Marlapalle, learned senior counsel argued that had the
incident taken place in the manner suggested by the
prosecution, the injured would have been taken to nearest
hospital available was at Chellur but he was taken to hospital
at Shimoga which creates doubt as to the place of the incident.
We find no force in the argument for the reason that there is
nothing on record to show that there were facilities to treat the
critically injured patient at Chellur. It has come on record
that the injured was in a critical condition and he was
unconscious when admitted in Shimoga hospital. Merely for
the reason that one doctor used to be posted at Chellur does
not mean that there were facilities to treat the patient of
critical condition, as such, in our opinion, there appears
nothing unusual in taking the injured to the hospital where
the injured could be given better treatment and time is not
lost.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 435 OF 2006
M. G. Eshwarappa and others
V
State of Karnataka.
Citation:AIR 2017 SC1197
1. This appeal is directed against judgment and order dated
07.02.2006, passed by the High Court of Karnataka in
Criminal Appeal No. 1055 of 1999 whereby the High Court has
allowed the appeal filed by the State, and reversed the
judgment of acquittal passed by the Additional Sessions
Judge, Shimoga, in Sessions Case No. 40 of 1998.
2. Prosecution story, in brief, is that PW-16 Niranjanappa
(complainant) was elder brother of accused No. 1 M.G.
Eshwarappa. Accused No. 2 M.G. Shivaraj and accused No. 3
M.G. Girish are sons of M.G. Eshwarappa. Accused No. 4
Hebballi Shivappa is brother-in-law of accused No. 2 M.G.
Shivaraj. There was a family dispute between the complainant
and his brother Eshwarappa pertaining to immovable
property, and reaping of fruits of tamarind tree in the
backyard of the complainant’s house. There used to be
quarrel every now and then between the families of two
brothers. Prior to the incident, on 03.03.1998 at about 3.00
p.m. the accused persons, armed with deadly weapons, came
to the house of the complainant objecting to the plucking of
tamarind fruits by the complainant’s family, and threatened
them of dire consequences. With the intervention of the
neighbours dispute got pacified temporarily. Thereafter, as
the accused persons went away, the complainant along with
his son Basavaraj (deceased) and daughter Rajeshwari (PW-1)
went to Honnali to consult their legal counsel, and to get the
complaint lodged against the accused. The three left the
village Marigondanahalli at about 5.00 p.m. for Honnali, but
the counsel was not found at his residence. On this,
complainant Niranjanappa (PW-16) asked his son and
daughter to return to the village as he wanted to wait for the
arrival of the counsel. At about 6.30 p.m. Basavaraj andPage 3
Page 3 of 22
Rajeshwari left Honnali on way back to their village. When the
two had covered a distance of about two kilometers, and were
only one kilometer away from their village, four accused
namely - M.G. Eshwarappa, M.G. Shivaraj, M.G. Girish and
Hebballi Shivappa intercepted them. Eshwarappa (A-1) was
armed with club, Shivaraj (A-2) was armed with Kandli (heavy
sharp edged weapon), and Girish (A-3) and Shivappa (A-4)
were armed with iron rods. The first blow was given by
Shivaraj with Kandli on the head of Basavaraj on which he fell
down. His sister Rajeshwari (PW-1) to save her brother lied
down on him and requested the accused to leave her brother.
