Karnataka High Court
State By Kencharlahalli vs N Narasimhappa S/O Katholla Kittanna on 21 August, 2014
Bench: Mohan.M.Shantanagoudar, C.R.Kumaraswamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF AUGUST 2014
PRESENT
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE C.R. KUMARASWAMY
Criminal Appeal No.386/2007
C/W
Criminal Appeal No.539/2013
Criminal Appeal No.386/2007:
BETWEEN:
STATE BY KENCHARLAHALLI
POLICE STATION, CHINTHAMANI TALUK
KOLAR DIST.
..Appellant
(By Sri H.S. Chandramouli, Spl.Public Prosecutor)
AND :
1. N. NARASIMHAPPA
S/O KATHOLLA KITTANNA
AGED ABOUT 28 YEARS
2
2. K.V. ANJANEYA REDDY
S/O VEMAREDDY
AGED ABOUT 28 YEARS
3. R. JAYANNA
S/O CHIKKAKONDAPPAGARI RAMANNA
AGED ABOUT 36 YEARS
4. S. ANJANEYA REDDY
S/O SUBBARAYAPPA
AGED ABOUT 36 YEARS
5. MEHABOOB PASHA
S/O HERDERSAB
AGED ABOUT 26 YEARS
6. K.M. MANJUNATHA
S/O MASTURAPPA
AGED ABOUT 26 YEARS
7. K.M. VENKATAREDDY
S/O K M MADDIREDDY
AGED ABOUT 27 YEARS
8. K.V. NARAYANASWAMY
S/O DABBALA VENKATARAYAPPA
AGED ABOUT 32 YEARS
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9. K.M. MDDIREDDY
S/O MADDIREDDY
AGED ABOUT 54 YEARS
10. BUCHAMMAGARI BYYAPPA @ BYYAPPA
S/O SUBBAIAH
AGED ABOUT 42 YEARS
11. CHINNAPPAGARI VENKATAREDDY
S/O LATE CHIKKANARAYANA
AGED ABOUT 41 YEARS
12. KHADAPPAGARI ANJINAPPA
S/O BYAPPA
AGED ABOUT 37 YEARS
13. KHADALMARI SRIRAMAREDDY
S/O BYAPPA
AGED ABOUT 31 YEARS
14. KOTHOLLA ANANDA @ ANANDAREDDY
S/O LATE VEMAREDDY
AGED ABOUT 29 YEARS
15. GOPALAPPAGARI VENKAREDDY
AGED ABOUT 26 YEARS
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16. V. REDDAPPA @ REDDAPPA
S/O VEMAREDDY
AGED ABOUT 38 YEARS
17. SHVIANNA @ K.V. SHIVAREDDY
AGED ABOUT 29 YEARS
18. KITTANNA @ KITTAPPA
S/O LATE RAMANNA
AGED ABOUT 51 YEARS
19. BHUCHAMMAGARI NARAYANAPPA
S/O LATE SUBBAIAH
AGED ABOUT 61 YEARS
20. BHUCHAMMAGARI KONAPPA
S/O LATE SUBBAIAH
AGED ABOUT 68 YEARS
21. K. RAMACHANDRAREDDY
@ REDDOLLA RAMACHANDRA
S/O KONAPPA
AGED ABOUT 36 YEARS
22. RAVI
S/O KITTANNA
AGED ABOUT 25 YEARS
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23. K.V. KRISHNAREDDY
S/O PEDDAVENKATARAYAPPA
AGED ABOUT 33 YEARS
24. FAKRUDDIN S/O BASHA SAB
AGED ABOUT 33 YEARS
25. KENCHAPPALLI NARAYANASWAMY
S/O CHOWDAPPA
AGED ABOUT 37 YEARS
26. VENKATARAMANAPPA
S/O RAMAPPA
AGED ABOUT 45 YEARS
R/O ALAMBA VILLAGE
27. KONDHANDAPPA
S/O MUNIVENKATAPPA
AGED ABOUT 45 YEARS
BELAGERI VILLAGE
28. NARAYANASWAMY
S/O UDDADANDAPPA
AGED ABOUT 42 YEARS
29. RAJASHAKAR
S/O RAMAPPA
AGED ABOUT 32 YEARS
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30. MANJUNATHA
S/O SAMPANGAPPA
AGED ABOUT 24 YEARS
31. NATARAJA
S/O SHANKARAPPA
AGED ABOUT 35 YEARS
32. VENKATESHGOWDA
S/O LATE SONNAPPA
AGED ABOUT 35 YEARS
RESPONDENT NOS. 1 TO 25 ARE
R/O KAMBALAHALLI VILLAGE
CHINTHAMANI TALUK
RESPONDENT NOS. 28 TO 32 ARE
R/O MANGASANDRA VILLAGE
KOLAR TALUK
ALL ARE R/O POORNAHALLI VILLAGE
SRINIVASAPURA TALUK
KOLAR DIST.
..Respondents
(By Sri S.Shankarappa, Adv., for S.Shankarappa & Assts.,)
This Criminal Appeal is filed under Section 378 (1) and
(3) Cr.P.C praying to grant leave to file an appeal against
the Judgment dated.04.12.2006 passed by the II Additional
District and Sessions Judge, Kolar in S.C.No. 114/2000
acquitting the respondents/accused Nos. 1 to 32 for the
7
offence punishable under sections 143, 147, 148, 324, 326,
353, 342, 436, 427, 302, 307 R/W, Section 149 of Indian
Penal Code and under Sections 3(1) (iv) & (x), 3(2) (iv)
&(v) of SC/ST (POA) Act, 1989 and to set aside the
aforesaid Judgment and Order of acquittal and to convict
and sentence the respondents/accused for the offences with
which they have been charged.
