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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.774 - 776  OF  2010

K.A. KOTRAPPA REDDY AND ANR.    APPELLANTS

VERSUS RAYARA MANJUNATHA REDDY @ N.R. MANJUNATHA & ORS. RESPONDENTS

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These appeals are directed against the judgment and order

dated 19th November, 2008 passed by the High Court of Karnataka

at Bengalore in Criminal Appeal Nos.790, 829 and 1408 of 2007.

Criminal Appeal Nos.790 of 2007 and 829 of 2007 were filed by

accused Nos.1 to 10 against their conviction and the same were

allowed by the High Court.  Criminal Appeal No.1408 of 2007 was

filed by the State of  Karnataka against the acquittal  of  accused

Nos.11 and 12, which was dismissed by the High Court.

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2. The brief facts necessary to dispose of these appeals are that

on 13.09.2005 at about 10:30 A.M., one Ajjanna Reddy (deceased),

who was the President of Nandigavi Village Panchayat in Harihara

Taluk, District Davangere, Karnataka, was monitoring execution of

the road repair work in front of Ishwar Temple situated near the

house of accused Nos.1 to 4.  Accused No.6 objected to the same

as the said repair would reduce the area of the front yard of his

house. The accused persons picked up quarrel with Ajjanna Reddy

and asked him to stop the work which he refused to do so. It is

alleged that the accused persons, who were 12 in number, formed

an unlawful  assembly carrying dangerous weapons,  abused and

beat the deceased at about 12:30 P.M. and soon, about 50 odd

people gathered at the place of occurrence and there was a chaos.

PW1, PW2 and PW5 came to rescue the deceased but they were

also thrashed. Further, the accused left the scene, the deceased

was taken to Davangere Hospital where he was declared brought

dead at 2:30 PM. PW1 went to lodge the FIR at about 6:30 P.M. at

Malebennur  Police  Station against  11 accused persons and one

Siddappa (not accused herein).

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3. After investigation, charge-sheet was filed against 12 accused

persons  (name  of  12th accused  Siddappa  was  substituted  with

Nadigara Tipeswamy). After considering the material on record and

hearing the counsel for the accused, they were charged for offences

punishable under Sections 143, 147, 148, 504, 114, 323, 324 and

302  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  convicted  the

accused Nos. 1 to 9 for the offences punishable under Section 143,

148 and 302 read with 149 IPC. Accused No. 10 was found to be

guilty of the offence punishable under Section 114 read with 302

IPC. Accused Nos.2, 4 and 9 were also convicted for the offence

punishable under Section 324 IPC. The convictions were based on

the  evidences  of  the  eye  witnesses,  which  included  two injured

witnesses, and the recovery of weapons used further corroborated

by the extra-judicial confession made to PW14 (B.M. Halaswamy)

and the motive being established. However, the Trial Court gave

benefit of doubt to accused Nos.11 and 12 and acquitted them of

all  the  charges.  Accused  Nos.1  to  9  challenged  their  order  of

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conviction by filing Criminal Appeal No.829 of 2007, accused No.10

separately challenged his conviction order by filing Criminal Appeal

No.790 of  2007 before  the  High  Court  and  the  State  also  filed

Criminal Appeal No.1408 of 2007 against the acquittal of accused

Nos.11 and 12. The High Court by the impugned judgment and

order allowed the first two appeals and dismissed the third appeal

filed by the State,  on the  ground that  the prosecution failed to

bring home the guilt of the accused beyond reasonable doubt and

as such, they were entitled for benefit of doubt. The acquittal was

based on ground that there was delay in filing the FIR and the eye

witnesses who were relied upon by the Trial Court were interested

and  partisan  witnesses.  The  motive  was  also  not  clearly

established since there was no proof of any repair work in front of

the house of  the accused and it  was proved on record that the

accused never contested any election against the deceased.

5. The Informant PW1 has filed the present appeals before this

Court. Mr. Sushil Kumar Jain, learned senior counsel appearing

for the appellant has made various submissions on the basis of the

Trial  Court  judgment.  It  was  argued  that  there  was  no  undue

delay, as the informant had to travel to various hospitals for about

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61 Kms. Regarding the testimony of the eye witnesses, the learned

senior  counsel  for  the  appellant  contended  that  except  PW1

(Kotrappa  Reddy),  no  other  witnesses  are  related  to  the

complainant or the deceased. It was also contended that PW1 was

independent witness as he was also a relative of the accused party.

