Karnataka High Court
Akshaya Kumar vs The State Of Karnataka on 22 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2024:KHC-K:8739-DB
CRL.A No. 200109 of 2019
C/W CRL.A No. 200111 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 200109 OF 2019
C/W
CRIMINAL APPEAL NO. 200111 OF 2019
IN CRL. A NO.200109 OF 2019
BETWEEN:
1. KHAJAPPA
S/O BHIMASHA DODDAMANI
AGE:43 YEARS
OCC:COOLIE
R/O MALLABAD VILLAGE
TQ:AFZALPUR
DIST:KALABURAGI-585 102
Digitally signed by
SHAKAMBARI
2. PUTTU @ PUTTYA @ SHRAVANKUMAR
Location: HIGH
COURT OF S/O BABU DODDAMANI
KARNATAKA AGE:24 YEARS
OCC:STUDENT
R/O MALLABAD VILLAGE
TQ:AFZALPUR
DIST:KALABURAGI-585 102
...APPELLANTS
(BY SRI. CHAITANYAKUMAR CHANDRIKI, ADVOCATE FOR
APPELLANT NO.1;
SRI. VISHAL PRATAP SINGH, ADVOCATE FOR
APPELLANT NO.2)
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CRL.A No. 200109 of 2019
C/W CRL.A No. 200111 of 2019
AND:
THE STATE OF KARNATAKA
THROUGH AFZALPUR P.S.
DIST:KALABURAGI
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585 102
...RESPONDENT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED
06.08.2019 PASSED BY THE I ADDL. SESSIONS JUDGE AT
KALABURAGI IN S.C. NO.244/2016 CONVICTING THE
APPELLANT/ACCUSED NO.1 AND 3 FOR THE OFFENCE
PUNISHABLE U/SEC 143, 147, 148, 504, 302 R/W SEC. 149 OF
IPC.
IN CRL. A NO.200111 OF 2019
BETWEEN:
1. AKSHAYA KUMAR
S/O HANMANTH @ HANUMANTHRAO
AGE:29 YEARS
OCC:STUDENT
R/O MALLABAD VILLAGE
TQ:AFZALPUR
NOW AT CIB COLONY
DIST:KALABURAGI-585 102
2. SHANTKUMAR
S/O HANMANTH @ HANUMANTHRAO
AGE:29 YEARS
OCC:STUDENT
R/O MALLABAD VILLAGE
TQ:AFZALPUR
NOW AT CIB COLONY
DIST:KALABURAGI-585 102
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CRL.A No. 200109 of 2019
C/W CRL.A No. 200111 of 2019
3. KAMALAKAR
S/O KHAJAPPA DODDAMANI
AGE:22 YEARS
OCC:STUDENT
R/O MALLABAD VILLAGE
TQ:AFZALPUR
NOW AT CIB COLONY
DIST:KALABURAGI-585 102
...APPELLANTS
(BY SRI. CHAITANYAKUMAR CHANDRIKI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH AFZALPUR P.S.
DIST:KALABURAGI
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585 102
...RESPONDENT
(BY SRI. SIDDALING P. PATIL, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED
06.08.2019 PASSED BY THE I ADDITIONAL SESSIONS JUDGE
AT KALABURAGI IN S.C. NO.244/2016 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES P/U/S 143, 147,
324, 148, 504 R/W 149 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN RESERVED
FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS
DAY, RAMACHANDRA D. HUDDAR J.,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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CRL.A No. 200109 of 2019
C/W CRL.A No. 200111 of 2019
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
Crl.A. No.200109/2019 is filed by accused Nos.1 and
3 and Crl.A. No.200111/2019 is filed by accused nos. 4, 5
and 6 so arrayed in S.C.No.244/2016 on the file of I Addl.
Sessions Judge, Kalaburagi.
2. As both these appeals arise out of a single
judgment, with the consent of both the side, they are
heard together and taken up for disposal. The records do
reveal that during the pendency of proceedings before the
trial Court, accused No.2 died and the case against him
stood abated. The trial Court proceeded against accused
Nos.1 and 3 to 6.
3. The appellants in both these appeals being
aggrieved by the judgment of conviction and order of
sentence dated 06.08.2019 in S.C. No.244/2016 for the
offences punishable under Sections 143, 147, 148, 302,
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324, 504 r/w. Sec.149 of IPC, are before this Court
challenging their conviction and sentence. The learned
trial Court convicted the aforesaid appellants- accused as
under:
"Accused no.1 and 3 to 6 are hereby sentenced to
undergo simple imprisonment of ONE MONTH or fine amount
of Rs.500/-, each, in default of payment of fine amount, they
shall under go simple imprisonment for a period of one week
each, for the offence punishable U/sec. 143 r/w S.149 of
I.P.C.
Accused No.1 and 3 to 6 are hereby sentenced to
undergo simple imprisonment of TWO MONTHS or fine
amount of Rs. 1,000/- each, in default of payment of fine
amount, they shall under go simple imprisonment for period
of 15 days each, for the offence punishable U/sec. 147 r/w
S.149 of I.P.C..
Accused No.1 and 3 to 6 are hereby sentenced to
undergo simple imprisonment of THREE MONTHS or fine
amount of Rs. 1,500/-, each in default of payment of fine
amount, they shall under go simple imprisonment for a period
of 20 days, each, for the offence punishable U/sec. 148 r/w
S.149 of I.P.C.
Accused No.1 and 3 are hereby convicted for the LIFE
IMPRISONMENT for the offence punishable U/sec.302 of I.P.C.
with fine amount of Rs. 10,000/- each and in default of
payment of fine amount, they shall under go simple
imprisonment for a period of one year each.