Criminal Appeal No.539/2013:
BETWEEN:
1. VENKATARAYAPPA
S/O PAPANNA
AGED ABOUT 74 YEARS
OCC: NIL
R/O DOOR NO.1
MINIKAMBALAPALLI (AMBEDKAR NAGAR)
NEAR KPTCL POWER SUB-STATION
CHINTAMANI
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563125
2. SHANKARAPPA
S/O BADAKAYALA LAKSHMANA
AGED ABOUT 28 YEARS
R/O DOOR NO.17
MINIKAMBALAPALLI (AMBEDKAR NAGAR)
NEAR KPTCL POWER SUB-STATION
CHINTAMANI
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563125 .. Appellants
(By Sri K.A. Chandrashekara and Sri Mallikarjun .S. Masali,
Advocates )
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AND :
1. N.NARASIMHAPPA
S/O KATHOLLA KITTANNA
AGE: 34 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
2. K. V. ANJANEYA REDDY
S/O VEMAREDDY
AGE: 34 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
3. R.JAYANNA
S/O CHIKKAKONAPPAGARI RAMANNA
AGE: 42 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
4. S.ANJANEYA REDDY
S/O SUBBARAYAPP
AGE: 42 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
5. MEHABOOB PASHA
S/O HYDERSAB
AGE: 32 YEARS
R/O KAMBALPALLI VILLAGE
9
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
6. K.M.MANJUNATHA
S/O MASTURAPPA
AGE: 32 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
7. K.M.VENKATAREDDY
S/O K.M.MADDIREDDY
AGE: 33 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
8. K.V.NARAYANASWAMY
S/O DABBALA VENKATARAYAPPA
AGE: 37 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
9. K.M.MADDIREDDY
S/O MADDIREDDY
AGE: 60 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
10. BUCHAMMAGARI BYYAPPA @ BYYAPPA
S/O SUBBAIAH
AGE: 48 YEARS
R/O KAMBALPALLI VILLAGE
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TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
11. CHINNAPPAGARI VENKATAREDDY
S/O LATE CHIKKANARAYANAPPA
AGE: 47 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
12. KHADAPPAGARI ANJINAPPA
S/O BYAPPA
AGE: 43 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
13. KHADALMARI SRIRAMAREDDY
S/O BYAPPA
AGE: 37 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
14. KOTHOLLA ANANDA @ ANANDAREDDY
S/O LATE VEMAREDDY
AGE: 35 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
15. GOPALAPPAGARI VENKATAREDDY
S/O GOPALAREDDY
AGE: 32 YEARS
R/O KAMBALPALLI VILLAGE
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TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
16. V.REDDAPPA @ REDDAPPA
S/O VEMAREDDY
AGE: 44 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
17. SHIVANNA
S/O K.V.SHIVAREDDY
AGE: 35 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
18. KITTANNA @ KITTAPPA
S/O LATE RAMANNA
AGE: 57 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
19. BHUCHAMMAGARI NARAYANAPPA
S/O LATE SUBBAIAH
AGE: 67 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
20. BHUCHAMMAGARI KONAPPA
S/O LATE SUBBAIAH
AGE: 74 YEARS
12
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
21. K. RAMACHANDRAREDDY @
REDDOLLA RAMACHANDRA
S/O KONAPPA
AGE: 42 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
22. RAVI
S/O KITTANNA
AGE: 31 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
23. K.V.KRISHNAREDDY
S/O PEDDAVENKATARAYAPPA
AGE: 40 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
24. FAKRUDDIN
S/O BASHASAB
AGE: 40 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
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25. KENCHAPALLI NARAYANASWAMY
S/O CHOWDAPPA
AGE: 44 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
26. VENKATARAMANAPPA
S/O RAMAPPA
AGE: 52 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
27. KODHANDAPPA
S/O MUNIVENKATAPPA
AGE: 52 YEARS
R/O KAMBALPALLI VILLAGE
TALUK: CHINTAMANI
DISTRICT: CHIKKABALLAPUR-563123
28. NARAYANASWAMY
S/O UDDADANDAPA
AGE: 49 YEARS
R/O MANGASANDRA VILLAGE
TALUK & DISTRICT: KOLAR-563126
29. RAJASHEKAR
S/O RAMAPPA
AGE: 37 YEARS
R/O MANGASANDRA VILLAGE
TALUK & DISTRICT: KOLAR-563126
30. MANJUNATHA
S/O SAMPANGAPPA
AGE: 31 YEARS
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R/O MANGASANDRA VILLAGE
TALUK & DISTRICT: KOLAR-563126
31. NATARAJA
S/O SHANKARAPPA
AGE: 42 YEARS
R/O MANGASANDRA VILLAGE
TALUK & DISTRICT: KOLAR-563126
32. VENKATESH GOWDA
S/O LATE SONNAPPA
AGE: 42 YEARS
R/O MANGASANDRA VILLAGE
TALUK & DISTRICT: KOLAR-563126
33. STATE OF KARNATAKA
BY KENCHARLAHALLI POLICE STATION
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
PRINCIPAL BENCH
BANGALORE-560001
..Respondents
(By Sri S.K.Venkata Reddy, Adv.
for R-1 to R-19 and R-21 to R-25;
Sri Shankarappa, Adv., for R-1 to R-32.,
Sri M.R.Nanjunda Gowda, Adv., for R-27 to R-32.,
Sri H.S.Chandramouli, Spl. PP for R-33.,)
This Criminal Appeal is filed under Section 372 Cr.P.C
praying to set aside the Judgment and Order of acquittal
dated.04.12.2006 passed by the II Additional District and
Sessions Judge, Kolar in S.C.No.114/2000 acquitting the
respondents/accused for the offences punishable under
15
sections 143, 147, 148, 324, 326, 353, 342, 436, 427, 302,
307 R/W, Section 149 of Indian Penal Code and under
Sections 3(1) (iv) & (x), 3(2) (iv) & (v) of SC/ST (POA) Act,
1989.
These Criminal Appeals having been heard and
reserved, coming on for pronouncement of Judgment this
day, MOHAN .M. SHANTANAGOUDAR .J., delivered the
following.
JUDGMENT
Criminal Appeal No.386/2007 is filed by the State against the Judgment and Order of acquittal dated 4th December 2006 passed by the II Additional District & Sessions Judge, Kolar in S.C. No.114/2000. By the said Judgment & Order, the respondents/accused were tried and acquitted for the offences punishable under Sections 143, 147, 148, 324, 326, 353, 342, 436, 427, 302, 307 r/w Section 149 of IPC and under Sections 3(1)(iv) & (x), 3(2)(iv) &(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 {'SC & ST (POA) Act' for short} .
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Criminal Appeal No.539/2013 is filed by the complainant (PW.1) viz., Venkatarayappa and Shankarappa (PW.32) against the very Judgment and Order of acquittal dated 4.12.2006 passed in S.C. No.114/2000 by the II Additional District & Sessions Judge, Kolar.
2. Since both the appeals arise out of the same Judgment and Order of acquittal dated 4.12.2006 in S.C. NO.114/2000 on the file of the II Additional District & Sessions Judge, Kolar, both the appeals were connected, heard simultaneously and are decided by this judgment.
3. Case of the prosecution in brief is that the complainant - Venkatarayappa (PW.1) is resident of Kambalapalli village, Chintamani taluk, Kolar district (now said taluk comes in Chickballapur district because of bifurcation of erstwhile united Kolar district); complainant belongs to Scheduled Caste and accused persons belong to 17 Vokkaliga community (Reddy community); there was previous enmity between the complainant and his family members on one side and the accused persons on the other.
In the year 1988, son of the complainant was murdered allegedly by Accused No.9 and others; After the said incident, it appears the complainant alongwith his family members started living in Chintamani and consequently had left Kambalapalli village; About six months prior to the incident in question, the Tahsildar and Police officials of Chintamani held meetings in the village and conciliated between parties on both the sides; having found that peace shall exist in Kambalapalli village, the complainant and his family members were brought back to village with an advice to both the groups to live amicably; However the people belonging to Reddy community had ill- will against members of the Scheduled Caste in general and the family members of the complainant, in particular. 18
In the year 2000, Panchayath elections were held. Accused No.10 contested for the election in support of Janathadal political party; The complainant and members of his family supported the Congress party candidate and in this connection, all the accused were nurturing grouse against the complainant and his family members.
At about 6.30 p.m. on 10.3.2000 there was quarrel and in the said quarrel Accused No.7 - Venkatareddy and others assaulted Shankarappa and Narasimhappa, who belong to Scheduled Caste; In that behalf, Shankarappa lodged complaint against Accused No.7 and others which was registered in Crime No.45/2000 of Kencharlahalli Police Station; The Police visited the village; At that time, injured Shankarappa and Narasimhappa were admitted to the hospital for treatment; The sons of the complainant viz., Sriramappa, Anjanappa and others went to the hospital on 11.3.2000 to see Shankarappa and Narasimhappa; Having 19 known these facts, on 11.3.2000 the accused were waiting for the sons of the complainant and others near the bus stand in order to take revenge against them.
At about 7.30 p.m. on 11.3.2000 the sons of the complainant viz., Sriramappa, Anjanappa alongwith Shankarappa and Narasimhappa returned to Kambalapalli and alighted from the bus at the bus stop; at that time, all the accused formed themselves into an unlawful assembly and attacked the above persons with weapons like clubs, sickles, stones etc., by proclaiming that they should be done to death; Being scared, the victims ran away and took shelter in the houses of PW.1 - Venkatarayappa (complainant), Chikkapapanna and Guddi Yamanna; All the accused locked the houses from outside, brought hay and petrol and set fire to the houses, consequent upon which 7 persons viz., Ramakka, Anjanappa, Sriramappa, Papamma, Narasimhappa, Subbamma, Kunti Papamma lost their lives; They were burnt alive. In the very incident, 20 Lakshmana - PW.17, Mangamma - PW.10, Narasamma - PW.39, Kadiramma - PW.24 sustained injuries; All the deceased as well as the injured belong to Scheduled Caste; The accused prevented the Police personnel also from discharging their duties.
