Ganesh vs State Of Karnataka & Ors

State of Karnataka and Ors. ...Respondents

WITH

(Criminal Appeal No. 50/2006) (Criminal Appeal No. 587/2007) (Criminal Appeal No. 588/2007) (Criminal Appeal No. 589/2007)

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. These appeals are interlinked and therefore they are

disposed of by this common judgment.

2. The High Court by its judgment dated 24th August, 2005

disposed of three appeals. Criminal Appeal 394 of 2001 was

filed by the State of Karnataka questioning acquittal of the

accused persons for the offence punishable under Section 302

read with Section 149 of the Indian Penal Code, 1860 (in short

the `IPC'). The other appeals were filed by the accused persons

who were convicted for offences punishable under Sections

143, 148, 504 read with Section 149, Section 324 read with

Section 149 IPC, Section 326 read with Section 149 and

Section 307 read with Section 149 IPC. In all 25 persons faced

trial. However, the trial Court found only 6 of the accused

persons to be guilty and therefore they filed appeals which

were numbered as Criminal Appeal Nos.1344/2000 and

1359/2000. The other appeal was filed by the State as noted

above.

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3. The High Court acquitted S.Holeyappa (A-1) but held the

other five to be guilty of offence punishable under Section 302

read with Section 149 IPC. Accordingly State's appeal was

allowed. The appeals filed by the accused persons were

dismissed.

4. It is to be noted that while accepting the State's appeal,

the accused persons were convicted for the offence punishable

under Section 302 read with Section 149 IPC.

5. Background facts in a nutshell are as follows:

The accused, the deceased and the material prosecution

witnesses are all residents of Malladihalli village in Holalkere

Taluk. Accused Nos. 1 and 4 are brothers. Accused No.2 is the

son of accused No.4, whereas accused Nos. 3 and 5 are the

sons of accused No.1. Accused No.6 is related to these

accused. Similarly on prosecution side, Shivakumar (PW-2),

Lokesh (PW-3) and Murthappa (PW-7) are the sons of the

Kenchappa (hereinafter referred to as `deceased'). Relation

between the accused group and the deceased and his family

3 members was strained over erecting an electric pole in the

land of the accused, the line of which would have passed and

benefited the deceased and his borewell in the land near by

which was objected by the accused. This ill will and enmity

ultimately resulted in the assault on the deceased and his

sons on 2.10.1995. On that day, there was a festival and a

procession was taken of the deity by the villagers. The

deceased and his children had also joined the procession.

According to the prosecution when the procession came near

the post office by the side of which is also the house of the

accused, the accused group suddenly pounced upon the

deceased and his children and assaulted them. This took

place around 6.30 P.M., or so in the evening. After the assault

Kenchappa (deceased), P.W.2 Shivakumar, Lokesh were taken

to the hospital. In spite of the treatment given to the injured

Kenchappa, he breathed his last on 7.10.1995. Thereafter,

PW-1 a nephew of the deceased approached the jurisdictional

police at Holalkere and gave his written information as per

Ex.P.1, P.W.25 Mohammad Arif, S.H.O. of the Police Station

on receipt of the written information from P.W.1, registered a

case in Crime No.290/1995 for the offences under Sections

4 143, 147, 148, 504, 324, 307 read with Section 149 IPC

against 18 named and other un-named accused and

investigation was taken up. After the death of Kenchappa on

7.10.1995 the offence under Section 302 read with Section

149 IPC was also added. After completion of investigation, the

charge sheet was filed. The trial was held as the accused

persons abjured guilt. Thirty nine witnesses were examined to

further the prosecution version. The trial Court as noted above

placed reliance on the evidence of large number of persons

who are stated to be eye witnesses and held the accused

persons guilty of several offences but acquitted them of the

charge relatable to Section 302 read with Section 149 IPC.

In appeal, the primary stand of the State was that the

evidence on record left no manner of doubt that Section 302

read with Section 149 IPC was clearly applicable. The accused

appellants in their appeals contended that the evidence does

not inspire confidence and most of the related witnesses are

partisan witnesses and the High Court did not find any

5 substance in the appeals filed by the accused persons and

accepted the appeal filed by the prosecution.

