Mallappa Siddappa Alakanur & Ors vs State Of Karnataka

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1055 OF 2002

Mallappa Siddappa Alakanur & Ors. .... Appellants

Versus

State of Karnataka .... Respondent

JUDGMENT

V.S. SIRPURKAR, J.

1. Three appellants who were original accused Nos. 2, 3 and 4 have

come up against the conviction for the offences under Section 302 read

with Section 149, Indian Penal Code. They were acquitted by the

Sessions Judge. However, the High Court allowed the appeal against their

acquittal. As many as six accused persons were tried before the Principal

Sessions Judge, Bijapur on the basis of the charge-sheet filed by the

police on the allegation that on 22.06.1996 at about 5 p.m. they were the

members of unlawful assembly in prosecution of the common object

thereof and committed murder of one Malakari Sidda S/o Kariyappa 2

Alakanur. They were also named in the charge-sheet for the offences

under Sections 148, 302, 504 read with 149, IPC.

2. The First Information Report was given by one Ningappa

Mudakappa Kamari complaining therein that the complainant's sister's

husband was involved in a murder case and was in jail. The complainant

had put up a hut in the land of Kariyappa Alakanur situated at Yaragatti

and started cultivating it. It was further alleged that Kariyappa had three

sons and the eldest was Malakari Sidda. The father of Kariyappa was

involved in the murder of one Maruti Alakanur and on this account the

accused persons who were the relatives of the said Maruti nurtured a

grudge against Kariyappa Alakanur. It is stated that on 22.06.1996 the

deceased and the son of complainant were attending to the work of

preparing jaggery from sugarcane. When the work was over, his son

Mahadev Ningappa Kamari and deceased Malakari Sidda went to have a

bath in the canal by the side of the land of Dattapant Kulkarni. Since they

did not return early the complainant went towards the said canal and saw

all the accused persons near the canal who were armed with various

weapons. They lifted the said Malakari Sidda and carried him for some

distance and committed his murder. This was seen by his son Mahadev

and he being a friend ran towards their garden hut and, thereafter, this

witness came on a bicycle along with Arjun Ishwar Honamore and Sanjeev 3

Mahadev Honamore. He also mentioned that the accused persons had

gone away along with blood stained sickles in their hands towards

Yaragatti village. He had found that Malakari Sidda was dead and his

head was almost completely severed from the trunk. The police reached

the spot and found the body and conducted the necessary investigation.

The dead body was sent for post-mortem where 10 serious wounds were

found in it. The weapons were seized from the accused they being M.Os.

8 and 10. On the basis of the investigation the charge-sheet followed and

the accused persons were charged as aforesaid.

3. At the stage of evidence, the complainant turned hostile. However,

his son Mahadev Ningappa Kamari, PW-7 stood firmly and deposed

against the accused, though he was about 13-14 years old. PWs-5 and 6

were also examined in support of the prosecution. The Sessions Judge

accepted the evidence of PW-5, the complainant, in part. However,

commented that the evidence of PW-7 who was the star witness, was

unnatural. The Trial Court commented that his evidence did not match

with the medical evidence regarding the time of death of the deceased as

according to this witness the deceased had not eaten anything during the

day. However, the reminiscences of food were found which suggested

that his time of death would be about 11 O'clock or 12 O' clock in the noon

and not at 5 p.m. as deposed by the witness. Again the learned Sessions 4

Judge also found favour with the fact that though this witness was

available on the night when police visited the spot, his statement was not

recorded under Section 161 Cr. P.C. The Sessions Judge also found that

there were material contradictions in the evidence of this witness and his

father PW-5. Insofar as PW-6, Ningappa is concerned, he had seen the

accused persons proceeding towards the garden land at about 4:30 p.m.

and at that time the accused having blood stained sickles in their hands

and the sickles of the accused were also blood stained.

4. The Sessions Judge discussed the evidence of Siddappa, PW-2

who was a panch witness of the seizure of the blood stained clothes of the

accused persons as also on the discovery effected by the accused No. 2 in

pursuance whereof the sickle was recovered on the basis of the

information given by the accused No.2. The Sessions Judge also

discussed the evidence of PWs-3 and 4, Arjuna Iswhara and Muttappa

respectively, who had turned hostile. After discussing the evidence of the

investigating officers the Sessions Judge came to the conclusion that the

prosecution had failed to prove the evidence and, therefore, awarded the

benefit of doubt to all the accused persons.