4. Based on the statement (information) given by Venkatarayappa (PW.1) on 11.3.2000 at 8.45 p.m., case was registered in Crime No.47/2000 in Kencharlahalli Police Station for the offences punishable under Sections 143, 147, 148, 436, 302 r/w 149 of IPC and Sections 3(1), 10(2), 3 and 4 of the SC & ST (POA) Act. The investigation was taken up.
5. It is relevant to note here itself that even prior to the information given by Venkatarayappa (PW.1) as mentioned supra, one Mr. Anjaneya Reddy gave information on 11.3.2000 at 8.30 p.m., and on the basis of which, 21 another case in Crime No.46/2000 came to be registered in Kencharlahalli Police for the offences punishable under Sections 143, 147, 148, 302 r/w 149 of IPC. In the said information, it was alleged that certain of the persons named in the said complaint assaulted one Mr. Kittanna @ Krishna Reddy, consequent upon which said Krishna Reddy @ Kittanna died on 11.3.2010 at 7.30 p.m. near Kambalapalli bus stand.
6. After completion of the investigation in Crime No.47/2000, Kencharlahalli Police laid the charge sheet against 32 accused citing 91 charge sheet witnesses. After committal, the case was numbered as S.C. No.114/2000 before the Court of II Additional Sessions Judge, Kolar. Since the accused did not plead guilty, they were tried for the offences under Sections 143, 147, 148, 324, 326, 353, 436, 427, 302, 307 r/w Section 149 and Sections 3(2)(v) &
(xv) of the SC & ST (POA) Act.
22
7. In order to prove its case, the prosecution in all examined 56 witnesses and got marked 90 Exhibits and 7 Material Objects. On behalf of the defence, no witness is examined and no document was marked. The trial Court having found that there is no incriminating evidence against the accused dispensed recording their statements under Section 313 of Code of Criminal Procedure. All the accused were acquitted by the trial Court by the Judgment and Order of acquittal dated 4.12.2006 in S.C. No.114/2000.
As aforementioned, these two appeals are filed questioning the Judgment and Order of acquittal dated 4.12.2006 passed by the II Addl. Sessions court, Kolar in S.C. No.114/2000.
8. Sri Chandramouli, learned SPP submits that the appreciation of the evidence by the trial Court is improper 23 and incorrect; Merely because the important witnesses have turned hostile, the case of the prosecution cannot be brushed aside; There is no reason as to why the official witnesses should be disbelieved; It is not the quantity, but it is quality of evidence which is relevant; the evidence of PW.1 may be sufficient to bring home the guilt atleast against some of the accused; the evidence of PW.1 is supported by the evidence of PW.41, the Assistant Fire Station Officer, who visited the spot immediately after the incident; PW.50 has deposed that he saw several persons who had formed themselves into an unlawful assembly holding clubs and stones and were quarrelling with Sriramappa and others; the evidence of PW.1 supported by the evidence of PWs.48 and 50 and the evidence of the Investigating Officer - PW.54 is sufficient to bring home the guilt against the accused. Even if the prosecution witnesses have turned hostile, the Court below ought to have relied upon the portions of depositions of such hostile 24 witnesses if such portions are reliable and support the case of the prosecution.
During the course of final arguments, learned SPP prayed permission of the Court to raise additional grounds in the appeal. By raising the additional grounds, the learned SPP contended that there is nothing on record to show that the evidence of PWs.1 to 46 was read over to the witnesses after recording their evidence and that there is nothing on record to show that the witnesses who have deposed before the Court were actually knowing Kannada language in which their depositions were recorded. He further contended that though the assistance of interpreter/advocate who was acquainted with the English and Telugu languages was taken, the Court below has erred in not recording the sworn statement of the interpreter as per the Criminal Rules of Practise. He further submits that since the matter pertains to the offences involving the 25 provisions of the SC & ST (POA) Act, such cases are to be tried by the Special Court established under Section 14 of the said Act; The II Addl. Sessions Court, Kolar has proceeded to record the evidence and pass the judgment despite the fact that it was not the Special Court established under Section 14 of the SC & ST (POA) Act.
According to the learned SPP, there was total negligence on the part of the prosecution as well as the investigating agency in not examining the material witnesses; Such examination was essential for just decision in the instant case; Though 91 witnesses are cited, only 56 witnesses were examined; Some of the important witnesses are dropped without being examined etc., ; He relies upon the principles laid down by the Apex Court in AZHIRA HABIBULLAH SHEIKH AND ANOTEHR .vs. STATE OF GUJARAT AND OTHERS {(2004)4 SCC 158} ('popularly known as 'Best Bakery Case' for short) to 26 contend that the Presiding Officer of the trial Court is not a tape recorder and he cannot act as mute spectator; The Court below ought to have taken the initiative to ascertain the real cause behind it. On these among other grounds, the learned SPP prays for retrial/de novo trial. In the alternative, he submits that the trial Court be directed to give permission to the Prosecution to lead additional evidence in support of its case.
Sri Chandramouli, learned SPP fairly submits that the material on record may not be sufficient to bring home the guilt against the accused. Thus he argued for re-trial of the case or for recording additional evidence of the prosecution witnesses, as aforementioned.
It is contended by Sri Chandramouli, learned SPP that the trial Court is not justified in not recording the statement of the accused under Section 313 of Code of Criminal Procedure for giving opportunity to the accused to explain 27 the circumstances against them found in the evidence of PW.1.
9. Per contra, Sri Venkata Reddy, learned advocate appearing on behalf of Respondents Nos.1 to 19 and 21 to 25 in Criminal Appeal No.539/2013 contends that the Judgment and Order of acquittal passed by the trial Court is just and proper inasmuch as none of the material witnesses have supported the case of the prosecution; almost all the so called eye witnesses whose statements were recorded by the Police during the course of investigation were examined before the Court below and have turned hostile; all the witnesses for recovery of weapons, allegedly used for commission of the offence have turned hostile; even the near relatives of the deceased such as husband, wife, father, brother etc., have turned hostile; there was no threat on any of the prosecution witnesses as on the date of recording of the depositions before the Court below; the 28 incident had occurred on 11.3.2000, whereas the evidence was being recorded from 25.7.2006 i.e., after the lapse of about six years from the date of the incident; none of the witnesses have complained that they were under threat at any point of time during the recording of their depositions before the Court. He further submits that it is not open for the prosecution or one or two witnesses to come forward before this Court at the time of final hearing of this appeal in the month of July-2014 by contending that the witnesses were under threat and therefore they should be re-tried. He further submits due to weak evidence, de novo trial cannot be permitted or additional evidence cannot be permitted to be recorded by this Court to suit the convenience of the prosecution; The liberty of the accused persons is of paramount importance; The re-trial cannot be permitted by the Court as per the whims and fancies of the prosecution. On these among other grounds, Sri Venkata Reddy prays for dismissal of the appeals.
29
10. Sri K.A. Chandrashekara, learned advocate for the appellant in Criminal Appeal No.539/2013 argued supporting the arguments of Sri Chandramouli, learned SPP.
11. PW.1 is the complainant; he lodged the first information as per Ex.P1; he is the eye witness to the incident in question; he is treated hostile since he did not depose about the overt acts of any of the accused; he is the father of the deceased Sriramappa, Anjanappa, Papamma and husband of the deceased Ramakka.
PW.2 is another eye witness; he has turned hostile to the case of the prosecution; he has denied having witnessed the incident; he has claimed that he was not present in the village during the relevant time. 30
PW.3 is a witness for the scene of offence panchanama Ex.P8; He has turned hostile; He has deposed that Ex.P8 is not prepared in his presence.
PW.4 is a witness for the inquest mahazars Ex.P9 and Ex.P10. Ex.P9 is the inquest panchanama relating to the deceased Narasimhappa and Ex.P10 is the inquest panchanama relating to late Kunti Chikkapapanna. He has turned hostile by deposing that neither he has seen the dead bodies nor the contents of Ex.P9 and Ex.P10.
