STATE OF BIHAR Vs SODHAN DAIBAGANS
Bench: PINAKI CHANDRA GHOSE,UDAY UMESH LALIT
Case number: SLP(C) No.-003939-003939 / 2000
Diary number: 16500 / 1999
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Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1611 of 2009
State of Karnataka …. Appellant
Versus
Sateesh & Others .... Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. This appeal by special leave is directed against the judgment
and order dated 22.01.2009 passed by the High Court of Karnataka at
Bangalore allowing Criminal Appeal No. 1696/2005 preferred by the
respondents herein and setting aside their conviction as recorded by
the trial court and acquitting them of all the charges leveled against
them.
2. On 06.09.2000, PW15 M.N. Somashekharaih, then working as
ASI in Kota Police Station, reached the Police Station at 6.55 a.m. and
was informed by Head Constable-37 that PW7 Jagadamba, daughter
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of Shivarudraiah of Mavukere village had informed on telephone
that persons of Nayaka community had smashed her father with
stones and were attacking the police personnel. PW15 instructed that
an ambulance be sent to Mavukere village and left along with some
police personnel for Mavukere. According to PW15 when he reached
the spot at about 7.15 a.m. he saw Shivarudraiah having received
serious injuries on his head, hand and legs and was writhing in pain
and shouting “Ayo Ayo”. He made arrangements to send said
Shivarudraiah for medical attention to hospital at Tumkur. According
to him, out of two constables, namely Jayaram and Rajanna, one had
received injuries and PW15 made inquiries with them. His superior
reached the spot at about 9.30 a.m. and therefore said PW15 left for
the Police Station.
3. At about 10.00 a.m., PW1 Siddaramaiah came to the Police
Station with a written complaint which was registered as First
Information Report, on the basis of which Crime No.135 of 2000
came to be lodged. The relevant assertions in the written complaint
were as under:
“About one month ago, there was a quarrel in our village with regard to 5 acres land in Sy. No.135/1 and 129 between the members of Naik community, Uppara
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community and Lingayat community. In respect of the same, on 5.8.2000 Shekhar and others belonging to Naik community quarreled with us. With regard to this enmity has arisen between us and members of Naik community and petty quarrels were taking place from time to time. In these circumstances on 06.09.2000 morning at 6.00a.m., I was standing on his cycle towards his land and came on the road opposite the house of Shivaramaiah, s/o Nanjundaiah and at that time residents of our village viz. (1) Sateesh, s/o Siddagangaiah (2) Siddaiah, s/o Sunnarangaiah (3) Lakshmaiah, s/o Sunnarangaiah (4) Suresh, s/o Late Chikkarangaiah (5) Shekaraiah, s/o Late Chikkarangaiah (6) Nanjaiah, s/o Late Chikkarangaiah (7) Shanakariah, s/o Late Chikkarangaiah (8) Kaluvaiah, s/o Late Chikkarangaiah (9) Shankaraiah, s/o Late Chikkarangaiah (10) Nanjundaih, s/o Late Chikkarangaiah (11) Manjukumar, s/o Kaluvaiah, (12) HMT Shivanna, s/o Nanjundaiah (13) Ramesh, s/o Nanjundaiah (14) Jagadish, s/o Shivananjaiah (15) Manjunath, s/o Shivananjaiah (16) Jayaramaiah, s/o Ramakrishnaiah (17) Shrirangaiah, s/o Puttiah (18) Rangandhamaiah, s/o Lakshmirangaiah (19) Nanjaiah, s/o Nanjundaiah (20) Ishwariah, s/o Nanjundaiah, all had formed unlawful assembly and were armed with clubs in their hands passed me on the road and unlawfully obstructed Shivarudraiah who was coming on the cycle. They stopped him and Shekhar pushed the cycle down and as soon as Shivarudraiah fell on the ground, Suresh, s/o Late Chikkaraingaiah said that, “one of the two has to happen today, we will finish this fellow”. As soon as he uttered this, all of them made Shivarudraiah sit on the ground, held his hands and legs and made him sleep on the ground. They placed his legs on a flat stone and smashed his legs with size stones (boundary marker stones) (Talakuttu). Shivarudraiah started screaming. They did not leave him and some of them relentlessly started beating Shivarudraiah with the clubs held by them in their hands. Hearing the screaming, Shivarudraiah’s wife came running and embraced her husband. They pulled parvatamma and
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pushed her aside. Later they repeatedly kicked him with their legs. At that time, I screamed saying that, “they are going to kill Shivarudraiah”. They saw people coming from the village side and threw away the clubs which they were holding in their hands there itself and ran away. Myself, Parvatamma and Jagadamma lifted Shivarudraiah. His left leg was smashed and was bleeding. There were open wounds on the right side of the head, right hand, forearm, left knee, right feet and left leg and blood was oozing out. This incident was witnessed by Chandrashekaraiah, s/o Gurulingaiah, Nanjegowda, s/o Shivanna, Narasimhaiah, s/o Chikkappa by standing in their respective lands. All of them were afraid of the members of the Naik community and did not come forward to help.”
