Karnataka High Court
Parvatamma vs Maruthi S/O Kambayya on 24 February, 2021
Author: P.N.Desai
Bench: P.N.Desai
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24 T H DAY OF FEBRUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL No.100130/2016
C/W CRIMINAL APPEAL No.100139/2016
AND CRIMINAL APPEALNo.100233/2016
IN CRL.A.No.100130/2016
BETWEEN:
1. MARUTHI S/O KAMBAYYA,
AGE: 35 YEARS.
2. THIMMAPPA S/O KAMBAYYA,
AGE: 30 YEARS.
3. CHAGE BASAPPA S/O MAREPPA,
AGE: 45 YEARS.
4. GURIKE DODDA BASAPPA,
S/O YENKAPPA,
AGE: 45 YEARS.
5. VEERANNA S/O KAMBAYYA,
AGE: 42 YEARS.
6. YUVARAJ S/O GURIKERI DODDA BASAPPA,
AGE: 20 YEARS.
7. GURIKERI SHARAN,
S/O DEVANNA,
AGE: 30 YEARS.
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ALL ARE R/O ELUBENCHI VILLAGE,
DIST: BALLARI.
...APPELLANTS
(BY SRI S.S.KOTI, ADVOCATE FOR
SRI SRINAND A.PACHHAPURE, ADVOCATE)
AND
STATE BY:
THE CIRCLE INSPECTOR OF POLICE,
KUDITHINI POLICE STATION,
KURUGODU CIRCLE, BALLARI DISTRICT,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA, DHARWAD.
...RESPONDENT
(BY SRI L.S.SULLAD, SPECIAL PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., SEEKING TO SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 28/03/2016 AND 29/03/2016 RESPECTIVELY, PASSED
IN S.C.NO.131/2009 BY THE I ADDL. DISTRICT AND
SESSIONS JUDGE, BALLARI, BY ALLOWING THIS APPEAL,
CONSEQUENTLY ACQUIT THE APPELLANTS OF THE CHARGES
LEVELLED UNDER SECTIONS 143, 147, 148, 302, 120B READ
WITH SECTION 149 OF IPC.
IN CRL.A.No.100139/2016
BETWEEN:
PARVATAMMA,
W/O VEERUPANGOUDA,
AGED ABOUT 41 YEARS,
OCC: HOUSEHOLD WORK,
R/AT: ELUBENCHI VILLAGE,
TQ. AND DIST: BALLARI.
...APPELLANT
(BY SRI ARAVIND D.KULKARNI, ADVOCATE)
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AND
1. MARUTHI S/O KAMBAYYA
AGED ABOUT: 41 YEARS.
2. THIMMAPPA S/O KAMBAYYA,
AGED ABOUT: 36 YEARS.
3. CHAGE BASAPPA S/O MAREPPA,
AGED ABOUT: 51 YEARS.
4. GURIKE DODDA BASAPPA,
S/O YENKAPPA,
AGED ABOUT: 51 YEARS.
5. VEERANNA S/O KAMBAYYA,
AGED ABOUT: 48 YEARS.
6. YUVARAJ,
S/O GURIKERI DODDA BASAPPA,
AGED ABOUT: 26 YEARS.
7. GURIKERI SHARAN,
S/O DEVANNA,
AGED ABOUT: 36 YEARS.
8. UMESH S/O DEVANNA,
AGED ABOUT: 41 YEARS.
9. MALLANAGOUDA,
S/O PORANAGOUDA,
AGED ABOUT: 41 YEARS.
RESPONDENTS 1 TO 9 ARE
R/O: ELUBENCHI VILLAGE,
TQ: DIST: BALLARI.
10. THE STATE OF KARNATAKA,
BY CIRCLE INSPECTOR OF POLICE,
KUDITHINI POLICE STATION,
KURUGODU CIRCLE,
REP.BY STATE PUBLIC PROSECUTOR,
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ADVOCATE GENERAL'S OFFICE,
HIGH COURT PREMISES, DHARWAD.
...RESPONDENTS
(BY SRI S.S.KOTI, ADVOCATE FOR
SRI SRINAND A.PACHHAPURE, ADV.FOR R1 TO 7 & R9;
SRI A.G.WAJAPE, ADVOCATE FOR R8;
SRI L.S.SULLAD, SPECIAL PUBLIC PROSECUTOR FOR R10)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL OF ACCUSED NO.8 AND 9 PASSED BY
THE COURT OF THE I ADDL. DISTRICT & SESSIONS JUDGE,
BALLARI, IN SESSIONS CASE NO. 131/2009 DATED
28/03/2016, CONSEQUENTLY ALLOW THIS CRIMINAL APPEAL
AND CONVICT ACCUSED NO.8 AND 9 i.e., RESPONDENT
NOS.8 AND 9 HEREIN FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 143, 147, 148, 302, 120B R/W SECTION 149 OF
IPC.
IN CRL.A.No.100233/2016
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE
CIRCLE POLICE INSPECTOR,
KUDITHINI POLICE INSPECTOR,
KURUGODU CIRCLE, BALLARI DISTRICT,
THROUGH THE ADDL.STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI L.S.SULLAD, SPECIAL PUBLIC PROSECUTOR)
AND
1. UMESH S/O SHIVAYYA SWAMY,
AGE: 42 YEARS.
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2. MALLANAGOUD,
S/O PORANAGOUDA,
AGE: 42 YEARS.
BOTH ARE R/O: ELUBENCHI VILLAGE,
TALUK AND DISTRICT: BALLARI.
