Karnataka High Court
State Of Karnataka vs Sri Yellappa on 16 December, 2022
CRL.A.248/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BL E MR. JUST ICE SR EENIVAS HARISH KU MAR
AND
THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.248 OF 2015
BETWEEN:
1. STATE OF KARNATAKA
THROUGH CPI ANEKAL CIRCLE
ANEKAL-562106. ... APPELLANT
(BY SRI K.S. ABHIJITH, HCGP)
AND:
1. SRI YELLAPPA
S/O LATE MUNIYAPPA
AGED ABUT 54 YEARS
OCC: COOLIE
R/AT BANDENALLASANDRA VILLAGE
JIGANI HOBLI
ANEKAL TALUK-562106
2. SRI M. NAGARAJU
S/O MUNIYAPPA
AGED ABOUT 54 YEARS
OCC: COOLIE
R/AT BANDENALLASANDRA VILLAGE,
JIGANI HOBLI
ANEKAL TALUK-562106
3. SRI KRISHNAPPA
S/O MUNIYAPPA
AGED ABOUT 39 YARS
OCC: REAL ESTATE
CRL.A.248/2015
2
R/AT BANDENALLASANDRA VILLAGE,
JIGANI HOBLI
ANEKAL TALUK-562106
4. ACCUSED NO.4 AND 5 DEAD
(ABATED) ...RESPONDENTS
(VIDE ORDER DATED 09.09.2022, APPEAL AGAINST
R1 IS ABATED;
SRI M. NARAYANA REDDY, ADVOCATE FOR R2 AND R3)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER DATED 20.11.2014
PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT, SIT AT ANEKAL IN
S.C.NO.29/2010 ACQUITTING ACCUSED/RESPONDENT FOR THE
OFFENCES PUNISHABLE UNDER SECTION 143, 148, 302, 307
READ WITH SECTION 149 OF IPC AND ETC,.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 10.10.2022 AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The State has challenged the judgment passed in S.C.No.29/2010, acquitting accused Nos.1 to 3 of the offences punishable under Sections 143, 148, 302, 307 read with Section 149 of IPC.
2. Respondents-1 to 3 herein were accused Nos.1 to 3 before the trial court. During the pendency of this appeal, the first respondent was reported to be CRL.A.248/2015 3 dead. During the trial, accused Nos.4 and 5 were reported to be dead. Hence, case against them stands abated.
3. The case pleaded by the prosecution is that 15 days prior to 14.01.2010, sons of the accused were playing cricket in front of PW-1's house and while playing, the cricket ball damaged the window glasses of house of PW-1. PW1 questioned it with accused No.2, which created ill-will against each other. On 14.01.2010 at about 8.00 p.m., when the deceased was returning home on Bandenallasandra tank bund, the accused quarreled with him and inflicted injuries on the person of his body.
4. Upon returning home, he informed the same to his family members. At 8.30 p.m., PW-1, his wife PW-18/Rathnamma and his son PW-20/Sudhakar and the deceased had gone near house of the accused and enquired as to why they assaulted deceased Diwakar. At this juncture, accused formed an unlawful assembly CRL.A.248/2015 4 armed with weapons viz., stone, clubs, knife, long, rod and axe committed rioting and quarreled against them. They pushed the deceased to ground, accused No.2 inflicted injury on the back of the deceased with a knife, accused No.3 inflicted injury with a knife, accused No.4 assaulted with a rod, accused No.5 inflicted injuries all over the body of the deceased with a club. When the deceased fell down to the drain and accused No.1 threw a stone on the head of the deceased. When PW-23/Rajashekar attempted to rescue the deceased, accused No.2 assaulted him with axe and accused No.3 assaulted him with long and inflicted injuries and attempted to commit his murder. The deceased was brought to Government Hospital, Anekal to save his life, but he was declared brought dead. PW-23 was also admitted to the hospital. Hence on the basis of complaint of PW-1, law was set into motion. CW-29/Marikalegowda, the CPI of Anekal Circle investigated the matter and filed the charge sheet.
CRL.A.248/20155
5. We have heard the arguments of Sri. K.S .Abhijith, learned HCGP for the State and Sri.Narayana Reddy, learned counsel for the respondents/accused. We have perused the impugned judgment, evidence led by both sides and other relevant papers placed before us.
