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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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