On this Shivaraj (A-2) dragged her on one side. In the process
she also suffered minor injuries. Thereafter Girish (A-3) and
Shivappa (A-4) assaulted already injured Basavaraj with iron
rods. Basavaraj started bleeding from the injuries received by
him. The accused persons presuming that the injured is dead
left the place. PW-1 Rajeshwari started crying. One Kammar
Rudresh, who was returning on a bicycle from Shimoga after
selling his flowers, asked her as to what had happened, and
then left for the village to inform his family members of thePage 4
Page 4 of 22
injured in order to get some bullock cart. This incident
occurred around 7.30 p.m. There was moon light. At about
8.00 p.m. Parvathamma (PW-29) mother of the injured, along
with other villagers reached at the spot and injured Basavaraj
was first taken to Chellur. After some time Niranjanappa
(PW-16) also reached there, and after engaging a motor van,
the injured was taken to Shimoga hospital, where he was
admitted at 10.45 p.m. However, Basavaraj could not be
saved and succumbed to the injuries soon after midnight at
about 0040 hrs. A report (Ext. P-5) was given at the nearest
Police Station Doddapet on which PW-28 M. Gopalappa
(Station House Officer) rushed to the hospital. He sent
intimation (Ext. P-6) to the jurisdictional Police Station
Nyamathi, where the same was registered as Crime No. 49 of
1998. PW-33 S.G. Patil (Police Inspector) took up the
investigation and, after taking the dead body in his
possession, prepared the inquest report (Ext. P-28) and
interrogated witnesses including Rajeshwari (PW-1),
Niranjanappa (PW-16) and Parvathamma (PW-29). PW-2 Dr.
C. Francis conducted the post mortem examination on
04.03.1998 at 11.00 a.m. and prepared the autopsy report
(Ext. P-2). He opined that the deceased had died due to shock
and haemorrhage as a result of injuries suffered by him on the
head. On conclusion of investigation the charge-sheet was
filed against all the four accused for their trial in respect of
offences punishable under Sections 506, 354 and 302 read
with Section 34 of Indian Penal Code (IPC).
3. After the case was committed to the Court of Sessions,
the trial court framed charge of offences punishable under
Sections 506, 323, 354 and 302 read with Section 34 IPC, to
which the accused pleaded not guilty and claimed to be tried.
As many as 33 witnesses were got examined by the
prosecution. The oral and documentary evidence was put to
the accused and, after hearing the parties, the trial court
acquitted the accused holding that the charge against them is
not proved beyond reasonable doubt.
4. The State of Karnataka preferred appeal against acquittal
of the accused before the High Court. The High Court, after
re-appreciating the evidence, held that the finding recorded by
the trial court is perverse and contrary to the evidence on
record. The appeal was allowed by the High Court. (Since
accused No. 3 M.G. Girish had meanwhile died, his appeal
stood abated.) The High Court convicted rest of the three
accused, namely Eshwarappa, Shivaraj and Hebballi Shivappa
under Sections 506, 354 and 302 read with Section 34 IPC,
and after hearing on sentence, each of the convicts is
sentenced under Section 302 read with Section 34 IPC to
imprisonment for life and to pay fine of 10,000/-. In default ₹
of payment of fine, the defaulter, if any, was directed to
undergo rigorous imprisonment for a further period of one
year. In view of the sentence awarded in respect in respect of
offence punishable under Section 302/34 IPC, qua rest of the
offences no punishment was awarded by the High Court. The
convicts have preferred this appeal under Section 379 of Code
of Criminal Procedure (Cr.P.C.). During pendency of appeal
before this Court, appellant No. 1 (M.G. Eshwarappa) has died
and his appeal stands abated.
5. We have heard learned counsel for the appellants (A-2
M.G. Shivaraj and A-4 Hebballi Shivappa) and learned counsel
for the State and perused the evidence on record.
6. Perusal of the record shows that the prosecution got
examined PW-1 Rajeshwari (sister of the deceased), PW-2 Dr.
C. Francis (who conducted post mortem examination), PW-3
Dr. Nanda Koti, PW-4 Kammar Rudreshi @ Rudrachari, PW-5
H.R. Haleshi, PW-6 Basavangowda, PW-7 Eshwarappa (not the
accused), PW-8 Palakshappa, PW-9 Shankarappa, PW-10 M.
Raju, PW-11 Chandrashekaraiah, PW-12 B. Vasavarajappa,
PW-13 T.R. Mahadevappa, PW-14 C. Chandrappa, PW-15 S.
H. Parameshwarappa, PW-16 M.G. Nirannjanappa
(complainant), PW-17 H.N. Puttaiah, PW-18 Shankar, PW-19
Aravind, PW-20 Basavarajappa @ Basappa, PW-21 M.R.