6. For acquitting the accused ,the trial court has assigned reasons that, the death of the deceased was homicidal, and prosecution has failed to prove the motive; PWs-1, 18 and 20 are interested and related witnesses. More than 20 persons witnessed the incident and none of them was examined; PW-23 sustained injury due to self-fall, PWs-14 and 15 have turned hostile, contradictions and omissions elicited in the cross-examination of other witnesses and that there is inconsistency with medical evidence and oral evidence. The injury sustained by accused No.4 was not explained. Ex.D7/charge sheet was filed in Cr. No 26/2010 against the deceased and PW-23, wherein CRL.A.248/2015 6 the complainant and his family members were the real aggressors; The accused Nos.1 to 3 were not present at the spot when the incident had taken place; Prosecution evidence lacks corroboration. The trial court has categorically held that for want of independent material witnesses and also for reason that the evidence is not reliable and since the prosecution has failed to prove the alleged offences beyond reasonable doubt, it has extended benefit of doubt to the accused and has recorded acquittal.
7. It has been argued by the learned HCGP that the conclusion reached by the trial court is contrary to the material evidence. The trial court has failed to appreciate the evidence of injured eye-witness/PW-23. The evidence supporting the motive is not appreciated. The trial court has failed to take note of the fact that the official witnesses have no ill-will against the accused. Merely because of the fact that the witnesses are relatives, they cannot be CRL.A.248/2015 7 said to be untrustworthy, and the evidence placed clearly inspires confidence. In spite of sufficient evidence being available and the intention of the accused to commit the offence in the background of cricket ball dispute being brought on record, the trial court wrongly proceeded to acquit the accused. He tries to persuade us to reverse the impugned judgment and to record conviction against the accused.
8. On the contrary, Sri.Narayana Reddy, learned counsel for the respondents/accused argued with vehemence that the prosecution case started with the cricket ball issue; the accused No.1 and 4 were in their house, complainant and his family members went there to take revenge and they are the real aggressors; they inflicted injuries on the body of accused No.4 for which they had faced the trial for the offences punishable under Section 324, 307, 504 read with Section 34 of IPC, this situation was made use of CRL.A.248/2015 8 for implicating the accused in vengeance. PW-23 is injured eye-witness, whose evidence explain that due to self-fall he had sustained injury; nobody including the accused inflicted any injury to him. He also explains that mob chased the deceased and PW-23 on seeing them inflicting injury to accused No.4. There is no evidence to prove the motive, playing of the cricket, damaging the window glasses, the road leading to the police station is located in front of accused house. The prosecution has relied on testimony of interested witnesses and they are not independent eye-witnesses. Though 20 neighbours witnessed the incident, none of them found place in the witness list. In order to avoid their prosecution complainant and his family members tagged the death of the deceased against the accused. The trial court rightly held that PWs-1, 18 and 20 cannot be believed and supported the impugned judgment. CRL.A.248/2015 9
9. Having heard the arguments of both sides, we have given our anxious consideration to the evidence of each of the eye-witnesses. Let us examine the weight of the prosecution evidence.
10. The testimony of PW-1 is that on 31.12.2009, the children of the accused while playing cricket nearby his house, the ball hit and broke the window glass. He advised them not to play the cricket, but they did not oblige. On 14.01.2010 at 8.30 p.m., while the deceased was returning home on the tank bund of Bandenallasandra, the accused have intercepted him, torn his cloths and assaulted him. He returned home with shoulder injuries, reported it to family members.