...RESPONDENTS
(BY SRI A.G.WAJAPE, ADVOCATE FOR R1;
SRI SRINAND A.PACHHAPURE, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO
APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 28.03.2016 PASSED BY THE LEARNED I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BALLARI IN SESSIONS
CASE NO.131 OF 2009 SO FAR IT RELATES TO
RESPONDENTS/ACCUSED NOS.8 AND 9 AND SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.03.2016
PASSED BY THE LEARNED I ADDITIONAL DISTRICT AND
SESSIONS AND SPECIAL JUDGE, BALLARI IN SESSIONS CASE
NO.131 OF 2009 SO FAR AS IT RELATES TO
RESPONDENTS/ACCUSED NOS.8 AND 9 AND CONVICT THE
RESPONDENTS/ACCUSED NOS. 8 AND 9 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 148, 302, 120B
READ WITH 149 OF IPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 09.02.2021 COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, SREENIVAS HARISH KUMAR J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
These appeals are directed against judgment of the I Addl. Sessions Court, Ballari, in S.C.No.131/2009. Accused 1 to 7 are the appellants in Criminal Appeal No.100130/2016, they have been convicted and sentenced for the offences punishable under Sections 143, 147, 148, 302, 120-B r/w 149 IPC; the major punishment being imprisonment for life and fine of Rs.1,00,000/- each, for each of the offences under Section 302 and Section 120B of the IPC.
2. Accused No.1 to 7 have preferred Criminal Appeal No.100130/2016 challenging their conviction for the offences noted above. The State and PW5 have preferred Criminal Appeals No.100233/2016 and 100139/2016 under Section 378 of Cr.P.C. and 372 Cr.P.C. respectively questioning the correctness of acquittal of accused No.8 and 9.
3. The name of the deceased is Virupanagowda. PW1 is his father and PW5 is his wife. The prosecution case in brief is that on 19.03.2009, when the deceased :7: and his wife PW5 went for a morning walk at 5.45 a.m., all the accused caused his death in the presence of PW5. The place of occurrence was near Maremma Temple, Elubenchi village. PW1 made a report of this incident to the Police as per Ex.P.1 against seven named accused 1 to 7 and the investigation that followed Ex.P.1 disclosed conspiracy and ultimately totally nine accused came to be charge sheeted.
4. The prosecution sought to prove its case by examining 26 witnesses, and producing 42 documents and 18 material objects. The defence elicited contradictions as per Exs.D1 to D6 during cross-examination of some of the prosecution witnesses. Perusal of the entire evidence shows that the prosecution has based its case mainly on the testimonies of PW1, PW5, PW6, PW7, among whom PW5 is an eyewitness. PW19 is the doctor who conducted postmortem examination. Ex.P31 is the postmortem report. His opinion about the death is that, it was due to shock and hemorrhage as a result of the following ante mortem external injuries that he noticed before dissecting the body.
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1. Chop injuries measuring 11 cm x 5cm x mandible deep present over right side of the chin and lower part of face, underlying mandible is cleanly cut into pieces with extravasation of blood.
2. Chop inj ury measuring 8 cm x 2 cm x muscle deep present over front and right side of neck 1 cm below the injury No.1.
3. Chop injury measuring 9 cm x 3 cm x cervical bone deep present over front 2 sides of middle of neck, underlying the cheek and esophagus, muscles, vessels, nerves are cleanly cut with fracture dislocated of C2-C3 cervical vertebra, underlying spinal cord lacerated.
4. Chop injury measuring 6 cm x 1 cm x bone deep present over right temporal region.
5. Chop inj ury measuring 7 cm x 1 cm x bone deep present over left side back of head.
6. Avulsed laceration measuring 6 cm x 4 cm x bone deep present over back of left ear with laceration of left ear pinna.
7. Chop injury measuring 8 cm x 1 cm x bone deep present over right side back of head.
8. Chop injury measuring 7 cm x 1 cm x bone deep present over root of left shoulder with beveling of lower margin for a length of 4 cm.
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9. Grazed abrasion measuring 22 cm x 20 cm present over middle of back of lower part of chest and abdomen.
10. Abrasion measuring 10 cm x 1 cm present over lower part of back of left thigh region.
11. Chop inj ury measuring 7 cm x 1 cm x muscle deep present over back of lower part of left elbow.
12. Chop inj ury measuring 6 cm x 1 cm x muscle deep present over lower part inner side of left arm.
13. Chop injury measuring 10 cm x 3 cm x bone deep present over middle of front of upper part of chest with abrasion over right side.
14. Abrasion measuring 9 cm x 4 cm present over upper part front of chest.
15. Abrasion measuring 4 cm x 3 cm present over back of upper part of right forearm.
He has deposed that on dissection, he noticed that the underlying spinal card was lacerated. This internal injury corresponded to external injury No.3. On 21.07.2009, the investigating officer showed him two sickles for obtaining his opinion whether the external injuries found on the dead body could occur if those weapons had been used for committing the offence. He gave opinion as per Ex.P32 about the possibilities of : 10 : occurrence of the injuries that he noticed if those weapons had been used. The weapons that were shown to PW19 has relevancy and the same will be referred to while discussing the evidence of the investigating officer about seizure of weapons.
5. The judgment of the trial court shows nothing but extraction of the depositions of the witnesses, actual assessment of the evidence is not forthcoming. The final conclusion is found in Para-71 of the judgment. Learned trial judge has observed in this paragraph, "On careful perusal of the evidence led by the prosecution and upon hearing the arguments of the learned P.P. for the State and the learned counsel for the accused, it becomes clear that there is sufficient material against accused No.1 to 7. There is evidence of PW1 to 5 to show that accused Nos.1 to 7 have committed offences charged against them. There is no material to show about the involvement of accused 8 and 9 in the commission of the offence." Further there is a reference to the judgment of the Supreme Court and one conclusion with regard to evidence given by PW5 that immediately after assault on : 11 : her husband, she felt giddiness and sat in the temple and that if she was not present at the spot, she would not have been in a position to state the details of the act of the each accused. Therefore firstly we see that there is no proper appreciation of evidence and an opinion that PW5 was an eyewitness because she could give details of the overt-act of each accused.