Haleshappa, PW-22 Rudreshappa, PW-23 Angadi Nataraja,
PW-24 Koti Rudreshi @ Rudreshappa, PW-25 Dr. Suresh
(Incharge of General Hospital Honnali), PW-26 C.R. Umesh,
PW-27 N.M. Shankar, PW-28 M. Gopalappa (SHO of Police
Station Doddapet), PW-29 Parvathamma (mother of the
deceased), PW-30 Chanabasappa, PW-31 Laxmappa, PW-32
M.K. Gangal and PW-33 S.G. Patil (Inspector, who investigated
the crime).Page 8
Page 8 of 22
7. Before further discussion, we think it just and proper to
mention the ante-mortem injuries found on the dead body of
the deceased, recorded by PW-2 Dr. C. Francis in Ext. P-2 as
under: -
(1) Lacerated wound 3” x ½” bone deep on the scalp and left
fronto-parietal region.
(2) Sutured wound ½” x ¼” on the helix of left ear.
(3) Sutured lacerated wound ½” x ½” on the left muscular
region.
(4) Sutured wound ½” x ¼” on the back of left elbow.
(5) Sutured wound ½” x ¼” on the back of lower right arm.
(6) Multiple, irregular, sutured wounds about ½” x ¾” all
over the left leg.
(7) Multiple, irregular, sutured wounds situated all over the
right leg.
(8) Punctured would ¼” x ¼” bone deep situated on the
medial aspect of lower third of right leg. On dissection
the muscles are irregularly lacerated and comminuted
fractures of tibia and fibula on the upper third and
compound fracture of tibia and fibula at the lower third,
the muscles are lacerated and plenty of blood clots
present.
(9) Diffused swelling of left arm, on dissection, the muscles
are lacerated and large blood clots present.Page 9
Page 9 of 22
In the opinion of the medical officer (PW-2 Dr. C.
Francis), as mentioned in Ext. P-2, the deceased died of shock
and haemorrhage as a result of injury to vital organ, i.e. brain.
8. The star witness of the prosecution case is PW-1 Kumari
M.N. Rajeshwari who is the sister of the deceased. After
narrating the prior incident of 03.03.1998 which occurred at
3.00 p.m., she has stated that her father (PW-16
Niranjanappa) along with her brother (deceased) and herself
left the village Marigondanahalli at about 5.00 p.m. for
Honnali to consult their lawyer to lodge the report. She
further told that Mr. Srinivas, advocate, to whom they had
gone to meet, was not available at Honnali and as such her
father decided to wait for him, and advised her and her
brother to go back to the village. She further told that she left
Honnali at 6.30 p.m. and came with her brother Basavaraj to
Kadadakatte on their way back. PW-1 Rajeshwari has further
stated that at 7.00 p.m. she and her brother reached
Kadadakatte, and by 7.30 p.m. they had covered distance of
about two kilometers on foot, when the four accused namelyPage 10
Page 10 of 22
Eshwarappa, Girish, Shivaraj and Shivappa appeared, and
intercepted them. Accused Girish said, “Anna Bandaru”
(brother! they have come), and Shivaraj (A-2) gave a blow with
Kandli (heavy sharp edged weapon) on the head of Basavaraj.
She further told that she lied down on her brother and pleaded
to the accused to leave him, but Shivaraj (A-2) dragged her
away, and thereafter Girish (A-3) and Shivappa (A-4) assaulted
Basavaraj with iron rods. She further told that Shivappa (A-4)
assaulted on her leg. And Eshwarappa who was armed with
club, assaulted her brother near his ear, and also at the
elbow. After assaulting the two, the accused persons left
towards the village uttering “Soolemaga Sathu Hoda” (he is
dead).
