It appears that the prosecution witnesses after naming some of the assailants, left the field wide open, so as to be able to implicate 'others' by stating that they too has assaulted along with 'others'. Therefore, unless the identity of 'others' and their participation in the crime is conclusively established from the evidence on record, we are of the opinion that those accused who were roped in later as falling in the 'other' category, cannot be but given the benefit of doubt, though we accept that the occurrence took place in the manner suggested by the prosecution and the substratum of the prosecution case as correct.
2. According to the prosecution case the deceased Gowdappagouda, his son Shankargouda and another son Shivanagouda (PW 6), Basangouda (PW 3), Rajashekhar (PW 11) and Paravatareddy (PW 9) were living together in a house belonging to an advocate, Shri M. Nagappa. All these persons were required to give attendance at Sadar Bazar Police Station, Raichur twice a day, in the morning at about 8 a.m. and in the evening at about 7 p.m. in compliance with the directions of the court. They had also been directed to stay at Raichur proper. These directions had been given to them in a complaint case during the trial of a criminal case filed by A- 18. The wife of Shivanagouda (PW 6) and the wife of deceased Shankargouda were also staying at Raichur to take care of the household duties. Proceedings under Section 107 CrPC against deceased Gowdappagouda and his party members on the one side and Shankargouda (A13) and the members of his party on the other side were also pending in the court of Taluka Executive Magistrate at Devadurga. There were other criminal and civil proceedings pending in various courts between the parties. The relationship between the parties were totally strained and there was pronounced hostility between the two factions on account of various criminal and civil proceedings pending between them.
3. On the date of the occurrence i.e. April 13, 1979 at about 7.10 p.m. the deceased Gowdappagouda along with his son Shankargouda and the other son Shivanagouda (PW 6) had gone to Sadar Bazar Police Station, Raichur to mark their attendance. Basangouda (PW 3), Mallikarjuna (PW 10), Paravatareddy (PW 9) and Rajashekhar (PW 11) had accompanied them to the Police Station. After marking their attendance at the Sadar Bazar Police Station, the aforesaid persons proceeded towards their rented house at Raichur. Shankargouda was ahead of the remaining party and he was holding the hand of the son of his son, Rajashekhar PW 11. Near Petlaburj road, the accused persons emerged from the side of a ditch variously armed with daggers etc. and attacked the deceased Shankargouda, Gowdappagouda and Basangouda with their respective weapons. Gowdappagouda and his son Shankargouda died as a result of the injuries inflicted on them. Basangouda PW 3 also received some injuries and so did Rajashekhar PW 11. Shivanagouda PW 6, Mallikarjuna PW 10 and Parvatareddy PW 9 ran away for their safety from the spot. Rajashekhar PW 11 after receiving the injury on his finger ran to his house to inform his mother and aunt about the occurrence. All the accused, A-1 to A- 18, thereafter escaped with the weapons in their hands. Rajashekhar PW 11 returned to the spot along with his mother Chinamma and an aunt. Police Sub-Inspector of Sadar Bazar Police Station was standing outside the Police Station, regulating the traffic, when he learnt from some rickshawalas and tangawalas that murders had taken place near Petlaburj. He rushed to the spot along with two police constables. On
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reaching Petlaburj he found the dead bodies of Gowdappagouda and Shankargouda lying in a pool of blood. Basangouda PW 3 was also lying down as a result of the injury received by him. A crowd of people had gathered at the place of occurrence. PW 20 sent a constable to bring jeep from the Police Station and removed PW 3, Basangouda to the District Hospital reaching there at about 7.40 p.m. The injury of Basangouda PW 3 was attended to by Dr Shamsunder Rao PW 5 who admitted Basangouda PW 3 as an indoor patient. Dr Rao PW 5 told the sub-inspector Mallanagouda PW 20 that the condition of Basanagouda PW 3 was very serious. Sub- inspector Mallanagouda PW 20 thereupon recorded the statement, Ex. P-3 as narrated by the injured Basanagouda PW 3 to him. He obtained the signatures of Basangouda PW 3 on the statement Ex. P-3 (to be used as a dying declaration if need arises) and went back to the Sadar Bazar Police Station for registration of the case. FIR Ex. P-21 was accordingly registered for offenses under Sections 147, 148, 323, 302/149 IPC. FIR Ex. P-21, along with the statement of Basanagouda, Ex. P-3, was sent to the Deputy Superintendent of Police and the Chief Judicial Magistrate. Sub-Inspector Mallanagouda PW 20 thereafter handed over the case papers to the Incharge (Crime) Police Inspector Ghouse Mohiuddin PW 21 for further investigation. Executive Magistrate Mohammed Alauddin PW 8 was contacted and requested to come to the hospital to record the "dying declaration" of Basangouda PW 3 as it was suspected that he might die as a result of the injury received by him according to the opinion of Dr Shamsunder Rao, PW 5. The Executive Magistrate PW 8 accordingly reached the District Hospital at about 10 p.m. and recorded the statement of Basanagouda PW 3 treating it to be a 'dying declaration' in the presence of Dr Rao PW 5. After completing the investigation and seizing various articles from the place of occurrence, all the accused, A-1 to A-18 were sent up for trial as noticed in the earlier part of this judgment. Since, Basanagouda PW 3 survived the attack of murder, the Chief Judicial Magistrate on the request of the prosecuting agency, framed a charge against the accused persons for an offence under Sections 307/149 IPC also.
4. At the trial the prosecution examined PWs 1 to 25 and produced Ex. P-1 to P-49 beside material objects 1 to 28 including the weapons recovered pursuant to the statements made under Section 27, Evidence Act, The accused persons, A- 1 to A-18 in their statements under Section 313 IPC admitted that there was long-standing enmity and hostility between them on the one hand and the deceased persons, PW 3, PW 6 and PW 9 on the other hand and that there were cases and counter-,cases pending between the parties but denied the prosecution allegations or their involvement in the crime and pleaded false implication.