Further, accused no.4 to 6 are hereby sentenced to
undergo simple imprisonment of TWO YEARS or fine of
Rs.2,000/-, each in default of payment of fine amount, they
shall undergo simple imprisonment for a period of one month
each, for the offence punishable u/sec.324 of I.P.C.
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Further, accused No. 4 to 6 are hereby sentenced to
undergo simple imprisonment for a period of ONE YEAR, each
or fine of Rs.1,000/- each, in default of payment of fine
amount, they shall undergo simple imprisonment for a period
of one month, each for the offence punishable under section
504 of I.P.C."
4. Parties to these appeals are referred to as per
their rank before the trial Court for the purpose of
convenience.
Proceedings before the Trial Court
5. The facts leading up to this appeal in brief are
as under:
That husband of the complainant by name Kallappa
@ Kalyani s/o Chandappa Makeri had won the Gram
Panchayath Election about one year prior to his death. In
the said election he defeated accused No.2 who is no more
now. Because of that, the deceased accused No.2, his
brothers and their children started grinding axe against
the husband of the complainant from the date of election
of deceased Kallappa. It is the specific allegation made in
the complaint that, because of the sanction of the fund by
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the Govt., the deceased wanted to put up Ambedkar
statue. Therefore, deceased and his children went near the
proposed place and started cleaning the same on the date
of incident i.e., on 24.3.2016 in the evening hours. It is
alleged by the complainant that, at that time accused No.2
started abusing the complaint's husband in filthy language
and questioned his authority to put up the statue on the
ground that, he had made all efforts to get the sanction of
the fund. It is further stated that, on 24.3.2016 at about
9.15 p.m. when complainant was in her house, her
husband and her son Shivaji went near the said place. At
that time, her brother-in-law Kajappa rushed to the house
of the complainant and informed that, accused persons so
named in the complaint have assaulted her husband and
son and caused them injuries. Immediately, complainant
and her brother-in-law rushed to the said place of incident
and noticed that her husband and son fell down on the
road. The persons present at the spot had witnessed the
incident of assault of her husband and son and informed
that accused assaulted them. The persons gathered there
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helped her to shift both the injured to Afzalpur Govt.
Hospital. When they went to the Govt. hospital at
Afzalpur, the doctor declared her husband as brought dead
and her son was struggling for life. Therefore, he was
shifted to Kalaburagi hospital for further treatment in an
ambulance. Thereafter, she filed a complaint by appearing
before the police station against the accused.
6. PW.33 one Siddaraya Bhosagi, the then PSI at
the relevant time of Afzalpur Police station received the
complaint at 00.15 a.m. on 25.3.2016 filed by the
complainant. He registered the crime in Crime
No.34/2016 for the offences punishable u/sec. 143, 147,
148, 302, 307 r/w Sec.149 of IPC. Prepared the FIR as
per Ex.P.23 and set the criminal law in motion.
Thereafter, handed over the investigation to PW.34 the
then CPI of Afzalpur police station. On taking up
investigation, this PW.34 on the following day went to the
Afzalpur hospital, conducted the inquest panchanama on
the dead body of the deceased between 6.30 a.m. and
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8.00 a.m. as per Ex.P.13. Thereafter, went to the scene
of offence and conducted the spot mahazar as per Ex.P.14
in between 9.30 a.m. and 11.00 a.m. He collected MO
Nos.6 and 7 from the scene of offence, recorded the
statements of the witnesses. On the same day itself, he
seized MOs. No. 8 to 11 at Ex.P.15 after post mortem of
the dead body. On the same day itself, PSI produced
accused persons before him and he recorded the voluntary
statements of the accused persons and recovered MOs
No.1 to 3 alleged to be have been used by accused at their
instance. He prepared the panchanama as per Ex.P.16.
He arrested the accused persons and produced them
before the Court. On completion of the investigation, he
filed the charge-sheet against the accused persons for the
aforesaid offences.
7. To prove the guilt of the accused, prosecution in
all examined 34 witnesses as PWs. 1 to 34 and got marked
Exs.P1 to P32 and MOS No.1 to 11. During the course of
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cross-examination, a portion of statement of the PW.23 is
marked at Ex.D.1.
8. On closure of the evidence of prosecution, all
the accused were questioned under Sec. 313 of Cr.P.C. so
as to enable them to answer the incriminating
circumstances appearing in the evidence of prosecution
witnesses. They denied their complicity in the crime and
did not choose to lead any defence evidence on their
behalf.
9. The learned trial Court on hearing the
arguments and on examining the oral and documentary
evidence found the accused guilty for the aforesaid
offences and sentenced them as stated above. This is how
now the appellants in both these appeals are before this
Court challenging the judgment of conviction and order of
sentence passed against them by the trial Court.
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Arguments of Counsels for Appellants-Accused:
10. The learned counsel for the appellants in both
these appeals relying upon the oral and documentary
evidence led by the prosecution would submit that, the
evidence of the interested witnesses i.e., of a complainant,
her son injured, her brother in law cannot be accepted in
the absence of any corroborative evidence. Except the
self-servicing interested testimony of these witnesses and
the evidence of the IO, there is no supportive evidence
spoken to by the prosecution witnesses so as to connect
link between the commission of the crime by the accused
and the deceased. So also there is no nexus between the
commission of the crime and the accused persons in the
manner stated by the prosecution. He would submit that
because of holi festival as there was a galata, the
deceased fell down and sustained injuries in a stampede.
