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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 640 OF 2012

B. VIRUPAKSHAIAH   APPELLANT(S)

:VERSUS:

STATE OF KARNATAKA AND ORS.   RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 641 OF 2012

  THE STATE OF KARNATAKA   APPELLANT(S) :VERSUS:

  SRI MODIPALLI NARAYANA SWAMY AND     ORS.          RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These appeals, by special leave, have been directed against  

the judgment and order dated 19.01.2011, passed by the High  

Court  of  Karnataka,  Circuit  Bench  at  Dharwad,  in  Criminal  

Appeal No. 2664 of 2010 whereby the High Court allowed the  

appeal  of  all  the  twelve  accused  and  acquitted  them  of  all  

charges. The present appeals are filed against the said acquittal  

order passed by the High Court; Criminal Appeal No.640 of 2012

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is by the complainant, who is son of the deceased, and Criminal  

Appeal No.641 of 2012 is by the State.

2. The facts of the case, as disclosed by the prosecution, are  

that  an FIR was lodged on 22.11.2005,  at  Toranagallu Police  

Station by Sheikh Hussain Sab (PW3), stating that he and his  

colleague  Basavana  Gouda  (PW2)  were  working  as  Security  

Guards in Aqua Minerals Factory and when they were on duty  

on 22.11.2005, at about 1:30 PM, while taking food they heard a  

bang sound from outside and immediately they went out and  

saw that a Bolero Jeep had dashed against Tata Indica Car on  

N.H.  63 in front  of  Acqua Minerals.  They  saw four  unknown  

persons pulled out two inmates of Indica Car and assaulted on  

their head, face and hand with sharp edged weapons, causing  

heavy  bleeding  injuries.  The  four  people  then  drove  away  

towards  Bellary.  One  of  the  deceased  named  Bhimaneni  

Kondaiah  died  on  the  spot  whereas  the  other  deceased  

Pavadappa died on way to the hospital.

3. After  investigation,  charge-sheet  was  filed  against  twelve  

accused. After considering the material on record and hearing  

the  counsel  for  the  accused  persons,  they  were  charged  for

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offences punishable  under  Sections 143,  147,  148,  341,  109,  

120-B, 302 read  with Section 149 of the Indian Penal Code,  

1860 (hereinafter referred to as “IPC”).  The charges were read  

over and explained to them. All the accused persons pleaded not  

guilty and claimed for trial.

4. The Trial Court by its judgment and order dated 8.04.2010,  

convicted  all  the  accused  for  hatching  a  conspiracy  and  

therefore,  in  furtherance  of  the  conspiracy,  for  killing  the  

deceased  and  his  driver  and  sentenced  them  to  life  

imprisonment.  Various  other  shorter  sentences  for  other  

offences were also imposed by the Trial  Court. The conviction  

was  based  on  the  testimonies  of  the  six   eye  witnesses,  

corroborated by the recovery evidences and the testimonies of  

other  witnesses  who  proved  the  existence  of  a  conspiracy  

planned between the twelve accused. The motive believed by the  

Trial  Court  was  to  avenge  the  death  of  four  relatives  of  the  

accused, six months ago which was believed to be committed by  

the deceased Bheemaneni Kondaiah and his men. Aggrieved by  

the Trial Court judgment and order, the convicted respondents  

filed appeal before the High Court,  which was allowed on the

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ground that there is absence of proof of wrongness on the part of  

the accused and also certainty of the guilt of the accused and as  

such, they were entitled to the benefit of doubt. Accordingly, the  

High Court by the impugned judgment set aside the judgment  

and  order  dated  8.04.2010  passed  by  the  Trial  Court  and  

acquitted the accused of all the charges.   

5. Mr.  Manan  Kumar  Mishra,  learned  senior  counsel  

appearing  on  behalf  of  the  complainant,  has  made  various  

submissions on the basis of the Trial Court judgment. His main  

contention is that the testimonies of the eye-witnesses, wherein  

PW1, PW4, PW5 and PW6 have specifically stated the number of  

persons present as well as the individual act committed by each  

of  the  accused/  respondents  in  the  incident,  are  clinching  

evidence and cannot be brushed aside. Further, the recovery of  

the weapon used and the Indica Car involved in the incident  

cannot be overlooked. Over and above this, the learned senior  

counsel contended that the evidence of existence of conspiracy  

has been established by individual witnesses.

6. Mr. Pradip Kumar Ghosh, learned senior counsel appearing

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on  behalf  of  the  accused/  respondents  made  various  

submissions  countering  the  arguments  put  forward  by  the  

appellant.  The material  alterations between the testimonies of  

the eye-witnesses were pointed out to prove that PW1, PW4, PW5  

and PW6 were not  material  eye-witnesses and that  they have  

either not seen the incident or they came to the spot after the  

incident  had occurred.  The conduct  of  the  eye-witnesses  was  

argued to  be  unnatural  and their  silence  in  not  making  any  

statement to the police officers at the earliest,  casts doubt in  

their testimonies. Many of the witnesses to recovery, produced  

by  the  prosecution,  turned hostile  and even the  Investigating  

Officer  could  not  identify  the  recovered  articles.  Finally,  the  

learned  senior  counsel  appearing  on  behalf  of  the  accused/  

respondents contended that there is no iota of evidence to prove  

that there existed any conspiracy at any point of time and the  

evidence to prove the alleged conspiracy are not cogent.