5. Mr H.R. Janardhan, the learned Senior Advocate, appearing for the State, submitted that the grounds on which the High Court had recorded the order of acquittal of A-1 to A-11 and upheld the order of acquittal of A-12 to A-18 were erroneous and that the High Court had not scrutinised the evidence carefully and had adopted an easy course of throwing out the entire prosecution case on the basis of minor discrepancies in the prosecution evidence. Learned counsel submitted that the reasons given by the High Court were not only perverse but also unreasonable. He criticised the manner in which the evidence of the eyewitnesses had been brushed aside and argued that the High Court was 108
required to separate the chaff from the grain and since it had failed to do so, two cold-blooded murders had gone unpunished. With a view to support his assertion, learned counsel took us through the relevant portion of the material evidence on record.
6. Mr S.C. Birla, learned counsel appearing for the respondents, in both the appeals, on the other hand supported the findings of the High Court and pleaded that the findings of acquittal recorded by the court were not perverse and even if another view could be taken on the basis of the appreciation of evidence, this Court may not interfere with an order of acquittal while dealing with an appeal under Article 136 of the Constitution of India.
7. We have given our thoughtful consideration to the submissions made at the Bar.
8. This Court while dealing with an appeal, after granting leave under Article 136 of the Constitution, does not, generally speaking, reappraise the evidence which has been considered and analysed by two courts below but this is a self-imposed restriction by this Court and not a statutory limitation. The jurisdiction vested in this Court under Article 136 is not to be confused with an ordinary statutory appellate jurisdiction. It is discretionary and much wider in scope and reach, but wider the discretionary power, greater is the need to exercise it with great care and caution and sparingly. The power of this Court while dealing with an appeal against acquittal, after granting leave under Article 136, is in no way different than its power in hearing an appeal against conviction and sentence and the Court can with a view to do justice, in the peculiar facts and circumstances of a case, make an independent appraisal of the evidence on the record, so as to determine the guilt or otherwise of the accused. It can go into all questions of fact and law and reach its own conclusion based on the evidence on record. Of course, this Court gives due weight and consideration to the reasoning of the courts below while dealing with an appeal brought before it on leave under Article 136 of the Constitution of India. It is in the light of the above-settled procedural safeguards, which are in-built in Article 136, that we shall deal with the two appeals filed by the State on leave being granted under Article 136.
9. We shall first take up the State appeal against the acquittal of A-12 to A-18.
10. The learned Sessions Judge after a careful appraisal of the evidence on record found that the name of A-12 (one of the accused in the first set of accused A-1 to A-12) was not mentioned by PW 3 Basangouda in his complaint Ex. P-3, the basis of the FIR. It was also found that the name of A-12 had been later on introduced, on the next day morning, when the supplementary statements of PW 6 and PW 9 were recorded by PW 21. The trial court noticed that even during the inquest proceedings, the name of A-12 was not mentioned as an assailant by any of the witnesses present there. The learned Sessions Judge then noticed that although Basangouda PW 3 stated at the trial that he had disclosed to Dr Shamsunder Rao PW 5, the names of his assailant, including A12, his testimony was given a lie by PW 5, who stated that the name of A-12, as one of the assailants, was not disclosed to him by PW 3. After discussing the evidence, the learned Sessions Judge found that the name of A-12 had been 109
subsequently introduced by various witnesses and that the witnesses were "falsely implicating A-12 only because he is the son-in-law of deceased Gopalpur Shivanagouda, being on inimical terms to harass him". A-12, was, therefore, given the benefit of doubt and acquitted by the learned Sessions Judge.
11. The learned Sessions Judge then dealt with the case of A-13 to A-18. It was noticed that though the complainant PW 3 in the FIR had implicated all the accused, A-1 to A-18 as involved in the commission of the crime, during the investigation, the investigating agency had found that A- 13 to A-18 were not in any way involved in the crime. Consequently, when the charge-sheet was submitted to the court of the Chief Judicial Magistrate at Raichur, it was submitted only against A-1 to A-12, deleting the names of A- 13 to A-18. It appears that PW 3 Basangouda thereupon had lodged a private complaint protesting that police had deliberately not filed the charge-sheet against A-13 to A-
18. The learned Chief Judicial Magistrate, Raichur thereafter took cognizance of the complaint and issued process against A-13 to A-18. These accused persons (A-13 to A-18) challenged the order of the Chief Judicial Magistrate in the High Court of Karnataka, Bangalore. The High Court set aside the order of the Chief Judicial Magistrate taking cognizance of the case against A-13 to A18 finding that the material on the record did not justify issuance of any process against A-13 to A-18. Basangouda PW 3, however, did not let the case rest there. He brought the matter to this Court through Criminal Appeal No. 709 of 1980. That appeal was allowed and setting aside the order of the High Court, this Court confirmed the order of the Chief Judicial Magistrate, Raichur. The Chief Judicial Magistrate, Raichur, thereupon committed A-13 to A-18 also to the Court of Session and that is how the trial of A-13 to A-18 was taken up along with trial of A1 to A12 and two different charge-sheets and commitment orders drawn up in respect of one and the same occurrence.
12. The learned Sessions Judge scrutinized the evidence of PW 3, PW 6, PW 9, PW 10 and PW 11 with a view to determine the involvement or otherwise of A-13 to A-18. It was found that there were material contradictions in the testimony of these witnesses as regards the involvement of A-13 to A-1 8. The trial court found that from the evidence produced by the prosecution itself, it had been established that A- 13 to A- 1 8 were present at Deodurg police station and that at about 8.00 p.m. on the day of the occurrence they were present near a hotel at the bus-stand at Deodurg. PW 21 Ghouse Mohiuddin and other senior police officials, including the Deputy Superintendent of Police and the Superintendent of Police, had satisfied themselves from the records available at Deodurg police station about the presence of the accused persons (A-13 to A18) at Deodurg police station and their attendance had been recorded by the PSI Zahur at the police station near about the time of occurrence. The learned Sessions Judge thus found that the presence of A- 13 to A-1 8 at about 7.10 p.m. at the place of occurrence was highly improbable. He accordingly gave benefit of doubt to A-13 to A-18 and acquitted them of all the charges.
