Karnataka High Court
Sri T P Sriramulu vs The State Of Karnataka on 7 February, 2012
Bench: K. Sreedhar Rao, A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATE D THIS THE 7 '
OF FEBRUARY 2t11
PRESENT
THE HOWBLE MR.JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MR.JUSTICE A.S.BOPANNA
CRIMINAL APPEAL No. 1314!201 1
BETWEEN
SRI T P SRIRAMULU
SI0 POLAPPA
AGE 71 YEARS
0CC AGRICULTURIST
RIO SRIRAMARANGAPURAM
HOSPET TALUK
NOW RESIDING AT INFANTRY O D
NEAR VASAVI SCHOOL
BFI LARY
2 RI HI RUR PRA, D
510 RAMA'rY4
AGE '8
)( GRICUt1 RI (
R'O SRIRAMRANGAPU1'A
1O°P''ALUK NCWR SKIN
I ALUROOB[ AV
Sr I
N 'S S Id
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HOSPET IALUK. NOW RESIDING
AT KUVEMPUNAGAR BELL ARY
4 SRI MEDINENI MALLIKARJUNA
Sb YARRISWAMY
AGL 43 YEARS
0CC AGRICULTURISTS AND
FERTILIZER BUSINESS
RIO NETAJINAGAR
BELLARY (NATIVE PLACE
SRIRAMARANGAPURAM
HOSPET TALUIO
APPE L LANTS
(BY SRI RAVI B NAIK SR C'OUNSFL FOR
SRI BAHUBALI A DANAWADE &
SRI J BASAVARAJ ADVS
AND
THE STATE OF KARNATAKA
iTHROUGH RURAL POLICE
S1ATION BELLARY:
REPD BYITSSTATE PUBLIC R SE U OF
HIGH COURT OF KARNATftKA
BANGALORE
RESPOND! NT
(B 'RI.. N B.NftKA' ?')LI.%FP.
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YEAR AND THE APPELLANTS/ACCUSED ARE SENTE NCE D TO
IMPRISONMENT FOR FIVE YEARS FOR THE OFFENCE P!U'S
307 RVV 34 OF JP( AND SHALL PAY FINE OF RS 10 000' EACH
AND IN DEFAULT or PAYMENT OF FINE SHALL SUFFE R R I
FORONF YFARANDIT ISHEREBYORDEREDI R N THESE
SENTENCES CONCURRENTLY
1HIS APPEAL COMING ON FOR HEARING ThIS DAY
K. SREEDHAR RAC J DELIVERED THE FOL OWING
JUDGMENT
The material facts of thC case disclose that one Modipalli Narasayya s the deceased. One Dabbar Nagabhushan P W I is the complainant Accused Nos to befoie the Sessions Court belong to same community and they are the nembers of JD(S party. The deceased and P W 1 are the su porters of Cono es party ar d th dec ase and P Wi are the restdents of same ,iaae 1 Tt as a iv R ctee the accused and he sr ppc ter or the cn a a t -€as a 3 op te t e n I 0 3 D' the doceaeo cas rdr3 a d I W Vat, Jc ci u 'ne ' r. te t. e ro' ed 4 from behind in a Toyota vehicle, dashed the motorcycle, made the deceased and P.W 1 fall down. The accused Nos.1 to 7 being the members of unlawful assembly. armed with deadly weapons like chopper and iron rods assaulted the deceased and P W 1. P.W 16-Raghavendra and P W.18-Tammaneni Narasayya who were coming from opposite direction noticed the assault from a little distance. The KSRTC bus returning from Kampli to Bellary was coming on that way and the accused on seeing the bus fled away from the place in the said vehicle towards Kampli
2. The P.W 16 and P.W.18 who after noticing the incident have gone to the spot for a while and immediately got P bac c to t ie '1 lage ann ormed thc relatives af thc. deceasec. P W 28 who 's mc hvestigatii g O'Ticer ias rushed to th spot aio 9 NtF Ii mc. awl cjn thc njur d admittE.J to ilM. 1 ' spta' bel; i' Th aeceased Naras 'yya was iou; a to bc.