The testimony of PW1 and PW5 was more trustworthy as they were

injured witnesses and PW10 and PW11 were chance witnesses who

were working in an Anganwadi within close proximity to the place

of  incidence. Learned senior counsel also submitted that there was

no dispute regarding the fact that the deceased died a homicidal

death  on  account  of  serious  injuries  inflicted  upon  him  which

caused profound bleeding. With regard to accused No.12, it was

argued that PW5 specifically stated his role in the alleged assault

in the statement recorded by the police immediately after the FIR

was lodged. Against the acquittal of accused No.11, it was argued

that the certificate was not in the name of accused No.11 and even

otherwise, merely a certificate would not prove the attendance of

the accused at some other place.

6. Mr. B. H. Marlapalle, learned senior counsel appearing for the

respondents  accused  has  made  various  submissions  countering

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the  arguments  put  forward  by  the  appellant.  The  FIR  was

contended to be delayed by more than 6 hours and owing to the

relationship between the parties, the said time was used to built

up a story wherein as many as  9 members of accused family were

named. The learned senior counsel pointed out various lapses in

the prosecution story and contended that the prosecution failed to

materially explain few facts.  For instance, there was no forensic

report brought before the Trial Court of PW15 (Geeta-wife of the

deceased)  or  any  other  person  who  accompanied  the  deceased;

bloodstains from the jeep car were also not seized;  blood-stained

clothes of PW1 or PW2 were also not seized.  Another fact which

was not explained by the prosecution was as to why no action or

investigation was initiaited when the police officers came to know

about the death of a person in the City Central Hospital itself at

about  2:30  P.M.  There  is  also  no  explanation  as  to  why  the

deceased was not taken to the Chigatiri General Hospital which is

a Government hospital with 1000 beds. The deceased was instead

taken to a private City Central Hospital. Another fact which still

remains unanswered was as to why the nearest police station was

not informed and as to why the FIR was lodged in Malebennur

Police  Station.  Though there  was a  regional  branch of  Forensic

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Science Laboratory at Davangere, yet the seized articles were sent

to Forensic Science Laboratory, Bengaluru, after a delay of about

one month. The learned senior counsel for the respondent further

argued that there were numerous corrections made in the autopsy

report, as was admitted by PW21 (Doctor Tulsi Nayak),  and he did

not give any explanation as to the cause of delay in drawing the

autopsy report.

7. In  our  considered  opinion,  there  are  three  main issues  on

which contentions have been advanced before this Court and we

shall now examine each contention in the light of the arguments

made before us. The first is regarding motive. It is a settled law

that motive is not a necessary element in deciding culpability but it

is  an  equally  important  missing  link  which  can  be  used  to

corroborate the evidences. In the present case, the motive of the

accused was stated to be two-fold. One being the already existing

political rivalry between the parties and the immediate cause being

the heated objections raised by the accused against the deceased

for carrying out repair work which would have reduced the area of

the  house  of  the  accused.  Upon  perusal  of  the  records,  PW1

himself admitted that the accused have not contested any election

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against  the  deceased.  As  against  the  immediate  cause,  PW18

(labourer) stated that the repair was going on at the back of the

temple and not in front of the accused’s house. The investigating

officer did not seize any material nor did he produce any evidence

or Panchayat record or contract to prove that any such repair work

was  going  on  in  front  of  the  house  of  the  accused.  Thus,  the

prosecution squarely failed to impute motive upon the accused.

8. The second issue, which is of paramount consideration, is the

testimony of the eye-witnesses. PW1, PW2, PW5, PW10 and PW11

are the five eye-witnesses, out of which PW1 and PW5 are injured

witnesses.  All  the  five  witnesses  are  either  related  or  the  party

members of  the deceased, hence they are partisan or interested

witnesses.  Merely  because  they  are  interested  witnesses  their

evidence cannot be discredited. However, in our view, it appears

that the evidences of each of these eye-witnesses are doubtful and

require  careful  scrutiny.  It  is  also  pertinent  to  note  that  the

incident  in the present  case occurred in broad day light  in the

afternoon and there were a number of neighbours in and around

the  scene  of  the  incident.  But  the  prosecution  has  failed  to

examine  any  independent  witness  which  casts  a  doubt  on  its

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genuineness.  The  High  Court  has  scrutinized  at  length  the