11. He further deposes that while he, his wife/ PW18, son/PW20 and the deceased were going to file police complaint, accused stopped them near their house and asked reason for filing the complaint. When he explained the reason, the accused No.1 attacked CRL.A.248/2015 10 the deceased with a stone and inflicted injury on the right portion of head and accused No.4 attacked the deceased with M.O.9/rod and inflicted injury on the head, accused No.3 attacked the deceased with a machete and long/M.O.8 and inflicted injury on the left cheek and left neck, accused No.3 attacked the deceased with a long inflicted injuries on the fingers, accused No.5 attacked the deceased with eucalyptus club and inflicted injuries on the body of the deceased and accused No.2 attacked the deceased with a knife and inflicted injury on the neck, cheeks and back of the deceased. When the deceased collapsed, accused No.1 pulled him to drain and threw a stone on his face. People gathered to witness the entire episode. PW-23/Rajashekar tried to pacify them, accused No.3 with a long inflicted injury on his head. The deceased was brought to Suhas Hospital, Jigani, he was declared brought dead. After shifting the dead body to Anekal Government Hospital he set the law into motion by filing Ex.P9 complaint. Later Bannerghatta CRL.A.248/2015 11 Police visited the spot, conducted inspection, collected sample soil and bloodstained soil, seized weapon of offence Viz., Axe, Katthi, Club lying at spot.
12. The testimony of PW-18 shows that the deceased came home to inform the assault against him at 8.00 p.m on 14.01.2010 by the accused at tank bund. They resolved to file police complaint. Hence at 8.30 p.m., she, PW-1, PW20 and deceased were going to police station and on the way, i.e near the house of the accused, the accused had formed a group abusing them near their house. They obstructed them, accused No.1 assaulted on the head with a stone, accused no.2 inflicted injury with a kathi and axe on the right neck, nose, eyebrows and right cheek, accused no.3 with a long inflicted injury on left neck and head accused no.4 with rod inflicted injuries on the head and accused no.5 with a long inflicted injury over the body of the deceased. Due to such act of the accused the deceased collapsed on the ground, CRL.A.248/2015 12 his brain had come out; blood was spilled over the ground. Accused had pushed the deceased to the drain; accused no.5 threw stone on his face, which resulted in his eye ball protruding out. PW-23 came to pacify, accused No.3 with a long inflicted bleeding injury on his head. The deceased was taken to Suhas Hospital, the Doctor declared him brought dead.
13. Testimony of PW-20 shows on 14.01.2010 at 8.30 p.m. while deceased was returning home from the land, near the pond accused had inflicted him with injuries, torn his cloths and sent him in bare-body. On his return he briefed it to the family members, who resolved to file police complaint. He, PW-1, 18 and deceased were going to police station. Near the house of Muniyappa, accused stopped them, PW-1 asked accused No.5 the reason for assault on deceased, they did not allow them to move, accused No.1 threw stone on the left ear of the deceased, accused No.2 with a katthi inflicted injuries on the right neck, back and CRL.A.248/2015 13 right hand, accused No.3 assaulted on the left neck, left hand, middle of the head and forehead with a long of the deceased. He too sustained injures with axe on the nose, on the middle of forehead and beneath the right eye. Accused no.4 inflicted injury on the head with iron rod and all over body and accused No.5 with a club assaulted all over the body of the deceased. On account of the injuries, the deceased collapsed at the spot, the accused pushed him to the drainage and accused No.1 put stone on the face of the deceased. PW-23 tried to pacify the quarrel, accused No.3 inflicted injury on his head. They took the deceased to Suhas Hospital, he was declared brought dead. He also point out ill-will on account of cricket ball incident prompted the accused to commit murder of the deceased.
14. PW-23 is injured eye-witness. His testimony shows that on 14.10.2010 between 8 to 8.30 p.m., after hearing hue and cry, he came out of his house, CRL.A.248/2015 14 saw deceased Diwakar inflicting injuries on the head of accused No.4 with an axe and A4 fell down. Deceased Diwakar ran away from that place and a mob of 50 to 60 local people followed him. He also deposes that when he ran to see as to what is happening, he slipped into drain and sustained head injury and was taken for treatment to a nearby clinic. He declined to identify the M.Os and resiled from his previous statement as at Ex.P12. He has testified that that he has not sustained injury in the hands of accused No.4. Contrarily, the deceased only inflicted head injury to the accused no.4. He also points out the absence of accused No.2, 3 and 5 at the spot during the incident.
15. PW-14 deposed that house of his sister is situated near the house of PW22, on 14.01.2010 at about 8.30 p.m., he had been to the house of his sister, from there went to the spot, saw galata was over, dead body of the deceased lying at the spot. He CRL.A.248/2015 15 was not a witness to incident nor identifies any of the material objects and retracts from his Ex.P7 previous statement. However he did depose that cricket ball incident was cause for the incident.