Therefore, it cannot be stated these accused persons were
really grinding the axe against the deceased because of
the panchayath elections and because of the putting up of
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Ambedkar statue the said incident has taken place etc., is
untrue. It is submitted by the counsel for the appellants in
both these appeals that, the prosecution case suffers from
material particulars. The witnesses right from the scene of
panchanama and till recovery of the articles all have
turned hostile. Therefore, in the absence of acceptable
evidence, it cannot be stated that, the prosecution has
proved its case beyond all reasonable doubt. As per his
submission, the evidence spoken to by the witnesses is
wholly unreliable. Though the death of the deceased is
proved by the prosecution but, it does not mean that, it is
accused who have committed the offence. In support of
his submission the counsel for appellants relied upon
various evidence and the documents so produced by the
prosecution.
Arguments of Addl.SPP for State:
11. As against this submission, the learned Addl.
SPP Sri Siddaling P. Patil, Addl. SPP would submit that,
there is no rule as such to disbelieve the evidence of wife
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of the deceased, injured witness in the said incident, so
also the eye witness the so called brother-in-law of the
complainant. IO has supported the case of the
prosecution. It is his submission that, the learned trial
Court on evaluating the evidence placed on record by the
prosecution has rightly come to the conclusion that, the
accused are guilty of committing the said offences.
Therefore, he would submit that, there is no scope for any
interference into the well-considered judgment of the
learned trial Court. He too relies upon various evidence
spoken to by the complainant, eye witnesses and IO. He
also relied upon the documentary evidence. Relying upon
the above evidence, he submits to dismiss the appeal.
12. We have given our anxious consideration to the
arguments on both the sides and meticulously perused the
records.
13. In view of the rival submissions of both the
sides, the only point that would arise for our consideration
is :-
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"Whether the learned trial Court is justified in finding
the accused guilty of committing the aforesaid offences based
upon the evidence placed on record by the prosecution or
otherwise?"
14. To prove the guilt of the accused as stated
supra prosecution rely upon the contents of Ex.P.23 - the
complaint. As per the contents of the complaint,
complainant by name Dundamma wife of the deceased
states that, as her husband had won the panchayath
election against the deceased accused No.2, therefore, the
accused persons including the deceased accused no.2 had
developed animosity against her husband. Even the
children and brother of accused no.2 were grinding axe
against her husband. They used to give threat to the
husband of the complainant stating that, how they are
going to lead their life in the village. As the complainant's
husband wanted to construct a Ambedkar statue,
therefore, in order to put up a platform to the Ambedkar
statue, complainant's husband and her husband's brother's
children went to the said place on the date of incident i.e.,
on 24.03.2016 for the purpose of cleaning the said area.
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At that time, accused No.2 came there along with other
accused persons and started abusing the complainant's
husband. On 24.03.2016 at 9.15 p.m. when the
complainant was in the house along with her another son
Raju, her brother-in-law Kajappa who is an eye witness to
the said incident came running to the house and informed
the complainant that these accused persons are assaulting
the complainant's husband Kallappa @ Kalyani by using
the weapons like sticks and other deadly weapons.
Immediately complainant rushed to the spot and noticed
that her husband and her son Shivaji fallen down on the
road. The eye witnesses like Subhash Singh, Yestwath
Kattimane Siddu Maceri Kajappa Makeri, Shanthappa
Makeri, her son Raju Makeri were present and all of them
shifted the injured to the hospital. In the hospital doctor
declared her husband as brought dead. Her son has
sustained chest injury and he was seriously injured.
Therefore, he was shifted to Kalaburagi Hospital in an
ambulance. Thus, it is alleged by her that, at 9.00 p.m on
that day these accused persons near the Kanakadas Circle
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in Mullabad Village assaulted her husband by using the
wooden clubs and killed him, so also her son was
assaulted by the wooden clubs. With these allegations,
she filed a complaint before the police.
15. During the course of investigation, the
Investigation Officer has recorded the statements of the
witnesses, by name Subhash Surendrasingh Yeswath
Gurappa Kattimani, Siddubagahawanth Makeri, Madeppa
Shivappa Kattemani, Siddling Chanmallappa Pujeri,
Shobha Dasrath Morey, Ghouse Basant Sab Sheik, Raju
Subhash Naveen, Chidanand Shankar Doddamani,
Shekappa Shivarai Nani, Shankar Mallappa Nami and
Hajimallan Ammensab Chinchole who are stated to be the
eye witnesses to the said incident of assault on the person
of the deceased and son of the complainant Shivaji.
16. The Investigation Officer had conducted the
inquest panchanama on the dead body of the deceased at
Ex.P.13. It is noticed while conducting the inquest
panchanama that, deceased had suffered injuries on the
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occipital region of his head, so also on his left forehead. So
far as on other parts of the body has not sustained any
injuries and he also had sustained inner injury to his
chest. On the face of it, there were no external injuries on
the person of the deceased as noted in the inquest report.
17. So far as homicidal death is concerned, the
prosecution relies upon the inquest panchanama as well as
the PM report. The PM reports so produced by the
prosecution do show that, the deceased had sustained the
following injuries on his person. The said injuries read as
under:
1) Condition of 2) Wounds, 3) Fracture, 4) Mark of
Subject Stout, position, size, dislocation etc. ligature on neck
emaciated, character
decomposed etc.
A dead male body aged about 58 years is moderately built and nourished.
Rigor mortis is present in all eternities Eyes & mouth partially closed.
:Injury notes:
1) Right and left ear bleed present.
2) Lacerated wound measuring about 10cm x 5 cm x bone depth over left
occipital bone.
3) Contusion over left part of forehead
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"Opinion as to cause of death
In my opinion the cause of death is due to brain
haemorrhage and shock."