6. We have heard the learned counsel for accused No.1 to 7, Sri S.S.Koti, Sri L.S.Sullad, the Special Public Prosecutor and Sri Aravind D.Kulkarni, who has appeared for the appellant in Criminal Appeal No.100139/2016.
7. Before appreciating the evidence of the prime witnesses, it may be necessary to delve on two points of arguments of Sri S.S.Koti with regard to registration of FIR and the inquest. His argument was that PW25, the PSI of Kudithini Police Station received information about homicidal death of Virupanagouda near Maremma Temple, Elubenchi village and immediately he came to the spot. Soon after receiving the information about a cognizable offence, he did not register FIR or make an entry in the : 12 : station house diary. After seeing the dead body, he shifted it to VIMS Hospital, Ballari and then visited the house of PW1. He received report of the incident from PW1, the father of the deceased, then went to police station and registered FIR. That means the investigation commenced before registration of FIR, hence Ex.P1 is hit by Section 162 of Cr.P.C. In support of this point of argument, he placed reliance on judgment of the Supreme Court in the case of State of A.P. V/s Punati Ramulu and others (AIR 1993 SC 2644). Sri L.S.Sullad met this argument of Sri S.S.Koti by arguing that though PW25 received the information about the incident while he was in the police station, he wanted confirmation of the information that received and therefore came to spot. Shifting of the dead body to Ballari Hospital was after receiving the complaint and therefore Ex.P1 is not hit by Section 162 of Cr.P.C.
8. In the case of Punati Ramulu (supra), the circumstances are that the Circle Inspector of Police, having received information of the incident from a police constable, went to village where the incident had taken : 13 : place and started the investigation. He admitted in the evidence that he did not make entry of the information that he received in the daily diary or in the general diary. PW1 came to village from the police station with a written complaint and PW22 received it and then registered FIR at 12.30 in the noon. In that circumstance, it was held that the complaint made by PW1 was during investigation and thus hit by Section 162 of Cr.P.C. We don't find such a circumstance herein this case. In this context, we find it useful to place reliance on judgment of the Supreme Court cited by Sri L.S.Sullad. In Sri Sambhu Das @ Bijoy Das and another V/s State of Assam (Criminal Appeal No.342 of 2007), it is held:
22) In State of U.P. vs. Bhagwant Kishore, (AIR 1964 SC 221), this court stated that "Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation."
23) The principles now well settled are that when information regarding a cognizable offence is furnished to the police that information will be regarded as the FIR and all enquiries held by the : 14 : police subsequent thereto would be treated as investigation, even though the formal registration of the FIR takes place only later.
24) Assuming that some report was made
on telephone and that was the real First
Information Report, this by itself would not affect the appreciation of evidence made by the learned Sessions Judge and the conclusions of fact drawn by him. The FIR under Section 154 Cr.P.C. is not a substantive piece of evidence. I ts only use is to contradict or corroborate the maker thereof.
Therefore, we see no merit in the submission made by learned counsel for the appellants.
9. On this point, it is to be stated that registration of FIR at the earliest point of time rules out manipulations and embellishments. Delay gives room for doubting the contents of FIR. PW25 could have made an entry of the information that he received while he was in police station before visiting the spot. If he wanted to confirm the truth in the information that he received and therefore visited the spot without making an entry in the station house diary, it cannot be said that it was a serious procedural infraction. In this context, reliance may be placed on two judgments of the Supreme Court cited by Sri Aravind : 15 : D.Kulkarni. In the case of Sidhartha Vashisht alias Manu Sharma V/s State of Delhi, (2010) 6 SCC 1, it is held as below:
303. (3) The phone calls made immediately after an incident to the police constitutes an FIR only when they are not vague and cryptic. Calls purely for the reason of getting the police to the scene of crime do not necessarily constitute the FIR. In the present case, the phone calls were vague and therefore could not be registered as the FIR. The FIR was properly lodged as per the statement of Shyan Munshi, PW2.
Same view has been taken in Surajit Sarkar V/s State of West Bengal, AIR 2013 SC 807.
10. In this case what we find is there was no inordinate delay in receiving the report as per Ex.P1 from PW1 and registration of FIR. When he visited the spot, he saw the dead body, came to village and met PW1. He received the report from PW1 at 7.45 a.m. and returned to police station at 8.30 a.m. and registered FIR. The incident is said to have taken place at about 6.00 a.m. We do not find delay in registration of FIR. But whether first information given by PW1 is trustworthy or not is : 16 : altogether a different aspect, and it requires consideration.
11. Sri S.S.Koti argued that the inquest should have been conducted at the spot, instead PW25 made arrangement for shifting the dead body to Ballari Hospital. The body was kept in the freezer of the mortuary of the hospital to keep the injuries afresh till inquest was conducted. This shows unnecessary interest shown by the police. He further argued that the inquest as per Ex.P18 was vitiated because it was conducted by a police officer- PW22 who had no authority to conduct it. Sri L.S.Sullad and Sri Aravind D.Kulkarni argued that inquest is not a substantial piece of evidence. PW25 was not questioned in the cross-examination as to why he took a decision to shift the dead body to the hospital. The evidence of PW22 clearly shows that he conducted inquest as per oral instructions of the Superintendent of Police. To garner support for their argument that inquest is just a formality during investigation, they have placed reliance some authorities. In the case of Sambhu Das (supra), it is held in para 17:
: 17 :
" .....................This Court, in the case of Podda Narayana Vs. State of Andhra Pradesh (AIR 1975 SC 1252), has indicated that the proceedings under Section 174 Cr.P.C. have limited scope. The object of the proceedings is merely to ascertain whether a person has died in suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death. The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope proceeding under Section 174. Neither in practice nor in law was it necessary for the Police to mention these details in the Inquest Report. I n George Vs. State of Kerala AIR 1998 SC 1376, it has been held that the Investigating Office is not oblig ed to investigate, at the stage of Inquest, or to ascertain as to who were the assailants. In Suresh Rai Vs. State of Bihar AIR 2000 SC 2207, it has been held that under Section 174 read with Section 178 of Cr.P.C., Inquest Report is prepared by the Investigating Officer to find out prima facie the nature of injuries and the possible weapon used in causing those injuries as also possible cause of death."