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as per Ex P12 The statement of P.W I and Lx P12 FIR was
submitted to the Chief Judicial Magistrate Bellary in his Home Office at ii 00 p m The postmortem report disclose that the death is due to shock and hemorrhage. as a result cf chop injuries sustained on the head and brain and the injunes might have been caused within 12 to 14 hours prior to the postmortem 3 Accused Nos 4 to 7 were arrested on 08 11 2005 The voluntary statements of the said accused persons were recorded and at their voluntary disclosure M 0. Nos 5. 6 & 7 were recovered under panchanama Ex.P 8 Al and A2 were arrested o 29 11 2005 and no recovery is effected A3 is arrested an 06 12 2005 and no recovery is effected At the tire ot irquest tie b ood staired clothing of the deceastd 4 rd azrc,j P cr " cd I Th o' sandpr aro Ic ng' tc ca dar°%1 I e. . c isOSG oci3r s I ibo atcry . r h' m 4 3i and er •b cal exar .r.atic.r. 3 1 h- F ,. Li'S t" E :A. i, cL ' .$', .' q iL..-- •'te cr itv'f•' r a1i ' v •r t)r F i ; .?'gi. ; rht..r.
r 6 marked at Ex P.23 The FSL Report and the Serological Report suggests that the blood stains on the weapons and the biooa stains on the clothing of the deceased are of B Group P W 28-CPI after completion of the investigation has laid the charge-sheet against the accused persons 4 Accused are charge sheeted for committing the offences punishable under Sections 143. 147. 148. 307. 302 read with Section 149 of IPG The charges under Section 143 and 147 appears to be redundant and unnecessary when the accused are charqe sheeted for committing the ifence under Section 148 which is an higher offence under the same genre I The prosecutior examir ee 0 vitnesses ar d narked V exhibits and 1' material objects Amongst the witnesses mined D he osec tio 'he attr • c t es' a F ll .c.Tfl)l4nar.t ! W 3 1', 18 i.'d 2 ir ç, oy.
"•'n3Øc. It "•e .ecider. ao .jy d( rjn'n F s d ha ft I t ut no jp tI aar A P S .. i' •'-•:,t , :r,, ;jItj,"---- ,.,_O' panch witnesses and recovery panch witnesses have all turned hostile and do not support the case of the prosecution
6. The Post-mortem Report s marked at Ex P 16, P Wi9 is the doctor who conducted post-mortem RW 20 s the doctor who treated P Wi and issued wound certificate as per Ex.P18 which shows that PWi had sustained grievous njuries. P.W.10 is the PSI who registered the FIR and P.W.30 is the OPI who goes to the spot immediately after the incident, shifted P W I and deceased to the hospital and carried out part of the investigation PW 28 is the CPI who conducted the effective tnvestigation and laid the charge-sheet agamse the accused I c t or p c offic a s e for a vtne e relatina to deiverv of FIR carrying of artcies to forensc 5CCflrC aborato"v ann gettno oac he eoorts arjd arrest of The Th Th W i no c -
•ci O F of the deceased have testified the motive for commission of the offence and spoke about pohtical rivalry between the deceased on the one part and the accused persons on the other part.
9. The Trial Court upon consideration of the evidence has found that the evidence of PWsi6 & 18 who are stated to be the eyewitnesses and supported the case of the prosecution is not credible and their presence at the scene is doubted. Therefore, the Trial Court has rejected their evidence. PW1. who is the injured eyewitness and P,W26 have turned hostile and do not support the prosecutions case. is T r a! Judge despite hay ng found that P W I ias turned ti p!ac reia s pon !s tatcr srt of W which is g tc d s FIR vids xP a i t A & \6 for under Sec i 02 on 34 of the said aused FIR !n tns f or otaterrent A2 A3 a ded A7 died ic r1 pcden / ut tne soc H can agant A7 :9 stood abated. A2 and A3 have been acquitted. The convicted accused are in appeal 10 The TnaJ Court has given the following reasons for rejecting the evidence of P.W.16 & 18.