13. The High Court also considered and appraised the evidence of various witnesses and came to the conclusion that A-12 to A-18 had been introduced as an afterthought by the prosecution witnesses on account of their relationship with other accused because of the pronounced enmity between the parties. The
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High Court rightly frowned upon the manner in which certain inadmissible confessions of A-13 to A-18, Ex. P-22 to P-27, were recorded during their interrogation on April 19, 1979 by PW 21, and after recording a finding that not only were such statements hit by Sections 24, 25 and 26 of the Evidence Act, they were also not voluntary and had been introduced only to rope in A13 to A18, against whom there was no other evidence available to the prosecution rejected those statements. The High Court agreed with the learned Sessions Judge that the prosecution had failed to establish, by any cogent and reliable evidence, the participation of A- 12 to A-1 8 in the crime and upheld the acquittal of A-13 to A-18. The High Court did not accept the plea of alibi set up by A-13 to A-18 but came to a definite conclusion that "the prosecution has failed to establish any offence against any one of the accused persons" (A-13 to A-18).
14. Appearing before us learned counsel for the State of Karnataka was unable to point out any infirmity whatsoever in the findings recorded by the Sessions Judge and the High Court insofar as the involvement of A-12 to A-18 is concerned. The conclusions arrived at by both the courts below as regards the doubtful nature of the prosecution case against them are based on proper appreciation of evidence and cannot be said to be unreasonable much less perverse. Both the courts below found that the case against A-12 to A- 18 had not been established beyond a reasonable doubt. We agree with the appreciation of evidence by the courts below and the conclusions drawn therefrom insofar as A-12 to A-18 are concerned. We are of the opinion that no cause has been made out for interference with the order of acquittal of A- 12 to A-18 as recorded by the High Court, while confirming the order of acquittal against A- 13 to A-18 as made by the learned Sessions Judge. The State appeal insofar as A-12 to A-18 are concerned, therefore, has no merits and is dismissed as such.
15. We shall now take up the State appeal against the acquittal of A-1 to A-11.
16. Whereas the learned Sessions Judge had convicted A-1 to A-11 for various offenses, the High Court acquitted them. The learned Sessions Judge noticed that PW 3 Basangouda had given different versions at different stages of the investigation and the trial and that the facts mentioned by PW 3 in his complaint Ex. P-3 were improved upon in his version given before the Taluka Executive Magistrate recorded on the night of the occurrence and further improved during his deposition in the trial court. The trial court also recorded that PW 3 Basangouda is a partisan and a deeply interested witness. In spite of all these infirmities, the trial court after careful scrutiny of the evidence relied upon the substratum of his evidence and after noticing the corroboration from other evidence on the record, came to the conclusion that the prosecution had established the case against A-1 to A-11 beyond a reasonable doubt and that the prosecution case stood 'proved' against them and accordingly convicted A-1 to A-1 1, while acquitting A-12 to A-18. The High Court, on the other hand after noticing some infirmities in the testimonies of PW 3, PW 6, PW 9 and PW 10, threw out the prosecution case altogether without making any serious effort to sift the chaff from the grain. The course adopted by the High Court has not appealed to us. Though this Court, as noticed earlier, does not in an appeal brought by special leave under Article 136 of the Constitution, generally speaking, embark upon reappreciation of the evidence, yet in the peculiar facts
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and circumstances of this case and the manner in which the case has been dealt with by the High Court, we have made an independent appraisal of the material evidence on the record.
17. We find that PW 3, PW 6, PW 9, PW IO and PW II are interested witnesses and belong to the party of the deceased. This has put us on our guard to carefully scrutinise their testimony. In our opinion, in the state of evidence which is on the record, it would not be safe to rely upon the evidence of these witnesses without finding independent corroboration for their testimony. So far as PW 3 is concerned,The was injured during the assault and the injury received by him was, according to medical evidence, of a serious nature. He has given a consistent version of the occurrence, though at different stages of the case he appears to have improved upon his testimony and implicated different accused, as involved in the assault on the deceased and himself. He is a stamped witness. Normally he would not let go the real culprits, though the possibility of roping in some more 'enemies' cannot be ruled out. The discrepancies and improvements in his testimony at different stages is not about the manner of assault but about who out of the accused party were responsible for assaulting the deceased and himself. Our independent analysis of his evidence shows that the manner of the occurrence has been correctly described by him. Both the courts below have accepted that part of his testimony and we see no reason to take a different view. However, as regards the participation of assailants, we find that PW 3 named A-4, A-8, A-17 and A-18 as the assailants of Shankargouda; A-13, A-14, A-15, A-16 besides some others as the assailants of Gowdappagouda, and A-1, A-6 and A-13 as his assailants during the investigation of the case. At the trial however he included A-9 and A-11 as his assailants. It is thus, seen that he did not specifically mention A-2, A-5, A-7 and A- IO as any of the assailants of the deceased or himself at any stage of the case. So far as PW 10 is concerned, he deposed that he had run away from the scene, but still deposed that A-6, A-7 and A-8 had attacked Shankargouda while A-7 and "some others" had attacked Gowdappagouda and that three accused had assaulted PW 3 Basangouda. According to PW 7, he saw A-3, A-6, A-7 along with 8 to 10 other persons present at the time of assault. Dr Shamsunder Rao PW 5 also deposed that PW 3 had told him that A-1, A-6 and A-13 had assaulted him. Though, attempts were made by PW 3, PW 6, PW 9 and PW 11 to give details of the assault, but that part of their testimony is only an embellishment as it could not be accepted that in an assault where 10 to 12 persons are armed, the witnesses can give any graphic account of who injured whom and on what part of the body the weapons struck. These embellishments however need to be ignored as they do not affect the substratum of the prosecution case. It appears that the prosecution witnesses after naming some of the assailants, left the field wide open, so as to be able to implicate 'others' by stating that they too has assaulted along with 'others'. Therefore, unless the identity of 'others' and their participation in the crime is conclusively established from the evidence on record, we are of the opinion that those accused who were roped in later as falling in the 'other' category, cannot be but given the benefit of doubt, though we accept that the occurrence took place in the manner suggested by the prosecution and the substratum of the prosecution case as correct.