12. In Harijan Jivrajbhai Badhabhai V/s State of Gujarat (2017) 1 Crimes 214 (SC), it is held in para 12:
: 18 :
".....................The Investigating Officer had initially requested the Presiding Officer to lodge a complaint. Upon his refusal, the Investigating Officer then had to make enquiries and record the complaint of PW30 Bhanj i. In the meantime, if inquest was undertaken and the body was sent for postmortem, we do not see any infraction which should entail discarding of the entire case of prosecution."
13. From the above decisions of the Supreme Court, it may be held that shifting of the dead body to Ballari Hospital without conducting the inquest at the spot may not be considered significantly. If according to the defence, non-conduction of inquest at the spot materially affected the prosecution case, the concerned police officer should have been questioned and he would have answered. They are not questioned. Ex.P18 shows that the inquest was actually held in between 10.30 a.m. to 12.00 noon, that means after registration of FIR. The argument of Sri S.S.Koti, for these reasons, cannot be accepted. Despite these observations regarding FIR and the inquest, we point out certain other aspects which we think to be : 19 : very material and we deal with them little later after assessing the evidence of prime witnesses.
14. The entire case rests on the sole testimony of PW5-Parvatemma, the wife of the deceased. Sri S.S.Koti argued that she was not an eyewitness, PW1-her father- in-law and the investigating officer planted her to be an eyewitness. His argument was that no woman in the village would accompany her husband in the village side for a morning walk, that if she was really present at the spot when her husband was sacked to death, her natural conduct would have been something different; she would have cried loudly for help; she would not have sat at a distance in front of the temple like an angel. The dead body was at a distance of nearly 40 to 50 feet from the place where she was found to be sitting. Being a wife her natural conduct was to sit near the dead body weeping. Her evidence discloses that she even did not go and see whether her husband was still alive or not. She would come to conclusion that her husband might have died, this is not expected of a wife in the context of Indian society. Very soon after the incident, PW6 came on his bicycle in : 20 : search of his missing she-buffalo; he did not see PW5 at that place. PW25 also came to that place and he too did not see her. All these circumstances clearly indicate that she was not present. She might have refuted all the suggestions given in her cross-examination and she appears to have not been discredited, but if her evidence is subjected to scrutiny having regard to the answers given by PW1, PW6, PW7 and PW25, it is not impossible to draw an inference that she was not only planted, but tutored and therefore her evidence requires to be discarded. He further argued that on 19.03.2009, she was very much present in the village when the investigating officer came there for the purpose of holding panchanama and he admitted that PW5 was very much present. According to him, PW5 showed the place of incident and her signature is also there on the spot panchanama- Ex.P16. If really PW5 was present at the time of drawing spot panchanama, nothing prevented the investigating officer from taking her statement under Section 161 Cr.P.C. on that day itself, rather her statement was recorded on 20.03.2009 and further statement on : 21 : 21.03.2009. This delay, though one day, cannot be ignored because of two possibilities, one that she might not be an eyewitness and second that she might not have shown the spot. This implies manipulation and therefore the testimony of PW5 needs to be discarded.
15. Sri L.S.Sullad and Sri Aravind D.Kulkarni argued that PW5 was neither a planted nor a tutored witness. Her sole testimony is trustworthy. If she sat in front of the temple after seeing her husband being killed, it cannot be said that her conduct was unnatural. She has given explanation that she fainted seeing the assault on her husband. When suitable explanation is forthcoming, the sole testimony cannot be discarded. They submitted that there was no delay in recording the statement of PW5. One delay is no delay at all, if the testimony of sole witness is trustworthy, delay in recording the statement cannot be given too much of importance.
16. Sri S.S.Koti, Sri L.S.Sullad and Sri Aravind D.Kulkarni have relied upon umpteen case law in support of their arguments. In Jagadish V/s State of Haryana : 22 : (AIR 2019 SC 3696), the Supreme Court, taking note of the circumstance that there was unexplained delay of six hours in lodging FIR and the pre existing enmity between the parties, held that evidence of sole eyewitness was doubtful. In Ram Chander and others V/s State of Haryana, (2017) 2 SCC 321, the Supreme Court found that the testimony of eyewitness was natural, credible and consistent and that her testimony was corroborated by other prosecution witnesses on all material points and therefore confirmed the conviction. In Mahesh and another V/s State of Madhya Pradesh, (2011) 9 SCC 626, what is held is that a proper and appropriate explanation has been given for the delay in recording a statement of witness under Section 161 Cr.P.C., delay will not demolish or vitiate prosecution case. It is also held in the same judgment that it is not the quantity, but the quality that matters. The co-ordinate bench of this court in the case of Venkatesha alias Poori and others V/s State of Karnataka, 2016 (1) KCCR 34, has held that there is no statutory rule that conviction cannot be made on the testimony of a sole eyewitness and that the courts : 23 : can accept such evidence though uncorroborated. In the same judgment it is also observed that the evidence of a witness to a murder cannot be discarded merely on the ground that the witness did not react in a particular manner.
17. While appreciating evidence in criminal cases, there cannot be a straight jacket formula, evidence must be appreciated from the perception of a prudent common man. How a prudent common man behaves in the normal set of circumstances is the guiding factor and if a question is put whether there is any rule for appreciating the evidence, the answer is no rule. If testimony of a sole eyewitness is believable in one case, it may not be found believable in another case. If delay does not matter in one case, the same matters in another case. Therefore every case is distinct and different. There cannot be a particular yardstick. We find it apt to refer to here an observation made by Justice V.R.Krishnaiyer in the case of Inder Singh and another V/s the State (Delhi Administration), 1978 SCR (3) 393. His Lordship has observed:
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"If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is, too imperfect."