16. PW-15 is also eye witness, his testimony shows nothing in support of the prosecution as he resile from his Ex.P8 previous statement denying the prosecution version.
17. PW-22 is the star witness, in his presence there was extra judicial confession by the accused about the incident, but his testimony shows on 15.01.2010 at about 8.00 p.m., he came to his house in his Maruti Omni, saw gathering of people, PW-18 requested him to carry deceased to hospital, he carried him to Suhas Hospital at Jigani. In front of the hospital, the doctor declared him brought dead. His evidence is incomplete as he was not subjected to cross-examination.
CRL.A.248/201516
18. PW-8 Dr.V.Krishnan was the doctor who has treated PW-23/Rajashekar. His testimony shows that on 14.01.2010 at 9.30 p.m, he examined PW-23 who had come with a history of assault, noticed stab injury over frontal portion of head and abrasion over palmar aspect of right hand, treated him and issued Ex.P3/wound certificate that they are simple injuries. In his cross-examination, he has admitted the suggestion that if a person in a rioting group falls on a sharp object, there is a possibility of sustaining such an injury. This opinion supports the statement of PW-23 is self-fall.
19. PW-7 Dr.Anitha is the Medical Officer of Government Hospital, Anekal. She has deposed that she has done autopsy on 15.01.2010, and has noticed following injuries on the body of deceased:
EXTERNAL INJURIES:
1. Stab wound measuring 4 inches x 2 inch x bone deep on the nose (Completely torn) underlying CRL.A.248/2015 17 nasal bone fracture and fracture of underlying petious temporal bone. (Comminuted).
2. Stab wound on right side of cheek, measuring 2 inches x 1 inch x bone deep (underlying tooth exfoliated due to the stab wound) underlying maxilla comminuted fracture and underlying upper mandible fracture.
3. Chop wound below angle of left side of mandible measuring 5 inches long x 1 inch wide x bone deep underlying lower mandible fracture.
4. Scalp incised wound of left side of scalp on upper forehead measuring 3 cm x 1.5 cm x scalp deep.
5. Scalp incised wound on upper aspect of centre of head measuring 4 cm x 1 cm x scalp deep.
6. Incised wound measuring 4 cm x 1 cm x subcutaneous deep extending from right side of face (cheek) to right side of neck.
7. Bruises on right shoulder and right forearm (Bluish in colour).
8. Right index finger chop wound 2 inches x 1 cm x bone deep, underlying proximal phalynx fractured.
9. Left hand on palmar aspect 6 cm x 1 cm x bone deep, no e/o fracture.
10. Bruises bluish red in colour on both lower limbs near knee joint and right thigh present.CRL.A.248/2015 18
Internal injuries:
1) Comminuted fracture skull, extending from mid point of coronal suture to 6 inches from right ear.
2) Hemorrhage present over the fractured area;
3) Underlying brain matter beneath the fracture site has hemorrhages, spinal cord normal.
Post autopsy, she gave her opinion that the cause of death is on account of shock, due to hemorrhage as a result of the head injury secondary to the multiple stab and chop wounds on the vital areas. Ex.P2 is the autopsy report with her opinion.
20. PW-3/Muniraju is proposed as inquest and spot pancha. He did support both the mahazar and has attested Ex.P4 and P10. He was not subjected to cross-examination; hence his incomplete testimony is of no consequence to the case.
21. PW-4 Seetharamu, PW-5 Basavaraju and PW-6 Murugesh are panch witnesses to the seizure of M.Os.8 and 9 under Ex.P1/mahazar. In the witness CRL.A.248/2015 19 box, they resiled from the prosecution version asserting that they are not aware of it.
22. PW-11 Krishnappa and PW-10 Appaji are the panch witnesses to the inquest at Ex.P4. On oath, they fully support it by withstanding the test of cross examination.