statements of individual eye-witnesses and has rightly discredited

their  testimonies.  PW1  and  PW2  are  closely  related  with  the

deceased and are thus interested parties. It has been proved that

there has been a series of  litigation, both civil  and criminal,  on

each side. The above added to the fact that neither blood-stained

clothes of PW1, PW2 or PW5 were seized nor their conduct seemed

natural,  further  weakens  the  prosecution  case.  The  injuries  on

PW1 and  PW5 are  minor  and  upon  medical  examination,  were

opined to be self-inflicted. Thus, the High Court rightly pointed out

that they could not have been eye-witness to the incident. PW10

and PW11 are the working ladies in an Anganwadi within close

proximity of the place of incident. However, as per their narration

of  the  story,  their  presence  at  the  place  of  incidence  is  itself

doubtful.  They  deposed  that  the  timings  of  the  Anganwadi  was

9:30 A.M. to 1:30 P.M., and the fact that they left the school early

on  that  day  is  unnatural,  since  the  school  was  an  Anganwadi

which  is  usually  attended  by  infants.  The  witnesses  further

deposed that they went to collect their honorarium. However, no

explanation  was  given  as  to  why  they  left  early  just  to  collect

honorarium, or how could they both have left the infants without

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any guidance. Also, no proof of any honorarium being paid to these

two witnesses on the date of incidence was ever adduced in the

evidence before any Court. Thus, their presence at the time and

place of incident is not sufficiently proved. Another witness PW18

was the labourer, who deposed that repair work was going on at

the back of the temple and not in front of the house of the accused,

as  contended  by  the  prosecution.  The  said  witness  is  the  only

non-partisan and chance witness. However, he turned hostile and

deposed that he did not see any quarrel between the accused party

and the deceased, in and around the place of incident. The learned

counsel for the appellant relied on the judgment of this Court in

Brahm Swaroop & Anr. v. State of Uttar Pradesh,1 wherein this

Court held:

“26. Merely because the witnesses were closely related to the  deceased  persons,  their  testimonies  cannot  be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness; more so, a relation  would  not  conceal  the  actual  culprit  and  make allegations against an innocent person. A party has to lay down  a  factual  foundation  and  prove  by  leading impeccable  evidence  in  respect  of  its  false  implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence...  ...

28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is

1  (2011) 6 SCC 288

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generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene  of  the  crime  and  is  unlikely  to  spare  his  actual assailant(s)  in  order  to  falsely  implicate  someone. Convincing  evidence  is  required  to  discredit  an  injured witness".

9. However, in the present case it is proved that there has been

a  series  of  litigation,  both  criminal  and  civil,  on  both  sides.

Moreover,  the  presence  of  the  injured  witnesses  is  disputed  as

neither the injuries sustained by both of them are proved, nor their

clothes were seized which are alleged to have contained the blood

stains of the deceased. Thus, the ratio of the above case fails to

support the case of the present appellant.

10. The third issue is the delay in lodging the FIR. Not only the

FIR was delayed but there was delay in sending the seized articles

to FSL and in writing the post-mortem report also. Initially a verbal

exchange took place at 10:30 A.M., which led to a major attack at

about 12:30 P.M.  Consequently the deceased was severely injured.

The deceased was first taken to Harihar where the doctor, without

any paperwork, referred him to some big hospital. The deceased

was then brought at City Central Hospital in Davangere where he

was declared as dead before arrival at about 2:30 P.M.  The dead

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body was then taken for post-mortem at Chigatiri General Hospital

in  Davangere.  The FIR was  lodged  at  Malebennur  at  6:30  P.M.

Despite  police  stations  at  Davangere  and  Harihar,  which  were

closer, the informant went to lodge the FIR at Malebennur Police

Station, which was around 16 Kms. from the place of incident. The

only  explanation  the  informant  gave  was  that  they  were  under

shock due to the brutal attack, which is not explanatory in view of

the distance and time taken. Also, looking at the previous enmity

and earlier litigations between the parties, the time taken is good

enough to cast a doubt upon the entire event. Further, it has been

revealed from the depositions that a crowd had gathered in front of

the  Chigatiri  General  Hospital  on  receiving  the  news  that  the

Chairman of the Village Panchayat was dead. To cater to the law

and order situation, many police personnel headed by the Deputy

Superintendent  of  Police  were  present  at  the  hospital.  However,

non-action on the news of a homicidal death on behalf of the police

officer casts doubt on the role of the informant in connivance with

the police officer.