18. In the case on hand, PW1, PW5, PW6 and PW7 are the prime witnesses, though PW25 is a police officer who registered FIR, his evidence becomes relevant to appreciate evidence of PW5 to some extent. PW1 is not an eyewitness, it was PW6 who informed PW1 about the death of his son near Maremma Temple. What PW1 has stated is that on 19.03.2009, his son and daughter-in-law left their house at 5.30 a.m. for a morning walk and at 6.00 a.m. Hosagerappa i.e. PW6 came to his house and told him that his son Virupanagouda was found dead near Maremma Temple. Immediately he went to that place with Hosagerappa, Ramanjini, Sharanappa and Nagappa. He saw the blood on the road, and in a ditch aside the road, he saw the dead body of his son. There were multiple injuries on the dead body. His daughter-in-law was sitting in front of Maremma Temple. When he asked her as to what happened, she told him that her husband stopped the motorcycle and when he was pulling its stand to park : 25 : it on the road, accused No.1-Maruti, accused No.2- Timmappa, accused No.3-Basappa, accused No.4- Doddabasappa, accused No.5-Veeranna, accused No.6- Yuvaraja and accused No.7-Sharana came and sprinkled the chilly powder on him. When her husband tried to escape, they all chased him, inflicted injuries with machchu and then threw the dead body into the ditch. She also said that she felt like going unconscious and therefore sat in front of the temple. The motive that PW1 revealed for killing his son was that he (deceased) was elected as the president of the gram panchayath with the support of Congress party, that the accused belonged to the BJP party; that his son, while resolving a land dispute between one Manjugouda and the first accused-Maruti, gave a decision in favour of Manjugouda; and that in another panchayath relating to water dispute between Kotwal farmers and the first accused, his son had decided the matter in favour of Kotwal farmers. For these three reasons, the accused nurtured enmity against his son.
19. PW1 has stated about giving a report to the police as per Ex.P1 which was written by PW13- : 26 : Tammannagouda. The answers elicited from him in the cross-examination will be referred to little later.
20. PW6 has stated in examination-in-chief that on 19.03.2009, at 6.00 a.m. he came near Maremma Temple on his bicycle in search of his missing she-buffalo. He saw bloodstains on the road. When he looked aside, he saw the dead body of Virupanagouda and then came to the village, met PW1 and told him about what he had seen. Thereafter he again came to near Maremma Temple with PW1, Nagappa, Sharanappa, Swamy and Ramanjini. Then he saw PW5-Parvatemma sitting in front of the temple. Further he has stated that PW1 asked PW5, and that she revealed everything at that time.
21. PW7-Sharana's evidence in chief examination is that on 19.03.2009 at 6.00 a.m. he was having tea in Patrappa's hotel with Nagappa, Ramanjani and Honnurswamy, that ten minutes later he heard some commotion in the house of PW1, that they all went there and saw PW6 telling PW1 about Virupanagouda having been killed near Maremma Temple. He has stated that : 27 : they all came to that place and saw the dead body. He also saw PW5-Parvatemma sitting in front of temple and about PW1 asking her as to what happened. He too heard what PW5 told at that time as to how her husband was killed.
22. PW5 in her examination-in-chief has stated that at 5.45 a.m. on 19.03.2009 she and her husband went up to Maremma Temple on a motorcycle, that her husband stopped the motorcycle and pulled its stand, that when they were about to leave that place, accused 1 to 7 came there from behind the temple and threw chilly powder on her husband. When her husband tried to escape and run towards the village, the accused chased him, and then accused No.1-Maruti and accused No.2-Timmappa assaulted him with machchus on his head, chin, ear, hand and chest; in all they gave 15 to 16 blows. Afterwards the other accused 3 to 7 pulled the body towards a roadside ditch. By the time she went there, they all ran away with machchus towards the canal. She has stated that seeing this incident, she felt giddiness and sat in front of the temple. Some time later, her father-in-law, Sharana, : 28 : Nagappa, Ramanjani, Honnurswamy, Hosagerappa came to that place. When her father-in-law asked, she revealed the entire incident to him. She too has given the same motive as her father-in-law has given.
23. PW25-Jagadish N. was the Sub-Inspector of Police at the Kudithini Police Station. What he has stated in examination-in-chief is that on 19.03.2009, he received information about the killing of Virupanagouda and immediately he came to the spot. Thereafter he went to the house of PW1, received the written complaint as per Ex.P1, returned to the police station and registered FIR as per Ex.P37. At this juncture itself reference may be made to Ex.P16-spot panchanama. PW2 has stated that PW5 showed the place of incident to the investigating officer, that he was present when this panchanama was drawn in between 11.00 a.m. and 1.00 p.m., and that he signed the panchanama as a witness. PW26 the investigating officer has given evidence about drawing of spot panchanama at the place shown to him by PW5.
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24. The oral evidence as referred to above shows that PW5 is an eyewitness. Her presence at the spot has been doubted because, as argued by Sri S.S.Koti, when PW6 went to that place very soon after the incident, he did not see her. Even PW25 also did not see her. Therefore, the question that arises is whether PW5 was really an eyewitness. To draw inferences, it is necessary to refer to the cross-examination of the above witnesses.
25. Sri S.S.Koti argued that the evidence of PW1, PW6 and PW7 as regards what they came to know from PW5 was hearsay. But Sri L.S.Sullad submitted that their evidence assumes relevancy in accordance with Section 6 of the Indian Evidence Act, they are not hearsay witnesses, rather they speak about things that happened soon after the incident. Sri S.S.Koti replied that Section 6 of the Indian Evidence Act can be applied if presence of PW5 is proved. We find force in the argument of Sri S.S.Koti on this point.