23. The prosecution also relied on the testimony of officials witnesses Viz.,. PW-25 K. Vishwanath, the PSI, who registered Ex.P13/FIR on the basis of Ex.P9/complaint. PW-16 R.V.Ajay Kumar Police Constable, who carried the FIR to Court. PW-9 Chandrashekar, constable who carried the dead body of the deceased to autopsy. PW-10 Appaji, the constable, who apprehended accused No.1. PW-17 Marigowda, the Head Constable, who apprehended accused nos.2, 3 and 5. PW-19/Shivakumar, constable, apprehended accused No.4. PW-24 Durgegowda, the Constable, who assisted other Policemen in apprehending, accused Nos.1 to 4. PW- CRL.A.248/2015 20 13 Venkataraju, the Junior Engineer, prepared Ex.P6 spot sketch. PW-21 S.R.Gopal, the Panchayat Secretary issued khata extract as per Ex.P11. They supported the prosecution on oath in the witness box by withstanding the rigor of cross examination.
24. As discussed by us above, the medical evidence explains the injuries on the body of the deceased. The defence did not dispute it as also the cause of death and time of death. Secondary hypothesis suggested by the defence that mob lynching was cause for the deceased to sustain such injuries even if accepted, it has no impact on the prosecution version. The evidence on record persuades us to accept that the deceased met with homicidal death.
25. We have referred the prosecution evidence supra, the case now stands on the eye-witness count for which the prosecution relied upon the testimony of PWs-1, 13, 14, 18, 20 and 23. As PWs-13, 14 and 23 CRL.A.248/2015 21 did not support the prosecution and have resiled from their statement, there remains the testimony of PWs- 1, 18 and 20, who are admittedly blood relatives. As observed from the evidence of PW-20, he is the person leading the prosecution against the accused.
26. In order to appreciate the evidence further, it is necessary to refer to the defence and also what was transpired in the counter case, in which accused No.4 was the complainant and PWs-1, 18, 20, 23 and other family members were the accused persons.
27. There is no dispute as to counter case registered in connection with assault against accused No.4. Ex.D7 is the copy of the charge sheet filed in C.C.No.493/2010, Ex.D7(a) is the index sheet of the charge sheet and Ex.D8 is the statement of one Susheelamma, she was cited as CW-3 in the said case. In the counter case, allegation was made against the deceased and PW-23 with specific overt act. As seen from the records, PW-18, one Umesha, CRL.A.248/2015 22 Venkataramanappa, Ravindra and Telegu Venkatesh were also shown as accused in the FIR.
28. The allegation against the accused persons in C.C.No.493/2010 was that, while accused No.4 was watching TV inside his house, these accused i.e Diwakara and Rajashekar lurked inside with an axe (kodali) and a club and inflicted injuries on his head and all over the body and attempted to commit his murder. The charge sheet was filed against the deceased and PW-23 only. Since Diwakar was dead, PW-23 has faced the trial in S.C.No.5005/2013 which ended in acquittal. Ex.D7(a) points out list of witnesses cited viz., CW-1/Shankara-accused No.4, CW-2/Ravindra, CW-3/Susheelamma, CW- 4/Gowramma, CW-5/Umesha, CW-6/Venkatesh and CW-7/ Venkataramanappa. This explains presence of these people at the time of incident, but names of these persons are conspicuously absent in the witness list in present case.
CRL.A.248/201523
29. It is pertinent to note from the statement of Susheelamma that the deceased was holding axe in his hand and assaulted on the head of accused No.4 in an attempt to kill him. She saw club in the hands of PW-23 inflicting injuries all over the body of accused No.4. There was no cross-examination on the part of the prosecution to deny this or to explain the circumstances. It takes support from PW-7/Dr.Anitha, who conducted autopsy, wherein it has been noted that left hand of the deceased is in cadaveric span as if holding a sickle / weapon.