5. In appeal against the acquittal filed by State of Karnataka against all

six accused persons, the High Court allowed the same only in case of A-1,

A-2, A-3 and A-4, namely, Pradhani Siddappa Alakanur, Mallappa 5

Siddappa Alakanur, Dundappa Yamanappa Kabbur and Siddappa

Yamanappa Kabbur, respectively.

6. Since A-1 Pradhani Siddappa Alakanur died during the criminal

proceedings before the High Court this appeal abated against him. The

present appeal, therefore, has been filed only by A-2, Mallappa Siddappa

Alakanur, A-3, Dundappa Yamanappa Kabbur and A-4, Siddappa

Yamanappa Kabbur. We are, therefore, concerned only with these three

accused.

7. The learned senior counsel appearing on behalf of the appellants

severally criticized the approach adopted by the High Court in setting aside

the acquittal recorded by the Sessions Judge. In that, the learned senior

counsel claimed that the High Court had completely ignored the principles

laid down by this Court while dealing with appeal against acquittal. It was

then pointed out by the learned senior counsel that though the High Court

had power to re-appreciate the evidence in appeal against acquittal, in this

particular case the High Court, while appreciating the evidence of the child

witness and the other witnesses was not alive to the fact that the

demeanour of the witnesses was seen by the Trial court which had chosen

to disbelieve the witnesses. It was suggested that the evidence of PW-5

was of no use because he was declared hostile and the evidence of PW-7

was that of a child witness who could be influenced by the prosecution. 6

Further, it was suggested that the High Court had not given any

explanation for the inherent weakness of a child's testimony and even on

merits the evidence of PW-7 could not be accepted. It was pointed out

that the fact that, though available, the statement of this witness was not

recorded immediately, was left unconsidered by the High Court. Further,

the discrepancy of medical evidence with the prosecution case was also

ignored by the High Court.

8. Lastly, almost a desperate argument was made that even if the

prosecution evidence could be believed, accused Nos. 3 and 4 deserved

to be treated differently then accused No.2 as they could not be said to

have any intention to commit murder of the deceased.

9. As against this, the learned counsel for the State refuted the

arguments and pressed into service a few reported decisions suggesting

that even in an appeal against acquittal, the High Court's power to re-

appreciate the evidence and to come to the conclusion independently of

the judgment of the acquittal remained undeterred. The State counsel has

supported the judgment and criticized the judgment of the Sessions Judge

that the appreciation of evidence by the Trial court was not only

perfunctory but whole approach was perverse and, therefore, the High

Court had rightly set aside the said judgment.

7

10. On these conflicting claims we have to decide as to whether the

High Court was right in upsetting the finding of acquittal reached by the

Trial Court and convicting the three appellants herein.

11. The course to be taken by the High Court in dealing with the appeal

against acquittal is now well established. It is not and can never be that

the High Court is bound by the finding of the Sessions judge and cannot

re-appreciate the evidence. The only requirement of law is that the High

Court should be sufficiently mindful of the presumption of innocence of the

accused which presumption is reiterated by the finding of acquittal

recorded by the Trial Court. The High Court, therefore, must come to the

conclusion that the finding of acquittal by the Trial court is totally

unsustainable and further that the appreciation of the evidence of the Trial

Court tends to be perverse and as such cannot be supported. If the High

court comes to these conclusions, then the whole appeal is open to the

High Court and the High Court is justified in re-appreciating the evidence

and also to come to a different finding.

12. The High Court, firstly, found fault with the Trial Court's approach in

rejecting the testimony of the witness on immaterial and unsubstantial

contradictions not relating to vital and relevant aspects. The High Court

also reiterated the law laid down by this Court in Ramesh S/o Laxman

Gawli Vs. State of M.P. & Ors.Etc. reported in 2000 (1) SCC 243 to the 8

effect that the contradictions, inconsistencies, exaggerations or

embellishments, minor discrepancies or variance in the evidence do not

make the prosecution doubtful. On the other hand they lend credibility to

the prosecution version. Even as regards the principles of dealing with the

judgment of acquittal, the High Court relied on the judgment reported as

Allarakha K. Mansuri v. State of Gujarat [2002 (3) SCC 57] wherein this

Court has reiterated the duty to avoid miscarriage of justice arising from

acquittal of guilty. Therefore, it cannot be said that the High Court was not

alive to the fact that it was dealing with the judgment of acquittal. The high

court has correctly proceeded to consider the evidence.