4. Shivarudraiah was admitted to Tumkur district hospital
for treatment and while undergoing treatment, he died at 10.25
a.m. on 06.09.2000. Post Mortem was conducted by PW19 Dr.
K.G. Shivamurthy on the dead body of Shivarudraiah at District
hospital, Tumkur. Post Mortem revealed following injuries:-
“1. Lacerated wound of 3”x1” present over the frontal region.
2. An aberration of 1/½”x1” present over the anterior middle of the nose.
3. Lacerated wound of 1/½”x1” present over the back of the right elbow.
4. Lacerated wound of 3”x1” present in between right index finger and thumb extending to the palmer aspect with bone deep.
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5. Contusion of 4”x3” present over the left wrist and dislocation of the proximal phalanx of the index and middle finger.
6. There is fracture of the right upper 1/3 of the tibia and fibula.
7. Contusion of 2½” x1” present over the anterior aspect of the right knee.
8. Lacerated wound of 4”x5” present over the deep of the right foot. In between 4th and 5th tow and there is dislocation of the 4th and 5th metatarsal joints.
9. There is fracture of the lower 1/3 of the left labia and fibula.
10. Lacerated wound 6”x2” present over the middle border of the left foot and bone deep.
11. Lacerated wound of 3”x2” present over the dorsum of the left foot.
12. Lacerated wound of 2½”x2” present in between the left 3rd and 4th toe.
13. Contusion of 1”x3” present over the right zygote of the acetyl region.
14. Lacerated wound of 2”x1” and skull bone deep present over the occipital region.”
The cause of death was said to be hemorrhage
resulting from aforesaid injuries.
5. During investigation statement of PW2 Savitha, daughter of
Shivarudraiah was recorded on 07.09.2000, while that of PW13
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Parwathamma wife of Shivarudraiah was recorded two days after the
incident. After due investigation 19 persons were sent for trial vide
S.C. No. 71/2000 before the Fast Track Court No.III at Tumkur.
6. The prosecution principally relied on the testimony of PW1
Siddaramaiah, PW2 Savitha and PW13 Parwathamma who were
stated to be eye-witnesses to the incident while other daughter of
Shivarudraiah, namely, PW7 Jagadamba, PW3 Nanjegouda and PW4
M.G. Chandrashekaraiah were the witnesses who had arrived at the
scene of occurrence soon after the incident. PW1 Siddaramaiah
accepted that names of Manjukumar and Shrirangaiah, s/o Puttiah
were wrongly mentioned in the FIR. Though it was not so asserted
in the FIR, PW1 in his oral testimony stated that accused Manjunath
had assaulted Shivarudraiah with a sickle. PW2 Savitha stated that
she was accompanying her father Shivarudraiah on the relevant day
when they were proceeding from their house to go to their farm land.
According to her she started screaming soon after the assault began.
PW13 Parvatamma deposed that shouts and screams of her daughter
attracted her attention and she came running from the house and saw
the assault. According to the witness she had tried to intervene and as
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a result had received simple injuries and had tried to cover her
bleeding husband.
7. The trial court while accepting the case of the prosecution came
to the conclusion that the case against the respondents was fully
proved. However, giving benefit of doubt to original accused Nos.12
and 13, it acquitted them of all the offences alleged against them. It
convicted and sentenced original accused Nos.1 to 11, 14 to 19 under
Sections 148, 341, 302 read with 149 IPC sentencing them to undergo
sentences including the imprisonment for life. Accused Nos. 4 to 6
were also additionally convicted and sentenced under Sections 114
read with 302 IPC while original accused No.16 was further convicted
and sentenced for the offences under Section 324 IPC read with 506
IPC. Thus, out of 19 persons who were tried, 17 accused stood
convicted by the Trial Court vide its judgment and order dated
21.07.2005.