6. In support of the appeals, learned counsel for the

appellants submitted that the eye witnesses PWs 2 and 3

should not have been accepted as they were to be related

witnesses. Admittedly, there was enmity between the parties

because of political rivalry. There was delayed examination of

so-called witnesses. It is submitted that when the trial Court

acquitted 19 accused persons i.e. A-7 to A-25 and the High

Court directed acquittal of A-1, it would be unsafe to sustain

the conviction of others. The investigating officer did not

investigate fairly and therefore the trial Court and the High

Court were not justified in upholding the conviction of the five

appellants. It is submitted the cause of death was due to

cardiac arrest and not on account of injuries sustained in the

alleged incident. Therefore, Section 302 IPC has no

application.

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7. Per contra, learned counsel for the State supported the

judgments of the trial Court and the High Court.

8. In the instant case, the evidence of PWs 2, 3, 7 and 13 is

of considerable relevance. Out of 39 witnesses examined, PWs

1 to 7, 12, 14, 15, 16, 27 to 29, 31, 33 and 35 were projected

as eye witnesses to the incident. But at the stage of trial,

except PWs 1 to 3, 7, 14 and 15, others did not support the

prosecution. The evidence on record shows that PWs 2 and 3

were injured witnesses. Their evidence assumes great

importance. It was pointed out by learned counsel for the

appellants that no definite overt act has been attributed to any

of the five respondents.

9. In Masalti v. State of Uttar Pradesh (AIR 1965 SC 202) it

has been observed as follows:

"where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the

7 assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. Where for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.

It is true that under the Evidence Act, 1872 trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a criminal Court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it cannot be treated as irrational or unreasonable. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who

8 give evidence. But sometimes it is useful to adopt a mechanical test."

10. In the instant case, though large number of co-accused

have been acquitted that cannot be a ground to discard the

evidence of trustworthy witnesses.

11. As a rule of universal application, it cannot be said that

when a portion of the prosecution evidence is discarded as

unworthy of credence, there cannot be any conviction. It is

always open to the court to differentiate between an accused

who has been convicted and those who have been acquitted.

(See Gurcharan Singh v. State of Punjab (AIR 1956 SC 460) and

Sucha Singh v. State of Punjab (2003 (7) SCC 643). The maxim

"falsus in uno, falsus in omnibus" is merely a rule of caution.

As has been indicated by this Court in Sucha Singh case in

terms of felicitous metaphor, an attempt has to be made to

separate the grain from the chaff, truth from falsehood. When

the prosecution is able to establish its case by acceptable

9 evidence, though in part, the accused can be convicted even if

the co-accused have been acquitted on the ground that the

evidence led was not sufficient to fasten guilt on them. But

where the position is such that the evidence is totally

unreliable, and it will be impossible to separate the truth from

falsehood to an extent that they are inextricably mixed up,

and in the process of separation an absolutely new case has to

be reconstructed by divorcing essential details presented by

the prosecution completely from the context and background

against which they are made, conviction cannot be made.

12. Great emphasis was laid on the version of the doctor to

contend that the death was not due to any injury but it was

due to cardiac arrest and respiratory failure as a result of

tetanus. The doctor's evidence is by way of hypothetical

answer that the death would not occur because of the injuries

received by sharp edged weapon. The evidence of Shiv Kumar

(PW-2), Murthappa (PW-7) and Lokesh (PW-3) clearly

established the role played by the accused persons and PW-3

was the injured witness. Ganesh (A-3) assaulted PW-2 with

10 axe on the neck part. He stated that A-4 has assaulted PW-2

with sickle and thereafter he assaulted him. The evidence of

PWs 1, 2, 3, 7 and 14 inspire confidence and, therefore, the

trial Court and the High Court had rightly convicted the

appellants. So far as acquittal of A-1 is concerned, the High

Court has given ample reasoning for setting aside his

conviction and affirming the conviction of other accused

persons.

13. The appeals are without merit and deserve dismissal

which we direct.

.........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, August 20, 2008

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