i) The conduct of P.Ws 16 & 18. who are witnesses to the incident. is unnatural because they neither go to the scene of incident for rescue nor after the accused decamped. they go and help the victims to be taken to the hospital. nor they go to the police station, which is about a kilometer away from the scene, to lodge a compla t (H) d'e statement of P W 16 is ecorded by the Investigating Officer 9 days after the incident belatedly Thc tatomen P.W 8 s iccorded ancr rontr.s b ov tr lr'vc qat'ng 0 er and ,r amc a e rno'i icd 'n I re FiR Jjij tc lrwostigar.ng ofqrr ice' flOL mak' j a
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11 Sri. RavE B.Naik Senior Counsel appearing for the appellants accused pointed out the following discrepant circumstances visiting the evidence of P Ws.16 & 18 to support the view taken by the Tnal Court for rejecting their evidence:
(i) The version of P.Ws 16 & 18 discloses that they are chance witnesses: they do not go and interact with P.W.1 at the scene of incident. The evidence of P.W.18 discloses that P W 1 was unconsdous when himself P W 16 go to the scene. Therefore. P.W.1 had no occasion to have the knowledge that P Ws.16 & 18 are the eyewitnesses to the idant TI'arefnre lamng P IR at.. e)6witnc.s es 1 jr thc FR crc tes se s do abo he ibility f the ers'on '' V 'r D 10 a ny affor o g;vc mpla c Lilt. olic W.16 a c.re t at thc Gsvitr c o 2 sg,nr. vti$t. chcr P 'N at' va' vc stnt tic cM' 'il r i AG 'ittd n I 11 hospital. P.W 16 does not make any effort to give a complaint to the effect that he is an eyewitness to the incident implicating the assailants
(iii) P W 16 was present at the time of spot mahazar on the next day. but his statement is not recorded by the police Although he is said to be an eye witness named in the FIR, his statement is recorded only 9 days after the incident.
PW 16 has criminal antecedents and he has been convicted in a case for committing an offence punishable under Section 302 IPC. He is a supporter of congress party and has deep rooted enmity against the accused persons Therefore there iS every possibility of P W 16 figuring as an eyewitnesses by concoctio to end credbity to the case of the prosecuton
(iv) The statement of PW 18 s recorded five months udcai custody at Hospur.
after the nuident wuen Ou was in 1 PW I a!SO a mar OT 'rimina anteederit He ws aso rv"eo in rtnO an otu e uucisnabe under Sec tier r f P e s a' a'h cr tt5 ane :12• and of congress party and has biller rivalry and enemity with accused persons
(v) The deceased is also a person with criminal antecedents and he has innumerable enemies The possibility of deceased being killed by any one of his enemies and later on a false case is being foisted against the accused by setting up P.Ws.1, 16, 18 and 26 as eyewitnesses to the incident.
(vi) There is inordinate delay in registering the FIR though the CPI was at the scene of occurrence P.W 30 goes to the scene and he makes effort to shift the injured and the deceased to the hospital As per his evidence P W 16 was wen tat hø 'ccna but caffnrkare 'ade3 'ri' a' eci 'I the statement of P W 16 1 r 'pi a6 p do 'ot rnae effort to ecr.rd :;'e slatemen: ci P W 16 c,. thor - for r stonn; the 'R Th'ie was no n d on the a I F 0 avs to it I.E. o rd tPr % 4 4 tf ' 0 n- ;r '' tV ' • rto .JrrjLr Tt'tcltirie'' I tc 13:
delay in registenng the FIR creates a serious doubt about the possibility of fabrication and concoction of a false case being foisted against the accused persons
(viii) P.W.1. who is an injured witness has not supported the case of the prosecution. He has denied the statement as per the FIR and has also stated that he did not identify the assailants at the hme of the assault In the context of such evidence, placing reliance upon evidence of P Ws.16 & 18, who are chance witnesses and their evidence being discrepant. is not safe to base conviction.