9. PW-1 Rajeshwari, narrating the incident further, stated
that left helpless after the incident, she started crying, when
one Kammar Rudresh passing through on bicycle came, and
she told about the incident. And said Rudresh went to the
village and informed to the villagers, who in turn came in
bullock cart. Thereafter, in another bullock cart her mother
(PW-29 Parvathamma) reached. And Basavaraj was taken onPage 11
Page 11 of 22
a bullock cart upto Kadadakatte crossing from where an
autorikshaw was engaged up to Chellur. According to PW-1
Rajeshwari, on receiving the information about the incident
her father also came to Chellur, and from there they all
boarded matador van, and took the injured Basavaraj to the
Shimoga Hospital. She further told that at about 10.30 p.m.
Basavaraj was admitted in the Hospital but succumbed to
injuries in the night. Lastly she told that her father (PW-16
Niranjannappa) gave report to the police. She has also
corroborated the fact that the police prepared the inquest
report, and that she had shown place of incident to the police
during interrogation. PW-1 Rajeshwari has been subjected to
lengthy cross-examination but nothing has come out which
creates doubt in her testimony.
10. Explaining the motive of the commission of crime PW-16
M.G. Niranjanappa (complainant) has stated that there was
dispute of property between him and his brother (A-1
Eshwarappa) for fifteen years prior to partition. It is further
stated by PW-16 Niranjanappa that in the family partition
when the land was partitioned, four acres of land wasPage 12
Page 12 of 22
separately kept aside for maintenance of their mother who
used to live with A-1 Eshwarappa. But A-1 sold the property
given to their mother. He has further stated that when the
mother purchased a property in village Marigondanahalli,
complainant demanded his share which was denied to him.
Not only this, the house in which the two brothers used to live
separately with their families, stood in the name of the
complainant which A-1 Eshwarappa demanded to be
transferred to his name. A Panchayat was called which
resolved the dispute by directing A-1 to pay ₹15,000/- to the
complainant, but A-1 paid only 5000/-. PW-16 ₹
Niranjanappa further told that about eleven months before the
incident, due to above dispute there was Galata
(commotion/scuffle) between the rival parties with regard to
which a criminal case was registered which was pending
against A-1 Eshwarappa and A-3 Girish. Also, fifteen days
prior to the incident in question there had been quarrel over
plucking of tamarind fruits by the family of the complainant.
This witness (PW-16 Niranjanappa) has also corroborated the
fact that on the date of incident (03.03.1998) at 5.00 p.m. he,Page 13
Page 13 of 22
along with his son Basavaraj and daughter PW-1 Rajeshwari,
had gone to meet their counsel, but he was not available, and
Basavaraj and Rajeshwari were asked by him to go back to the
village as he wanted to wait to meet the counsel. The witness
has further told that he made the complaint (Ext. P-17) to the
police which was signed by him.
11. PW-30 Chanabasappa has corroborated the fact that one
Rudresh came to his house on 03.03.1998 at 8.00 p.m. and
informed about the incident on which he went to Chellur and
saw Basavaraj in injured condition.
12. PW-3 Dr. Nanda Koti of Mc Gann Hospital, Shimoga,
where Basavaraj was taken after the incident, has stated that
at 10.40 p.m. the injured was brought to the hospital with the
history of assault by four accused (Eshwarappa and others).
This witness has proved the wound certificate (Ext.P-4) and
stated that the injured succumbed to injuries in the night at
about 00.45 hours. He further told that at the time of
admission in the hospital Baswavaraj was unconscious.
13. PW-29 Pavarthamma has also corroborated the
prosecution story and stated that after she received thePage 14
Page 14 of 22
information of the incident through one Kammar Rudresh, she
rushed to the spot with Halesh, Nataraj, Kammar Rudresh
and M. Rudresh on a bullock cart. She further told that
Gurushanthappa, Basavanagowda, Umesha and Shankara
had already reached there with their bullock cart. She further
narrated that they all took the injured to some distance on
bullock cart whereafter an autorikshaw was engaged upto
Chellur and from Chellur, where her husband (Niranjanappa)
also joined, they took the injured in a van to Mc Gann
Hospital, Shimoga. She has also stated that her daughter
PW-1 Rajeshwari had also suffered minor injuries.