26. PW5 has been thoroughly cross-examined and of course she appears to have not been discredited. Yet her : 30 : presence at the spot at the time of occurrence can be doubted. As consistently spoken by PW1, PW6 and PW7, she was found sitting in front of the temple. The spot sketch drawn by the Assistant Engineer (PW14) shows that the temple is at some distance from the place where the actual assault took place and the place where the dead body was found. In the spot panchanama Ex.P16, it is clearly mentioned that the width of the road is 12 ft., that there are small canals on both the sides of the road; that from that place (meaning thereby the place of incident), Maremma Temple is at distance of 50 ft, and that the dead body was found in a canal towards the eastern side at a distance of 7 ft from the place of incident. But why she went and sat in front of the temple is the question. Natural conduct of a wife is to sit by the side of the dead body. She has clearly admitted in the cross-examination that she did not go near the dead body and that she was sitting near the motorcycle (Para-14). The sketch shows that the motorcycle was parked in the road and that the temple was at some distance. If she sunk near the motorcycle becoming unconscious, she : 31 : could not have gone near the temple and PW1, PW6 and PW7 would not have seen her sitting in front of the temple. She was able to speak when her father-in-law and other came to that place. Their arrival to that place was not too late, because as PW1 has stated in his examination-in-chief itself, PW6 came to his house at 6.00 a.m. and gave the information. Very soon they all went to that place. Moreover, as stated by her, the entire incident took place within a few minutes after she and her husband came near Maremma Temple. She has stated very clearly in the cross-examination that she got down from the motorcycle and turned towards the temple to bow to the God. As she has stated, everyday they were going till temple on the motorcycle and from there they were walking in the same road further. That means after getting down from the motorcycle, she would not have gone near the temple. If the incident took place in her front, and became unconscious having seen it, she should have sunk to the ground at that place itself. If she was seen sitting in front of the temple, obviously a doubt arises whether really she had accompanied her husband : 32 : for the morning walk. To fortify this view, evidence of PW6 becomes relevant. Because he was the first person to come to that place. He did not see her at that time, he has stated to have seen her when he came to that place again (i.e. second time) with PW1 and other villagers. To repeat what he has stated very clearly in the examination- in-chief is that when he, PW1 and others came near the temple, they saw PW5 sitting there. In the cross- examination, he has stated that he became frightened to see the dead body and in that state itself he went to the house of PW1 and therefore he did not see anything except the dead body. This was when he saw the dead body for the first time. It may be possible, even accepting his answer to be true, still the doubt about her presence remains because PW25-the Sub-Inspector who came to that place within a short span of time also did not see her. He has clearly admitted in the cross-examination that if someone comes from village Kudithini, one must pass through the place of incident to go to the house of PW1, and that he went to the house of PW1 with four police staff. That means he did not come alone. If he did not see : 33 : PW5, at least one of the police constables should have seen PW5 if she was really sitting in front of the temple. PW25 has not been questioned whether he saw PW5 or not. PW5 might have stated that she returned to the house at 6.30 a.m. from the place of incident, but it is elicited from PW1 in the cross-examination that when the police came to the spot, her daughter-in-law i.e. PW5 was still sitting in front of the temple. He has also stated that the Police Sub-Inspector, and the Circle Inspector came to the spot at 7.00 a.m. along with eight to ten police constables. Since the police should pass through the place where the incident had occurred before reaching Elubenchi village, if none of them could see PW5, a doubt arises about her presence at the time of incident.
27. The evidence of PW7 is also relevant to draw inference about the presence of PW5. It is the clear answer of PW7 in the cross-examination that the police came to the spot after they all went to that place at 7.00 a.m. and none else was present at that place except them. He has stated that after arrival of police, it was PW1 who told them at that place as to how the incident : 34 : occurred. His further answer is that when PW1 was giving the details of incident to them, time was 7.30 a.m., Parvatamma-PW5 was not present.
28. These discrepancies in the evidence of the witnesses about the presence of PW5 at the place of incident are not trivial, since the prosecution has projected her to be an eyewitness, unless there is convincing evidence that she was present at the place when the incident occurred, her testimony does not become trustworthy although she appears to have been not discredited.
29. Another reason for doubting PW5 to be an eyewitness is, according to PW26, PW5 showed him the place of incident for drawing spot panchanama as per Ex.P16 in between 11.00 a.m. and 1.00 p.m. Of course Ex.P16 contains her signature. Though Sri S.S.Koti argued that PW5 put her signature on Ex.P16 when she came to court for giving evidence, his argument cannot be accepted. However a doubt arises about her presence because if she was really present at that time and showed : 35 : the place of incident to the investigating officer, he could have recorded her statement as well at that time itself. But he didn't, the reason for it is not forthcoming; when he came to the village for the purpose of holding investigation and came to know that the incident took place in the presence of PW5, if he had recorded her statement at the earliest point of time, it would have inspired confidence to believe the testimony of PW5. At this juncture, reference may be made to evidence given by PW11-Sharanabasavanagouda. He has stated that on 19.03.2009 at about 6.20 a.m. he came to know about the death of Virupanagouda. He wanted to go to Elubenchi village but came to know that the dead body had already been brought to VIMS Hospital, Ballari. He went to hospital at 10.00 a.m. and saw the dead body in the mortuary. He also speaks about inquest conducted in the hospital and at that time, one Neelappa, PW4-Yerriswamy, Manjunathagouda and Agasara Tammanna were present. The Gandhinagar Police Inspector took his statement. In the cross-examination it is elicited from him that when the dead body of Virupanagouda was brought to hospital, : 36 : his (Virupanagouda) wife, Parvatamma was also present. PW11 is a relative of the deceased, not a stranger to the family. If he had not seen Parvatamma in the hospital, he would not have stated about her presence. The inquest panchanama was drawn in the hospital in between 10.30 a.m. and 12 noon. Therefore, if his answer is considered, the presence of PW5 in between 11.00 a.m. and 1.00 p.m. at the time of spot panchanama becomes doubtful, and this could be the reason for not recording her statement at that time. This leads to two inferences that probably she might not be an eyewitness and secondly that her signature might have been obtained on the spot panchanama when she went to the police station on 20.03.2009. Visiting the police station on 20.03.2009 by PW1 and PW5 is admitted by them in the cross- examination. In this view, delay in recording the statement of PW5 matters very much.
