Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 435 OF 2006

M. G. Eshwarappa and others … Appellants

Versus

State of Karnataka …Respondent

J U D G M E N T

Prafulla C. Pant, J.

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.

Page 2 Page 2 of 22

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 and

Page 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 the

Page 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

Page 5 Page 5 of 22

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

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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.

Page 7 Page 7 of 22

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 namely

Page 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 on

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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 was

Page 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 the

Page 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

Page 15 Page 15 of 22

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-3

Page 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

Page 18 Page 18 of 22

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.

Page 19 Page 19 of 22

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

Page 20 Page 20 of 22

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 Pradesh

1

, 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 Kerala

2

, and it is submitted that the evidence of

1

(1974) 4 SCC 293

2

(2003) 1 SCC 465

Page 21 Page 21 of 22

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 Pradesh

3

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

Page 22 Page 22 of 22

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.