14. PW-25 Dr. Suresh has stated that on 04.03.1998 (next
day of the incident) he medically examined PW-1 Rajeshwari
and found following injuries on her person: -
(i) Contusion on medial aspect of the right leg which was
about 3 cms x 1 cms in size.
(ii) Pain and tenderness was present on the left side of the
neck.
(iii) Abrasions on the left hand is about 1 cm x ½ cm in
diameter.
(iv) Tenderness present all over the body
He also proved the wound certificate (Ext.P-25).
15. The trial court has disbelieved the evidence of injured
eye-witness PW-1 Rajeshwari observing that the same is not
corroborated by other witnesses of fact who have turned
hostile or partly hostile. But the trial court has committed
grave error in ignoring the fact that such witnesses were not
witnesses of the incident. The prosecution case is that they
reached the spot subsequently. The trial court strangely did
not believe the prosecution story on the ground that advocate
Srinivas was not produced by the prosecution. It is relevant to
mention here that as per the prosecution story he was not at
his residence when PW-16 Niranjanappa with his son and
daughter had gone to meet him in connection with the earlier
incident of the day.
16. Having gone through the entire evidence on record, as
narrated above, we agree with the High Court that the trial
court committed grave error by accepting the defence case that
the deceased might have died of the injuries suffered in an
accident, as the possibility was not ruled out by PW-2 Dr. C.
Francis. We have carefully gone through the statement of Dr.Page 16
Page 16 of 22
C. Francis. What he has stated in the cross-examination is
“such injuries can be caused to a person if he meets accident”.
There is no suggestion of the fact that at the place of incident
any vehicle had passed through at the time of the indicent.
The trial court appears to have taken support of conjectures
and surmises. In the circumstances, we are of the opinion
that the High Court has correctly held that the view taken by
the trial court is perverse and against the evidence on record.
17. As discussed above, the statement of PW-1 Rajeshwari
(injured) is corroborated not only from the statements of
PW-16 Niranjanappa, PW-29 Parvathamma and PW-30
Chanabasappa but also from the medical evidence on record.
The First Information Report in the present case is prompt and
copy of the same appears to have been sent on the very next
day to the Magistrate without delay. On behalf of the State it
is pointed out that from the record it is clear that all the three
appellants were absconding from the village after the incident,
and could be arrested only on 10.03.1998. Also, there is
mention in the Wound Certificate (Ext. P-4(b)), issued by PW-3Page 17
Page 17 of 22
Dr. Nanda Koti, regarding history of assault - which is quoted
below: -
“WOUND CERTIFICATE
Wound or injuries found on the person of a
male calling himself Basavaraj aged 28 years, an
inhabitant of Marigondanahalli who was sent with
--from -- and accompanied by Channappa for report
as certain injuries said to have been caused on
3.3.98 and to be due to said to have been assaulted
by 4 persons, Eswarappa and others with club on
3.3.98 at about 7.30 p.m…………………..”
18. On behalf of the accused/appellants Shri B.H.
Marlapalle, learned senior counsel argued that had the
incident taken place in the manner suggested by the
prosecution, the injured would have been taken to nearest
hospital available was at Chellur but he was taken to hospital
at Shimoga which creates doubt as to the place of the incident.
We find no force in the argument for the reason that there is
nothing on record to show that there were facilities to treat the
critically injured patient at Chellur. It has come on record
that the injured was in a critical condition and he was
unconscious when admitted in Shimoga hospital. Merely for
the reason that one doctor used to be posted at Chellur does
not mean that there were facilities to treat the patient of
critical condition, as such, in our opinion, there appears
nothing unusual in taking the injured to the hospital where
the injured could be given better treatment and time is not
lost.
19. The another argument advanced on behalf of the
appellants is that there are no details of assault in the First
Information Report and the story narrated by PW-1 Rajeshwari
is nothing but an improvement. However, on carefully going
through the First Information Report we find that all necessary
facts are narrated and only the details like from which side
particular accused came are not stated. It is settled law that
the First Information Report is not an encyclopaedia, and if
the necessary details are there, on its basis detailed narration
by the witnesses cannot be doubted.