11. One more aspect for our consideration  is the non-explanation

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of  material  irregularities  by  the  prosecution.  Firstly,  the

prosecution have no explanation to the fact that when at Chigatiri

General  Hospital,  many  police  officers  were  deputed  as  the

information of  death of  Chairman of  the Panchayat had spread,

why  none  of  the  police  officers  approached  any  witness  or  the

relative  to  enquire  about  the  incident.  The  informant  took  the

deceased  to  private  City  Central  Hospital  even  though  a

Government  Chigatiri  General  Hospital  with  1000  beds  was

situated in the vicinity. Further, the prosecution did not explain

the  delay  in  making  the  FIR  and  as  to  why  it  was  lodged  in

Malebennur Police Station instead of Harihar or Davangere. The

search and seizure was doubtful, as the blood-stained clothes of

the witnesses were not seized. The deceased was allegedly resting

in the lap of  his  wife  Geeta,  however,  her blood-stained clothes

were also not seized. No efforts were made even to trace the shirt of

the deceased. It was only after four days on 17.09.2005, that the

blood-stained shirt was seized from the Chigatiri General Hospital

from PW7 by the Investigating Officer. The police officer also did

not follow the appropriate procedure under investigation. There is

no arrest Panchanama drawn by PW23 and duly signed by any

witnesses while affecting the alleged arrest.  In addition, there is

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nothing on record, placed by the prosecution, to suggest that the

mandatory provisions of the Code of Criminal Procedure, 1973 as

well as the guidelines laid by this Court in D.K. Basu v. State of

W.B. 2, while effecting the arrests were followed. The Investigating

Officer  sent  the  seized  articles  after  one  month  of  the  alleged

recovery, and that too the articles were sent to FSL, Bengaluru,

when in fact a regional  branch of FSL exists in Davangere. The

prosecution also failed to explain as to why the post-mortem report

was written on 17.09.2005 when the body was sent on 13.09.2005

and the examination was carried on 14.09.2005. Learned counsel

for the appellant, on this point cited the judgment of this Court in

Mritunjoy Biswas v. Pranab @ Kuti Biswas & Anr. 3,  wherein it

was held:

“28. ...It is well settled in law that the discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the  court.  If  the  evidence  is  incredible  and  cannot  be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special  emphasis to state that  every omission cannot take place of a material omission and, therefore, minor  contradictions,  inconsistencies  or  insignificant embellishments do not affect the core of the prosecution

2  (1997) 1 SCC 416 3  (2013) 12 SCC 796

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case and should not be taken to be a ground to reject the prosecution  evidence.  The  omission  should  create  a serious doubt about the truthfulness or creditworthiness of a  witness.  It  is  only  the  serious  contradictions  and omissions  which  materially  affect  the  case  of  the prosecution but not every contradiction or omission.”

This  Court  has  already  held  that  the  question  as  to  material

omissions will depend upon the facts and circumstances of each

case,  and  upon  the  discrepancies  noted  above,  these  are  all

material omissions in our view which are fatal to the present case.

These  omissions  were  to  be  answered  by  the  prosecution  and

non-explanation  creates  a  serious  doubt  about  the  truthfulness

and  credit  worthiness  of  the  investigation,  and  it  seems  to  be

tainted.

12. We have given our careful and anxious consideration to the

rival  contentions  put  forward  by  either  sides  and  also  scanned

through  the  entire  materials  available  on  record  including  the

impugned judgment.  We are of the opinion that the prosecution

has  failed  to  prove  its  case  beyond  reasonable  doubt  against

accused Nos.1 to 10 and the High Court was justified in doubting

the veracity of the prosecution case and consequently recording the

verdict  of  acquittal  which  does  not  suffer  from  the  vice  of

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perversity.  As  against  accused  Nos.11  and  12,  their  alibi  is

sufficiently proved and the prosecution has not been able to rebut

the  voluminous  documents  and  the  testimonies  of  independent

witnesses. The Trial Court and the High Court have arrived at a

concurrent and correct finding that accused Nos.11 and 12  were

not present in the village at the relevant point of time,  then the

parrot-like eye witness account given by PWs.1, 2, 5, 10 and 11

becomes suspicious as to its truthfulness.

13. The  learned  senior  counsel  appearing  for  the  respondents

accused cited the judgment of State of Rajasthan v. Raja Ram,4

recently  quoted  in  Upendra  Pradhan  v.  State  of  Orissa,5

wherein this Court held:

“Generally  the  order  of  acquittal  shall  not  be  interfered with because the presumption of innocence of the accused is  further  strengthened  by  acquittal.  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.  In  a  case  where admissible evidence is ignored, a duty is cast upon the

4  (2003) 8 SCC 180 5  (2015) 5 SCALE 634

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appellate  court  to  reappreciate  the  evidence  in  a  case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence  or  not.  The  principle  to  be  followed by the appellate  court  considering  the  appeal  against  the judgment of acquittal is to interfere only when there are compelling  and  substantial  reasons  for  doing  so.  If  the impugned  judgment  is  clearly  unreasonable,  it  is  a compelling reason for interference...”

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

compelling and substantial reasons to interfere with the judgment

passed by the High Court. The appeals are, accordingly, dismissed.

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

…...................................J                                                           (R.K. Agrawal) New Delhi; October 15, 2015