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18. We are unable to agree with the argument of Mr Birla that the FIR had been recorded after 1.00 a.m., in the earlier hours of April 14, 1979, for the simple reason that copy of the First Information Report had been delivered at the residence of DSP at 12.30 midnight and copy had also been received by the Magistrate at 2.00 a.m. Moreover had the FIR been recorded later on after due deliberations as argued by Mr Birla, then Ex. P-3 would perhaps have given all those details which PW 3 attempted to supply at different stages of the case. We cannot lose sight of the fact that PW 3 Basangouda was medically examined at 8.15 p.m. at the district hospital on April 13, 1979 itself. The investigating officer PW 20 was subjected to lengthy cross- examination but nothing was brought out which could in any way support the plea of the accused that the statement Ex. P-3 of PW 3 Basangouda was recorded at the police station after 1.00 a.m. and not at the hospital as alleged by the prosecution. The testimony of Ameersab PW 23 which has remained unshaken, and we may even say unquestioned, has established that the copy of the FIR was delivered at the residence of the DSP at 12.30 midnight and later on was also handed over to the Chief Judicial Magistrate at 2.00 a.m. We are of the opinion that the FIR was registered on the basis of Ex. P-3, statement of Basangouda PW 3 soon after the occurrence and the time and the manner in which it was recorded is correct. The FIR was lodged promptly and was not recorded after any deliberations. The finding recorded by the learned Sessions Judge in that behalf is correct and sound. The High Court discredited the prosecution version by holding that there was a delay of 7 hours in recording and despatching the FIR. In the first place, as noticed earlier, there was no delay in recording the FIR and in the second place the time spent till the FIR reached the Chief Judicial Magistrate has been satisfactorily explained. The contrary finding of the High Court is not based on any sound reasoning and we reject it.
19. Of course Mr Birla is right in contending that PW 3, PW 6, PW 9 and PW 11 are closely related to each other besides being inimical to the accused but we cannot agree with him that only on the ground of relationship or enmity, their testimony deserves to be discarded. The partisan nature of their evidence coupled with the established enmity and the inter se relationship only puts us on our guard to more carefully analyse the evidence and look for corroboration in material particulars before recording the conviction. We are in agreement with the appreciation of the evidence of PWs 3, 6, 9, 10 by the learned Sessions Judge and agree with his finding that these witnesses saw the incident of assault on deceased Gowdappagouda and deceased Shankargouda besides PW 3 Basangouda from a close distance and they have given a consistent version of the occurrence. As already noticed, these witnesses did not nominate all the assailants as the participants in the crime. Except PW 6 and PW 9 in their improved versions as regards A-7, none of the prosecution witnesses has attributed any role to A-2, A-5, A-7 and A-10, except while improving upon their testimony during the trial. There is no other independent corroboration available on the record either so far as the involvement of A-2, A-5, A-7 and A10 is concerned and the learned counsel appearing for the State was unable to point out any cogent material on the record to conclusively establish the participation of A-2, A-5, A-7 and A-10 in the assault. The possibility that they were also roped in on account of enmity and their inter se relationship with the 113
other accused, cannot be ruled out, while accepting the substratum of the evidence of PW 3, PW 6, PW 9, PW 10, PW 11 and other prosecution witnesses. We are unable to agree with the High Court that since PW 6 and PW 9 had not lodged the report, their presence was doubtful. In arriving at this conclusion, the High Court appears to have ignored the realities and the normal human conduct. Gowdappagouda and Shankargouda lay dead at the spot. The police had arrived at the scene. The police had removed Basangouda PW 3, who was conscious, to the hospital in its jeep. Both the witnesses, therefore, stayed at the spot to look after the dead bodies and their relations, thinking that police would record the FIR after getting information from PW 3. Thus, PW 6 and PW 9 cannot be disbelieved only on the ground that they did not lodge any report with the police about the occurrence. On a careful consideration of the testimony' of PWs 3, 6, 9 and IO and PW II, we are of the opinion that the prosecution has not been able to establish the case against A-2, A-5, A-7 and A10 beyond a reasonable doubt. However, the evidence of the prosecution witnesses as regards the participation of A-1, A-3, A-4, A-6, A-8, A-9 and A-11, on the other hand, is sufficiently clear, reliable and cogent. In our opinion, these seven accused persons (A- 1, A-3, A-4, A-6, A-8, A-9 and A- II) came to Raichur from their respective villages variously armed and being members of an unlawful assembly armed with deadly weapons like axes and daggers lay in wait for their victims, deceased Shankargouda, and deceased Gowdappagouda and PW 3 Basangouda and on finding them coming, after giving their attendance at Sadar Bazar police station, suddenly attacked them simultaneously. All these accused persons shared the common object of committing the murders of Shankargouda and Gowdappagouda and of causing injuries to PW 3 Basangouda. The murders were preplanned, cold blooded and calculated. These seven accused persons, in our opinion, had been rightly convicted by the learned Sessions Judge for various offenses and the High Court adopted a rather short cut and instead of sifting the evidence on record, completely threw out the prosecution evidence and acquitted them. The High Court acquitted these accused persons, even though their involvement in the crime had been established, probably influenced by the false involvement of A-1 to A-13 in the crime by PWs 3, 6, 9, 10 and 11. Instead of appraising the evidence of these witnesses in the light of other evidence and the record the High Court appears to have believed that the maxim "falsus in uno falsus in omnibus" was a sound principle to follow. That was a mistake on the part of the High Court. It did not dispel the reasoning of the trial court while acquitting these accused persons. As already noticed, we are in agreement with the findings of the trial court for the reasons recorded by it as regards the implication of those seven accused persons in the crime.
20. Consequently, we find A-1, A-3, A-4, A-6, A-8, A-9 and A- 11 are all guilty of an offence punishable under Sections 147 and 148 IPC and sentence each of them to suffer two years' RI on each count. They are also convicted and sentenced to two years' RI for the offence punishable under Section 324 IPC read with Section 149 IPC for the injuries caused to Basangouda. We also find them guilty of an offence punishable under Sections 302/149 IPC for the murder of deceased Gowdappagouda and again for an offence punishable under Sections 302/149 IPC for committing the murder of Shankargouda and sentence
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each one of them to suffer imprisonment for life on each of the two counts. The sentences of imprisonment shall, however, run concurrently.
21. As a result, the appeals filed by the State against the acquittal of A- 12 to A-18 and A-2, A-5, A-7 and A-10 are dismissed. Their bail bonds are discharged.
22. The appeals filed against the acquittal of Bhimappa A- 1, Gobbi Hanumantha A-3, Talwar Lingappa A-4, Jamappa A-6, Lachmappa A-8, Mallikarjun A-9 and Gowdappa A- II are accepted and they are convicted and sentenced as noticed above. Their bail bonds are cancelled and they shall be taken into custody to suffer the sentences imposed upon them.