18. It is the opinion of the doctor that, cause of
death was due to brain haemorrhage and shock. There is
no mention that, he died due to the injuries he sustained.
He died due to brain haemorrhage and shock. Thus, the
PM report is also silent with regard to the assault on the
person of the deceased. But, however, in view of the
evidence placed on record by the prosecution, the death of
the deceased on the date of the incident is not disputed by
the defence in material particulars. On reading the
evidence of the complainant and other witnesses coupled
with inquest report as well as PM report, it does establish
that, deceased Kallappa @ Kalyani had suffered homicidal
death. These are all the important documents relied upon
by the prosecution. Even FSL report is also called for
wherein at item Nos.2,3,4,5,6 that is mud, one shirt, one
banian, one pant, one underwear, the stains were found
on these articles. The Investigation officer had not seized
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any wooden club to show that because of assault of the
deceased by the said wooden club the said injuries were
sustained by the deceased.
19. Merely because deceased had suffered
homicidal death, that does not mean that, it was accused
persons who were responsible for the death of the
deceased in the manner stated in the complaint. To
ascertain the same, we have to read the oral and
documentary evidence lead by the prosecution. As stated
supra, the prosecution examined number of witnesses in
this case amongst them, PW.1 to PW.12 are the eye
witnesses to the said incident but, as a whole all these
PWs.1 to 12 have turned hostile. Though these PWs.1 to
12 were declared as hostile and cross-examined by the
prosecution, but, nothing worth is elicited from the mouth
of these witnesses so as to disbelieve their evidence
spoken in their examination- in - chief. Therefore, as a
whole, the evidence of this PWs.1 to 12 becomes
inconsequential to the case of the prosecution.
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20. PW.13 Rajkumar and PW.14 Lakkappa are the
scene of offence panchas. These two witnesses also have
turned hostile. Nothing worth is elicited in the cross-
examination directed to them by the prosecution after
declaring them as hostile witnesses. Therefore, when
panchas are the authors of the pachanama and when they
turn hostile, their evidence would become inconsequential
to the case of the prosecution.
21. PW.15 Ashok Gadekar is pancha to Ex.P.14 i.e.,
scene of offence pancha so also PW.16 Yallappa seizure
pancha. PW.17 Ashok Makeri seizure pancha to Ex.P.15.
These four witnesses also have turned hostile. Seizure
panchas are the important panchas to prove the recovery
of the incriminating articles from the possession of the
accused at their instance. That means, the seizure of the
incriminating articles so stated by them is not duly proved
in accordance with law in view of turning of these witness
as hostile witnesses. Their evidence is fatal to the case of
prosecution.
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22. PW.18 Dr.Sharath Kulkarni was a casualty
Medical Officer of Basaveshwara Hospital, Kalaburagi.
According to him on 25.03.2016 at 5.00 a.m 4-5 Attenders
brought injured by name Shivaji, S/o Kalyani, aged 24
years with history of assault on 24.03.2016 at 9.00 p.m by
some unknown persons with hand and sticks. He
examined him 00.30 hours and noticed the following
injuries on his person.
"1. Internal pale over the chest was present.
2. X-ray of chest-AP-view-normal study.
3.USG - abdomen - X-ray - normal study.
4. Patient has no external injuries present.
5. Patient had been treated on OPD base and sent."
23. According to him, the injuries so sustained by
this PW.18 were all simple injuries. To that effect, he
issued Ex.P18 the wound certificate. He has been directed
with severe cross-examination. It is elicited that, this
PW.18 was not referred by any doctor to his hospital. No
reference letter was submitted to him. He denied a
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suggestion that, injured came in 108 Ambulance vehicle.
It is also not mentioned in the records of the patient. He
stated about the history of assault and also he came to
know that it is MLC case. Then, he informed the same to
the outpost Police station. When he examined the said
patient, he was normal and in speaking condition.
Whereas, in the complaint it is stated that the Shivaji, the
injured, has sustained severe injuries and was fighting for
his life. But, the evidence of doctor who medically
examined him shows differently. Further, he states that,
on examination of Shivaji, he felt to give treatment as an
indoor patient and later, he has sent him. But, it is stated
that, injured was admitted in the hospital as in-patient.
He hardly examined him for 10-15 minutes. At that time,
he complained chest pain. Thus, altogether different
evidence is spoken and against the contents of the
complaint allegation with regard to the injuries sustained
by this injured Shivaji.
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24. PW.19 Shyam Sundar was an Assistant
Executive Engineer, PWD wherein at the instance of the
police, he prepared the sketch of the scene of offence as
per Ex.19 and submitted the same to the investigation
officer. So far as preparation of the said sketch by him is
not denied by the defence in material particulars.
25. PW.20 Vittal Babu Rao was Head constable who
submitted the report to the Court as per Ex.P20.
According to him on that night, he did not go to the
residential office of the Magistrate to reach First
Information Report. According to him on the following
day, he handed over the FIR at 11.00 a.m. But, it is not
the evidence of the IO i.e., PSI, who registered the crime
and set the criminal law into motion. As per his evidence
at 11.00 a.m, on the following day he reached the FIR to
the Magistrate.
26. PW.21 the Head Constable who took the dead
body to the hospital for the purpose of post mortem and
brought the clothes worn by the deceased and handed
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over the same to the IO with report Ex.P.21. This fact is
not denied by the defence.
27. PW.22 Jaganath Bhimraya Patil was the police
constable at the relevant time at Afzalpur Police Station
and on getting information, he went to near the
Government Hospital Circle and there he was showed
three persons and they are Kashappa, Ramesha alias
Paramesh and Puttu alias Shravankumar. He apprehended
them and produced before the IO. Thus, his evidence is
that he has apprehended the aforesaid accused person
and produced them before the IO.