PW.5 is the witness for inquest panchanama Ex.P9 relating to the dead body of Narasimhappa. He has turned hostile. According to him, he has neither seen the dead bodies nor the contents of Ex.P9.
PW.6 is one more witness for inquest Mahazars Ex.P9 and Ex.P10. He has also turned hostile.
31
PW.7 is the elder brother of deceased Narasimhappa. He is the eye witness to the incident in question. He claims that he was not in station and he did not see how his brother died. He has turned hostile to the case of the prosecution.
PW.8 is the witness for the inquest panchanama Ex.P10 relating to the dead body of Chikkapapanna. He has also turned hostile to the case of the prosecution completely.
PW.9 is one more witness for inquest Mahazars Ex.P13, Ex.P14, Ex.P15 and Ex.P16. Ex.P13 to Ex.P16 are the inquest Mahazars relating to the dead bodies of Papamma, Ramakka, Sriramappa and Anjanappa respectively. PW.9 has turned hostile. He has deposed that he has neither seen the dead bodies nor is a witness for the inquest panchanamas.
32
PW.10 is the injured eye witness. Her wound certificate is at Ex.P85. She is the wife of the deceased Kunti Chikkapapanna. She has also turned hostile by deposing that she was in the house and did not come outside the house till next day morning. However she could only recognize the dead body of her husband.
PW.11 is one more witness for inquest mahazars Ex.P13, Ex.P14, Ex.P15 and Ex.P16. He has also turned hostile.
PW.12 is another witness for inquest mahazars Ex.P13, Ex.P14, Ex.P15 and Ex.P16. He has also turned hostile.
PW.13 is the witness for inquest panchanama Ex.P13 relating to the dead body of Subbamma. He has also turned hostile.
33
PW.14 is the eye witness as also witness for the inquest panchanama Ex.P13. He has denied having witnessed the incident. He has also denied that he has seen the dead body. He has denied the contents of Ex.P13.
PW.15 is the witness for recovery of Mo.1 - stick and Mo.2 - chopper at the instance of Accused Nos.19 and 20 respectively. He has turned hostile. According to him, nothing was recovered from the accused in his presence.
PW.16 is the witness for inquest mahazars Ex.P13, Ex.P14, Ex.P15 and Ex.P16. He has turned hostile.
PW.17 is the witness for recovery of club at the instance of Accused No.21 under Ex.P27, recovery of club at the instance of Accused No.17 under Ex.P28, recovery of club at the instance of Accused NO.11 under Ex.P29, recovery of club at the instance of Accused No.12 under Ex.P30 and recovery of chopper at the instance of Accused 34 No.24 under Ex.P31. He has also turned completely hostile by deposing that at no point of time, the said accused led him and the Police and produced the aforementioned weapons.
PW.18 is another witness for recovery panchanamas Ex.P27 to Ex.P31. He has also turned hostile.
PW.19 is the eye witness to the incident. Though he admits that he saw the houses of PW.1, Yamanna and Chikkapapanna on fire, however claims that he is not aware of the persons who set the houses on fire. He has also deposed that the Police have not recorded his statement.
PW.20 is another eye witness. His evidence is also on par with the evidence of PW.19. He has also turned hostile.
35
PW.21 is the eye witness. His evidence is also on par with the evidence of PW.19 and 20. He has also turned hostile.
PW.22 is the witness for recovery of MO.1 - stick and MO.2 - Matchu under Ex.P25 and Ex.P26 respectively at the instance of Accused Nos.19 and 20. He has turned hostile.
PW.23 is the witness for recovery of material objects like plastic can, sticks, axe and clubs at the instance of Accused Nos.9, 11, 12, 14, 16, 18 and 22 under Ex.P38 to Ex.P44. He has deposed that none of the accused produced weapons before the Police. He has also turned hostile.
PW.24 - Kadiramma is the injured eye witness. She is a neighbour of PW.1. Her wound certificate is at Ex.P87. She has deposed that she is not aware as to why the house of PW.1 was burnt. She has further denied that she has suffered injury to her leg due to pelting of stone by Accused No.1.
36
PW.25 is the eye witness. He is the inmate of the house of Kunti Chikkapapanna. He is the son of the deceased Kunti Chikkapapanna and grand son of PW.1. He is the victim of attack. However he claims that he is not aware as to how his father suffered burn injuries. He has denied having witnessed the incident.
PW.26 is another eye witness. She is the mother of the deceased Narasimhappa. She was also inmate of the house . Though she admits that her house was burnt, has denied that she has seen the attack. She did not know as to how her son died. According to her, she had been to coolie work and by the time she returned, the incident had already occurred. She has turned hostile.
PWs.27, 28 and 29 are three more eye witnesses. They have turned hostile by deposing that they have not seen the incident.
37
PW.30 is the witness for recovery of the material objects such as plastic can, sticks, axe and clubs at the instance of Accused Nos.9, 11, 12, 14, 16, 18 and 22 under Ex.P38 to Ex.P44. He is also recovery panch in respect of the aforementioned panchanamas. PW.30 has also turned hostile.
PW.31 is the circumstantial witness. He is the victim of earlier assault which had occurred on the previous day of the incident. However he has not supported the case of the prosecution. He has deposed that no such occurrence has taken place on the previous day of the incident. Since his statement recorded under Section 161 of Cr.PC was not available in the Court records, the Court below has not permitted this witness to turn hostile. Be that as it may, the fact remains that he has not supported the case of the prosecution.
38
PW.32 is another eye witness. He is the son of the deceased Subbamma. He has deposed regarding previous day's quarrel with Accused No.7 and Accused No.22 and lodging of complaint to that effect. However he has deposed that nobody accompanied him when he went to Police Station to lodge the complaint; That he was admitted to the hospital by the Police and on the next day when he returned to the village at 3.00 p.m., he saw the houses burnt and many persons dead. In effect, he has denied that he has seen the incident. He has turned hostile.
PW.33 is another eye witness. He has also turned hostile.
PW.34 is the circumstantial witness. He admits that he is the accused in the murder case of Venkataravanappa (the eldest son of the PW.1). He also admits that he is an accused in the criminal case initiated by deceased 39 Sriramappa alleging theft of cattle. However he has denied the rivalry between the parties. According to him, the incident has taken place when he was in the garden land and later he came to know that the persons belonging to Reddy community had burnt the houses belonging to Scheduled Caste and had murdered them. He has turned hostile.
PW.35 is the hearsay witness. He is the son of the deceased Subbamma. He has turned hostile to the case of the prosecution.
PWs.36, 37, 38, 39 and 40 are the eye witnesses to the incident. All of them have turned hostile. All these witnesses claim that they were out of station at the time of the incident.
PW.41 is the Assistant Fire Station Officer, Chintamani. He has deposed that on receipt of telephonic 40 information from one Krishnareddy about the incident, he alongwith CWs.56 to 59 went to Kambalpalli at about 8.50 p.m. with water tanker and other equipments. Prior thereto, CWs.50 to 55 went to the spot in another water tanker; The fire was doused in 40 minutes; Six dead bodies and two severely burnt persons were identified; The injured was sent to hospital by Gurumurthappa. He has further deposed that about 200 to 300 persons had gathered. The reports submitted by him to the higher officials were marked at Ex.P60 to Ex.P63.
PW.42 is the co-worker of Accused Nos.21 and 23. He has deposed that he is not aware as to whether Accused No.21 was on duty on 11.3.2000. However PW.42 has deposed that he was on leave on that day.
PW.43 is the doctor. He conducted autopsy over the dead body of Sriramappa. The Postmortem report is at Ex.P64.
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PW.44 is the Sub Inspector of Police. According to him, he searched for the accused, but in vein. His reports are at Ex.P65 to Ex.P70.