20. The third point raised before us is that in the wound
certificate (Ext. P-4) there are only two injuries, i.e. bone
fracture of right leg and puncture wound below left angle of
mandible covered with blood are mentioned, while in the post
mortem report there are nine ante mortem injuries. As such
there is apparent discrepancy between the two documents.
On deeper scrutiny, we find that there is no material
contradiction for the reason that PW-3 Dr. Nanda Koti has
proved Ext. P-4(b) wherein it has been mentioned that the
patient needed immediate treatment, as such, only gross
injuries were entered in the register (not the minor injuries)
and the patient was shifted to emergency ward. In the
cross-examination he has clearly stated that Basavaraj
(deceased) was unconscious. In the circumstances, addition of
stitched wounds in post mortem report (Ext. P-2) does not
create doubt regarding the incident in question.
21. As to the source of light it is argued that it is not clear as
to how PW-1 Rajeshwari recognized the accused. Had the
accused been unknown persons, we would have accepted this
argument. But the accused were close relatives living in the
house of the witness, as such, it cannot be said that it was
difficult at all for her to recognize them when they assaulted
her brother at 7.30 p.m. on the way back from Honnali to
Marigondanahalli.
22. Shri B.H. Marlapalle further contended that not
recording of dying declaration of the deceased is a material
fact in the present case. We are unable to agree with the
contention of learned senior counsel for the reason that it has
come on record that the deceased was not in a conscious
condition when he was admitted in the hospital. As such,
there is no question of recording of dying declaration of the
patient in such a critical condition.
23. Learned senior counsel for the appellants drew our
attention to the case of Irlapati Subbaya v. The Public
Prosecutor, Andhra Pradesh1
, and submitted that in the
similar circumstances this Court did not find sufficient reason
for the High Court to set aside the order of acquittal. On
perusal of said case law, we find that that was a case where
prosecution witnesses had given different time of occurrence
between noon and just before sunset. There was also doubt as
to the place of incident in said case. But in the present case
there is no doubt either as to the time of incident or to the
place of incident.
24. Next case referred on behalf of the appellants is Joseph
v. State of Kerala2
, and it is submitted that the evidence of
1
(1974) 4 SCC 293
2
(2003) 1 SCC 465
the sole injured eye witness should not be accepted without
corroboration and caution. On going through the case law
referred, we find that this Court observed in said case that the
testimony of the sole injured eye witness was not reliable as
there were two separate versions of the incident in two First
Information Reports and one was suppressed. The First
Information Report relied upon was found doubtful as PW-1
himself did not acknowledge his signature in the First
Information Report relied by the prosecution. In the present
case, in our opinion, the evidence of PW-1 Rajeshwari is
sufficiently corroborated from the statements of PW-16
Niranjanappa, PW-29 Parvathamma and PW-30
Chanabasappa.
25. Lastly, learned senior counsel for the appellants referred
to the case of Muluwa son of Binda and others v. The State
of Madhya Pradesh3
and it is submitted that where two views
are possible, the High Court should not interfere with the
order of acquittal passed by the trial court. We agree with the
principle of law that when two views are possible, the view
3
(1976) 1 SCC 37
taken by the trial court should not be disturbed, but in the
present case the view taken by the trial court, as discussed
above, was perverse and rightly held so by the High Court.
26. For the reasons, as discussed above, we find no force in
this appeal which is liable to be dismissed. Accordingly, the
same is dismissed.
27. The appellants M.G. Shivaraj and Hebballi Shivappa
(appellant Nos. 2 and 3) are on bail. Their bail bonds stand
cancelled and the sureties are discharged. They shall
surrender forthwith before the trial court to undergo the
sentence awarded by the High Court.
………………………..…….J.
[N.V. Ramana]
………………………..…….J.
[Prafulla C. Pant]
New Delhi;
March 02, 2017.
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