28. PW.23 Shanthappa Chandrappa Makeri is
brother of the deceased. He states that, his brother
Kalyani had won the panchayath election against accused
no.2 Ramesh Doddamani. Therefore, frequently there was
quarrel between deceased and accused No.2. There was a
grant from the Government for the purpose installing
Ambedkar statue. He states that, on 24.03.2016 at about
9.00 p.m he was standing near the Ambedkar statue. At
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that time accused No.1 to 6 came there and accused no.1
started quarrelling with his brother Kalyani. He abused his
brother as `bosudi magane' etc., accused No.1 to 3 made
the his brother to fall down. Accused no.1 assaulted his
brother by using the iron rods on his left forehead.
Accused No.2 assaulted him on his person. Accused no.3
assaulted him on his chest; accused no.6 assaulted his
brother's son Shivaji by his hands and scratched his face
by using his nails. Accused nos.4 and 5 assaulted Shivaji
on his chest. Because of the assault on them, he was
scared and stood by the side. Thereafter, they have
shifted the injured to the hospital. According to him
because of the animosity, his brother's and brother son
were assaulted.
29. In the cross-examination, he states that he has
studied upto 3rd standard. He accompanied dead body to
the hospital. Police recorded his statement in the hospital.
Police enquired Shivaji but Shivaji was not in a position to
talk with them. But, the doctors evidence is quite
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otherwise. Further, he states that, on 24.03.2016 at 9.00
p.m. when he was with Malkappa, Kalappa, Dundamma
and Raju the then PW.27 Kashappa came and informed
them. He admits that he has stated before the Police that
immediately they went to Kanaka Circle. Though, the
prosecution brands him as eye witness but, in para 2 of
the cross-examination dated 29.11.2018, he has given a
clear go bye with regard to the witnessing of actual
incident that has taken place as stated by the
complainant. He denied all the suggestions. In view of his
evidence in para 2 of the cross-examination, he cannot be
termed as eye witness and his evidence cannot be
accepted.
30. PW.24 Dundamma is none other than the
complainant. Evidently as per her evidence, she is not an
eye witness to the said incident. According to her, the
motive for the crime is that her husband had won the
panchayath election and against the accused no.2. She
further states that at 9.00 p.m on 24.03.2016 when she
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was in the house, brother-in-law Kashappa came running
and informed that Kalyani was assaulted and therefore, he
has fallen down near the Ambedkar Circle. Immediately
they rushed to the spot, noticed the injuries on the person
of her husband. Shivaji also sustained injuries.
Therefore, they shifted both injured to Afzalpur
Government Hospital and there the doctor declared that
her husband was brought dead. Her son was taken to the
Kalaburagi Government Hospital for further treatment.
She states that accused have assaulted her husband and
her son.
31. In the cross-examination she states that, her
house is far away from Kanakadas Circle. PW.7 is her
brother-in-law but, has turned hostile. He asked PW.7 to
lodge compliant in his name and as he was an eye witness
to the said incident. He instructed PW.27 to draft the
complaint. PW.27 did not ask her. She was instructing
him different story. She further states that, Shivaji told
about history of assault on him at Afzalpur Hospital before
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the doctor. But, doctor never says that Shivaji informed
about the assault. He has stated that some unknown
persons assaulted them. They took dead body of her
husband at 9.00 p.m on that day. Throughout night she
was with the dead body itself. The police met her when
she was near dead body. She never left dead body during
night. But according to her, she lodged a compliant on the
date of incident at 00.015 a.m by appearing in police
station. When she did not leave the dead body, when she
went to the police station and filed a complaint, is a
mystery. She admits that PW.27 is teacher. She admits
that at that time PW.27 was serving at Ganagapura. She
admits that, father of the accused no.3 to 5 are residing at
Kalaburagi. She told PW.27 to lodge a complaint. But he
told her that as her husband died, she should lodge a
complaint. She denied other suggestions. She being not an
eye witness and went to the scene of the offence only on
hearing the news of the assault on the person of her
husband and son, her evidence cannot be accepted. Her
evidence is very much silent that when exactly she went to
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the police station to lodge a compliant. It is suggested that
on 24.03.2016, it was Holi festival and because of crowd,
because of the stampede on the person of the deceased,
he must have sustained injuries. She denied this
suggestion.
32. PW.25 Shivaji Kalappa is the injured in this case
who was very much present according to him at the time
of incident. He too speaks about animosity between his
father and accused no.2. According to him, on 24.03.2016
at 9.00 p.m, he was cleaning the Ambedkar Platform in his
village on the instructions of his father Kalyani. He further
states that, for the purpose of installation of Ambedkar
statue, Government had sanctioned the budget. At that
time, accused nos.1 to 6 came there and accused no.1
started quarrelling with him and abused in filthy language.
At that time, deceased Kalyani was smoking a beedi. He
states that accused nos.1 to 3 came forward and accused
no.1 assaulted his father by using the iron rods in his left
forehead. Accused no.2 and 3 assaulted his father on his
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chest. When he went to rescue his father, accused no.6
assaulted him by using his hands and also scratched his
cheek by his nails. Accused no.4 and 5 pushed him and
assaulted him on his chest. This is altogether different
evidence spoken to by the PW.24 and 25. He lost
consciousness. Thereafter, he was shifted to Afzalpur
hospital along with his father. Thereafter, he was shifted
to Kalaburagi Basaveshwara hospital in an ambulance. He
regained consciousness on the following day. Then he
came to know that his father was dead. The said incident
has taken place at 9.00 p.m on the previous day.