30. The conduct of PW5 assumes importance. Though it was argued by Sri L.S.Sullad and Sri Aravind D.Kulkarni, that the behavioral pattern cannot be the same in all and that it differs from person to person and : 37 : that it has been observed so in the judgment of the co- ordinate bench of this court in the case of Venkatesh alias Poojari (supra), here it is the conduct of the wife that is in question. The conduct of a stranger eyewitness to an incident cannot be equated with conduct of a close relative of the deceased, if the eyewitness happens to be the wife of the deceased and if her conduct appears unusual, it cannot be simply ignored. Here PW5 was not found sitting by the side of the dead body, she was sitting in front of the temple. She might have stated that she felt like going unconscious seeing her husband being sacked. Of course, fainting or going to shock, may be quite natural. But PW5 has not stated that she became unconscious, she has stated she felt like becoming unconscious. Then, instead of being near the dead body, if she remained near the temple and if she even did not show interest to see whether her husband was still breathing or not, it appears unnatural. If a stranger meets with an accident on a road, a passer's by conduct quite naturally is to see whether the person who has suffered injuries is still breathing or not. Being a wife if she would : 38 : come to conclusion without seeing her husband that he was dead, it is something that cannot be accepted. Therefore, the unnatural conduct of PW5 also leads to an inference that she might not be present when her husband was assaulted to death. For this reason the evidence of PW1, PW6 and PW7 cannot be brought within the realm of Section 6 of Indian Evidence Act.
31. PW8 has been examined to establish conspiracy. According to PW1 and PW5, they came to know about conspiracy on 21.05.2009. The conspiracy took place in the flour mill (Zin, as stated by the witnesses). After coming to know about conspiracy, both PW1 and PW5 gave their further statements before the police about it and they have stated so while deposing before the court. Based on this conspiracy that two more accused 8 and 9 were included in the charge sheet. PW8 has stated in the examination-in-chief that on 18.03.2009, he had been to Kudithini and he returned to Elubenchi village with Tayappa at about 11.00 p.m. in a tempo. They both alighted from the tempo at Poteppanakatte. When they were going towards village, they saw all the nine accused : 39 : going inside the Zin belonging to one of them i.e. accused No.3-Chage Basappa. They closed the door. Therefore, he and Tayappa went near the window of the Zin and peeped through it to see what was going on inside. They heard all the accused talking that Virupanagouda was always coming in their way and he should be finished. At that time, accused No.1-Maruti and accused No.2-Timmappa told that they would bring machchu, and accused No.3- Chage Basappa told that he would bring chilly powder. Accused No.8-Umesh and accused No.9-Mallanagouda told that they would be keeping watch at the time others would attack Virupanagouda. After hearing these words, PW8 and Tayappa went to their houses. On the next day morning at 6.00 a.m., they came to know about the death of Virupanagouda. They went to the place of incident and saw the dead body. At that time, both he and Tayappa thought that the accused might have executed their plan.
32. In the cross-examination, it is elicited from him that his house and Tayappa's house are not situated near the flour mill or the Zin, and their houses are near to the old bus stand. There are two bus stands in their village, : 40 : one old and another new. The flour mill of Chage Basappa is not situated near the bus stand, it is at some distance. They have clearly admitted that in order to go to their houses, they should pass through the new bus stand and the old bus stand. They have also stated that all the vehicles will stop near old bus stand. They were coming from Kudithini village in order to reach their houses. They should have got down near the stop which was very near to their houses. They have stated that they did not request for a stop near the old bus stand, instead they went ahead and got down near that Poteppanakatte. There is no explanation as to for what reason they did not get down near the old bus stand. Therefore, a doubt arises obviously whether all the accused had met in the flour mill of accused No.3. Then if they had heard that accused were planning to kill Virupanagouda, they could have gone to his house to alarm him at that time itself. On the next day, when they went to spot after coming to know about the death, they could have revealed about the conspiracy to the police or to PW1. They simply returned to their houses. He has stated that on 21.03.2009, : 41 : Sharanabasayya i.e. PW1 called him to his house and at that time, he told him about the conspiracy. Both PW1 and PW5 have stated in the cross-examination that they came to know about the conspiracy on 21.03.2009. Therefore, the evidence of PW8 about conspiracy is not believable, the involvement of PW1 in projecting conspiracy can be suspected.
33. The trial court has not convicted accused No.8 and 9, holding that there are no materials against them. According to prosecution, there is involvement of nine accused, accused No.8 and 9 were part of conspiracy. Assuming that the evidence of PW5 is believable as an eyewitness, when PW1 came to the spot, she took the names of only accused 1 to 7 for the assault on her husband. According to the evidence of PW8, when he saw the meeting of all the accused inside the flour mill, he heard accused 8 and 9 saying that they would keep a watch at the time when the other accused would attack Virupanagouda. That means accused 8 and 9 should have come near Maremma Temple along with other accused. For the reason that PW5 did not take the names of accused 8 : 42 : and 9 while narrating the incident to her father-in-law, the inference is that they had not gone and that they might not be a part of conspiracy. The evidence of PW8 for this reason also, becomes doubtful.