(ix)The trial Court. therefore, rightly rejected the evdence of P.Ws.16 & 18. but. however, committed a grave ror in placing relian-e upon the FIR to convict the accused t ' the comp a ar a turned h t 9R can c.
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indiscriminate implication of the other accused apart from the one named in the F lR in the course of investigation and that would dent the veracity of the FIR seriously. The Investigating Officer has been selective and has adopted pick and choose method in conducting the investigation and laying the charge sheet. One N Rangaiah has been named as accused in the FIR, but the said accused has been given up and not sent for trial without any valid reason. This would show that the investigation is not conducted with integrity. In the present case the inal Court has grossly erred in placing reliance on FIR and thus the order of conviction recorded is bad in law.
the same is to be set-aside and the appellants-accused are to p I iittd
12. Sri. V M.Banakar Additional State Public r 0 r y I' e comm;tteu grave en, or 'r reject;; .g tht. red!b!e evidence ci P Ws 6 & 18. wo ate ake eywitne°sos tc he cider Itt t iS StcI 'y n ir ca or •oi Jrri 1• dpc.ts';.41i.r ft • fly v z.1'wr'te thsre ;q :15: no good reason for the rnal Court to have rejected the credible evidence of P Ws.16 & 18 and. if their evidence is accepted it would form a valid basis to support the order of conviction It is further submitted that when there are two views possible. it is not proper for the Appellate Court to interfere with the view taken by the Trial Court and if the view taken by the TnaI Court is perverse and impermissible, the Appellate Court can definitely review the evidence in order to confirm or set aside the order of the Trial Court.
13. Therefore. in the context of the said submissions. it becomes ust and necessary to scrutinize the vidence of P Ws. 16 & 18 vis á-vis the reasons given by the trial Court for rcjecton af tlcefr evidence.
14. Jo t or6ugt' scrutir.y. .or the ollewing reasons.
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motorcycle at the time of assault After the
accused fled away. P.Ws.16, 18 & 26 came near the scene. witnessed P.W.1 and the deceased who had sustained heavy bleeding injuries. P.Ws.16. 18 & 26 get back to the village to bring the relatives and friends. This version is inconsistent with the prosecution version which reveals in the course of investigation and evidence before the Court. In the evidence, it is stated that P W 26 gets down from the bus and comes to the scene and he was not the companion of P Ws.1 6 and 18 on the motorcyc'e. • he evidence of P.W 16 discloses that himself d Wl8wce omingort[cr torycle hey .vitnessed 'he acsauit and afte' me accusea %d away they raci gone nca the 9jurad and uter y&o a yt c i P. Wy r.a,..Ie, ' 15 'riiVy it 't 'G t' 'i--.C 't •.; t['-- v ::_ i j ftçj,.j ? Al 'I, :17: further says that from the village, himself and relatives directly went to VIMS Hospital, Bellary and they do not visit the scene of occurrence. The evidence of P W 18 is also on similar lines. This evidence is in contradiction with the evidence of P.W.30.
iii) The evidence of P W 30 discloses that himself and P.W.28 were on Bandobasth duty at Kolagal village P.W 28-Investigating Officer gets the information from P W 30 and they immediately go to the scene and they find that P.W 1 was aeverely injured and he deceased was lying ir I he poot of blood P.Ws 16 & 18 wife of deceased and other friends and relatives came tQ C a I £ 3 m cv a°ni'e T P W30 zhdT P W.18 inforns mat I r Accused Nos 1, 4 and 6 ame in ii' Sum' rc J no y..