Print Page
Supreme Court of India
State Of Karnataka vs Bheemappa on 13 May, 1993
Equivalent citations: 1994 SCC, Supl. (1) 103 JT 1993 (3) 498
2. According to the prosecution case the deceased Gowdappagouda, his son Shankargouda and another son Shivanagouda (PW 6), Basangouda (PW 3), Rajashekhar (PW 11) and Paravatareddy (PW 9) were living together in a house belonging to an advocate, Shri M. Nagappa. All these persons were required to give attendance at Sadar Bazar Police Station, Raichur twice a day, in the morning at about 8 a.m. and in the evening at about 7 p.m. in compliance with the directions of the court. They had also been directed to stay at Raichur proper. These directions had been given to them in a complaint case during the trial of a criminal case filed by A- 18. The wife of Shivanagouda (PW 6) and the wife of deceased Shankargouda were also staying at Raichur to take care of the household duties. Proceedings under Section 107 CrPC against deceased Gowdappagouda and his party members on the one side and Shankargouda (A13) and the members of his party on the other side were also pending in the court of Taluka Executive Magistrate at Devadurga. There were other criminal and civil proceedings pending in various courts between the parties. The relationship between the parties were totally strained and there was pronounced hostility between the two factions on account of various criminal and civil proceedings pending between them.
3. On the date of the occurrence i.e. April 13, 1979 at about 7.10 p.m. the deceased Gowdappagouda along with his son Shankargouda and the other son Shivanagouda (PW 6) had gone to Sadar Bazar Police Station, Raichur to mark their attendance. Basangouda (PW 3), Mallikarjuna (PW 10), Paravatareddy (PW 9) and Rajashekhar (PW 11) had accompanied them to the Police Station. After marking their attendance at the Sadar Bazar Police Station, the aforesaid persons proceeded towards their rented house at Raichur. Shankargouda was ahead of the remaining party and he was holding the hand of the son of his son, Rajashekhar PW 11. Near Petlaburj road, the accused persons emerged from the side of a ditch variously armed with daggers etc. and attacked the deceased Shankargouda, Gowdappagouda and Basangouda with their respective weapons. Gowdappagouda and his son Shankargouda died as a result of the injuries inflicted on them. Basangouda PW 3 also received some injuries and so did Rajashekhar PW 11. Shivanagouda PW 6, Mallikarjuna PW 10 and Parvatareddy PW 9 ran away for their safety from the spot. Rajashekhar PW 11 after receiving the injury on his finger ran to his house to inform his mother and aunt about the occurrence. All the accused, A-1 to A- 18, thereafter escaped with the weapons in their hands. Rajashekhar PW 11 returned to the spot along with his mother Chinamma and an aunt. Police Sub-Inspector of Sadar Bazar Police Station was standing outside the Police Station, regulating the traffic, when he learnt from some rickshawalas and tangawalas that murders had taken place near Petlaburj. He rushed to the spot along with two police constables. On
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reaching Petlaburj he found the dead bodies of Gowdappagouda and Shankargouda lying in a pool of blood. Basangouda PW 3 was also lying down as a result of the injury received by him. A crowd of people had gathered at the place of occurrence. PW 20 sent a constable to bring jeep from the Police Station and removed PW 3, Basangouda to the District Hospital reaching there at about 7.40 p.m. The injury of Basangouda PW 3 was attended to by Dr Shamsunder Rao PW 5 who admitted Basangouda PW 3 as an indoor patient. Dr Rao PW 5 told the sub-inspector Mallanagouda PW 20 that the condition of Basanagouda PW 3 was very serious. Sub- inspector Mallanagouda PW 20 thereupon recorded the statement, Ex. P-3 as narrated by the injured Basanagouda PW 3 to him. He obtained the signatures of Basangouda PW 3 on the statement Ex. P-3 (to be used as a dying declaration if need arises) and went back to the Sadar Bazar Police Station for registration of the case. FIR Ex. P-21 was accordingly registered for offenses under Sections 147, 148, 323, 302/149 IPC. FIR Ex. P-21, along with the statement of Basanagouda, Ex. P-3, was sent to the Deputy Superintendent of Police and the Chief Judicial Magistrate. Sub-Inspector Mallanagouda PW 20 thereafter handed over the case papers to the Incharge (Crime) Police Inspector Ghouse Mohiuddin PW 21 for further investigation. Executive Magistrate Mohammed Alauddin PW 8 was contacted and requested to come to the hospital to record the "dying declaration" of Basangouda PW 3 as it was suspected that he might die as a result of the injury received by him according to the opinion of Dr Shamsunder Rao, PW 5. The Executive Magistrate PW 8 accordingly reached the District Hospital at about 10 p.m. and recorded the statement of Basanagouda PW 3 treating it to be a 'dying declaration' in the presence of Dr Rao PW 5. After completing the investigation and seizing various articles from the place of occurrence, all the accused, A-1 to A-18 were sent up for trial as noticed in the earlier part of this judgment. Since, Basanagouda PW 3 survived the attack of murder, the Chief Judicial Magistrate on the request of the prosecuting agency, framed a charge against the accused persons for an offence under Sections 307/149 IPC also.
4. At the trial the prosecution examined PWs 1 to 25 and produced Ex. P-1 to P-49 beside material objects 1 to 28 including the weapons recovered pursuant to the statements made under Section 27, Evidence Act, The accused persons, A- 1 to A-18 in their statements under Section 313 IPC admitted that there was long-standing enmity and hostility between them on the one hand and the deceased persons, PW 3, PW 6 and PW 9 on the other hand and that there were cases and counter-,cases pending between the parties but denied the prosecution allegations or their involvement in the crime and pleaded false implication.
5. Mr H.R. Janardhan, the learned Senior Advocate, appearing for the State, submitted that the grounds on which the High Court had recorded the order of acquittal of A-1 to A-11 and upheld the order of acquittal of A-12 to A-18 were erroneous and that the High Court had not scrutinised the evidence carefully and had adopted an easy course of throwing out the entire prosecution case on the basis of minor discrepancies in the prosecution evidence. Learned counsel submitted that the reasons given by the High Court were not only perverse but also unreasonable. He criticised the manner in which the evidence of the eyewitnesses had been brushed aside and argued that the High Court was 108
required to separate the chaff from the grain and since it had failed to do so, two cold-blooded murders had gone unpunished. With a view to support his assertion, learned counsel took us through the relevant portion of the material evidence on record.
