ii) The impugned judgment of conviction and order of
sentence dated 22/23.04.2016 made in S.C.
No.117/2012 on the file of the III Addl. District &
Sessions Judge, D.K., Mangalore in so far as convicting
and sentencing Accused No.1 - Keshava @ Choni for the
offences punishable under Sections 143, 147, 148, 447,
448 and 302 r/w Section 149 of IPC, is hereby
confirmed.
iii) All the sentences in respect of Accused No.1 shall run
concurrently.
iv) The accused No.1 is entitled to the benefit of set off as
contemplated under the provisions of Section 428 of the
Code of Criminal Procedure.
v) The impugned judgment of conviction and order of
sentence passed by the trial Court against Accused No.3
is hereby set aside.
vi) Accused No.3 is acquitted for the offences punishable
under Sections 143, 147, 148, 447, 448 and 302 r/w 149
of IPC.
vii) Criminal Appeal No.871/2016 filed by Accused No.8 is
hereby allowed.
viii) The impugned judgment of conviction and order of
sentence passed by the trial Court in so far as convicting
and sentencing Accused No.8 for the offences punishable
under Sections 143, 147, 148, 447, 448 and 302 r/w
Section 149 of IPC, is hereby set aside and the Accused
No.8 is acquitted for the said offences.
ix) Criminal Appeal No.1616/2016 filed by the State is
hereby dismissed.
x) The impugned judgment and order passed by the trial
Court in so far as acquitting the Accused Nos.1,3 and 8
for the offence punishable under Section 120B r/w
Section 149 of IPC and Accused Nos.2,4 to 7 and 9 to 11
for the offences punishable under Sections 143, 147,
148, 447, 448, 120B, 75 and 302 r/w 149 of IPC, is
hereby confirmed.
xi) The bail bonds in respect of Accused Nos.3 and 8, if any
shall stand cancelled.
xii) The Accused Nos.3 and 8 shall be set at liberty
forthwith, if they are not required in any other case, after
following the Standard Operating Procedure, in
accordance with law.
Copy of this judgment shall be sent to the concerned Jail
Authorities forthwith.
Sd/-
JUDGE
Sd/-
Gss/- JUDGE