13. PW-7 is a star witness in this case. He was all through with the

deceased on that fateful day, since they were working together on jaggery

plant. He had also, as usual, gone for taking bath along with the deceased

and when they finished bath, he suddenly found A-3 and A-4, calling the

deceased and whisking him away to the distance of about 100 yards. The

third accused held the legs of the deceased, while the fourth accused held

the hands and thus, completely overpowered him and in that state, A-1

and A-2 assaulted at the neck of the accused. The other accused persons

were provoking not to leave the deceased. All this time, the deceased was

making hue and cry, which was most natural. The witness being a boy of

13 or 14 years, obviously got frightened and ran away from that spot and 9

where he met his father PW-5 and told him what had happened. This

witness has graphically described the shirt worn by the deceased, his

towel and identified the clothes in the Court. He even identified the pant of

the deceased. The waist thread of the deceased was also identified, which

was blood stained. He had further identified the clothes worn by A-3, as

also the sickles used by A-1 and A-2, who committed the murder. The

green shirt of A-3 (M.O. 7) and sickles used by A-1 and A-2 (M.Os. 8 and

10 respectively) were also identified by the witness. He was mostly cross

examined on persons present on the spot, which was of no consequence,

because the incident did not take place at the jaggery land.

14. The major reason why this witness was disbelieved was because of

the food articles found in the stomach of the deceased, which could only

be if the deceased had eaten something 3 or 4 hours before the death.

From this, the Trial Court jumped to the conclusion that the boy must have

been done to death not at 4 or 5' O clock in the evening as claimed by the

witness, but at about 11 or 12` O clock in the morning, since he had eaten

his food at 8'O clock according to PW-7. Now, one sentence in the cross

examination that the deceased did not take lunch in the farm land, was

reiterated by the Trial Court to hold that the whole story of PW-7 was

unnatural. It was got admitted in the cross examination that he was sitting

near the dead body of the deceased. He also reiterated that his father 10

again came to the spot at about 9 p.m. alongwith PSI. However, he was

interrogated at 12 pm next day. From this, the Sessions Judge came to

the conclusion that the boy must have been influenced and that there was

no explanation for not recording his statement at night itself. Both the

circumstances about the food, as well as, late recording are most

insignificant circumstances and the High Court has correctly rejected the

same. Insofar as the medical aspect about the food is concerned, the High

Court has considered the same while considering the medical aspect. The

High Court has also considered the criticism that the number of injuries on

the body of the deceased did not tally with the account given by this

witness. The High Court has relied on the judgment in Masjit Tato

Rawool Vs. State of Maharashtra reported in AIR 1971 SC 2119, Shivaji

Sahebrao Vs. State of Maharashtra reported in AIR 1973 SC 2622 and

P. Venkaiah Vs. State of A.P. reported in AIR 1985 SC 1715 and held

that too much reliance could not be placed on such slippery steps

regarding the reminiscences of food articles found in the stomach of the

deceased. The High court has attributed that discrepancy to the fact that

PW-7 might not have noted that the deceased had eaten something or that

being a young children they had the habit of eating something between the

meals and only such undigested food must have been found in the

stomach of the deceased.

11

15. Similarly, the High Court has discussed the number of injuries which

did not tally with the eye-witness' account, holding that it may be that the

witness might not have seen the other injuries being inflicted and further in

a conflict between the ocular evidence and the medical evidence, if the

testimony is acceptable, trustworthy and reliable, the same should be

preferred to the medical evidence. We feel the approach of the High Court

on these aspects was absolutely correct and the Trial Court was totally

wrong in recording the finding of acquittal on such insignificant

circumstances. A doubt by the criminal Court should not be that of

doubting Thomas, it should be a real and tangible doubt. A doubt

regarding the veracity of the evidence of the witness should be a

reasonable doubt and the evidence cannot be simply brushed aside on

such minor aspects, as has been done by the Sessions Judge. Same

thing can be said about the other circumstance that his submission was

not recorded on the same day. The Trial Court has led stress on this

insignificant aspect. True it is that the statement should have been

recorded in the same night, however, one can imagine a situation of a

young boy, who had seen a ghastly murder having been committed and

then his being subjected to an ordeal of giving the statement in the dead of

the night. The delay in recording the submission is undoubtedly a

circumstance which has to be taken into consideration, but at the same

time, the Courts must be reasonable in this aspect also and should see as 12

to whether the late recording of the statement in the dead of the night of a

tender aged boy of 13 was possible and feasible. The further thing which

has to be considered is as to whether such delay has affected his

testimony or whether there was any real apprehension of the boy being

influenced by any other person or the police. In the absence of any such

possibility, the evidence of the boy could not be thrown out, more

particularly, when the boy had faced the ordeal of the cross examination in

a very efficient manner. The usual police apathy to record statements in

the late hours can also be another factor to be considered.