6. Mr S.C. Birla, learned counsel appearing for the respondents, in both the appeals, on the other hand supported the findings of the High Court and pleaded that the findings of acquittal recorded by the court were not perverse and even if another view could be taken on the basis of the appreciation of evidence, this Court may not interfere with an order of acquittal while dealing with an appeal under Article 136 of the Constitution of India.
7. We have given our thoughtful consideration to the submissions made at the Bar.
8. This Court while dealing with an appeal, after granting leave under Article 136 of the Constitution, does not, generally speaking, reappraise the evidence which has been considered and analysed by two courts below but this is a self-imposed restriction by this Court and not a statutory limitation. The jurisdiction vested in this Court under Article 136 is not to be confused with an ordinary statutory appellate jurisdiction. It is discretionary and much wider in scope and reach, but wider the discretionary power, greater is the need to exercise it with great care and caution and sparingly. The power of this Court while dealing with an appeal against acquittal, after granting leave under Article 136, is in no way different than its power in hearing an appeal against conviction and sentence and the Court can with a view to do justice, in the peculiar facts and circumstances of a case, make an independent appraisal of the evidence on the record, so as to determine the guilt or otherwise of the accused. It can go into all questions of fact and law and reach its own conclusion based on the evidence on record. Of course, this Court gives due weight and consideration to the reasoning of the courts below while dealing with an appeal brought before it on leave under Article 136 of the Constitution of India. It is in the light of the above-settled procedural safeguards, which are in-built in Article 136, that we shall deal with the two appeals filed by the State on leave being granted under Article 136.
9. We shall first take up the State appeal against the acquittal of A-12 to A-18.
10. The learned Sessions Judge after a careful appraisal of the evidence on record found that the name of A-12 (one of the accused in the first set of accused A-1 to A-12) was not mentioned by PW 3 Basangouda in his complaint Ex. P-3, the basis of the FIR. It was also found that the name of A-12 had been later on introduced, on the next day morning, when the supplementary statements of PW 6 and PW 9 were recorded by PW 21. The trial court noticed that even during the inquest proceedings, the name of A-12 was not mentioned as an assailant by any of the witnesses present there. The learned Sessions Judge then noticed that although Basangouda PW 3 stated at the trial that he had disclosed to Dr Shamsunder Rao PW 5, the names of his assailant, including A12, his testimony was given a lie by PW 5, who stated that the name of A-12, as one of the assailants, was not disclosed to him by PW 3. After discussing the evidence, the learned Sessions Judge found that the name of A-12 had been 109
subsequently introduced by various witnesses and that the witnesses were "falsely implicating A-12 only because he is the son-in-law of deceased Gopalpur Shivanagouda, being on inimical terms to harass him". A-12, was, therefore, given the benefit of doubt and acquitted by the learned Sessions Judge.
11. The learned Sessions Judge then dealt with the case of A-13 to A-18. It was noticed that though the complainant PW 3 in the FIR had implicated all the accused, A-1 to A-18 as involved in the commission of the crime, during the investigation, the investigating agency had found that A- 13 to A-18 were not in any way involved in the crime. Consequently, when the charge-sheet was submitted to the court of the Chief Judicial Magistrate at Raichur, it was submitted only against A-1 to A-12, deleting the names of A- 13 to A-18. It appears that PW 3 Basangouda thereupon had lodged a private complaint protesting that police had deliberately not filed the charge-sheet against A-13 to A-
18. The learned Chief Judicial Magistrate, Raichur thereafter took cognizance of the complaint and issued process against A-13 to A-18. These accused persons (A-13 to A-18) challenged the order of the Chief Judicial Magistrate in the High Court of Karnataka, Bangalore. The High Court set aside the order of the Chief Judicial Magistrate taking cognizance of the case against A-13 to A18 finding that the material on the record did not justify issuance of any process against A-13 to A-18. Basangouda PW 3, however, did not let the case rest there. He brought the matter to this Court through Criminal Appeal No. 709 of 1980. That appeal was allowed and setting aside the order of the High Court, this Court confirmed the order of the Chief Judicial Magistrate, Raichur. The Chief Judicial Magistrate, Raichur, thereupon committed A-13 to A-18 also to the Court of Session and that is how the trial of A-13 to A-18 was taken up along with trial of A1 to A12 and two different charge-sheets and commitment orders drawn up in respect of one and the same occurrence.
12. The learned Sessions Judge scrutinized the evidence of PW 3, PW 6, PW 9, PW 10 and PW 11 with a view to determine the involvement or otherwise of A-13 to A-18. It was found that there were material contradictions in the testimony of these witnesses as regards the involvement of A-13 to A-1 8. The trial court found that from the evidence produced by the prosecution itself, it had been established that A- 13 to A- 1 8 were present at Deodurg police station and that at about 8.00 p.m. on the day of the occurrence they were present near a hotel at the bus-stand at Deodurg. PW 21 Ghouse Mohiuddin and other senior police officials, including the Deputy Superintendent of Police and the Superintendent of Police, had satisfied themselves from the records available at Deodurg police station about the presence of the accused persons (A-13 to A18) at Deodurg police station and their attendance had been recorded by the PSI Zahur at the police station near about the time of occurrence. The learned Sessions Judge thus found that the presence of A- 13 to A-1 8 at about 7.10 p.m. at the place of occurrence was highly improbable. He accordingly gave benefit of doubt to A-13 to A-18 and acquitted them of all the charges.
13. The High Court also considered and appraised the evidence of various witnesses and came to the conclusion that A-12 to A-18 had been introduced as an afterthought by the prosecution witnesses on account of their relationship with other accused because of the pronounced enmity between the parties. The
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High Court rightly frowned upon the manner in which certain inadmissible confessions of A-13 to A-18, Ex. P-22 to P-27, were recorded during their interrogation on April 19, 1979 by PW 21, and after recording a finding that not only were such statements hit by Sections 24, 25 and 26 of the Evidence Act, they were also not voluntary and had been introduced only to rope in A13 to A18, against whom there was no other evidence available to the prosecution rejected those statements. The High Court agreed with the learned Sessions Judge that the prosecution had failed to establish, by any cogent and reliable evidence, the participation of A- 12 to A-1 8 in the crime and upheld the acquittal of A-13 to A-18. The High Court did not accept the plea of alibi set up by A-13 to A-18 but came to a definite conclusion that "the prosecution has failed to establish any offence against any one of the accused persons" (A-13 to A-18).