PW.45 is the doctor who conducted the postmortem examination over the dead bodies of deceased Ramakka and Papamma. The Postmortem reports are at Ex.P71 and Ex.P72 respectively.
PW.46 is the doctor who conducted postmortem examination over the dead body of Subbamma. The Postmortem report is at Ex.P73.
PW.47 is the Assistant Executive Engineer. He has deposed that there was power supply as on the date and time of incident and has given the report as per Ex.P74.
PW.48 is the Head Constable - Fire Brigade. He has deposed that on receiving telephonic message about the huts on fire, he went to the spot at 8.30 p.m. and 42 extinguished the fire with the assistance of the Police. He has deposed about dead bodies and shifting of one injured to the hospital.
PW.49 is the Police Constable. He is the Wireless Operator at Chintamani Police Station. He received intimation on 10.3.2000 at 10.50 p.m. that there was possibility of breach of peace at Kambalapalli and sought for additional reinforcement. Thereafter arrangements were made to deploy armed officials to Kencharlahalli.
PW.50 is the Police Constable attached to Kencharlahalli Police Station. He is the eye witness to the earlier incident relating to murder of Krishnareddy. He has deposed that on 11.3.2000 he alongwith CW.67 were deputed to bandobast duty and he witnessed the murder of Krishnareddy by the companions of Sriramappa (In this connection, Crime No.46/2000 was registered). Thereafter, about 70-80 persons armed with stones and clubs started 43 quarrelling with Sriramappa and others. This witness has deposed that at that time, apprehending possibility of danger to his life, he ran away towards Muniganahalli and informed Police Station telephonically about commotion; At about 9.30 p.m., he returned to Kambalapalli alongwith CPI, PSI and other officials. Upon going there, he saw huts of Sriramappa and three others, were set on fire; He had also seen six dead bodies. He has further deposed that he cannot say as to whether the accused persons were among the group of 70 to 80 persons.
PW.51 is the Sub Inspector of Kencharlahalli Police Station. He scribed the first information as per Ex.P1 and registered FIR. He received intimation about murder of Krishnareddy (relating to Crime No.46/2000), went alongwith PW.54 to Kambalpalli and saw the houses on fire and six dead bodies. Thereafter he recorded the statement of PW.1 as per Ex.P1 and registered the crime. He conducted spot mahazar of scene of offence as per 44 Ex.P2 and seized Mos.3 to 7. In the cross-examination, this witness has deposed that he registered the murder case of Krishnareddy at the first instance in Crime No.46/2000.
PW.52 is the Sub Inspector of Chintamani Town Police Station. He has deposed about removal of six dead bodies with the assistance of Fire Fighters and sending of such dead bodies for postmortem examination.
PW.53 is the Sub-Inspector of of Police who arrested Accused No.1 to 8 and Accused Nos.26 to 32.
PW.54 is the Circle Inspector of Police attached Chintamani Police Station. He has deposed that he received information about the murder of Krishnareddy and thereafter setting the houses on fire at Kambalapalli; He sought for help of fire fighters and additional force and they came to the spot at 8.45 p.m.; At the spot, he saw 3 to 4 houses on fire and about 150 persons armed with deadly 45 weapons were abusing by taking the name of the caste; Immediately thereafter, the mob ran away from the scene; The fire was doused at 10.10 p.m.; PWs.24, 39 and Laxmamma who were injured in the incident, were sent to hospital. He has deposed about the death of six persons due to burns. He has recorded the statements of certain of the witnesses on 12.3.2000. He has also deposed about the production of Accused Nos.1 to 8 and 26 to 32 before him by PW.53. He identified the accused before the Court. He handed over further investigation to CW.90.
PW.55 is the Police Inspector attached to D.C.R.E. He searched for the accused.
PW.56 is the Assistant Sub Inspector of Chintamani Rural Police Station. He conducted inquest panchanama on the dead body of Anjanappa.
CW.91 - Dy. SP has conducted further investigation and laid the charge sheet. He arrested certain of the 46 accused persons. The order sheet maintained by the trial Court dated 5.10.2006 discloses that CW.91 (Investigating Officer) who laid the charge sheet had died.
12. It is relevant to note that the wound certificates of Pws.10,17, 24 and 39 were marked at Ex.P85, Ex.P84, Ex.P87 and Ex.P86 respectively by consent of the defence. It is also relevant to note that CW.89 and CW.90 who were Dy.SPs and who had conducted part of the investigation were not examined before the Court. Non-bailable warrants were issued against them by the Court. Despite issuance of Non-bailable warrants, the prosecution was not able to secure the presence of these witnesses. Hence the prosecution evidence was closed before the trial Court on 19.10.2006.
13. This is the most unfortunate case in which seven persons have lost their lives and four persons were injured. The crime is committed because of caste rivalry in a tiny 47 village of Chintamani taluk. The tussle between the people belonging to Vokkaliga (Reddy community) and Scheduled Caste persons has led to brutal incident. The records reveal that when one Krishna Reddy and another person were standing in the bus station, certain of the persons belonging to Scheduled Caste alighted from the bus at Kambalapalli village on 11.3.2000 at 7.30 p.m. and on seeing Krishnareddy, such persons belonging to Scheduled Caste due to previous enmity assaulted Krishnareddy with weapons, consequent upon which Krishnareddy lost his life, which is the subject matter of Crime No.46/2000 of Kencharlahalli Police Station. Immediately after the death of Krishnareddy near the bus stop, Vokkaliga (Reddy) community people after knowing that Scheduled Caste people of Kambalapalli murdered Krishnareddy, grouped themselves in large numbers and set three houses of persons belonging to Scheduled Caste of Kambalapalli village on fire, consequent upon which seven Scheduled 48 Caste persons died. It is disheartening to note that despite such ghastly crime, none of the above witnesses including the father, mother, brother and sister of the deceased have supported the case of the prosecution.
14. Totally names of 25 eye witnesses were cited in the charge sheet. Out of them, PWs.1, 2,7,10,14, 19, 20,21,24,25, 26, 27, 28, 29, 32,33, 36, 37, 38,39,40 and 50 are examined. Thus it is clear that 22 eye witnesses out of 25 eye witnesses were examined before the trial Court. Hence it is clear that only three eye-witnesses were not examined though cited. All the three eye witnesses who were not examined viz., PWs,29,30 and 39 were dead prior to recording the evidence. Consequently, it is clear that the prosecution has examined all the eye witnesses who are alive at the time of recording the deposition. Therefore it cannot be said that the Prosecutor or the investigating agency has not proceeded fairly before the 49 trial Court. All the eye witnesses so examined, except PW.1, have not supported the case of the prosecution. PW.1 has supported the case of the prosecution only to certain extent. There cannot be any dispute that in criminal case the evidence of one witness who is reliable, if found consistent with the case of the prosecution, can be relied upon to bring home the guilt against the accused. Therefore we have scrutinized the evidence of PW.1 in detail and carefully.