16. We have, ourselves, seen the cross examination and very strangely,

the witness was asked the questions about the actual assaults in his cross

examination, thereby actually admitting his presence at the spot. He

explained in his cross examination that A-3 and A-4 attacked the boy and

threw him down on the ground and he identified the accused even at that

time. His not shouting can also be explained that he was feeling extremely

apprehensive on account of such dastardly attack on the deceased, who

was his friend. Graphic description as to how the attack was made by A-1

and A-2 with the help of A-3 and A-4 has come in para 7, in his cross

examination. The omissions brought out in para 9 are also of miniscule

nature. His story that A-3 and A-4 whisked away the deceased and

thereafter, overpowered him and A-1 and A-2 committed the dastardly 13

attack on the helpless boy, however remained unshaken throughout the

cross examination. The reasons given by the Sessions Judge to reject the

evidence appear to be non-existent. In fact, the Trial Court started with an

expression of doubt, holding that the evidence appears to be unnatural.

There was nothing unnatural in the evidence. His presence at the spot

was well explained. The story that he went alongwith the deceased to take

bath after the work at the jaggery plant, also remained unshaken and

ultimately his story as to how the attack occurred has also remained

unshaken in his cross examination. Very strangely, the Sessions Judge

calls him an interested witness. In our opinion, his evidence could not be

rejected on that ground. If he was actually the cousin of the deceased, he

could not change that situation. There is neither evidence nor any

suggestion that this boy was tried to be influenced either by his father or

the relations of the deceased. We have already stated that the omissions

proved at Exhibits D1(A) and D1(B) are most insignificant and, therefore,

we are quite satisfied with the finding of the High court that the evidence of

this witness was credible.

17. The High Court has then discussed the evidence of PW-5, the father

of PW-7. We completely fail to understand as to why PW-5 was declared

hostile. He was perhaps declared hostile because he refused to state that

he had seen the murder and stuck to the story that he was told by his son 14

about it. In his evidence, he reiterated that his son, i.e., PW-7 and the

deceased left for taking the bath after the completion of work as per their

practice and since they did not turn up for a long time, he went and saw

that his son was running at a distance of 150-250 ft. from the said

chamber. He had stated that he had not seen the accused persons cutting

the neck, however, he had actually seen all the accused persons, who ran

away towards the Yaragatti. Great stress was led on the fact that in

Exhibit P-8 FIR, he had stated that when he went near the land, the six

accused persons attacked the boy and committed his murder. During his

evidence, however, he had stated that the accused persons had already

assaulted and murdered the deceased before he and his son reached the

spot. He had also very specifically stated that he had not seen the

accused persons cutting the neck of the deceased. In our opinion, this

was no reason to declare him hostile. It may be that during his narration,

the person taking down the report may have committed this mistake. That,

however, will not be fatal to his evidence. In his cross examination, he

reiterated that he had stated that his son had seen the whole incident.

One very significant sentence in Exhibit P-8 is missed by the Trial Court.

That sentence is:-

"seeing this situation, my son Mahadev apprehended and ran towards our crushing house and immediately I made hue and cry."

15 Therefore, it is clear that the witness has referred and corroborated

the testimony of PW-7 that he ran towards his father and thereafter, the

father and son, PW-5 and PW-7 respectively, went towards the spot,

where the deceased was lying, and at that time, the accused persons fled

away from the spot. In our opinion, the witness was truthful and his

evidence should not have been rejected by the Trial Court for such small

and insignificant thing. After all, he is a villager and there is every

possibility of the person who took down the report on his dictation,

committing the mistake. Otherwise, the evidence of this witness has

remained unshaken. Much was said of the fact that in para 8 of his

evidence, he said that his son was near the dead body and on that day,

the police interrogated his son Mahadev at night, whereas PW-7 had said

that his submission was recorded on the next day at 12' O clock. Both the

things can be true. It may be that though PW-7 was interrogated at night,

his statement came to be recorded on the next day. We do not find any

such discrepancy, so as to reject the evidence of both. The other

omissions brought in the cross examination of this witness are wholly

insignificant. In our opinion, the High Court has correctly appreciated the

evidence and in recording a finding that there was no opportunity to this

witness to concoct any false case, no error is committed. We must note

that this witness was not treated as hostile, on the other hand only a

permission to cross-examine him was sought. Even if he was declared to 16

be hostile, the law is now clear that that by itself does not wash out his

evidence. It is not correct to say that the high Court has not considered

the evidence in a fair and correct manner. On the other hand, all the

points argued before us seem to have been considered by the High Court

with great care.