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choppers and fled away from the spot Thereafter efforts were made to shift P.W 1 and the deceasea to VIMS Hosptai. Bellary Tne version of P W 30 totally contradicts the version of PWs.16 & 18. wherein they say that after the assault, they went to the scene of offence and got back to the village and for the second time they did not go to the scene of offence but they directly went to the hospital The evidence of PW30 is to be accepted,
iv) The evidence of PW16 reveals that he had given names of assailants and discloses that he IS an eyewitness to the ncdent. There was no reason or P W 8 who s the Inve$t g t no Officer n thic ye rec, ci tatemer str r fact fra of PV o ded exposes r a en a P W % is:C:
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that he is an eyewitness to the incident becomes doubtful to be believed.
15 There appears to be inconsistency between the evidence of P Ws 16 and 18. in the sense P.W.i8 says that after the accused tied away from the scene, P.Ws.16 & 1890 to the scene and that P.W 1 was stated to be unconscious.
According to P.W.16. he does not speak about the conscious or unconscious state of P Wi. but however his evidence categorically discloses that he does not interact or discuss with P W 1 in any manner It P W 1 is unconscious it becomes doubtful to believe the version of P.W 1 in the FIR because if he tad nct seen or taken cognizance of presence of F Ws 16 and 18 at the cone and i their statenent was recorded withou' there being any interaction between the said Vit 6€ d 1 ep ib 01 W iii O ib & 1R as eyewitnnsss 'r the FIR becomes a doubtiul "ersion E 0 C 9 f r 0 £ vidcaco f P W '0 'rsc.ose% P at mmcd'are:y at The scene brA tF "j a ft" • L fi 20 discloses the names of assailants, yet the statement of the witnesses in the FIR is not recorded 16 P W 1 OP S I who comes to the hospital also does not make attempt to record the statements of PWi6 or RWi8 who claim that they went to the hospital from the village P W 10 waits for more than five hours to record the statement of PWi at the hospital when he was available as per the evidence on record. This delay would only show that RW 1 should have been necessarily prompted before his statement was recorded as per Ex P1 which came to be registered as F I R In the said context it becomes doubtful to believe thc. vcrsio in the F IR that P Ws 16 18 and 26 are the 21:
has named five assailants viz, Al, A4 to A6 and one Rangaiah. but in the course of further statement. he implicates A2 A3 and AL This conduct shows that P.Wi has the tendency to falsely implicate the persons belonging to his rival group with an intention to harass them.
18 The evidence discloses that P W 16 and PW 18 have criminal antecedents and they are active members of rival political group with a history of similar acts of violence and commission of offences like murder punishable U/s 302 of IPC. Therefore, PWl6 and PW18 cannot be considered as naive and innocent persons to be believed at their face value lf really PW16 and P Wi8 were eyewitnesses to the ncident the would iave taken steps to record their Ltaternents at the a s and Just and pr per investigation ave b d on th ae The d g o cIc tr the ab p neics 5 he rt if F IR 'i C ied 22:
19. In that view of the matter. we find that the rejection of evidence of P.Ws16 and 18 as eyewitnesses to the incident s sound and proper However PW 1 and P W 28 have turned hostile and therefore their evidence does not deserve consideration and it is not helpful to the prosecution in any manner
20. The trial Court has recorded conviction of the appelIants-accused only on the basis of averments in the FIR.
Although P W 1 who has lodged FIR has turned hostile, the statement of P W 1 recorded in the FIR may be admissible in evidence for the purpose of corroboration under Section 145 of the Evidence Act However the saio statement cannot be a substartR e dence t base Cr tiol, i re so wier P W who s the complaw art being the niured hirnsef has tuiflOC nostie 0i51 Court has aornnhitted a crave Cf ror re rg tio or c as er i he FIR hen .
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contrary to law rhe rejection of evidence of P.Ws.16 and 18 is sound and proper Therefore, we find that, there was absolutely no incriminating material for the trial Court to record the order of conviction against the appellants-accused.
In that view, the appeal is allowed. The order of conviction is set aside The appellants accused persons to be released forth with, if not required for detention in any other case.
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