15. PW.1 has deposed that, in Kambalapalli, there are about 30 houses belonging to Scheduled Caste community (to which he belongs to) and there are about 60 to 70 houses belonging to Reddy community; All the accused are from Reddy community; The houses of Reddy community in the village are by the side of houses of Scheduled Caste persons; The houses of some of these accused are near the houses of Scheduled Caste persons 50 and houses of some other accused are bit far away. PW.1 admits that his son - Venkataramanappa was murdered two years earlier to the incident in question and he suspected the hands of Reddy community people in the murder of Venkataramanappa. However the case ended in acquittal. After the death of his son -
Venkataramanappa, PW.1 and his family were residing in the same village i.e., Kambalapaalli village and he never left the village at any point of time. He further deposes in the examination-in-chief that the Tahsildar and Police Officer never came to his village for peace meeting and at no point of time, he had left the village or shifted the residence to some other place. He has also denied about the incident that had occurred on 10.3.2000 i.e., one day prior to the incident in question. He further deposes that his wife Ramakka, sons Sriramappa and Anjanappa and daughter Papamma, Kunti Chikkapapanna and Narasimhappa s/o Gudiyamana expired 5 to 6 years prior to 51 recording of his deposition. They have died in the galata that took place in their village at about 7 p.m. on the relevant day. He has further deposed that in the galata about 50 to 60 persons had come near his house and amongst 50 to 60 persons, the accused who were present before the Court were also there; All the accused were in the mob and some of them threw stones towards his house; He cannot say who threw the stones; Thereafter one Mr. Gangulappa took him to his another house and made him to stay there; Himself and Gangulappa sat in another house; He came out after the Police came to the village and by that time, the houses were set on fire. In the examination-in- chief itself, he admits that he cannot say who all had burnt the houses. He deposes that the Police took him to the Police Station in the jeep and brought him back at 8 a.m. on the next day to the village and showed the dead bodies of his wife, daughter and sons and also the bodies of Kuntipapanna, Narasimhappa and Subbamma; Their 52 bodies were burnt. He has further deposed that the houses of Chikkapapanna and Narasimhappa were also burnt; Narasimhappa died in his house; Subbamma died in her house and Kunti Papapanna died in the house of PW.1; After the Police came, he went to the spot and saw the dead bodies and at that point of time, the Fire Fighters came and extinguished the fire. PW.1 reiterated that he cannot say as to who set the houses on fire; on the next day after burial of the bodies, the Police recorded his statement; It was in the afternoon i.e., at the time of taking meals; He did not say about the names of the persons who set the houses on fire, before the Police. Again he has deposed that he told the names of all those persons and those persons are present before the Court amongst the accused. He has further deposed that one Kadiramma and Lakshmana sustained injuries in the galata and he does not know as to who caused the injuries to them as he did not see the incident; The mob came 53 towards house at about 7 p.m. and it is already dark at that time; There was electric pole near the scene; But the electricity supply was not there and the bulb was not glowing; However he identified the people in the mob because they are from his village. Further, he says that he has not seen which of the persons in the mob did what overt act and therefore he has not told about the same before the Police. Since he did not support the case of the prosecution in material particulars, he was treated as hostile witness and was cross examined by the prosecution.
In the cross-examination by the Public Prosecutor, PW.1 has admitted that he has stated before the Police that the accused persons viz., Maddireddy (Accused No.9), Anjaneya Reddy (Accused No.2) and Byrareddy poured kerosene on the doors and windows of the houses on the relevant day; He has also told before the Police that these accused persons bolted the doors of the houses from 54 outside and brought the paddy hey and put it near the doors and windows and lit fire. He has further deposed that he has stated that himself and Gangulappa went inside another house. However he has deposed that he has not stated before the Police that Subbamma, Mangamma and Narasamma went inside the house of Yamanna as per Ex.P3; He saw Accused No.7 - Venkatareddy s/o Maddireddy pouring kerosene through the skylight opening and also lighting fire to the hey and putting the same inside the house through the skylight opening; He saw through the window of the house in which he was hiding with Gangulappa. In the cross-examination by the Public Prosecutor, PW.1 has deposed to certain extent against Accused Nos.2,7 and 9.
However in the cross-examination by the defence, PW.1 has admitted that since about 10 years he has very weak eye sight and he can move from place to place with 55 the assistance of somebody; He alone cannot move; Because of such weak eye sight, he goes inside his house before sunset and won't come out till daybreak; Even during the day time, he is not able to identify the persons on account of his weak eye sight and therefore there is no question of he identifying the persons during the night time. He further admits that the Police took his Left Thumb impression Mark (LTM) on 4 to 5 papers at Kambalapalli village, Bangalore, Chennai and Kolar; He is unable to say on which document he affixed his LTM and on which date; He is not able to identify the thumb impression found on Ex.P1 (complaint); He was unable to see the LTM found on Ex.P2 also. He admits that he does not know as to what is written in Ex.P1 and Ex.P2 since he is an illiterate; On the date of the incident, during night hours the Police took him to Chintamani in their jeep; He spent the whole night in the Police Station; On the next day morning, the Police took him to their village and left him at the place 56 where dead bodies were lying. He further admits that when he was in the Police Station at Chintamani, the Police did not obtain his LTM on any paper; Neither the Police asked him anything at that time about the incident nor he did tell anything to them. He further admits that there are 52 houses belonging to Adikarnataka and Adidravidas (Scheduled Caste and Scheduled Tribe); The houses belonging to the people of Adikarantaka and Adidravida are more in number than the houses belonging to Reddy community. He further admits that among the accused, there are Mohammadans, Gollas and Balajigas. He also admits that number of people belonging to radical organizations from Andhra Pradesh have come to their village and neighbouring villages and asking them to join their organizations. He further admits that from the house in which himself and Gangulappa were hiding, the road in front of his house is not visible and he cannot say as to what all happened in front of his house as he was sitting 57 inside the hind portion of the house. He has further admitted in the cross-examination that he has not told before the Police as to who from the roof poured kerosene into the house and lit fire; He has also not stated before the Police that Venkatareddy s/o Maddireddy poured kerosene into the house through the skylight opening and lit fire to the hey and threw it into the house. The witness has volunteered that he did not say to the Police, but many persons who had seen might have told it to the Police. PW.1 has further deposed that in his village, the people belonging to Reddy community are about 500 to 600 in number. It is specifically admitted that when the Police took his complaint and obtained his LTM on the complaint, he did not tell the Police that Accused No.9 - Maddireddy and others brought kerosene in cans and poured on the doors and windows and put the hey and set the fire. 58
16. On careful evaluation of the evidence of PW.1, it is clear that PW.1 has blown hot and cold during his deposition. He admits that he was having weak eye sight and that he used to take the assistance of a person whenever he goes outside the house; He never used to come out of the house during night time. He further admitted that even during day time, he is unable to identify persons on account of weak eye sight and therefore there is no question of he identifying the accused during the night time. Though in the cross-examination, he has deposed that the accused were found in the group of 50 to 60 persons, he has admitted in the examination-in-chief itself that he cannot say the names of persons who set the houses on fire. He has further clearly admitted that he does not know as to who set the houses on fire. It is the specific version of PW.1 that when galata started, he was taken by Gangulappa to a different house and he was made to stay in the said house till the Police came to the 59 village. He came to know about setting of the fire and the death of persons only after the Police came to the spot and only after he came out of the house of Gangulappa. At one breath, he says that he cannot say who all burnt the house and what are all the overt acts of each of the accused; in another breath, he says that some of the accused threw stones towards his house, but he is not able to identify such persons who threw stones. He has further admitted that he has not seen which of the persons in the mob did what overt acts and therefore he has not told about the same before the Police. However in the cross-examination by the Public Prosecutor, he has stated about the overt acts of Accused No.2 - Anjaneya Reddy, Accused No.7 - Venkatareddy and Accused No.9 - Maddireddy. But in the cross-examination by the defence, he has clarified that he did not tell the Police that Maddireddy and others poured kerosene and set the houses on fire. He has further admitted that he has not stated before the Police that 60 Venkatareddy s/o Maddireddy poured kerosene into the house through the skylight opening and lit fire to the hay and threw it into the house. He has further deposed clearly that from the house in which himself and Gangulappa were hiding, the road in front of his house is not visible and he cannot say what all happened in front of his house. In view of the same, we are of the opinion that the trial Court is justified in disbelieving the version of PW.1. Since the version of PW.1 is not consistent and he has changed his version several times during his deposition and as he himself is not sure as to whether the complaint Ex.P1 is lodged by him or not and as he has refused to admit the LTM found on the complaint, it cannot be safe to rely upon his version to convict the accused. We find that the evidence of PW.1 is vague and contradictory. It is shaky and in effect, his evidence practically does not fulfill the requirement of believable version.