14. Appearing before us learned counsel for the State of Karnataka was unable to point out any infirmity whatsoever in the findings recorded by the Sessions Judge and the High Court insofar as the involvement of A-12 to A-18 is concerned. The conclusions arrived at by both the courts below as regards the doubtful nature of the prosecution case against them are based on proper appreciation of evidence and cannot be said to be unreasonable much less perverse. Both the courts below found that the case against A-12 to A- 18 had not been established beyond a reasonable doubt. We agree with the appreciation of evidence by the courts below and the conclusions drawn therefrom insofar as A-12 to A-18 are concerned. We are of the opinion that no cause has been made out for interference with the order of acquittal of A- 12 to A-18 as recorded by the High Court, while confirming the order of acquittal against A- 13 to A-18 as made by the learned Sessions Judge. The State appeal insofar as A-12 to A-18 are concerned, therefore, has no merits and is dismissed as such.
15. We shall now take up the State appeal against the acquittal of A-1 to A-11.
16. Whereas the learned Sessions Judge had convicted A-1 to A-11 for various offenses, the High Court acquitted them. The learned Sessions Judge noticed that PW 3 Basangouda had given different versions at different stages of the investigation and the trial and that the facts mentioned by PW 3 in his complaint Ex. P-3 were improved upon in his version given before the Taluka Executive Magistrate recorded on the night of the occurrence and further improved during his deposition in the trial court. The trial court also recorded that PW 3 Basangouda is a partisan and a deeply interested witness. In spite of all these infirmities, the trial court after careful scrutiny of the evidence relied upon the substratum of his evidence and after noticing the corroboration from other evidence on the record, came to the conclusion that the prosecution had established the case against A-1 to A-11 beyond a reasonable doubt and that the prosecution case stood 'proved' against them and accordingly convicted A-1 to A-1 1, while acquitting A-12 to A-18. The High Court, on the other hand after noticing some infirmities in the testimonies of PW 3, PW 6, PW 9 and PW 10, threw out the prosecution case altogether without making any serious effort to sift the chaff from the grain. The course adopted by the High Court has not appealed to us. Though this Court, as noticed earlier, does not in an appeal brought by special leave under Article 136 of the Constitution, generally speaking, embark upon reappreciation of the evidence, yet in the peculiar facts
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and circumstances of this case and the manner in which the case has been dealt with by the High Court, we have made an independent appraisal of the material evidence on the record.
17. We find that PW 3, PW 6, PW 9, PW IO and PW II are interested witnesses and belong to the party of the deceased. This has put us on our guard to carefully scrutinise their testimony. In our opinion, in the state of evidence which is on the record, it would not be safe to rely upon the evidence of these witnesses without finding independent corroboration for their testimony. So far as PW 3 is concerned,The was injured during the assault and the injury received by him was, according to medical evidence, of a serious nature. He has given a consistent version of the occurrence, though at different stages of the case he appears to have improved upon his testimony and implicated different accused, as involved in the assault on the deceased and himself. He is a stamped witness. Normally he would not let go the real culprits, though the possibility of roping in some more 'enemies' cannot be ruled out. The discrepancies and improvements in his testimony at different stages is not about the manner of assault but about who out of the accused party were responsible for assaulting the deceased and himself. Our independent analysis of his evidence shows that the manner of the occurrence has been correctly described by him. Both the courts below have accepted that part of his testimony and we see no reason to take a different view. However, as regards the participation of assailants, we find that PW 3 named A-4, A-8, A-17 and A-18 as the assailants of Shankargouda; A-13, A-14, A-15, A-16 besides some others as the assailants of Gowdappagouda, and A-1, A-6 and A-13 as his assailants during the investigation of the case. At the trial however he included A-9 and A-11 as his assailants. It is thus, seen that he did not specifically mention A-2, A-5, A-7 and A- IO as any of the assailants of the deceased or himself at any stage of the case. So far as PW 10 is concerned, he deposed that he had run away from the scene, but still deposed that A-6, A-7 and A-8 had attacked Shankargouda while A-7 and "some others" had attacked Gowdappagouda and that three accused had assaulted PW 3 Basangouda. According to PW 7, he saw A-3, A-6, A-7 along with 8 to 10 other persons present at the time of assault. Dr Shamsunder Rao PW 5 also deposed that PW 3 had told him that A-1, A-6 and A-13 had assaulted him. Though, attempts were made by PW 3, PW 6, PW 9 and PW 11 to give details of the assault, but that part of their testimony is only an embellishment as it could not be accepted that in an assault where 10 to 12 persons are armed, the witnesses can give any graphic account of who injured whom and on what part of the body the weapons struck. These embellishments however need to be ignored as they do not affect the substratum of the prosecution case. It appears that the prosecution witnesses after naming some of the assailants, left the field wide open, so as to be able to implicate 'others' by stating that they too has assaulted along with 'others'. Therefore, unless the identity of 'others' and their participation in the crime is conclusively established from the evidence on record, we are of the opinion that those accused who were roped in later as falling in the 'other' category, cannot be but given the benefit of doubt, though we accept that the occurrence took place in the manner suggested by the prosecution and the substratum of the prosecution case as correct.