30. Taking all these aspects into consideration, let us appreciate the evidence of PW-1, PW-18 and PW-20. The testimony of PW-8 shows presence of following local people at the spot whose names were not found place in the charge sheet, viz., Thotadappa, Thotadappa's wife, Venkataramanappa, Venkataramanappa's wife Rathnamma, Venkataswamy, Jayamma, Nagappa, Manjula, CRL.A.248/2015 24 Shankarappa, Rajamma, Papanna, Renukamma, Gullamma, Muniyappa, Prakasha, Kavithamma, Rajashekara and others. Testimony of PW-18 shows, she would wear saree only when she goes out of village and in the house, she wears nighty. She has deposed that on the date of incident, she was wearing nighty when she was going to file complaint at the police station. She was also inflicted with injuries on her both hands, with blood oozing out, her cloths were stained with blood, but she did not take treatment, and also she has not stated it before the police nor gave her bloodstained clothes to the police. These aspects play very important role as, in the course of cross-examination, she admitted that Bandenallasandra village is a small village, if anybody shouts in the village, it will be heard by the entire villagers, 25 to 30 houses are in the neighbourhood. At page-9 of her evidence, she has made a specific admission about the incident referred in Ex.D7 wherein it refers as follows:
CRL.A.248/201525
"±ÀAPÀgÀ QgÀÄazÀAxÀ ±À§ÞªÀ£ÀÄß PÉý ±ÀAPÀgÀ£À CPÀÌ¥ÀPÀÌzÀ ªÀÄ£ÉAiÀĪÀgÀÄ ªÀÄvÀÄÛ D ¯ÉÃOmï£À°è ªÁ¹¸ÀĪÀAvÀºÀ d£ÀgÀÄ J®ègÀÆ Nr §AzÀgÀÄ JAzÀgÉ ¤d"
This is with reference to accused no.4 shouting for help and fellow villagers rushing to the spot for his rescue. This corroborates the evidence of PW-23, there was a huge gathering chasing away the deceased from the vicinity of the house of accused no.4. Interestingly PW-1 denies that no such thing happened which makes it clear that he is not ready to accept the truth. Hence, contradictions between the statements of PW-1 and PW-18 has been elicited and demonstrated by the defence.
31. It is pertinent to note that in the evidence of PW-18, that she states to have seen the eyes of the deceased protruding out, weapons used to assault him were stuck to his body, brain matters having come out of the skull. This is contrary to the recitals of inquest or autopsy report which have not supported it. It is the improvement she makes and thereby her evidence CRL.A.248/2015 26 is totally unreliable and her testimony fails to inspire confidence.
32. PW-20 Sudhakar, as observed above, is the person leading the prosecution. Several omissions have been elicited from his mouth which points out that he wants to exaggerate the facts so as to make believe that the case is proved against the accused. It is interesting to note that he did not refer or admit the incident narrated under Ex.D7 and D8. The defence proposes that he was not at all present at the time of alleged incident. This takes us to the evidence of PW-18 that they straightaway went to the house of accused to question the assault against the deceased.
33. PW-20 says they were obstructed by the accused on the way to police station. Ex.D12 is the photo where the road leading to the police station is explained. If we take the evidence of PW-21, the Panchayat Secretary who referring to Ex.D4/Photograph explains that this is the main road CRL.A.248/2015 27 in which one has to go to Police Station. Ex.P6 sketch shows road leading to police station. The spot where body was found is an interior road not leading to police station. If the evidence of PW-21 and PW-20 is conjointly read along with Exs.D4, D-12 and spot sketch at Ex.P6, clearly points out that the road in front of the house of the accused no.4 was not leading to Police Station. This explains that PW-20 and his parents were not going to the Police Station, but all went to the house of accused no.4 only.
34. PW-1 in the cross-examination stated that except PW-23, rest of the villagers were standing near the gate of their respective houses and witnessing the incident. Per contra, we see the presence of PW-18 and PW-20. As per statement of PW-18, all the villagers were at the spot, and as per PW-23, mob chased away the deceased by hearing the cry of accused no.4.
CRL.A.248/201528
35. PW-1 admits that he resides in the new house and his old house was let out and in order to go to Jigani or Bannerghatta, he has to go on the main road and not on the road in front of the house of the accused. So road in front of house of the accused was leading to Police Station. This explains that PW-1, PW-18 and PW-20 were not going to the Police Station, whereas they went to the house of the accused; they lurked into the house, caught hold of accused No.4 when he was watching T.V and it was the deceased and PW-23 who have inflicted injury all over the body of accused No.4. This explains and supports the defence that who were the real aggressors.