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Admittedly, according to PW.1, 50 to 60 persons were there in the mob; All such persons were indulging in rioting; All of them came in a group. Though in the examination-in-chief, PW.1 admits that all the accused belong to Reddy community, in the cross-examination he says that amongst the accused, there are Mohammadens, Gollas and Balajigas. According to him, the persons belonging to Reddy community alone had grievance against his family. The quarrel was in between the Scheduled Caste and Scheduled Tribe people on one side and the Reddy community people on the otherside. Since amongst the accused, there are Mohammadens, Gollas and Balajigas and as there is no specific material to remove grain from the chaff or to separate the real culprit from the group of people who had gathered there, it will not be safe for the Court to rely solely on the evidence of PW.1 to bring home the guilt against the accused.
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17. In this context, it is relevant to refer the recent judgment of the Apex Court in the case of RANJIT SINGH .vs. STATE OF M.P. reported in (2011)2 SCC (crl.)227, wherein it is observed thus:
"27. Thus, from the above, the law on the issue remains that in a case involving an unlawful assembly with a very large number of persons, there is no rule of law that states that there cannot be any conviction on the testimony of a sole eyewitness, unless that the Court is of the view that the testimony of such sole eyewitness is not reliable. Though generally it is a rule of prudence followed by the courts that a conviction may not be sustained if it is not supported by two or more witnesses who give a consistent account of the incident, in a fit case the court may believe a reliable sole eyewitness if in his testimony he makes specific reference to the identity of the individual and his specific overt acts in the incident. The rule of requirement of more than one witness applies only in a case 63 where a witness deposes in a general and vague manner, or in the case of a riot."
(Emphasis Supplied) While observing so, the Apex Court has considered various other judgments of the Apex Court including the decision in the case of MASALTI .vs. STATE OF U.P. (AIR 1965 SC 202). In that matter, the question had arisen as to whether version of more than one witness is necessary in order to bring home the guilt against the members of large unlawful assembly. The Apex Court in the case of RANJIT SINGH .vs. STATE OF M.P. {(2011)2 SCC (crl.) 227} considering all the earlier judgments on the point held that there is no rule of law which states that there cannot be any conviction on the testimony of a sole eyewitness, unless that Court is of the view that the testimony of such sole eyewitness is not reliable; Though generally it is a rule of prudence followed by the courts that a conviction may 64 not be sustained if it is not supported by two or more witnesses who give a consistent account of the incident, in a fit case the court may believe a reliable sole eye witness if in his testimony he makes specific reference to the identity of the individual and his specific overt acts in the incident; It is specifically observed by the Apex Court that the rule of requirement of more than one witness applies only in a case where a witness deposes in a general and vague manner or in the case of a riot.
In the case on hand, we find that PW.1 has deposed in general and vague manner. Though he has deposed that he has stated before the Police that Accused Nos.2,9 and 7 poured kerosene on the door and windows, bolted the houses from outside and set the houses on fire, but in the cross-examination, he completely exonerates Accused Nos.7 and 9 by deposing that he has not stated as mentioned supra before the Police and that he has got weak 65 eye sight and that he cannot identify any person during night. Moreover in the examination-in-chief itself PW.1 has deposed that he cannot say as to who set the houses on fire; that he had not seen which of the persons in the mob had indulged in which overtact and therefore he did not tell about the incident before the Police. The evidence of PW.1 is an unreliable version. His version is vague and general in nature. He is not serious about the real culprits or as to who actually was the offender. He blows hot and cold at the same. Therefore the rule of requirement of more than one witness, as held by the Apex Court in the case of RANJIT SINGH .vs. STATE OF M.P. {(2011)2 SCC (crl.) 227} applies to this case also. Moreover the case on hand is a case of riot also. It is the specific case of the prosecution that more than 50 to 60 persons gathered at the scene of offence and created galata and thereafter three houses were set on fire and thus it is a clear case of rioting. Moreover, which of the real offenders were part of 66 that group of more than sixty persons, is not known. The Apex Court in the case of Ranjit Singh cited supra has categorically held that the rule of requirement of more than one witness applies even in the case of riot also.
18. In our considered opinion, the evidence of PW.1 is not only unreliable, but also his evidence is vague and general in nature. Since it is a case of riot also and in view of shaky evidence of PW.1, the defence is justified in arguing that the Court may expect corroboration for the evidence of PW.1 for coming to the conclusion at least against one or two accused. In our considered opinion, it may not be safe to rely solely rely on the evidence of PW.1 to conclude against any of the accused.
19. Unfortunately absolutely no material muchless legal material is found on record to corroborate the case of the prosecution. As aforementioned, none of the 22 eye- 67 witnesses have supported the case of the prosecution. Further, though PW.1 tried to depose something against certain of the accused, his evidence is unbelievable since it is vague, shaky and general in nature. Since none of the eye witnesses have supported the case of the prosecution, what remains to be considered is the evidence of other circumstantial witnesses.
PW.3 is a witness for the scene of offence panchanama - Ex.P8. He has turned hostile. He has
deposed that Ex.P8 was prepared in his absence.
PWs.4,5,6,8,9, 11, 12, 13, 14 and 15 are the witnesses for inquest Mahazars Ex.P9, Ex.P10, Ex.P13, Ex.P14, Ex.P15 and Ex.P16. All of them have turned hostile. All of them have deposed that they have neither seen the dead bodies nor the contents of the inquest Mahazars. Thus the evidence of these witnesses is of no use to the case of the prosecution.
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PWs.15,17, 18, 22, 23 and 30 are the witnesses for the recovery Mahazars Ex.P25 to Ex.P31, Ex.P38 to Ex.P44. Under these recovery panchanamas, club, chopper and axe apart from plastic can were stated to have been seized by the Police at the instance of certain of the accused. All these panchas for recovery of weapons as well as plastic can have turned hostile. These witnesses have deposed that at no point of time, the accused led the Police as well as panchas to the particular spot to produce the weapons. In view of the same, the trial Court is justified in disbelieving the recovery of weapons and the plastic can at the instance of the accused.
20. The other circumstance is "motive". As aforementioned, the eye witnesses were supposed to depose about the motive also. But, since none of the eye witnesses have supported the case of the prosecution, they did not depose about the aspect of motive also. Apart 69 from the same, PW.31 was examined specially to depose about the earlier assault which occurred on the previous day i.e., 10.3.2000. As per the case of the prosecution, certain incident took place in the village on 10.3.2000. In the said incident, Narasimhappa (PW.31) and Shankarappa (PW.32 ) were assaulted by Mr. Venkatareddy (Accused No.7) and others and in that regard PWs.31 and 32 were admitted to the hospital. Thus PWs.31 and 32 were examined to depose about the previous day incident. PW.31 has completely given gobye to such case of the prosecution. He has not supported the version of the prosecution that such incident had occurred on the previous day of the incident in question. However PW.32 though has turned hostile in respect of his ocular testimony relating to the incident in question, has deposed about the previous day quarrel with Accused Nos.7 and 22 and lodging of the complaint to that effect. However he has deposed that none accompanied him when he went to the Police Station 70 to lodge the complaint. This witness has admitted in the cross-examination by the counsel for the accused that he is the accused in the murder case of Krishna Reddy i.e., in S.C. No.141/2000 (pertaining to Crime No.46/2000 of Kencharlahalli Police Station). PW.34, another witness who is supposed to depose about the motive, has also turned hostile. He has admitted that he is the accused in the case relating to murder of Venkataramanappa, the eldest son of PW.1. However he has denied the rivalry between the parties. Having regard to the aforementioned material with regard to the aspect of motive, we find that such circumstance is also not satisfactorily proved by the prosecution. However it is the case of the prosecution that Reddy community people in the village were against the family members of PW.1. Firstly, as aforementioned, the material on record may not be sufficient to prove the circumstance of motive. Secondly, even assuming that there is some material to show that there was rivalry 71 between the two groups, the same itself may not be sufficient to bring home the guilt against any of the accused only on the ground that there existed motive.