According to him at the said circle high mask light was
burning. None of the witnesses have spoken about
burning of the high mask bulb at the Kanaka Circle on that
day. For the first time PW.25 speaks so.
33. He has been thoroughly cross-examined by the
defence. He states that, doctors at Afzalpur hospital did
not ask him about history of the assault. But, doctor
states that PW.25 came to the hospital with history of the
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assault by unknown persons. Police enquired with him in
the Afzalpur hospital. He had stated before the doctor at
Basaveshwara hospital regarding assault by the accused
but, the doctor of Basaveshwara Hospital is not examined
by the prosecution. He was admitted in the hospital till
06.00 a.m. on the next day. The police did not meet him
while he was in Basaveshwara hospital. Even his uncle
PW.27 did not meet him in Basaveshwara hospital.
According to the case of the prosecution, this PW.25 did
not attend the funeral ceremony. But, PW.25 states that,
he attended the funeral ceremony of his father. His
father's funeral ceremony took place between 4.00 p.m
and 4.30 p.m on the next day of the incident. He reached
to his village at 1.00 p.m on that day. After funeral the
police came to his village in the evening. Police did not
enquire him on the day of funeral ceremony. According to
him, Government granted fund of Rs.50,000/- for the
purpose of construction of Ambedkar platform. There was
function arranged in connection with the Dr.Babasaheb
Ambedkar between 25.03.2016 and 28.03.2016. He
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admits that the said platform is abutting the Kanakadasa
Circle. He denied all other suggestions. He being an eye
witness to the said incident as per the case of prosecution
and injured, has not stated truth before the Court and has
spoken different version other than the contents of the
complaint and other prosecution papers. He has stated a
different story with regard to the said incident other than
the story stated by the complainant. If such an evidence
is brought on record, it requires corroboration.
34. PW.26 Dr. Mahantappa being the Medical
Officer at Afzalpur Hospital has conducted the post-
mortem of the dead body of the deceased and noticed so
many injuries on the person of the deceased. They read
as under:
"1. Right and left Ear bleeding present.
2. Lacerated wound measuring about 10 X 5 cm into bone
depth over occipital bone.
3. Contusion over left part of forehead."
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35. The cause of death was due to brain
hemorrhage and shock and to that effect he has issued
PW.24. According to his cross-examination, he should
enter the name in the register about the incoming patient
to the hospital so also he has to receive a referral letter
from the hospital from where he has been referred etc.
He has no documents to show that at what time, the dead
body was brought to the mortuary room etc. His evidence
is accepted to the extent of conducting the post-mortem
and issuing P.M. report.
36. PW.27 is Kashappa the brother of the deceased
and he rushed to the house of the complainant and
informed about the assault on the person of the deceased.
He speaks about the motive of the crime etc. According to
his evidence, on 24.03.2016 at 9.00 p.m, he was standing
near the bus stand under the high mask light. At that
time, his brothers Kalyani, Shivaji, his brother son were
cleaning the ground for the purpose of putting
construction of Ambedkar platform. Shivaji states that his
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father was smoking beedi at that time. He says, accused
no.1 to 6 came there along with the wooden clubs and
rods, accused no.1 abused Shivaji in filthy language by
using abusing words and as he was the Chairman of the
Panchayath. By saying so, he started assaulting his
brother. Accused no.1 assaulted his brother on his left
forehead by using rods, accused no.2 assaulted with
wooden club. His brother fell down. Accused no.3
assaulted his brother on his chest. When Shivaji tried to
rescue his father, then accused no.6 assaulted him and
caused injuries. Accused nos.4 and 5 assaulted Shivaji by
using clubs, he also fell down. Thus, his evidence is quite
contrary evidence with that of other witnesses.
Immediately without attempting rescue to his brother and
brother's son, he rushed to the house and informed to the
complainant. So the conduct PW.26 plays an important
role. He being the brother of the deceased and uncle of
injured Shivaji never tried to rescue his deceased brother
and the injured Shivaji though he had seen the incident of
assault on their person by the accused persons as per his
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evidence. So this conduct goes to establish that, he was
not present there. He has spoken so much of evidence.
According to him, he had seen the said incident in a high
mask light. He speaks about the motive. Though, he
states so many facts in his examination-in-chief but, in
the cross-examination, he states that, he is the serving as
a teacher for the last 26 years. In the year 2016, he was
at Ganagapura. They are in all four bothers. He admits
that Babu was living with his family members at
Kalaburagi who is accused no.3. Accused no.3 might have
studied at Kalaburagi in 2016. Father of accused no.4 and
5 Hanumantha Rao was Lecturer in Kalaburagi for the last
22-25 years. He speaks about their residence. According
to him, they all stay at Kalaburagi for the last 15 years.
So, whether he was present at the spot is not made clear
from evidence of this PW.27. Though he is planted as an
eye witness but, in view of the evidence spoken to by him
in the cross-examination, it is hard to believe that he was
really an eye-witness to the said incident. He speaks about
shifting of the injured to the hospital and death of his
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brother etc. Therefore, as his evidence is full of
inconsistency with that of the evidence of the complainant
and other witnesses, his evidence cannot be accepted as
truthful evidence.
37. PW.28 Raju is another son of the complainant
who accompanied his mother to the scene of offence and
noticed the injuries on the person of his father, as well as
his brother. He also speaks about death of his father.
According to him, himself and Malkappa, Shantappa,
Dundamma were there in the house on that day, but
complainant says that herself and this Raju-PW.28 were
only in the house. He being the hearsay witness went to
the scene of offence only when they received the message
of incident. Hence, his evidence would not help the case
of the prosecution.