7. In our  considered opinion,  the  prosecution case  revolves  

around the  testimonies  of  the  eye-witnesses,  the  existence  of  

conspiracy  and  the  recovery  of  the  alleged  weapons.  The  

prosecution  produced  71  witnesses  in  total,  of  which  6  were

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stated to be eye-witnesses. However, on perusal of the material  

on record, only PW2 and PW3 seem to be the chance witnesses  

who were in close proximity to the place of incident due to their  

job.  In their  statements  to  the police,  they deposed that  four  

unknown persons came out of a big jeep, dragged and assaulted  

the  two  occupants  of  the  Indica  Car.  However,  in  their  

statements before the Court, both made material additions and  

stated  that  there  were  eight  assailants,  but  none  of  the  

witnesses could identify  the accused as PW3 claimed that  he  

saw the assailants from a long distance; he also deposed that it  

was a jeep. PW2 was left blind because of an eye-surgery one  

year prior to his testimony and as such could not identify the  

accused. However, he did state that there were eight unnamed  

assailants which is a material addition from his statement before  

the police. PW1, PW4, PW5 and PW6 are other eye-witnesses,  

but this Court cannot repose faith on any of them. Thus, there  

are material alterations in their statements from the testimonies  

of PW2 and PW3, and even with the deposition of PW71 i.e. the  

Investigating Officer.  All these four witnesses kept quiet for a  

long time after the incident and did not state the incident to any  

other person or even to the police.  PW1 and PW5 deposed in

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similar terms that there was a huge gathering of about 100-200  

people and many cars had stopped due to the accident. PW4 and  

PW6 deposed in similar terms that about 25 people had gathered  

there.  PW6 even stated that  he  did  not  know the  assailants.  

There exists grave material alterations between the testimonies  

of these witnesses and despite the fact that they happened to be  

around police official soon after the incident,  nothing was stated  

by them about the incident to the police. Even PW71 deposed  

that the National Highway was not blocked due to the incident  

and  when  he  reached  the  spot,  there  was  no  jam  or  huge  

gathering of people.

8. The next evidence, which is pivotal to the prosecution case,  

was the recovery of weapons and other articles. The High Court  

has  thoroughly  considered  these  recoveries  and  has  rightly  

disbelieved  them.  Though  the  Forensic  Science  Laboratory  

Report  was  to  be  filed,  it  will  not  come  to  the  aid  of  the  

prosecution  as  the  recovery  was  not  established  by  the  

prosecution.  Even the number of  the  assailants was doubtful  

ever since the beginning. This lacuna in the investigation goes  

on to  hit  the  root  of  the  prosecution case.  PW61,  PW65 and

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PW67, who were attesting witnesses to the recovery of articles,  

like weapons, clothes, etc., turned hostile.  

9. The  next  aspect  for  our  consideration  is  the  alleged  

conspiracy.  But as pointed out by the High Court, there exists  

no cogent and positive evidence to prove the conspiracy. Proof of  

conspiracy is  strictly  conditional  upon there being reasonable  

grounds  to  believe  that  two  or  more  persons  had  conspired  

together  to  commit  an  offence.  In  the  present  case,  the  

cultivators of the respondents were examined to prove that the  

accused  respondents  had  prior  plans  to  leave  their  place  of  

cultivation. Other witnesses were produced to testify the meeting  

in which the conspiracy was planned, but PW17 and PW23 did  

not state specifically as to what conspiracy was being hatched.  

PW 46, PW47 and PW48 did specify the existence of conspiracy,  

but  in  their  cross-examination,  their  conduct  was  seriously  

doubted. They did not make any statement to the police to this  

effect and it was admitted by PW48 that the fact of conspiracy  

was told to him by PW46 three months prior to the incident.  

But PW48 kept quiet even though the deceased was his uncle.  

However, these evidences fail  to hold any veracity as it seems  

unnatural and the hostility of these witnesses was specifically

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made out in the cross-examination.

10. Apart  from  the  above  pivotal  facts,  the  High  Court  has  

pointed out other serious lacunae in the prosecution case. The  

recovery  of  the  mobile  phone  was  relied  upon  in  evidence.  

However, no evidence was produced to link the said mobile to  

any of the accused. The recovery of the said mobile is already  

stated  to  be  not  supported  by  evidence.  The  recovery  of  the  

weapon  is  not  established  since  the  witness  for  the  seizure  

Panchnama have turned hostile.

11. Thus,  in  the  light  of  the  above  discussion,  we  find  no  

compelling  and  substantial  reasons  to  interfere  with  the  

impugned judgment passed by the High Court. The appeals are,  

accordingly, dismissed.

…....................................J                                                         (Pinaki Chandra Ghose)

…...................................J                                             (R.K. Agrawal)

New Delhi; February 12, 2016.

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ITEM NO.1B               COURT NO.10               SECTION IIB (For Judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  640/2012 B. VIRUPAKSHAIAH                                   Appellant(s)                                 VERSUS STATE OF KARNATAKA AND ORS                         Respondent(s) WITH Crl.A. No. 641/2012 Date : 12/02/2016 These appeals were called on for pronouncement  

of judgment today. For Appellant(s) Mr. S. N. Bhat, AOR                                          Ms. Anitha Shenoy, AOR For Respondent(s) Ms. Anitha Shenoy, AOR

Mr. N.D.B. Raju, Adv.                   Mr. N. Ganpathy, AOR                       

Mr. S. Sadasiva Reddy, Adv.                   Mrs. S. Usha Reddy, AOR

*****                     Hon'ble  Mr.  Justice  Pinaki  Chandra  Ghose  pronounced  the  

reportable  judgment  of  the  Bench  comprising  His  Lordship  and  Hon'ble Mr. Justice R.K. Agrawal.  

The appeals are dismissed in terms of the signed reportable  judgment.

(R.NATARAJAN)          (MADHU NARULA)  Court Master       Court Master

(Signed reportable judgment is placed on the file)