36. Evidence also explain presence of police at the spot soon before filing of the complaint by 10.00 p.m., and complaint was filed at 11.00 pm. This explains before filing of the complaint, Police have commenced the investigation. In this regard, it is CRL.A.248/2015 29 relevant to note the evidence of PW-1, which reads as under:
" £ÁªÀÅ ªÉÆzÀ®Ä DgÉÆæUÀ¼À£ÀÄß PÉüÉÆÃt £ÀAvÀgÀ ¥Éưøï oÁuÉUÉ ºÉÆÃUÉÆÃt JAzÀÄ CAzÀÄPÉÆArzÉݪÀÅ. ¤.¦.9 ¦gÁå¢AiÀÄ°è ¥Éưøï oÁuÉUÉ £ÁªÀÅ ºÉÆÃUÀÄwÛgÀ¨ÉÃPÁzÀgÉ F WÀl£É £ÀqɬÄvÀÄ JAzÀÄ £ÀªÀÄÆzÀÄ ªÀiÁr®è. £ÁªÀÅ ªÉÆzÀ®Ä DgÉÆæ-5 ªÀÄĤAiÀÄ¥Àà£ÀªÀgÀ ªÀÄ£ÉUÉ ºÉÆÃzɪÀÅ. C°è DgÉÆæ-4 ªÀÄvÀÄÛ 5 gÀªÀgÀÄ ªÀiÁvÀæ EzÉݪÀÅ."
37. If this statement is appreciated, the absence of accused No.3 at the place of incident is prominent as he himself admits in his evidence which reads as under:
"£Á£ÀÄ ªÁ¹¸ÀÄwÛgÀĪÀ §AqÉ £À®è¸ÀAzÀæ UÁæªÀÄzÀ PÁ¯ÉÆäAiÀÄ°è DgÉÆæ-3 PÀȵÀÚ¥Àà£À ªÁ¸ÀzÀ ªÀÄ£É E®è JAzÀgÉ ¤d."
Hence, absence of accused No.3 at the place of incident at the relevant point of time is confirmed by PW-1.
38. On a total evaluation of the evidence of PWs- 1, 18 and 20, the evidence it is clear that they did not intend to go to Police Station, but all of them CRL.A.248/2015 30 straightaway have gone to the house of the accused and a quarrel took place amongst them in which the deceased inflicted injury on accused No.4. As discussed above, if accused No.4 had suffered head injury and a mob of 50-60 villagers had chased away the deceased, the allegation against accused No.4 that, he had inflicted injuries on the deceased with an iron rod is hard to accept.
39. In order to appreciate such a quality of evidence, the Hon'ble Apex Court in S.Govindaraju - vs- State of Karnataka - (2013) 15 SCC 315, at para-23, held as under:
"23. It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion CRL.A.248/2015 31 about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with the other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt."
40. In view of the circumstances discussed above, even though there is a little evidence from PWs-1, 18 and 20 in view of omissions, contradictions, exaggerations and improvements, it is tough to believe their statement as there is a serious doubt about its truthfulness. No doubt, testimony of CRL.A.248/2015 32 interested witnesses can be based to record conviction but there must be a fairness in their evidence and that fairness should be very clear and cogent and there should not be any bias and their credibility shall be unimpeachable. When the credibility of the important witnesses has been impeached in the manner referred to above, it is very difficult to accept them as eye-witnesses.
41. The Hon'ble Apex Court in Mohan alias Srinivas alias Seena alias Tailor Seena -vs- State of Karnataka - 2022(3) KCCR 2283 (SC), at para-20, held as under:
"20. Section 378 Cr.P.C. enables the State to prefer an appeal against an order of acquittal. Section 384 Cr.P.C. speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering CRL.A.248/2015 33 its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal."
42. In the above circumstances, we are of the opinion that the trial court has rightly come to the conclusion that the evidence of important witnesses cannot be believed and it has exercised its judicial discretion in accepting the version of the defence and in extending benefit of doubt in favour of accused. The trial court is right in holding that prosecution has failed to prove the alleged offences beyond reasonable CRL.A.248/2015 34 doubt. Thus, under the facts and circumstances of the case, the impugned judgment does not call for interference by this Court.
43. In the result, the appeal deserves to be dismissed. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KNM/-