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18. We are unable to agree with the argument of Mr Birla that the FIR had been recorded after 1.00 a.m., in the earlier hours of April 14, 1979, for the simple reason that copy of the First Information Report had been delivered at the residence of DSP at 12.30 midnight and copy had also been received by the Magistrate at 2.00 a.m. Moreover had the FIR been recorded later on after due deliberations as argued by Mr Birla, then Ex. P-3 would perhaps have given all those details which PW 3 attempted to supply at different stages of the case. We cannot lose sight of the fact that PW 3 Basangouda was medically examined at 8.15 p.m. at the district hospital on April 13, 1979 itself. The investigating officer PW 20 was subjected to lengthy cross- examination but nothing was brought out which could in any way support the plea of the accused that the statement Ex. P-3 of PW 3 Basangouda was recorded at the police station after 1.00 a.m. and not at the hospital as alleged by the prosecution. The testimony of Ameersab PW 23 which has remained unshaken, and we may even say unquestioned, has established that the copy of the FIR was delivered at the residence of the DSP at 12.30 midnight and later on was also handed over to the Chief Judicial Magistrate at 2.00 a.m. We are of the opinion that the FIR was registered on the basis of Ex. P-3, statement of Basangouda PW 3 soon after the occurrence and the time and the manner in which it was recorded is correct. The FIR was lodged promptly and was not recorded after any deliberations. The finding recorded by the learned Sessions Judge in that behalf is correct and sound. The High Court discredited the prosecution version by holding that there was a delay of 7 hours in recording and despatching the FIR. In the first place, as noticed earlier, there was no delay in recording the FIR and in the second place the time spent till the FIR reached the Chief Judicial Magistrate has been satisfactorily explained. The contrary finding of the High Court is not based on any sound reasoning and we reject it.
19. Of course Mr Birla is right in contending that PW 3, PW 6, PW 9 and PW 11 are closely related to each other besides being inimical to the accused but we cannot agree with him that only on the ground of relationship or enmity, their testimony deserves to be discarded. The partisan nature of their evidence coupled with the established enmity and the inter se relationship only puts us on our guard to more carefully analyse the evidence and look for corroboration in material particulars before recording the conviction. We are in agreement with the appreciation of the evidence of PWs 3, 6, 9, 10 by the learned Sessions Judge and agree with his finding that these witnesses saw the incident of assault on deceased Gowdappagouda and deceased Shankargouda besides PW 3 Basangouda from a close distance and they have given a consistent version of the occurrence. As already noticed, these witnesses did not nominate all the assailants as the participants in the crime. Except PW 6 and PW 9 in their improved versions as regards A-7, none of the prosecution witnesses has attributed any role to A-2, A-5, A-7 and A-10, except while improving upon their testimony during the trial. There is no other independent corroboration available on the record either so far as the involvement of A-2, A-5, A-7 and A10 is concerned and the learned counsel appearing for the State was unable to point out any cogent material on the record to conclusively establish the participation of A-2, A-5, A-7 and A-10 in the assault. The possibility that they were also roped in on account of enmity and their inter se relationship with the 113
other accused, cannot be ruled out, while accepting the substratum of the evidence of PW 3, PW 6, PW 9, PW 10, PW 11 and other prosecution witnesses. We are unable to agree with the High Court that since PW 6 and PW 9 had not lodged the report, their presence was doubtful. In arriving at this conclusion, the High Court appears to have ignored the realities and the normal human conduct. Gowdappagouda and Shankargouda lay dead at the spot. The police had arrived at the scene. The police had removed Basangouda PW 3, who was conscious, to the hospital in its jeep. Both the witnesses, therefore, stayed at the spot to look after the dead bodies and their relations, thinking that police would record the FIR after getting information from PW 3. Thus, PW 6 and PW 9 cannot be disbelieved only on the ground that they did not lodge any report with the police about the occurrence. On a careful consideration of the testimony' of PWs 3, 6, 9 and IO and PW II, we are of the opinion that the prosecution has not been able to establish the case against A-2, A-5, A-7 and A10 beyond a reasonable doubt. However, the evidence of the prosecution witnesses as regards the participation of A-1, A-3, A-4, A-6, A-8, A-9 and A-11, on the other hand, is sufficiently clear, reliable and cogent. In our opinion, these seven accused persons (A- 1, A-3, A-4, A-6, A-8, A-9 and A- II) came to Raichur from their respective villages variously armed and being members of an unlawful assembly armed with deadly weapons like axes and daggers lay in wait for their victims, deceased Shankargouda, and deceased Gowdappagouda and PW 3 Basangouda and on finding them coming, after giving their attendance at Sadar Bazar police station, suddenly attacked them simultaneously. All these accused persons shared the common object of committing the murders of Shankargouda and Gowdappagouda and of causing injuries to PW 3 Basangouda. The murders were preplanned, cold blooded and calculated. These seven accused persons, in our opinion, had been rightly convicted by the learned Sessions Judge for various offenses and the High Court adopted a rather short cut and instead of sifting the evidence on record, completely threw out the prosecution evidence and acquitted them. The High Court acquitted these accused persons, even though their involvement in the crime had been established, probably influenced by the false involvement of A-1 to A-13 in the crime by PWs 3, 6, 9, 10 and 11. Instead of appraising the evidence of these witnesses in the light of other evidence and the record the High Court appears to have believed that the maxim "falsus in uno falsus in omnibus" was a sound principle to follow. That was a mistake on the part of the High Court. It did not dispel the reasoning of the trial court while acquitting these accused persons. As already noticed, we are in agreement with the findings of the trial court for the reasons recorded by it as regards the implication of those seven accused persons in the crime.
20. Consequently, we find A-1, A-3, A-4, A-6, A-8, A-9 and A- 11 are all guilty of an offence punishable under Sections 147 and 148 IPC and sentence each of them to suffer two years' RI on each count. They are also convicted and sentenced to two years' RI for the offence punishable under Section 324 IPC read with Section 149 IPC for the injuries caused to Basangouda. We also find them guilty of an offence punishable under Sections 302/149 IPC for the murder of deceased Gowdappagouda and again for an offence punishable under Sections 302/149 IPC for committing the murder of Shankargouda and sentence
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each one of them to suffer imprisonment for life on each of the two counts. The sentences of imprisonment shall, however, run concurrently.
21. As a result, the appeals filed by the State against the acquittal of A- 12 to A-18 and A-2, A-5, A-7 and A-10 are dismissed. Their bail bonds are discharged.
22. The appeals filed against the acquittal of Bhimappa A- 1, Gobbi Hanumantha A-3, Talwar Lingappa A-4, Jamappa A-6, Lachmappa A-8, Mallikarjun A-9 and Gowdappa A- II are accepted and they are convicted and sentenced as noticed above. Their bail bonds are cancelled and they shall be taken into custody to suffer the sentences imposed upon them.
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