8. The convicted accused i.e. the respondents herein carried the
matter further by filing Criminal Appeal No.1656 of 2005 in the High
Court. The High Court found the conduct of PW15 unexplainable in
that he had chosen not to record the statements of two police
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constables who were present at the site and one of them was injured
and also had chosen not to ask questions to injured Shivarudraiah.
The High Court further found it completely unexplainable that PW15
had not made any inquiry in the village itself. The ultimate
registration of crime on the basis of a written FIR which was scribed
by PW11 and brought to the Police Station by PW1 was not found to
be bona fide. The High Court observed that there was unexplained
delay in registering the crime and it was extremely doubtful whether
PW1 was an eye witness to the occurrence. It further observed that in
the original FIR, the name of PW2 Savitha was not mentioned at all,
creating doubts regarding her presence. Furthermore, if PW13 had
tried to cover her bleeding husband, her blood stained sari should have
been produced on record. Her statement was also recorded two days
after the incident, again creating a situation of doubt. With these
reasons, the High Court observed that the possibility of innocents
being implicated in the matter could not be ruled out. Giving benefit
of doubt to the convicted accused the High Court thus acquitted all of
them of the offences alleged against them. The State being aggrieved
has approached this Court by filing this appeal by special leave.
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9. Appearing in support of the appeal, Mr. Parikshit P. Angadi,
learned Advocate submitted that three eye witnesses, namely, PWs 1,
2 and 13 were completely consistent in their assertions about the
involvement of the respondents herein and that the FIR having been
lodged at 10.30a.m. there was absolutely no delay in registration of
crime and that the reasons which weighed with the High Court were
completely incorrect. Appearing for the respondents, Mr. Rajesh
Mahale, learned Advocate submitted that if PW15 was present in the
village immediately after the incident, it does not stand to reason why
he did not make any inquiry and register the crime. If two constables
were present in the village, one of them being injured, that source was
a better one to gather information and register the crime.
Furthermore, the place of occurrence being surrounded by various
houses in the village, none of the inmates of those houses was
examined as witness. In his submission, the reasons given by the
High Court while acquitting the respondents were absolutely correct
and in any case was a possible view in the matter.
10. We have gone though the record carefully and considered the
submissions. The testimony of PW15 reveals that a telephone call
was received in the police station from PW7 Jagadamba about the
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incident of assault. Having reached the village by 7.15 a.m., it was
logically expected of him to start making inquires about the crime and
the identity of alleged assailants. Additionally, if out of two
constables present in the village, one of them was injured, this by
itself was one good source of information. According to the witness,
he had spoken to those two constables and yet no steps were taken to
register the crime. The witness further accepted that he had seen
Shivarudraiah writhing in pain. In the circumstances, it would also be
expected of him either to ask him or accompany him to the hospital,
he being primary source of information. The conduct in the matter
exhibited by PW15 is completely unexplainable. Similarly, it also
does not stand to reason why PW1 Siddaramaiah did not approach the
police when they were present in the village soon after the transaction
and chose to make a written complaint scribed by PW11 and
thereafter lodge it in the police station 10 kms. away. He himself later
accepted that in the complaint, he had added two names by mistake.
Secondly, the attribution to one of the accused having given blow by a
sickle was also not mentioned in the complaint. The injuries found
in the post mortem also do not support such assertion about injury by
a sickle. In the circumstances, the assessment made by the High
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Court expressing serious doubts whether the PW1. Siddaramaiah was
eye witness to the occurrence, in our opinion, is definitely a possible
view. The presence of PW2 Savitha as well as PW13 Parwathamma
is also doubtful for the reasons mentioned by the High Court.
11. Having analyzed the facts on record, the reasons stated by the
High Court while acquitting the respondent are quite possible from the
evidence on record. While considering this appeal against acquittal,
the view expressed by the High Court being a possible view, we do
not see any reason to interfere in the matter. We, thus, affirm the
judgment and order of acquittal passed by the High Court and dismiss
the present appeal.
....……………………..J. (Pinaki Chandra Ghose)
………………… ……..J.
(Uday Umesh Lalit) New Delhi, July 01, 2015
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