38. PW.29 is Muktappa Talakeri, he is a person who
had put his thumb impression to Ex.P15 but he is declared
as hostile witness by the prosecution. He says that, he
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never put his signature to Ex.P15. Therefore, his evidence
would not help the case of the prosecution.
39. So also PW.30 Chandu, pancha to Ex.P26 but
according to him police took his signature when he was on
the way to Kalaburagi from Afzalpur. He was also declared
as hostile witness but nothing worth is elicited. PW.31
Sondappa, pancha to Ex.P25 too states that, when he was
on the road between Mallabad and Kalaburagi on his way
to Kalaburagi, his signature was taken by the police.
Therefore, evidence of these witnesses would not help the
case of the prosecution.
40. PW.32 Chandrakanth was a Section Officer of
the GESCOM who had issued the letter/certificate as per
Ex.P27 to state that, on the date of incident there was no
failure of electricity supply. He denied suggestion directed
to him in the cross-examination.
41. PW.33 was the PSI who registered the crime as
stated supra. PW.34 was an Investigation Officer.
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42. The learned trial Court without appreciating the
evidence in proper manner has wrongly come to the
conclusion that these accused person are the real culprits.
43. As per the provisions of the Indian Evidence
Act, 1872, the evidence may be wholly reliable, wholly
unreliable, neither wholly reliable nor wholly unreliable. On
this aspect, the Hon'ble Apex Court in a judgment between
Javed Shaukat Ali Qureshi v. State of Gujarat,
reported in (2023) 9 SCC 164 decided on 13.09.2023 in
paragraph No.7 has observed as under:-
"7. In a given case, the conviction can be
based on the testimony of only one eyewitness. The
law has been laid down on this behalf by a Bench of
three Hon'ble Judges of this Court in Vadivelu
Thevar v. State of Madras [Vadivelu Thevar v. State
of Madras, 1957 SCC OnLine SC 13 : AIR 1957 SC
614] . In paras 10, 11 and 12 of the said decision,
this Court held thus : (AIR pp. 618-19)
"10. ... On a consideration of the relevant
authorities and the provisions of the Evidence Act,
the following propositions may be safely stated as
firmly established:
(1) As a general rule, a court can and may act
on the testimony of a single witness though
uncorroborated. One credible witness outweighs the
testimony of a number of other witnesses of
indifferent character.
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(2) Unless corroboration is insisted upon by
statute, courts should not insist on corroboration
except in cases where the nature of the testimony
of the single witness itself requires as a rule of
prudence, that corroboration should be insisted
upon, for example in the case of a child witness, or
of a witness whose evidence is that of an
accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a
single witness is or is not necessary, must depend
upon the facts and circumstances of each case and
no general rule can be laid down in a matter like
this and much depends upon the judicial discretion
of the Judge before whom the case comes.
11. In view of these considerations, we have no
hesitation in holding that the contention that in a
murder case, the court should insist upon plurality
of witnesses, is much too broadly stated. Section
134 of the Evidence Act, has categorically laid it
down that 'no particular number of witnesses shall,
in any case, be required for the proof of any fact'.
The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and
cons, that it shall not be necessary for proof or
disproof of a fact, to call any particular number of
witnesses. In England, both before and after the
passing of the Evidence Act, 1872, there have been
a number of statutes as set out in Sarkar's Law of
Evidence -- 9th Edn., at pp. 1100 and 1101,
forbidding convictions on the testimony of a single
witness. The Indian Legislature has not insisted on
laying down any such exceptions to the general rule
recognised in Section 134 quoted above. The
section enshrines the well recognised maxim that
"Evidence has to be weighed and not counted". Our
Legislature has given statutory recognition to the
fact that administration of justice may be hampered
if a particular number of witnesses were to be
insisted upon. It is not seldom that a crime has
been committed in the presence of only one
witness, leaving aside those cases which are not of
uncommon occurrence, where determination of
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guilt depends entirely on circumstantial evidence. If
the legislature were to insist upon plurality of
witnesses, cases where the testimony of a single
witness only could be available in proof of the crime
would go unpunished. It is here that the discretion
of the presiding Judge comes into play. The matter
thus must depend upon the circumstances of each
case and the quality of the evidence of the single
witness whose testimony has to be either accepted
or rejected. If such a testimony is found by the
court to be entirely reliable, there is no legal
impediment to the conviction of the accused person
on such proof. Even as the guilt of an accused
person may be proved by the testimony of a single
witness, the innocence of an accused person may
be established on the testimony of a single witness,
even though a considerable number of witnesses
may be forthcoming to testify to the truth of the
case for the prosecution. Hence, in our opinion, it is
a sound and well-established rule of law that the
court is concerned with the quality and not with the
quantity of the evidence necessary for proving or
disproving a fact. Generally speaking, oral
testimony in this context may be classified into
three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court
should have no difficulty in coming to its conclusion
either way -- it may convict or may acquit on the
testimony of a single witness, if it is found to be
above reproach or suspicion of interestedness,
incompetence or subornation. In the second
category, the court equally has no difficulty in
coming to its conclusion. It is in the third category
of cases that the court has to be circumspect and
has to look for corroboration in material particulars
by reliable testimony, direct or circumstantial.