21. Sri Chandramouli, learned SPP relying upon sub- rule (8) of Chapter VII(B) of the Karnataka Criminal Rules of Practice, 1968 submits that if the Judge or Magistrate does not understand the language in which the evidence is given or when he cannot interpret it in the language understood by the accused, he may require any competent person to be interpreter and record his sworn statement that he knows the two languages which he has to interpret and that he will truly and correctly interpret the same. He further submits that under Sections 278 and 279 of Code of Criminal Procedure, the evidence of each witness recorded shall be read over to him in the presence of the accused and if need be, corrected; Whenever any evidence is given in a language not understood by the accused, which shall 72 be interpreted to him in the open Court in the language understood by him; If a person appears by a Pleader and the evidence is given in a language other than the language of the Court, and not understood by the Pleader, it shall be interpreted to such pleader in that language. Based on these provisions, Sri Chandramouli submits that the procedure as mentioned in the aforementioned provisions is not followed.
Such submission cannot be accepted at this appellate stage. Section 167 of the Indian Evidence Act, 1872 makes it clear that the improper admission or rejection of evidence shall not be ground for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independent of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected 73 evidence had been received, it ought not have varied the decision.
22. In the matter on hand also, we find that while recording the evidence of Venkataryappa (PW.1), Mr. S. Satish, advocate who knows Telugu, English and Kannada languages is appointed as interpreter. Said interpreter was also administered oath. Thus it is clear that sub-rule (8) of Chapter VII-B of the Karnataka Criminal Rules of Practice, 1968 is practically followed. Interpreter was also administered oath. The Court was satisfied that the said Interpreter knows Telugu language also. After recording the evidence of each of the witnesses, the Presiding Officer has read over the depositions and after the witness accepted it as correct, the same is signed by the Presiding Officer. It is also mentioned in the deposition that the same was typed to the dictation of the Presiding Officer in the open Court. Moreover objection was not at all taken 74 before the trial Court while recording the evidence. Since this Court is satisfied that the procedure adopted by the trial Court is just and proper, we do not propose to accept the hyper-technical ground raised by the SPP at this belated stage.
Moreover as aforementioned, even if such procedure were not to be followed to certain extent, the same could not have varied the decision of the Court. There is nothing on record to show that the prejudice is caused either to the witnesses or to the accused because of non-recording of the sworn statement of the Interpreter. We have also clarified that the oath was administered to the Interpreter also and that he knew Telugu language. Moreover, the judgment in the matter would not have varied, since all the witnesses have turned hostile.
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23. There cannot be any dispute that the cases relating to SC & ST (POA) Act are to be tried by the Special Court established under Section 14 of the said Act. For the purpose of providing speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district, a Court of Session to be a Special Court to try the offences under the SC & ST (POA) Act. During the relevant time, II Addl. Sessions Court, Kolar was designated as the Special Court to try SC & ST cases. Undisputedly, the charges were framed by the designated Court. The Judge who recorded the depositions of the witnesses was the Presiding officer by name Mr. Mahipal Desai. He was the Prl. District & Sessions Judge, Kolar during the relevant time. However he was given concurrent jurisdiction (charge) to try the matters relating to II Addl. Sessions Court, Kolar also. Since he was holding the concurrent Charge of II Addl. Sessions Court, Kolar and as 76 he was deemed to be the Presiding Officer of the Special Court established under Section 14 of the SC & ST (POA) Act, he has rightly proceeded to record the deposition of the witnesses. Ultimately, the matter is decided by Sri K. Shivaram, the Presiding Officer of the II Addl. District & Sessions Judge, Kolar after assuming charge of the said Court subsequently. Hence the contention of the SPP that the Presiding Officer did not have jurisdiction to record the depositions cannot be accepted.
24. We are also unable to accept the contention of the learned SPP that the matter needs to be re-tried because many of the witnesses were not examined. As aforementioned, 25 eye-witnesses were cited in the charge sheet. Out of them, 22 eye-witnesses were examined and the remaining 3 eye-witnesses had died by then. All the eye-witnesses who were examined for the purpose of proving the aspect of recovery of weapons at the instance 77 of the accused have turned hostile. The witnesses for the scene of offence panchanama have turned hostile. The witnesses for all the inquest Panchanamas have turned hostile. Thus almost all the important witnesses were examined by the Prosecutor, but they have not supported the case of the prosecution. Except the official witnesses (PWs.41 to 56), all other witnesses have turned hostile. Hence we are of the opinion that no useful purpose will be served even if opportunity is given to the prosecution witnesses to lead further evidence. Further, no valid grounds are forthcoming to permit the prosecution to lead further evidence. Merely because certain of the unimportant witnesses are not examined, the Court cannot come to the aid of the prosecution by giving opportunity for recording the additional evidence. Additional evidence cannot be permitted to be recorded as per the whims and fancies of the prosecution. The Court should be satisfied that there is deliberate attempt on the part of the 78 prosecuting agency to scuttle the process of justice. In the matter on hand, we find that the prosecuting agency has tried its best before the trial Court by examining all the eye-witnesses who were alive, witnesses for recovery Mahazars, inquest Mahazars and scene of offence panchanama. All such witnesses have timed hostile.
25. Learned SPP further argued that certain of the members of the Fire Extinguishing machinery though were cited, were not examined before the Court and their evidence would have helped the case of the prosecution.
Such submission also cannot be accepted. As aforementioned, PW.41 is the Assistant Fire Station Officer who went alongwith the Fire Extinguishing Team. He was part of the said team. PW.48 is the Head Constable - Fire Brigade. Both of them have deposed that on receipt of the telephonic information from one Krishnareddy about the 79 incident, they alongwith 10 other persons went to Kambalapalli at about 8.30 to 8.50 p.m. with two water tanks and other equipments and fire was doused in 40 minutes; six dead bodies and two severely burnt bodies were found; The injured was sent to hospital. From the aforementioned evidence, it is clear that two groups of fire brigade personnel, one headed by PW.41 and other headed by PW.48 went to the spot. They started from the office only after getting telephonic information. This means only after the incident, the telephone message went to the Fire Station Officer. Only thereafter, the Fire Brigade came to the spot and extinguished the fire. Even assuming that other members of the Fire Extinguishing Team were to be examined by the prosecution, no difference would have been caused inasmuch as they would have also deposed that they came to the spot only after the incident was over and that they extinguished the fire.
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26. In the "Best Bakery case", the Apex Court under the peculiar facts and circumstances of that case has directed re-trial of the matter by another Court under the jurisdiction of the Bombay High Court. Based on facts and circumstances of that case, the Apex Court has observed that if one even cursorily glances through the records of the case, one gets a feeling that the justice-delivery system was being taken for a ride and literally allowed to be absued, misused and mutilated by subterfuge; The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and brining to book those who were responsible for the crime; The Public Prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court; The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The Apex Court has further observed that one gets 81 a feeling that there was really no seriousness in the State's approach in assailing the trial Court's judgment. But in the facts and circumstances of this case, as aforementioned, all the eye-witnesses who were alive during the relevant point of time for examination, were examined. The witnesses for recovery panchanama, scene of offence panchanama and inquest panchanama were examined. All of them have turned hostile. Except the aforementioned witnesses, all other witnesses are official witnesses. They have come to the spot only after the incident. None of the eye-witnesses including father, mother, sister and brother of the deceased have come forward to support the case of the prosecution. The trial Court could not have compelled any witness to depose in a particular manner. Under these circumstances, this is not a fit case either for granting permission to the Prosecution to lead further evidence or for de novo trial. 82
27. In the absence of any legal material against the accused, the trial Court is justified in acquitting the accused. Be that as it may, even on re-appreciating the material on record, we do not find any ground to interfere with the Judgment and Order of acquittal. Hence no interference is called for.
Appeals fail and the same stand dismissed.
Sd/-
JUDGE Sd/-
JUDGE Gss/-