34. Examined whether the prosecution case stands independently of the evidence of PW5, the evidence with regard to recovery of incriminating materials on the basis of voluntary statements made by accused 1 and 2 is to be considered. PW26-the investigating officer has stated that on 23.03.2009, himself and the Sub-Inspector traced accused No.1, accused No.3, accused No.5, accused No.6 and accused No.7 near Toranagallu Railway Station, arrested them and brought to police station. He obtained the voluntary statement of accused No.1 and at that time, he disclosed the place where he had hidden the machchu and that he would show the same if he was taken to that place. Accordingly, accused No.1 took them to a place near canal and produced the machchu. The time of recovery was between 7.00 p.m. and 8.30 p.m. Recovery panchanama as per Ex.P23 was drawn in the torch light in the darkness.
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35. On 23.03.2009 itself, PW26 recorded the voluntary statement of accused No.3 who at that time is said to have stated that he would show the chilly powder used at the time of committing the offence if he was taken to his flour mill. Having recorded his statement on 23.03.2009, the investigating officer did not find it necessary to immediately go to flour mill for seizing the sample of the chilly powder. Till 31.03.2009, he did not go to flour mill. Ex.P24-panchanama was drawn at the flour mill on 31.03.2009.
36. On 12.04.2009, PW26 arrested accused No.2 at Kampli bus stand. Based on the voluntary statement of accused No.2, he seized another machchu that was produced by accused No.2 removing it from a thorny bushy plant near the canal. Of course there is no delay in recovery of this machchu.
37. The conduct and approach of PW26 may be mentioned here. If he hastened to seize a machchu at the instance of accused No.1, based on his voluntary statement, he did not show the same eagerness to seize : 44 : the samples of chilly powder from the flour mill of accused No.3 although his voluntary statement was obtained on 23.03.2009; he waited till 31.03.2009. There is no explanation for this delay. The approach of PW26 in this regard appears to be very paradoxical.
38. Recovery can be doubted for another reason. The weapons marked in evidence are two Machchus, M.O.16 and M.O.17. But the doctor who conducted postmortem examination has stated that the weapons showed to him were sickles. A sickle is altogether a different instrument from Machchu. If sickle is used for cutting grass or standing crops; machchu is used for chopping. As argued by Sri S.S.Koti, if a person is assaulted with a sickle, possibility of occurrence of chop injury is very unlikely. If PW26 recovered machchus at the instance of accused 1 and 2, he should have shown machchus to PW19 for his opinion. For these reasons, the recovery based on voluntary statements becomes doubtful.
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39. Sri S.S.Koti argued with regard to seizure of chilly powder that FSL report does not indicate whether the chilly powder particles seized at the spot match with the species of the sample chilly powder seized at the flour mill and therefore the FSL report cannot be relied upon. He also argued that the seizure of weapons at the instance of accused 1 and 2 cannot be a sole ground for convicting the accused when the testimony of PW5 appears to be unbelievable and that the active role played by PW1 in connivance with police is very much apparent. Though his first part of the argument about the matching of the chilly powder collected at the spot with the species of the chilly powder of the sample later on seized at the flour mill, can be ignored, his second part of argument about the active role of PW1 and the police appears to be having force. It is already stated about the haste shown by PW26 in seizing the machchu at the instance of accused No.1 and the callousness in seizing the chilly powder. In addition to this, what is very important to be mentioned here is holding test identification parade of the accused. PW5 has clearly stated about going to jail on : 46 : 20.05.2009 and identifying the accused. PW26 also speaks about arranging test identification parade by requesting the Tahsildar. PW18 was the Tahsildar who conducted test identification parade, Ex.P30 is the test identification parade report.
40. Sri S.S.Koti argued that there was no necessity to hold test identification parade because all the accused were known to PW1 and PW5. Test identification parade will be held for identifying the accused who are strangers and if the faces of the accused could not be clearly seen at the time of incident because of paucity of light. The very reason that PW26 arranged for test identification parade, only shows that he yielded to PW1. This argument of Sri S.S.Koti has force to some extent. In the circumstances of the case projected by the prosecution, holding of test identification parade was absolutely unnecessary. The involvement of PW1 in implication of the accused may be seen. The evidence of PW7 fortifies the fact that PW1 was also an accused along with him in an earlier criminal case. PW8 has also stated in the cross- examination that when the police came to the spot, it was : 47 : PW1 who gave all the information to them and later on also in his house. PW5 has clearly admitted that the police did not enquire her at all at the time of drawing of panchanama. As stated above, if she was really present at that time, the investigating officer should have enquired her and not PW1 to ascertain the truth. She has also stated that PW1 told her about the conspiracy. Therefore, in this background, if the prosecution case is assessed as a whole, recovery of the weapons at the instance of accused 1 and 2 cannot be considered for drawing a conclusion that prosecution has stood proved beyond reasonable doubt. It is true that all doubts are not reasonable, the doubts which do not find an answer or suitable explanation, can only be treated as reasonable. The discussion made above shows that for certain doubts there are no explanations and therefore the conclusion drawn by the trial court to hold the accused guilty of the offences charged against them cannot be sustained.
41. Even if it is assumed that the recovery of the weapons at the instance of accused 1 and 2 can be believed, it is the alternative view possible. When two : 48 : views are possible, its benefit must be given to the accused. Hence, we come to conclusion that the impugned judgment cannot be sustained.
42. From the above discussion, we come to conclusion that Criminal Appeal No.100130/2016 deserves to be allowed and Criminal Appeals No.100139/2016 and 100233/2016, dismissed. Ordered accordingly. The judgment of the trial court convicting accused No.1 to 7 for the offences punishable under Sections 143, 147, 148, 302, 120B read with 149 I.P.C. is set aside. They are acquitted of the offences. Their bail bonds and surety bonds are cancelled. Fine amount, if deposited by them, shall be refunded to them.
SD/-
JUDGE SD/-
JUDGE Bvv/CLK