18. Similar thing has happened about the evidence of PW-6. He was

the one, who had seen the accused persons running away with the sickles

and the clothes of A-1 to A-4 being blood stained. He had also identified

the blood stained weapons and the clothes. We do not find anything

unnatural in the evidence of this witness.

19. We have seen the medical evidence of Dr. Shobha PW-15, who had

conducted the Post mortem and had took the ten injuries suffered by the

deceased. Much was said that the eye-witness PW-7 had not described

the assault, so that it could suggest causing ten injuries. A fact cannot be

forgotten that here was a witness of the tender age and he was not

expected to explain each and every injury. He has deposed about the

participation of A-1 and A-2 and the crucial part played by A-3 and A-4.

The cross examination of the Doctor is absolutely perfunctory. The

evidence of Investigating Officer supports the evidence of PWs 1 and 2,

who are the panch witnesses. PW-2 has proved the discovery at the

hands of A-1, who is dead, as also the discovery made by A-4. In his 17

evidence, the Investigating Officer has also said about the articles being

sent to the Chemical Examiner at Bangalore and had also referred to the

queries seeking the opinion of the Doctor as to whether the external

injuries could be caused by the aforementioned weapons seized by him.

Lastly, the other Investigating officer PW-18 Gurrapagouda also suggested

that he had arrested the A-1 and A-2, apart from the fact that he had

referred to the various panchanamas including the seizure panchanama of

the blood stained clothes etc. There is nothing in the cross examination of

this Investigating Officer either. Therefore, we ourselves are satisfied that

the offence was completely and totally proved as against the four accused

persons. We are fully satisfied that this was a case, where the

appreciation of the evidence at the hand of the Trial court was erroneous

and faulty and that by the High Court was correct.

20. We need not reiterate on the case law in Dila & Anr. Vs. State of

U.P. reported in 2002 (7) SCC 450. The three Judge Bench of this Court

has held that in an appeal against the acquittal, the High Court has same

powers which the Trial Court has in examining the evidence and if it comes

to the conclusion that the view taken by the Trial Court was unreasonable

or against the weight of evidence, it could reject the finding recorded by the

Trial Court. In this case, the High Court has not rejected the findings by

the Sessions Court, merely because it could come to the other findings. 18

The High Court has given adequate reasons in coming to the findings that

it did. The two Judge Bench of this Court in Bhagwan Singh & Ors. Vs.

State of M.P. reported in 2002(4) SCC 85 has held that the paramount

consideration of the Court is to ensure that miscarriage of justice is

avoided.

21. We are, therefore, convinced that the High Court has acted correctly

in setting aside the judgment. The Learned Senior Counsel Shri

Rangaramanujam, appearing on behalf of the appellants, however, by way

of his last submission reiterated that the case of A-3 and A-4 is different

from the case of A-1 and A-2. We do not think so. In fact, A-3 and A-4

have played a very major role in the whole affair. They were the one, who

started the assault on the poor boy, nobbed him down, carried him away

and overpowered him. Therefore, there may not be any dispute about the

role played by them. They are equally guilty as A-1 and A-2. In short,

there is no merit in this appeal and it is dismissed accordingly.

......................................J. (V.S. Sirpurkar)

......................................J. (R.M. Lodha) New Delhi;

July 7, 2009.

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Digital Performa

Case No. : Criminal Appeal No. 1055 of 2002

Date of Decision : 07.07.2009

Cause Title : Mallappa Siddappa Alakanur & Ors.

Versus

State of Karnataka

Coram : Hon'ble Mr. Justice V.S. Sirpurkar Hon'ble Mr. Justice R.M. Lodha (Vacation Bench)

C.A.V. On : 27.05.2009

Order delivered by : Hon'ble Mr. Justice V.S. Sirpurkar

Nature of Order : Reportable