There is another danger in insisting on plurality of
witnesses. Irrespective of the quality of the oral
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evidence of a single witness, if courts were to insist
on plurality of witnesses in proof of any fact, they
will be indirectly encouraging subornation of
witnesses. Situations may arise and do arise where
only a single person is available to give evidence in
support of a disputed fact. The court naturally has
to weigh carefully such a testimony and if it is
satisfied that the evidence is reliable and free from
all taints which tend to render oral testimony open
to suspicion, it becomes its duty to act upon such
testimony. The law reports contain many
precedents where the court had to depend and act
upon the testimony of a single witness in support of
the prosecution. There are exceptions to this rule,
for example, in cases of sexual offences or of the
testimony of an approver; both these are cases in
which the oral testimony is, by its very nature,
suspect, being that of a participator in crime. But,
where there are no such exceptional reasons
operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a
single witness is entirely reliable. We have
therefore, no reasons to refuse to act upon the
testimony of the first witness, which is the only
reliable evidence in support of the prosecution."
(emphasis supplied)
44. On considering the testimony of evidence of the
injured-complainant and PW.27, the so called eye witness,
it cannot be stated that, the evidence of these witnesses is
wholly reliable. Though the accused persons were known
to the complainant's family and though PW.27 is branded
as eye-witness by the prosecution, but the so called
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eye-witnesses from PWs.1 to 12 have turned hostile. The
other witnesses stated supra also have turned hostile. It is
a definite case of the prosecution that these PWs.1 to 12
were the eye-witnesses. But none of them have
supported the case of the prosecution. Secondly, when so
many persons had gathered at the scene of offence and
even PW.27 being the brother of the deceased was very
much present as per his evidence, none have attempted to
rescue the deceased and Shivaji from the clutches of the
accused. So the very conduct of PW.27 being a teacher
running away from the said place and informing the
complainant goes to establish that he is not an eye-
witness to the said incident and even he has not lodged a
complaint before the police about witnessing of the said
incident. He states that as complainant has lost her
husband, she has to give a complaint. So his conduct
goes to establish that he is not speaking truth before the
Court. Therefore, on careful consideration of the evidence
of these so called eye- witnesses, evidence of the
complainant and evidence of injured Shivaji, we are left
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with no serious doubt as to whether evidence of these
witnesses would inspire the confidence of the Court. In
all, six persons stood as accused of the murder of Kalyani
@ Kallappa and were tried by the I Addl. Sessions Judge,
Kalaburagi. Though the learned trial Court has come to
the conclusion that, these accused persons are real
culprits but the injuries so sustained do not tally with the
injuries in the Post Mortem Report. Admittedly the said
incident has taken place at kanakadasa circle in a busy
area. PWs.1 to 12 were the eye-witnesses to the alleged
incident. But no attempt was made by anybody much less
the PW.27-Kajappa to rescue the deceased from the
clutches of the accused.
45. We are conscious of the fact that the deceased
Kalyani was brutally murdered on that day, but, the guilt
of persons responsible for the same has to be proved
beyond reasonable doubt. All that the defence needs to
be established is the existence of reasonable doubt for the
accused to be given the benefit thereof. In the case on
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hand, the guilt of the appellants relies solely upon the
testimony of the complainant, evidence of Shivaji, the
injured and the so called Kajappa who ran away from the
scene of offence branded as eye-witness to the incident.
The eye-witnesses have not supported the cases of
prosecution in material particulars. The Doctor who
treated injured - Shivaji at Basaveshwar Hospital was not
examined. Though certain facts are admitted, but, the
incident has occurred at 9.00 p.m. as per the evidence of
the prosecution on that day, though there is evidence that
the high mask light was burning at that time and there
was no interruption in the power supply but PWs.1 to 12
as a whole all of them have turned hostile. It was attack
on the deceased as per the case of the prosecution, but
the evidence spoken to by the witnesses especially that of
interested witness i.e. the complainant, the evidence of
Shivaji, the evidence of Kajappa, the eye-witness to the
incident is not convicting the cross-examination if read
meticulously, it shows that, because of some enmity, the
alleged incident has taken place but with regard to causing
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of murder, the evidence is lacking.
So many facts are brought on record in the cross-
examination. From the evidence brought on record, it can
be stated that, the prosecution has not proved its case.
46. The evidence lead by the prosecution suffers
from material particulars. The evidence of the injured so
placed on record by the prosecution is wholly in the helm
of uncertainty and no credence can be given to the
evidence of Shivaji as well as evidence of Kajappa-eye
witness in any aspect. Though the maxim " Falsus in uno,
falsus in amnibus" is only a rule of caution and has neither
received any acceptance nor this maxim has become the
rule of law in the Indian context, an attempt must be
made to separate the truth from falsehood and where such
separation is impossible, there cannot be a conviction as
held by the Hon'ble Apex Court in the case of Narain vs.
State of M.P., reported in (2004) 2 SCC 455. As such,
conviction on the basis of their testimony, in our view
would not be sustainable. In view of discussion made
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above, there arises a doubt in the case of prosecution and
that benefit of doubt has to be extended to the accused
persons. Resultantly, both the appeals filed by the
appellants deserve to be allowed by answering the above
point framed by us in the negative. The order of
conviction and sentence passed by learned trial Judge is to
be set aside. The appellants are entitled for acquittal of
the charges by giving benefit of doubt. Accordingly, we
pass the following:
ORDER
(i) Criminal Appeals No.200109/2019 and
200111/2019 are allowed.
(ii) The judgment of conviction and order of
sentence dated 6.8.2019 in SC
No. 244/2016 passed by the I Addl.
Sessions Judge, Kalaburagi is hereby set
aside.
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(iii) Consequently appellant-accused are
acquitted of the charges levelled against
them.
(iv) Bail bonds of accused stand cancelled, if
any. Fine amount be refunded to the
accused persons.
(v) Send the operative portion of this order to
the trial Court forthwith for compliance.
(vi) Send back the trial Court record along
with a copy of this Judgment forthwith.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
PSJ/-
